SECRECY NEWS
from the FAS Project on Government Secrecy
Volume 2019, Issue No. 24
May 29, 2019

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

TRUMP DEMOTES DNI TO EMPOWER AG BARR

President Trump issued a memorandum last week that transfers to the Attorney General the authority of the Director of National Intelligence to declassify intelligence information concerning the 2016 election.

The memorandum effectively amends Executive Order 13526 on classification on national security information, but in a highly customized way: It applies only to Attorney General William Barr (not any successors) and only to the investigation of the 2016 presidential campaigns. The memorandum was published in the Federal Register today.

Even so, the move represents a functional demotion of the Director of National Intelligence and a partial transfer of his authority to the Attorney General.

Executive Order 13526 gave sweeping authority over declassification of intelligence information to the DNI, who was authorized to "declassify, downgrade, or direct the declassification or downgrading of information or intelligence relating to intelligence sources, methods, or activities." (sect. 3.1c)

The new presidential memorandum adopts the same language but modifies the provision to state that it is Attorney General Barr who may now "declassify, downgrade, or direct the declassification or downgrading of information or intelligence that relates to the Attorney General's review."

No rationale for the change was provided, though it was understood to support the Attorney General's investigation into what he called U.S. government "spying" on the Trump campaign.

Senator Mark Warner (D-VA) warned that the move threatened to politicize intelligence. "Selectively declassifying sources and methods in order to serve a political agenda will make it harder for the intelligence community to do their jobs protecting this country from those who wish to do us harm," he said.

For his part, DNI Dan Coats said that "I am confident that the Attorney General will work with the IC in accordance with the long-established standards to protect highly-sensitive classified information that, if publicly released, would put our national security at risk."

* * *

There is some precedent for overriding the judgment of the DNI concerning the protection of sources and methods.

A 1999 decision of the Justice Department Office of Legal Counsel concluded that the presidentially-established Interagency Security Classification Appeals Panel could declassify intelligence information over the objections of the Director of Central Intelligence.

While it is true that the DCI, and now the DNI, is obliged by the National Security Act to protect intelligence sources and methods from unauthorized disclosure, the Director's authority in this area is not absolute or exclusive.

Specifically, "If the President concludes that information concerning intelligence sources and methods should not be classified, the disclosure of such information simply is not 'unauthorized' within the meaning of the [National Security Act]," wrote Randolph D. Moss of the Office of Legal Counsel in his 1999 opinion.

Still, this OLC conclusion may not be correct (said a non-lawyer) because "declassification" is not the same as "disclosure." Even intelligence information that is declassified or unclassified may still be, and often is, protected from public disclosure by the DNI under the provisions of the National Security Act.

The new presidential memorandum does not address the question of disclosure at all.

DOD SAYS IT STILL NEEDS OPEN BURN PITS

The use of open pit burning for disposal of hazardous waste, medical waste, tires or plastic can present a threat to human health and safety, as well as causing other environmental damage. So as a rule, the practice is "strictly prohibited" by Department of Defense regulations.

But there are exceptions to the rule. And DoD continues to rely on open pit burning for waste disposal in some of its contingency operations abroad, according to a new DoD report to Congress.

Specifically, DoD identified a total of nine locations where open pit burning of waste continued this year: seven in Syria, one in Afghanistan, and one in Egypt. See Department of Defense Open Burn Pit Report to Congress, April 2019.

By way of justification, the DoD report said that "In countries such as Iraq, Syria, or Afghanistan it is common practice to burn waste in open pits."

And while alternative approaches would be welcome, the Pentagon has other fish to fry. "The Department's strategic investments are focused on providing a more lethal force, vice investment in costly support systems."

"No technology or equipment solution has been devised that could eliminate all waste burning requirements for every contingency location," the report to Congress said.

The new DoD report was obtained through the Freedom of Information Act. A provision of the pending FY2020 defense appropriations bill would require DoD in the future to "post on a public website any report required to be submitted to Congress with certain exceptions."

ARMY WORK ON BORDER BARRIER CONSTRUCTION ADVANCES

At the request of the Department of Homeland Security, the Army Corps of Engineers has undertaken numerous barrier construction projects along the border with Mexico in California, Arizona and New Mexico.

The latest projects were itemized by the Congressional Research Service in Army Corps of Engineers and U.S. Southern Border Barriers, CRS In Focus, May 22, 2019.

Some other noteworthy new publications from the Congressional Research Service include the following.

Defense Primer: Acquiring Specialty Metals, Rare Earth Magnets, and Tungsten, CRS In Focus, May 24, 2019:

The Economic Effects of the 2017 Tax Revision: Preliminary Observations, May 22, 2019:

Legislative Purpose and Adviser Immunity in Congressional Investigations, CRS Legal Sidebar, May 24, 2019:

An Overview of State and Federal Authority to Impose Vaccination Requirements, CRS Legal Sidebar, May 22, 2019:

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

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