The Department of Defense last week asked Congress to enact a new exemption from the Freedom of Information Act for military tactics, techniques and procedures, as well as rules of engagement, that are unclassified but considered sensitive. A similar request by DoD last year was not acted upon by Congress.

DoD justified its current proposal as a military necessity, and as a matter of common sense:

“The effectiveness of United States military operations is dependent upon adversaries, or potential adversaries, not having advance knowledge of the tactics, techniques, and procedures that will be employed in such operations. If an adversary or potential adversary has knowledge of such information, the adversary will be better able to identify and exploit any weaknesses, and the defense of the homeland, success of the operation, and the lives of U.S. military forces will be seriously jeopardized.”

This year’s proposal was drafted as an amendment to the existing FOIA exemption for DoD critical infrastructure. So it has some noteworthy features that were not included in last year’s proposal: The use of the exemption would require a written determination by the Secretary of Defense that the public interest does not outweigh the need to protect the information. The Secretary would also have to prepare a written statement of the basis for the use of the exemption. “All such determinations and statements of basis shall be available to the public, upon request….”

The large majority of military doctrinal publications are unclassified and publicly available. A relatively small number are classified and unavailable. But there is a middle category of unclassified publications whose distribution is restricted, which the proposed amendment aims to preserve.

Some recent Army titles that fall in that middle category include, for example: Special Forces Air Operations (ATP 3-18.10), Special Operations Communications System (ATP 3-05.60), and Countering Explosive Hazards (ATP 3-34.20). The Department of Defense does not readily release such titles today, even in the absence of the proposed amendment. But in order to withhold them under FOIA, it must engage in some dubious legal acrobatics, or else practice delay and defiance.

The proposed new FOIA amendment was included in a package of legislative proposals that DoD transmitted to Congress on March 10, 2016.

*

The FOIA Improvement Act (S. 337 and HR 653), which includes several provisions that are intended to promote increased disclosure through FOIA, currently awaits consideration in the Senate. It has already been passed by the House. “It is my hope that Democrats and Republicans can come together and pass this commonsense legislation this week,” said Sen. Patrick Leahy yesterday in a Sunshine Week address at the National Archives.

But the FOIA Improvement Act does not confront the structural flaws in the law that have yielded the current logjam in FOIA processing. Nor does it acknowledge the radical mismatch between the amount of money and personnel that would be required to implement the FOIA as written and the funds that Congress has actually appropriated for that purpose.

To the contrary, “No additional funds are authorized to carry out the requirements of this Act,” the FOIA Improvement Act states.

A campaign by citizens’ groups in Germany last month persuaded the Bundestag (the German parliament) to authorize the release of thousands of research reports prepared by the Wissenschaftlicher Dienst, the German equivalent of the Congressional Research Service.

“But not only that: The Parliament also changed its publication policy regarding all new reports. In the future, they will be released by the Parliament after a protective period of four weeks,” according to a blog post on the campaign from FragDenStaat.

Our own Congress is still not quite ready to follow suit.

For now, the latest products of the Congressional Research Service must be obtained through alternate channels:

Nigeria: Current Issues and U.S. Policy, March 11, 2016

Consumer Operated and Oriented Plan (CO-OP) Program: Frequently Asked Questions, March 11, 2016

Legal Issues with Federal Labeling of Genetically Engineered Food: In Brief, updated March 11, 2016

Veterans’ Benefits: Burial Benefits and National Cemeteries, updated March 11, 2016

FY2017 Budget Documents: Internet and GPO Availability, updated March 10, 2016

Navy DDG-51 and DDG-1000 Destroyer Programs: Background and Issues for Congress, updated March 10, 2016

U.S. Strategic Nuclear Forces: Background, Developments, and Issues, updated March 10, 2016

When Gen. Keith Alexander became the new director of the National Security Agency in 2005, “his predecessor, Mike Hayden, stepped down, seething with suspicion”– towards Alexander.

As told by Fred Kaplan in his new book Dark Territory, Gen. Hayden and Gen. Alexander had clashed years before in a struggle “for turf and power, leaving Hayden with a bitter taste, a shudder of distrust, about every aspect and activity of the new man in charge.” The feeling was mutual.

The subject (and subtitle) of Kaplan’s book is “the secret history of cyber war.” But the most interesting secrets disclosed here have less to do with any classified missions or technologies than with the internal bureaucratic evolution of the military’s interest in cyber space. Who met with whom, who was appointed to what position, or even (as in the case of Hayden and Alexander) who may have hated whom all turn out to be quite important in the ongoing development of this contested domain.

Kaplan seems to have interviewed almost all of the major players and participants in this history, and he has an engaging story to tell. (Two contrasting reviews of Dark Territory in the New York Times are here and here.)

Meanwhile, the history of cyber war is becoming gradually less secret.

This week, the Department of Defense openly published an updated instruction on Cybersecurity Activities Support to DoD Information Network Operations (DoD Instruction 8530.01, March 7).

It replaces, incorporates and cancels previous directives from 2001 that were for restricted distribution only.

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

Canadian Prime Minister Trudeau’s State Visit, March 2016, CRS Insight, March 7, 2016

Overview of FY2017 Appropriations for Commerce, Justice, Science, and Related Agencies (CJS), March 7, 2016

First-Term Members of the House of Representatives and Senate, 64th-114th Congresses, March 7, 2016

The Precision Medicine Initiative, CRS Insight, March 8, 2016

Cybersecurity: Critical Infrastructure Authoritative Reports and Resources, March 8, 2016

The Aliso Canyon Natural Gas Leak: State and Federal Response and Oversight, CRS Insight, March 9, 2016

EPA’s Clean Power Plan for Existing Power Plants: Frequently Asked Questions, updated March 9, 2016

Poland and Its Relations with the United States: In Brief, updated March 7, 2016

Iraq: Politics and Governance, updated March 9, 2016

Navy Ford (CVN-78) Class Aircraft Carrier Program: Background and Issues for Congress, updated March 8, 2016

Navy Ohio Replacement (SSBN[X]) Ballistic Missile Submarine Program: Background and Issues for Congress, updated March 8, 2016

Daylight Saving Time, March 9, 2016

The government is looking for a person to oversee, and perhaps sometimes to overrule, classification decisions made throughout the Executive Branch.

A job opening for the position of Director of the Information Security Oversight Office (ISOO) was announced in USA Jobs last week.

The ISOO director is appointed by the Archivist of the United States, since ISOO is housed at the National Archives. But ISOO takes policy direction from the National Security Council, and the director’s authority over classification and declassification policy extends throughout the executive branch.  The previous ISOO director, John P. Fitzpatrick, left for the National Security Council in January.

The ISOO director is endowed with some remarkable powers. “If the Director of the Information Security Oversight Office determines that information is classified in violation of this order, the Director may require the information to be declassified by the agency that originated the classification,” according to executive order 13526. Though this power has mostly been held in reserve, it is backed by presidential authority and retains its potency.

The ISOO director is also obliged by executive order to “consider and take action on complaints and suggestions from persons within or outside the Government with respect to the administration of the program established under this order.”

As a result, the ISOO directors have been the most publicly accessible agency heads anywhere in government. Each of them — Mr. Fitzpatrick (2011-15), Jay Bosanko (2008-2011), Bill Leonard (2002-2008), and Steve Garfinkel (1980-2002) — has in his own distinctive way been a dedicated public servant and has willingly engaged with critics, reporters and members of the general public. (The first ISOO director, former congressman Michael Blouin, did not leave much of a visible record in that position.)

But of course, classification policy remains in significant disarray, even within the government, and is a subject of almost daily public controversy. So the position of ISOO director is potentially even more important than ever before, and the next ISOO director could play a leading role in reconciling competing interests in secrecy and disclosure.

Applications for ISOO director are being accepted until March 28. A Top Secret/SCI clearance is needed. Senate confirmation is not.

A new report from the Congressional Research Service considers legal aspects of encryption policy. It reviews the existing case law concerning efforts to compel disclosure of encrypted data. It also discusses related issues including the Fifth Amendment right against self-incrimination, and the scope of the All Writs Act that is now the focus of a dispute between Apple and the FBI. See Encryption: Selected Legal Issues, March 3, 2016.

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

Nominations to the Supreme Court During Presidential Election Years (1900-Present), CRS Insight, March 3, 2016

Heroin Production in Mexico and U.S. Policy, CRS Insight, March 3, 2016

Expedited Removal Authority for VA Senior Executives (38 U.S.C. 713): Selected Legal Issues, updated March 4, 2016

House Committee Chairs: Considerations, Decisions, and Actions as One Congress Ends and a New Congress Begins, updated March 3, 2016

Health Care for Dependents and Survivors of Veterans, updated March 3, 2016

Libya: Transition and U.S. Policy, updated March 4, 2016

Implications of Iranian Elections, CRS Insight, March 4, 2016

The term “climate change” was included for the first time in the latest revision of the Department of Defense Dictionary of Military and Associated Terms (Joint Publication 1-02), published last week.

Climate change is officially defined by DoD as “Variations in average weather conditions that persist over multiple decades or longer that encompass increases and decreases in temperature, shifts in precipitation, and changing risk of certain types of severe weather events.”

The new entry in the DoD Dictionary reflects a growing awareness of the actual and potential impacts of climate change on military operations.

The definition was originally proposed in the January 2016 DoD Directive 4715.21 on Climate Change Adaptation and Resilience.

“The DoD must be able to adapt current and future operations to address the impacts of climate change in order to maintain an effective and efficient U.S. military,” the January directive stated.

The domestic use of unmanned aerial systems (UAS, or drones) by the Department of Defense in support of civil authorities has been conducted in accordance with law and policy, the DoD Inspector General said in a 2015 report of an evaluation that was released last week.

“DoD is fully compliant with laws, regulations, and national policies for UAS support to civil authorities,” the DoD IG report said.

“We found no evidence that any DoD entity using UAS’s or associated PED [processing, exploitation, and dissemination] in support of domestic civil authorities, to date, has violated or is not in compliance with all statutory, policy, or intelligence oversight requirements.”

Oddly, that conclusion was marked “For Official Use Only.”  See Evaluation of DoD Use of Unmanned Aircraft Systems (UAS) for Support to Civil Authorities, DoD Inspector General report DODIG-2015-097, March 20, 2015. The partially redacted report was released last week in response to a Freedom of Information Act request.

DoD support to civil authorities using drones can be provided, given proper authorization, for domestic emergencies, support to law enforcement, or to provide added security for high-profile “special events.”

Domestic use of drones by DoD for such purposes is comparatively rare. The DoD Inspector General reported that between 2006 and 2015 there were “less than twenty events that could be categorized as DoD UAS support to domestic civil authorities,” and that that number included “both approved and disapproved requests.”

The Department of Defense provided updated Guidance for the Domestic Use of Unmanned Aircraft Systems last year in a February 17, 2015 policy memorandum.

“Armed DoD UAS may not be used in the United States for other than training, exercises, and testing purposes,” the memo said.

In response to criticism of the hefty fees that could be charged to public requesters in its new Mandatory Declassification Review (MDR) rule, the Office of the Director of National Intelligence has agreed to modify the rule.

The revised rule will adopt the more flexible and forgiving approach used in ODNI’s Freedom of Information Act (FOIA) program.

“We will pull back the MDR rule and swap out the fee structure there for the fee structure in the FOIA policy,” said Jennifer Hudson, director of the ODNI Information Management Division.

This represents a substantial change. In comments on the rule submitted yesterday by the Federation of American Scientists, we recommended such a change. We noted that the MDR fee schedule was inconsistent in several respects with existing law and policy and, in particular, that it differed from the cost recovery procedures in ODNI’s FOIA program:

*     The MDR rule would charge 50 cents per page for photocopying, but ODNI charges only 10 cents per page for responses to FOIA requests.

*     The MDR rule would have made requesters responsible “for paying all fees,” but ODNI always waives costs of $10 or lower under FOIA.

*     The MDR rule did not provide for discretionary fee waivers for public interest or other reasons, but the FOIA policy does.

Now all of these discrepancies will be eliminated. Perhaps most significantly, “We will also make sure that there is room [in the MDR process] for discretion in charging fees,” Ms. Hudson said in an email message. “I’m sure you know from looking at our FOIA reports that we have exercised our discretion to not charge fees quite a bit in the past.”

She noted, however, that “The search/review charges are identical” under the proposed MDR rule and under FOIA. “FOIA just breaks [the charges] down into 15 minute increments where the MDR rule is by the hour. The end result is the same.”

“At the end of the day, I don’t think it will make as much of a difference as people think,” she said.

A bill to make Congressional Research Service reports available to the public through authorized rather than unauthorized channels was introduced in Congress yesterday.

The bill was sponsored in the Senate (S. 2639) by Sen. Patrick Leahy (D-VT) and Sen.  John McCain (R-AZ) and in the House (H.R. 4702) by Rep. Leonard Lance (R-NJ) and Rep. Mike Quigley (D-IL).

While the support of these congressional sponsors of both parties is promising, the proposal to provide authorized public access to non-confidential CRS publications is not assured of passage.

A press release from Sen. Leahy’s office yesterday noted gamely that “McCain and Leahy have partnered for more than a decade in pressing for this change.”

Still, conditions for approval of the measure seem more favorable today than for many years past, thanks largely to a broad coalition of support mobilized by Daniel Schuman of Demand Progress and Kevin Kosar of the R Street Institute, themselves former CRS employees.

In the meantime, the latest reports from CRS that are not yet subject to authorized public disclosure include the following.

Lead in Flint, Michigan’s Drinking Water: Federal Regulatory Role, CRS Insight, updated March 2, 2016

Authorizing New Additions to Memorials in the District of Columbia: Issues for Consideration, CRS Insight, March 2, 2016

Cybersecurity: Education, Training, and R&D Authoritative Reports and Resources, March 3, 2016

Cybersecurity: Overview Reports and Links to Government, News, and Related Resources, March 2, 2016

Unfunded Mandates Reform Act: History, Impact, and Issues, March 2, 2016

Child Support: An Overview of Census Bureau Data on Recipients, March 1, 2016

The Proposed U.S. Foreign Assistance Initiative “Peace Colombia”, CRS Insight, March 3, 2016

Latin America and the Caribbean: Fact Sheet on Leaders and Elections, March 1, 2016

Marine Corps Amphibious Combat Vehicle (ACV) and Marine Personnel Carrier (MPC): Background and Issues for Congress, February 26, 2016

International Trade and Finance: Key Policy Issues for the 114th Congress, 2nd Session, February 29, 2016

Updated below, twice

Anyone who submits a mandatory declassification review request to the Office of the Director of National Intelligence seeking release of classified records “shall be responsible for paying all fees” resulting from the request, according to a new ODNI regulation.

And those fees are considerable.

A search for a requested document costs from $20-$72 per hour. Document review runs $40-$72 per hour. And photocopying costs fifty cents per page, the new ODNI regulation said. It was published in the Federal Register on Friday, with a request for public comments.

The mandatory declassification review (MDR) process was established by executive order 13526 to permit requests for declassification of information that no longer meets the standards for national security classification. The executive order’s implementing directive states that fees may be charged for responding to MDR requests for classified records.

But the proposed ODNI fees seem extravagant on their face. No commercial enterprise charges anything close to fifty cents to photocopy a single page. Neither do most of ODNI’s peer agencies.

The Department of Defense permits (though it does not require) DoD agencies to charge fees for search, review and reproduction (pursuant to DoD Manual 5230.30-M). But the DoD schedule of fees is well below the proposed ODNI rate.

Instead of fifty cents per page, DoD charges thirteen cents. Instead of up to $72 per hour for search and review, DoD charges no more than $52.60 per hour. ODNI wants $10 for a CD, but DoD asks only $1.25. (See DoD 7000.14-R, Volume 11A, Chapter 4, Appendix 2, Schedule of Fees and Rates, at page 4-13).

And while ODNI would make requesters liable for “all fees,” DoD says that “Fees will not be charged if the total amount to process your request is $30.00 or less.”

Similarly, at the Department of State, “Records shall be duplicated at a rate of $.15 per page.”

In a 2011 rule, the Central Intelligence Agency did mandate a fifty cent per page photocopy fee for MDR requests, as well as a $15 minimum charge. But the CIA policy was suspended in response to public criticism and a legal challenge from the non-profit National Security Counselors. That challenge is still pending.

“There is nothing unusual about these fees,” CIA told a court in 2014 in response to the legal challenge. “And the reproduction costs are similar to those employed by other agencies.” CIA noted that a National Archives regulation sets reproduction costs as high as 75 cents per page. (Last year it reached 80 cents, although a self-service copier is sometimes available for 25 cents per page.)

Furthermore, CIA said in 2014, “neither set of costs reimburses the CIA for the full cost of providing the declassification review service to the requester.”

Public comments on the new ODNI rule are due by March 28.

Update, 3/3/16: FAS comments on the ODNI rule are available here.

Update, 3/4/16: ODNI agreed to amend its MDR fee structure and to replace it with the same fee policy used in its Freedom of Information Act program.

A new report from the Congressional Research Service examines the implications of having only eight members on the Supreme Court following Justice Scalia’s death.

“This report provides an overview of the Supreme Court’s procedural rules and requirements when the Court is staffed with less than nine members. Included in this discussion is an overview of the Court’s quorum requirements, rehearing procedures, and vote count practices, with a focus on how the Court has traditionally responded to a change of composition during a term. The report concludes by highlighting over a dozen cases from the current term that could result in an evenly divided Supreme Court.”

See The Death of Justice Scalia: Procedural Issues Arising on an Eight-Member Supreme Court, February 25, 2016.

Other new and updated CRS reports that were published (but not publicly released) in the past week include the following.

DOD Releases Plan to Close GTMO, CRS Legal Sidebar, February 23, 2016

The United Kingdom and the European Union: Stay or Go?, CRS Insight, February 24, 2016

Court-Ordered Access to Smart Phones: In Brief, February 23, 2016

Health Care for Veterans: Suicide Prevention, updated February 23, 2016

Prescription Drug Abuse, February 23, 2016

Overview of Labor Enforcement Issues in Free Trade Agreements, updated February 22, 2016

Senators’ Official Personnel and Office Expense Account (SOPOEA): History and Usage, February 25, 2016

U.S. Trade Deficit and the Impact of Changing Oil Prices, updated February 25, 2016

The 2015 National Security Strategy: Authorities, Changes, Issues for Congress, updated February 26, 2016

Ukraine: Current Issues and U.S. Policy, updated February 22, 2016

Federal Court Declines to Bar the Resettlement of Syrian Refugees in Texas, CRS Legal Sidebar, February 26, 2016

Iraqi and Afghan Special Immigrant Visa Programs, updated February 26, 2016

Iran-North Korea-Syria Ballistic Missile and Nuclear Cooperation, updated February 26, 2016