A directive signed by the Director of National Intelligence yesterday formally authorizes the use of social media by official investigators who are conducting background investigations for security clearances.

See Collection, Use, and Retention of Publicly Available Social Media Information in Personnel Security Background Investigations and Adjudications, Security Executive Agent Directive 5, May 12, 2016.

The directive was crafted to avoid undue infringements on privacy.

Investigators will be limited to considering only publicly available postings. The subjects of a background investigation “shall not be requested or required” to provide passwords for access to non-publicly available materials or to make such materials available. Agencies will not be allowed to “friend” an individual for the purposes of gaining access to materials that are not otherwise available.

And the consideration of social media must be relevant to the official guidelines for granting access to classified information. That is, they must pertain to substance abuse, criminal conduct, foreign allegiance, or other such criteria.  See Adjudicative Guidelines for Determining Eligibility for Access to Classified Information, rev. December 29, 2005.

The utility of social media for background investigations remains to be demonstrated, particularly since any public posts that do not voluntarily advertise behavior that is at odds with official guidelines would not trigger investigative attention. A pilot project will be conduct to validate the approach before it is systematically included in the investigative process.

A hearing on Incorporating Social Media into Federal Background Investigations was held today by the House Committee on Oversight and Government Reform.

“The use of social media has become an integral, and very public, part of the fabric of most Americans’ daily lives, and it is critical that we use this important source of information to help protect our nation’s security,” said William R. Evanina, director of the National Counterintelligence and Security Center, in a statement to the House Committee.

There is a lack of consensus about what the U.S. military officer corps should look like, a new report from the Congressional Research Service says.

Divergent views exist about what type of military officers the country needs, what skills they should have, how they should be distributed by grade, what criteria should be used for their promotion or separation, and more.

“This report provides an overview of selected concepts and statutory provisions that shape and define officer appointments, assignments, grade structure, promotions, and separations.”  See Military Officer Personnel Management: Key Concepts and Statutory Provisions, May 10, 2016.

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

Goldwater-Nichols at 30: Defense Reform and Issues for Congress, updated May 11, 2016

Information Warfare: DOD’s Response to the Islamic State Hacking Activities, CRS Insight, May 10, 2016

Unaccompanied Alien Children: An Overview, updated May 11, 2016

Transportation Security: Issues for the 114th Congress, updated May 9, 2016

U.S.-Nordic Relations, CRS Insight, May 10, 2016

The growing prospect of the use of drones for commercial delivery purposes is considered in a new memorandum from the Congressional Research Service.

“Can you prevent a drone from flying over your house to deliver a package to your neighbor? Until now, that question has been of purely theoretical interest. However, the Senate recently passed a bill that could significantly change the operational landscape for unmanned aircraft systems (UAS or drones) and make these kinds of hypothetical delivery drones a reality,” the CRS memo begins. See Delivery Drones: Coming to the Sky Near You?, CRS Legal Sidebar, May 6, 2016.

U.S. Army policy “allows a small Confederate flag of a size not to exceed that of the U.S. flag to be placed on Confederate graves at private expense, either on Memorial Day or on the day when Confederate Memorial Day is observed” (which is today in North Carolina and South Carolina). However, it must be removed on the first workday thereafter. See Display of the Confederate Flag at Federal Cemeteries in the United States, CRS Insight, updated May 4, 2016.

New Interior Department regulations “aim to reduce the risk of an offshore oil or gas blowout that could jeopardize human safety and harm the environment.” See The Department of the Interior’s Final Rule on Offshore Well Control, CRS Insight, May 5, 2016.

The “Senate should not confirm a nominee to the United States Supreme Court whose professional record or statements display opposition to the Second Amendment freedoms of law-abiding gun owners, including the fundamental, individual right to keep and bear arms,” a recent House Resolution opines. A May 6 CRS brief therefore asks: What, If Anything, Has Judge Garland Said About the Second Amendment and Guns?

The amount of money sent by migrants in the U.S. to their home countries exceeded $432 billion in 2015, which is larger than official development assistance and more stable than private capital flows to these countries. See Remittances: Background and Issues for Congress, updated May 9, 2016.

The Administration’s FY2017 budget request for the Department of Justice “includes proposals to either increase funding for existing programs or fund new programs that seek to address several issues that have risen to national prominence recently, such as concerns about gun violence in cities across the country, the relationship between law enforcement and the communities they serve, violent extremism and ‘home-grown’ terrorism, preparing inmates to return to society after a period of incarceration, cybersecurity, and an increase in heroin addiction.” See FY2017 Appropriations for the Department of Justice, May 4, 2016 and FY2017 Appropriations for the Department of Justice Grant Programs, May 4, 2016.

Individuals who are not regular congressional employees can provide assistance to congressional offices as interns, volunteers, fellows, or pages, which are all distinct functions. See Internships in Congressional Offices: Frequently Asked Questions, May 6, 2016.

“The House is expected to vote on a dozen or more bills related to heroin and prescription opioid abuse during the week of May 9, leading some to dub this week ‘Opioid Week’ in the House.” See Active Opioid Legislation in the House: In Brief, May 9, 2016 and The Sentencing Reform Act of 2015 (H.R. 3713): A Summary, May 5, 2016.

The proposed Trans-Pacific Partnership (TPP) “is perhaps the most ambitious [Free Trade Agreement] undertaken by the United States in terms of its size, the breadth and depth of its commitments, its potential evolution, and its geo-political significance.” See The Trans-Pacific Partnership (TPP): Key Provisions and Issues for Congress, May 4, 2016.

Archivist of the United States David S. Ferriero last week rebuffed requests to formally designate the Senate Intelligence Committee report on CIA interrogation practices a “federal record” that must be preserved.

Senators Dianne Feinstein and Patrick Leahy had urged the Archivist to exercise his authority to certify that the Senate report is a federal record.

“We believe that Congress has made it clear that the National Archives has a responsibility — as the nation’s record keeper — to advise other parts of the United States government of their legal duty to preserve documents like the Senate Report under the Federal Records Act, the Presidential Records Act, and other statutes,” Senators Feinstein and Leahy wrote in an April 13 letter.

The report qualifies for preservation as a permanent record, they said, “because it contains uniquely valuable information regarding the CIA’s detention and interrogation program under the Bush Administration,” among other reasons.

Two weeks later, dozens of non-governmental organizations led by the Constitution Project sent their own letter to the Archivist likewise urging him to make a formal determination that the Senate report is a federal record that by law must be preserved.

“The Senate study began as an examination of the CIA’s destruction of crucial video records of the torture program, which occurred without NARA’s knowledge or authorization,” the NGO letter said. “It would be sadly ironic if NARA knowingly allowed the Executive Branch to return the most comprehensive history of the CIA torture program” to Congress without preserving a permanent archival record of it.

But Archivist Ferriero was unmoved by the appeals.

“NARA has refrained from interceding in this matter because the issue is the subject of ongoing litigation,” he wrote in an April 29 reply to Senators Feinstein and Leahy, referring to a Freedom of Information Act lawsuit brought by the ACLU for access to the report. “As is routine with respect to any issue that is being litigated, we have coordinated with litigation counsel at DOJ handling the pending court case.”

He also asserted that the mere fact that executive branch agencies are in possession of the Senate report does not necessarily mean that it qualifies as a federal record. There is a “possibility that an agency could accept physical receipt of a document but maintain it in such a manner that the agency does not acquire legal custody for purposes of either the FRA [Federal Records Act] or the FOIA,” he wrote.

However, at this stage “it would not be appropriate for me to have a predisposed viewpoint in any particular case as to whether recorded information is or is not a federal record,” he said, implying that a final decision would be reached at some later stage.

The National Archives acknowledged receipt of the NGO letter (which was co-signed by the FAS Project on Government Secrecy), and said that a response to that letter would be provided in due course.

Otherwise, officials contacted by Secrecy News would not discuss the matter on the record. But what emerges from several conversations is something like this:

Although the Archivist has independent legal authority to determine the status of federal records under the Presidential and Federal Records Act Amendments of 2014, he remains an executive branch official and he is not politically autonomous. In the face of FOIA litigation, which takes precedence as a practical matter, it actually is “routine” (or at least unsurprising) for the Archivist to defer to the Justice Department and to abstain from unilateral action.

If the ongoing FOIA litigation ultimately led to a determination that the Senate report is a “record” for purposes of FOIA, then it would be easy for the Archivist to concur. If not, then it would be more difficult, but not altogether impossible, for the Archivist to conclude that the report is nevertheless a federal record. “The determination of record status under the FRA and the Freedom of Information Act (FOIA), while not identical, is similar,” the Archivist wrote.

In any event, while an immediate resolution of this dispute is foreclosed by the Archivist’s refusal to intervene, the larger question of the status of the Senate report as a federal record remains open.

Legal technicalities aside, it would be astonishing if the full Senate Committee report were not preserved for posterity one way or another, and eventually published. Even if it is not the last word on post-9/11 detention and interrogation, and even if not every word of it turns out to be true and correct, the Committee report has already become central to public discourse on the subject. If it became possible to erase it from the historical record in some kind of Stalinesque act of suppression, then we would all have bigger problems to worry about.

See related coverage from the Constitution Project, the National Security Archive, the Bill of Rights Defense Committee, and Courthouse News.

The forthcoming National Military Strategy, unlike previous versions of the Strategy, should be a classified document, the House Armed Services Committee (HASC) said in its markup of the FY2017 defense authorization bill.

Paradoxically, the Committee said that classifying the Strategy would enable increased disclosure of information– to the Committee, not to the public.

“The committee understands the importance of the Department publicly communicating its defense strategy to the American people, Congress, other U.S. Government agencies, and international partners and allies. However, the committee also recognizes that the classified assumptions and analysis underpinning the strategy, as well as the subsequent programming, budgeting, and contingency planning guidance that implement the strategy, are also important oversight tools for the committee and help to frame the annual budget request.” (Section 904)

“The committee believes that the NMS [National Military Strategy] should be re-focused to provide a strategic framework for the development of operational and contingency plans by the combatant commands, and to provide joint force and joint capability development guidance to guide resource investments by the military services.” (Section 905)

“To provide such guidance, the committee believes that the NMS should be a classified document,” the Committee markup said.

The Chairman of the Joint Chiefs of Staff, Gen. Joseph Dunford, recently stated that the next National Military Strategy will in fact be classified, as the House Armed Services Committee desires.

The House Committee did not adopt a DoD proposal for a new exemption from the Freedom of Information Act for certain military tactics, techniques and procedures, as well as rules of engagement, that are unclassified but considered sensitive. The proposed FOIA exemption was excluded from the pending bill without comment.

Recent DoD policy and doctrinal publications of interest to some include the following.

Management of DoD Irregular Warfare (IW) and Security Force Assistance (SFA) Capabilities, DoD Instruction 3000.11, May 3, 2016

DoD Nuclear Weapons Personnel Reliability Assurance, DoD Instruction 5210.42, April 27, 2016

DoD Identity Matching Engine for Security and Analysis (IMESA) Access to Criminal Justice Information (CJI) and Terrorist Screening Databases (TSDB), DoD Instruction 5525.19, May 4, 2016

Department of the Army Polygraph Activities, Army Regulation 195-6, April 21, 2016

The camouflage netting used by the U.S. Army in the Arctic region is obsolete and ineffective, Army officials told Congress in response to a question for the record in a newly published hearing volume.

“The existing Arctic camouflage system has not been upgraded since its inception in the mid-1970s. The Army’s current camouflage system, the Ultra-Lightweight Camouflage Net System (ULCANS) was developed in the late 1990s and only included Woodland and Desert patterns. Due to improvements in technology, these variants are now ineffective against current and emerging advanced sensor threats and are in need of updates,” the officials said.

“The next-generation ULCANS capabilities add three new variants (Arctic, Urban, and Aviation) and upgrade the existing systems (Woodland and Desert). The next-generation ULCANS will provide concealment from visual, near infrared, short-wave infrared through long-wave infrared, ultraviolet, radar, and multi-spectral/hyper-spectral detection.”

“Ultimately,” but not yet, “these systems will provide U.S. forces detection avoidance and sensor defeat capabilities as a low-cost force multiplier,” they said in response to the question submitted by Sen. Dan Sullivan (R-AK). See FY2016 Defense Authorization: Airland, Senate Armed Services Committee, March 19, 2015 (published April 2016), at page 95.

Questions for the record (QFRs) constitute a valuable though unpredictable and often neglected genre. At their best, they serve to elicit new information in response to focused, sometimes unwelcome questions. The House and Senate Armed Services Committees are now among the most interesting practitioners of the form. Senate Intelligence Committee hearing volumes used to be a must-read for their QFRs alone, but that Committee ceased publishing them over a decade ago.

The Congressional Research Service continues to devote substantial attention to the nomination of Judge Merrick Garland to the Supreme Court, even if the U.S. Senate remains unwilling or unable to act on the nomination. This week CRS issued a new report presenting an annotated tabulation of hundreds of decisions written by Judge Garland.

“To assist Members and committees of Congress and their staff in their ongoing research into Judge Garland’s approach to the law, this report identifies and briefly summarizes each of the more than 350 cases in which Judge Garland has authored a majority, concurring, or dissenting opinion. Arguably, these written opinions provide the greatest insight into Judge Garland’s judicial approach, as a judge’s vote in a case or decision to join an opinion authored by a colleague may be based upon a number of considerations and may not necessarily represent full agreement with a joined opinion.”

See Majority, Concurring, and Dissenting Opinions Authored by Judge Merrick Garland, May 2, 2016. (The larger implications of Judge Garland’s opinions were analyzed in a separate CRS report that was issued last week.)

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

China’s Natural Gas: Uncertainty for Markets, May 2, 2016

Synthetic Drugs: Overview and Issues for Congress, updated May 3, 2016

Funding of Presidential Nominating Conventions: An Overview, updated May 4, 2016

Green Infrastructure and Issues in Managing Urban Stormwater, updated May 2, 2016

DHS Budget v. DHS Appropriations: Fact Sheet, May 2, 2016

Overview of Commercial (Depository) Banking and Industry Conditions, May 3, 2016

The Obama Administration has famously prosecuted more individuals for unauthorized disclosures of classified information to the media than all of its predecessors combined. But behind the scenes, it appears to have sought administrative penalties for leaks — rather than criminal ones — with equal or greater vigor.

“This Administration has been historically active in pursuing prosecution of leakers, and the Intelligence Community fully supports this effort,” said ODNI General Counsel Robert S. Litt in testimony from a closed hearing of the Senate Intelligence Committee in 2012 that was released last week in response to a Freedom of Information Act request.

But, he said, “prosecution of unauthorized disclosure cases is often beset with complications, including difficult problems of identifying the leaker, the potential for confirming or revealing even more classified information in a public trial, and graymail by the defense.”

Therefore, Mr. Litt said, in 2011 Director of National Intelligence James Clapper ordered intelligence agencies “to pursue administrative investigations and sanctions against identified leakers wherever appropriate. Pursuant to this DNI directive, individual agencies are instructed to identify those leak incidents that are ripe for an administrative disposition….”

Administrative penalties could include termination of employment, loss of security clearance, fines, or other adverse consequences. The number of individuals who were in fact sanctioned as a result of the ensuing “emphasis on administrative dispositions of leak investigations” was not disclosed. But “by advocating for administrative action in appropriate cases, the DNI hopes that more leakers will be sanctioned, and others similarly situated will be deterred,” he said at that time.

The 2012 Senate Intelligence Committee hearing pre-dated the classified disclosures in 2013 by Edward Snowden, who was obviously not deterred.

In a 2014 memorandum, Homeland Security Advisor Lisa O. Monaco said that “Recent unauthorized disclosures have unfortunately underscored the need to vigilantly safeguard our Nation’s most sensitive intelligence information.” The memo detailed numerous “near-term measures… aimed at further reducing the risk of additional high-impact disclosures.”

Yet “technical fixes alone cannot fully mitigate the threat posed by a determined insider,” she wrote. “As a result, [the corrective steps] include measures to improve business practices, enhance the security culture across the workforce, and reduce the unique risks associated with ‘privileged’ users.”

See “Near-term Measures to Reduce the Risk of High-Impact Unauthorized Disclosures,” memorandum from Homeland Security Advisor Lisa Monaco, February 11, 2014.

The actual efficacy of the measures described, some of which are still being gradually implemented, has not been publicly reported.

A new report from the Congressional Research Service examines Judge Merrick Garland’s approach to various domains of the law in an attempt to assess what the impact would be if his nomination to the U.S. Supreme Court were ever confirmed by the U.S. Senate.

“The report focuses on those areas of law where Justice Scalia can be seen to have influenced the High Court’s approach to particular issues, or served as a fifth and deciding vote on the Court, with a view toward how Judge Garland might approach that same issue if he were to be confirmed.”

The report addresses Judge Garland’s treatment of 14 topical areas of law, including civil rights, environmental law, and freedom of the press. See Judge Merrick Garland: His Jurisprudence and Potential Impact on the Supreme Court, April 27, 2016.

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

The First Responder Network (FirstNet) and Next-Generation Communications for Public Safety: Issues for Congress, updated April 28, 2016

Dominican Republic: Update on Citizenship and Humanitarian Issues, CRS Insight, April 27, 2016

Oman: Reform, Security, and U.S. Policy, updated April 26, 2016

Private Flood Insurance in the National Flood Insurance Program (NFIP), CRS Insight, April 25, 2016

Clean Power Plan: Legal Background and Pending Litigation in West Virginia v. EPA, April 27, 2016

Corporate Expatriation, Inversions, and Mergers: Tax Issues, updated April 27, 2016

The Buy American Act–Preferences for “Domestic” Supplies: In Brief, updated April 26, 2016

Zika Response Funding: In Brief, updated April 28, 2016

Traditional and Roth Individual Retirement Accounts (IRAs): A Primer, updated April 27, 2016

U.S. Manufacturing in International Perspective, updated April 26, 2016

The Regional Greenhouse Gas Initiative: Lessons Learned and Issues for Congress, April 27, 2016

As promised, the Office of the Director of National Intelligence (ODNI) last week formally withdrew a new rule on requesting declassification of classified ODNI records after receiving public complaints that it would have imposed onerous costs on requesters. A revised rule was then issued.

“ODNI received comments regarding the fee provisions [with] the recommendation that those provisions be withdrawn and replaced with fee provisions comparable to those in ODNI’s Freedom of Information Act program,” ODNI said in an April 22 Federal Register notice. (Comments to that effect from the Federation of American Scientists are here; comments submitted by Openthegovernment.org are here.)

“ODNI agrees and therefore is withdrawing its direct final rule.”

A revised rule with amended fee provisions was published in the Federal Register today.

Under the revised rule:

*    photocopying charges would be 10 cents per page instead of 50 cents per page;

*    fees would be waived whenever costs incurred were $10 or less;

*    and the revised rule now allows for a public interest waiver of fees when “the disclosure is likely to contribute significantly to the public understanding of the operations or activities of the United States Government and is not primarily in the commercial interest of the requester.”

There is widespread dissatisfaction with the organization and performance of the Department of Defense, a new Congressional Research Service report says, but no consensus on what to do about it.

Driving the current debate, CRS says, are questions such as:

*     “Why, after the expenditure of nearly $1.6 trillion and over 15 years at war in Iraq and Afghanistan, has the United States had such difficulty translating tactical and operational victories into sustainable political outcomes?”

*     “Why, despite the expenditure of over $600 billion per year on defense, is the readiness of the force approaching critically low levels, according to military officials, while the number of platforms and capabilities being produced are generally short of perceived requirements?”

*     “Why, despite tactical and operational adaptations around the world, is DOD often seen as having difficulty formulating strategies and policies in sufficient time to adapt to and meet the increasingly dynamic threat environment?”

“Taken together, […] the issues raised by these questions suggest the systemic nature of the challenges with which the Department of Defense appears to be grappling. In other words, they suggest that DOD’s organizational architecture and culture may merit serious review and analysis.”

“This report is intended to assist Congress as it evaluates the variety of reform proposals currently under discussion.” See Goldwater-Nichols at 30: Defense Reform and Issues for Congress, April 20, 2016.

Other new and updated reports from the Congressional Research Service that Congress has withheld from online public disclosure include the following.

Defense Authorization and Appropriations Bills: FY1970-FY2016, updated April 20, 2016

The World Drug Problem: UNGA Convenes for a Special Session, CRS Insight, April 20, 2016

Climate Change Paris Agreement Opens for Signature, CRS Insight, April 20, 2016

Negative Interest Rates, CRS Insight, April 20, 2016

EB-5 Immigrant Investor Visa, April 22, 2016

Department of Education Funding: Key Concepts and FAQ, April 22, 2016

Congressional Nominations to U.S. Service Academies: An Overview and Resources for Outreach and Management, updated April 21, 2016

Health Care for Veterans: Answers to Frequently Asked Questions, April 21, 2016

Libya: Transition and U.S. Policy, updated April 20, 2016

Saudi Arabia: Background and U.S. Relations, updated April 22, 2016

Protection of Trade Secrets: Overview of Current Law and Legislation, updated April 22, 2016

Freedom of Information Act Legislation in the 114th Congress: Issue Summary and Side-by-Side Analysis, updated April 21, 2016

 

Declassification of national security information should be pursued on a par with classification, according to a Department of Defense directive that was reissued yesterday.

“Declassification of information will receive equal attention as the classification of information so that information remains classified only as long as required by national security considerations,” said DoD Instruction 5200.01, dated April 21 and signed by Marcel Lettre, the Under Secretary of Defense for Intelligence.

This seems commendable as an aspirational goal, but it is hard to consider it an accurate description of existing DoD policy. (The “equal attention” language has been in force since 2008, when it appeared in a prior iteration of the Instruction.)

Nor is it clear what DoD means by “equal attention” in this context. Equal resources devoted to classification- and declassification-related activities? Surely not. Equal numbers of personnel engaged in classification and declassification? No. Equivalent quantities of records being classified and declassified? Also no.

Still, in a rules-based bureaucracy like the Pentagon, a directive from the Under Secretary of Defense has some intrinsic weight and cannot be entirely dismissed.

It is also noteworthy that the Instruction goes beyond requiring some sort of equilibrium between classification and declassification and calls for an actual reduction in the amount of classified material: “The volume of classified national security information and CUI [controlled unclassified information], in whatever format or media, will be reduced to the minimum necessary to meet operational requirements.”

In a new provision, the Instruction emphasizes the need to address unauthorized disclosures of classified information:

“Commanders and supervisors at all levels must consider and, at their discretion, take appropriate administrative, judicial, contractual, or other corrective/disciplinary action to address negligent discharges of classified information commensurate with the seriousness of the security violation.”

A “negligent discharge” sounds like something that is frowned upon in the Book of Leviticus. But it is actually an officially-sanctioned DoD term for certain types of unauthorized disclosures. An August 14, 2014 memorandum from the Deputy Secretary of Defense explains its origin:

“A negligent spillage or unauthorized disclosure of classified information is categorized as a Negligent Discharge of Classified Information (NDCI), which is based on the familiar firearms term ‘Negligent Discharge,’ to connote its seriousness.”