SECRECY NEWS
from the FAS Project on Government Secrecy
Volume 2017, Issue No. 44
June 13, 2017

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

DOD AGAIN SEEKS FOIA EXEMPTION FOR MILITARY TACTICS

For the third time, the Department of Defense is asking Congress to enact a new exemption from the Freedom of Information Act for certain military tactics, techniques and procedures (TTP), as well as rules of engagement, that are sensitive but unclassified.

"The effectiveness of United States military operations is dependent upon adversaries, or potential adversaries, not having advance knowledge of TTPs or rules of engagement that will be employed in such operations," DoD said in its legislative proposals for the FY2018 defense authorization act. "If an adversary or potential adversary has knowledge of this information, the adversary will gain invaluable knowledge on how our forces operate in given situations."

"Military TTPs and rules of engagement are analogous to law enforcement techniques and procedures, which Congress has afforded protection," DoD said. See section 1003 of DoD's proposed defense authorization act for FY2018.

DoD is not seeking to exempt all TTP records as a class. Rather, the proposal is that specified TTP information could be withheld under FOIA if the Secretary of Defense determined in writing that its disclosure would be likely to provide "an operational military advantage to an adversary" and that the public interest in the information does not outweigh the potential risk. This determination would have to be made personally by the Secretary of Defense, and could not be delegated. It would require a written justification that would have to be available to the public on request.

Similar legislative proposals were introduced by the Department of Defense in the past two years.

Wary of any move to expand DoD's authority to withhold information, however, many advocates of open government opposed the measure. Truly sensitive military information could be classified, they argued, and an existing FOIA exemption "more than adequately protects such information." In any event, despite repeated requests, the DoD proposal was not approved by Congress.

The Department of Defense and the military services (especially the Army) generate dozens if not hundreds of doctrinal publications every day. Many of them are closely held, but many others are freely published. The latter, at least, would seem to be outside the scope of the proposed new exemption for TTPs and rules of engagement, if it were ever enacted.

A new document on DoD interactions with foreign security forces, of interest to some, was posted online by DoD this week. See Security Cooperation, Joint Publication 3-20, May 23, 2017.

DOD SEEKS NEW AUTHORITY FOR DRONE COUNTERMEASURES

Unmanned aerial systems (UAS, or drones) could be used by malicious actors to conduct unauthorized surveillance or to deliver hazardous payloads within the United States. But defending against such threats may violate the law as currently written.

"Some of the most promising technical countermeasures for detecting and mitigating UAS may be construed to be illegal under certain laws that were passed when UAS were unforeseen," the Department of Defense said in its legislative proposals for the FY 2018 defense authorization act. "These laws include statutes governing electronic communications, access to protected computers, and interference with civil aircraft."

DoD therefore asked Congress to enact legislation that would authorize development of drone countermeasures for domestic use without violating "many provisions" of existing law. See section 1602 of the DoD draft defense authorization act for FY 2018, submitted to Congress on May 25.

"Certain statutes are especially problematic" for defending against UAS threats, DoD said. Several sections of Title 18 of the US Code "might be construed to prohibit access to or interception of the telemetry, signaling information, or other communications of UAS."

"Furthermore, any attempt to interfere with the flight of UAS that pose a threat" could violate the Aircraft Sabotage Act, which prohibits damage to or destruction of aircraft.

"The proposed legislation would generally allow research, testing, training on, and evaluating technical means for countering UAS," including monitoring, tracking, re-directing, disabling or destroying such aircraft.

A broader look at Countering Air and Missile Threats was recently published by the Joint Chiefs of Staff (Joint Publication 3-01, April 21, 2017).

LEGAL ISSUES IN THE PARIS AGREEMENT WITHDRAWAL

President Trump's decision to withdraw the United States from the Paris Agreement on Climate Change raises a series of legal, procedural and policy questions that have yet to be decisively answered, said the Congressional Research Service last week.

Among those questions: Will the US follow the prescribed multi-year procedure for withdrawal? Or can the US withdraw immediately? What role if any will the US play in future climate change deliberations under the Paris Agreement? What are the prospects for a legal challenge to the US withdrawal?

See President Trump's Withdrawal from the Paris Agreement Raises Legal Questions, CRS Legal Sidebar, June 9, 2017:

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

FY2018 Defense Budget Request: The Basics, June 9, 2017:

Qatar: Governance, Security, and U.S. Policy, updated June 9, 2017:

Israel and the Boycott, Divestment, and Sanctions (BDS) Movement, updated June 9, 2017:

U.S. Foreign Aid to the Middle East and North Africa: The President's FY2018 Request, CRS Insight, June 8, 2017:

Malawi: Key Developments and U.S. Relations, June 2, 2017:

U.S. Strategy for Engagement in Central America: Policy Issues for Congress, June 8, 2017:

European Security and Islamist Terrorism, CRS Insight, updated June 8, 2017:

Juneteenth: Fact Sheet, June 9, 2017:

Air Force B-21 Long Range Strike Bomber, updated June 7, 2017:

Special Counsels, Independent Counsels, and Special Prosecutors: Options for Independent Executive Investigations, June 1, 2017:

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

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