The Law Library of Congress last year prepared a survey of legal frameworks affecting refugees and asylum seekers in twenty-two countries around the world.

The survey covers “laws and regulations governing the admission of refugees and handling refugee claims; processes for handling refugees arriving at the border; procedures for evaluating whether an applicant is entitled to refugee status; the accommodations and assistance provided to refugees in the jurisdiction; requirements for naturalization; and whether asylum policy has been affected by international emergencies, such as the current refugee crisis in Europe.”

In practice, states “vary significantly in their receptivity to asylum seekers and the extent to which conflicting national policies affect adherence to norms prescribed in the [Geneva Convention on Refugees].”

See Refugee Law and Policy in Selected Countries, Law Library of Congress, March 2016.

Another Law Library report examines the diverse legal and regulatory regimes concerning the use of drones or unmanned aerial systems in twelve countries and the European Union. See Regulation of Drones, Law Library of Congress, April 2016.

National security directives are among the most important tools the President has for managing his administration and for conducting U.S. policy on national defense, foreign relations, intelligence, nuclear weapons and other matters of consequence.

At the end of last week, President Trump publicly issued his first three national security directives, designated National Security Presidential Memoranda (NSPMs).

NSPM-1 is entitled “Rebuilding the U.S. Armed Forces.” It requires a “readiness review”, and calls for a new Nuclear Posture Review and a Ballistic Missile Defense Review. In a nod towards legal and fiscal reality, it says “This memorandum shall be implemented consistent with applicable law and subject to the availability of appropriations.”

NSPM-2 is devoted to the “Organization of the National Security Council and the Homeland Security Council.” It modifies the NSC structure towards something resembling a compromise between or a hybrid of the Obama and Bush NSC structures, and borrows language from the Bush directive. Notably, however, it elevates “the Chief Strategist,” i.e. Stephen K. Bannon of Breitbart News, to membership in the NSC Principals Committee [as an invited attendee, not a statutory member]. This is a striking departure from past practice that injects an extreme political perspective into the national security policymaking process. At the same time, the Trump directive diminishes the NSC role of the Chairman of the Joint Chiefs of Staff and the Director of National Intelligence.

NSPM-3 calls for a “Plan to Defeat the Islamic State of Iraq and Syria.”

The directives include a certain amount of sloganeering and chest thumping that is familiar in electoral campaign documents, but somewhat unusual in presidential directives. So, President Trump writes, in order to achieve “peace through strength,” US Armed Forces must be “rebuilt.” And “there can be no accommodation or negotiation” with the Islamic State.

But what is even more unusual is that the Trump White House released all of these directives and ordered publication of each of them in the Federal Register.  It is, one might say, an act of unprecedented transparency.

It is technically true that “any presidential determination or directive can be published in the Federal Register, regardless of how it is styled,” as a 2000 opinion from the Justice of Department Office of Legal Counsel stated.

But for the past several decades, national security directives “were not required to be published in the Federal Register, were usually security classified at the highest level of protection, and were available to the public [only] after a great many years had elapsed, usually at the official library of the President who had approved them,” the Congressional Research Service said in a 2008 report.

Likewise, the Government Accountability Office said in 1992 that national security directives “are… not required to be published in the Federal Register or any other public document.”

In fact, no national security presidential directive seems to have ever been published in the Federal Register. Even unclassified directives have only inconsistently been released or published on the White House website. The Bush Administration’s first National Security Presidential Directive became public through a leaked version sent anonymously through the U.S. mail and was never published by the White House. In the Obama Administration, former NSC records access manager John Ficklin tried to get authorization to publish a list and compilation of unclassified national security directives, but was unsuccessful.

So why, by contrast, are the first three Trump national security directives public documents that will, furthermore, be incorporated in the Federal Register?

One possibility is that this is the result of a drafting error.

An earlier version of NSPM-1 obtained by the Washington Post was captioned as a “presidential memorandum,” which is a familiar type of issuance that is often published in the Federal Register, and not as a “national security presidential memorandum”. In other words, whoever drafted the new Trump directive may have been using a template for an ordinary “presidential memorandum” rather than for a national security directive. (Further blurring longstanding distinctions, the new Trump directives NSPM-2 and NSPM-3 — but not NSPM-1 — are also included in the “presidential memoranda” section of the White House website. And each of them is confusingly labeled on the index page as a “presidential memorandum,” not an NSPM.)

Another possible explanation for the serial publication of these frequently unpublished documents is that public dissemination of the new Trump national security directives is a kind of performance. It may be that President Trump does not only want to wield the power of his office, but also to be seen doing it.

Last month, outgoing Director of National Intelligence James R. Clapper issued new guidance on how the U.S. intelligence community should pivot in response to a crisis.

A “crisis” is defined here as “An event or situation, as determined by the DNI, that threatens U.S. national security interests and requires an expedited shift in national intelligence posture, priorities, and/or emphasis.”

The new guidance explains how that shift in intelligence posture is to be executed.

See Intelligence Community Crisis Management, Intelligence Community Policy Guidance 900.2, December 23, 2016.

Presidential authority to seek modifications to NAFTA independent of Congress was addressed by the Congressional Research Service last week in Renegotiation of the North American Free Trade Agreement (NAFTA): What Actions Do Not Require Congressional Approval?, CRS Legal Sidebar, January 26, 2017.

Jordan’s King Abdullah II is visiting Washington today. See Jordan: Background and U.S. Relations, updated January 25, 2017.

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

Cross-Border Energy Trade in North America: Present and Potential, January 24, 2017

Clean Air Act Issues in the 115th Congress: In Brief, January 24, 2017

President Trump Freezes Federal Civil Service Hiring, CRS Legal Sidebar, January 26, 2017

Keystone Revival: Executive Memorandum Paves Way for Possible Approval of Keystone XL Pipeline, CRS Legal Sidebar, January 26, 2017

Dakota Access Pipeline: Siting Controversy, CRS Insight, updated January 26, 2017

House Office of Congressional Ethics: History, Authority, and Procedures, updated January 24, 2017

Affordable Care Act Executive Order: Legal Considerations, CRS Legal Sidebar, January 24, 2017

Abortion and Family Planning-Related Provisions in U.S. Foreign Assistance Law and Policy, updated January 24, 2017

The First Responder Network (FirstNet) and Next-Generation Communications for Public Safety: Issues for Congress, updated January 26, 2017

National Special Security Events: Fact Sheet, updated January 25, 2017

Over the past several years, former Director of National Intelligence James R. Clapper led an ongoing transformation of information policy in the U.S. intelligence community that stresses information sharing among intelligence agencies based on a common information technology infrastructure.

On his way out the door last week, DNI Clapper signed Intelligence Community Directive 121 on Managing the Intelligence Community Information Environment, dated January 19, 2017.

The goal is for each IC member agency “to make information readily discoverable by and appropriately retrievable to the [entire] IC.”

Although the policy makes allowance for unique individual agency requirements, and acknowledges legal and policy restrictions on sharing of privacy information, a common IC-wide information architecture is otherwise supposed to become the new default for each intelligence community agency.

“IC elements shall first use an IC enterprise approach, which accounts for all IC equities and enhances intelligence integration, for managing the IC IE [Information Environment] before using an IC element-centric solution,” the new directive says.

Further, “IC elements shall […] migrate IC IT capabilities to IC IT SoCCs [Services of Common Concern] as quickly and efficiently as possible.”

Increased sharing of information naturally entails increased vulnerability to compromise of the shared information.

To help mitigate the increased risk, “all personnel accessing the IC IE [must] have unique, identifiable identities, which can be authenticated and have current and accurate attributes for accessing information in accordance with IC policies, guidance, and specifications for identity and access management,” the directive says.

The new IT Enterprise approach has received congressional support and seems likely to continue for the foreseeable future.

But in the current period of turbulence everything is uncertain, including the future of the Office of the Director of National Intelligence itself.

In its report on the FY2017 Intelligence Authorization Act last week, the Senate Intelligence Committee mandated a new review of the roles and missions of the ODNI.

“It has been more than ten years since the Congress established the position of the DNI in the Intelligence Reform and Terrorism Prevention Act of 2004, building on its predecessor, the Director of Central Intelligence. Given this experience and the evolving security environment, the Committee believes it appropriate to review the DNI’s roles, missions and functions and adapt its authorities, organization and resources as needed,” the new Committee report said.

The President seems to have broad statutory authority to exclude aliens from the United States, a new report from the Congressional Research Service says.

“On its face, [the Immigration and Nationality Act] would appear to give the President broad authority to preclude or otherwise restrict the entry into the United States of individual aliens or classes of aliens who are outside the United States and lack recognized ties to the country,” according to the report by Kate M. Manuel of CRS.

But that authority is not necessarily unlimited.

“In no case to date […] has the Executive purported to take certain types of action, such as barring all aliens from entering the United States for an extended period of time or explicitly distinguishing between categories of aliens based on their religion. Any such restrictions could potentially be seen to raise legal issues that were not raised by prior exclusions…. Similarly, if the President were to purport to exclude aliens based on their religion, an argument could potentially be made that this action is in tension with U.S. treaty obligations or the First Amendment,” the CRS report said.

See Executive Authority to Exclude Aliens: In Brief, January 23, 2017

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

Unaccompanied Alien Children: An Overview, January 18, 2017

FY2017 National Defense Authorization Act: Selected Military Personnel Issues, January 23, 2017

The Selective Service System and Draft Registration: Issues for Congress, January 23, 2017

Venezuela: Issues for Congress, 2013-2016, January 23, 2017

Vulnerable Youth: Employment and Job Training Programs, January 23, 2017

Sentencing Reform at the End of the 114th Congress, CRS Legal Sidebar, January 24, 2017

Transnational threat networks pose increasingly complex challenges to U.S. interests, according to a new doctrinal publication from the Joint Chiefs of Staff.

“Networked threats are highly adaptable adversaries with the ability to select a variety of tactics, techniques, and technologies and blend them in unconventional ways to meet their strategic aims,” the document said. See Countering Threat Networks, Joint Publication 3-25, December 21, 2016.

The new DoD publication is focused on networks that are engaged, often clandestinely, in violent or criminal activity, and that may challenge U.S. forces or undermine national or regional stability.

However, the description of threat networks lends itself to — and, in light of current events, almost invites — a broader reading applicable to political disruption of other types.

“These threat networks jeopardize the stability and sovereignty of nation-states, including the US. They tend to operate among civilian populations and in the seams of society and may have components that are recognized locally as legitimate parts of society,” the document said.

“Collecting information and intelligence on these networks, their nodes, links, and affiliations is challenging, and analysis of their strengths, weaknesses, and centers of gravity (COGs) differs greatly from traditional nation-state adversaries.”

“Understanding a threat network’s motivation and objectives is required to effectively counter its efforts. The issues that drive a network and its ideology should be clearly understood. For example, they may be driven by grievances, utopian ideals, power, revenge over perceived past wrongs, greed, or a combination of these.”

“Many threat networks rely on family and tribal bonds when recruiting for the network’s inner core. These members have been vetted for years and are almost impossible to turn.”

“Threat networks… can be composed of criminal, insurgent or terrorist organizations, each of which may have different motivations for operating outside of societal norms. [But] they can also be government entities, legitimate legal organizations, or anyone who opposes the achievement of friendly objectives.”

“Transnational criminal organizations are self-perpetuating associations of individuals that operate to obtain power, influence, monetary and/or commercial gains, wholly or in part by illegal means.”

“Transnational criminal networks are not only expanding operations, but they are also diversifying activities, creating a convergence of threats that has become more complex, volatile, and destabilizing. These networks also threaten US interests by forging alliances with corrupt elements of national governments and using the power and influence of those elements to further their criminal activities. In some cases, national governments exploit these relationships to further their interests to the detriment of the US,” the DoD document said.

Several nations are independently pursuing development of ground combat weapon systems that are comparable or superior to their U.S. Army counterparts, says a new report from the Congressional Research Service.

Accordingly, there is a “possibility that in the not-too-distant future, foreign armored vehicle design and capabilities could surpass existing U.S. systems.”

Close study of those developments should help guide current U.S. modernization efforts, wrote CRS military analyst Andrew Feickert, and “may also lead to a conclusion that an entirely new combat vehicle will be required to address current and potential future threats.”

CRS did not conclude that there has been a “very sad depletion of our military,” as President Trump asserted in his inauguration speech. Nor does the CRS report present an argument that additional investment in ground combat systems would actually be the best use of defense budget dollars in particular, or of taxpayer dollars in general. See Selected Foreign Counterparts of U.S. Army Ground Combat Systems and Implications for Combat Operations and Modernization, January 18, 2017.

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

Overview of U.S. Sanctions Regimes on Russia, CRS Insight, January 11, 2017

The Islamic State and U.S. Policy, updated January 18, 2017

U.S.-Mexican Security Cooperation: the Mérida Initiative and Beyond, updated January 18, 2017

Rescission of the Wet-Foot/Dry-Foot Policy as to Aliens from Cuba Raises Legal Questions, CRS Legal Sidebar, January 18, 2017

Unaccompanied Alien Children: An Overview, updated January 18, 2017

Temporary Protected Status: Current Immigration Policy and Issues, updated January 17, 2017

What Can the New President Do About the Effective Dates of Pending Regulations?, CRS Legal Sidebar, January 18, 2017

Finding Medicare Enrollment Statistics, January 12, 2017

U.S. Manufacturing in International Perspective, updated January 18, 2017

An Overview of the Housing Finance System in the United States, January 18, 2017

EPA’s Mid-Term Evaluation of Vehicle Greenhouse Gas Emissions Standards, CRS Insight, January 17, 2017

Domestic Food Assistance: Summary of Programs, updated January 11, 2017

Climate Change Litigation Update: “Children’s Crusade” Case Against the United States Goes Forward, CRS Legal Sidebar, January 17, 2017

Patient Protection and Affordable Care Act (ACA): Resources for Frequently Asked Questions, updated January 17, 2017

Digital Trade and U.S. Trade Policy, updated January 13, 2017

Health Benefits for Members of Congress and Designated Congressional Staff, updated January 13, 2017

In the final days and weeks of the Obama Administration, intelligence officials took steps to promote increased transparency and made several noteworthy disclosures of intelligence policy records.

On January 9, DNI James Clapper signed a new version of Intelligence Community Directive 208, now titled “Maximizing the Utility of Analytic Products.” The revised directive notably incorporates new instructions to include transparency as a consideration in preparing intelligence analyses.

Thus, one way of “maximizing utility,” the directive said, is to “Demonstrate Transparency”:

“Analytic products should follow the Principles of Intelligence Transparency for the Intelligence Community, which are intended to facilitate IC decisions on making information publicly available in a manner that enhances public understanding of intelligence activities, while continuing to protect information, including sources and methods, when disclosure would harm national security. The degree to which transparency will be applied depends upon the nature and type of the analytic product.”

Interestingly, the revised directive was issued without any public notice or press release. Though unclassified and published online, it appears to be genuinely inner-directed rather than a mere public relations gesture.

*    *    *

The Central Intelligence Agency posted more than 12 million declassified pages (930,000 documents) from its CREST archive on the CIA website. The CREST (CIA Records Search Tool) database had previously been accessible only to those researchers who visited the National Archives in person.

By making the records broadly available online, their utility and the benefits of their declassification are multiplied many times over.

Release of the CREST database had been sought by researchers and advocates for many years. It was advocated internally by the CIA Historical Review Panel and the Panel’s chair, Prof. Robert Jervis. It was recently the subject of a Freedom of Information Act lawsuit by the Muckrock news site.

Joseph Lambert, CIA Director of Information Management, said that online access to CREST recently became possible only after technical limitations on the CIA website were “dissolved.” He said that the quality of the online search engine would not be inferior to that on the original CREST system.

One experienced researcher disputed that. Based on an initial survey, “I think it is safe to say that the level of functionality for searching is less than CREST,” the researcher said. From his perspective, “the losses are very significant.” A detailed comparison was not immediately available.

In any case, Mr. Lambert said that newly declassified records, and less redacted versions of previously redacted records, would be periodically added to the online collection.

*    *    *

Also last week, the CIA released updated guidelines for the collection, retention and dissemination of U.S. person information. The Agency also posted declassified documents concerning its interrogation program, released in response to FOIA litigation by the ACLU.

The Office of the Director of National Intelligence released an updated report on counterterrorism strikes outside of areas of active hostilities, a report on equal opportunity and diversity in the Intelligence Community, and a paper on the Domestic Approach to National Intelligence describing the organization of U.S. intelligence. ODNI published the remainder of the captured bin Laden documents that have been declassified, the third annual SIGINT progress report, and three semi-annual reports on compliance with Section 702 of the Foreign Intelligence Surveillance Act.

*    *    *

With the exception of records released in response to litigation or legislation, these moves and these disclosures were voluntary. They seem to represent a realization that increased transparency, though occasionally awkward in the short term, serves the long-term interests of U.S. intelligence.

“Today, whether you are a U.S. citizen or a non-U.S. citizen abroad, you now have more confidence about what the United States does and does not do with regard to signals intelligence collection because of steps this Administration has taken to provide an unprecedented level of transparency regarding these activities,” according to an Obama Administration report on privacy that was briefly published on the White House web site last week.

This posture of increased transparency, if not these specific disclosures, can be easily reversed or abandoned. But an infrastructure of disclosure has been established, along with a pattern of releases, that will generate expectations for the future and a certain momentum that may yet be sustained and developed.

The inauguration of the President on January 20, 2017 has been formally designated as a National Security Special Event (NSSE), the Congressional Research Service confirmed.

“NSSEs are high profile, and usually public, events that require significant security because of the attendance of U.S. and foreign dignitaries and the event’s public or official nature. The United States Secret Service (USSS) is designated as the primary federal entity responsible for NSSE security,” a newly updated CRS report explained.

See Inauguration Security: Operations, Appropriations, and Issues for Congress, January 11, 2017.

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

Sanctuary Jurisdictions and Criminal Aliens: In Brief, updated January 10, 2017

U.S. Special Operations Forces (SOF): Background and Issues for Congress, updated January 6, 2017

Armed Conflict in Syria: Overview and U.S. Response, updated January 6, 2017

Israel: Background and U.S. Relations In Brief, updated January 6, 2017

Biennial Budgeting: Issues, Options, and Congressional Actions, January 10, 2017

Child Welfare: An Overview of Federal Programs and Their Current Funding, updated January 10, 2017

Constitutional Authority Statements and the Powers of Congress: An Overview, January 6, 2017

Military Retirement: Background and Recent Developments, updated January 6, 2017

Changes in the Arctic: Background and Issues for Congress, updated January 5, 2017

A new report on improving declassification procedures in the U.S. intelligence community implicitly suggests that no such improvements are likely to emerge any time soon.

The report, published yesterday by the Office of the Director of National Intelligence in response to congressional direction, is largely devoid of new ideas and instead calls for greater “integration” and “coordination.”

“Improving the declassification process across the Community will require an integrated and multifaceted set of initiatives fully coordinated with organizations that have AD [automatic declassification] programs. No single step will suffice in addressing satisfactorily the areas for improvement that have been identified in this report.”

See Improving the Intelligence Community’s Declassification Process and the Community’s Support to the National Declassification Center, ODNI, December 2016.

The core of the report is in a section entitled “Proposals to Improve the IC’s Declassification Process.” But it does not actually present any declassification policy proposals. Instead, in a near-parody of a government report, it calls for establishment of new working groups to write other reports and generate further recommendations.

Thus, the “Proposal on Process” calls for “a Declassification Improvement Working Group (DIWG) to conduct a zero‐based study of the IC’s AD process and prepare a report–by a specified deadline– that includes recommended actions to increase the program’s effectiveness and efficiency across the Community.”

The “Proposal on Electronic Records” says that “A joint task force […] should be formed to aggressively pursue the identification, development, and validation of technological capabilities — tools and infrastructure — for incorporation in the AD [automatic declassification] process.” (Aggressively!)

This is not helpful. In fact, it is practically a declaration of helplessness.

The new report is lacking in specific actionable proposals that could be evaluated, debated, perhaps modified and ultimately adopted in practice. It does not ask or answer any penetrating questions. Such as:

*  What if agency “equity” in older records, requiring review by those agencies, simply lapsed at some point in time, eliminating the need for such review?

*  What if certain defunct intelligence compartments could be altogether excused from multi-agency referral and review?

*  What if a fixed fraction of agency information security expenditures were routinely and predictably allocated to performing declassification?

*  What if new metrics could be devised to measure the success of declassification programs based on requester demand and disclosure impact, not just on number of pages processed?

*  Fundamentally, what if intelligence community tolerance for risk were recalibrated to facilitate more expeditious declassification of both current and historically valuable records?

Interestingly, the report notes that agencies favor numerous revisions to President Obama’s executive order 13526 on classification policy, so that “updating the E.O. will be a major undertaking.”

But those revisions mainly seem geared toward relaxing existing declassification requirements, not strengthening them. So, for example, IC officials believe they could place increased emphasis on declassifying historical records of broad public interest if they could be assured that other records of lesser interest would not be automatically declassified as they become 25 years old, as the Obama order nominally directs.

The nomination of Gen. James Mattis to be Secretary of Defense will require a legislative waiver of the prohibition against appointing persons who have been on active duty in the military within the past seven years to the position of Secretary.

A new report from the Congressional Research Service takes a look at the underlying issue of civilian control of the military, and related concerns.

“Historically, the restriction relating to the prior military service of the Secretary of Defense appears to be a product of congressional concern about preserving the principle of civilian control of the military, a fundamental tenet underpinning the design and operation of the American republic since its inception in 1776, if not before,” the report says.

The report reviews the origins and background of this principle and then ventures an analysis of its application today.

“The public discussion surrounding the proposed nomination of General Mattis seems to be less about preserving the principle of civilian control of the military (although that is certainly being debated), and more about civilian-military relations more generally.”

“Very few observers, if any, appear concerned that General Mattis, if appointed to the position of Secretary of Defense, will compromise the longstanding American tradition of ensuring that the military remains subordinate to the authority of civilian leaders. Instead, the possible appointment of General Mattis has served as a catalyst for a more wide-ranging discussion [of] the ways in which the U.S. military, civil society, and civilian leaders relate to each other,” CRS said. See Statutory Restrictions on the Position of Secretary of Defense: Issues for Congress, January 5, 2017.

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

Alien Registration Requirements: Obama Administration Removes Certain Regulations, but Underlying Statutory Authority Remains, CRS Legal Sidebar, January 5, 2017

Latin America and the Caribbean: Key Issues for the 114th Congress, updated January 4, 2017

The Budget Reconciliation Process: Stages of Consideration, updated January 4, 2017

Budget Reconciliation Measures Enacted Into Law: 1980-2010, updated January 4, 2017

Systemically Important or “Too Big to Fail” Financial Institutions, updated January 4, 2017

Temporary Assistance for Needy Families (TANF): Size of the Population Eligible for and Receiving Cash Assistance, January 3, 2017

Congressional Careers: Service Tenure and Patterns of Member Service, 1789-2017, updated January 3, 2017

Inspectors General in and Beyond the Presidential Transition Period, CRS Insight, January 3, 2017