Border security to prevent unauthorized migration along the U.S-Mexico border is a dynamic and challenging problem that has not consistently been mitigated by allocating increased resources, such as fencing and surveillance, says a newly updated report from the Congressional Research Service.

“Robust investments at the border were not associated with reduced unauthorized inflows during the 1980s and 1990s, but a range of evidence suggests a substantial drop in unauthorized inflows from 2007 to 2011, followed by a rise from 2012 to 2014 and a decrease in 2015,” CRS said. See Border Security: Immigration Enforcement Between Ports of Entry, updated April 19, 2016.

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

DHS Appropriations FY2016: Protection, Preparedness, Response, and Recovery, updated April 18, 2016

Escalating Violence in El Salvador, CRS Insight, updated April 20, 2016

Afghanistan: Post-Taliban Governance, Security, and U.S. Policy, updated April 15, 2016

Ukraine: Current Issues and U.S. Policy, updated April 18, 2016

What’s on Television? The Intersection of Communications and Copyright Policies, April 20, 2016

Funding for Carbon Capture and Sequestration (CSS) at DOE: In Brief, April 19, 2016

The National Earthquake Hazards Reduction Program (NEHRP): Issues in Brief, updated April 19, 2016

Arms Sales: Congressional Review Process, updated April 19, 2016

The Islamic State’s Acolytes and the Challenges They Pose to U.S. Law Enforcement, April 19, 2016

Within living memory, even a passing mention of cyber weapons or U.S. offensive activities in cyberspace was deemed sufficient to justify national security classification. Now, although the Obama Administration generally neither claims nor receives credit for it, military cyberspace doctrine has become one of a number of significant policy areas in which this Administration is demonstrably “more transparent” than its predecessors.

A new US Air Force directive “provides policy guidelines for planning and conducting AF cyberspace operations to support the warfighter and achieve national security objectives.”

“The AF will execute Cyberspace Operations” — including both offensive and defensive actions — “to support joint warfighter requirements, increase effectiveness of its core missions, increase resiliency, survivability, and cybersecurity of its information and systems, and realize efficiencies through innovative IT solutions.” See Cyberspace Operations, Air Force Policy Directive AFPD 17-2, April 12, 2016.

A companion directive further specifies, for example, that “Air Force Space Command (AFSPC) will… deploy AF approved cyber weapon systems.” See Air Force Policy Directive 17-1, Information Dominance, Governance and Management, 12 April 2016.

A new report from the Congressional Research Service raises the possibility that polygraph testing of intelligence employees could be phased out in favor of “continuous evaluation” (CE), i.e. the automated monitoring of financial, criminal and other databases.

The notion was suggested in a CRS overview of selected intelligence policy issues, including budget management, the quality of analysis, big data, workforce diversity, global coverage, and transparency.

The new CRS report, written by Anne Daugherty Miles, does not make recommendations, but instead presents a series of questions for congressional consideration, such as:

**     “In light of the IC’s use of CE to continually monitor an employee’s social and financial activity, are polygraph examinations still necessary?”

**     “Are there portions of the IC budget that could be made more transparent to the American public without endangering national security?”

**     “Should the IC be expected to monitor every corner of the world every hour of the day?”

**     “What authorities are needed to enhance cooperation with outside experts?”

**     “Are the new principles of transparency sufficient? Can the DNI do more to promote transparency across the IC?” (The April 15 CRS report does not take note of the latest steps by DNI Clapper to invigorate IC implementation of the Fundamental Classification Guidance Review or to establish the IC Transparency Council.)

This particular CRS report does not address intelligence surveillance policy, whistleblower policy, or various other intelligence-related topics of current controversy or interest. See The U.S. Intelligence Community: Selected Cross-Cutting Issues, April 12, 2016.

Some other new or updated products from the Congressional Research Service include the following.

Contested Presidential Nominating Conventions: Brief Background and Questions, CRS Insight, April 15, 2016

Sexual Violence at Institutions of Higher Education, updated April 15, 2016

The Federal Communications Commission: Current Structure and Its Role in the Changing Telecommunications Landscape, updated April 15, 2016

European Security and Islamist Terrorism, CRS Insight, updated April 18, 2016

Navy Littoral Combat Ship (LCS)/Frigate Program: Background and Issues for Congress, updated April 18, 2016

The number of people killed in Syria since March 2011 is variously estimated to be between 250,000 and 470,000. The number of estimated casualties in Iraq ranges from 19,000 to 41,650 deaths since January 2014.

A new report from the Congressional Research Service somewhat clinically discusses “the difficulties of collecting war-related casualty data in both countries and provides an overview of some of the current estimated figures available through selected organizations.”

“CRS is unable to independently track casualties in Syria and Iraq, and cannot verify the data presented.” Nor does CRS suggest that U.S. policy would be affected in one direction or another by casualty data that were verified to be accurate. See Counting Casualties in Syria and Iraq: Process and Challenges, CRS Insight, April 12, 2016.

Other noteworthy reports from the Congressional Research Service that have been withheld by Congress from online public distribution include the following.

Coalition Contributions to Countering the Islamic State, updated April 13, 2016

The Islamic State Woos Jihadists in Africa but Faces Competition, CRS Insight, April 14, 2016

Defense: FY2017 Budget Request, Authorization, and Appropriations, April 12, 2016

Arms Control and Nonproliferation: A Catalog of Treaties and Agreements, updated April 13, 2016

Russian Compliance with the Intermediate Range Nuclear Forces (INF) Treaty: Background and Issues for Congress, updated April 13, 2016

The New START Treaty: Central Limits and Key Provisions, updated April 13, 2016

Air Force B-21 Long Range Strike Bomber, April 14, 2016

Mens Rea Reform: A Brief Overview, April 14, 2016

Zika Response Funding: In Brief, April 14, 2016

Zika Virus: Global Health Considerations, CRS Insight, updated April 14, 2016

U.S. Postal Service Rolls Back Its Prices, CRS Insight, April 13, 2016

Highway Bridge Conditions: Issues for Congress, April 13, 2016

The Electoral College: How It Works in Contemporary Presidential Elections, updated April 13, 2016

Senate Judiciary Committee Hearings for Supreme Court Nominations: Historical Overview and Data, CRS Insight, April 13, 2016

Surveillance of Foreigners Outside the United States Under Section 702 of the Foreign Intelligence Surveillance Act (FISA), April 13, 2016

In a number of national security policy areas, there is a long-term trend in favor of greater transparency and disclosure. For example, the U.S. Army openly published a manual last week on Techniques for Information Collection During Operations Among Populations (ATP 3-55.4). It supersedes and replaces a previous publication from 2007 (FM 2-91.6) that was for restricted distribution and was marked For Official Use Only.

But in some other areas, the arrow of transparency is pointed backwards and previously unclassified categories of records are becoming newly restricted or classified.

That appears to be the case with The National Military Strategy of the United States of America. It was publicly released as an unclassified document in 2015, but the forthcoming edition that is to be completed by the end of next year will be classified.

“The [next] national military strategy will be a classified document,” said Marine Gen. Joseph Dunford, chairman of the Joint Chiefs of Staff, in a March 29 speech at the Center for Strategic and International Studies.

He acknowledged that up to now the National Military Strategy was “an unclassified document that has historically, you know, been written for the public.” But the next Strategy will not be made public, although “we will certainly articulate to the public the guts of a national military strategy,” he said.

He did not elaborate on the rationale for classification of the hitherto unclassified document, except to say that “in my mind, what the national military strategy ought to do is drive the development of our operation[al] plans. And more importantly, drive the development of viable options that we would need in a crisis [or] contingency.” His speech was reported in Defense News (April 5) and the US Naval Institute News (March 29).

The Congressional Research Service said “it can be assumed” that Special Operations Forces “will figure prominently in DOD’s new classified military strategy document.” But CRS warned that “a high or increased level of U.S. SOF involvement in the nation’s new classified military strategy could come with a price…. there could be a tendency to assign them an inordinate amount of responsibility under this new strategic construct.” See U.S. Special Operations Forces (SOF): Background and Issues for Congress, updated April 8, 2016.

The transfer of presidential power from one Administration to the next “is a complex and multi-faceted undertaking” that actually begins several months before the general election, an updated report from the Congressional Research Service explains.

The law known as the Presidential Transition Act (PTA) “includes a number of provisions related to the pre-election portion of the presidential transition. It directs the President and the incumbent Administration to establish a specified transition-related organizational infrastructure, with some features ongoing and others operational during a presidential election year only.”

Among other things, “the PTA authorizes eligible candidates to fund pre-election transition activities through their campaigns. The statute also establishes a process for designating and preparing career officials who will likely act as agency leaders during the transition process. It further provides for the negotiation, before the election, of memoranda of understanding between the incumbent President and eligible candidates concerning post-election transition matters.”

The requested FY2016 budget for pre-election presidential transition activities is $13.278 million. See Presidential Transition Act: Provisions and Funding, updated April 12, 2016.

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

U.S. Carbon Dioxide Emission Trends and the Role of the Clean Power Plan, April 11, 2016

The Selective Service System and Draft Registration: Issues for Congress, April 11, 2016

Friended, but not Friends: Federal Ethics Authorities Address Role of Social Media in Politics, CRS Legal Sidebar, April 12, 2016

Puerto Rico’s Current Fiscal Challenges, updated April 11, 2016

Unaccompanied Children from Central America: Foreign Policy Considerations, updated April 11, 2016

Navy LX(R) Amphibious Ship Program: Background and Issues for Congress, updated April 11, 2016

Criticism of the Freedom of Information Act is frequently directed at the way that agencies implement the FOIA process, or the ways that they fail to do so. Requesters complain that responses to requests are delayed, often for years, that exemptions from disclosures are interpreted too broadly or in self-serving ways, and that fee waivers are arbitrarily withheld. It sometimes seems to be necessary to file a lawsuit just in order to get an agency’s attention.

But it turns out that government agencies also have complaints of their own, including what they consider to be abusive behavior by some FOIA requesters.

The latest report from the Department of Defense Chief FOIA Officer notes that some DOD components are “overwhelmed by one or two requesters who try to monopolize the system by filing a large number of requests or submitting disparate requests in groups which require a great deal of administrative time to adjudicate.”

“For instance, one particular requester singlehandedly filed three requests with SOUTHCOM, 53 requests with AFRICOM, 35 requests with SOCOM and 217 requests with OSD/JS [Office of the Secretary of Defense/Joint Staff] for a total of 308 cases this fiscal year alone. For AFRICOM, this represents 43% of their entire incoming requests for the year and 12% for SOCOM. This requester holds over 13% of the currently open and pending requests with OSD/JS and over the past two years has filed 415 initial requests and 54 appeals with this one component,” the 2016 DoD Chief FOIA Officer report said.

One of the marvels of the Freedom of Information Act is that it enables any person to request any government record (more or less) and to compel an agency to respond. But the same asymmetry that allows a private individual to challenge a multi-billion dollar government agency and, with an adequate legal argument, to prevail, also makes it possible to destabilize the system.

In what is arguably a flaw in the legislative drafting of the FOIA, it is entirely permissible for a person to file dozens or hundreds of requests in a matter of days, at little or no cost to himself, and to obligate the government the government to respond to each one. So while the “supply” of government resources to respond to FOIA requests is constrained by agency budgets, the “demand” from requesters is effectively unchecked. The growth of backlogged requests is a predictable consequence. [I myself have more than a dozen requests pending at the Office of Secretary of Defense, though they were filed over a period of years. I don’t recall being charged by DoD for responding to my requests.]

The practice by some individual FOIA requesters of flooding the system not only monopolizes agency attention, it also places more discriminating or occasional requesters at a disadvantage. When those requesters then file lawsuits because an agency has failed to respond, the system is driven further out of alignment.

“As a result of litigation increases over the previous five years, as well as high profile litigation referrals from agencies outside DoD, specifically from State Department concerning former Secretary Clinton’s emails during this reporting period, FOID [the Office of Secretary of Defense FOI Division] has increased resource transfers from the OSD/JS Initial Processing Office to assist LSO [the Litigation Support Office] in execution of court-driven rolling and final FOIA releases,” the DoD Chief FOIA Officer report said.

“This process adversely affects initial request processing which usually leads to more litigation and disgruntled requesters who do not understand why the Requester Service Centers and Public Liaisons cannot provide more satisfactory solutions. Many components report that additional personnel would be beneficial in resolving their backlogs and complex cases but looming budgetary and personnel cuts, particularly in headquarters elements, across DoD do not promise easy or fast resolutions.”

One conceivable response to this state of affairs would be for Congress to ask the Government Accountability Office to estimate the cost of bringing the FOIA process into full compliance with the law, taking into account the current demand from requesters, which dwarfs that of past years. Then Congress could decide either to appropriate that amount of money, or to adjust the requirements of the law to match the available resources. (To address the specific problem of individuals filing vastly disproportionate numbers of requests, one could imagine imposing filing fees or fee recovery procedures for those filing more than a certain number of requests in a given period of time.)

The pending legislation known as the FOIA Improvement Act, which includes several important FOIA policy provisions, does not acknowledge a need for any additional resources to meet the growing demands on FOIA. To the contrary, it says that even the new requirements of the Act, if enacted, “shall be carried out using amounts otherwise authorized or appropriated.”

Update: Author Nick Turse was apparently the FOIA requester that the DoD Chief FOIA Officer had in mind. He presents his perspective here.

The notion of “intelligence transparency,” which once would have been considered an oxymoron, is instead becoming institutionalized with the establishment of a new Intelligence Transparency Council. Director of National Intelligence James Clapper signed the Charter of the new Council on April 5.

The Council includes representatives of each of the 17 Intelligence Community member agencies. Its role is to identify and promote appropriate areas for intelligence-related transparency and specifically to coordinate and oversee the implementation of the 2015 Principles of Intelligence Transparency.

For a start, the Council is supposed to “ensure that the public has information that clearly presents the mission, authorities, and oversight mechanism that direct and guide the IC.”

Beyond that, it will also “serve as the principal mechanism to identify possible new priority IC transparency topics to be selected by the DNI and IC leadership for implementation” and it will “establish interagency working groups to address specific transparency topics, as appropriate, in order to advance IC transparency efforts.”

As an inward-looking body that mostly meets behind closed doors, the Intelligence Transparency Council seems to be an internal forum for grappling with questions of increased disclosure, rather than an obvious public relations ploy. The Charter envisions votes and procedures for resolving disagreements, implying that the Council could serve a decision-making function.

Significantly, the Charter signed last week by DNI Clapper will remain in effect for five years. This means that “intelligence transparency” is likely to endure as a problem and a challenge well into the next Administration.

New and updated reports from the Congressional Research Service include the following.

Brazil in Crisis, CRS Insight, April 6, 2016

Peru: Politics, Economy, and Elections in Brief, April 6, 2016

Cuba: U.S. Restrictions on Travel and Remittances, updated April 6, 2016

United States Supreme Court: Criminal Law Cases in the October 2015 Term, April 6, 2016

Municipal Broadband: Background and Policy Debate, updated April 6, 2016

Federal Minimum Wage, Tax-Transfer Earnings Supplements, and Poverty, 2016 Update: In Brief, April 8, 2016

U.S. Sugar Program Fundamentals, updated April 6, 2016

U.S. Crude Oil Exports to International Destinations, CRS Insight, April 6, 2016

There are approximately 80 distinct “security cooperation” programs and statutory authorities by which the U.S. provides security assistance to foreign security forces, according to a Department of Defense tally.

The legal and institutional framework for delivering U.S. security aid to foreign countries is detailed in a new report from the Congressional Research Service.

“Over the past decade, Congress has substantially increased Department of State and Department of Defense (DOD) efforts to train, equip, and otherwise engage with foreign military and other security forces. As these efforts have increased, congressional questions and concerns have multiplied,” the CRS report said.

“Such concerns range from broad to specific–for example, the perceived lack of an overarching strategy for such assistance or, more specifically, the utility of the current legal framework, appropriate State Department and DOD roles and modes of coordination, and program effectiveness.”

“Current State and DOD security assistance and engagement efforts involve a range of activities, including ‘traditional’ programs transferring conventional arms for defense posture purposes, training and equipping regular and irregular forces for combat, conducting counterterrorism programs, and expanding education and training programs.”

“This report provides an overview of U.S. assistance to and engagement with foreign military and other security forces, focusing on Department of State and DOD roles. It lays out the historical evolution and current framework of the Department of State-DOD shared responsibility. It concludes with a brief overview of salient issues” including how to assess effectiveness, whether and how to modify the existing framework, and how to provide appropriate transparency for oversight.

A copy of the CRS report was obtained by Secrecy News. See Security Assistance and Cooperation: Shared Responsibility of the Departments of State and Defense, April 4, 2016.

(We are told that the FAS web site is currently inaccessible at the Pentagon, thanks to US Cyber Command. DoD personnel who wish to obtain a copy of this document or other materials are welcome to email me directly.)

Other new products of the Congressional Research Service that have not been publicly released include the following.

Supreme Court Vacancies That Arose During One Presidency and Were Filled During a Different Presidency, CRS Insight, April 5, 2016

Discharging a Senate Committee from Consideration of a Nomination, CRS Insight, April 5, 2016

Federal Lifeline Program: Modernization and Reform, CRS Insight, April 5, 2016

FDIC’s Plan to Meet Increased Deposit Insurance Fund Reserve Ratio, CRS Insight, April 4, 2016

High Frequency Trading: Overview of Recent Developments, April 4, 2016

Newly updated versions of previously released CRS reports include the following.

Millennium Challenge Corporation, updated April 5, 2016

Temporarily Filling Presidentially Appointed, Senate-Confirmed Positions, updated April 1, 2016

Calling Up Business on the Senate Floor, updated April 1, 2016

Telemarketing Regulation: National and State Do Not Call Registries, updated April 1, 2016

Overview of Private Health Insurance Provisions in the Patient Protection and Affordable Care Act (ACA), updated April 5, 2016

Agricultural Disaster Assistance, updated April 6, 2016

Maritime Territorial and Exclusive Economic Zone (EEZ) Disputes Involving China: Issues for Congress, updated April 1, 2016

Navy Ford (CVN-78) Class Aircraft Carrier Program: Background and Issues for Congress, updated April 5, 2016

Navy Littoral Combat Ship (LCS)/Frigate Program: Background and Issues for Congress, updated April 5, 2016

The Army’s M-1 Abrams, M-2/M-3 Bradley, and M-1126 Stryker: Background and Issues for Congress, updated April 5, 2016

Navy Ohio Replacement (SSBN[X]) Ballistic Missile Submarine Program: Background and Issues for Congress, updated April 5, 2016

Coast Guard Polar Icebreaker Modernization: Background and Issues for Congress, updated April 4, 2016

Director of National Intelligence James R. Clapper threw his weight behind the upcoming Fundamental Classification Guidance Review (FCGR), which requires executive branch agencies to review all of their classification guidance and to eliminate obsolete secrecy requirements every five years. (On the FCGR, see “Secrecy System to Undergo ‘Thoughtful Scrutiny’,” Secrecy News, March 28).

In an extraordinary memorandum sent to directors of five other intelligence agencies (CIA, DIA, NGA, NSA, and NRO), Director Clapper told them to seize the opportunity to overhaul current classification policy.

“This periodic review provides an ideal platform for the Intelligence Community (IC), as stewards of the nation’s most sensitive information, to take a leading role in reducing targeted classification activities that could extend to the larger Federal government,” Clapper wrote in his March 23 memo.

Ordinarily, the nuts and bolts of the classification system would be beneath the concern of senior agency officials. But DNI Clapper’s intervention changes that presumption. In effect, the Clapper memo focuses attention on what would otherwise be a routine mid-level bureaucratic function and elevates it to a senior-level imperative.

“I am requesting your personal involvement,” he wrote, instructing the intelligence agency directors to perform several additional steps above and beyond what the Fundamental Classification Guidance Review already requires.

Clapper asked for feasibility studies on reducing the number of IC Original Classification Authorities, on the utility of an IC-wide classification guide, on the elimination of the Confidential classification in the IC, and on a new initiative to promote discretionary declassification actions.

“Please comment on what would be required to implement a proactive discretionary declassification program distinct from the systematic, automatic, and mandatory declassification review programs” that already exist, the DNI wrote.

The history of secrecy reform in the U.S. government demonstrates that it is most effective — or that it is only effective — when it is driven by senior agency leadership. Not since Secretary of Energy Hazel O’Leary’s “openness initiative” in the 1990s has an agency head endorsed secrecy reform with the specificity and authority expressed by DNI Clapper.

“I believe your efforts will serve as a significant step forward in furthering our shared goals for greater openness and reduced classification activity while protecting legitimate national security interests,” he wrote to the intelligence agency directors.

The total number of employees and contractors holding security clearances for access to classified information at the Department of Defense dropped by a hefty 900,000 between 2013 and 2016 — or 20% of the total cleared population at DoD. At the start of the current Fiscal Year, DoD had a remaining 3.7 million cleared personnel.

These data were presented in the latest quarterly report on Insider Threat and Security Clearance Reform, 1st quarter, FY 2016, published last month.

Importantly, this was a policy choice, not simply a budgetary artifact or a statistical fluke. A reduction in security clearances is a wholesome development, since it lowers costs and permits more focused use of security resources. It also increases pressure, at least implicitly, to eliminate unnecessary security classification restrictions.

However, reductions in clearances appeared to be stabilizing over the past year, with the elimination of around 100,000 clearance holders who did not have access to classified information, and an increase of around 100,000 cleared persons who did have such access.

Meanwhile, the Insider Threat program is being slowly implemented across the government. The Department of Defense expanded its “Continuous Evaluation” capability — providing automated notification of financial irregularities or criminal activity, for example — to cover 225,000 employees, up from 100,000 last year. The Department of State also initiated its own Continuous Evaluation pilot program.

Overall, the Insider Threat program faces continuing hurdles. “Many departments and agencies are discovering challenges with issues such as organizational culture, legal questions, and resource identification, to name a few,” the latest quarterly report said.