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

Cybersecurity: Authoritative Reports and Resources, September 20, 2013

Reaching the Debt Limit: Background and Potential Effects on Government Operations, September 19, 2013

Across-the-Board Rescissions in Appropriations Acts: Overview and Recent Practices, September 20, 2013

Private Health Plans Under the ACA: In Brief, September 19, 2013

Patient Protection and Affordable Care Act (ACA): Resources for Frequently Asked Questions, September 19, 2013

Medicare Financing, September 19, 2013

The State of Campaign Finance Policy: Recent Developments and Issues for Congress, September 20, 2013

The National Voter Registration Act of 1993: History, Implementation, and Effects, September 18, 2013

U.S. Natural Gas Exports: New Opportunities, Uncertain Outcomes, September 17, 2013

America COMPETES Acts: FY2008-FY2013 Funding Tables, September 20, 2013

The DHS S&T Directorate: Selected Issues for Congress, September 17, 2013

U.S. Special Operations Forces (SOF): Background and Issues for Congress, September 18, 2013

Kenneth L. Wainstein, the former head of the Justice Department National Security Division, was named to the Public Interest Declassification Board by Senate Minority Leader Mitch McConnell.

Mr. Wainstein is a smart guy and an honorable public servant. But he is not the first or second person most people might think of to help advance “public interest declassification.” In fact, the records that he classified as a Justice Department official or as President Bush’s Homeland Security Advisor might well be the object of such declassification.

But then the Public Interest Declassification Board itself, which advises the White House on declassification policy, is dominated by former government officials, including several intelligence agency leaders.  That has not prevented the Board from producing an important critique of declassification policy (Improving Declassification, 2008) and a more ambitious, somewhat less satisfactory report on classification policy (Transforming the Security Classification System, 2012).

“The members of the PIDB look forward to working with Mr. Wainstein as they continue their efforts to support a transformation of the security classification system,” the Board said in a blog posting.

A deeper problem is that the Obama White House appears to be incapable of acting on the recommendations from the Board, even though it requested them.  Nearly a year has passed since the Board’s last report, and no response from the White House has been forthcoming.  It’s not even clear who would be expected to respond– the National Security Advisor? the Homeland Security Advisor? the Director of National Intelligence (who also serves as “Security Executive Agent”)?

In the absence of effective White House action, Senators Jeanne Shaheen (D-NH) and James E. Risch (R-ID) have introduced legislation that builds on the 2012 PIDB report “to facilitate and enhance the declassification of information that merits declassification” (S. 1464).

In its endless pursuit of national security, the United States has compromised core Constitutional values including civilian control of the military and states’ rights, writes William M. Arkin in his new book “American Coup” (Little, Brown, 2013).

Since 9/11, a growing fraction of the population been mobilized and credentialed in support of homeland security — whether as law enforcement, first responders, or those who simply “see something and say something.”

“What is military and what is civilian is increasingly obscured,” Arkin writes. “The state and local police forces are militarized and networked into one; states have their own intelligence establishments; the big cities make their own foreign policies.”

What concerns Arkin, and what his book helps to illuminate, is what he describes as a parallel apparatus of executive authority that has developed outside of Constitutional norms (and beyond public awareness) to respond to national emergencies– catastrophic acts of terrorism, nuclear disasters, threats to presidential survival, or other extraordinary events.

Some of this is familiar ground, and has been previously described under the rubric of Continuity of Government, or Continuity of Operations, dating back to the Eisenhower Administration. But it has expanded and been formalized, Arkin says, in a series of classified Presidential Emergency Action Documents (PEADs) that assert all but unchecked executive power.  And while those administrative instruments are technically dormant most of the time, they exercise a baleful influence on the normal conduct of political life, he argues.

Despite its garish and off-putting title (and subtitle: “How a Terrified Government is Destroying the Constitution”), “American Coup” is not a manifesto, nor a call to action.

What makes the book interesting and valuable, rather, is its close reading of official documents in search of clues to undisclosed power structures. Arkin is a careful student and a subtle analyst of military doctrine, a neglected genre rich with insights waiting to be discovered.  For some readers, the 100 pages of endnotes will be the most rewarding part of the book.

Arkin observes, for example, that an official U.S. Army history states that martial law has only been declared once in United States history. But an Army field manual reports that martial law has been imposed four times. The Justice Department said there had been two such cases.  All of these are in error, he concludes, and reflect inconsistent definitions of the term. Meanwhile, he reports that the Army issued a new official definition of martial law in 2010 “for the first time in years.”

Arkin is the co-author (with Dana Priest) of “Top Secret America,” and many other works of research into national security policy.

“American Coup” was written prior to the revelations by Edward Snowden of unsuspected bulk collection of American telephone records by the National Security Agency, and such practices are not specifically discussed in the book. But Arkin would likely argue that the Snowden revelations are a special case of a more general phenomenon, in which national security is invoked to justify secret actions that exceed the bounds of public consent.

Arkin does not propose any kind of policy response to the political problems he perceives.  In fact, beyond some marginal steps that might be taken, he says that “bigger changes are blocked” by the powers that be.  Those who believe otherwise will need to look elsewhere.

New and updated reports from the Congressional Research Service obtained by Secrecy News include the following.

Rare Earth Elements in National Defense: Background, Oversight Issues, and Options for Congress, September 17, 2013

Chemical Weapons: A Summary Report of Characteristics and Effects, September 13, 2013

North Korea: U.S. Relations, Nuclear Diplomacy, and Internal Situation, September 13, 2013

Federal Climate Change Funding from FY2008 to FY2014, September 13, 2013

Climate Change Legislation in the 113th Congress, September 16, 2013

Federal Permitting and Oversight of Export of Fossil Fuels, September 17, 2013

Expiration and Extension of the 2008 Farm Bill, September 16, 2013

Guam: U.S. Defense Deployments, September 12, 2013

Russian Political, Economic, and Security Issues and U.S. Interests, September 13, 2013

The Supplemental Nutrition Assistance Program: Categorical Eligibility, September 17, 2013

Ticket to Work and Self-Sufficiency Program: Overview and Current Issues, September 13, 2013

Rebuilding Household Wealth: Implications for Economic Recovery, September 13, 2013

Consumers and Food Price Inflation, September 13, 2013

Synthetic Drugs: Overview and Issues for Congress, September 16, 2013

The leak by Edward Snowden of a classified order issued by the Foreign Intelligence Surveillance Court (FISC) helped to arouse significant public interest, said the Court itself in an opinion issued today. Further disclosures are now justified, the Court indicated.

“The unauthorized disclosure in June 2013 of a Section 215 order, and government statements in response to that disclosure, have engendered considerable public interest and debate about Section 215,” wrote FISC Judge F. Dennis Saylor IV in an opinion today regarding an ACLU motion for release of prior Court opinions concerning Section 215 of the USA Patriot Act.

Judge Saylor directed that any opinions not already subject to litigation under the Freedom of Information Act should now be reviewed for declassification.

“[Further] Publication of FISC opinions relating to this provision would contribute to an informed debate,” Judge Saylor added. “Publication would also assure citizens of the integrity of this Court’s proceedings.”

Yesterday, Director of National Intelligence James Clapper also acknowledged that the leaks, while damaging, had triggered an important debate.

“I think it’s clear that some of the conversations this has generated, some of the debate, actually needed to happen,” DNI Clapper said. “If there’s a good side to this, maybe that’s it.” (“Clapper: Snowden case brings healthy debate; more disclosures to come” by Ken Dilanian, Los Angeles Times, September 12.)

But if the unauthorized disclosure of a FISA Court order generated debate that “needed to happen,” that means that the original classification of the order had precluded a necessary public debate. If so, it follows that a thorough reconsideration of classification policy and practice is due.

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

Securing U.S. Diplomatic Facilities and Personnel Abroad: Legislative and Executive Branch Initiatives, September 12, 2013

Securing U.S. Diplomatic Facilities and Personnel Abroad: Background and Policy Issues, September 12, 2013

Possible U.S. Intervention in Syria: Issues for Congress, September 12, 2013

Syria’s Chemical Weapons: Issues for Congress, September 12, 2013

Egypt in Crisis: Issues for Congress, September 12, 2013

Harbor Maintenance Finance and Funding, September 12, 2013

DHS Headquarters Consolidation Project: Issues for Congress, September 11, 2013

The end of the government’s fiscal year 2013 is just weeks away, but an intelligence authorization bill for fiscal year 2014 is nowhere in sight.  In past years, the House and Senate Intelligence Committees typically reported intelligence bills in late spring or early summer for House-Senate conference and floor action later in the year.  But this year, nothing.

On its homepage, the Senate Intelligence Committee website cites the Committee’s report on the fiscal year 2012 intelligence bill under the heading “recent action.”  But that report was issued in August 2011.  (The Committee website also offers a current compilation of YouTube videos that appear to reflect the use of chemical weapons in Syria.)

Though 2013 has become the most momentous year for intelligence policy in a generation, the Senate Intelligence Committee has not held any public hearings since a March threat briefing, and none at all on surveillance policy.  Americans seeking insight into the meaning of current intelligence controversies must look elsewhere.

Meanwhile, the House and Senate Judiciary Committees have each held stimulating hearings on intelligence surveillance, while the House Intelligence Committee offered a one-sided forum for government officials only.

Up to now, the machinery of intelligence policymaking has seemed poorly suited to coping with the Snowden-derived revelations that continue to emerge.

Confusingly, both the Privacy and Civil Liberties Oversight Board (PCLOB) and the ad hoc Review Group on Intelligence and Communications Technologies are delving into the privacy implications of intelligence surveillance, among other topics, and each has independently sought to engage interested members of the public.  But neither body has policymaking power or authority, and it is unclear how their findings and recommendations might eventually shape policy.

My initial comments to the Review Group are available here.

The Director of National Intelligence yesterday released several newly declassified opinions of the Foreign Intelligence Surveillance Court in response to FOIA lawsuits from the Electronic Frontier Foundation and the ACLU.  The voluminous materials shed new light on interactions between the FISA Court and the intelligence community, including what one Court opinion described as a “history of serious and widespread compliance problems.”

Yesterday, Chief Justice John Roberts appointed Judge William C. Bryson to succeed Judge Morris Arnold as the Presiding Judge of the U.S. Foreign Intelligence Surveillance Court of Review, following Judge Arnold’s retirement on August 31.  Judge José A. Cabranes was appointed to the Court of Review on August 9, 2013.  The appointment of a third judge to the Court is pending.

The Court of Review, which hears government appeals of unfavorable opinions from the Foreign Intelligence Surveillance Court, only rarely has occasion to meet.  It could not immediately be learned when the Court was last presented with a case.  The Rules of the Court of Review may be found in FISCR Order No. 1, January 22, 1980.

An introduction to the process for granting security clearances for access to classified information was presented in a new report from the Congressional Research Service. See Security Clearance Process: Answers to Frequently Asked Questions, September 9, 2013.

A related CRS report on leaks and the law was also updated this week.  See Criminal Prohibitions on the Publication of Classified Defense Information, updated September 9, 2013.

And for good measure, there is this new CRS report:  The Potential Federal Tax Implications of United States v. Windsor (Striking Section 3 of the Defense of Marriage Act (DOMA)): Selected Issues, September 9, 2013.

Over the course of American history, Congress has formally enacted 11 declarations of war, as well as a similar number of statutory authorizations for the use of military force.

The differences between these two categories of legislative action, which are quite distinct, are detailed in a Congressional Research Service report that was updated earlier this year. See Declarations of War and Authorizations for the Use of Military Force: Historical Background and Legal Implications, January 11, 2013.

As Congress weighs its response to an Obama Administration request to authorize the use of military force in Syria, another newly updated CRS report provides background on Armed Conflict in Syria: U.S. and International Response, September 6, 2013.

The 52 American diplomatic and military personnel who were taken hostage in Tehran during the Iranian Revolution in 1979 have been unsuccessful in their attempts to recover financial damages from the Government of Iran, but they are still trying. A new CRS report refreshes the story.  See The Iran Hostages: Efforts to Obtain Compensation, September 5, 2013.

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

China’s Economic Rise: History, Trends, Challenges, and Implications for the United States, September 5, 2013

China Naval Modernization: Implications for U.S. Navy Capabilities — Background and Issues for Congress, September 5, 2013

Navy Force Structure and Shipbuilding Plans: Background and Issues for Congress, September 6, 2013

Navy Ford (CVN-78) Class Aircraft Carrier Program: Background and Issues for Congress, September 6, 2013

Sexual Assaults Under the Uniform Code of Military Justice (UCMJ): Selected Legislative Proposals, September 6, 2013

Federal Mandatory Minimum Sentencing Statutes, September 9, 2013

The rise and fall (and rise) of intelligence spending over the past three decades is traced in a newly updated report from the Congressional Research Service.

“Limited publicly available data suggests intelligence spending, measured in constant 2014 dollars, has roughly doubled since the September 11, 2001, terrorist attacks and, before declines over the last three years, was almost double spending at its peak at the end of the cold war,” the CRS report notes.

The report does not explicitly deal with the latest disclosure of a classified intelligence budget document in the Washington Post. “Because the document leaked to the news media is classified, CRS is unable to provide a discussion of the specific detail of that budget submission.” But the report provides a useful compilation of previously disclosed intelligence budget data, along with some sensible extrapolations to round out the picture.

CRS also reviews proposals to restructure the intelligence budgeting process.  See Intelligence Spending and Appropriations: Issues for Congress, September 5, 2013:

But any proposals to modify current intelligence budget practices face strong opposition in Congress. In its report on the FY2014 defense authorization act, the House Armed Services Committee included language to prohibit efforts by the Secretary of Defense to create a new budget account for the National Intelligence Program. (Section 924)

The Committee also said that the Defense Department has been secretly maneuvering to promote a consolidated National Intelligence Program budget within the Department of Defense as a separate budget category — a step favored by the 9/11 Commission, among others, as a way to increase clarity and accountability in intelligence spending. “The committee is concerned that the executive branch has failed to notify the appropriate congressional committees about its continuing efforts to pursue consolidation of the portion of the Department of Defense budget designated as part of the National Intelligence Program,” the House report said. The Committee directed the Department of Defense to submit a report to Congress on “any planning [for future intelligence budget consolidation] that has occurred during the past two years.”

Some other noteworthy new reports from the Congressional Research Service that Congress has withheld from online public distribution include the following.

War in Afghanistan: Campaign Progress, Political Strategy, and Issues for Congress, August 29, 2013

Instances of Use of United States Armed Forces Abroad, 1798-2013, August 30, 2013

Navy Littoral Combat Ship (LCS) Program: Background and Issues for Congress, September 3, 2013

Banning the Use of Racial Preferences in Higher Education: A Legal Analysis of Schuette v. Coalition to Defend Affirmative Action, September 3, 2013

Wildfire Management: Federal Funding and Related Statistics, August 30, 2013

U.S. Farm Income, August 30, 2013

Proposed U.S.-Mexico Transboundary Hydrocarbons Agreement: Background and Issues for Congress, August 29, 2013

Kyrgyzstan: Recent Developments and U.S. Interests, August 30, 2013

Climate Change and Existing Law: A Survey of Legal Issues Past, Present, and Future, August 28, 2013

Here are some new and updated reports on the conflict in Syria prepared by the Congressional Research Service:

Possible U.S. Intervention in Syria: Issues for Congress, September 3, 2013

Syria: Overview of the Humanitarian Response, September 4, 2013

Syria’s Chemical Weapons: Issues for Congress, August 30, 2013

It is generally understood that there is no legally enforceable “right” to be granted a security clearance for access to classified information.  And a landmark 1988 U.S. Supreme Court ruling in Department of the Navy v. Egan has often been interpreted to preclude judicial review of the merits of an agency decision to deny or revoke a security clearance.

But can a court review the denial of a security clearance if it involves an unconstitutional act of discrimination or a restriction of constitutionally guaranteed rights?

A new petition for certiorari asks the U.S. Supreme Court to clarify this issue, which has been a recurring source of confusion.

In a lawsuit filed against the National Geospatial-Intelligence Agency in 2011, petitioner Mahmoud Hegab argued that his security clearance had been improperly revoked by NGA in violation of his constitutional rights.  Specifically, Hegab alleged that he was being punished because his wife was employed by an Islamic faith-based charity (Islamic Relief USA), that she had attended a Saudi-funded academic institution, and that she had participated in an anti-war demonstration. (All government allegations against her were based on open sources, not classified intelligence.)

In short, Mr. Hegab argued the security process was being used punitively to violate his constitutional freedom of religion, freedom of speech and freedom of association.  (“Clearance Lost Due to Anti-Islamic Prejudice, Lawsuit Says,” Secrecy News, October 6, 2011).

The National Geospatial-Intelligence Agency disputed this characterization, and a court declined to review the matter.  Judge James C. Cacheris of the Eastern District of Virginia said that even if it were true that the government had violated the Constitution, the court was barred by Egan and prior precedent from reviewing the NGA decision to revoke Hegab’s security clearance. (“Court Says Review of Security Clearance Dispute is ‘Prohibited’,” Secrecy News, January 23, 2012).  An appeals court upheld dismissal of the case.

This holding would seem to leave an entire domain of potentially unconstitutional government action beyond judicial review.  It is also arguably contrary to another U.S. Supreme Court ruling in a case called Webster v. Doe, in which the Court held that security-based employment decisions could be reviewed where an employee alleged that his constitutional rights had been violated.  In Webster v. Doe, a CIA employee challenged his dismissal on grounds of his homosexuality, and the Supreme Court ruled that the matter was judicially reviewable.

In an August 20, 2013 petition to the Supreme Court, Mr. Hegab’s attorney Sheldon I. Cohen asked the Court to rule that the Hegab case is likewise judicially reviewable.  The Court is not asked to adjudicate the specific claims of discrimination made by Mr. Hegab but simply to affirm that his claims are eligible for judicial review.

The case law in this area is in “disarray,” Mr. Cohen wrote, and there is “confusion among the lower courts on the permissibility of judicial review of challenges to security clearance determinations where constitutional rights are alleged to have been violated.”

“This case is of exceptional importance because close to five million federal civilian employees, members of the military and employees of defense contractors hold security clearances,” Mr. Cohen wrote.  Affirming a right of judicial review in cases like Mr. Hegab’s “would not only protect and uphold the constitutional rights of the affected individual, but would put agency decision makers on notice that they do not have carte blanche to violate the Constitution in this realm.”

A government response to the Hegab petition is due by September 25.

An internal Justice Department working group acknowledged in 1997 that the Webster case “appears to authorize, indeed require, judicial review of equitable constitutional claims.”  In a candid Discussion Paper obtained by Secrecy News that was not intended for public release, the working group proposed a narrow form of judicial review in security clearance cases where constitutional claims were raised.  But that proposal does not appear to have been accepted or acted upon.  See Judicial Review of Claims of Discrimination in Security Clearance Determinations, Department of Justice working group, 1997.

A critical account of the impact of the Supreme Court ruling in Department of the Navy v. Egan was presented in Judicial Interpretations of Egan by Louis Fisher, Law Library of Congress, November 13, 2009.