Hobbled by secrecy and timidity, the U.S. intelligence community has been conspicuously absent from efforts to combat the COVID-19 pandemic, the most serious national and global security challenge of our time.

The silence of intelligence today represents a departure from the straightforward approach of then-Director of National Intelligence Dan Coats who offered the clearest public warning of the risk of a pandemic at the annual threat hearing of the Senate Intelligence Committee in January 2019:

“We assess that the United States and the world will remain vulnerable to the next flu pandemic or large-scale outbreak of a contagious disease that could lead to massive rates of death and disability, severely affect the world economy, strain international resources, and increase calls on the United States for support,” DNI Coats testified.

But this year, for the first time in recent memory, the annual threat hearing was canceled, reportedly to avoid conflict between intelligence testimony and White House messaging. Though that seems humiliating to everyone involved, no satisfactory alternative explanation has been provided. The 2020 worldwide threat statement remains classified, according to an ODNI denial of a Freedom of Information Act request for a copy. And intelligence agencies have been reduced to recirculating reminders from the Centers for Disease Control to wash your hands and practice social distancing.

The US intelligence community evidently has nothing useful to say to the nation about the origins of the COVID-19 pandemic, its current spread or anticipated development, its likely impact on other security challenges, its effect on regional conflicts, or its long-term implications for global health.

These are all topics perfectly suited to open source intelligence collection and analysis. But the intelligence community disabled its open source portal last year. And the general public was barred even from that.

It didn’t — and doesn’t — have to be that way.

In 1993, the Federation of American Scientists created an international email network called ProMED — Program for Monitoring Emerging Diseases — which was intended to help discover and provide early warning about new infectious diseases.

Run on a shoestring budget and led by Stephen S. Morse, Barbara Hatch Rosenberg, Jack Woodall and Dorothy Preslar, ProMED was based on the notion that “public intelligence” is not an oxymoron. That is to say, physicians, scientists, researchers, and other members of the public — not just governments — have the need for current threat assessments that can be readily shared, consumed and analyzed. The initiative quickly proved its worth.

In fact, it has continued to prove its worth up to the present day.

“It was notices on ProMED that first alerted the world to the 2003 SARS outbreak, and it was a posting on ProMED on Dec. 30, 2019 — about chatter on the Chinese social network Weibo — that first spread word of a novel coronavirus, soon identified as the cause of COVID-19, outside China.” See “The doomed 30-year battle to stop a pandemic” by Paul Wells, Maclean’s, April 21.

ProMED, which is now managed by the International Society for Infectious Diseases, is unclassified, free, and open to subscription by anyone.

“ProMED illustrates how NGOs can, in some cases, efficiently accomplish what large, bureaucratically burdened institutions cannot even begin,” the FAS Public Interest Report said in 1996.

Today, when national and global security concerns touch almost every household, the need for public intelligence is greater than ever, and it could become one focus of a reconfigured U.S. intelligence apparatus.

There is a bewildering amount of official guidance on the role of the military in circumstances such as the current pandemic. But the practical impact of that guidance, whatever it may be, is unclear. Like the proverbial war plan that cannot survive first contact with the enemy, Pentagon doctrine on infectious disease seems to have been overtaken by events.

“The mission of DOD in a pandemic is to preserve U.S. combat capabilities and readiness and to support U.S. government efforts to save lives, reduce human suffering, and slow the spread of infection,” according to a 2019 Army manual.

To help accomplish that, another military manual offered a “prioritized and tiered [list of] infectious diseases [to] assist the military research community in focusing on the development of vaccine, prophylactic drugs, diagnostic capabilities, and surveillance efforts.”

Pandemic influenza was among the highest priority diseases, posing a “high operational risk,” but unfortunately the intended military research response appears to have lagged.

Who is in charge?

Well, “USNORTHCOM [US Northern Command] exercises coordinating authority for planning of DOD efforts in support of the USG response to pandemic influenza and infectious disease,” says a Pentagon publication (JP 3-40) on Joint Countering Weapons of Mass Destruction.

What is NORTHCOM doing?

“DoD has nearly 11,000 personnel dedicated to COVID-19 operations nation-wide, with nearly 2,500 in the New York City area,” according to an April 10 news release. “DOD is providing expeditionary medical care in several states across the country.”

“NORTHCOM is out there working furiously to carry out its many missions, implementing at least five different operations plans simultaneously,” according to military researcher William M. Arkin.

But “Implementing might be too strong of a word,” he wrote, “because even though these plans run in the hundreds of pages, most are thrown out the window almost as soon as they are taken off the shelf, useful in laying out how things should be organized but otherwise too rigid — or fanciful — to apply to the real world.”

In a new piece, Arkin surveyed 19 operational military plans that in theory govern NORTHCOM activities. Most of them are not publicly available, and some are classified.

“Is there any reason you can imagine that the pandemic response plan shouldn’t be public? Or the plan for Defense Support of Civil Authorities?” Arkin doesn’t think so.

One of the plans he turned up, a 2017 NORTHCOM draft on Pandemic Influenza and Infectious Disease Response, identified what it termed “critical vulnerabilities” including:

“Lack of communication and synchronization among partners and stakeholders, inability or unwillingness to share information / biosurveillance data, limited detection capabilities, and limited laboratory confirmatory testing.”

That particular plan from 2017 “seemingly never went beyond the draft stage,” said Arkin.

General Atomics’ SkyGuardian drone, a non-weaponized variant of the military’s MQ-9 Reaper, last week completed a test flight through civil airspace from Palmdale, California to Yuma, Arizona, the company announced.

The April 3 flight demonstration, sponsored by NASA, marks a further step in the planned integration of drones into the National Airspace System.

General Atomics said the flight test of SkyGuardian, a large unmanned aircraft with a 79-foot wingspan, was intended to demonstrate “the safe and effective integration of the air-to-air radar, [collision avoidance, and other systems] to successfully conduct aerial inspection and surveillance of critical infrastructure. . . .”

“This type of commercial mission has never been done with a UAS anywhere in the United States — it is a first of its kind and will serve as a proof of concept for future, similar commercial UAS missions,” General Atomics added, with some hyperbole, in an FCC license application for the test.

If it was “a first” — because it involved the “commercial” surveillance of critical infrastructure — it was not in itself a huge qualitative advance. Several previous SkyGuardian tests have been conducted in the national airspace system, including a July 2018 flight across the Atlantic from North Dakota to England.

What would have been unprecedented is if the test had occurred over the densely populated area of San Diego, as was originally proposed. That would have required approval from the Federal Aviation Administration.

“If the FAA has given General Atomics approval for them to operate their newest drone over a major metropolitan area, this is one of the last hurdles to military surveillance drones being allowed to operate freely over the entire domestic United States,” said researcher Barry Summers, who has tracked the development of the program.

But as far as can be determined, the original flight path above San Diego was not taken last week.

The FAA has been quite stingy about providing the public with information on drone development, the Government Accountability Office observed recently. “FAA reports limited public information about how test sites’ research relates to the agency’s integration plans. Agency officials told GAO they were wary of sharing more information about the test sites, citing concerns about, among other things, protecting test site users’ proprietary data.”

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Much work remains to be done to understand the potential impact on society of the widespread use of unmanned aerial systems, the National Academies of Sciences said in a recent study.

“Research should be performed to quantify and mitigate noise impacts, including the associated psychoacoustic and health effects. Societal impacts on areas such as privacy, intrusion, public health, environmental aspects, and inequity should also be points of focus for this collaborative research,” the NAS said. See Advancing Aerial Mobility — A National Blueprint, February 19, 2020.

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For now, drone technology is advancing faster than the capacity to regulate it. Privacy is a special concern. “These eyes in the sky could become spies in the sky,” said Rep. Ed Markey at a 2018 Senate hearing on integrating drones into the National Airspace System that was published last month.

“Drones could use facial recognition to identify everyone walking on Main Street and selling that geo-location information to advertisers. It could use plate readers to know everyone who visits a health clinic and selling that sensitive information to insurance companies,” Rep. Markey suggested. In the wake of recent scandals, “the American public wants robust privacy protections, not voluntary guidelines,” he said.

Other critics have similar concerns.

“The surveillance hardware developed for these weapons in conflicts overseas can produce a detailed video record of an entire city,” said researcher Barry Summers. “The database is searchable in real time or at a later date. Meaning, the government would have a permanent record of the movements of millions of innocent Americans. We live in an age where we know that any surveillance capability that can be abused, has been abused.”

The domestic use of drones by the Department of Defense is governed by 2018 guidance issued by then-Secretary of Defense James Mattis.

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The development of drones for civilian applications builds upon, and remains coupled to, military drone operations.

SkyGuardian itself, like the MQ-9 Reaper, is derived from the Predator drone. Today, SkyGuardian drones are being actively marketed to the UK Royal Air Force, as well as Belgian Defense and the Australian Defense Force.

A Government Accountability Office report noted that at least one UAS manufacturer that is flying aircraft at FAA national test sites has its eye on foreign military markets. “One user we met with is developing a large UAS with surveillance and other capabilities to be used solely for military purposes abroad,” GAO said. The user was not identified in the GAO report.

The task of the military historian differs from that of the academic historian because military history has an operational dimension. It is supposed to help inform current military operations with the lessons and the perspectives of the past.

“The historian must always bear in mind that the whole purpose of the history office is to help the warfighter by serving as an advisor and presenting critical documentation when needed,” according to a new US Air Force Handbook on the subject. “The mission drives what is important for the historian, not the historian’s particular interest. ”

The military historian also is responsible for identifying and assembling the raw materials of future scholarship. Contrary to what “many new historians may incorrectly assume, documentation will not automatically arrive in the office. The historian must seek it.” See Aerospace Historian Operations in Peace and War, Air Force Handbook 84-106, April 2, 2020.

But operationally, history can only do so much.

“Military history does not produce solutions for problems and does [not] guarantee success on the battlefield,” an Army manual on the subject explains. “An approach with these goals leads to frustration and biased or inaccurate history.”

“Rather, military history affords an understanding of the dynamics to shape the present and enables Soldiers the perspective of viewing current and future problems with ideas of how similar challenges were confronted in the past. . .  If history rarely provides concrete answers, it offers insight and understanding.”

“Historians know that Army history records triumphs, challenges, and failures. Army historians do not judge operations and actions; they seek to tell the full story so that others learn from it.” See Military History Operations, ATP 1-20, US Army, June 2014.

Updated below

The Department of Defense is quietly asking Congress to rescind the requirement to produce an unclassified version of the Future Years Defense Program (FYDP) database.

Preparation of the unclassified FYDP, which provides estimates of defense spending for the next five years, has been required by law since 1989 (10 USC 221) and has become an integral part of the defense budget process.

But the Pentagon said that it should no longer have to offer such information in an unclassified format, according to a DoD legislative proposal for the pending FY 2021 national defense authorization act.

“The Department is concerned that attempting publication of unclassified FYDP data might inadvertently reveal sensitive information,” the Pentagon said in its March 6, 2020 proposal.

“With the ready availability of data mining tools and techniques, and the large volume of data on the Department’s operations and resources already available in the public domain, additional unclassified FYDP data, if it were released, potentially allows adversaries to derive sensitive information by compilation about the Department’s weapons development, force structure, and strategic plans.”

Therefore, DoD said, “This proposal would remove the statutory requirement to submit an Unclassified Future Years Defense Program (FYDP) to the Congress, the Congressional Budget Office, the Comptroller General of the United States, and the Congressional Research Service.” It follows that FYDP data would also not be included in the published DoD budget request, as it typically has been in the past.

The DoD proposal would preserve a classified FYDP for Congress but it would repeal the requirement that DoD officials “certify that the data used to construct the FYDP is accurate.” DoD said that “This requirement is unnecessary as information from these systems is already used to provide the President’s Budget.”

The unclassified FYDP helps inform budget analysis

At a time when it is clear to everyone that US national security spending is poorly aligned with actual threats to the nation, the DoD proposal would make it even harder for Congress and the public to refocus and reconstruct the defense budget.

Without an unclassified FYDP, Congress and the public would be deprived of unclassified analyses like “Long-Term Implications of the 2020 Future Years Defense Program” produced last year by the Congressional Budget Office. Other public reporting by GAO, CRS, the news media and independent analysts concerning the FYDP and future defense spending would also be undermined.

Some information in the FYDP — such as projected intelligence spending — has always been deemed sensitive enough that it can be classified.

But most information in the FYDP is unclassified and is properly the subject of public oversight. So, for example, the recent FY2021 defense budget request for military construction includes an “FY21 FYDP Project List” identifying numerous proposed construction projects across the country and around the world that are anticipated through 2025.

DoD no longer publishes its legislative proposals

Until two years ago, DoD published its legislative proposals to Congress on the website of the DoD General Counsel. (The proposals for FY 2019 are still online.) But that is no longer the case. As part of a broader retreat from public oversight and accountability, the Pentagon today does not make its legislative proposals easily accessible to the public.

A copy of the current package of DoD legislative proposals through March 6, 2020 was obtained by Secrecy News. A complete tabulation of the dozens of specific proposals is available here. A section-by-section description of all of the proposals is here.

Among the current batch is a proposed exemption from the Freedom of Information Act for certain unclassified documents concerning military tactics, techniques, or procedures.

That very same proposed FOIA exemption has previously been rejected by Congress on at least four prior occasions. So legislative approval of such requests is not necessarily a foregone conclusion.

Late last week, the House Armed Services Committee filed a preliminary version of the FY21 defense authorization act (HR 6395) based on the DoD legislative proposals. “When the Committee meets to consider the FY21 NDAA, the content of H.R. 6395 will be struck and replaced with subcommittee and full committee proposals,” according to a March 27 news release.

Update 1: On March 31, DoD posted its legislative proposals for the FY 21 defense authorization act.

Update 2: A DoD spokesman said the Pentagon’s proposal was not intended to limit public access to all future year spending data. “There will be no reduction in any currently provided information,” the spokesman said. See Pentagon denies it seeks to hide future budget information by Aaron Mehta, Defense News, April 3, 2020.

In principle, the COVID-19 outbreak could provide a compelling new justification for expediting the processing of certain Freedom of Information Act requests related to the pandemic. But it is more likely to slow down the handling of most requests as agency employees work remotely and other concerns are understandably prioritized.

The impact of COVID-19 was surveyed by the Congressional Research Service in Freedom of Information Act (FOIA) Processing Changes Due to COVID-19: In Brief, March 27, 2020.

Other noteworthy new and updated reports from CRS include:

U.S. Role in the World: Background and Issues for Congress, updated March 27, 2020

The Employment-Based Immigration Backlog, March 26, 2020

Demographic and Social Characteristics of Persons in Poverty: 2018, March 26, 2020

Occupational Safety and Health Administration (OSHA): Emergency Temporary Standards (ETS) and COVID-19, March 26, 2020

Arms Control and Nonproliferation: A Catalog of Treaties and Agreements, updated March 26, 2020

Congressional Use of Advisory Commissions Following Crises, CRS In Focus, March 25, 2020

New resources from the Congressional Research Service add some depth to current news reporting on how the COVID-19 outbreak is affecting — and being addressed by — US policy.

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COVID-19: Cybercrime Opportunities and Law Enforcement Response

“Officials have reported criminals using public interest in COVID-19 to their advantage. For instance, the Department of Justice (DOJ) cites “reports of individuals and businesses selling fake cures for COVID-19 online and engaging in other forms of fraud, reports of phishing emails from entities posing as the World Health Organization or the Centers for Disease Control and Prevention, and reports of malware being inserted onto mobile apps designed to track the spread of the virus.”

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COVID-19 and Passenger Airline Travel

“Curtailing infectious disease spread through airline travel is challenging, in part because the passenger airline system in the United States is highly concentrated around 30 large hub airports, with tens of thousands of passengers passing through each of these airports every day.

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Federal Reserve: Recent Actions in Response to COVID-19

“The Federal Reserve has taken a number of steps to promote economic and financial stability involving the Fed’s monetary policy and “lender of last resort” roles. Some of these actions are intended to stimulate economic activity by reducing interest rates and others are intended to provide liquidity to financial markets so that firms have access to needed funding.”

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Federal Assistance to Troubled Industries: Selected Examples

“This report examines selected past instances in which the government has aided troubled industries, providing information about the way in which such assistance was structured, the role of Congress, and the eventual cost.”

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COVID-19 and Direct Payments to Individuals: Historical Precedents

“There are historical precedents for such payments; most of these were done through the federal income tax code. The Internal Revenue Service (IRS) sent checks to taxpayers in 1975, 2001, and 2008.”

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Coronavirus Disease 2019 (COVID-19) Poses Challenges for the U.S. Blood Supply

“Immediate risk of blood supply collapse due to the COVID-19 outbreak is currently limited to the Pacific Northwest. However, blood drives may potentially be cancelled in other areas of the country as containment and mitigation strategies increase, which may lead to blood supply shortages in additional areas.”

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COVID-19: Current Travel Restrictions and Quarantine Measures

“To date, the federal government has taken two key actions to deter persons with suspected COVID-19 infection from entering the country or spreading the virus to persons within the United States. First, the federal government has restricted the entry of many non-U.S. nationals (aliens) who recently have been physically present in mainland China, Iran, or much of Europe. Second, the federal government has imposed a quarantine requirement on all persons entering the United States, regardless of citizenship status, who have recently been to those areas. This Legal Sidebar examines the legal authorities underlying these actions, as well as possible legal challenges to their use.”

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Global Economic Effects of COVID-19: In Brief

“Policymakers are being overwhelmed by the quickly changing nature of the crisis that has compounded a health issue with what could become a global trade and economic crisis whose potential effects on the global economy are rapidly growing.”

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Postponing Federal Elections and the COVID-19 Pandemic: Legal Considerations

“This Sidebar reviews the legal provisions that would constrain any efforts to delay or cancel federal elections during a public health crisis or other national emergency. The first part reviews laws pertaining to presidential elections, and the second part reviews laws relevant to congressional elections.”

Earlier this month the Department of Defense acknowledged that it has recently begun to deploy low-yield nuclear warheads on certain submarine ballistic missiles.

“This supplemental capability strengthens deterrence. . . and demonstrates to potential adversaries that there is no advantage to limited nuclear employment because the United States can credibly and decisively respond to any threat scenario,” DoD said in a February 4, 2020 news release.

The notion that multiplying and diversifying the options for using nuclear weapons is the best way to deter their use by others has long been at the foundation of U.S. nuclear policy. Yet to a large extent it is built on wishful thinking and flimsy assumptions that can hardly stand common sense scrutiny.

The origins and development of the theory of nuclear war are illuminated with new clarity in Fred Kaplan’s new book The Bomb: Presidents, General, and the Secret History of Nuclear War. Based on interviews with many of the principals and on thousands of pages of declassified documents, Kaplan retells the story of how each Administration in the nuclear era has tried to manage the threat of nuclear war.

And like many significant works of history, his book also casts new light on the present.

Deterrence is an effort to affect the thinking of an adversary in order to discourage a resort to nuclear weapons. As such, the very concept of deterrence “is as much a psychological as a military problem,” wrote Henry Kissinger more than half a century ago (Kaplan, p. 104).

But U.S. nuclear deterrence policy shows little evidence of psychological acumen or insight. It assumes linearly that any perceived threat is best countered by a comparable, corresponding threat (so U.S. low-yield nuclear weapons are needed in order to deter Russian low-yield nuclear weapons, etc.). It does not consider the possibility that different foreign leaders — or totally different cultures — might be deterred in different ways, or not at all. It promotes the dangerous but seductive belief that larger nuclear arsenals confer greater “strength” and decisiveness. And so on.

Meanwhile, U.S. officials — who nowadays can hardly communicate effectively even with allies — think that they are sending meaningful deterrent signals to foreign adversaries. But these signals have often been lost or garbled in transmission.

“Americans put forces on alert so often that it is hard to know what it meant,” said Soviet foreign minister Andrei Gromyko in 1973 (Kaplan, p. 108).

Instead of resting on solid intelligence and empirical data — which are naturally hard to come by — nuclear policy has often been based on “hunches,” strongly held opinions, bureaucratic politics, inter-service rivalry, and serendipity.

During the Obama years, Kaplan writes, the question arose whether to officially endorse the policy of “no first use” of nuclear weapons. At a White House meeting, science advisor John Holdren not only advocated no first use, but also no second use, arguing that modern conventional weapons would be fully adequate to respond to an initial nuclear strike in most scenarios. This assertion infuriated Defense Secretary Ashton Carter, who “snapped back, red-faced, yelling” (p. 253). Carter’s anger was more likely an indication of the intensity of his feeling than the cogency of his position. But his view prevailed then, and now.

All of this would simply be a fascinating puzzle for political scientists if it were not also extremely dangerous and prohibitively expensive. Furthermore, the nuclear weapons enterprise entails tremendous opportunity costs that will make it difficult or impossible to meet other urgent national and global challenges.

But “absent some transformation in global politics,” Kaplan writes (p. 298), “an upheaval so immense that it can hardly be imagined, the bomb will always be with us, looming over everything.”

Such a transformation or upheaval may yet emerge. Even if it doesn’t there is plenty that could be done to limit and reduce the threat of nuclear war — including extension of the New START nuclear arms reduction treaty that will expire in 2021. But that would require the sort of vision and leadership that are in short supply at the moment.

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Deterrence “sounds tough and smart, even though, in many circumstances, nobody is really sure how it could ever work,” wrote Amy Zegart in The Atlantic last month. “It has become a hazy, ill-formed shorthand policy that consists of ‘stopping bad guys from doing bad things without actually going to war, somehow’.”

“Deterrence isn’t a useless idea,” she wrote. “But it’s not magic fairy dust, either.”

“History shows that deterrence has been useful only under very specific conditions. In the Cold War, mutual assured destruction was very good at preventing one outcome: total nuclear war that could kill hundreds of millions of people. But nuclear deterrence did not prevent the Soviets’ other bad behavior, including invading Hungary, Czechoslovakia, and Afghanistan. The key Cold War takeaway isn’t that policy makers should use deterrence more. It’s that some things are not deterrable, no matter how much we wish them to be.”

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Why did arms control advocates criticize the Trump Administration for withdrawing from the 1987 Intermediate-Range Nuclear Forces Treaty even after Russia had violated the Treaty by conducting a test of an intermediate range cruise missile?

According to a rather disconcerting speech last week by State Department Assistant Secretary Christopher Ford, the criticism was rooted in a “pathology” within the arms control community. As Ford sees it, those who believe that the U.S. should have adhered to the Treaty despite the Russian violations are indifferent to facts, unconcerned with actual security issues, and blindly devoted to “an identity politics of virtue signaling, progressive solidarity, and consciousness-raising against retrograde mindsets.”

Other, better explanations are possible. According to Kaplan, “withdrawing from the treaty gave the Russians what they wanted. The Russian military had abhorred the INF Treaty from the moment that Gorbachev [and Reagan] signed it.”

“Killing the treaty would help only the Russians, giving them free rein to build as many of these weapons as they like and to blame the breakdown on the Americans, while doing nothing for the West.” (p. 293)

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There are now “mountains” of declassified records on nuclear issues at the National Archives and the presidential libraries, including those which helped inform Kaplan’s The Bomb.

“These institutions are invaluable for the preservation of our history and democracy,” he wrote, “and their underfunding in recent years is shameful.” (p. 300)

While the Trump Administration has retreated from negotiated arms control agreements in many areas ranging from nuclear weapons to anti-personnel landmines, the US is still committed to the Chemical Weapons Convention (CWC), which generally prohibits the production and use of chemical weapons.

Last week the State Department certified to Congress — as a required condition of continued US participation in the CWC — that the consortium of CWC member countries known as the Australia Group “remains a viable mechanism for limiting the spread of chemical and biological weapons-related materials and technology.”

“Australia Group members continue to maintain controls over the export of toxic chemicals and their precursors, dual-use processing equipment, human, animal, and plant pathogens and toxins with potential biological weapons applications, and dual-use biological equipment…,” wrote Christopher A. Ford, Assistant Secretary of State for International Security and Non-Proliferation.

“The United States remains fully committed to complete destruction of its entire [chemical weapons] stockpile, consistent with the Convention’s imperatives of public safety, environmental protection, and international transparency and oversight,” according to the State Department’s August 2019 report on Arms Control Compliance.

So far, over 90 percent of the total U.S. chemical weapons stockpile has been destroyed, mostly by chemically neutralizing the weapons, but also partly through controlled detonations.

As noted in the latest annual report on the U.S. Chemical Demilitarization Program, there were 19 reported incidents of chemical weapon agents leaking in 2019, though the Army said that no public exposure resulted.

The report said that the Department of Defense “expects to complete destruction operations by December 31, 2023,” which is the deadline set by Congress.

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

History, Evolution, and Practices of the President’s State of the Union Address: Frequently Asked Questions, updated January 29, 2020

The United Nations Framework Convention on Climate Change, the Kyoto Protocol, and the Paris Agreement: A Summary, January 29, 2020

The Washington Post’s “Afghanistan Papers” and U.S. Policy: Main Points and Possible Questions for Congress, January 28, 2020

Solar Energy: Frequently Asked Questions, January 27, 2020

Challenges to the United States in Space, CRS In Focus, updated January 27, 2020

Instances of Use of United States Armed Forces Abroad, 1798-2020, updated January 13, 2020

National Emergency Powers, updated December 5, 2019

Diplomacy with North Korea: A Status Report, CRS In Focus, January 22, 2020

The U.S. Nuclear Weapons Complex: Overview of Department of Energy Sites, updated February 3, 2020

Presidential Pardons: Overview and Selected Legal Issues, January 14, 2020

Congressional Oversight Manual, updated January 16, 2020

Congress adopted numerous new disclosure and reporting requirements in the government spending bill that was signed into law last week. But the Trump White House said that many of them encroach on executive authority and that they may not be implemented as written.

Several provisions of the FY2020 Consolidated Appropriations Act “purport to mandate or regulate the submission of certain executive branch information to the Congress or the public, including by mandating the declassification of certain information,” the White House said in a December 20 signing statement.

“My Administration will treat these provisions consistent with the President’s constitutional authority to control the disclosure of information that could impair foreign relations, national security, law enforcement, the deliberative processes of the executive branch, or the performance of the President’s constitutional duties,” the statement said.

Among the provisions that the White House specifically objected to was a requirement to declassify information regarding Saudi government assistance to Saudi nationals in the U.S. suspected of committing crimes (HR 1865, Sect. 902). That provision, introduced by Sen. Ron Wyden, had passed the Senate by voice vote and was incorporated in the final legislation (with an added exemption for intelligence sources and methods). Now it is unclear whether it will be acted upon at all.

The Trump White House expressed criticism not only of declassification and other public disclosure requirements. It also took exception to dozens of provisions that involve sharing information with Congress, even on a classified basis.

Thus, a provision in the FY2020 defense authorization act (S. 1790, section 1650) directs the President to allow congressional defense committees to review (but not retain) classified National Security Presidential Memorandums on DoD operations in cyberspace. After being read at a secure facility, the classified documents are to be collected and returned to the President, the legislation stated.

No, said the White House.

This and other provisions on sharing of information “purport to mandate or regulate the dissemination of information that may be protected by executive privilege, including by interfering with Presidential control of the process for making a determination that information is protected,” according to another December 20 signing statement.

“My Administration will treat these provisions consistent with the President’s constitutional authority to control information, the disclosure of which could impair national security, foreign relations, law enforcement, or the performance of the President’s constitutional duties.”

The obvious defect in the White House posture is that Congress has constitutional duties of its own. Many of these duties require congressional access to information that is in the possession of the executive branch. Congress must fund (or decline to fund) the national security operations of the government. It alone possesses the authority to declare war. It has a duty to perform oversight. Importantly, it also has tools at its disposal to compel disclosure of the information it needs.

While the latest White House signing statements convey a rhetorical sense of defiance, they do not by themselves defy or modify the law. But neither do they do anything to advance a resolution of the competing interests at stake.

The significance of signing statements was considered in a 2012 report by the Congressional Research Service. See Presidential Signing Statements: Constitutional and Institutional Implications, January 4, 2012.

Many of the hundreds or thousands of reports that are submitted to Congress by executive branch agencies each year may be published online pursuant to a provision in the new Consolidated Appropriations Act (HR 1158, section 8092).

That provision states that any agency that is funded by the Act shall post on its website any report to Congress “upon the determination by the head of the agency that it shall serve the national interest.”

The impact of the latter condition is unclear, particularly since no criteria for satisfying the national interest are defined. In any case, reports containing classified or proprietary information would be exempt from publication online, and publication of all reports would be deferred for at least 45 days after their receipt by Congress, diminishing their relevance, timeliness and news value.

Reports to Congress often contain new information and perspectives but they are an under-utilized resource particularly because they are not readily available.

Some otherwise unpublished 2019 reports address, for example, DoD use of open burn pits, political boycotts of Israel, and the financial cost of war post-9/11.

The newly enacted FY2020 national defense authorization act alone includes hundreds of new, renewed, or modified reporting requirements, according to an unofficial tabulation.