SECRECY NEWS
from the FAS Project on Government Secrecy
Volume 2017, Issue No. 8
January 30, 2017

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

TRUMP BROADCASTS HIS NATIONAL SECURITY DIRECTIVES

National security directives are among the most important tools the President has for managing his administration and for conducting U.S. policy on national defense, foreign relations, intelligence, nuclear weapons and other matters of consequence.

At the end of last week, President Trump publicly issued his first three national security directives, designated National Security Presidential Memoranda (NSPMs).

NSPM-1 is entitled "Rebuilding the U.S. Armed Forces." It requires a "readiness review", and calls for a new Nuclear Posture Review and a Ballistic Missile Defense Review. In a nod towards legal and fiscal reality, it says "This memorandum shall be implemented consistent with applicable law and subject to the availability of appropriations."

NSPM-2 is devoted to the "Organization of the National Security Council and the Homeland Security Council." It modifies the NSC structure towards something resembling a compromise between or a hybrid of the Obama and Bush NSC structures, and borrows language from the Bush directive. Notably, however, it elevates "the Chief Strategist," i.e. Stephen K. Bannon of Breitbart News, to membership in the NSC Principals Committee. This is a striking departure from past practice that injects an extreme political perspective into the national security policymaking process. At the same time, the Trump directive diminishes the NSC role of the Chairman of the Joint Chiefs of Staff and the Director of National Intelligence.

NSPM-3 calls for a "Plan to Defeat the Islamic State of Iraq and Syria."

The directives include a certain amount of sloganeering and chest thumping that is familiar in electoral campaign documents, but somewhat unusual in presidential directives. So, President Trump writes, in order to achieve "peace through strength," US Armed Forces must be "rebuilt." And "there can be no accommodation or negotiation" with the Islamic State.

But what is even more unusual is that the Trump White House released all of these directives and ordered publication of each of them in the Federal Register. It is, one might say, an act of unprecedented transparency.

It is technically true that "any presidential determination or directive can be published in the Federal Register, regardless of how it is styled," as a 2000 opinion from the Justice of Department Office of Legal Counsel stated.

But for the past several decades, national security directives "were not required to be published in the Federal Register, were usually security classified at the highest level of protection, and were available to the public [only] after a great many years had elapsed, usually at the official library of the President who had approved them," the Congressional Research Service said in a 2008 report.

Likewise, the Government Accountability Office said in 1992 that national security directives "are... not required to be published in the Federal Register or any other public document."

In fact, no national security presidential directive seems to have ever been published in the Federal Register. Even unclassified directives have only inconsistently been released or published on the White House website. The Bush Administration's first National Security Presidential Directive became public through a leaked version sent anonymously through the U.S. mail and was never published by the White House. In the Obama Administration, former NSC records access manager John Ficklin tried to get authorization to publish a list and compilation of unclassified national security directives but was unsuccessful.

So why, by contrast, are the first three Trump national security directives public documents that will, furthermore, be incorporated in the Federal Register?

One possibility is that this is the result of a drafting error.

An earlier version of NSPM-1 obtained by the Washington Post was captioned as a "presidential memorandum," which is a familiar type of issuance that is often published in the Federal Register, and not as a "national security presidential memorandum". In other words, whoever drafted the new Trump directive may have been using a template for an ordinary "presidential memorandum" rather than for a national security directive. (Further blurring longstanding distinctions, the new Trump directives NSPM-2 and NSPM-3 -- but not NSPM-1 -- are also included in the "presidential memoranda" section of the White House website. And each of them is confusingly labeled on the index page as a "presidential memorandum," not an NSPM.)

Another possible explanation for the serial publication of these frequently unpublished documents is that public dissemination of the new Trump national security directives is a kind of performance. It may be that President Trump does not only want to wield the power of his office, but also to be seen doing it.

CRISIS MANAGEMENT IN THE INTELLIGENCE COMMUNITY

Last month, outgoing Director of National Intelligence James R. Clapper issued new guidance on how the U.S. intelligence community should pivot in response to a crisis.

A "crisis" is defined here as "An event or situation, as determined by the DNI, that threatens U.S. national security interests and requires an expedited shift in national intelligence posture, priorities, and/or emphasis."

The new guidance explains how that shift in intelligence posture is to be executed.

See Intelligence Community Crisis Management, Intelligence Community Policy Guidance 900.2, December 23, 2016.

RENEGOTIATING NAFTA, AND MORE FROM CRS

Presidential authority to seek modifications to NAFTA independent of Congress was addressed by the Congressional Research Service last week in Renegotiation of the North American Free Trade Agreement (NAFTA): What Actions Do Not Require Congressional Approval?, CRS Legal Sidebar, January 26, 2017:

Jordan's King Abdullah II is visiting Washington today. See Jordan: Background and U.S. Relations, updated January 25, 2017:

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

Cross-Border Energy Trade in North America: Present and Potential, January 24, 2017:

Clean Air Act Issues in the 115th Congress: In Brief, January 24, 2017:

President Trump Freezes Federal Civil Service Hiring, CRS Legal Sidebar, January 26, 2017:

Keystone Revival: Executive Memorandum Paves Way for Possible Approval of Keystone XL Pipeline, CRS Legal Sidebar, January 26, 2017:

Dakota Access Pipeline: Siting Controversy, CRS Insight, updated January 26, 2017:

House Office of Congressional Ethics: History, Authority, and Procedures, updated January 24, 2017:

Affordable Care Act Executive Order: Legal Considerations, CRS Legal Sidebar, January 24, 2017:

Abortion and Family Planning-Related Provisions in U.S. Foreign Assistance Law and Policy, updated January 24, 2017:

The First Responder Network (FirstNet) and Next-Generation Communications for Public Safety: Issues for Congress, updated January 26, 2017:

National Special Security Events: Fact Sheet, updated January 25, 2017:

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

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