The Government of Afghanistan is not equipped to manage contracts and “as a result, future direct assistance funds are vulnerable to increased fraud and abuse,” the Department of Defense Inspector General said in a report last month. The IG report was marked “For Official Use Only” and was not publicly released.

See The Government of Islamic Republic of Afghanistan’s Controls Over the Contract Management Process for U.S. Direct Assistance Need Improvement, DoD Inspector General, February 26, 2015.

The Inspector General assessment was reported by Bloomberg News yesterday (“Afghanistan Can’t Manage Billions in Aid, U.S. Inspector Finds” by Anthony Capaccio, March 10).

Also yesterday, the Department of Defense reissued guidance specifying that unclassified geospatial intelligence products may be withheld from public release under certain conditions, including international restrictions or operational security concerns. See DoD Instruction 5030.59, National Geospatial-Intelligence Agency (NGA) Limited Distribution Geospatial Intelligence (GEOINT), March 10, 2015.

Two companion bills pending in the House and Senate would amend the Freedom of Information Act “for the purpose of increasing public access,” a new analysis of the legislation from the Congressional Research Service explains.

Among other things, “both the House and Senate legislation would establish a statutory ‘presumption of openness,’ whereby information may only be withheld if it harms an interest protected by a statutory exemption or if disclosure is prohibited by law.”

While both bills “address a number similar topics, often in similar ways, there are substantive differences between them.” The similarities and the differences in the pending bills are summarized in the new CRS report. See Freedom of Information Act Legislation in the 114th Congress: Issue Summary and Side-by-Side Analysis, February 26, 2015.

Other new or updated CRS publications that Congress has withheld from online public disclosure include the following.

Email Privacy: District Court Rules that ECPA Warrants Apply to Electronic Communications Stored Overseas, CRS Legal Sidebar, March 4, 2015

U.S. Periods of War and Dates of Current Conflicts, February 27, 2015

Military Service Records and Unit Histories: A Guide to Locating Sources, February 27, 2015

The Nunn-McCurdy Act: Background, Analysis, and Issues for Congress, March 3, 2015

Growth in Health Spending Remained Relatively Low in 2013, CRS Insights, February 27, 2015

Legislative Actions to Repeal, Defund, or Delay the Affordable Care Act, March 2, 2015

Implementing the Affordable Care Act: Delays, Extensions, and Other Actions Taken by the Administration, March 3, 2015

Foreign Heads of State Addressing Congress, CRS Insights, February 27, 2015

Israel: Background and U.S. Relations, February 27, 2015

Egypt: Background and U.S. Relations, March 3, 2015

Cuba: Issues for the 114th Congress, February 27, 2015

Locate an Agency or Program Within Appropriations Bills, February 27, 2015

The EMV Chip Card Transition: Background, Status, and Issues for Congress, February 26, 2015

Teenage Pregnancy Prevention: Statistics and Programs, February 26, 2015

Genetic Testing: Background and Policy Issues, March 2, 2015

The U.S. Constitution does not explicitly recognize a “public right to know.” But without reliable public access to government information, many features of constitutional government would not make sense. Citizens would not be able to evaluate the performance of their elected officials. Freedom of speech and freedom of the press would be impoverished. Americans’ ability to hold their government accountable for its actions would be neutered.

The conditions that make government accountability possible and meaningful are the subject of the new book Reclaiming Accountability by Heidi Kitrosser (University of Chicago Press, 2015).

The author introduces the term “substantive accountability,” which she contrasts with mere “formal accountability.” While formal accountability includes such things as the right to vote, substantive accountability requires that people must “have multiple opportunities to discover information relevant to their votes….”

This may seem obvious, but the trappings of formal accountability are often unsupported by the information that is needed to provide the substance of accountability, especially in matters of national security.

Kitrosser, a professor of law at the University of Minnesota Law School, shows that the principles of substantive accountability are deeply rooted in the text, structure and history of the Constitution. She uses those principles to provide a framework for evaluating contemporary assertions of presidential power over information, including executive privilege, state secrets, secret law, and prosecutions of unauthorized disclosures.

It cannot be the case, for example, that unauthorized disclosures of classification information are categorically prohibited by law and also that the President has discretion to classify information as he sees fit. If that were so, she explains, then the President would have unbounded authority to criminalize disclosure of information at will, and the classification system would have swallowed the First Amendment. As she writes: “The First Amendment’s promise would be empty indeed if its protections did not extend to information that the president wishes to keep secret.”

Kitrosser reviews the relevant case law to find openings and lines of argument that could be used to bolster the case for substantive accountability. She notes that Supreme Court rulings over the years “contain the seeds of an affirmative case for strongly protecting classified speakers.” In a 1940 ruling in Thornhill v. Alabama, for example, the Court declared that “The freedom of speech and of the press guaranteed by the Constitution embraces at the least the liberty to discuss publicly and truthfully all matters of public concern without previous restraint or fear of subsequent punishment.”

There is, of course, an opposing school of thought which posits a largely unconstrained presidential authority over government information. Moreover, this presidentialist view has been on “an upward historical trajectory” in recent decades. Leak investigations and prosecutions have risen markedly, and so have assertions of the state secrets privilege. Secret law blossomed after 9/11. The very term “executive privilege” is a modern formulation that only dates back to 1958 (as noted by Mark Rozell).

One of the deeply satisfying features of Kitrosser’s book (which is a work of scholarship, not a polemic) is her scrupulous and nuanced presentation of the presidential supremacist perspective. Her purpose is not to ridicule its weakest arguments, but to engage its strongest ones. To that end, she traces its origins and development, and its various shades of interpretation. She goes on to explain where and how substantive accountability is incompatible with presidential supremacy, and she argues that the supremacist viewpoint misreads constitutional history and is internally inconsistent.

The book adds analytical rigor and insight to current debates over secrecy and accountability, which it ultimately aims to inspire and inform.

“We can seek to harness and support those aspects of American law, politics, and culture that advance substantive accountability,” she writes.

“Reclaiming accountability is no single act. From internal challenges or external leaks by civil servants, to journalistic inquiries and reports, to congressional oversight, to FOIA requests, accountability is claimed and reclaimed every day by countless actors in myriad ways.”

Newly updated publications from the Congressional Research Service that Congress has withheld from online public distribution include the following.

Refugee Admissions and Resettlement Policy, February 18, 2015

U.S. Tsunami Program: A Brief Overview, February 20, 2015

Legislation to Facilitate Cybersecurity Information Sharing: Economic Analysis, February 23, 2015

Domestic Human Trafficking Legislation in the 114th Congress, February 23, 2015

Navy Force Structure and Shipbuilding Plans: Background and Issues for Congress, February 24, 2015

Nonstrategic Nuclear Weapons, February 23, 2015

A new report from the Congressional Research Service describes government agency plans to anticipate and adapt to the effects of climate change, as required by a 2013 executive order.
 
The first step is a vulnerability assessment. For the Department of Defense, climate change may have “potential impacts on geopolitics and national security interests that could result in [new] military operations, risks to existing military infrastructure, and hindrances to readiness and the ability to execute missions.”
 
“Climate change could affect the type, scope, frequency, tactics, and location of military operations worldwide,” the CRS report said. Already, “The Air Force has found that the combination of thawing permafrost, decreasing sea ice, and rising sea levels on the Alaskan coast has increased coastal erosion at several Air Force radar early-warning and communication installations.”
 
The new CRS report surveys the range of agency responses to date. See Climate Change Adaptation by Federal Agencies: An Analysis of Plans and Issues for Congress, February 23, 2015.

Other new and updated CRS reports that Congress has withheld from online public distribution include the following.
 
The Obama Administration’s Proposed AUMF Against the Islamic State: Some Immediate Takeaways, CRS Legal Sidebar, February 19, 2015

Common Questions About Federal Records and Related Agency Requirements, February 2, 2015

China’s Air Defense Identification Zone (ADIZ), January 30, 2015

International Law and Agreements: Their Effect Upon U.S. Law, February 18, 2015

Veto Override Procedure in the House and Senate, February 25, 2015

Anthem Data Breach: How Safe is Health Information Under HIPAA?, CRS Insights, February 24, 2015

Number of African American Judges Reaches All-Time High: Do Issues Remain?, CRS Insights, February 23, 2015

USCIS Funding and Accountability to Congress, CRS Insights, February 19, 2015

U.S. Citizens Kidnapped by the Islamic State, CRS Insights, February 13, 2015

Updated below

The U.S. Army issued new doctrine this month on the role of music in military operations.

“The mission of Army music is to provide music supporting unified land operations and instill in our forces the will to fight and win, foster the support of our citizens, and promote America’s interests at home and abroad,” the Army doctrine states.

“Army music stands ready to provide flexible, relevant, and targeted music support where civilian entertainers cannot go.”

“Music instruments in the form of horns, trumpets or drums were a part of military strategy dating to ancient times. Archeology gives us stone reliefs from 3,000 years before Christ depicting Assyrians and Babylonians parading brass instruments in military victory. Bands of musical instruments were included in formations throughout the centuries.”

The new Army doctrinal publication “provides key guidance pertaining to the mission, organization, and operation of music performance units (MPUs)” — otherwise known as Army bands. “This manual should serve as a guide for training and operations based on the tenets of music supporting unified land operations.”

See Army Music, ATP 1-19, February 2015.

Update: Relatedly, see Missions, Functions and Tasks of the U.S. Navy Band, OPNAVINST 5450.346A, February 23, 2015.

Newly updated reports from the Congressional Research Service on various Department of Defense procurement programs and related issues include the following.

Navy Force Structure and Shipbuilding Plans: Background and Issues for Congress, February 24, 2015

The Army’s Armored Multi-Purpose Vehicle (AMPV): Background and Issues for Congress, February 25, 2015

Marine Corps Amphibious Combat Vehicle (ACV) and Marine Personnel Carrier (MPC): Background and Issues for Congress, February 24, 2015

Navy Ford (CVN-78) Class Aircraft Carrier Program: Background and Issues for Congress, February 24, 2015

Navy DDG-51 and DDG-1000 Destroyer Programs: Background and Issues for Congress, February 24, 2015

Navy Virginia (SSN-774) Class Attack Submarine Procurement: Background and Issues for Congress, February 23, 2015

Navy Ohio Replacement (SSBN[X]) Ballistic Missile Submarine Program: Background and Issues for Congress, February 23, 2015

Navy LX(R) Amphibious Ship Program: Background and Issues for Congress, February 23, 2015

Last week, a federal court dismissed a lawsuit against the Central Intelligence Agency after the government asserted the state secrets privilege and argued that the case could not be litigated without jeopardizing national security.

Former CIA officer Jacob E. Abilt (a pseudonym) had charged the Agency with employment discrimination, improper retaliation and wrongful termination. In December, CIA Director John Brennan invoked the state secrets privilege to block the lawsuit.

“The facts of Mr. Abilt’s employment with the CIA are replete with classified information,” Mr. Brennan wrote. “For example, the specific National Clandestine Service operations on which he worked are classified. For the majority of his supervisors and coworkers, even the fact of their association with the CIA is classified. The nature and description of the work that they performed is classified….”

“Any exploration therefore of Mr. Abilt’s employment, and that of his colleagues, will necessarily risk disclosure of highly sensitive classified details concerning the existence and nature of clandestine CIA collection programs and activities,” Mr. Brennan wrote.

In opposition, Mr. Abilt’s attorneys argued that the case could proceed without any compromise of national security.

“Mr. Abilt would be able to prove his employment discrimination claims without exposing classified information. Defendant [CIA] is incorrect that specific classified information like a CIA employee’s identity,… or the location of covert CIA facilities is needed by Mr. Abilt to prove his claims,” they wrote in a December 24 response.

The government disputed that response in a January 9, 2015 reply: “Although some very basic facts of Plaintiff’s CIA employment can be safely described at a high level of generality, litigation regarding those facts would nonetheless not be possible without revealing privileged information. ”

Last week, Judge Gerald Bruce Lee of the Eastern District of Virginia accepted the CIA position and dismissed the case (as reported in Courthouse News Service on February 18).

“Privileged information is at the heart of Plaintiff’s claims for discrimination on the basis of disability and race, hostile work environment and retaliation, [and] Defendants cannot defend this action without relying on privileged information,” Judge Lee wrote in a February 10 order.

Mr. Abilt is an African American who suffers from narcolepsy and was prone to fall asleep at work. He was evidently authorized to take naps while employed at the CIA’s National Clandestine Service. “The naps did not interfere with his ability to successfully perform his duties,” according to the plaintiff’s December 24 opposition.

In principle, Mr. Abilt’s case could be referred for further investigation by the CIA inspector general, as provided under the terms of a September 2009 Department of Justice policy on state secrets cases for disputes that cannot be litigated. But there are no known cases where such a referral has actually been carried out.

The 2009 DOJ policy also promised a periodic report to Congress on current litigation involving the state secrets privilege. But no such report has been transmitted since April 2011.

Other pending state secrets cases include Gulet Mohamed v. Eric Holder, a challenge to the “no fly” list procedures. The government this week requested and was granted an opportunity for additional briefing in that case, including public filings.

And in the most peculiar of state secrets cases, Victor Restis v. United Against Nuclear Iran, the government has intervened to shut the case down even though it is not a party to the proceeding. Nor will it say on the public record which U.S. government agency is asserting the privilege or why it is doing so.

The plaintiff filed a motion last October to compel the government to disclose further information concerning its state secrets claim, and the issue was fully briefed by early December. A decision had been anticipated by the end of 2014. But Judge Edgardo Ramos of the Southern District of New York has still not ruled on the matter.

Updated below

Director of National Intelligence James R. Clapper issued guidance this month on polygraph testing for screening of intelligence community personnel. His instructions give particular emphasis to the use of the polygraph for combating unauthorized disclosures of classified information.

Counterintelligence scope polygraph examinations “shall cover the topics of espionage, sabotage, terrorism, unauthorized disclosure or removal of classified information (including to the media), unauthorized or unreported foreign contacts, and deliberate damage to or misuse of U.S. Government information systems or defense systems,” the guidance states.

Such examinations “shall specifically include the issue of unauthorized disclosures of classified information during pre-examination explanations by incorporating a definition that explicitly states that an unauthorized disclosure means unauthorized communication or physical transfer of classified information to an unauthorized recipient.”

The polygraph administrator is further instructed to explain that an unauthorized recipient is any person without an appropriate clearance or need to know, “including any member of the media.”

See Conduct of Polygraph Examinations for Personnel Security Vetting, Intelligence Community Policy Guidance 704.6, February 4, 2015.

The use of polygraph testing to combat leaks has been a recurring theme in security policy for decades. Yet somehow neither leaks nor polygraph tests have gone away.

President Reagan once issued a directive (NSDD 84) to require all government employees to submit polygraph testing as an anti-leak measure.

In response, Secretary of State George P. Shultz famously declared in 1985 that he would quit his job rather than take the test. “The minute in this government I am told that I’m not trusted is the day that I leave,” Shultz told reporters.

Having forthrightly declared his position, Secretary Shultz was never compelled to undergo the polygraph test or to resign. “Management through fear and intimidation,” he said in 1989, “is not the way to promote honesty and protect security.”

From another perspective, the problem with polygraph testing has nothing to do with intimidation but with accuracy and reliability. There is at least a small subset of people who seem unable to “pass” a polygraph exam for reasons that neither they nor their examiners can discern. And there are others, such as the CIA officer and Soviet spy Aldrich Ames, who have been able to pass the polygraph test while in the espionage service of a foreign government.

Update: The polygraph provisions of NSDD 84 were quietly modified in 1984 and were never implemented.

Unauthorized disclosures of classified information by Edward Snowden have damaged U.S. intelligence capabilities, National Counterterrorism Center director Nicholas J. Rasmussen told Congress last week.

“Due to the Snowden leaks and other disclosures, terrorists also have a great understanding of how we seek to conduct surveillance including our methods, our tactics and the scope and scale of our efforts. They’ve altered the ways in which they communicate and this has led to a decrease in collection,” Mr. Rasmussen said at a February 12 hearing of the Senate Select Committee on Intelligence.

“We have specific examples which I believe we have shared with the committee and the committee staff in classified session — specific examples of terrorists who have adopted greater security measures such as using various new types of encryption, terrorists who have dropped or changed email addresses, and terrorists who have simply stopped communicating in ways they had before, in part because they understand how we collected,” he said.

This is not terribly persuasive, particularly since Mr. Rasmussen did not specify which leaks resulted in which changes by which terrorists at what cost to U.S. security. Nor is a public statement by an intelligence official before the Senate Intelligence Committee entitled any longer to a presumption of accuracy since the Committee permits errors to stand uncorrected.

Nevertheless, it seems plausible that leaks which had the power to galvanize public debate over the scope of intelligence surveillance might also have had the power to undermine existing collection capabilities, including collection for valid and necessary purposes.

For some of Edward Snowden’s partisans and supporters, however, the possibility that his leaks had negative as well as positive consequences involves more complexity than they can tolerate. If Snowden intended to defend constitutional values, as he insists, then how dare anyone suggest that he may have also aided America’s enemies, even indirectly?

This sort of complexity does not arise in Laura Poitras’s award-winning film Citizenfour about Snowden, as its few critical reviewers have noted.

Many of the documents Snowden disclosed “go far beyond exposures of spying on Americans,” wrote Fred Kaplan in a review of the film in Slate. “If Snowden and company wanted to take down an intelligence agency, they should say so. But that has nothing to do with whistleblowing or constitutional rights.”

Likewise, wrote George Packer in The New Yorker, “Among the leaked documents are details of foreign-intelligence gathering that do not fall under the heading of unlawful threats to American democracy–what Snowden described as his only concern. [Former NSA official William] Binney, generally a fervent Snowden supporter, told USA Today that Snowden’s references to ‘hacking into China’ went too far: ‘So he is transitioning from whistle-blower to a traitor’.”

And from Michael Cohen in The Daily Beast: “What is left out of Poitras’s highly sympathetic portrayal of Snowden is so much of what we still don’t know about him. For example, why did he steal so many documents that have nothing to do with domestic surveillance but rather overseas–and legal–intelligence-gathering operations?”

But for a discussion of Citizenfour that presents no such dissonant, skeptical notes or troublesome opposing views, see the late David Carr’s final interview with Snowden, Poitras and Glenn Greenwald.

“How’d you like the movie?” Mr. Carr asked Snowden. “It’s incredible,” Mr. Snowden affirmed. “I don’t think there’s any film like it.”

The Director of National Intelligence last week issued a new directive on “critical information,” also denominated “CRITIC,” which refers to national security information of the utmost urgency.

“Critical information is information concerning possible threats to U.S. national security that are so significant that they require the immediate attention of the President and the National Security Council,” the directive explains.

“Critical information includes the decisions, intentions, or actions of foreign governments, organizations, or individuals that could imminently and materially jeopardize vital U.S. policy, economic, information system, critical infrastructure, cyberspace, or military interests.”

See “Critical Information (CRITIC),” Intelligence Community Directive 190, February 3, 2015.

Interestingly, any intelligence community official can designate information as “critical,” thereby hotlining it for Presidential attention. “Critical information may originate with any U.S. government official in the IC,” the DNI directive says.

Moreover, “CRITIC reporting may be based on either classified or unclassified information.” However, “CRITIC reporting should be based solely on unclassified information only if that information is unlikely to be readily available to the President and the National Security Council.”

The threshold for critical information is fairly high. It includes such things as a terrorist act against vital U.S. interests, the assassination or kidnapping of officials, a cyberspace attack that produces effects of national security significance, and so on.

Confusingly, the term critical information (CRITIC) is used differently in the Department of Defense.

According to the latest DoD Dictionary of Military Terms, “critical information” means “Specific facts about friendly intentions, capabilities, and activities needed by adversaries for them to plan and act effectively so as to guarantee failure or unacceptable consequences for friendly mission accomplishment. Also called CRITIC.”

New reports from the Congressional Research Service that Congress has not made publicly available include the following.

Perspectives on the Senate Select Committee on Intelligence (SSCI) “Torture Report” and Enhanced Interrogation Techniques: In Brief, February 10, 2015

U.S. Sanctions on Russia: Economic Implications, February 4, 2015

Alien Removals and Returns: Overview and Trends, February 3, 2015

A Guide to Describing the Income Distribution, February 5, 2015

The Measles: Background and Federal Role in Vaccine Policy, February 9, 2015

Bee Health: The Role of Pesticides, February 9, 2015

Newly updated versions of prior CRS reports that Congress has also withheld from online public distribution include these.

The United States and Europe: Current Issues, February 3, 2015

Yemen: Background and U.S. Relations, February 11, 2015

The Presidential Records Act: Background and Recent Issues for Congress, December 31, 2014

Trafficking in Persons in Latin America and the Caribbean, February 11, 2015

Monetary Policy and the Federal Reserve: Current Policy and Conditions, February 9, 2015

Tailoring the Patent System for Specific Industries, February 6, 2015

The Global Climate Change Initiative (GCCI): Budget Authority and Request, FY2010-FY2016, February 6, 2015

EPA Regulation of Greenhouse Gases: Congressional Responses and Options, February 5, 2015

Evaluating the “Past Performance” of Federal Contractors: Legal Requirements and Issues, February 5, 2015

The Target and Other Financial Data Breaches: Frequently Asked Questions, February 4, 2015

Domestic Food Assistance: Summary of Programs, February 4, 2015

Terminating Contracts for the Government’s Convenience: Answers to Frequently Asked Questions, February 3, 2015

The Federal Acquisition Regulation (FAR): Answers to Frequently Asked Questions, February 3, 2015

Offender Reentry: Correctional Statistics, Reintegration into the Community, and Recidivism, January 12, 2015

Crime and Forfeiture, January 22, 2015