SECRECY NEWS
from the FAS Project on Government Secrecy
Volume 2019, Issue No. 6
February 13, 2019

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

ARMY: DOMESTIC OPS MUST RESPECT CONSTITUTIONAL BOUNDARIES

The use of military forces to perform domestic functions -- such as constructing barriers along the US-Mexico border -- could pose fundamental legal, policy and administrative challenges.

"Military forces operating freely within civilian jurisdictions risk upsetting the constitutional balance between civil authority, the military, and the private sector," the Army said this week in a newly updated manual.

Therefore, "Army leaders must ensure that even in a catastrophic event, Army support remains within the boundaries of constitutional principles, U.S. laws, DOD policies, and Army regulations," the manual said. See Defense Support of Civil Authorities, Army Doctrine Publication 3-28, February 11, 2019:

As a practical matter, the Army publication said, "Commanders should begin by viewing each domestic operational environment as an assortment of civil authorities, each with primacy in its jurisdiction."

When it comes to the possible use of military forces for construction on the US-Mexico border, there is in fact a multiplicity of government and private authorities that have primacy over different parts of the border.

A briefing slide prepared by the Congressional Research Service last week identified no fewer than six federal agencies with jurisdiction over portions of the border: Bureau of Land Management, Bureau of Reclamation, Department of Defense, Fish and Wildlife Service, Forest Service, and National Park Service. Still other portions of the border are under tribal authority or are privately held. See Background: Using Defense Funds for Construction in a National Emergency, CRS briefing slides, February 6, 2019 (at p. CRS-4):

Use of the military to construct barriers along the border would normally require coordination and cooperation with each of the affected parties. But if the President were to declare a national emergency, such requirements could potentially be set aside, placing the "constitutional balance" at risk.

"Even in a worst-case national emergency, the military will always operate under civilian control," the new Army publication said.

EU-JAPAN TRADE AGREEMENT LEAVES US OUT, & MORE FROM CRS

A new free trade agreement (FTA) between the European Union and Japan places the US at a disadvantage, at least temporarily, the Congressional Research Service said. The new agreement entered into force this month.

The two trading partners negotiated what Japan called the "world's largest, free, industrialized economic zone" without the US partly in response to the Trump Administration's combative trade policy and its withdrawal from existing trade negotiations.

"The EU and Japan have expressed concerns over recent U.S. tariffs imposed on their products and the perceived waning in U.S. support for the multilateral trading system," according to a new CRS brief.

"In the absence of a U.S. FTA with either major economy, certain U.S. industries could face competitive disadvantages or lost market share. . . as the EU and Japan enjoy preferential access to each other's markets," CRS said.

As the new agreement is implemented, "the United States will be under increased stakeholders' pressure to secure comparable access to these important markets," the CRS report said. See EU-Japan FTA: Implications for U.S. Trade Policy, CRS In Focus, February 7, 2019:

Other noteworthy new publications from the Congressional Research Service include the following.

A Brief Comparison of Two Climate Change Mitigation Approaches: Cap-and-Trade and Carbon Tax (or Fee), CRS In Focus, February 12, 2019:

Mail and Wire Fraud: A Brief Overview of Federal Criminal Law, updated February 11, 2019:

Electrification May Disrupt the Automotive Supply Chain, CRS In Focus, February 8, 2019:

A Code of Conduct for the Supreme Court? Legal Questions and Considerations, CRS Legal Sidebar, February 6, 2019:

Science and Technology Issues in the 116th Congress, February 6, 2019:

The World Oil Market and U.S. Policy: Background and Select Issues for Congress, updated February 4, 2019:

Venezuela Oil Sector Sanctions: Market and Trade Impacts, CRS Insight, updated February 11, 2019:

The Committee on Foreign Investment in the United States, CRS In Focus, updated February 5, 2019:

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

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