The possibility of using subpoenas to compel testimony from reporters or others in leak investigations outside of a criminal prosecution is being floated by the Intelligence Community Inspector General.

But such authority would have to be granted legislatively, and so far there is no sign that Congress is considering doing so.

The government’s interest in using administrative subpoenas was mentioned in the latest semi-annual report of the IC Inspector General:

 “In March 2019, [IC] Inspector General Atkinson and the Inspector General of the Department of Justice met a second time with the President’s Intelligence Advisory Board to discuss, among other things, legislative approaches to reduce unauthorized disclosures, including testimonial subpoena authority for OIGs to compel non-agency individuals to provide testimony in administrative investigations.” (page 19)

* * *

Administrative investigations of leaks may occur before a criminal proceeding has been initiated, or after the Justice Department has declined criminal prosecution, as it often does. (In 2017-2018 there were over 200 referrals to the Justice Department of suspected criminal leaks, but only a handful of actual prosecutions ensued.)

As an alternative to criminal prosecution, administrative investigations can result in punishment of suspected leakers in the form of loss of security clearance, termination of employment, or monetary penalties.

In a criminal case, prosecutors can subpoena witnesses such as reporters and seek to compel their testimony. In the case of accused leaker Jeffrey Sterling, an appeals court concluded in a 2013 opinion that the government was within its rights to subpoena reporter James Risen. Although Risen did not ultimately testify in that case, the ruling authorizing a subpoena for a reporter in such circumstances remains in place after the US Supreme Court declined to review it.

But in internal administrative leak investigations, subpoena authority is not currently available (outside of espionage investigations involving a foreign power). It is this power which the IC Inspector General has now raised for discussion.

Noteworthy new reports from the Congressional Research Service include the following.

FY2020 National Security Space Budget Request: An Overview, CRS In Focus, June 7, 2019

U.S. Military Electronic Warfare Program Funding: Background and Issues for Congress, June 6, 2019

The International Emergency Economic Powers Act (IEEPA) and Tariffs: Historical Background and Key Issues, CRS Insight, June 5, 2019

Iran and Israel: Tension Over Syria, CRS In Focus, updated June 5, 2019

North Korea: Legislative Basis for U.S. Economic Sanctions, updated June 6, 2019

Human Rights in China, CRS In Focus, June 4, 2019

Transatlantic Relations: U.S. Interests and Key Issues, May 31, 2019

Enforcing Federal Privacy Law–Constitutional Limitations on Private Rights of Action, CRS Legal Sidebar, May 31, 2019

Technological Convergence: Regulatory, Digital Privacy, and Data Security Issues, May 30, 2019

Navy Large Unmanned Surface and Undersea Vehicles: Background and Issues for Congress, June 7, 2019

War Legacy Issues in Southeast Asia: Unexploded Ordnance (UXO), June 3, 2019

The Front End of the Nuclear Fuel Cycle: Current Issues, June 6, 2019

President Trump issued a memorandum last week that transfers to the Attorney General the authority of the Director of National Intelligence to declassify intelligence information concerning the 2016 election.

The memorandum effectively amends Executive Order 13526 on classification on national security information, but in a highly customized way: It applies only to Attorney General William Barr (not any successors) and only to the investigation of the 2016 presidential campaigns. The memorandum was published in the Federal Register today.

Even so, the move represents a functional demotion of the Director of National Intelligence and a partial transfer of his authority to the Attorney General.

Executive Order 13526 gave sweeping authority over declassification of intelligence information to the DNI, who was authorized to “declassify, downgrade, or direct the declassification or downgrading of information or intelligence relating to intelligence sources, methods, or activities.” (sect. 3.1c)

The new presidential memorandum adopts the same language but modifies the provision to state that it is Attorney General Barr who may now “declassify, downgrade, or direct the declassification or downgrading of information or intelligence that relates to the Attorney General’s review.”

No rationale for the change was provided, though it was understood to support the Attorney General’s investigation into what he called U.S. government “spying” on the Trump campaign.

Senator Mark Warner (D-VA) warned that the move threatened to politicize intelligence. “Selectively declassifying sources and methods in order to serve a political agenda will make it harder for the intelligence community to do their jobs protecting this country from those who wish to do us harm,” he said.

For his part, DNI Dan Coats said that “I am confident that the Attorney General will work with the IC in accordance with the long-established standards to protect highly-sensitive classified information that, if publicly released, would put our national security at risk.”

*    *    *

There is some precedent for overriding the judgment of the DNI concerning the protection of sources and methods.

A 1999 decision of the Justice Department Office of Legal Counsel concluded that the presidentially-established Interagency Security Classification Appeals Panel could declassify intelligence information over the objections of the Director of Central Intelligence.

While it is true that the DCI, and now the DNI, is obliged by the National Security Act to protect intelligence sources and methods from unauthorized disclosure, the Director’s authority in this area is not absolute or exclusive.

Specifically, “If the President concludes that information concerning intelligence sources and methods should not be classified, the disclosure of such information simply is not ‘unauthorized’ within the meaning of the [National Security Act],” wrote Randolph D. Moss of the Office of Legal Counsel in his 1999 opinion.

Still, this OLC conclusion may not be correct (said a non-lawyer) because “declassification” is not the same as “disclosure.” Even intelligence information that is declassified or unclassified may still be, and often is, protected from public disclosure by the DNI under the provisions of the National Security Act.

The new presidential memorandum does not address the question of disclosure at all.

The use of open pit burning for disposal of hazardous waste, medical waste, tires or plastic can present a threat to human health and safety, as well as causing other environmental damage. So as a rule, the practice is “strictly prohibited” by Department of Defense regulations.

But there are exceptions to the rule. And DoD continues to rely on open pit burning for waste disposal in some of its contingency operations abroad, according to a new DoD report to Congress.

Specifically, DoD identified a total of nine locations where open pit burning of waste continued this year: seven in Syria, one in Afghanistan, and one in Egypt. See Department of Defense Open Burn Pit Report to Congress, April 2019.

By way of justification, the DoD report said that “In countries such as Iraq, Syria, or Afghanistan it is common practice to burn waste in open pits.”

And while alternative approaches would be welcome, the Pentagon has other fish to fry. “The Department’s strategic investments are focused on providing a more lethal force, vice investment in costly support systems.”

“No technology or equipment solution has been devised that could eliminate all waste burning requirements for every contingency location,” the report to Congress said.

The new DoD report was obtained through the Freedom of Information Act. A provision of the pending FY2020 defense appropriations bill would require DoD in the future to “post on a public website any report required to be submitted to Congress with certain exceptions.”

At the request of the Department of Homeland Security, the Army Corps of Engineers has undertaken numerous barrier construction projects along the border with Mexico in California, Arizona and New Mexico.

The latest projects were itemized by the Congressional Research Service in Army Corps of Engineers and U.S. Southern Border Barriers, CRS In Focus, May 22, 2019.

Some other noteworthy new publications from the Congressional Research Service include the following.

Defense Primer: Acquiring Specialty Metals, Rare Earth Magnets, and Tungsten, CRS In Focus, May 24, 2019

The Economic Effects of the 2017 Tax Revision: Preliminary Observations, May 22, 2019

Legislative Purpose and Adviser Immunity in Congressional Investigations, CRS Legal Sidebar, May 24, 2019

An Overview of State and Federal Authority to Impose Vaccination Requirements, CRS Legal Sidebar, May 22, 2019

Last September, President Trump issued an executive order declaring a national emergency “to deal with the threat of foreign interference in United States elections.” Executive Order 13848 authorized sanctions against foreign individuals and entities determined to have engaged in election interference.

Six months later, no such individuals or entities have been identified.

“No entities or individuals have been designated pursuant to E.O. 13848,” according to the first semi-annual report on the national emergency issued by the Secretary of the Treasury. As a result, no sanctions were imposed and no civil penalties were assessed. (However, approximately $310,000 was spent to implement the executive order, “most of which represent wage and salary costs for federal personnel.”)

See Periodic Report on the National Emergency With Respect to the Threat of Foreign Interference in United States Elections, September 12, 2018 through March 5, 2019, Department of the Treasury, which was released this week under the Freedom of Information Act.

In a classified report earlier this year, the Departments of Justice and Homeland Security said they found no evidence that a foreign government or foreign agent had a material impact on the integrity or security of the 2018 midterm elections.

“Since 2006 — five years after the start of major combat operations in Afghanistan and three years after the U.S.-led invasion of Iraq — a total of 16,652 active duty personnel and mobilized reservists have died while serving in the U.S. armed forces,” the Congressional Research Service said, based on data obtained from the Department of Defense. See Recent Trends in Active-Duty Military Deaths, CRS In Focus, updated May 20, 2019.

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

Military Personnel and Extremism: Law, Policy, and Considerations for Congress, CRS Insight, updated May 16, 2019

United States Foreign Intelligence Relationships: Background, Policy and Legal Authorities, Risks, Benefits, May 15, 2019

Global Human Rights: The Department of State’s Country Reports on Human Rights Practices, CRS In Focus, updated May 20, 2019

Combating Corruption in Latin America: Congressional Considerations, May 21, 2019

Cuba: Trump Administration Expands Sanctions, CRS Insight, May 17, 2019

The European Parliament and U.S. Interests, CRS In Focus, May 16, 2019

Long Live Cash: The Potential Decline of Cash Usage and Related Implications, May 10, 2019

Electronic Messaging Recordkeeping Requirements, CRS In Focus, May 21, 2019

During the five year period from 2013-2017, there were 1,059 criminal cases of defense contracting fraud resulting in the conviction of 1,087 defendants, including 409 businesses, according to a newly released Department of Defense report to Congress. There were another 443 fraud-related civil cases resulting in judgments against 546 defendants.

During that same period, the Department of Defense entered into more than 15 million contracts with contractors who had been indicted, fined, and/or convicted of fraud, or who reached settlement agreements. The value of those contracts exceeded $334 billion, according to the DoD report. See Report on Defense Contracting Fraud, DoD report to Congress, December 2018.

The report was prepared in response to a requirement in the FY2018 defense authorization act at the initiative of Sen. Bernie Sanders. It was released this week under the Freedom of Information Act.

A previous report covering the period of 2001-2010 was produced by the Department of Defense in 2011, also at the request of Senator Sanders. The earlier report likewise found extensive fraud including criminal and civil offensive in defense contracting.

“Simply put, the Pentagon continues to be riddled with waste, fraud and abuse of taxpayer funds to a degree unmatched across the federal government,” Sen. Sanders said in 2017. “It is unacceptable that the Department of Defense continues to lose vast sums of taxpayer money because of fraud perpetrated by major defense contractors. This has got to end.”

The 2011 report listed dozens of defense contracting firms that had been convicted of criminal fraud, and hundreds more that had been subject to civil judgments.

The latest report names nine firms that were debarred or suspended but otherwise does not identify the criminal or civil defendants from the 2013-2017 period covered by the report. But much of this information can be gleaned from the Federal Contractor Misconduct Database (FCMD) maintained by the Project on Government Oversight.

Several recent instances of defense contractor fraud are described in the latest Semi-Annual Report from the Department of Defense Inspector General.

“Procurement fraud includes, but is not limited to, cost and labor mischarging, defective pricing, price fixing, bid rigging, and defective and counterfeit parts,” the DoD IG report said. “The potential damage from procurement fraud extends well beyond financial losses. This crime poses a serious threat to the DoD’s ability to achieve its objectives and can undermine the safety and operational readiness of the warfighter.”

Noteworthy new publications from the Congressional Research Service include the following.

Nuclear Waste Storage Sites in the United States, CRS In Focus, May 3, 2019

Proposed Civilian Personnel System Supporting “Space Force”, CRS In Focus, May 7, 2019

Base Closure and Realignment (BRAC): Background and Issues for Congress, April 25, 2019

Congressional Access to the President’s Federal Tax Returns, CRS Legal Sidebar, updated May 7, 2019

“Sanctuary” Jurisdictions: Federal, State, and Local Policies and Related Litigation, updated May 3, 2019

Terrorism, Violent Extremism, and the Internet: Free Speech Considerations, May 6, 2019

“Since September 11, 2001, the Department of Defense (DoD) has obligated $1,534.8 billion for war-related costs,” according to a new Pentagon quarterly report.  See Cost of War Through December 31, 2018, FY 2019, 1st quarter.

The DoD report summarizes and categorizes spending patterns over the past two decades by operation (Iraq, Syria, Afghanistan), by year, by DoD component, and by amount appropriated. The report has been transmitted to the General Accounting Office, but it is otherwise not publicly distributed by the Department of Defense.

The validity of the DoD cost accounting in these periodic reports is questionable, and not only because they exclude the significant costs of health care for wounded personnel, reconstruction, and other war-related costs.

Several past DoD cost of war reports had “systemic problems,” were “inaccurate” and “unreliable,” the Department of Defense Inspector General found earlier this year. See Summary Audit of Systemic Weaknesses in the Cost of War Reports, DODIG-2019-066, March 22, 2019.

“Over the past three years, obligations for war spending have averaged $47 billion per year, mostly to fund the operating support costs of U.S. forces in and around Afghanistan,” according to a recent overview from the Congressional Research Service. See U.S. War Costs, Casualties, and Personnel Levels Since 9/11, CRS In Focus, April 18, 2019.

Meanwhile, the U.S. military last week issued updated doctrine on peace operations, which encompasses five distinct activities: conflict prevention, peacemaking processes, peace enforcement operations (PEO), peacekeeping operations (PKO), and peace building. See Peace Ops: Multi-Service Tactics, Techniques, and Procedures for Peace Operations, ATP 3-07.31, May 2, 2019.

The Department of Defense decision not to renew the underlying contract for the independent JASON scientific advisory panel drew criticism from a bipartisan, bicameral group of congressmen and senators.

“We believe that cancelling the JASON contract could damage our national security by depriving not only the Pentagon, but also other national security agencies, of sober and sound advice in confronting some of the Nation’s most complex threats,” the members wrote on May 3.

They noted that the National Nuclear Security Administration had recently intervened to sustain the JASONs for the coming year.

“However,” they wrote, “given the national security interests involved in cancellation of the JASON contract, a permanent solution must be found. We encourage you to work with NNSA and the other agencies that utilize JASON to find an appropriate long-term home for JASON, whether it be Research and Engineering, another office, such as Acquisition and Sustainment, or NNSA.”

If the JASONs’ current sponsor at Defense Research and Engineering is indifferent to or uninterested in the work of JASON, it would be pointless to compel continued sponsorship of the group there. But other agencies such as NNSA have an interest in preserving JASON, as does Congress itself.

“Members of Congress have long counted on their nonpartisan, independent, science-based advice to inform our decisions on a range of national security issues facing our nation, such as nuclear weapons, space, and emerging technologies,” the members wrote. They posed a series of questions about the Pentagon’s handling of the JASON contract and they asked the Acting Secretary of Defense to cooperate in resolving the issue.

Last week a Freedom of Information Act request for a copy of a 2016 JASON report entitled “Counterspace” was denied on appeal by the Defense Advanced Research Projects Agency. The unclassified JASON report is exempt from FOIA as deliberative material and because it contains arms export control information, DARPA said.

All US military operations depend on the Department of Defense information network (DODIN). But the network is under increasing stress both internally and from external threats.

“DODIN operations are arguably the most important and most complex type of operation the Army performs on a daily basis,” according to a new Army doctrinal publication. “The network is the foundational capability for all other Army warfighting functions and capabilities.”

But the foundational character of the DoD information network also makes it a target.

“Because communications are a key command and control enabler, U.S. military communications and information networks present high value targets for enemies and adversaries.”

The new Army publication “establishes non-prescriptive ways to perform missions, functions, and tasks associated with Department of Defense information network operations in Army networks to enable and support the Army’s mission at all echelons.” See Techniques for Department of Defense Information Network Operations, ATP 6-02.71, April 30, 2019.

To a certain extent the Army vision of the DoD information network is aspirational and does not correspond to current reality.

The actual network infrastructure is “antiquated and is failing at high rates,” Secretary of the Air Force Heather Wilson told the House Armed Services Committee last year in response to questions for the record in a newly published hearing volume.