The National Archives is seeking a new Director of the Federal Register program, a position that requires a Top Secret security clearance.

The Federal Register is sometimes described as the “daily newspaper” of the executive branch. Each weekday, it “provides citizens access to proposed and final regulations, rules, and other administrative actions of the Federal government,” according to an announcement in USA Jobs.

In addition to overseeing the Federal Register itself, the Director of the Federal Register program is responsible for administering the Code of Federal Regulations, the United States Government Manual, the Public Papers of the Presidents, and other foundational U.S. government documents.

So why does the Director need a Top Secret clearance? One reason is that he or she would play a role in continuity of government under conditions of national emergency, and would be responsible in particular for production of the so-called Emergency Federal Register.

“Over the past several years, Federal agencies have developed contingency plans to maintain operations in the case of a broad range of emergency circumstances,” according to a recent proposed rule that was published (naturally) in the Federal Register on October 28. “The FRA [Federal Register Act] authorizes the President to activate the Emergency Federal Register (EFR) system in place of the daily Federal Register in certain limited circumstances…. The purpose of the EFR is to support the preservation of the rule of law and a constitutional form of government,” the proposed rule explained.

Up to now, as far as anyone can tell, the Emergency Federal Register “has never actually replaced the ‘real thing’,” said Harold C. Relyea, a specialist in U.S. government information policy.

The search for a new Director of the Federal Register is open through November 21.

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

Executive Discretion as to Immigration: Legal Overview, November 10, 2014

FEMA’s Disaster Declaration Process: A Primer, November 12, 2014

A New Authorization for Use of Military Force Against the Islamic State: Comparison of Current Proposals in Brief, November 6, 2014

Contracting with Inverted Domestic Corporations: Answers to Frequently Asked Questions, November 7, 2014

Bee Health: Background and Issues for Congress, November 3, 2014

Zivotofsky v. Kerry: The Jerusalem Passport Case, October 30, 2014

Landsat: Overview and Issues for Congress, October 27, 2014

Aiding, Abetting, and the Like: An Overview of 18 U.S.C. 2, October 24, 2014

Constitutional Points of Order in the Senate, November 12, 2014

The Administration’s Supplemental Request for Ebola and Other Infectious Diseases, CRS Insights, November 7, 2014

Could the Defense Contract Audit Agency Be Held Liable for Malpractice? Recently Filed Litigation Raises the Question Again, CRS Legal Sidebar, November 7, 2014

Three Parties, Two Cases, One Set of Documents; Not a Fast and Furious Resolution, CRS Legal Sidebar, November 10, 2014

Hundreds of millions of dollars worth of U.S. Army equipment and supplies in Afghanistan have been lost or are unaccounted for, a report from the Department of Defense Inspector General said.

“Since 2010, 309 forward operating bases [in Afghanistan] have closed and only a fraction of lost items from previous [inventory loss investigations] have been located. For example, between 2006 and 2010, there were 174,247 pieces of equipment listed as unaccounted for […], valued at $429.5 million…. As of May 30, 2014, only 40,690 (23 percent) of the total pieces of equipment and $191.1 million (44 percent) of the total dollar amount have been recovered,” the IG report said.

That paragraph in the report was marked “For Official Use Only,” as was the report as a whole.  Accordingly, the report has not been officially released to the public. (The findings of the report were previously reported by Bloomberg News).

The October 30 report is entitled “The Army Needs to Improve the Processes for Reporting Inventory Losses in Afghanistan.”

In the Department of Defense, “For Official Use Only” applies to unclassified records that may be exempt from mandatory disclosure under the Freedom of Information Act. It is not clear how the FOUO marking might be justified in this case.

New and updated publications from the Congressional Research Service that Congress has withheld from online public access include the following.

Staff Pay Levels for Selected Positions in House Member Offices, 2009-2013, November 3, 2014

Staff Pay Levels for Selected Positions in Senators’ Offices, FY2009-FY2013, November 3, 2014

Congressional Action on FY2015 Appropriations Measures, November 5, 2014

The G-20 Summit: Brisbane, November 15-16, 2014, CRS Insights, November 5, 2014

Treating Ebola Patients in the United States: Health Care Delivery Implications, CRS Insights, November 4, 2014

EPA’s Clean Power Plan Proposal: Are the Emission Rate Targets Front-Loaded?, CRS Insights, November 3, 2014

How Will the Federal Reserve “Normalize” Monetary Policy After QE?, CRS Insights, October 30, 2014

Federal Taxation of Marijuana Sellers, CRS Legal Sidebar, November 6, 2014

Voter Identification Requirements: Background and Legal Issues, November 3, 2014

Qatar: Background and U.S. Relations, November 4, 2014

Immigration Legislation and Issues in the 113th Congress, November 4, 2014

Border Security: Immigration Inspections at Ports of Entry, October 31, 2014

Renewable Energy R&D Funding History: A Comparison with Funding for Nuclear Energy, Fossil Energy, and Energy Efficiency R&D, October 10, 2014

The National Intelligence Program received a total appropriation of $50.5 billion in fiscal year 2014, the Office of the Director of National Intelligence disclosed yesterday, as required by law. The Military Intelligence Program was funded at $17.4 billion in FY 2014, the Department of Defense said. Current and past intelligence budget disclosures can be found here.

Marshall Erwin, a former analyst at the Congressional Research Service and the CIA, said that in principle, the intelligence community should be able to “absorb recent cuts quite easily.” But “whether the IC will actually absorb cuts without degrading capabilities is a separate question. While it has the means to do so, thus far decisionmakers have not proven up to the task.” He presented his perspective on trends in intelligence spending in “Doing Way More with Much Less: Intelligence by the Numbers” on the new blog Overt Action.

Overt Action is part of an effort by Erwin and several colleagues “to create a venue for intelligence professionals to more effectively engage in public debate.”

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

Intelligence Whistleblower Protections: In Brief, October 23, 2014

Sexual Violence at Institutions of Higher Education, October 23, 2014

Cities Try, and Fail (So Far), to Prevent Federal Marijuana Enforcement, CRS Legal Sidebar, October 24, 2014

Bankruptcy for Marijuana Businesses?, CRS Legal Sidebar, October 29, 2014

Spectrum Needs of Self-Driving Vehicles, CRS Insights, October 28, 2014

The Ebola Outbreak: Quarantine and Isolation Authority, CRS Legal Sidebar, October 28, 2014

Can Marriage Conquer “Consular Nonreviewability” for a Spouse’s Visa Denial?, CRS Legal Sidebar, October 30, 2014

Congressional Power to Create Federal Courts: A Legal Overview, October 1, 2014

Drug Enforcement in the United States: History, Policy, and Trends, October 2, 2014

Updated/corrected below

A federal court yesterday denied a government motion to dismiss a pending lawsuit that the Obama Administration said involved state secrets. It appears to be the first time that such a motion for dismissal has ever been rejected in a state secrets case. [Update: Not so. There was a previous instance; see below.] The lawsuit, Gulet Mohamed v. Eric H. Holder, concerns the constitutionality of the “no fly” list.

The government filed its dismissal motion last May 28. It included a declaration from Attorney General Eric Holder in which he asserted “a formal claim of the state secrets privilege in order to protect the national security interests of the United States.” An accompanying memorandum of law elaborated on the government’s claim.

In August, Judge Anthony J. Trenga of the Eastern District of Virginia ordered the government to provide copies of the assertedly privileged documents for his in camera review. After initially resisting and seeking reconsideration of that order, the government complied.

Based on his review, Judge Trenga yesterday issued his order denying the government motion for dismissal of the case. He said that “the information presented to date by the defendants in support of the state secrets privilege as to these documents is insufficient” to justify suspending the proceeding, though he declined to rule definitively on whether the state secrets privilege did or did not apply to any of the documents. He did allow that some of the documents appear to contain security sensitive information that may be subject to a law enforcement privilege.

Even so, the case can go forward without the documents, he said, and dismissal is unwarranted.

“None of the documents are so related to plaintiff’s procedural due process claims as to prevent either the plaintiff or the defendant from presenting or defending against those claims without the use of any of these documents,” he wrote in his October 30 order.

The state secrets privilege is not a get out of jail (or get out of court) free card, Judge Trenga indicated.

“The state secrets privilege is a judicially created rule of evidence, not a doctrine of sovereign immunity or non-justiciability,” he wrote. This means that it can be properly used to prevent the introduction of specific items of evidence, but not to sweepingly exclude whole domains of law and policy from litigation or due process.

In theory, the Department of Justice agrees with this position, which it endorsed in a September 2009 policy statement.

“Under this policy, the Department will narrowly tailor the use of the states secrets privilege whenever possible to allow cases to move forward in the event that the sensitive information at issue is not critical to the case,” the Justice Department said then.

But since that policy was issued in 2009 by Attorney General Holder, there is no known case in which Department officials actually went on to “narrowly tailor” their use of the privilege in this way. Now Judge Trenga has done it for them.

Update/Correction: A government assertion of the state secrets privilege has previously been rebuffed in court. Judge Allen G. Schwartz denied a CIA state secrets claim in a 2003 decision in Sterling v. Tenet, an employment discrimination case. However, the dismissal of the case was upheld on appeal.

Unauthorized disclosures of classified information, leaks to the news media, acts of espionage, and certain other information security offenses are now to be collectively designated as “serious security incidents,” according to a Department of Defense directive that was published this week.

The new terminology was adopted in order to standardize procedures for preventing, identifying, investigating and reporting such violations when they occur. See “Management of Serious Security Incidents Involving Classified Information,” DoD Directive 5210.50, October 27, 2014.

The new directive replaces a previous directive from 2005, which had simply been titled “Unauthorized Disclosure of Classified Information to the Public.”

Not every episode of mishandling classified information qualifies as a “serious security incident.” But that term applies whenever there is an unauthorized disclosure of classified information in the news media, or an act of espionage, or a willful disclosure of classified information to an unauthorized person that involves large amounts of classified information, or that reveals a systemic weakness in classification practices, among other circumstances. The threshold is determined by what is reportable to senior to DoD authorities (as specified in DoD Manual 5200.01, vol. 3, enclosure 6, at p. 88).

(Strictly speaking, the creation of an unauthorized DoD “special access program” would also appear to constitute a “serious security incident” requiring investigation, reporting and accountability. But that possibility is not mentioned in the new directive.)

“Serious security incident investigations and reporting will integrate security, counterintelligence, law enforcement, and other appropriate DoD interests to ensure that the causes of serious security incidents are identified and that all appropriate means are utilized to identify and mitigate damage to national security and avoid similar occurrences,” the new directive states.

This week, Michael Isikoff of Yahoo News reported that the FBI had identified a new leaker (“Feds identify suspected ‘second leaker’ for Snowden reporters,” October 27). The story also cited concerns among some intelligence officials that the Department of Justice may be reluctant to initiate new criminal prosecutions of suspected leakers due to criticism of past overzealousness.

It is hard to confirm from a distance that such reluctance on the part of Justice Department officials exists. But in fact, the government has always had alternatives to Espionage Act prosecutions of suspected leakers, including civil or administrative penalties and loss of security clearance.

The new DoD directive says that “DoD personnel responsible for serious security incidents may be held accountable, as appropriate, in a criminal proceeding, civil judicial action, disciplinary or adverse administrative action, or other administrative action authorized by federal law or regulations.”

Likewise, a July 2013 Department of Justice review of policies concerning the news media said that “The Department will work with others in the Administration to explore ways in which the intelligence agencies themselves, in the first instance, can address information leaks internally through administrative means, such as the withdrawal of security clearances and imposition of other sanctions.”

The U.S. Government overreached by intervening in a private defamation lawsuit to assert the state secrets privilege without providing a public explanation or even identifying which agency was asserting the privilege, the plaintiff in that lawsuit yesterday.

That argument was bolstered by an amicus brief from civil liberties organizations concerning the proper use of the privilege and the alternatives to dismissal of the case.

The issue arose after Greek businessman Victor Restis filed the lawsuit last year against the private group United Against Nuclear Iran (UANI), alleging that it had falsely accused Restis of engaging in illicit commerce with Iran.

The U.S. Government, which was not a party to the case, unexpectedly asserted the state secrets privilege and moved for dismissal of the case in September, while refusing to disclose exactly why or by whom the privilege was being asserted.

“The Government’s refusal to make [any] public disclosure at all — even its basic theory of how the privilege may apply in this unprecedented setting — suggests not that nothing can be disclosed, but that the Government is again overplaying a weak hand that likely would not survive public scrutiny,” wrote Abbe D. Lowell, attorney for the plaintiff Mr. Restis.

“Assuming state secrets exist here — which Plaintiffs will not concede in this improbable setting without additional information from the Government — imposing the civil litigation equivalent of the death penalty [i.e. dismissal of the case] is not appropriate…. Reasonable alternatives do exist here that would finally permit this case to proceed to a fair adjudication of the merits,” Mr. Lowell wrote.

He urged the court to “require additional public disclosure from the Government and Defendants, and provide Plaintiffs’ counsel access to the Government’s submissions. Only then can the adversarial process test the Government’s state secrets privilege claim and, if applicable, determine the appropriate remedy.”

A similar approach was endorsed by the ACLU and several other civil liberties organizations in an October 29 amicus brief.

“The government’s refusal here to provide a public declaration supporting its assertion of the state secrets privilege is unprecedented in the annals of state secrets litigation,” the civil liberties groups wrote.

“Even in cases involving extraordinarily sensitive subject matter such as governmental torture, surveillance, intelligence, and secret weapons systems, litigants have had some basis for understanding the governmental interest in the litigation. Here, by contrast, the parties lack even the broadest contours of government’s alleged justification for the draconian result it seeks: denying a forum for a lawsuit between two private parties.”

“However, if this case is so unique that no further public disclosure is possible, the Court should respond to the unprecedented circumstances the government has created by requiring the government to disclose to security-cleared counsel for the parties the following information: the scope of the privilege assertion; the basis for believing that evidence within the scope of the privilege assertion truly is secret; and the potential harm to national security that could result from public disclosure of the evidence.”

In the end, the government’s claim that state secrets are somehow implicated in this private defamation lawsuit raises several odd and unexplained issues, the plaintiff’s attorney said.

“If the Government is asserting the theory that Defendants [United Against Nuclear Iran] cannot assert a proper defense without state secrets, then numerous questions need to be answered by the Defendants before the Court can rule on that assertion,” suggested Mr. Lowell in his brief.

“Do they [the Defendants] maintain any classified information in their files (despite procedures that would seem to prevent that)? If Defendants or their counsel do have classified information, how did they obtain that information, and do Defendants and their counsel have adequate security clearances such that they can properly access that information? Why would this information be relevant to its allegations against Plaintiffs? Would this information constitute a valid defense against a defamation claim? What element of the defamation claim would this provide a valid defense against? Do Defendants plan to even assert the defense that raises the Government’s concern? Will Defendants deny that they used whatever the Government is trying to protect in their campaign against Plaintiffs, such that the secret has not already been improperly used? Defendants should be required to answer these questions.”

The Defendants and the U.S. government are to file their respective briefs in opposition by November 12.

On October 24, the Pentagon issued an updated version of DoD Directive 5143.01 defining the role of the Under Secretary of Defense (Intelligence), the Department’s principal intelligence advisor and manager of military intelligence programs.

The new directive is about 30% longer than the 2005 version that it replaces.

The differences between the two directives reflect changes in the global environment as well as in the intelligence mission, and in the role of the USD(I) in particular.

Cybersecurity. Insider threats. Unauthorized disclosures of classified information. Biometrics. None of these terms and none of these issues were even mentioned in the 2005 edition of the DoD intelligence directive.

But all of them and more are now part of the expanded portfolio of authorities and responsibilities of the Under Secretary of Defense for Intelligence, who also serves as Director of Defense Intelligence and principal advisor to the DNI on defense intelligence matters.

Meanwhile, intelligence spending has been on a downward slope for the past few years, and the FY2015 request for the Military Intelligence Program was about $1.3 billion below the request for the previous year, which was $18.6 billion. (The FY2014 intelligence appropriations for national and military intelligence programs are due to be disclosed this week.)

“Intelligence is a major source of U.S. advantage. It informs wise policy and enables precision operations. It is our front line of defense. The challenges we face, however, are increasing and becoming more complex, and our resources are declining,” said Michael G. Vickers, the current USD(I), at an April 4 hearing of the House Armed Services Committee.

“We have five defense intelligence operational priorities: countering terrorism, particularly countering the threat posed by al-Qaida; countering the proliferation of weapons of mass destruction and associated delivery systems; countering the actions of repressive governments against their people, such as in Syria; countering state-on-state aggression; and countering cyberthreats,” he said then.

“To address the intelligence gaps that exist within these operational priority areas, we are focused on enhancing defense intelligence capabilities in five areas: enhancing global coverage; improving our ability to operate in anti-access/area denial, or A2AD, environments; sustaining counterterrorism and counterproliferation capabilities; continuing to develop our cyberoperations capabilities; and strengthening our counterintelligence capabilities and reforming our security clearance processes to minimize insider threats,” Mr. Vickers testified.

The position of Under Secretary of Defense (Intelligence) was established by the defense authorization act for FY 2003 to improve management and coordination of defense intelligence programs. The office has previously been occupied by Stephen Cambone and James R. Clapper, Jr., the current DNI.

The new DoD directive authorizes the Under Secretary to “communicate with… members of the public… and non-governmental organizations.” However, “communications with representatives of the news media” are to be conducted through the Office of Public Affairs, the directive said.

New and updated products from the Congressional Research Service that Congress has withheld from online public distribution include the following.

Can the President Bar Foreign Travelers from Ebola-Stricken Countries from Entering the United States?, CRS Legal Sidebar, October 23, 2014

The Appointment Process for U.S. Circuit and District Court Nominations: An Overview, October 22, 2014

No Second Amendment Cases for the Supreme Court’s 2014-2015 Term…Yet, CRS Legal Sidebar, October 23, 2014

JPMorgan Data Breach Involves Information on 76 Million Households, 7 Million Small Businesses, CRS Legal Sidebar, October 23, 2014

Customer Choice and the Power Industry of the Future, September 22, 2014

The Earned Income Tax Credit (EITC): An Overview, updated October 22, 2014

Political Transition in Tunisia, updated October 22, 2014

The “Islamic State” Crisis and U.S. Policy, updated October 22, 2014

A newly disclosed Department of Defense doctrinal publication acknowledges the reality of offensive cyberspace operations, and provides a military perspective on their utility and their hazards.

Attacks in cyberspace can be used “to degrade, disrupt, or destroy access to, operation of, or availability of a target by a specified level for a specified time.” Or they can be used “to control or change the adversary’s information, information systems, and/or networks in a manner that supports the commander’s objectives.”

However, any offensive cyber operations (OCO) must be predicated on “careful consideration of projected effects” and “appropriate consideration of nonmilitary factors such as foreign policy implications.”

“The growing reliance on cyberspace around the globe requires carefully controlling OCO, requiring national level approval,” according to the newly disclosed Cyberspace Operations, Joint Publication 3-12(R).

That publication was first issued by the Joint Chiefs of Staff as a SECRET document in February 2013 (as JP 3-12, without the R). But this week it was reissued as a public document. It is unclear whether the public document has been redacted or modified for release.

The discussion of “offensive cyberspace operations” in the original, classified version of JP 3-12 led to adoption of that term in the official DoD lexicon for the first time in March 2013, where it has remained through the latest edition.

Offensive cyberspace operations (OCO) are “intended to project power by the application of force in and through cyberspace. OCO will be authorized like offensive operations in the physical domains, via an execute order (EXORD).”

The DoD document is fairly candid about the challenges and limitations of cyberspace operations.

“Activities in cyberspace by a sophisticated adversary may be difficult to detect” and to attribute to their source. Yet such detection and attribution capabilities are “critical” for enabling offensive and defensive cyberspace operations.

By the same token, “first-order effects of [US cyberspace operations] are often subtle, and assessment of second- and third-order effects can be difficult,” requiring “significant intelligence capabilities and collection efforts” to evaluate.

Not only that, but US cyberspace operations “could potentially compromise intelligence collection activities. An IGL [Intelligence Gain/Loss] assessment is required prior to executing a CO to the maximum extent practicable.”

In any event, offensive cyber operations are to be used discriminatingly. “Military attacks will be directed only at military targets. Only a military target is a lawful object of direct attack.” But military targets are defined broadly as “those objects whose total or partial destruction, capture, or neutralization offers a direct and concrete military advantage.”

Meanwhile, there are persistent vulnerabilities inherent in DoD information systems, DoD said. “Many critical [US] legacy systems are not built to be easily modified or patched. As a result, many of the risks incurred across DOD are introduced via unpatched (and effectively unpatchable) systems on the DODIN [DoD Information Network].”

The risks are increased because “DOD classified and unclassified networks are targeted by myriad actions, from foreign nations to malicious insiders.”

“Insider threats are one of the most significant threats to the joint force,” the DoD document said.  “Whether malicious insiders are committing espionage, making a political statement, or expressing personal disgruntlement, the consequences for DOD, and national security, can be devastating.”

Overall, “Developments in cyberspace provide the means for the US military, its allies, and partner nations to gain and maintain a strategic, continuing advantage,” the Cyberspace Operations publication said.

But “access to the Internet provides adversaries the capability to compromise the integrity of US critical infrastructures in direct and indirect ways.”

These features represent “a paradox within cyberspace: the prosperity and security of our nation have been significantly enhanced by our use of cyberspace, yet these same developments have led to increased vulnerabilities….”