John P. Fitzpatrick, the director of the Information Security Oversight Office (ISOO), left his position at the end of last week to join the National Security Council staff.

As ISOO director for the past four years or so, Mr. Fitzpatrick was responsible for oversight of national security classification and declassification activities government-wide.

“John led ISOO in carrying out the President’s programs to improve transparency, openness, and access to information while ensuring that classified national security information is properly protected,” wrote David S. Ferriero, Archivist of the United States, in a January 8 notice to employees of the National Archives, where ISOO is housed.

While there remains much to criticize in classification and declassification policy, Mr. Fitzpatrick presided over a four-year decline in original classification activity, such that by 2014 the number of new national security secrets created annually had dropped to the lowest ever reported by ISOO in its 35 year history.

The change in ISOO leadership comes at a delicate moment, since the entire national security classification system is supposed to go through a systematic recalibration, known as the Fundamental Classification Guidance Review, over the next 18 months. This secrecy re-booting process needs to be closely guided and nurtured if it is to yield optimal results.

But Mr. Fitzpatrick is not going very far, geographically or topically.

“Beginning Monday, 11 January, I will join the National Security Council Staff, Executive Office of the President, as Senior Director for Records Access and Information Security Management,” he wrote in an email message. “There I will assist the NSC/EOP with a portfolio of federal information security policies for classified and controlled unclassified information (classification, declassification, safeguarding, etc.), the National Industrial Security Program and other related security efforts.  I will also direct the staff who preserve, safeguard, review and help release NSC records via FOIA, automatic declassification and the like.  It promises to be an exciting challenge.”

The House of Representatives is expected to approve a new package of amendments to the Freedom of Information Act this week, in a bill known as the FOIA Oversight and Implementation Act of 2015.

The sponsors of the bill said it “would strengthen the Freedom of Information Act (FOIA) to increase transparency and accountability in government, and improve access to government records for citizens. It amends FOIA to provide for more disclosure of records, through both proactive disclosure and limitations on the use of exemptions. [It] also encourages enhanced agency compliance with statutory requirements and improves the FOIA process for both agencies and requesters.”

The bill would codify a presumption of openness, limit the application of the exemption for deliberative records, facilitate electronic submission of FOIA requests, strengthen the Office of Government Information Services (the FOIA ombudsman), mandate Inspector General reviews of FOIA processing, and several other steps. Detailed justification for the bill is provided in a January 7 report from the House Committee on Oversight and Government Reform.

The bill was subsequently modified by the House Intelligence Committee to affirm that its provisions would not require the disclosure of properly classified information or of information that “would adversely affect intelligence sources and methods” that are protected. The term “adversely affect” is not defined but is clearly intended to limit disclosure.

Truth be told, the Freedom of Information Act is a strange law that seems engineered to create an unresolvable tension if not a complete stalemate.

The FOIA empowers individual members of the public (including me and you) to impose a legally binding obligation on a government agency. But while there are no limits on the number or type of requests that a requester may submit at no cost, agencies are nominally supposed to accommodate the demand within a fixed period and with fixed resources. And though it only takes minutes to submit a request, the time required by an agency to fulfill even a simple request is much longer. A sophisticated systems analysis is not needed to anticipate the growth of the backlogs that have in fact developed.

In a further conundrum, those agencies that are more responsive to the FOIA process thereby tend to generate more demand. There is little point in submitting a FOIA request to the Defense Intelligence Agency, to pick one example, because they won’t produce a substantive response in this decade. But other agencies that do respond faithfully are rewarded– with more requests.

The best way to untangle and realign these conflicting imperatives is not clear. More proactive disclosure of information might help, or it might simply shift the burden to more specialized and challenging requests. But just encouraging and making it easier to file FOIA requests is probably not the solution.

The Congressional Research Service departed from its usual focus on current policy and legislative issues to produce a new disquisition on the separation of powers in the U.S. government.

The separation of powers doctrine “is rooted in a political philosophy that aims to keep power from consolidating in any single person or entity, and a key goal of the framers of the Constitution was to establish a governing system that diffused and divided power.”

However, the branches do not always act in their own structural interests (as is often the case in congressional oversight of intelligence, for example). “Although each branch has strong incentives to protect its prerogatives, in many cases individual political actors have incentives that run counter to their institutional affiliation. In particular, political actors will often, quite reasonably, place the short-term achievement of substantive policy goals ahead of the long-term preservation of institutional power for their branch of government.”

CRS concludes that “the contemporary balance of power between the President, Congress, and the courts is not the same as it was in 1789, and is perhaps not the balance intended or expected by the framers of the Constitution.”

In any case, “the relative power of the President, Congress, and the courts is not on any specific trajectory. At various times since the ratification of the Constitution, the power of each institution has been at times ascendant and at other times on the decline.” See Separation of Powers: An Overview, January 8, 2016

Other Congressional Research Service reports that were issued last week include the following.

History and Conflict at Malheur National Wildlife Refuge, CRS Insight, January 7, 2016

Big Data in U.S. Agriculture, January 6, 2016

Federal Health Centers: An Overview, January 6, 2015

U.S. Foreign Assistance to Latin America and the Caribbean: Recent Trends and FY2016 Appropriations, January 7, 2016

Escalating Violence in El Salvador, CRS Insight, January 7, 2016

Perspectives on Enhanced Interrogation Techniques, January 8, 2016

Electric Grid Physical Security: Recent Legislation, January 6, 2016

The Department of Defense “is moving forward with the development of its insider threat and personnel security reform efforts,” wrote Michael G. Vickers, then-Under Secretary of Defense (Intelligence) in an April 2015 report to Congress that was released last month under the Freedom of Information Act. “The Department recognizes the magnitude and complexity of these challenges, the need for multi-agency solutions, and is marshalling needed resources,” he wrote.

An insider threat is defined as someone who uses his or her authorized access to damage the national security of the United States, whether through espionage, terrorism, unauthorized disclosures of classified information, or other harmful actions.

The Department of Defense “is directing multiple pilots and concept demonstrations using both ‘push’ and ‘pull’ capabilities to conduct CE [continuous evaluation] on approximately 100,000 military, civilian and contractor personnel” in an effort to identify potential insider threats, the April 2015 DoD report to Congress said.

The overall, government-wide insider threat program is advancing rather slowly, judging by the program’s latest Quarterly Report (for the 4th quarter of FY 2015) that was just published. Several anticipated program milestones have been missed or deferred, the Report indicates.

The most effective way to limit the insider threat may be to reduce the number of “insiders.” If so, substantial progress has been made in that direction, with the elimination of 800,000 security clearances at the Department of Defense between FY2013 and the 3rd quarter of FY 2015, according to the Report. (The very latest security clearance totals have not yet been published.)

The 2016 Omnibus Appropriations bill passed by Congress last month included a provision requiring expanded reinvestigations of security clearance holders, Federal News Radio reported last week (“Agencies directed to use social media in security clearance reviews” by Nicole Ogrysko, December 28).

“The enhanced personnel security program of an agency shall integrate relevant and appropriate information from various sources, including government, publicly available and commercial data sources, consumer reporting agencies, social media and such other sources as determined by the Director of National Intelligence,” the legislation instructed.

Numerous advocacy and whistleblower defense organizations this week wrote to the Intelligence Community Inspector General urging him to investigate whether the insider threat program “has been improperly used to target or identify whistleblowers. Additionally, we ask that you lead the initiative to properly distinguish between whistleblowing and insider threats.”

New and updated reports from the Congressional Research Service that have been withheld from online public distribution include the following.

Independent Bids for President, CRS Legal Sidebar, January 6, 2016

The Presidential Nominating Process and the National Party Conventions, 2016: Frequently Asked Questions, updated December 30, 2015

H.R. 1927: Congress Proposes Additional Prerequisite for Class-Action Certification, CRS Legal Sidebar, January 5, 2016

The Animal Welfare Act: Background and Selected Animal Welfare Legislation, updated January 5, 2016

Water Quality Issues in the 114th Congress: An Overview, updated January 5, 2016

Congress and the U.S. Army Corps of Engineers in 2016, CRS Insight, January 5, 2016

Use of the Annual Appropriations Process to Block Implementation of the Affordable Care Act (FY2011-FY2016), January 5, 2016

EPA and the Army Corps’ Proposed Rule to Define “Waters of the United States”, January 4, 2016

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

U.S.-Mexican Security Cooperation: the Mérida Initiative and Beyond, updated January 5, 2016

Cyprus: Reunification Proving Elusive, updated January 5, 2016

State, Foreign Operations Appropriations: A Guide to Component Accounts, updated January 5, 2016

The Motion to Recommit in the House of Representatives, January 6, 2016

Using Data to Improve Defense Acquisitions: Background, Analysis, and Questions for Congress, January 5, 2016

The role of armed forces in an open society may be likened to a potent medicine that is life-saving in the proper dosage but lethal beyond a certain proportion. Military forces have proved to be indispensable for securing the political space in which free institutions can flourish, but they may also trample or destroy those institutions if unconstrained by law and wise leadership.

A rich and thoughtful account of how the U.S. military has protected, supported, clashed with and occasionally undermined constitutional government in this country is presented in the new book “Soldiers on the Home Front: The Domestic Role of the American Military” by William C. Banks and Stephen Dycus (Harvard University Press, 2016).

The authors, who are law professors, trace the role of the military back to its constitutional roots, which are not as precisely defined as they might have been. The Framers of the Constitution “knew that troops would sometimes be needed to help enforce the civilian laws. They just neglected to tell us precisely when.”

And so, Banks and Dyson write, U.S. military forces have played a multiplicity of domestic roles over time, both constructive and abusive.

“In the middle of the twentieth century, [troops] helped integrate Southern schools and universities, and they were sent into cities around the country to help control race riots. Federal forces were also used to suppress political protests during the Vietnam War. All the while, the unique capabilities of the military were welcomed in communities recovering from natural disasters.”

The authors devote chapters to military detention of U.S. citizens, trial by military commission, domestic military intelligence gathering, and the imposition of martial law– each of which is a matter of sometimes astonishing historical fact, not simply of speculative possibility, from Revolutionary times to the Civil War and World War II to our own post-9/11 era.

One of the surprising themes that emerges from “Soldiers on the Home Front” is that even after centuries of legislation, litigation and historical experience, many of the underlying policy questions and some of the basic legal issues remain at least partly unresolved:

“Whether a president has inherent constitutional authority, or may be authorized by Congress, to order the military imprisonment of a civilian without charges, perhaps indefinitely, is a question that has not yet been definitively answered by the courts. As a practical matter, however, the president may do so if no court will intervene.” (p. 116)

“Even after more than two centuries of experience, appropriate limits on military investigations of civilians are ill-defined and controversial.” (p. 167)

“The small number of episodic judicial opinions about martial law have left many questions unanswered. With no mention of martial law in the text of the Constitution, we might have expected Congress to adopt policy for resort to such a drastic measure. But it has so far failed to do so.” (p. 211)

“Ambiguity remains about who in the United States may be imprisoned, upon what grounds, and pursuant to what process.” (p. 249)

“The rules, in other words, are a mess.” (p. 263)

More fundamentally, “Soldiers on the Home Front” reminds us that constitutional values are not self-enforcing, and are liable to be eroded in times of political stress or national emergency. Defending those values is the task of an alert, informed citizenry. This fine book should help.

The Department of Defense proposed a new exemption from the Freedom of Information Act last year for information on unclassified “military tactics, techniques and procedures.” The measure was not adopted by Congress in the FY 2016 defense authorization act, but DoD is preparing to pursue it again this year.

The proposal that was submitted to Congress last year would have exempted from disclosure military doctrine that “could reasonably be expected to risk impairment of the effective operation of the armed forces” and that had not already been publicly disclosed.

“The effectiveness of any United States military operation is dependent upon the enemy not having knowledge of how U.S. military forces will be used,” DoD stated in its justification for the exemption. “Commanders need to have all advantages at their disposal to be successful on the battlefield; if the enemy has knowledge of the tactics, techniques, or procedures that will be used, a crucial advantage is lost and success of the operation and the lives of U.S. military forces are seriously jeopardized.”

DoD claimed that it would have been able to exercise this withholding authority until 2011, when a Supreme Court ruling in the case Milner v. Department of the Navy“significantly narrowed” the scope of FOIA Exemption 2. “This proposal would reinstate that protection to ensure effective operation of U.S. military forces and to save lives.”

The first thing to say about the proposed DoD FOIA exemption is that, given the realities of government information security today, any prudent military commander would have to assume that the adversary already possesses the unclassified military doctrine documents that the exemption would protect from public disclosure. The government has repeatedly been unable to protect many types of information of much higher sensitivity.

If that were not the case, the proposed DoD exemption would make sense up to a point. But it stops making sense where DoD “tactics, techniques and procedures” are themselves the focus of appropriate public attention. For example, U.S. techniques for the interrogation of detained persons have been the subject of intense public controversy as to whether they are illegal or inhumane. Likewise, offensive cyber operations involve important public policy questions that go beyond the tactical interests of the military. The DoD proposal does not appear to make allowance for mandatory FOIA disclosure in such compelling cases.

In another even more ambitious proposed FOIA amendment, DoD last year sought to nullify the 2011 Supreme Court decision in Milner altogether, and to reinstate the pre-Milner status quo with its more expansive withholding authority.

“The effect of the decision in Milner is that it exposes for public release certain critical information previously interpreted as being exempt from disclosure under the ‘High 2’ exemption,” the DoD proposal explained. “The Administration believes that, following the Supreme Court’s decision, there is a critical gap in the exemptions in the current FOIA statute. This proposal is designed to close that critical gap.”

Both DoD FOIA proposals — the specific exemption for unclassified tactics, techniques and procedures, and the broad nullification of the Milner decision — were excluded by Congress from the FY 2016 defense authorization act “due to jurisdictional concerns and process issues (but not content issues),” according to an internal DoD planning document.

But both are expected to be presented again this year. DoD will advance its proposed FOIA exemption for military doctrine, while the proposed Milneramendment, with its government-wide implications, has been transferred to the Department of Justice for separate submission to Congress.

New and updated reports from the Congressional Research Service that have been withheld from online public distribution include the following.

The Presidential Nominating Process and the National Party Conventions, 2016: Frequently Asked Questions, updated December 30, 2015

Need-Tested Benefits: Estimated Eligibility and Benefit Receipt by Families and Individuals, December 30, 2015

Federal Reserve: Oversight and Disclosure Issues, updated January 4, 2016

Analysis of the Tax Exclusion for Canceled Mortgage Debt Income, updated December 30, 2015

Iraq: Politics and Governance, updated December 31, 2015

Israel: Background and U.S. Relations In Brief, updated December 30, 2015

Bahrain: Reform, Security, and U.S. Policy, updated December 30, 2015

The WTO Nairobi Ministerial, CRS Insight, January 4, 2016

To the eyes of a military planner, a city presents “an elaborate combination of horizontal, vertical, interior, and exterior forms superimposed on a landscape’s natural relief, drainage, and vegetation.”

A newly reissued U.S. Army manual contemplates the difficulties facing military action in the urban environment with a focus on intelligence collection. See Intelligence Support to Urban Operations, TC 2-91.4, December 2015.

“With the continuing growth in the world’s urban areas and increasing population concentrations in urban areas, the probability that Army forces will conduct operations in urban environments is ever more likely,” the manual states.

“Providing intelligence support to operations in the complex urban environment can be quite challenging. It may at first seem overwhelming. The amount of detail required for operations in urban environments, along with the large amounts of varied information required to provide intelligence support to these operations, can be daunting.”

“In urban terrain, friendly forces will encounter a variety of potential threats, such as conventional military forces, paramilitary forces, insurgents or guerrillas, terrorists, common criminals, drug traffickers, warlords, and street gangs. These threats may operate independently or some may operate together. Individuals may be active members of one or more groups.”

“The enemy situation is often extremely fluid–locals friendly to us today may be tomorrow’s belligerents. Adversaries seek to blend in with the local population to avoid being captured or killed. Enemy forces who are familiar with the city layout have an inherently superior awareness of the current situation.”

“Finally, U.S. forces often fail to understand the motives of the urban threat due to difficulties of building cultural awareness and situational understanding for a complex environment and operation.”

New and updated reports that were issued by the Congressional Research Service last week include the following.

Data Security and Breach Notification Legislation: Selected Legal Issues, December 28, 2015

Sex Discrimination and the United States Supreme Court: Developments in the Law, December 30, 2015

The Budget Control Act of 2011 as Amended: Budgetary Effects, December 29, 2015

Former U.S. Hostages of Iran to be Eligible for Compensation, CRS Legal Sidebar, December 29, 2015

Federal Public Transportation Program: In Brief, December 28, 2015

NASA Appropriations and Authorizations: A Fact Sheet, December 29, 2015

Iran, Gulf Security, and U.S. Policy, December 29, 2015

Last year, the United States led the world in arms sales, tallying up $36.2 billion in worldwide arms transfer agreements. Russia took second place with $10.2 billion in arms transfer agreements, out of a global total of $71.8 billion in 2014.

This information, and much more on the subject, was presented in a new report from the Congressional Research Service on Conventional Arms Transfers to Developing Nations, 2007-2014, dated December 21, 2015.

The contents of the 70-page report were first described in the New York Times on December 25. The day before, relatedly, the Department of State published its own statutorily-required report on World Military Expenditures and Arms Transfers, covering the period 2002-2012.

Annual CRS reports on arms transfers had been the province of CRS specialist Richard F. Grimmett for three decades from the first such report in 1982 until his retirement in 2012. The CRS arms transfer reports are still known informally in some graying circles as “the Grimmett reports.” Besides his own considerable subject matter expertise, Grimmett seemed to have “sources” in the executive branch, making his work difficult to replicate or extend by others, no matter how diligent they might be. And for the past three years, no one at CRS has produced a follow-on report in the series until last week’s new report, authored by specialist Catherine A. Theohary.

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The role of diversity (e.g. of race, sex, or sexual preference) in the U.S. military is examined in another new report from the Congressional Research Service.

Do measures to enhance diversity in the armed services conflict with the military’s meritocratic culture? Does enforced diversity weaken readiness or strengthen it? Or perhaps weaken it in the short term and strengthen it in the long term?

Admitting no policy preference of its own, the CRS report (authored by analyst Kristy N. Kamarck) does a thorough job of representing the various competing and contrasting views on the subject.  See Diversity, Inclusion, and Equal Opportunity in the Armed Services: Background and Issues for Congress, December 23, 2015.

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Other new and updated reports from the Congressional Research Service that were issued last week include the following.

The Federal Election Commission: Enforcement Process and Selected Issues for Congress, December 22, 2015

The Federal Election Commission: Overview and Selected Issues for Congress, December 22, 2015

Turkey: Background and U.S. Relations in Brief, updated December 23, 2015

Haiti Under President Martelly: Current Conditions and Congressional Concerns, updated December 23, 2015

Afghanistan: Post-Taliban Governance, Security, and U.S. Policy, updated December 22, 2015

Maritime Territorial and Exclusive Economic Zone (EEZ) Disputes Involving China: Issues for Congress, updated December 22, 2015

Changes in the Arctic: Background and Issues for Congress, updated December 21, 2015

The Ryan White HIV/AIDS Program: Overview and Impact of the Affordable Care Act, December 21, 2015

Small Business Administration (SBA) Funding: Overview and Recent Trends, updated December 24, 2015

Small Business Administration: A Primer on Programs and Funding, updated December 23, 2015

Nuclear Energy: Overview of Congressional Issues, updated December 23, 2015

Salaries of Members of Congress: Recent Actions and Historical Tables, updated December 23, 2015

Salaries of Members of Congress: Congressional Votes, 1990-2015, updated December 23, 2015

Western Water and Drought: Legislative Analysis of H.R. 2898 and S. 1894, December 23, 2015

Air Quality: EPA’s 2013 Changes to the Particulate Matter (PM) Standard, updated December 23, 2015

2013 National Ambient Air Quality Standard (NAAQS) for Fine Particulate Matter (PM2.5): Designating Nonattainment Areas, updated December 23, 2015

Navy Littoral Combat Ship (LCS)/Frigate Program: Background and Issues for Congress, updated December 22, 2015

Congressional Efforts to Reduce Restrictions on Growing Industrial Hemp, CRS Insight, updated December 23, 2015

The notion that the U.S. should strengthen the military capabilities of foreign partners so that they could assume increased responsibility for regional security is critically examined in a major new report from the Congressional Research Service.

The approach known as Building Partner Capacity (BPC) “has increased in prominence within U.S. strategy, arguably becoming a central pillar of U.S. national security and foreign policy in recent years,” based on the premise that strengthening fragile foreign security institutions abroad will have benefits for U.S. national security.

But despite the growing centrality of BPC, “it remains unclear whether building the capacity of foreign security forces is an effective way to accomplish U.S. strategic objectives,” the CRS report said.

In fact, “Recent events, particularly the battle between the Afghan government and the Taliban over Konduz, as well as the collapse of U.S.-trained and equipped forces in Iraq and Syria in the face of the Islamic State, have called into question whether these BPC programs can achieve their desired effects.”

“Do BPC programs and activities actually advance U.S. national security interests? If so, when? If not, why not?”

One short answer is that “Within the case studies explored, BPC was least effective as a tool for allowing the United States to extract itself from conflict (victory in war/war termination). However, it was most effective as a tool for building interpersonal and institutional linkages, and for alliance building.”

But the purpose of the CRS report was not to simply announce analytic conclusions. Rather, it should “be used as a starting point for further debate and analysis on the subject. There are no clear-cut answers at present. Considerably more intellectual spade work could be undertaken to clarify the conceptual underpinnings of BPC efforts, and whether, and when, BPC is an appropriate tool for advancing U.S. strategic goals.”

Notably, “This report differs from many other CRS products, as it is intended to assist Congress with its oversight responsibilities by helping it think critically about BPC and related programs. Accordingly, it raises more questions than it answers. Among the most important: are BPC shortcomings due to execution issues? Or are they due to BPC being an inappropriate way to accomplish U.S. strategic objectives?”

A copy of the report was obtained by Secrecy News. See What Is “Building Partner Capacity?” Issues for Congress, December 18, 2015.

Other new and updated reports from the Congressional Research Service that were issued last week include the following.

Arms Sales: Congressional Review Process, updated December 17, 2015

Firearms Eligibility for Foreign Nationals in the United States, CRS Legal Sidebar, December 18, 2015

New Circuit Split: Seventh Circuit Rules that Unlawfully Present Aliens with “Extensive Ties” to the United States Have Second Amendment Rights, CRS Legal Sidebar, December 17, 2015

You Win Some, You Lose Some: the Complicated Legal Status of Daily Fantasy Sports, CRS Legal Sidebar, December 18, 2015

Employer Wellness Programs and Genetic Information: Frequently Asked Questions, December 17, 2015

Nationwide Injunctions: Recent Rulings Raise Questions about Nationwide Reach of a Single Federal Court, CRS Legal Sidebar, December 16, 2015

IRS Proposes Controversial Regulations Regarding Charity Donors’ SSNs, CRS Legal Sidebar, December 16, 2015

First Spoofing Conviction Gives Teeth to Dodd-Frank in Prosecuting Commodities Violations, CRS Legal Sidebar, December 15, 2015

Women and the Selective Service, CRS Insight, December 15, 2015

FY2016 National Defense Authorization Act: Selected Military Personnel Issues, updated December 17, 2015

Central America Regional Security Initiative: Background and Policy Issues for Congress, updated December 17, 2015

Australia: Background and U.S. Relations, updated December 14, 2015