SECRECY NEWS
from the FAS Project on Government Secrecy
Volume 2019, Issue No. 46
December 23, 2019

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

WHITE HOUSE REBUFFS DECLASSIFICATION, DISCLOSURE REQUIREMENTS

Congress adopted numerous new disclosure and reporting requirements in the government spending bill that was signed into law last week. But the Trump White House said that many of them encroach on executive authority and that they may not be implemented as written.

Several provisions of the FY2020 Consolidated Appropriations Act "purport to mandate or regulate the submission of certain executive branch information to the Congress or the public, including by mandating the declassification of certain information," the White House said in a December 20 signing statement.

"My Administration will treat these provisions consistent with the President's constitutional authority to control the disclosure of information that could impair foreign relations, national security, law enforcement, the deliberative processes of the executive branch, or the performance of the President's constitutional duties," the statement said.

Among the provisions that the White House specifically objected to was a requirement to declassify information regarding Saudi government assistance to Saudi nationals in the U.S. suspected of committing crimes (HR 1865, Sect. 902). That provision, introduced by Sen. Ron Wyden, had passed the Senate by voice vote and was incorporated in the final legislation (with an added exemption for intelligence sources and methods). Now it is unclear whether it will be acted upon at all.

The Trump White House expressed criticism not only of declassification and other public disclosure requirements. It also took exception to dozens of provisions that involve sharing information with Congress, even on a classified basis.

Thus, a provision in the FY2020 defense authorization act (S. 1790, section 1650) directs the President to allow congressional defense committees to review (but not retain) classified National Security Presidential Memorandums on DoD operations in cyberspace. After being read at a secure facility, the classified documents are to be collected and returned to the President, the legislation stated.

No, said the White House.

This and other provisions on sharing of classified information "purport to mandate or regulate the dissemination of information that may be protected by executive privilege, including by interfering with Presidential control of the process for making a determination that information is protected," according to another December 20 signing statement.

"My Administration will treat these provisions consistent with the President's constitutional authority to control information, the disclosure of which could impair national security, foreign relations, law enforcement, or the performance of the President's constitutional duties."

The obvious defect in the White House posture is that Congress has constitutional duties of its own. Many of these duties require congressional access to information that is in the possession of the executive branch. Congress must fund (or decline to fund) the national security operations of the government. It alone possesses the authority to declare war. It has a duty to perform oversight. Importantly, it also has tools at its disposal to compel disclosure of the information it needs.

While the latest White House signing statements convey a rhetorical sense of defiance, they do not by themselves defy or modify the law. But neither do they do anything to advance a resolution of the competing interests at stake.

The significance of signing statements was considered in a 2012 report by the Congressional Research Service. See Presidential Signing Statements: Constitutional and Institutional Implications, January 4, 2012.

MANY REPORTS TO CONGRESS MAY GO ONLINE

Many of the hundreds or thousands of reports that are submitted to Congress by executive branch agencies each year may be published online pursuant to a provision in the new Consolidated Appropriations Act (HR 1158, section 8092).

That provision states that any agency that is funded by the Act shall post on its website any report to Congress "upon the determination by the head of the agency that it shall serve the national interest."

The impact of the latter condition is unclear, particularly since no criteria for satisfying the national interest are defined. In any case, reports containing classified or proprietary information would be exempt from publication online, and publication of all reports would be deferred for at least 45 days after their receipt by Congress, diminishing their relevance, timeliness and news value.

Reports to Congress often contain new information and perspectives but they are an under-utilized resource particularly because they are not readily available.

Some otherwise unpublished 2019 reports address, for example, DoD use of open burn pits, political boycotts of Israel, and the financial cost of war post-9/11.

The newly enacted FY2020 national defense authorization act alone includes hundreds of new, renewed, or modified reporting requirements, according to an unofficial tabulation.

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

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