SECRECY NEWS
from the FAS Project on Government Secrecy
Volume 2016, Issue No. 84
October 20, 2016

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

ON THE USE OF PRESIDENTIAL POLICY DIRECTIVES

On October 14, President Obama signed Presidential Policy Directive 43 on the normalization of relations between the United States and Cuba.

Aside from the substance of the directive on the future of US-Cuba relations, PPD-43 has several incidental features of interest.

First, it is a public document.

"The policy directive was notable because it was public instead of classified," the New York Times said in an October 15 story.

That's not exactly wrong, but it misses the larger point that even unclassified presidential directives are often withheld from public release. The White House web site has sections devoted to executive orders and presidential memoranda, but not to presidential directives. (Some unclassified directives are linked from the presidential memoranda section, while others are not available on the White House site at all.)

Second, it is striking that near the end of his second term, President Obama has issued only 43 presidential directives. By comparison, President George W. Bush issued 66 National Security Presidential Directives and 25 Homeland Security Presidential Directives, President Clinton issued 75 Presidential Decision Directives and President Reagan issued 325 National Security Decision Directives.

What, if anything, these differences mean requires further investigation. They could reflect differences in governing style, in organization of the policymaking process, or in the use of directives as an instrument of executive authority. It is possible that some presidentially-initiated actions are being directed and executed using means other than formal directives.

For example, on September 21, 2016 President Obama ordered agencies to take certain actions concerning Climate Change and National Security. But instead of being issued as a Presidential Policy Directive, his Climate Change guidance was framed as a Presidential Memorandum.

Why?

The answer is unclear. An administration official said that Presidential Memoranda "can be used to direct agencies on the manner in which they do something they are otherwise (by law, executive order or presidential directive) authorized to do." So maybe -- the official couldn't say for certain -- the Climate Change memorandum directed the manner of execution but did not authorize any new activity. Had it done so, that would presumably have required a presidential "directive."

The release of Presidential Policy Directive 43, following the release of PPD 41 last July, also indicates that there must be a PPD 42, the contents of which are currently unknown.

And on October 13, President Obama issued Executive Order 13744 on Coordinating Efforts to Prepare the Nation for Space Weather Events. The Order refers to a previously unidentified Presidential Policy Directive 40 on National Continuity Policy that was signed on July 15, 2016. That directive has not been released.

The reference to PPD-40 was noted in "Obama expands his executive power beyond Earth" by Gregory Korte, USA Today, October 13.

The problem of secret law, which includes those presidential directives that define national policy and allocate government resources without public knowledge, was examined in a report entitled "The New Era of Secret Law" by Elizabeth Goitein of the Brennan Center for Justice.

JASON ON BMD MIDCOURSE DISCRIMINATION (2010)

A comprehensive defense against intercontinental ballistic missiles remains difficult -- and perhaps impossible -- for several reasons, including the difficulty of achieving "midcourse discrimination" to identify weaponized payloads in a cloud of debris or decoys.

A newly released summary of a classified 2010 report on the subject prepared by the JASON scientific advisory panel explains the issue.

"In the context of missile defense, to discriminate is to distinguish among lethal RVs [reentry vehicles] in mid-course flight that should be targeted by defensive kill vehicles, and non-lethal accompanying objects, whether deliberate countermeasures such as decoys or objects that usually accompany a missile launch, such as booster stage and rocket fuel tanks. Even in the absence of countermeasures, discrimination is still necessary to distinguish RVs from these launch-associated objects."

"Discrimination of countermeasures is a stringent challenge, because given a reasonable amount of time, money, initiative, and expertise, the offense can (in principle) field countermeasures that the defense cannot handle at any reasonable marginal cost."

See MDA Discrimination (executive summary), JASON report JSR-10-620, August 3, 2010, released under the Freedom of Information Act on October 3, 2016:

The JASON authors found that the Pentagon's Missile Defense Agency (MDA) was not well-equipped to address this fundamental problem.

"MDA today has a good record of intercepting RVs, but under conditions that often do not challenge the discrimination capabilities of the missile defense system."

Even the scope of the discrimination problem is not entirely clear, the JASONs said at the time. "Much remains to be learned about the practical feasibility and effectiveness of countermeasure threats."

MDA itself "is not agile and flexible, and it may have trouble responding to opponents' timelines for developing and fielding decoys and other countermeasures," the JASONs said.

The JASON report recommended that MDA incorporate critical reviews of its programs by independent experts, establish a countermeasures test program through an independent agency, and work more closely with intelligence agencies on analyzing foreign missile threats and countermeasures. It was not immediately clear if the recommendations had been acted upon.

PRESIDENTIAL CONFLICTS OF INTEREST, AND MORE FROM CRS

"Does federal law require the President to relinquish control of his or her business interests?" That question is considered in a new analysis from the Congressional Research Service.

The short answer appears to be No. "There is no current legal requirement that would compel the President to relinquish financial interests because of a conflict of interest."

There are, however, certain legal disclosure requirements that apply to candidates for the Presidency. It is those requirements that are "the principal method of regulation of potential conflicts of interests for elected officials such as the President."

See Conflicts of Interest and the Presidency, CRS Legal Sidebar, October 14, 2016:

Other new and updated reports from the Congressional Research Service that have not been publicly released include the following.

The Help America Vote Act and Election Administration: Overview and Selected Issues for the 2016 Election, October 18, 2016:

Federal Citations to the Social Cost of Greenhouse Gases, October 19, 2016:

Collateral Consequences: What Role, if any, Should They Play in Crafting Sentences?, CRS Legal Sidebar, October 19, 2016:

Clean Water Act: A Summary of the Law, October 18, 2016:

Ocean Dumping Act: A Summary of the Law, October 18, 2016:

The High-Speed Intercity Passenger Rail (HSIPR) Grant Program: Overview, October 18, 2016:

Next Steps for Auction of TV Broadcast Airwaves to Commercial Carriers, CRS Insight, October 17, 2016:

Current Vacancies on the U.S. Court of Federal Claims: Overview and Historical Context, CRS Insight, October 13, 2016:

Iran's State-Linked Conglomerates, CRS Insight, October 17, 2016:

The Senkakus (Diaoyu/Diaoyutai) Dispute: U.S. Treaty Obligations, October 14, 2016:

President Waives Restrictions on Relations with Burma's Military under Child Soldier Prevention Act of 2008, CRS Insight, October 12, 2016:

Elections Strengthen Georgia's Ruling Party, CRS Insight, October 18, 2016:

Recent Developments in U.S.-Russian Nonproliferation Cooperation, CRS Insight, October 13, 2016:

A new web site provides a searchable collection of a large number of Congressional Research Service reports, modified to remove the names of the authors and their contact information. Aspirationally named EveryCRSReport.com, it does not include the latest CRS publications cited above.

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

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