Presidential Transition Act, and More from CRS

Noteworthy new publications from the Congressional Research Service include the following.

Personal Debt and National Security

Last June the Department of Defense denied an application for security clearance for access to classified information because the applicant had “delinquent debts totaling about $24,000.”

In May, a defense contractor was denied a security clearance based on delinquent debts totaling $87,517.

In fact, excessive personal debt is among the most commonly cited reasons for denying or revoking access to classified information.

The rationale for linking personal financial behavior with national security is spelled out in the National Security Adjudicative Guidelines for Determining Eligibility for Access to Classified Information that are published in Security Executive Agent Directive 4 (Guideline F: Financial Considerations):

“Failure to live within one’s means, satisfy debts, and meet financial obligations may indicate poor self-control, lack of judgment, or unwillingness to abide by rules and regulations, all of which can raise questions about an individual’s reliability, trustworthiness, and ability to protect classified or sensitive information. . . . An individual who is financially overextended is at greater risk of having to engage in illegal or otherwise questionable acts to generate funds. Affluence that cannot be explained by known sources of income is also a security concern insofar as it may result from criminal activity, including espionage.”

“Conditions that could raise a security concern and may be disqualifying include:
(a) inability to satisfy debts;
(b) unwillingness to satisfy debts regardless of the ability to do so;
(c) a history of not meeting financial obligations;
(d) deceptive or illegal financial practices such as embezzlement, employee theft, check fraud, expense account fraud, mortgage fraud, filing deceptive loan statements and other intentional financial breaches of trust;
(e) consistent spending beyond one’s means or frivolous or irresponsible spending, which may be indicated by excessive indebtedness, significant negative cash flow, a history of late payments or of non-payment, or other negative financial indicators;” and so on.

See the entire Guideline F in Security Executive Agent Directive 4.

The subject arises, of course, because of reporting from the New York Times that President Trump has personal debt totaling hundreds of millions of dollars.

The concern is not so much the blatant unfairness of the dual standard by which thousands of individuals are denied a clearance for a minuscule fraction of the financial irresponsibility displayed by the President.

The problem is that the entire apparatus of security clearances is being mooted and undermined by the President who controls it. It does little good to try to ensure the integrity of each individual member of the massive defense and intelligence bureaucracies if their chief executive is himself potentially vulnerable to overwhelming financial pressure.

According to the latest government quarterly report on security clearance policy, around 2.3 million cleared individuals (out of perhaps 4 million or so) are now subject to “continuous evaluation” to promptly detect financial irregularities or other activity of security concern.

In the new fiscal year, the Defense Counterintelligence and Security Agency says it will “expand the number of individuals covered by continuous high-value checks, including providing alert management and real-time threat analysis and reporting, for the national security sensitive population.” The President is not among the covered individuals.

Senator’s Challenge to War Powers Secrecy Blocked

Last January the Trump Administration formally notified Congress under the War Powers Act of a US drone strike that killed Iranian Maj. Gen. Qasem Soleimani.

But unlike all known prior War Powers Act notifications, the report on the Soleimani killing was classified in its entirety. (Previous reports sometimes included a classified annex together with the unclassified notification.)

Senator Chris Murphy (D-Conn.) said that was unacceptable. “There’s a veil being pulled over the foreign policy of this country,” he told the Washington Post. See “Six months later, Democrats keep working to unearth a big national security secret” by Greg Sargent, The Washington Post Plum Line, July 21, 2020.

Senator Murphy asked the White House to reconsider the classification. “It is critical that decisions regarding the use of force consistent with the War Powers Act be provided in unclassified form to the American people,” he wrote. He received no response.

So he turned to the Interagency Security Classification Appeals Panel (ISCAP), a group of executive branch agency representatives that is authorized by executive order to decide appeals of challenges to classification.

The initiative failed. Last month the ISCAP said that it would not consider such an appeal from Senator Murphy or from any other member of Congress.

The ISCAP refusal leaves the War Powers Act report on Soleimani fully classified and it keeps the public in the dark about the asserted legal and factual basis for killing him. But it highlights an important gap in classification policy that could be corrected in a new Administration and a new Congress.

* * *

When information is classified improperly or unnecessarily, the opportunities for correcting such actions are quite limited.

A provision for government employees to formally challenge the classification of certain information was introduced in President Clinton’s 1995 executive order 12958 (section 1.9) and has remained in effect until the present (executive order 13526, section 1.8). The provision states:

“Authorized holders of information who, in good faith, believe that its classification status is improper are encouraged and expected to challenge the classification status of the information. . . .”

Importantly, this provision was not intended as a courtesy or a privilege. In fact, it was not intended for the sake of the challengers at all. Rather, the purpose of such classification challenges was to promote the integrity of the classification system and to help make the system self-correcting, as far as possible. That’s why potential challengers are “encouraged and expected” to present challenges even if they don’t personally care about the issue at all.

There were 954 such challenges in fiscal year 2016, according to the Information Security Oversight Office, and 167 of those resulted in the classification being overturned in whole or in part. In FY 2017, there were 721 challenges, 58 of which led to changes in classification.

No member of Congress had ever invoked this provision before. But Senator Murphy had some reason to believe that such a classification challenge could be effective in the case of the Soleimani war powers report.

The sticking point was the definition of “authorized holders of [classified] information,” who are the only ones that can present a classification challenge under the executive order.

One would suppose that a member of Congress who is in possession of a classified report that was officially provided to him or her by the executive branch would certainly qualify as an “authorized holder.” In fact, the executive branch has a binding legal obligation to provide certain classified defense and intelligence information to Congress.

But it turns out that the executive order (in section 6.1c) narrowly defines an “authorized holder of classified information” as one who has been vetted by an agency and found eligible for access. (Oddly, this limiting definition was only added in 2009.) Since Members of Congress are cleared for classified information by virtue of their office and do not undergo agency vetting, they are not “authorized persons” for purposes of the executive order.

This does not make any sense from a policy point of view. Just as executive branch employees and contractors are “encouraged and expected” to point out potential errors in classification, so should Members of Congress be, and for the same reasons.

But the classification challenge procedure is constrained by the language of the executive order, said Mark Bradley, director of the Information Security Oversight Office and executive secretary of the ISCAP.

“We have to do what the Order says, not what we want,” said Mr. Bradley, who early in his career served as an aide to Senator Daniel P. Moynihan.

* * *

Mr. Bradley suggested that Senator Murphy could direct his challenge to the Public Interest Declassification Board, which unlike the ISCAP is specifically authorized to review congressional challenges to the classification of certain records.

But the PIDB is a much weaker body than the ISCAP. While the ISCAP can “decide” on classification challenges (subject to appeal), the PIDB can only review and “recommend.” And while the ISCAP has actually overturned existing classifications on numerous occasions, no PIDB recommendation has ever had the same effect.

The PIDB did previously handle one congressional request for declassification review, said John Powers of the ISOO and PIDB staff, in or around 2014. For the most part, the subject document in that case turned out to be properly classified, substantively and procedurally, in the PIDB’s view. But the Board forwarded a limited redaction proposal that would have allowed partial release to the Obama White House for consideration. The White House did not act on it.

Senator Murphy turned to the PIDB to request declassification review of classified intelligence concerning foreign interference in the upcoming US elections, the Washington Post reported yesterday.

* * *

The statement by ISOO director Mark Bradley cited above — “We have to do what the Order says, not what we want” — is worth further consideration.

What he was saying is that those who are responsible for enforcing checks and balances have to follow a code of conduct and have to adhere to a set of principles, whether or not they personally agree with the outcome in a particular case.

The problem is that those who abuse the system to classify (or sometimes to selectively declassify) information improperly recognize no such constraint. This discrepancy is vexatious.

It means that the checks and balances of the current system are most effective when they are least necessary. When everyone is acting in good faith and with an honest commitment to shared (constitutional) values, most disagreements can be resolved over time. Some compromise is usually possible.

But when good faith and principled self-restraint are lacking, and one side aims to maximize its power at any cost, the current structure of checks and balances has proved to be largely helpless.

Even if the ISCAP had agreed to consider Senator Murphy’s classification challenge, and if it had actually agreed with him that all or part of the War Powers Act notification concerning the Soleimani killing was not properly classified, that might not have been the end of the story.

“Panel decisions are committed to the discretion of the Panel,” according to the executive order (sect. 5.3e), “unless changed by the President.” But that means that a hypothetical ISCAP decision to declassify the notification could be overruled by the same White House that classified the whole thing in the first place.

So while good policies are necessary, they are not enough. For our constitutional system of government to work, we also need officials who are, if not the “angels” that James Madison spoke of, at least dedicated public servants who share a common purpose.

Senator Murphy’s office said that he would soon introduce legislation to authorize and require the ISCAP to consider classification challenges from Congress.

* * *

The current infrastructure for declassifying classified records that are no longer sensitive is already being overwhelmed by a deluge of historical records that are accumulating faster than they can be processed. This situation was discussed in a September 9 hearing before the Senate Select Committee on Intelligence and is the subject of new legislation (S. 3733) introduced by Senators Wyden and Moran.

That is an issue of efficiency and productivity that probably has a technological solution, as the Public Interest Declassification Board has argued.

A harder problem is over-classification, in which information is classified improperly or unnecessarily, or at a higher level than is warranted. Such classification errors can be corrected, at least hypothetically, through classification challenges, Freedom of Information Act requests, and other means.

A still harder problem concerns information that is properly classified — in the sense that it meets the criteria of the executive order — but nevertheless belongs in the public domain because of its fundamental policy importance. Examples include classified reports of torture, mass surveillance, or foreign election interference.

To the extent that such information is “properly classified” in a formal sense, it is currently beyond the reach of the Freedom of Information Act, mandatory declassification review, or classification challenges. When it does become public, that is often due to unauthorized disclosures. While agency heads may declassify classified information in the public interest as a matter of discretion (under section 3.1d of the executive order), they rarely do so and there is no mechanism for asking or inducing them to.

So along with adequate basic functionality and improved procedures for challenging improper classification, any future classification system also needs to tackle the problem of “properly classified” information that should not be classified.

Navy Lab’s Future Is At Risk, Report Warns

Updated below

The U.S. Naval Research Laboratory (NRL) boasts an amazing record of achievement but its future is in jeopardy, according to a newly disclosed report of the Naval Research Advisory Committee that was suppressed by the Navy.

NRL is widely recognized as a world class research institution that has made transformational discoveries in many scientific fields from space science to marine biology, and it pioneered key technologies such as the Global Positioning System.

But that reputation is based mostly on past work. In 2018, the Secretary of the Navy tasked the Naval Research Advisory Committee (NRAC) to assess the Lab’s future role and effectiveness.

“NRL has a proud history of accomplishment,” the NRAC report concluded. “However, there are clear threats for its future.” A copy of the November 2018 interim report was obtained by Secrecy News after the Navy refused to release it.

One problem is that the physical state of the Naval Research Laboratory is a mess.

“We found that most of the facilities are in incredibly poor condition,” the NRAC report said. “Various NRL facilities and laboratories are experiencing leaks, heating and air conditioning problems, and other infrastructure failures.”

“Poor facilities lead to inefficient research, safety issues, and negative motivation for potential researchers,” NRAC said.

(On this point, at least, the Navy concurs with the advisory panel. “Due to their advanced age and deterioration, funds are planned to restore/modernize various laboratory facilities at the Naval Research Laboratory,” according to the Navy’s budget request for FY 2021.)

More subtly, NRL lacks a clear vision of its own future, NRAC said. “The bedrock of any organization is its strategy as captured in a formal strategic plan.” But NRL does not have a strategic plan for science and technology, the report said. Remarkably, neither does the Navy as a whole. Consequently, the NRL research program, buffeted by current needs and controversies, risks losing sight of more ambitious, long-term scientific goals.

Institutionally, the NRL has been isolated from Navy leadership to the detriment of both, according to the NRAC.

“Senior naval leaders are not connected directly with NRL nor do they participate in any routine meetings to keep them informed of specific areas of scientific import.”

“Senior naval leaders (i.e., SECNAV, CNO, CMC, ASNs, VCNO, 4-star Admirals, major N-codes and HQMC codes) get routine briefings on many key topics. They are vocal that the U.S. is losing ground to potential adversaries in the area of science and technology. They emphasize the criticality of S&T in national defense strategies; but NRL, the Navy’s corporate scientific laboratory, is not present at these briefings.”

If scientific advancement is to have a role in the Navy of the future, Navy leaders as well as junior officers and sailors at sea all need to talk to Navy scientists, the NRAC said.

Finally, NRAC said the NRL will have to find new ways to compete for outstanding scientific talent and to maintain a vibrant research culture and a diverse workforce.

NRAC “encourages the leadership of NRL to deliberately pursue a leadership role in enhancing diversity, equity, and inclusion of its technical workforce. Demographic data presented indicate that the distribution of scientists, engineers, and leaders is not diverse and in fact declines with seniority.”

* * *

The Navy had refused to divulge the NRAC report. A request under the Freedom of Information Act was denied on grounds that the report is “pre-decisional.”

“This report is marked ‘do not distribute’, is pre-decisional, and is thus exempt from disclosure,” the Navy said in its September 4, 2019 denial letter.

A copy of the report had to be obtained independently.

Leaks of pre-decisional DoD material are damaging to the nation even when they are unclassified, Secretary of Defense Mark T. Esper told the House Armed Services Committee last week.

“The illegal leaks are terrible, they’re happening across the government, particularly at the Defense Department,” Secretary Esper said at the July 9 hearing (at 1:03:45). “Whether it’s pre-decisional unclassified items or even classified items it hurts our national security, it jeopardizes our troops and it is just damaging to our government and our relationships with our allies and partners.”

But it is hard to see how disclosure of this pre-decisional NRAC report could possibly fit Secretary Esper’s description. If anything, it is the Navy’s refusal to disclose the report that was more likely to cause damage by making it harder to advance solutions to the problems NRAC identified.

In this case, the Navy did more than simply suppress the NRAC message — it eliminated the messenger.

Shortly after the NRAC drafted its report on the Naval Research Laboratory, Under Secretary of the Navy Thomas B. Modly moved to terminate the 73 year old Naval Research Advisory Committee. (“Navy Torpedoes Scientific Advisory Group,” Secrecy News, April 5, 2019)

“You are hereby directed to execute all required actions to disestablish the Secretary of the Navy Advisory Panel and Naval Research Advisory Sub-Committee,” Modly wrote in a 21 February 2019 memo.

Today, as a result, the NRAC is no longer around to assess the results of its recommendations, nor will it be available to offer any further criticism in the future.

Update, 7/14/20: The Naval Research Laboratory replied to our request for comment as follows:

“The U.S. Naval Research Laboratory worked with the Naval Research Advisory Committee during their review of NRL in 2018, and has been working to implement many changes found during the NRAC’s review and since then, including a strategic plan. Further questions about the NRAC report should be sent to the Navy news desk.”

Hollywood and the Bomb

Among the lesser known consequences of the bombing of Hiroshima and Nagasaki 75 years ago was that it triggered a race between Hollywood movie studios MGM and Paramount to bring the story of the atomic bomb — or at least some commercialized version of it — to the American public as a major motion picture.

In the new book The Beginning or the End (which was also the name of the resulting 1947 MGM film), author and journalist Greg Mitchell excavates this long-forgotten episode to discover what it says about the way the Bomb was perceived and assimilated into popular culture.

The idea for a popular film originated with a pitch from Manhattan Project chemist Ed Tompkins to his former pupil, the actress Donna Reed. Such a film, he told her, might help to “impress upon the public the horrors of atomic warfare.”

The idea caught the attention of the movie studios, and the race to bring the proposal to fruition began. Mitchell vividly captures the wheeling and dealing that went on to generate a suitable script, to line up appealing actors, and to win the necessary government cooperation and, indeed, approval.

Beyond the odd and sometimes amusing machinations of the movie business at the time, Mitchell tells a more important story.

“This book offers not only deep reconsideration of the use of the first nuclear weapons against two Japanese cities, but an urgent warning about secrecy, manipulation and suppression as threats to the planet accelerate today,” he wrote in the Preface.

But one could say that the book is only incidentally about nuclear history, and that it is best appreciated as a work of cultural analysis and critique.

Mitchell describes how, as it took shape, the film largely jettisoned the scientists’ concerns that had inspired the project. The filmmakers added spurious details, deleted inconvenient facts (including all mention of the Nagasaki bombing), and bowed to government pressure. They flattered government officials and scientists to win their support or their consent to be portrayed. (Niels Bohr stands out as one of few who could not be seduced or browbeaten to cooperate.) The overriding imperative was to draw audiences and to make money.

In almost every respect, it was a failure, Mitchell reports.

The film presented “melodramatic simplifications and, indeed, falsifications of what actually took place,” wrote columnist Walter Lippmann following a preview. Writing in Time Magazine, James Agee disdained its “cheery imbecility.” The movie performed poorly at the box office.

The filmmakers “actually think that they have made history,” wrote film critic Bosley Crowther in the New York Times. “It is a slightly ridiculous conceit.”

But, Mitchell counters, “one might say that the film — in exaggerating, glorifying, and even fabricating key events — did ‘make’ history.”

And that perspective is what makes this book so interesting and surprising. It illuminates the process by which a cultural artifact — a movie, in this case — is constructed, step by negotiated step. Mitchell has a light touch, and the book is easy to read. But it poses deep questions that go beyond the manufacture of crude propaganda. How does one tell a story? Whose voices count and whose are to be excluded? What leads story tellers (or filmmakers) to omit some facts and to embrace certain falsehoods? How does the profit motive skew the outcome?

The film The Beginning or the End has long been justifiably neglected and until now was hardly even a footnote in history (unlike, for example, John Hersey’s 1946 book Hiroshima, which endures). But Mitchell’s new book makes it worth recalling and considering, if not actually viewing.

Trends in US Military Deaths, and More from CRS

Of the 17,645 deaths of U.S. military personnel in all countries since 2006, a full 24% of them were “self-inflicted,” according to updated data from the Department of Defense as reported by the Congressional Research Service.

“Self-inflicted” here means suicide as well as death due to alcohol or substance abuse. See Trends in Active-Duty Military Deaths Since 2006, CRS In Focus, updated July 1, 2020.

Other noteworthy new reports from the Congressional Research Service include the following.

DARPA’s Pandemic-Related Programs, CRS Insight, June 30, 2020

Confederate Names and Military Installations, CRS Insight, updated June 16, 2020

Israel’s Possible Annexation of West Bank Areas: Frequently Asked Questions, June 29, 2020

Women in the Middle East and North Africa: Issues for Congress, June 19, 2020

Russian Armed Forces: Capabilities, CRS In Focus, June 30, 2020

Intelligence, Surveillance, and Reconnaissance Design for Great Power Competition, June 4, 2020

Development and Regulation of Medical Countermeasures for COVID-19 (Vaccines, Diagnostics, and Treatments): Frequently Asked Questions, June 25, 2020

Crisis of Credibility in Secrecy Policy

Obsolete secrecy procedures and growing political abuse have left the national security classification system in a state of disarray and dysfunction.

Most government agencies “still rely on antiquated information security management practices,” according to a new annual report from the Information Security Oversight Office (ISOO). “These practices have not kept pace with the volume of digital data that agencies create.”

“Agencies are not applying or testing advanced technologies that would enable more precise classification and declassification, facilitate information sharing, and improve national security,” the ISOO report to the President said. “Classification and declassification actions are still performed manually, which is neither sustainable nor desirable in the digital age.”

“As the volume of records requiring [declassification] review increases, agencies are making more errors, putting Classified National Security Information at risk and eroding trust in the system,” ISOO said.

As damning as these and other ISOO findings may be, they hardly begin to capture the crisis of credibility that is facing the classification system today.

An effective classification system depends on a presumption of good faith on the part of classifiers, checked by independent oversight, and some consensual understanding of the meaning of national security. All of these factors are in doubt, absent, or undergoing swift transformation. Meanwhile, classification today is openly wielded as an instrument of political power.

“Conversations with me, they’re highly classified,” said President Trump last week. “I told that to the Attorney General before. I will consider every conversation with me, as President, highly classified.”

That remark is a wild departure from previous policy. However broadly it may have been construed in the past, classification was always supposed to apply to information that was plausibly related to national security (a necessary condition, though not a sufficient one). Even the most sensitive conversations with the President about tax policy or health care, for example, could not have been considered classified information.

In this case, President Trump was objecting to the publication of the new book by former national security adviser John Bolton, which he dismissed at the same time as a “compilation of lies and made-up stories.”

But Bolton’s lies, if that’s what they were, would not normally qualify as classified information either.

In principle, it’s possible that “lies and made-up stories” could be classified, though only to the extent that they were generated by the government itself (perhaps in the form of cover stories, or other official statements of misdirection). But any lies that Bolton might tell on his own are beyond the scope of classification, since they are not “owned by, produced by or for, or. . . under the control of” the US Government, as required by the executive order on classification.

President Trump may or may not understand such rudiments of national security classification. But by twisting classification policy into a weapon for political vendettas, the President is discrediting the classification system and accelerating its disintegration.

As for Bolton, the astonishing fact is that he is the second of Trump’s national security advisors (after Gen. Michael Flynn) to be accused of lying and criminal activity.

“If the [Bolton] book gets out, he’s broken the law,” the President said. “And I would think that he would have criminal problems.” Indeed, a court said on Saturday that Bolton might have “expose[d] himself to criminal liability.”

Second only to the President, the national security advisor is really the principal author and executor of classification policy. So when NSAs like Flynn and Bolton are disgraced (or worse), their disrepute reflects upon and attaches to the classification system to some degree.

Ironically, Mr. Bolton was more attentive to and more engaged in classification policy than many of his predecessors. He makes a tacit appearance (unnamed) in the new ISOO annual report, which notes: “In FY 2018, the ISCAP [Interagency Security Classification Appeals Panel] received a request from the National Security Advisor to resolve a declassification dispute between the Departments of Defense and State.” That action, to Bolton’s credit, freed up all or parts of 60 documents for publication in the Foreign Relations of the United States series, over the objections of the Department of Defense.

The way to begin restoring credibility to classification policy is not hard to envision, though it may be difficult or impossible to implement under current circumstances. Like law enforcement, the classification system needs to be insulated from partisan political interference. Classification policy needs to adhere to well-defined national security principles (though the scope and application of these principles will be debatable). A properly functioning classification and declassification system will prove its integrity by sometimes producing outcomes that are politically unwelcome or inconvenient to the Administration. And since errors are inevitable, the classification system also requires a robust oversight and error-correction process.

* * *

Last week, the Senate Intelligence Committee blocked an effort by Senator Ron Wyden to restructure and strengthen the declassification system. A Wyden amendment to the FY 2021 intelligence authorization act would have designated the Director of National Intelligence as the Executive Agent for declassification, tasking him to establish and carry out government-wide declassification requirements. The Wyden amendment failed 7-8 with all Republican members opposed.

By rejecting his amendment (without offering any alternative), the Committee “failed to reform a broken, costly declassification system,” Sen. Wyden said in a dissenting statement appended to the June 17 report on the intelligence bill.

* * *

While dismissing concerns about classification policy, the Senate Intelligence Committee roused itself to address the threat from unidentified flying objects, an issue that it said requires more focused government attention.

The Committee called on the Director of National Intelligence to provide detailed reporting on “unidentified aerial phenomena (also known as ‘anomalous aerial vehicles’), including observed airborne objects that have not been identified.”

“The Committee remains concerned that there is no unified, comprehensive process within the Federal Government for collecting and analyzing intelligence on unidentified aerial phenomena, despite the potential threat,” the new Committee report said.

PIDB Urges Modernization of Classification System

How can the national security classification and declassification system be fixed?

That depends on how one defines the problem that needs fixing. To the authors of a new report from the Public Interest Declassification Board (PIDB), the outstanding problem is the difficulty of managing the expanding volume of classified information and declassifying a growing backlog of records.

“There is widespread, bipartisan recognition that the Government classifies too much information and keeps it classified for too long, all at an exorbitant and unacceptable cost to taxpayers,” said the PIDB, a presidential advisory board. Meanwhile, “Inadequate declassification contributes to an overall lack of transparency and diminished confidence in the entire security classification system.”

The solution to this problem is to employ technology to improve the efficiency of the classification and declassification processes, the PIDB said.

“The time is ripe for envisioning a new approach to classification and declassification, before the accelerating influx of classified electronic information across the Government becomes completely unmanageable,” the report said. “The Government needs a paradigm shift, one centered on the adoption of technologies and policies to support an enterprise-level, system-of-systems approach.”

See A Vision for the Digital Age: Modernization of the U.S. National Security Classification and Declassification System, Public Interest Declassification Board, May 2020.

The report’s diagnosis is not new and neither is its call for employing new technology to improve classification and declassification. The PIDB itself made similar recommendations in a 2007 report.

Recognizing the persistent lack of progress to date, the new report therefore calls for the appointment of an Executive Agent who would have the authority and responsibility for designing and implementing a newly transformed classification system. (The Director of National Intelligence, who is already Security Executive Agent for security clearance policy, would be a likely choice.)

Those who care enough about these issues to read the PIDB report will find lots of interesting commentary along with plenty to doubt or disagree with. For example, in my opinion:

* The useful idea of appointing an Executive Agent is diminished by making him or her part of an Executive Committee of agency leaders. The whole point of creating a “czar”-like Executive Agent is to reduce the friction of collective decision making and to break through the interagency impasse. An Executive Committee would make that more difficult.

* The PIDB report would oddly elevate the Archivist of the United States, who is not even an Original Classification Authority, into a central role “in modernizing the systems used across agencies for the management of classified records.” That doesn’t make much sense. (An official said the intended purpose here was merely to advance the mission of the Archives in preserving historical records.)

* The report equivocates on the pivotal question of whether or not (or for how long) agencies should retain “equity” in, or ownership of, the records they produce.

* The report does not address resource issues in a concrete way. How much money should be invested today to develop the recommended technologies in order to reap savings five and ten years from now? It doesn’t say. Who should supply the classified connectivity among classifying agencies that the report says is needed? Exactly which agency should request the required funding in next year’s budget request? That is not discussed, and so in all likelihood it is not going to happen.

But the hardest, most stubborn problem in classification policy has nothing to do with efficiency or productivity. What needs updating and correcting, rather, are the criteria for determining what is properly classified and what must be disclosed. And since there is disagreement inside and outside government about many specific classification actions — e.g., should the number of US troops in Afghanistan be revealed or not? — a new mechanism is needed to adjudicate such disputes. This fundamental issue is beyond the scope of the PIDB report.

The Public Interest Declassification Board will hold a virtual public meeting on June 5 at 11 am.

Pentagon Seeks Authority to Recall More Retirees to Duty

The Department of Defense is asking Congress to expand its authority to recall retired members of the military to active duty in the event of a war or national emergency.

The DoD proposal predates the turmoil that followed the killing of George Floyd by a police officer in Minneapolis last week and the activation of National Guard units in numerous states.

Current law (10 USC 688a) permits the military to recall no more than 1,000 retirees in order “to alleviate a high-demand, low-density military capability” or when necessary “to meet wartime or peacetime requirements.” DoD wants to remove that 1,000 person limit.

“This proposal . . . would allow the Secretary of a military department to recall more than 1,000 retirees to active duty during a war or national emergency,” the Pentagon said in its May 4 request, which is one of numerous legislative proposals for the FY 2021 defense authorization act.

“Waiving the 1,000 member limitation on this temporary recall authority and the authority’s expiration date in time of war or of national emergency will increase the Department of Defense’s flexibility and agility in generating forces with the expertise required to respond rapidly and efficiently during such a period.”

“Given the unpredictability of war and national emergencies, such as the COVID 19 pandemic, waiver of the 1,000-member limit will better posture the Department to respond to unpredictable and rapidly evolving situations,” DoD said.

There is no reason to be concerned that such authority would ever be abused, the Pentagon told Congress, because “The Office of the Secretary of Defense will ensure the amount of recalled retirees does not exceed the number warranted by mission requirements.”

Last March, the US Army contacted more than 800,000 retired soldiers to inquire if they would be willing to assist with military’s pandemic response, according to a report in Military.com.

The Congressional Research Service summarized the constitutional and statutory authorities and limitations governing the military role in disaster relief and law enforcement in The Use of Federal Troops for Disaster Assistance: Legal Issues, November 5, 2012.

Air Force Calls for Expansion of Nevada Test Range

The US Air Force wants to renew and expand the withdrawal of public land for the Nevada Test and Training Range (NTTR), where it conducts flight testing, classified research and development projects, and weapons tests. A Defense Department proposal to Congress would increase the amount of land currently withdrawn from public use by more than 10 percent.

The NTTR is already “the largest contiguous air and ground space available for peacetime military operations in the free world,” according to a 2017 Air Force fact sheet.

But it’s not big enough to meet future requirements, the Pentagon told Congress in an April 17 legislative proposal.

“The land withdrawal that makes up the Nevada Test and Training Range (NTTR) expires in 2021. The NTTR is the Air Force’s most vital test and training asset and must be continued,” the DoD proposal said. But even more is needed, according to DoD: “Maintaining the status quo by simply extending the current withdrawal will not be sufficient to meet 5th generation requirements.”

“This proposal would expand the current withdrawal, enacted in the FY2000 NDAA and set to expire in 2021, and make that withdrawal for a period of 25 years.”

Approximately 300,000 acres of additional land would be withdrawn under the proposal, for a total of around 3.2 million acres that would be reserved “for use by the Secretary of the Air Force for certain military purposes.”

As of now, “The range occupies 2.9 million acres of land, 5,000 square miles of airspace which is restricted from civilian air traffic over-flight and another 7,000 square miles of Military Operating Area, or MOA, which is shared with civilian aircraft,” the 2017 USAF fact sheet said. “The 12,000-square-nautical mile range provides a realistic arena for operational testing and training aircrews to improve combat readiness. A wide variety of live munitions can be employed on targets on the range.”

Protecting Privacy in the 2020 Census

In 2018 the Census Bureau discovered that results of the 2010 census could be processed and matched with external sources in such a way as to reveal confidential personal information, in violation of the law.

“This had not been thought to be feasible owing to the large amount of data and computation involved,” a new report from the JASON science advisory panel said. But in fact it was feasible, the JASONs confirmed. The risk of re-identifying protected personal information “is four orders of magnitude larger than had been previously assessed.”

In order to prevent this potential privacy violation, the Census Bureau proposes to use an approach called Differential Privacy. This method, developed by Cynthia Dwork and colleagues, adds “tailored noise” to the results of any query of the census data. Doing so makes it possible “to publish information about a survey while limiting the possibility of disclosure of detailed private information about survey participants.”

The JASONs affirmed that the Differential Privacy technique would provide the necessary privacy protection but said that it would come with a cost in accuracy, particularly with respect to small data groups.

“As the size of the population under consideration becomes smaller, the contributions from injected noise will more strongly affect such queries. Note that this is precisely what one wants for confidentiality protection, but is not desirable for computation of statistics for small populations.”

See Formal Privacy Methods for the 2020 Census, JASON report JSR-19-2F, April 2020.

“Depending on the ultimate level of privacy protection that is applied for the 2020 census, some stakeholders may well need access to more accurate data,” the JASONs said.

“A benefit of differential privacy is that products can be released at various levels of protection depending on the [desired] level of statistical accuracy. The privacy-loss parameter can be viewed as a type of adjustable knob by which higher settings lead to less protection but more accuracy. However, products publicly released with too low a level of protection will again raise the risk of re-identification,” the new report said.

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The JASONs are currently working on a new study of how to safely reopen research laboratories during the ongoing pandemic, Jeffrey Mervis of Science Magazine reported this week.

“Jason is examining such issues as the 1.8-meter separation rule, the efficacy of personal protective equipment, and the optimal way to reconfigure work space given how the virus is thought to spread.” See “Secretive Jasons to offer advice on how to reopen academic labs shut by pandemic,” May 11.

Protecting Against Rogue Drones

The threat to public safety from unmanned aerial systems (drones) is not just foreseeable — it already exists in the form of numerous near-collisions with manned aircraft, a new report from the Congressional Research Service observes.

“Between 2016 and 2019, airline pilots reported, on average, more than 100 drone sightings per month to FAA, and social media have transmitted photos and videos taken by drones in close proximity to airports and passenger airliners,” the report said.

“In addition to careless and reckless drone operations, homeland security and law enforcement agencies have uncovered incidents involving drones transporting illegal drugs across U.S. borders, dropping contraband into prison yards, and conducting industrial espionage,” CRS said. See Protecting Against Rogue Drones, CRS In Focus, May 14, 2020.

And see, relatedly:

Counter-Unmanned Aircraft System Techniques, Army Techniques Publication 3-01.81, April 2017

Department of Defense Counter-Unmanned Aircraft Systems, Congressional Research Service, April 7, 2020

Guidance Regarding Department Activities to Protect Certain Facilities or Assets from Unmanned Aircraft and Unmanned Aircraft Systems, memorandum from the Attorney General, April 2020