Synthetic biology, a set of technologies related to the design and fabrication of biological systems, poses an emerging hazard but also provides the tools to mitigate that hazard, according to a new DoD report to Congress on defense against chemical and biological (CB) weapons.

The new report “assesses DoD’s overall readiness to fight and win in a CB warfare environment.”

“Rapid advancements in technology are making it easier for an adversary, whether State or non-State, to develop chemical and biological weapons. This includes threats from non-State actor groups such as the Islamic State of Iraq and Syria (ISIS) and emerging threats like the misuse of synthetic biology.”

Although the technologies that comprise synthetic biology represent a growing threat, “we cannot look to constrain the technologies themselves as a means of risk mitigation, or we risk stalling our own research and development (R&D) programs that use those technologies to develop life-saving countermeasures.”

“Synthetic biology is critically important to the development of medical countermeasures (MCMs), detection technologies, materials for protective equipment, and other technologies with applicability to CBR [chemical / biological / radiological] defense,” the report said.

“The Department must be positioned to both leverage synthetic biology opportunities as well as address the potential for nefarious use of biotechnology, such as enhancing select agents or the engineering of novel pathogens.”

In fact, “the majority of CB [defense] programs utilize some aspect of synthetic biology. Current examples include the development of Filovirus vaccines and therapeutics, the development of the recombinant plague vaccine, novel approaches to overcome antibiotic resistance, and the rapid development of monoclonal antibody therapies.”

See Department of Defense 2017 Annual Report to Congress on Chemical and Biological Defense Program, March 2017, released under the Freedom of Information Act on May 25, 2017.

The Chemical and Biological Defense Program (CBDP) acquired nearly 200,000 smallpox vaccines and more than 500,000 anthrax vaccines, DoD reported. The military services distributed and administered them “as needed to support operations.”

The Program has also contributed to development of medical countermeasures against other CB threats.

“The CBDP-supported Ebola vaccine was granted Breakthrough Product Status by the FDA and European Medicines Agency (EMA),” the DoD report said. “This vaccine is the first to have demonstrated efficacy against Ebola in humans.”

However, funding constraints limit such progress. “The combination of evolving CB threats, reduced budgets, and uncertain fiscal futures forces the CBDP to focus its limited resources to address the highest priorities and greatest risks.” (See, relatedly, “Trump’s Proposed Budget Cuts Trouble Bioterrorism Experts” by Emily Baumgaertner, New York Times, May 28.)

The DoD report emphasized that “No individuals have been used as subjects of any CB agent tests in the United States since 1975.”

“Human biological agent testing ended on November 25, 1969, and human chemical agent testing ended on July 25, 1975. The Office of the Assistant Secretary of Defense for Health Affairs (OASD(HA)) continues to work with the Department of Veterans Affairs to identify and locate previous human test subjects so they can receive appropriate attention.”

Individuals have a broad right to refuse to testify before Congress by invoking the Fifth Amendment right against self-incrimination, the Congressional Research Service explained last week.

“Even a witness who denies any criminal wrongdoing can refuse to answer questions on the basis that he might be ‘ensnared by ambiguous circumstances’.”

On the other hand, the scope of the Fifth Amendment privilege applies more narrowly when it comes to a congressional demand that a witness produce documents. “The Supreme Court has made clear that the mere fact that the contents of a document may be incriminating does not mean that the document is protected from disclosure under the Fifth Amendment.”

See The Fifth Amendment in Congressional Investigations, CRS Legal Sidebar, May 26, 2017.

Other new and updated products from the Congressional Research Service include the following.

President’s FY2018 Budget Proposes Cuts in Public Health Service (PHS) Agency Funding, CRS Insight, May 24, 2017

President John F. Kennedy Assassination Records Collection: Toward Final Disclosure of Withheld Records in October 2017, CRS Insight, May 26, 2017

“There is no basis” for suggesting that President Trump’s disclosure of classified intelligence to Russian officials was illegal, wrote Morton Halperin this week.

To the contrary, “senior U.S. government officials in conversations with foreign officials decide on a daily basis to provide them with information that is properly classified and that will remain classified,” wrote Halperin, who is himself a former senior official.

“We should not let our desire to confront President Trump lead us to espouse positions that violate his rights and that would constrain future presidents in inappropriate ways.” See “Trump’s Disclosure Did Not Break the Law” by Morton H. Halperin, Just Security, May 23, 2017.

But constraints on presidential disclosure were on the minds of Rep. Stephanie Murphy (D-FL) and 17 House colleagues. They introduced legislation on May 24 “that would require the President to notify the intelligence committees when a U.S. official, including the President, intentionally or inadvertently discloses top-secret information to a nation that sponsors terrorism or, like Russia, is subject to U.S. sanctions.”

Yesterday, Rep. Dutch Ruppersberger (D-MD) introduced a bill “to ensure that a mitigation process and protocols are in place in the case of a disclosure of classified information by the President.”

Rep. Mike Thompson (D-CA) and five colleagues introduced a resolution “disapproving of the irresponsible actions and negligence of President Trump which may have caused grave harm to United States national security.”

For related background, see The Protection of Classified Information: The Legal Framework, Congressional Research Service, updated May 18, 2017, and Criminal Prohibitions on Leaks and Other Disclosures of Classified Defense Information, Congressional Research Service, updated March 7, 2017.

New and updated reports from the Congressional Research Service include the following.

Science and Technology Issues in the 115th Congress, updated May 23, 2017

U.S.-South Korea Relations, updated May 23, 2017

Australia, CRS In Focus, May 12, 2017

The North American Free Trade Agreement (NAFTA), updated May 24, 2017

Paid Family Leave in the United States, May 24, 2017

Selected Federal Water Activities: Agencies, Authorities, and Congressional Committees, updated May 24, 2017

The United States Withdraws from the TPP, CRS Insight, updated May 23, 2017

Saudi Arabia: Background and U.S. Relations, updated May 24, 2017

The possibility that more U.S. troops will be deployed to Afghanistan, a move that is reportedly under consideration by the Trump Administration, was critically examined by the Congressional Research Service in a new report.

One source of uncertainty concerns the shifting U.S. strategy in the region.

“Since the post-9/11 invasion of Afghanistan, the United States and its allies have pursued a variety of different strategic objectives,” including counterterrorism and nation-building. But “Within the military campaign alone, those objectives are, at times, in tension with each other,” CRS said. “At present, it is difficult to discern an overall, coherent strategy for Afghanistan, although this may be resolved by the Trump Administration’s review of U.S. activities in that region.”

“Given the complexity of the campaign, along with the imprecise nature of U.S. goals for the region and absent a definitive statement from the Trump Administration regarding its priorities, it is currently difficult to evaluate the likely impact that additional forces may have.” See Additional Troops for Afghanistan? Considerations for Congress, May 19, 2017.

Other new and updated reports from the Congressional Research Service include the following.

Afghanistan: Post-Taliban Governance, Security, and U.S. Policy, updated May 19, 2017

A Shift in the International Security Environment: Potential Implications for Defense–Issues for Congress, updated May 19, 2017

Maritime Territorial and Exclusive Economic Zone (EEZ) Disputes Involving China: Issues for Congress, updated May 19, 2017

21st Century U.S. Energy Sources: A Primer, May 19, 2017

The Value of Energy Tax Incentives for Different Types of Energy Resources: In Brief, May 18, 2017

OPEC and Non-OPEC Crude Oil Production Agreement: Compliance Status, CRS Insight, May 17, 2017

North American Free Trade Agreement: Notification for Renegotiation, CRS Insight, May 19, 2017

The Radiation Exposure Compensation Act (RECA): Compensation Related to Exposure to Radiation from Atomic Weapons Testing and Uranium Mining, updated May 18, 2017

Obstruction of Justice Statutes: Legal Issues Concerning FBI Investigations, Specific Intent, and Executive Branch Personnel, CRS Legal Sidebar, May 19, 2017

As an institution, the Congressional Research Service is facing significant upheaval in the near term as many of its most senior analysts are expected to retire, with attendant loss of expertise. “Roughly about 25% of our staff will be eligible to retire in the next fiscal year,” CRS director Dr. Mary Mazanec told the House Legislative Appropriations subcommittee last week.

When President Trump disclosed classified intelligence information to Russian officials last week, did he commit a crime?

Considering that the President is the author of the national security classification system, and that he is empowered to determine who gets access to classified information, it seems obvious that the answer is No. His action might have been reckless, I opined previously, but it was not a crime.

Yet there is more to it than that.

The Congressional Research Service considered the question and concluded as follows in a report issued yesterday:

“It appears more likely than not that the President is presumed to have the authority to disclose classified information to foreign agents in keeping with his power and responsibility to advance U.S. national security interests.” See Presidential Authority to Permit Access to National Security Information, CRS Legal Sidebar, May 17, 2017.

This tentative, rather strained formulation by CRS legislative attorneys indicates that the question is not entirely settled, and that the answer is not necessarily obvious or categorical.

And the phrase “in keeping with his power and responsibility to advance U.S. national security interests” adds an important qualification. If the president were acting on some other agenda than the U.S. national interest, then the legitimacy of his disclosure could evaporate. If the president were on Putin’s payroll, as the House majority leader lamely joked last year, and had engaged in espionage, he would not be beyond the reach of the law.

Outlandish hypotheticals aside, it still seems fairly clear that the Trump disclosures last week are not a matter for the criminal justice system, though they may reverberate through public opinion and congressional deliberations in a consequential way.

But several legal experts this week insisted that it’s more complicated, and that it remains conceivable that Trump broke the law. See:

“Don’t Be So Quick to Call Those Disclosures ‘Legal'” by Elizabeth Goitein, Just Security, May 17, 2017

“Why Trump’s Disclosure to Russia (and Urging Comey to Drop the Flynn Investigation, and Various Other Actions) Could Be Unlawful” by Marty Lederman and David Pozen, Just Security, May 17, 2017

“Trump’s disclosures to the Russians might actually have been illegal” by Steve Vladeck, Washington Post, May 16, 2017

Update, 05/23/17: But see also Trump’s Disclosure Did Not Break the Law by Morton Halperin, Just Security, May 23, 2017.

A 2014 report on obstruction of justice prepared by the Congressional Research Service was highlighted on the CRS congressional intranet this week, apparently in response to news stories and congressional interest in the topic. See Obstruction of Justice: an Overview of Some of the Federal Statutes that Prohibit Interference with Judicial, Executive, or Legislative Activities, April 17, 2014.

Other new and updated reports from the Congressional Research Service include the following.

Israel: Background and U.S. Relations In Brief, updated May 17, 2017

Armed Conflict in Syria: Overview and U.S. Response, updated May 16, 2017

Kuwait: Governance, Security, and U.S. Policy, updated May 15, 2017

Softwood Lumber Imports From Canada: Current Issues, May 17, 2017

Air Traffic Inc.: Considerations Regarding the Corporatization of Air Traffic Control, updated May 16, 2017

The Electoral College: How It Works in Contemporary Presidential Elections, updated May 15, 2017

The Regional Greenhouse Gas Initiative: Lessons Learned and Issues for Congress, updated May 16, 2017

Navy Littoral Combat Ship (LCS)/Frigate Program: Background and Issues for Congress, updated May 12, 2017

Navy Aegis Ballistic Missile Defense (BMD) Program: Background and Issues for Congress, updated May 12, 2017

Navy Lasers, Railgun, and Hypervelocity Projectile: Background and Issues for Congress, updated May 12, 2017

Navy Force Structure and Shipbuilding Plans: Background and Issues for Congress, updated May 15, 2017

Updated below

President Trump’s disclosure of classified intelligence information to Russian officials, reported by the Washington Post, may have been reckless, damaging and irresponsible. But it was not a crime.

Disclosures of classified information are not categorically prohibited by law. Even intelligence sources and methods are only required to be protected under the National Security Act from “unauthorized disclosure.” This leaves open the possibility that disclosures of such classified information can actually be authorized. And we know that they are, from time to time.

One statute in particular — 18 USC 798 — does come close to matching the circumstances of the Trump disclosure to Russia, with a crucial exception.

That statute makes it a felony to disclose to an unauthorized person any classified information “concerning the communication intelligence activities of the United States or any foreign government; or […] obtained by the processes of communication intelligence from the communications of any foreign government.”

But it further explains that an “unauthorized person” is one who has not been “authorized to receive information… by the President.”

This morning, President Trump tweeted that “As President I wanted to share with Russia (at an openly scheduled W.H. meeting) which I have the absolute right to do, facts pertaining to terrorism and airline flight safety. Humanitarian reasons, plus I want Russia to greatly step up their fight against ISIS & terrorism.”

(Was the gratuitous parenthetical phrase “at an openly scheduled W.H. meeting” intended to rule out a clandestine transfer of classified information?)

All of that is to say that this episode, though it may have far-reaching ramifications for national security, is probably not a matter for law enforcement. (Based on the reporting by the Washington Post, the President’s actions did violate the terms of an intelligence sharing agreement with a foreign government that supplied the information. But that agreement would not be enforced by the criminal justice system.)

Instead, this is something to be weighed by Congress, which has the responsibility to determine whether Donald J. Trump is fit to remain in office.

Update, 05/17/17: For contrasting views arguing that Trump’s disclosure of classified intelligence to the Russians may actually have been illegal, see Marty Lederman and David Pozen, Liza Goitein, and Stephen Vladeck.

Update, 05/23/17: See also Trump’s Disclosure Did Not Break the Law by Morton Halperin, Just Security, May 23.

In order to appoint a special counsel to investigate potential criminal activity in the executive branch, the Congressional Research Service explained last week, the Attorney General (or his deputy) “must determine that a criminal investigation is warranted; that the normal process of investigation or prosecution would present a conflict of interest for DOJ or other extraordinary circumstances exist; and that public interest requires a special counsel to assume those responsibilities.”

See Special Counsels, Independent Counsels, and Special Prosecutors: Investigations of the Executive Branch by the Executive Branch, CRS Legal Sidebar, May 11, 2017.

Other new and updated reports from the Congressional Research Service include the following.

The Removal of FBI Director James Comey: Presidential Authority and the Senate’s Role in the Appointment of the FBI Director, CRS Legal Sidebar, May 10, 2017

FBI Director: Appointment and Tenure, May 10, 2017

Congress’s Contempt Power and the Enforcement of Congressional Subpoenas: Law, History, Practice, and Procedure, updated May 12, 2017

Cybersecurity: Legislation, Hearings, and Executive Branch Documents, updated May 12, 2017

The Growing Gap in Life Expectancy by Income: Recent Evidence and Implications for the Social Security Retirement Age, May 12, 2017

Navy Ford (CVN-78) Class Aircraft Carrier Program: Background and Issues for Congress, updated May 12, 2017

Navy Virginia (SSN-774) Class Attack Submarine Procurement: Background and Issues for Congress, updated May 12, 2017

Navy DDG-51 and DDG-1000 Destroyer Programs: Background and Issues for Congress, updated May 12, 2017

Energy and Water Development: FY2017 Appropriations for Nuclear Weapons Activities, updated May 10, 2017

The ability to recognize and identify aircraft on sight remains a skill that soldiers need to acquire even in a highly automated military, according to the U.S. Army.

“Soldiers must be knowledgeable in the identification of all types of aerial platforms ranging from fixed, tilt, and rotary wing aircraft and unmanned aircraft, in order to protect friendly forces and to prevent fratricide,” a newly updated Army manual said.

“There have been many arguments through the years that the military does not need VACR [visual aircraft recognition], because of the advancement of technology that identifies friendly or enemy aerial platforms. [But] VACR is a basic skill that every Soldier should know. Soldiers cannot blindly depend on automation to do their jobs for them.”

The manual provides reference information on “current operational aircraft that are observed worldwide or in the combat area” but “it is not all-inclusive because of some classification guidelines.”

Along with several new aircraft profiles, the updated manual now includes photographs of the referenced aircraft. See Visual Aircraft Recognition, US Army Training Circular 3-01.80, May 2017.

When Congress and the President fail to agree on government appropriations and previous funding expires, the result can be a massively disruptive shutdown of the federal government. This occurred most recently in October 2013, and lasted for 16 days.

“Government shutdowns have necessitated furloughs of several hundred thousand federal employees, required cessation or reduction of many government activities, and affected numerous sectors of the economy,” according to a newly updated report from the Congressional Research Service. See Shutdown of the Federal Government: Causes, Processes, and Effects, updated May 5, 2017.

“Our country needs a good ‘shutdown’ in September to fix mess!” tweeted President Trump last week.

Other new and updated reports from the Congressional Research Service include the following.

Job Creation in the Manufacturing Revival, updated May 5, 2017

The Meaning of “Made in U.S.A.”, updated May 5, 2017

Review of Offshore Energy Leasing: President Trump’s Executive Order, CRS Insight, May 5, 2017

Navy Force Structure and Shipbuilding Plans: Background and Issues for Congress, updated May 5, 2017

Iran’s Presidential Elections, CRS Insight, May 5, 2017

Federal government agencies received more Freedom of Information Act requests last year than ever before, the Justice Department reported last week, reflecting a steadily growing demand for access to government information.

Nearly 790,000 FOIA requests were received in FY 2016, an increase of more than 10% from the year before. The majority of requests were submitted to the Departments of Homeland Security, Justice, Defense, Veterans Affairs, and the National Archives.

Approximately 760,000 requests were processed throughout the year (including denials, and administrative or procedural closures). Requests were fully granted in 23.1% of the the cases, and partially granted in 36.8% of them.

The total estimated cost of implementing the FOIA in 2016 was more than $500 million. Fees collected from requesters recovered less than 1% of that amount, the DOJ report said. See Summary of Fiscal Year 2016 Annual FOIA Reports Published, DOJ Office of Information Policy, May 3.

Almost everyone involved with the FOIA — requesters as well as agencies — seems to be dissatisfied with the way the process works. It can be excruciatingly slow, with response times often counted in years. Decisions to withhold information frequently appear arbitrary, excessive or otherwise inappropriate. The system is inequitable, as super-users who file hundreds or thousands of requests (and those who are able and willing to litigate their requests in court) consume disproportionate amounts of government resources, putting more occasional requesters at a disadvantage. And so on.

These are mostly complaints that the FOIA has failed to live up to expectations.

A deeper criticism would be that the FOIA process as it currently exists is not simply inadequate, it is positively counterproductive.

“FOIA not only fails to deliver on ostensible goals such as participatory policymaking, equal access to information, and full agency disclosure, but also has evolved to subvert some of these goals as well as other public law values,” writes David E. Pozen of Columbia Law School in a blistering new critique.

FOIA “systematically skews the production of information toward commercial interests and facilitates powerful antiregulatory agendas. The inadequacies of FOIA’s original design have been exacerbated by external developments, including the decline of the traditional news media and the rise of hyper-adversarial watchdog groups on the right. Our veneration of FOIA has blinded us to the politics of FOIA.”

“The most promising path forward,” he suggests, “involves displacing FOIA requests as the lynchpin of transparency policy and shoring up alternative strategies, above all affirmative disclosure frameworks that release information in the absence of a request.”

Counterexamples and counterarguments will likely occur to many readers of his article, though the author has anticipated many of those. One possible conclusion that might emerge from Pozen’s thoughtful critique is that while FOIA is still needed to pursue contested areas where government is reluctant to disclose information, it is poorly suited to serve as the primary foundation or anchor of open government.

See Freedom of Information Beyond the Freedom of Information Act by David E. Pozen, University of Pennsylvania Law Review, vol. 165, pp. 1097-1158, 2017.