SECRECY NEWS
from the FAS Project on Government Secrecy
Volume 2013, Issue No. 19
February 14, 2013

Secrecy News Blog: http://www.fas.org/blog/secrecy/

ARMY USE OF DRONES IN U.S. IS CONSTRAINED, NOT PROHIBITED

There are significant barriers to the Army's use of unmanned aerial systems within the United States, according to a new Army manual, but they are not prohibitive or categorical.

"Legal restrictions on the use of unmanned aircraft systems in domestic operations are numerous," the manual states. The question arises particularly in the context of Defense Support of Civil Authorities (DSCA), refering to military assistance to government agencies in disaster response and other domestic emergencies.

"Use of DOD intelligence capabilities for DSCA missions--such as incident awareness and assessment, damage assessment, and search and rescue--requires prior Secretary of Defense approval, together with approval of both the mission and use of the exact DOD intelligence community capabilities. Certain missions require not only approval of the Secretary of Defense, but also coordination, certification, and possibly, prior approval by the Attorney General of the United States."

As a general rule, "military forces cannot use military systems for surveillance and pursuit of individuals." This is precluded by the Posse Comitatus Act, as reflected in DoD Directive 5525.5.

But there is a possibility that exceptions may arise, the manual indicates. "[Unmanned aircraft] Operators cannot conduct surveillance on specifically identified U.S. persons, unless expressly approved by the Secretary of Defense, consistent with U.S. laws and regulations." See U.S. Army Field Manual FM 3-52, Airspace Control, February 2013 (especially Appendix G):

"Commanders decide to employ unmanned aircraft systems judiciously. Use of unmanned aircraft systems requires approval at high levels within the DOD and the FAA prior to employment in DSCA," the manual states.

"Certain unmanned aircraft systems such as Global Hawk can operate far above normal commercial traffic while providing situation assessment to ground commanders. Intermediate systems such as the Predator have supported recent disaster operations, dramatically increasing situational awareness at the joint field office level. If available and authorized, these systems can provide near-real-time surveillance to command posts for extended periods. The approval process is not automatic."

The Army manual asserts that the perceived risks of drone failure or accident are out of proportion to the actual documented risks.

"For example, from 2003 to 2010, small, unmanned aircraft systems flew approximately 250,000 hours with only one incident of a collision with another airspace user. However, the perception of the risk posed by small, unmanned aircraft systems was much greater." (page A-1).

WHAT'S THE DIFFERENCE BETWEEN AN EXECUTIVE ORDER AND A DIRECTIVE?

The Obama Administration issued policy statements this week on critical infrastructure protection and cyber security, including measures to encourage information sharing with the private sector and other steps to improve policy coordination. Curiously, the Administration issued both an Executive order and a Presidential directive devoted to these topics.

Executive Order 13636 focuses on "Improving Critical Infrastructure Cybersecurity" while Presidential Policy Directive 21 deals more broadly with "Critical Infrastructure Security and Resilience."

But the simultaneous release of the two types of Presidential instruction on overlapping themes raises the question: What is the difference between an Executive Order and a Presidential Directive?

"There are probably two significant differences between an EO and a PD, at least to my understanding," said Harold Relyea, who served for decades as a Specialist in American National Government at the Congressional Research Service.

"First, in almost all cases, for an EO to have legal effect, it must be published in the Federal Register. This is a statutory requirement. A PD does not have to meet this publication requirement, which means it can more readily be 'born classified'."

"Second," he added, "is the matter of circulation and accountability. EOs are circulated to general counsels or similar agency attorneys, which can be readily accomplished by FR publication. Again, a PD may be more selectively circulated, and this is done through developed routing procedures. Ultimately, EOs are captured not only in the FR, but also in annual volumes (Title 3) of the CFR [Code of Federal Regulations]. PDs are maintained in the files of the NSC staff and, God knows, if anywhere else! I might also add that a form for EOs has been prescribed (in an EO); no form has been prescribed (as far as I know) for PDs."

A CRS overview of the various types of "Presidential Directives" authored by Dr. Relyea in 2008 is available here:

The Justice Department Office of Legal Counsel wrote in a 2000 opinion that executive orders and directives are equivalent in their force and impact.

"As this Office has consistently advised, it is our opinion that there is no substantive difference in the legal effectiveness of an executive order and a presidential directive that is not styled as an executive order."

For reasons that are not immediately clear, President Obama has issued presidential directives much less frequently than his predecessors. The latest directive, PDD-21, is only the 21st such Obama directive. By comparison, President George W. Bush had issued 42 directives by the first January of his second term. President Clinton had issued 53 directives by the beginning of his second term.

NORTH KOREA'S NUCLEAR WEAPONS, AND MORE FROM CRS

New and updated reports from the Congressional Research Service obtained by Secrecy News that have not been made readily available to the public include the following.

North Korea's Nuclear Weapons: Technical Issues, February 12, 2013:

Pakistan's Nuclear Weapons: Proliferation and Security Issues, February 13, 2013:

Comprehensive Nuclear-Test-Ban Treaty: Background and Current Developments, February 12, 2013:

Filling U.S. Senate Vacancies: Perspectives and Contemporary Developments, February 13, 2013:

Child Well-Being and Noncustodial Fathers, February 12, 2013:

Abortion and Family Planning-Related Provisions in U.S. Foreign Assistance Law and Policy, February 12, 2013: http://www.fas.org/sgp/crs/row/R41360.pdf

Latin America and the Caribbean: Key Issues for the 113th Congress, February 8, 2013:

U.S. Manufacturing in International Perspective, February 11, 2013:

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Secrecy News is written by Steven Aftergood and published by the Federation of American Scientists.

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