The “disruptive” character of the Trump transition is already keeping the analysts and lawyers at the Congressional Research Service busy.

One new CRS analysis responds to the question of whether the employment of Trump family members in the transition or the Administration would violate the federal law against nepotism, which generally prohibits the hiring of relatives to government jobs. The answer is not crystal clear, for several reasons explained in the new analysis. It may be that an otherwise prohibited appointment would be permitted, for example, if the appointee forgoes compensation. See The Federal Anti-Nepotism Statute: Limits on Appointing, Hiring, and Promoting Relatives, CRS Legal Sidebar, December 1, 2016.

Could President Trump simply withdraw the United States from the international Paris Agreement on climate change? Again, the answer is murky. “Historical practice would appear to suggest that, because the Paris Agreement is an executive agreement, domestic law would allow the President to unilaterally withdraw from the Agreement without approval from the legislative branch.” On the other hand, maybe not. See Can the President Withdraw from the Paris Agreement?, CRS Legal Sidebar, December 5, 2016.

Another CRS brief examines the waiver that would be needed if General (ret.) James Mattis were to serve as Secretary of Defense, a departure from the normal principle of civilian control of the military. “CRS has been able to identify [only] one instance of Congress acting to waive this provision,” namely in response to President Truman’s 1950 nomination of Gen. George C. Marshall to be Secretary of Defense. See Waiver of Statutory Qualifications Relating to Prior Military Service of the Secretary of Defense, CRS Insight, December 1, 2016.

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

European Union Efforts to Counter Disinformation, CRS Insight, December 1, 2016

Fidel Castro’s Death: Implications for Cuba and U.S. Policy, CRS Insight, December 2, 2016

Iran Nuclear Agreement, updated December 5, 2016

Internet Sales and State Taxes: Policy Issues, CRS Insight, December 1, 2016

Social Security Primer, updated December 5, 2016

An Introduction to Judicial Review of Federal Agency Action, December 5, 2016

The Director of National Intelligence shall “review the system by which the Government classifies and declassifies information” and shall “develop recommendations… to make such system a more effective tool… and to support the appropriate declassification of information.”

That’s just one of the many requirements included in the Fiscal Year 2017 Intelligence Authorization Act (in section 708) that was approved by the House of Representatives on November 30, following negotiations with the Senate.

The House and Senate Intelligence Committees also produced an Explanatory Statement that presents extensive “unclassified congressional direction” on all kinds of intelligence policy matters high and low.

The joint Statement, included in the Congressional Record, notably adopts House language on reforming the pre-publication review requirement that current and former intelligence community employees (and certain others) must comply with. The Statement requires the DNI to “issue an IC-wide policy regarding pre-publication review” within 180 days that includes various specified elements that should improve the timeliness, clarity, and fairness of the review process.

The intelligence bill was crafted in response to Obama Administration policies and, in all likelihood, in anticipation of a Hillary Clinton Administration. But assuming that it is enacted into law, it will come into full effect in a Trump Administration of uncertain character and composition.

“There are many unknowns about the incoming administration, particularly how it will utilize and interact with the IC,” said Rep. Adam Schiff (D-CA), the Ranking Member of the House Intelligence Committee.

“It is now more important than ever that we give the IC the tools it needs to keep us safe and provide the necessary oversight required to ensure that they act in a manner consistent with our values and at all times,” he said on the House floor.

The total number of refugees that can be admitted to the United States this year — termed the worldwide refugee ceiling — is 110,000 persons.

The total amount is allocated among refugees from Africa (35,000), East Asia (12,000), Europe and Central Asia (4,000), Latin America/Caribbean (5,000), and Near East/South Asia (40,000), with an unallocated reserve of 14,000 persons.

Background on law and policy affecting refugees is presented in a newly updated report from the Congressional Research Service. See Refugee Admissions and Resettlement Policy, November 30, 2016.

The number of government employees involved in acquisition of U.S. military systems, equipment and services reached 158,212 as of March 2016, according to another new CRS report. See The Civil Defense Acquisition Workforce: Enhancing Recruitment Through Hiring Flexibilities, November 22, 2016.

The U.S. has gone from being a net exporter of fruits and vegetables in the 1970s to being a net importer today, CRS found. On the other hand, U.S. production of nuts is strong. As far as nuts are concerned, there have been “continued increases and, generally, a growing U.S. trade surplus.” See The U.S. Trade Situation for Fruit and Vegetable Products, updated December 1, 2016.

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

Demographic and Social Characteristics of Persons in Poverty: 2015, November 30, 2016

Child Welfare: An Overview of Federal Programs and Their Current Funding, updated November 30, 2016

Agency Final Rules Submitted After June 2, 2016, May Be Subject to Disapproval, CRS Insight, updated November 30, 2016

The Congressional Appropriations Process: An Introduction, November 30, 2016

Authorization of Appropriations: Procedural and Legal Issues, updated November 30, 2016

Federal Income Tax Treatment of the Family, updated November 23, 2016

Social Security: What Would Happen If the Trust Funds Ran Out?, updated November 23, 2016

Conflict of Interest and “Ethics” Provisions That May Apply to the President, CRS memorandum, November 22, 2016

Iran’s Nuclear Program: Status, updated November 30, 2016

The Central African Republic: Background and U.S. Policy, updated December 1, 2016

What Happens if Johnny Hacks His Seventh Grade Report Card?, CRS Legal Sidebar, December 1, 2016

In what must be one of the very last national security-related posts to be filled in the Obama Administration, national security lawyer and former CIA officer Mark A. Bradley was named as the next director of the Information Security Oversight Office (ISOO), which is responsible for oversight of the national security secrecy system government-wide.

He was selected by Archivist of the United States David S. Ferriero (ISOO is housed at the National Archives) and his appointment was approved last week by President Obama (the ISOO director reports to the President).

Mr. Bradley is an intriguing choice for ISOO director, since he is one of a very small group of individuals who have engaged with government secrecy policy both as an outsider-critic and as an insider-defender.

“We have a broken system that is manufacturing way too many secrets,” he told the Wall Street Journal late in the Clinton Administration (“Case of Lost-and-Found Disk Drives Demonstrates Weakness of U.S. Systems for Protecting Secrets” by Neil King, July 5, 2000).

More recently, however, he has been the voice of the secrecy system itself, defending the government from Freedom of Information Act lawsuits brought by the Electronic Frontier Foundation, the ACLU, the New York Times, EPIC, Judicial Watch, and others. He did not simply represent the government’s position. Rather, as a Top Secret original classification authority at the Department of Justice National Security Division, he actually made many of the decisions to retain the classification of information that was sought by FOIA requesters in those cases.

If it was a mistake to classify the collection of Americans’ telephone metadata records by the National Security Agency (under the “215” program), then Mr. Bradley bears a slice of responsibility for that decision.

In 2013, about two months before the metadata collection program was publicly disclosed (in The Guardian) by Edward Snowden, Mr. Bradley told a court that a request by the Electronic Frontier Foundation for information about the program must be denied.

“The withheld material contains specific descriptions of the manner and means by which the United States Government acquires tangible things for certain authorized investigations pursuant to Section 215,” Mr. Bradley wrote in an April 2013 declaration. “Disclosure of this information would provide our adversaries and foreign intelligence targets with insight into the United States Government’s foreign intelligence collection capabilities, which in turn could be used to develop the means to degrade and evade those collection capabilities.”

In retrospect, this proved to be a narrow and incomplete assessment of the issue. While the 215 program information was indeed properly classified under the terms of the executive order, it should have been released anyway. That, at least, was the conclusion that was ultimately reached — long after the question was moot — by Director of National Intelligence James R. Clapper.

“I probably shouldn’t say this, but I will,” DNI Clapper told Eli Lake of the Daily Beast in 2014. “Had we been transparent about this from the outset… we wouldn’t have had the problem we had.”

Importantly for his ISOO role, Mr. Bradley is not “just” a former intelligence officer and national security lawyer. He is also an historian who has done archival research and worked with declassified records to produce a well-regarded volume called A Very Principled Boy: The Life of Duncan Lee, Red Spy and Cold Warrior (Basic Books, 2014). So he will bring multiple relevant dimensions of expertise to his new responsibilities at ISOO.

Mr. Bradley’s tenure as ISOO director will begin on December 25. The previous ISOO director, John P. Fitzpatrick, left last January to join the National Security Council staff. William A. Cira has been serving as acting director in the interim.

Among his many other responsibilities, the ISOO director serves as the Executive Secretary of the Public Interest Declassification Board (PIDB), an official advisory body. The PIDB has scheduled a public meeting at the National Archives on December 8 “to discuss recommendations for improved transparency and open government for the new Presidential Administration.”

Meanwhile, the House Committee on Oversight and Government Reform said that it will hold a hearing on December 7 to “examine overclassification and other failures of the classification system.”

The steps that the incoming Trump Administration could take to revise or reverse policies of the Obama Administration are considered in several new publications from the Congressional Research Service.

“While the Constitution does not permit the President to single-handedly repeal or amend statutes, there is much that a new President can do to rapidly reverse the policies of a previous administration,” CRS explained.

The ease of altering existing policies depends on how those policies were promulgated in the first place: by executive order, through agency policy statements, or through agency rules.

“The President can immediately revoke, modify, or supersede executive orders issued by a predecessor.”

“A new President can also immediately direct the heads of executive branch agencies to withdraw discretionary directives and guidance documents that were issued by an executive agency during a previous administration.”

“Agency rules and regulations may also be repealed by a new administration; however, the repeal process can be time consuming and must comply with certain mandated procedures.”

See With the Stroke of a Pen: What Executive Branch Actions Can President-elect Trump “Undo” on Day One?, CRS Legal Sidebar, November 22, 2016.

See also: Can a New Administration Undo a Previous Administration’s Regulations?, CRS Insight, November 21, 2016

The Obama Administration’s 2014 Immigration Initiative: Looking Back at What the Obama Administration Has Done– and Ahead to the Trump Administration, CRS Legal Sidebar, November 22, 2016

“Major” Obama Administration Rules Potentially Eligible to be Overturned under the Congressional Review Act in the 115th Congress, CRS Memorandum, November 17, 2016

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

The Budget Reconciliation Process: The Senate’s “Byrd Rule”, updated November 22, 2016

Family and Medical Leave Act (FMLA): Proposed Legislation in the 114th Congress, November 21, 2016

Five-Year Program for Federal Offshore Oil and Gas Leasing: Status and Issues in Brief, November 21, 2016

Unique Identification Codes for Federal Contractors: DUNS Numbers and CAGE Codes, November 21, 2016

The Temporary Assistance for Needy Families (TANF) Block Grant: A Primer on TANF Financing and Federal Requirements, updated November 21, 2016

Internet Governance and the Domain Name System: Issues for Congress, updated November 18, 2016

Venezuela: Background and U.S. Relations, updated November 21, 2016

Barriers Along the U.S. Borders: Key Authorities and Requirements, updated November 18, 2016

The complexities and some of the potential pitfalls of the presidential transition period are described in a newly updated report from the Congressional Research Service.

“A variety of events, decisions, and activities contribute to what some may characterize as the unfolding drama of a presidential transition. Interparty transitions in particular might be contentious.”

The report addresses the use of executive orders, record preservation and clemency actions by the outgoing Administration, as well as cybersecurity, budget preparation, political appointments, and so forth. See Presidential Transitions: Issues Involving Outgoing and Incoming Administrations, updated November 16, 2016.

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

Counting Electoral Votes: An Overview of Procedures at the Joint Session, Including Objections by Members of Congress, updated November 15, 2016

The Congressional Review Act: Frequently Asked Questions, updated November 17, 2016

Infrastructure Finance and Debt to Support Surface Transportation Investment, updated November 17, 2016

Prevalence of Mental Illness in the United States: Data Sources and Estimates, updated November 16, 2016

The Patient Protection and Affordable Care Act’s (ACA’s) Transitional Reinsurance Program, November 16, 2016

CRISPR: A Revolutionary Tool for Editing the Code of Life?, CRS Insight, November 17, 2016

Certain U.S. Laws for Foreign Workers Draw Fire from India in the WTO, CRS Legal Sidebar, November 16, 2016

Justice Department’s Role in Cyber Incident Response, CRS Insight, November 15, 2016

Naval Station Guantanamo Bay: History and Legal Issues Regarding Its Lease Agreements, updated November 17, 2016

Iran Sanctions, updated November 16, 2016

Yemen: Civil War and Regional Intervention, updated November 16, 2016

“Security clearances are not mandated for the President, Vice President, Members of Congress, Supreme Court Justices, or other constitutional officers,” a recent Congressional Research Service report explains. “The criteria for election or appointment to these positions are specified in the U.S. Constitution, and except by constitutional amendment, no additional criteria (e.g., holding a security clearance) may be required.”

In fact, the security clearance system itself is an expression of presidential authority. Its scope and operation are defined in an executive order (EO 12968), and its terms can be modified by the President at will.

And if the President wished to grant access to classified information to a family member, for example, there would be no legal barrier to doing so. See “Trump Will Have Wide Latitude to Let Family Into Government’s Secret Circles” by Mark Landler, New York Times, November 16.

*

Americans with relatives in China have a vanishingly small chance of getting a security clearance, according to a new analysis by attorney Sheldon I. Cohen.

“Every year American citizens with family ties in China apply for security clearances, but for them the chances of getting a security clearance are remote. Winning the lottery has better odds. After an applicant spends the time, effort, and frequently the money to hire legal counsel, the result is virtually always the same — clearance denied.”

Given current realities, Cohen wrote, the government might as well “just issue a blanket policy statement that applicants with family ties in China will not be granted a security clearance. That would save not only the applicants, but also the American taxpayers the money wasted on hearings which virtually always have a predictable outcome.” See If You Have A Family Member in China — Chances of Getting a Security Clearance Are Remote by Sheldon I. Cohen, Fall 2016.

The celebrated and accomplished individuals selected by President Obama to receive the Presidential Medal of Freedom — the nation’s highest civilian honor — include figures such as Kareem Abdul-Jabbar, Bill and Melinda Gates, Robert Redford, Bruce Springsteen, Michael Jordan– and Richard L. Garwin.

As noted by a November 16 White House news release, “Richard Garwin is a polymath physicist who earned a Ph.D. under Enrico Fermi at age 21 and subsequently made pioneering contributions to U.S. defense and intelligence technologies, low-temperature and nuclear physics, detection of gravitational radiation, magnetic resonance imaging (MRI), computer systems, laser printing, and nuclear arms control and nonproliferation.”

The Medals will be presented at the White House on November 22.

The giving of awards is fraught with latent meanings and assertions of power and identity (as the hullabaloo over Bob Dylan’s Nobel Prize, and Dylan’s muted response to it, show).

In this case, a Presidential Medal of Freedom will hardly enlarge the reputation of Garwin, who could not be more highly esteemed by those who know him or are familiar with his work.

But it casts a somewhat unexpected and therefore moving new light on the Obama White House, which had the breadth of awareness to recognize Garwin and to select him for this honor, together with those who are more widely famous.

Over here, Garwin is practically family, having been a member of the Board of the Federation of American Scientists for many years and a supporter of the organization, including the project on government secrecy, for even longer.

FAS maintains the Garwin Archive, an online collection of many of his published and unpublished works. Earlier this week, we posted slides from his latest paper entitled “Don’t Reprocess Spent Fuel from Light-Water Reactors,” which was presented this month at a seminar in China.

Melvin R. Laird, who served as Secretary of Defense during the Nixon Administration, passed away on November 16. His tenure as Secretary was described in an official history published last year by the Department of Defense that is based in part on classified government archives.

“Although the text has been declassified, some of the official sources cited in the volume may remain classified,” wrote DoD historian Erin R. Mahan in a Foreword. The 732-page volume was authored by historian Richard A. Hunt. See Melvin Laird and the Foundation of the Post-Vietnam Military, 1969-1973, Volume 7 of the Secretaries of Defense Historical Series, 2015.

“Laird’s tenure as secretary coincided with significant changes in national security policy,” Dr. Mahan wrote. “Faced with an NSC system that consolidated policymaking in the White House, Laird used his political canniness and bureaucratic skill to stymie the attempts of Nixon and National Security Adviser Henry A. Kissinger to assert greater control over the defense program.”

“Laird was fully involved in planning the Breakfast bombing [of Cambodia in 1969] but disagreed with Nixon and Kissinger about doing it clandestinely,” Dr. Hunt wrote. “He later explained, ‘I told Nixon you couldn’t keep the bombing in Cambodia secret. . . . It was going to come out anyway and it would build distrust. . . . I was all for hitting those targets in Cambodia, but I wanted it public, because I could justify before Congress and the American people that these were occupied territories of the North Vietnamese, no longer Cambodian territory. I could have made that case, but they [Nixon and Kissinger] thought it was important to keep it secret’.”

The proper selection and validation of enemy targets in war is a critical function for military planners and intelligence analysts. Errors can result in horrific civilian casualties and may also be strategically counterproductive.

“In extreme cases, failure to exercise due diligence in target development can result in outcomes that have negative strategic repercussions for the United States and its allies,” a newly disclosed Pentagon manual on targeting acknowledges (in bold type).

Procedures for correctly identifying and approving targets are described in the manual. See Target Development Standards, Chairman of the Joint Chiefs of Staff Instruction 3370.01B, 230 pages, 6 May 2016 (Unclassified, For Official Use Only).

A target is “an entity or object that performs a function for the adversary considered for possible engagement or other action,” the manual explains.

“Targets fall into one of five target types: facility, individual, virtual, equipment, or organization.”

“Examples include POL [petroleum, oil or lubricant] or PWR [electric power] sites (facilities), the chief accountant of a terrorist group (individual), a Web site (virtual), mobile radar (equipment), or a motorized infantry brigade (organization).”

“A terrorist network is the adversary, not a target. A front company (an entity) that ships lethal aid (a function) for the terrorist network (the adversary) would be a target.”

“Collateral effects are unintentional or incidental adverse consequences of target engagement. Such effects are not unlawful so long as it is not excessive in light of the overall military advantage anticipated from the engagement.”

“While all targets are entities, not all entities in the battlespace are valid targets. To be validated as a target, the function of the entity must be tied to commander’s objectives (operationally relevant) and meet Law of War (LOW) requirements,” the manual notes.

The manual applies to the Department of Defense and the military services. It does not govern lethal operations by the Central Intelligence Agency.

“With a change of presidential administrations taking place in January, some in Congress are paying renewed attention to a parliamentary mechanism that might enable the new Congress and the new President to overturn agency final rules of the Obama Administration issued after late-May 2016,” a newly updated brief from the Congressional Research Service explains.

“The inauguration of Republican Donald J. Trump as President in 2017 may present a finite window during which the [congressional] disapproval mechanism might be used more successfully.” See Agency Final Rules Submitted After May 30, 2016, May Be Subject to Disapproval in 2017 Under the Congressional Review Act, CRS Insight, updated November 9, 2016.

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

Legislative Actions to Repeal, Defund, or Delay the Affordable Care Act, updated November 10, 2016

“Regulatory Relief” for Banking: Selected Legislation in the 114th Congress, updated November 10, 2016

Retirement Benefits for Members of Congress, updated November 10, 2016

Staff Tenure in Selected Positions in Senate Committees, 2006-2016, November 9, 2016

Staff Tenure in Selected Positions in Senators’ Offices, 2006-2016, November 9, 2016

Staff Tenure in Selected Positions in House Committees, 2006-2016, November 9, 2016

Staff Tenure in Selected Positions in House Member Offices, 2006-2016, November 9, 2016

U.S. Trade with Free Trade Agreement (FTA) Partners, updated November 9, 2016

China Issues Decision on Hong Kong Legislative Council Controversy, CRS Insight, November 9, 2016

Navy Force Structure: A Bigger Fleet? Background and Issues for Congress, updated November 9, 2016

Gun Control: FY2017 Appropriations for the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) and Other Initiatives, November 9, 2016

The future of transparency in the Trump Administration is uncertain. It will ultimately be determined in practice as the new Administration embarks on its programs, determines its priorities, appoints its personnel, engages with Congress and confronts the public.

On his first full day in office, President Obama famously pledged to conduct the most transparent Administration in history. Though it was imperfectly executed and suffered some reversals, I think that pledge was fulfilled to an impressive extent. More government information was made more easily available to more people than ever before. The reported volume of new national security secrets created in the past two years dropped to historically low levels. Whole categories of information that had previously been off-limits — the size of the U.S. nuclear weapons stockpile, the President’s Daily Brief, the size of the annual intelligence budget request, among others — were newly subject to declassification and disclosure during Obama’s tenure. If this was not the most transparent Administration in history, then which Administration was?

Donald Trump’s estimation of transparency already appears to be radically different. Although his Twitter persona during the campaign represented a degree of unfiltered candor that is almost alarming in a public official, it was unaccompanied by detailed policy proposals that might have informed the election. Trump’s refusal to release his tax returns as a presidential candidate was a startling repudiation of a longstanding norm of American governance. Worse, the fact that this refusal was not considered disqualifying by his supporters suggests that the norm is weaker than supposed. Far from being a given, the value of transparency itself may not be widely understood or shared by many Americans.

It’s not that Trump has promised transparency and failed to deliver. He has promised nothing of the kind. Hypocrisy on this point would actually be a step forward.

In what seems to be the first post-election reference to the FOIA by the Trump transition team, applicants for positions in the new Administration were advised that “One should assume that all of the information provided during this process is ultimately subject to public disclosure, if requested under the Freedom of Information Act.” (also noted by Russ Kick)

This is somewhat misleading, since various types of personal privacy information such as social security numbers would not be subject to FOIA. But perhaps it is a healthy sign that some awareness of the FOIA and its disclosure requirements is already present in the Trump camp.