SECRECY NEWS
from the FAS Project on Government Secrecy
Volume 2016, Issue No. 46
May 25, 2016

Secrecy News Blog: http://fas.org/blogs/secrecy/

CYBER "EMERGENCY" ORDER NETS NO CULPRITS

In April 2015, President Obama issued Executive Order 13694 declaring a national emergency to deal with the threat of hostile cyber activity against the United States.

But six months later, the emergency powers that he invoked to punish offenders had still not been used because no qualifying targets were identified, according to a newly released Treasury Department report.

In a White House statement coinciding with the release of last year's Executive Order, the President said that "Cyber threats pose one of the most serious economic and national security challenges to the United States, and my Administration is pursuing a comprehensive strategy to confront them.... This Executive Order offers a targeted tool for countering the most significant cyber threats that we face."

The Executive Order authorized the Secretary of the Treasury "to impose sanctions on individuals or entities that engage in malicious cyber-enabled activities that create a significant threat to the national security, foreign policy, or economic health or financial stability of the United States."

But although the criminal justice system has produced indictments against suspected Chinese and Iranian hackers, the President's cyber "emergency" regime has not yielded any comparable results.

In the first periodic report on the implementation of the order, Treasury Secretary Jacob J. Lew said that "No entities or individuals have been designated pursuant to E.O. 13694." Accordingly, the Department of the Treasury took no punitive licensing actions, and it assessed no monetary penalties, Secretary Lew wrote.

A copy of the Treasury report was obtained through the Freedom of Information Act. See Periodic Report on the National Emergency With Respect to Significant Malicious Cyber-Enabled Activities, October 1, 2015.

Even though it generated no policy outputs, implementation of the executive order nevertheless incurred costs of "approximately $760,000, most of which represent wage and salary costs for federal personnel," the Treasury report said.

Unbeknownst to most people, there are typically multiple "national emergencies" in progress at any given time. A helpful introduction to the subject was prepared by then-CRS specialist Harold C. Relyea a decade ago.

By invoking emergency powers derived from the Constitution or from statutory law, Relyea wrote, "the President may seize property, organize and control the means of production, seize commodities, assign military forces abroad, institute martial law, seize and control all transportation and communication, regulate the operation of private enterprise, restrict travel, and, in a variety of ways, control the lives of United States citizens. [However], Congress may modify, rescind, or render dormant such delegated emergency authority." See National Emergency Powers, updated August 30, 2007:

One other ongoing "emergency" pertains to North Korea. A Treasury Department Periodic Report on the National Emergency With Respect to North Korea, dated May 21, 2015, reveals that five financial transactions involving North Korean agents or interests -- and totaling $23,200 -- were blocked by executive order between December 2014 and April 2015. That's an increase from $17,600 during the previous reporting period.

PRE-PUBLICATION REVIEW MUST BE TIMELY & FAIR, SAYS HPSCI

Current and former intelligence community employees (as well as some other government employees) are obliged to submit their writings for official review prior to publication in order to screen them for classified information. This is often an onerous, time-consuming and frustrating process. It sometimes appears to authors to be conducted in bad faith.

The House Permanent Select Committee on Intelligence has instructed the Director of National Intelligence to prepare a new, IC-wide pre-publication review policy that will "yield timely, reasoned, and impartial decisions that are subject to appeal."

In its new report on the FY2017 intelligence authorization act, the Committee said it "is concerned that current and former IC personnel have published written material without completing mandatory pre-publication review procedures or have rejected changes required by the review process, resulting in the publication of classified information."

"The Committee is also aware of the perception that the pre-publication review process can be unfair, untimely, and unduly onerous and that these burdens may be at least partially responsible for some individuals 'opting out' of the mandatory review process."

The Committee therefore directed the DNI to develop a uniform new policy that clearly sets forth what kinds of materials must be reviewed, with guidance for conducting and completing the review in a timely manner, and with a prompt and transparent appeal process.

The pre-publication review process was critiqued recently by Jack Goldsmith and Oona A. Hathaway in the Washington Post (The Government's Prepublication Review Process is Broken, December 25, 2015) and in Just Security (The Scope of the Prepublication Review Problem, and What to Do About It, December 30, 2015). I also commented in Just Security (Fixing Pre-Publication Review: What Should Be Done?, January 15, 2016)

The new requirement "to improve the timeliness and fairness of the prepublication review process throughout the IC" was introduced by Rep. Jim Himes (D-CT), a member of the House Intelligence Committee. The FY2017 intelligence authorization act was approved by the full House of Representatives yesterday following floor speeches on May 23.

FEDERAL PRISON POPULATION BUILDUP, AND MORE FROM CRS

New and updated reports from the Congressional Research Service that have not been made publicly available online include the following.

The Federal Prison Population Buildup: Options for Congress, May 20, 2016:

Zika Response Funding: Request and Congressional Action, May 20, 2016:

Pay Equity: Legislative and Legal Developments, May 20, 2016:

The Comprehensive Addiction and Recovery Act of 2016 (S. 524): Comparison of Senate- and House-Passed Versions, May 23, 2016:

FHFA's Administrative Reform of Fannie Mae, Freddie Mac, and the Housing Finance System, May 23, 2016:

DOT's Federal Pipeline Safety Program: Background and Key Issues for Congress, May 20, 2016:

Treasury Issues White Paper on Fintech and Marketplace Lending, CRS Insight, May 20, 2016:

United States Lifts Remaining Restrictions on Arms Sales to Vietnam, CRS Insight, May 23, 2016:

U.S.-Vietnam Economic and Trade Relations: Issues for the 114th Congress, May 20, 2016:

Honduras: Background and U.S. Relations, May 23, 2016:

A Resurgence of Unaccompanied Alien Children?, CRS Insight, May 20, 2016:

Navy Force Structure and Shipbuilding Plans: Background and Issues for Congress, May 23, 2016:

Navy Virginia (SSN-774) Class Attack Submarine Procurement: Background and Issues for Congress, May 20, 2016:

Navy DDG-51 and DDG-1000 Destroyer Programs: Background and Issues for Congress, May 20, 2016:

Navy Littoral Combat Ship (LCS)/Frigate Program: Background and Issues for Congress, May 20, 2016:

Navy Ohio Replacement (SSBN[X]) Ballistic Missile Submarine Program: Background and Issues for Congress, May 20, 2016:

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

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