In a deeply fractured political environment, the work of the Congressional Research Service may be even more valuable than ever. Non-partisan to a fault, CRS provides the same policy analysis to Republicans and Democrats, to problem-solvers and to nihilists. CRS reports can therefore help to establish a common framework for debate, and a shared vocabulary for discussion. They are at least a place to start a conversation.

One newly updated CRS report “examines Intelligence Community (IC) funding over the past several decades, with an emphasis on the period from 2007-2017.” See Intelligence Community Spending: Trends and Issues by Anne Daugherty Miles, November 8, 2016.

It was issued along with a new companion report on the structure and management of U.S. intelligence. See Intelligence Community Programs, Management, and Enduring Issues, also by Anne Miles, November 8, 2016.

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

Internet Gambling: Policy Issues for Congress, November 7, 2016

Afghanistan: Post-Taliban Governance, Security, and U.S. Policy, updated November 8, 2016

Cuba: Issues for the 114th Congress, updated November 8, 2016

FY2017 Defense Spending Under an Interim Continuing Resolution (CR): In Brief, updated November 7, 2016

Women in Congress, 1917-2016: Biographical and Committee Assignment Information, and Listings by State and Congress, updated November 7, 2016

Drinking Water State Revolving Fund (DWSRF): Program Overview and Issues, updated November 8, 2016

Youth Transitioning from Foster Care: Background and Federal Programs, updated November 8, 2016

What Is the Farm Bill?, updated November 8, 2016

When Does Sovereign Immunity Protect Property Owned by State Sponsors of Terrorism?, CRS Legal Sidebar, November 8, 2016

Two patent applications that had been subject to “secrecy orders” under the Invention Secrecy Act for years or decades were finally granted patents and publicly disclosed in 2016.

“Only two patents have been granted so far on cases in which the secrecy order was rescinded in FY16,” the US Patent and Trademark Office said this week in response to a Freedom of Information Act request.  They were among the 20 inventions whose secrecy orders were rescinded over the past year.

One of the patents concerns “a controllable barrier layer against electromagnetic radiation, to be used, inter alia, as a radome for a radar antenna for instance.” The inventor, Anders Grop of Sweden, filed the patent application in 2007 and it was granted on April 5, 2016 (patent number 9,306,290).

The other formerly secret invention that finally received a patent this year described “multi-charge munitions, incorporating hole-boring charge assemblies.” Detonation of the munitions is “suitable for defeating a concrete target.” That invention was originally filed in 1990 by Kevin Mark Powell and Edward Evans of the United Kingdom and was granted on October 25, 2016 (patent number 9,476,682).

The inventors could not immediately be contacted for comment. But judging from appearances, the decision to control the disclosure of these two inventions for a period of time and then to grant them a patent was consistent with the terms of the Invention Secrecy Act, and it had no obvious adverse impacts.

What would happen if no candidate for President of the United States won a majority of electoral votes?

The Congressional Research Service explains: “In these circumstances, the 12th Amendment . . . provides that the House of Representatives would elect the President, and the Senate would elect the Vice President, in a procedure known as ‘contingent election’.”

This is not a purely speculative scenario. “Contingent election has been implemented twice in the nation’s history under the 12th Amendment: first, to elect the President in 1825, and second, the Vice President in 1837.”

See Contingent Election of the President and Vice President by Congress: Perspectives and Contemporary Analysis by CRS Specialist Thomas H. Neale, November 3, 2016.

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

The Terrorist Screening Database and Preventing Terrorist Travel, November 7, 2016

Pipeline Security: Domestic Threats, CRS Insight, November 3, 2016

Individual Income Tax Rates and Other Key Elements of the Federal Individual Income Tax: 1988 to 2017, updated November 4, 2016

Treasury’s Recent Report on Foreign Exchange Rate Policies, CRS Insight, November 3, 2016

U.S.-Mexico Economic Relations: Trends, Issues, and Implications, updated November 4, 2016

Moldova: A Pivotal Election?, CRS Insight, November 4, 2016

Last March, the conservative watchdog group Judicial Watch filed a Freedom of Information Act lawsuit against the Central Intelligence Agency seeking a copy of “all pornographic material” collected during the May 2011 military operation that killed Osama bin Laden.

In opposition, CIA argued that “responsive records, if any, would be contained in operational files,” and that “the CIA Information Act exempts the CIA’s operational files from FOIA’s search and disclosure requirements.”

There is indeed an exemption from FOIA for CIA operational files, but the scope and the proper application of the exemption are in dispute. If the requested pornographic records do qualify for the “operational files” designation, as CIA holds, then they do not need to be assembled, reviewed or released in response to Judicial Watch’s request.

But whether they do so qualify is not a perfectly simple question, since the operational files exemption has various technical limitations and exceptions.

Judicial Watch said the bin Laden pornography falls within the “special activity” exception to the operational files exemption. “The ‘special activity’ exception applies to records concerning a specific covert action that has been publicly disclosed or acknowledged,” wrote attorney Michael Bekesha of Judicial Watch.

As evidence that the bin Laden raid was in fact a covert action that has been publicly disclosed, Judicial Watch cited a quotation from then-CIA Director Leon Panetta, who described it on the PBS Newshour, saying that “this was what’s called a ‘title 50’ operation, which is a covert operation, and it comes directly from the president of the United States who made the decision to conduct this operation in a covert way.”

Remarkably, however, CIA insisted that Panetta “did not acknowledge that the operation was conducted under covert action authorities.”

“The term ‘covert operation’ [used by Panetta] is not synonymous with a ‘covert action,’ nor is Mr. Panetta’s description of the raid as ‘covert’ an acknowledgement of a ‘covert action’,” said CIA’s Antoinette B. Shiner in a declaration last month.

Judicial Watch moved to strike that CIA declaration as improper, particularly since it was not based on personal knowledge of Panetta’s intent.

That particular issue, and the case as a whole, now await resolution by Judge Ketanji Brown Jackson of the DC District Court.

In an aside, attorneys for CIA questioned the plaintiff’s motivation for filing the lawsuit. “It is hard to imagine how dissemination of pornographic materials allegedly seized during the Bin Laden raid could inform the public in any meaningful way about what the United States government is up to — the core, animating purpose of FOIA — much less advance Judicial Watch’s professed mission ‘to promote transparency, accountability, and integrity in government and fidelity to the rule of law’.”

But the Freedom of Information Act does not require that requesters be motivated by some constructive purpose. Under FOIA, any person may request any government record for any reason, or for no reason at all. The bar to entry and the costs of participation are practically non-existent.

For its part, Judicial Watch defended its approach. “We’re filling multiple roles here in a Washington where the traditional vehicles for government accountability have broken down,” said Tom Fitton, president of the organization, in a recent profile in the New York Times. (“Group’s Tactic on Hillary Clinton: Sue Her Again and Again” by Jonathan Mahler, October 12.)

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Last week, the Central Intelligence Agency released the conclusions of its 2015 “decennial review” of operational file designations, as required by the CIA Information Act of 1984. The exercise is supposed to refine and revalidate the use of the operational files category as an exemption from FOIA.

But although CIA went through the motions of requesting public comments on the matter last year, the Agency did not directly respond to any of those comments in its April 2016 report to Congress. For the most part, the results of the third decennial review track closely with those of the second decennial review in 2005. The new report does not explicitly reference Clandestine Service History Program Files, however, among a few other changes in wording. The significance of that is unclear.

The latest review did not identify any categories of records that were to be removed from the operational files category, as was done in report on the first decennial review in 1995.

The newly updated edition of the Department of Defense Dictionary of Military and Associated Terms includes a new entry for “Improvised Nuclear Device.”

It is defined as “A device incorporating fissile materials designed or constructed outside of an official government agency that has, appears to have, or is claimed to be a nuclear weapon that is no longer in the control of a competent authority or custodian or has been modified from its designated firing sequence.”

The 400-page DoD Dictionary, now updated through 15 October 2016, is a useful reference for interpreting specialized military terminology and for decoding current acronyms, which are listed in a 120-page Appendix. But it is also a reflection of current DoD concerns and priorities.

Another new entry in the latest edition is for “resilience,” which here means “The ability of an architecture to support the functions necessary for mission success with higher probability, shorter periods of reduced capability, and across a wider range of scenarios, conditions, and threats, in spite of hostile action or adverse conditions.”

The update replaces prior editions which were designated Joint Publication 1-02. For unknown reasons, the JP 1-02 document format has been abandoned in the new edition, which is simply entitled DOD Dictionary of Military and Associated Terms.

“Numerous” legal challenges to state election laws have been filed during the last few weeks and months, a new report from the Congressional Research Service found, generating new judicial interpretations of those laws.

“For example, there have been recent court rulings affecting the laws regulating early voting, voter photo identification (ID) requirements, registration procedures, straight-party voting, and voter rolls. Accordingly, many such laws have been recently invalidated, enjoined, or altered. Others continue to be subject to litigation.”

The current state of affairs was reviewed in Recent State Election Law Challenges: In Brief by legislative attorney L. Paige Whitaker, November 2, 2016.

Another new CRS report discussed pending efforts in Congress to reconfigure Department of Defense partnerships with foreign military services. See Security Cooperation: Comparison of Proposed Provisions for the FY2017 National Defense Authorization Act (NDAA), November 1, 2016.

A federal court for the first time upheld the use of the “social cost of carbon” (SCC) in a cost-benefit analysis by a federal agency, another CRS publication observed. The SCC is a monetary estimate of economic damages that are associated with an incremental increase in carbon dioxide (CO2) emissions. See Courts Evaluate How Federal Agencies Put a Price on Carbon, CRS Legal Sidebar, November 1, 2016.

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

Foreign Aid and the Education Sector: Programs and Priorities, November 2, 2016

Funding and Financing Highways and Public Transportation, November 1, 2016

Extraterritorial Application of American Criminal Law, updated October 31, 2016

As of last year, there were 1,009 federal advisory committees comprised of 72,220 members who provided advice to the government at a cost of more than $367 million.

The operations of these federal advisory committees — which may also include commissions, councils, task forces, or working groups — are examined in a newly updated report from the Congressional Research Service. See Federal Advisory Committees: An Introduction and Overview by Wendy Ginsberg and Casey Burgat, October 27, 2016.

Other new and updated CRS reports that have not been made publicly available online include the following.

Bahrain: Reform, Security, and U.S. Policy, updated October 28, 2016

Iran: Politics, Human Rights, and U.S. Policy, updated October 25, 2016

Israel: Background and U.S. Relations, updated October 28, 2016

Ukraine: Current Issues and U.S. Policy, updated October 27, 2016

Navy Aegis Ballistic Missile Defense (BMD) Program: Background and Issues for Congress, updated October 25, 2016

Navy Virginia (SSN-774) Class Attack Submarine Procurement: Background and Issues for Congress, updated October 25, 2016

Navy Columbia Class (Ohio Replacement) Ballistic Missile Submarine (SSBN[X]) Program: Background and Issues for Congress, updated October 25, 2016

Department of Homeland Security Preparedness Grants: A Summary and Issues, October 28, 2016

DHS Appropriations FY2017: Security, Enforcement, and Investigations, October 27, 2016

Treatment of Noncitizens Under the Affordable Care Act, updated October 27, 2016

Video Broadcasting of Congressional Proceedings, October 28, 2016

The Social Security Retirement Age, October 28, 2016

Social Security: Calculation and History of Taxing Benefits, updated October 27, 2016

Did a Thermostat Break the Internet?, CRS Insight, October 26, 2016

The Central Intelligence Agency yesterday released a long-sought draft of the fifth volume of its internal history of the 1961 invasion of the Bay of Pigs.

The release was among the first tangible results of this year’s amendments to the Freedom of Information Act, which imposed a 25 year limit on the exemption for “deliberative” files. As a result, the 1984 draft history could no longer be legally withheld.

CIA said in a cover note that “This fifth draft volume was not publishable in its present form, in the judgment of CIA Chief Historians as well as other reviewers, because of serious shortcomings in scholarship, its polemical tone, and its failure to add significantly to an understanding of the controversy over the Bay of Pigs operation.”

Indeed, the new “volume is strange, in some respects, and interesting,” said Villanova Prof. David M. Barrett, who had filed a lawsuit last summer for release of the draft history.

“Essentially, it is a critical history of the Inspector General’s critical report on Bay of Pigs, which mainly blamed CIA incompetence for the failure at Bay of Pigs.  [The author, CIA historian Jack] Pfeiffer says IG Lyman Kirkpatrick’s report was, itself, biased and incompetent.  Pfeiffer says the most obvious cause of failure at Bay of Pigs was JFK’s decision to cancel a planned 2nd airstrike in support of the invaders at Bay of Pigs,” Barrett said.

He noted several highlights:

Author Pfeiffer describes one of the IG report’s authors as probably mentally ill (p. 75).  Writing in about 1983, Pfeiffer says that CIA had kept the IG report and other internal analyses of Bay of Pigs classified Secret in order to avoid airing its “dirty laundry.” (p. 4).

Pfeiffer says CIA hired a couple of people to write the true story of Bay of Pigs with the hope of having Life Magazine or another outlet publish it.  Only State Dept objections stopped that from being pursued, though the authors did write the article. (p. 87-90)

At the end, Pfeiffer suggests in a footnote that the history program (where he worked!) should probably be abolished, and the raw materials it possessed should be destroyed; the Operations Directorate was hostile to it, and it was hard to see the point of the program. (p. 146) [Correction: The views expressed in the footnote on page 146 are those of other CIA officials, not Pfeiffer’s.]

“Not quite earth-shaking history, but I think the real story is that CIA spent much effort and money over the past 5 years to prevent [release] of this document,” Barrett said.

The National Security Archive, which had previously filed suit to obtain the document, hailed its release here.

There were 5,680 invention secrecy orders in effect at the end of Fiscal Year 2016. The U.S. Patent and Trademark Office reported that 121 new secrecy orders were issued in 2016, but also that 20 existing orders were rescinded, for a net increase of 101 over the year before. The latest figures were released under the Freedom of Information Act.

The government may impose a “secrecy order” on a patent application under the Invention Secrecy Act of 1951 if it believes that disclosure of the underlying invention would be “detrimental to national security.” Under those circumstances, a patent is withheld and the inventor is prohibited from revealing the invention unless and until the secrecy order is withdrawn.

The majority of secrecy orders apply to inventions that were developed with government sponsorship, in national or military laboratories or by government-funded contractors. So the ensuing secrecy amounts to the government silencing itself.

In a subset of cases, however, secrecy orders are imposed on private inventors who developed their idea without government support. There were 49 such orders in FY 2016. These orders, known as “John Doe” secrecy orders, seem like a form of prior restraint on individual speech that would be arguably inconsistent with the First Amendment.

But there have been few constitutional challenges to the Invention Secrecy Act to date, and none that has dislodged or modified the Act.

In 2014, inventors Budimir Damnjanovic and Desanka Damnjanovic filed a lawsuit seeking compensation for a secrecy order that the U.S. Air Force imposed on them. They also argued that the Invention Secrecy Act itself was unconstitutional.

“Because the Patent Secrecy Act prohibits Plaintiffs from speaking of their Invention to third parties, including potential customers, it violates the First Amendment of the Constitution,” their May 14, 2014 complaint stated.

Moreover, “the Patent Secrecy Act has resulted in Plaintiffs being deprived of property without due process and just compensation in violation of the Fifth Amendment.”

The court dismissed the constitutional claim because by that time the secrecy orders had been lifted and therefore, the court determined, the inventors did not have standing to make their constitutional case.

“Plaintiffs’ First Amendment argument fails because the harms they claim they suffered are past injuries. Further, the purported prohibition on speech Plaintiffs allegedly endured is not an ongoing issue, given that the secrecy orders have been lifted,” according to a September 22, 2015 court order. (Damnjanovic v. US Air Force, E.D. of Michigan, S. Div., 14-11920).

Ultimately, however, the parties reached a settlement regarding the compensation issues, and in December 2015 the government agreed to pay the inventors a lump sum of $63,000 to dismiss the case.

For related background, see “Congratulations, Your Genius Patent is Now a Military Secret” by Joshua Brustein, Bloomberg, June 8, 2016.

The Department of Defense published a proposed rule in the Federal Register today on “Withholding of Unclassified Technical Data and Technology From Public Disclosure.”

The rule “is meant to control the transfer of technical data and technology contributing to the military potential of any country or countries, groups, or individuals that could prove detrimental to U.S, national security or critical interests.”

“For the purposes of this regulation, public disclosure of technical data and technology is the same as providing uncontrolled foreign access. This rule instructs DoD employees, contractors, and grantees to ensure unclassified technical data and technology that discloses technology or information with a military or space application may not be exported without authorization and should be controlled and disseminated consistent with U.S. export control laws and regulations.”

The amount of money appropriated for U.S. intelligence increased in 2016 by about 5 percent to a total of $70.7 billion, up from $66.8 billion the year before.

The total includes FY 2016 appropriations for both the National Intelligence Program (NIP) and the Military Intelligence Program (MIP), which were officially disclosed on October 28, as they have been each year since 2007.

Opponents of intelligence budget disclosure had argued for decades that release of the total budget figures would lead inexorably to further uncontrolled disclosures.

In 1976, former Director of Central Intelligence James Schlesinger told the Church Committee that “One of the problems here is the camel’s nose under the edge of the tent, and I think that that is the fundamental problem in the area. There are very few people who can articulately argue that the publication of those [budget] figures in and of themselves, if it stopped there, would be harmful. The argument is that then the pressure would build up to do something else, that once you have published for example the… budget, that the pressures would build up to reveal the kinds of systems that are being bought for that money, and it is regarded as the first step down a slippery slope for those who worry about those kinds of things.”

But that concern about a “slippery slope” appears to have been refuted in practice, and — aside from unauthorized disclosures — additional budget secrets have been effectively preserved.

The Central Intelligence Agency said this week that it will post its database of declassified CIA documents online, making them broadly accessible to all interested users.

The database, known as CREST (for CIA Records Search Tool), contains more than 11 million pages of historical Agency records that have already been declassified and approved for public release.

Currently, however, CREST can only be accessed through computer terminals at the National Archives in College Park, MD. This geographic restriction on availability has been a source of frustration and bafflement to researchers ever since the digital collection was established in 2000. (See CIA’s CREST Leaves Cavity in Public Domain, Secrecy News, April 6, 2009; Inside the CIA’s (Sort of) Secret Document Stash, Mother Jones, April 3, 2009).

But that is finally going to change.

The entire contents of the CREST system will be transferred to the CIA website, said CIA spokesperson Ryan Trapani on Tuesday.

“When loaded on the website they will be full-text searchable and have the same features currently available on the CREST system at NARA,” he said.

CIA was not able to provide a date for completion of the transfer, but “we are moving out on the plan to make the transition,” Mr. Trapani said.

In the meantime, “The CREST database housed at NARA will remain up and running at least until the website is fully functioning,” he said.

“Chemical warfare agents remain a significant and continuing threat to military forces,” according to a newly updated manual jointly issued by the Army, Navy, Air Force and Marine Corps.

Islamic State fighters in Iraq set fire to a chemical factory south of Mosul, Pentagon spokesmen said last week, generating a cloud of sulfur dioxide that passed over a U.S. base in the region. (“Islamic State Burns Sulfur Stocks Near Mosul, Creating Hazard for Troops, Locals,” Wall Street Journal, October 22.)

“Sulfur dioxide is injurious to the eyes and to the respiratory tract, where it acts primarily as a central pulmonary toxicant at low to moderate doses, but may also exhibit peripheral effects (pulmonary edema) at high doses,” explained the newly released manual, which also discussed protection, diagnosis and treatment for SO2 exposure. See Multi-Service Tactics, Techniques and Procedures for Treatment of Chemical Warfare Agent Casualties and Conventional Military Chemical Injuries, ATP 4-02.85, August 2016.

Another new Pentagon publication described the role of the role of the U.S. military in responding to, and mitigating, the effects of unconventional weapons and hazardous materials, whether induced deliberately or accidentally. See Chemical, Biological, Radiological, and Nuclear Response, Joint Publication 3-41, September 9, 2016.