“In less than 20 years, the entire nature of Member-constituent communication has been transformed, perhaps more than in any other period in American history,” observes a new report from the Congressional Research Service.

Congressional offices now receive hundreds of millions of electronic communications from constituents each year, vastly more than they ever did using postal mail or other traditional forms of messaging. One result is a change in “the nature of [political] representation in the United States, as Members can more easily engage wider political and policy constituencies, in addition to their core interactions with their geographic constituencies,” CRS said.

See Social Media in Congress: The Impact of Electronic Media on Member Communications, May 26, 2016.

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

Security Assistance and Cooperation: Shared Responsibility of the Departments of State and Defense, updated May 26, 2016

TPP Financial Services Data Flows, CRS Insight, June 3, 2016

India-U.S. Relations and the Visit of Prime Minister Modi, CRS Insight, June 6, 2016

FinCEN Seeks Shell-Company Transparency, CRS Legal Sidebar, June 7, 2016

A Retrospective of House Rules Changes Since the 110th Congress, updated June 7, 2016

Disaster Unemployment Assistance (DUA), updated June 6, 2016

Financial Aid for Students: Online Resources, updated June 3, 2016

Federal Inspectors General: History, Characteristics, and Recent Congressional Actions, updated June 2, 2016

Congress is poised to reject the budget request sought by the Congressional Research Service for the coming fiscal year, with foreseeable consequences.

“What would be the consequences of a flat budget?” asked CRS director Dr. Mary Mazanec at a March 1 hearing of the House Appropriations Committee.  “If CRS capacities are not maintained, gap areas will intensify. Right now we have a gap due to an unanticipated departure in Russian and Ukrainian foreign policy. In these areas, as gaps develop, we cannot always immediately backfill, which means it becomes a challenge for us to produce the highly analytical, nuanced work that you expect of us.”

“I can almost state with 100 percent assurance that timelines will increase, especially in the areas that are high volume: education, health care, defense, appropriations, and budget. Analysts will be challenged to update and maintain the currency of their reports.”

“And finally, one more thing. I don’t think we will be able to effectively leverage the vast amount of data that is currently being collected to better inform the work that you expect of us,” Dr. Mazanec testified.

“Public trust and confidence in the Intelligence Community have been seriously undermined by disclosures of activities in the past that were illegal, injudicious or otherwise improper by today’s standards,” according to a 1977 interagency memorandum circulated by National Security Advisor Zbigniew Brzezinski.

“Moreover, many disillusioned persons who have come to believe the worst of their government tend to accept at face value exaggerated imputations of impropriety to legitimate foreign intelligence activities. In some quarters there is a persistent belief that U.S. foreign intelligence activities have still not been brought under adequate control. Clearly the Intelligence Community must earn wider acceptance of its legitimacy and role within our democratic form of government if a viable U.S. foreign intelligence effort is to be sustained over the longer term.”

These observations were included in an impressive collection of declassified documents on intelligence reform in the Jimmy Carter administration that was published by the State Department yesterday as part of a new volume of the Foreign Relations of the United States series (Organization and Management of Foreign Policy: 1977-80, volume 28).

The 365-page section on Intelligence Policy and Reform presents often-candid discussion of topics such as: the role and authority of the Director of Central Intelligence, the perennial problem of leaks of classified information, the vexed relations between ambassadors and CIA chiefs of station abroad, covert action, the role of PFIAB and the Intelligence Oversight Board, and more. While some of the documents have appeared previously, many of them were declassified for this volume in 2012-2014.

A few samples:

A 1977 memorandum from CIA General Counsel Anthony Lapham stated that when it comes to prosecuting leaks of classified information to the press, “It is extremely doubtful that the provisions [of the Espionage Act] were intended to have application in such situations, and as a matter of historical fact, leaving aside the unsuccessful Ellsberg prosecution and possibly one or two other cases, they never have been so applied.”

Moreover, added Lapham, “Under current Justice Department procedures, unauthorized disclosures of national security information, in other than espionage situations, are almost never even investigated, let alone prosecuted.”

“It seems to us that the universe of classified information is quite simply too large, and encompasses such a great variety of material of so many different degrees of importance to the national security, as to make impractical the idea of extending criminal sanctions to the unauthorized disclosure of all such information,” he wrote (document 34, pp. 156, 159).

*

In one particularly thoughtful and reflective document in the new collection, NSC staffer Paul Henze observed: “While we now enjoy nearly real-time photography from satellites [less than 1 line not declassified] we are not much closer than we were thirty years ago to knowing what goes on in the minds of the top men in Moscow or Madrid, Peking, Algeria or Brasilia, what Arab leaders say to each other when they get together or how French elections are going to come out.”

“CIA greeted the Carter Administration with a keen expectation that with new leadership it would leave behind a period of strain and controversy and be able to rebuild its own capabilities and redirect its energies to real USG priorities. . . . Eight months later all this sense of excitement and optimism has dissipated. The prevailing mood of CIA, both on the operational and analytical sides of the agency is apprehension, depression, frustration,” Henze wrote (document 63 at p. 321).

*

In a remarkable 1978 memorandum “On the Psychology of President Power,” National Security Advisor Brzezinski advised President Carter that he should demonstrate a capacity for irrational and impulsive behavior (document 13, page 45).

“I suspect that an impression has developed that the Administration (and you personally) operates very cerebrally, quite unemotionally. In most instances this is an advantage; however, occasionally emotion and even a touch of irrationality can be an asset. Those who wish to take advantage of us ought to fear that, at some point, we might act unpredictably, in anger, and decisively. If they do not feel this way, they will calculate that simply pressing, probing, or delaying will serve their ends. I see this quite clearly in [Israeli prime minister Menachem] Begin’s behavior, and I suspect that Brezhnev is beginning to act similarly.”

“This is why I think the time may be right for you to pick some controversial subject on which you will deliberately choose to act with a degree of anger and even roughness, designed to have a shock effect,” Brzezinski suggested.

According to the new book “Jimmy Carter in Africa: Race and the Cold War” by Nancy Mitchell of North Carolina State University, this advice was prompted by Brzezinski’s alarm at the scale of Soviet and Cuban intervention in Ethiopia.

“On March 18, 2016, the United States and the Republic of the Philippines announced the selection of five military sites that will host a rotation of U.S. military units. This marks the first time that U.S. units will be welcomed by the Republic on regularly scheduled visits since the last permanent garrisons were withdrawn in 1992,” according to a new brief from the Congressional Research Service. For background on the move, see DOD’s Rotation to the Philippines, CRS Insight, May 31, 2016.

Other new or newly updated CRS reports include the following.

A Shift in the International Security Environment: Potential Implications for Defense–Issues for Congress, updated May 31, 2016

Intellectual Property Rights Violations: Federal Civil Remedies and Criminal Penalties Related to Copyrights, Trademarks, Patents, and Trade Secrets, updated May 27, 2016

An Overview of Air Quality Issues in Natural Gas Systems, updated June 1, 2016

Changes in the Arctic: Background and Issues for Congress, updated May 31, 2016

Coast Guard Polar Icebreaker Modernization: Background and Issues for Congress, updated May 27, 2016

Constitutional Limits to Agency Independence, CRS Legal Sidebar, June 1, 2016

The Central Intelligence Agency said that it will disclose four previously unacknowledged Cold War covert actions. The four have not yet been publicly identified, but they will be addressed in forthcoming editions of the U.S. State Department’s official Foreign Relations of the United States (FRUS) series.

“In 2015 [CIA] agreed to acknowledge four covert actions that will be documented in future volumes (of FRUS),” according to a new annual report from the State Department Advisory Committee on Historical Diplomatic Documentation for calendar year 2015.

CIA spokesperson Ryan Trapani declined to say what those four covert actions are.

“CA [covert action] programs are not officially declassified until done so by FRUS, so you have to wait for its formal announcement,” Mr. Trapani said by email.

The FRUS series has been a significant driver of the national security declassification program, particularly since a 1991 statute required that FRUS must present a “thorough, accurate, and reliable” documentary history of U.S. foreign relations — which necessarily includes information that was classified at the time — within 30 years of the events in question.

The State Department has never yet complied with that 30 year deadline, but the new Advisory Committee report indicates the situation is improving. “It is likely that HO [the State Department Office of the Historian] will finally meet its statutory thirty-year timeline as it publishes more volumes in the Reagan administration series over the next few years.”

The Committee report was complimentary towards the CIA, citing “the very positive relationship HO has developed with CIA over the past several years [which] has paid dividends. CIA consistently reviews both specific documents and compiled volumes in a timely manner….”

“Nevertheless, the frequent reliance on covert actions in the Reagan and subsequent administrations will doubtless require lengthy declassification processes that will inevitably delay publication of a significant number of volumes beyond the 30-year target,” the report said.

One specific area of disappointment is the failure to release the long-deferred FRUS volume on the 1953 coup in Iran.

“Owing to the currently volatile relationship between the United States and Iran…, the State Department continues to withhold its approval for publishing the eagerly anticipated retrospective volume on Iran 1953,” the Committee report noted.

The status of the Iran volume is expected to be on the agenda of the upcoming meeting of the State Department Advisory Committee on June 6.

Most public controversy concerning the Congressional Research Service revolves around the question of whether Congress should authorize CRS to make its reports publicly available, or whether unauthorized access to CRS reports is a satisfactory alternative.

But a more urgent question is whether CRS itself will survive as a center of intellectual and analytical vitality. Already many of its most deeply knowledgeable and experienced specialists have been lost to retirement or attrition. And recurring budget shortfalls are taking a toll, say congressional supporters.

“According to CRS, recent funding levels have led to a loss of 13 percent of its purchasing power since 2010. The $1 million increase [proposed in the House version of the FY2017 Legislative Appropriations Act] will not even cover mandatory pay for CRS’ current staff,” wrote Reps. Nita Lowey and Debbie Wasserman Schultz in dissenting views attached to the House Appropriations Committee report on the FY 2017 bill.

“CRS’s [FY2017] budget request sought to rebuild the agency. They asked for two defense policy staff, five health policy staff, three education policy staff, two budget/appropriations staff, four technology policy staff, and two data management and analysis staff. None of those staff would be funded under the current bill, depriving Congress of a non-biased analysis of these critical policy areas,” Reps. Lowey and Wasserman Schultz wrote.

New and updated reports from the Congressional Research Service last week included the following.

OSHA Rule Makes Workplace Injury and Illness Data Publicly Available, CRS Legal Sidebar, May 25, 2016

Status of the Ebola Outbreak in West Africa: Overview and Issues for Congress, May 25, 2016

Navy Lasers, Railgun, and Hypervelocity Projectile: Background and Issues for Congress, updated May 25, 2016

Navy Aegis Ballistic Missile Defense (BMD) Program: Background and Issues for Congress, updated May 26, 2016

Fact Sheet: FY2017 National Defense Authorization Act (NDAA) DOD Reform Proposals, May 25, 2016

Navy Irregular Warfare and Counterterrorism Operations: Background and Issues for Congress, updated May 25, 2016

Taliban Leadership Succession, CRS Insight, May 26, 2016

Who is a “Veteran”? — Basic Eligibility for Veterans’ Benefits, updated May 25, 2016

Military Funeral Honors for Veterans, May 25, 2016

In April 2015, President Obama issued Executive Order 13694 declaring a national emergency to deal with the threat of hostile cyber activity against the United States.

But six months later, the emergency powers that he invoked to punish offenders had still not been used because no qualifying targets were identified, according to a newly released Treasury Department report.

In a White House statement coinciding with the release of last year’s Executive Order, the President said that “Cyber threats pose one of the most serious economic and national security challenges to the United States, and my Administration is pursuing a comprehensive strategy to confront them….  This Executive Order offers a targeted tool for countering the most significant cyber threats that we face.”

The Executive Order authorized the Secretary of the Treasury “to impose sanctions on individuals or entities that engage in malicious cyber-enabled activities that create a significant threat to the national security, foreign policy, or economic health or financial stability of the United States.”

But although the criminal justice system has produced indictments against suspected Chinese and Iranian hackers, the President’s cyber “emergency” regime has not yielded any comparable results.

In the first periodic report on the implementation of the order, Treasury Secretary Jacob J. Lew said that “No entities or individuals have been designated pursuant to E.O. 13694.” Accordingly, the Department of the Treasury took no punitive licensing actions, and it assessed no monetary penalties, Secretary Lew wrote.

A copy of the Treasury report was obtained through the Freedom of Information Act. See Periodic Report on the National Emergency With Respect to Significant Malicious Cyber-Enabled Activities, October 1, 2015.

Even though it generated no policy outputs, implementation of the executive order nevertheless incurred costs of “approximately $760,000, most of which represent wage and salary costs for federal personnel,” the Treasury report said.

Unbeknownst to most people, there are typically multiple “national emergencies” in progress at any given time. A helpful introduction to the subject was prepared by then-CRS specialist Harold C. Relyea a decade ago.

By invoking emergency powers derived from the Constitution or from statutory law, Relyea wrote, “the President may seize property, organize and control the means of production, seize commodities, assign military forces abroad, institute martial law, seize and control all transportation and communication, regulate the operation of private enterprise, restrict travel, and, in a variety of ways, control the lives of United States citizens. [However], Congress may modify, rescind, or render dormant such delegated emergency authority.” See National Emergency Powers, updated August 30, 2007.

One other ongoing “emergency” pertains to North Korea. A Treasury Department Periodic Report on the National Emergency With Respect to North Korea, dated May 21, 2015, reveals that five financial transactions involving North Korean agents or interests — and totaling $23,200 — were blocked by executive order between December 2014 and April 2015. That’s an increase from $17,600 during the previous reporting period.

Current and former intelligence community employees (as well as some other government employees) are obliged to submit their writings for official review prior to publication in order to screen them for classified information. This is often an onerous, time-consuming and frustrating process. It sometimes appears to authors to be conducted in bad faith.

The House Permanent Select Committee on Intelligence has instructed the Director of National Intelligence to prepare a new, IC-wide pre-publication review policy that will “yield timely, reasoned, and impartial decisions that are subject to appeal.”

In its new report on the FY2017 intelligence authorization act, the Committee said it “is concerned that current and former IC personnel have published written material without completing mandatory pre-publication review procedures or have rejected changes required by the review process, resulting in the publication of classified information.”

“The Committee is also aware of the perception that the pre-publication review process can be unfair, untimely, and unduly onerous and that these burdens may be at least partially responsible for some individuals ‘opting out’ of the mandatory review process.”

The Committee therefore directed the DNI to develop a uniform new policy that clearly sets forth what kinds of materials must be reviewed, with guidance for conducting and completing the review in a timely manner, and with a prompt and transparent appeal process.

The pre-publication review process was critiqued recently by Jack Goldsmith and Oona A. Hathaway in the Washington Post (The Government’s Prepublication Review Process is Broken, December 25, 2015) and in Just Security (The Scope of the Prepublication Review Problem, and What to Do About It, December 30, 2015). I also commented in Just Security (Fixing Pre-Publication Review: What Should Be Done?, January 15, 2016).

The new requirement “to improve the timeliness and fairness of the prepublication review process throughout the IC” was introduced by Rep. Jim Himes (D-CT), a member of the House Intelligence Committee. The FY2017 intelligence authorization act was approved by the full House of Representatives yesterday following floor speeches on May 23.

New and updated reports from the Congressional Research Service that have not been made publicly available online include the following.

The Federal Prison Population Buildup: Options for Congress, May 20, 2016

Zika Response Funding: Request and Congressional Action, May 20, 2016

Pay Equity: Legislative and Legal Developments, May 20, 2016

The Comprehensive Addiction and Recovery Act of 2016 (S. 524): Comparison of Senate- and House-Passed Versions, May 23, 2016

FHFA’s Administrative Reform of Fannie Mae, Freddie Mac, and the Housing Finance System, May 23, 2016

DOT’s Federal Pipeline Safety Program: Background and Key Issues for Congress, May 20, 2016

Treasury Issues White Paper on Fintech and Marketplace Lending, CRS Insight, May 20, 2016

United States Lifts Remaining Restrictions on Arms Sales to Vietnam, CRS Insight, May 23, 2016

U.S.-Vietnam Economic and Trade Relations: Issues for the 114th Congress, May 20, 2016

Honduras: Background and U.S. Relations, May 23, 2016

A Resurgence of Unaccompanied Alien Children?, CRS Insight, May 20, 2016

Navy Force Structure and Shipbuilding Plans: Background and Issues for Congress, May 23, 2016

Navy Virginia (SSN-774) Class Attack Submarine Procurement: Background and Issues for Congress, May 20, 2016

Navy DDG-51 and DDG-1000 Destroyer Programs: Background and Issues for Congress, May 20, 2016

Navy Littoral Combat Ship (LCS)/Frigate Program: Background and Issues for Congress, May 20, 2016

Navy Ohio Replacement (SSBN[X]) Ballistic Missile Submarine Program: Background and Issues for Congress, May 20, 2016

A definitive accounting of the number of lawsuits in which the U.S. Government has invoked the state secrets privilege cannot be provided because some of those cases may be too sensitive to acknowledge or disclose, the Department of Justice told Congress in newly released correspondence from 2013.

“Some matters involving classified or sensitive information may need to be litigated under seal, and thus it should be noted that it may not be possible or appropriate for the Department to indicate the precise number or names of matters in which the Attorney General has approved the Department’s defense of an invocation of the [state secrets] privilege,” DoJ wrote in response to a question for the record from Rep. Jerrold Nadler following a June 2012 House Judiciary Committee hearing.

The Department’s answers to questions for the record from Rep. Nadler and others were released last week under the Freedom of Information Act. They did not appear in the published record of the June 7, 2012 House Judiciary Committee hearing because they were transmitted by DoJ too late to be included. The full exchange of questions and answers is available here.

When a lawsuit involving state secrets raises credible allegations of government wrongdoing, it is DoJ policy to refer the allegations to the Department’s Inspector General. However, DoJ rejected Rep. Nadler’s request to identify whether or how often such cases had been referred.

“The Department’s policy is not to disclose referrals made to Inspectors General regarding possible misconduct of employees of other agencies or referrals to the Department’s Office of Professional Responsibility. Consistent with that policy, we could not provide the number of cases, if any, that may have been referred to an IG pursuant to the Department’s policy on the state secrets privilege,” DoJ wrote.

In 2011, the Department produced its first periodic report to Congress on the use of the state secrets privilege. “We expect a second report to be submitted in the near future,” DoJ told Rep. Nadler. But no second report has been made available to date.

DoJ did not evade all of Rep. Nadler’s questions, however.

The Congressman asked: “Can a judge disagree with the executive branch’s decision as to whether the privilege is properly invoked?” And DoJ replied: “Yes. Reynolds provides that “[t]he court itself must determine whether the circumstances are appropriate for the claim of privilege.” See 345 U.S. at 8.”

DoJ also indicated that the Attorney General approved the assertion of the state secrets privilege in six acknowledged cases between 2009 and 2013. One of the those cases, Roule v. Petraeus in the Northern District of California, has not been widely recognized as a state secrets case.

In that proceeding, Walter Roule, a pseudonym for a covert CIA employee, alleged that he had been the object of employment discrimination because his wife was a foreign national of Asian ethnicity.

The CIA moved to dismiss the case in July 2012 after then-CIA Director David Petraeus formally asserted the state secrets privilege. “I make this claim of privilege in my capacity as the Director of the CIA and after deliberation and personal consideration of the matter. My judgment in this matter necessarily rests on my knowledge of the vulnerability of our sources and methods, my experience, and the advice of other CIA professionals,” DCIA Petraeus wrote. The case was dismissed by stipulation of the parties.

Rep. Nadler reintroduced a bill last March to establish standards by which courts could evaluate government assertions of the state secrets privilege (H.R. 4767, the State Secrets Protection Act). But the legislation has not moved out of subcommittee.

Last week, the House Appropriations Committee rejected two amendments to improve authorized public access to reports of the Congressional Research Service. However, unauthorized public access remains robust.

The latest Congressional Research Service reports include the following.

RICO: A Brief Sketch, May 18, 2016

Federal Reserve: Legislation in the 114th Congress, May 19, 2016

U.S.-EU Data Privacy: From Safe Harbor to Privacy Shield, May 19, 2016

Earthquake Risk and U.S. Highway Infrastructure: Frequently Asked Questions, May 19, 2016

Framing Spectrum Policy: Legislative Initiatives, May 18, 2016

The EMV Chip Card Transition: Background, Status, and Issues for Congress, May 17, 2016

Abortion and Family Planning-Related Provisions in U.S. Foreign Assistance Law and Policy, May 17, 2016

Federal Student Aid: Need Analysis Formulas and Expected Family Contribution, May 18, 2016

The Bureau of Ocean Energy Management’s Five-Year Program for Offshore Oil and Gas Leasing: History and Proposed Program for 2017-2022, May 18, 2016

Public Health Service Agencies: Overview and Funding (FY2015-FY2017), May 19, 2016

Waiting in Queue: Options for Addressing the Airport Screening Line Conundrum, CRS Insight, May 18, 2016.

Despite its recognition that CRS has provided “tremendous value” to Congress, the Senate Appropriations Committee rejected a proposed $7.4 million increase in the CRS budget for 2017.

“While the increase requested in fiscal year 2017 includes support for 22 additional full-time equivalents that purports to improve service to Congress, bringing on board new employees in the midst of this budget stagnation may not be a practical or cost-effective solution to optimize service,” the Committee wrote last week.

Instead of increased resources, the Senate Committee told CRS to tighten its belt.

“The Committee directs CRS to examine ways in which the internal structure of the organization may be improved to meet the challenges of the ever-changing Congressional environment and provide a report to the Committee on a proposed restructuring within 120 days of enactment of this act. The report should include recommended changes to staffing, pay levels, the management structure, technology, and research priorities in order to create and support the workflow, products, and services that best meet Congress’ needs.”

Department of Defense procedures for collecting biometric data are presented in a newly updated manual, which also provides some insight into the military and intelligence applications of such data.

“Biometrics are the measurable physical and behavioral characteristics that can establish and verify an individual’s identity,” the manual explains.

“Operators currently collect facial images, fingerprints, iris images, deoxyribonucleic acid (DNA) samples, palm prints, voice samples and associated contextual data (i.e. elements of biographic data and situational information) from individuals encountered during operations.”

The data are stored in multiple databases, including the Biometric Identity Intelligence Resource, or BI2R. That system “is designed to provide the DOD, intelligence community, and coalition communities with authoritative, high-pedigree, biometrically base-lined identities, and advanced tools and technologies necessary to analyze, collaborate, produce, disseminate, and share biometric identity intelligence.”

See Multi-Service Tactics, Techniques, and Procedures for Tactical Employment of Biometrics in Support of Operations, ATP 2-22.85, May 2016.

The challenges of mountain warfare are explored in another newly updated doctrinal manual. Mountainous terrain and cold weather can “negate U.S. technological advantages in information collection and firepower.” And 16 of 20 “states of interest” identified as potential areas of instability have regions with elevations greater than 8,000 feet. A chapter of the manual discusses the “specific effects of mountainous environments on intelligence operations.”  See Mountain Warfare and Cold Weather Operations, ATP 3-90.97, U.S. Army, April 2016.

Intelligence support for space operations is addressed in a new U.S. Air Force publication. “Intelligence roles within the space domain encompass multiple mission areas with varied and unique mission needs,” including defensive and offensive space control. See Space Unit Intelligence Procedures, Air Force Instruction 14-2SPACE, May 12, 2016.

“Offensive space control” means “the negation of adversary space capabilities through deception, disruption, denial, degradation, or destruction.” The most expansive official discussion of the subject may be this 2012 Air Force document (which is part of an Air Force annex to JP 3-14 on Space Operations).

In a worst-case scenario, the United States could be left without a launch vehicle needed to deploy national security space payloads within the next several years.

The ongoing turbulence within national security space policy is reviewed in a new report from the Congressional Research Service. See National Security Space Launch at a Crossroads, May 13, 2016.

Other new and updated CRS reports include the following.

Fact Sheet: Selected Highlights of the FY2017 National Defense Authorization Act (H.R. 4909), May 12, 2016

The Nunn-McCurdy Act: Background, Analysis, and Issues for Congress, updated May 12, 2016

Presidential References to the 2001 Authorization for Use of Military Force in Publicly Available Executive Actions and Reports to Congress, May 11, 2016

Libya: Transition and U.S. Policy, updated May 13, 2016

“Sense of” Resolutions and Provisions, updated May 16, 2016