Richard A. Best Jr.
Specialist in National Defense
Increasing calls for intelligence support and continuing innovations in intelligence technologies combine to create significant challenges for both the Executive and Legislative Branches. Intelligence, Surveillance, and Reconnaissance (ISR) systems are integral components of both national policymaking and military operations, including counterterrorism operations, but they are costly and complicated and they must be linked in order to provide users with a comprehensive understanding of issues based on information from all sources. Relationships among organizations responsible for designing, acquiring, and operating these systems are also complicated as are oversight arrangements in Congress. These complications have meant that even though many effective systems have been fielded, there have also been lengthy delays and massive cost overruns. Uncertainties about the long-term acquisition plans for ISR systems persist even as pressures continue for increasing the availability of ISR systems in current and future military operations and for national policymaking.
These challenges have been widely recognized. A number of independent assessments have urged development of “architectures” or roadmaps setting forth agreed-upon plans for requirements and acquisition and deployment schedules. Most observers would agree that such a document would be highly desirable, but there are significant reasons why developing such an architecture and gaining an enduring consensus remain problematical. First, ISR technologies are not static; whereas it is possible to plan for aircraft, ships or tanks that can be used for decades, it is doubtful that today’s inventory of satellites, unmanned aerial vehicles, and manned aircraft will still be the right mix a few years hence. Some believe that a “cast-in-concrete” plan would inhibit the ability to take advantage of new technologies or techniques as they emerge. Secondly, achieving consensus on such a plan would be greatly affected by the separate priorities of different parts of the Intelligence Community, the Defense Department, and Washington policymakers. The needs of policymakers and military commanders are different and are usually reconciled only on a caseby- case basis. Furthermore, different congressional oversight committees may also have different perspectives on priorities and some may seek to emphasize funding for specific systems.
The Director of National Intelligence could be given authority to reach across current organizational boundaries to define requirements and priorities. Some propose establishing a position for a separate “ISR Czar” to do this. Few observers believe that ISR programs could be carved out of the intelligence budget and/or the defense budget, and placed under the control of a single officer or lead agency. There is a strong likelihood that separate needs and concerns that effect the current systems will not disappear; even if one official has a new and expansive charter. Similar concerns would exist in regard to the jurisdictions of congressional oversight committees.
A fundamental question is not whether a long-term plan can be agreed upon and implemented, or whether the current disparate bureaucratic arrangements can be transformed, but whether the conflicting priorities and budgetary realities can be at least recognized and addressed in approximately the same timeframe by all responsible officials. ISR systems can be viewed as providing a test case for the interagency cooperation that observers believe will be increasingly important throughout the Federal Government.
Date of Report: January 20, 2011
Number of Pages: 26
Order Number: R41284
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William J. Krouse
Specialist in Domestic Security and Crime Policy
The Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) is the lead federal law enforcement agency charged with administering and enforcing federal laws related to the manufacture, importation, and distribution of firearms and explosives. Congress transferred ATF’s enforcement and regulatory functions for firearms and explosives from the Department of the Treasury to the Department of Justice (DOJ) as part of the Homeland Security Act (P.L. 107-296). ATF is also responsible for investigating arson cases with a federal nexus, as well as criminal violations of federal laws governing the manufacture, importation, and distribution of alcohol and tobacco. Congress authorized appropriations for ATF in the Department of Justice Authorization Act of 2005 (P.L. 109-162) for FY2006 through FY2009; however, the 111th Congress did not consider legislation to reauthorize annual appropriations for DOJ or ATF.
For three fiscal years, FY2008 through FY2010, Congress has provided about $49 million in program increases to address firearms trafficking. About $43 million of this funding has been allocated to Project Gunrunner, an ATF initiative to reduce gun trafficking across the Southwest border, or other projects to assist the government of Mexico. In the 110th Congress, the House passed a bill (H.R. 6028) that would have authorized appropriations over three years, for FY2008 through FY2010, of $73.5 million to increase ATF resources dedicated to stemming illegal gun trafficking into Mexico. In the 111th Congress, bills with similar authorizations were introduced (S. 205, H.R. 495, H.R. 1448, and H.R. 1867).
For FY2011, the Administration requested $1.163 billion for ATF, an increase of 3.8% over the agency’s FY2010 appropriation ($1.121 billion). For Project Gunrunner, the request included $11.8 million to annualize 37 positions that were previously funded by the American Recovery and Reinvestment Act (P.L. 111-5). It also included $1.2 million to enable ATF to coordinate state and local law enforcement efforts in the event of a national emergency and, thus, fulfill the Attorney General’s Emergency Support Function #13 obligations under the National Response Framework. The FY2011 request assumed $35.2 million and 46 FTE positions in base adjustments, less offsets and other reductions. The Senate Appropriations Committee reported a bill that would have matched the FY2011 request (S. 3636), but no further action was taken on that bill. In the absence of an enacted CJS appropriations bill, Congress has passed a series of continuing resolutions, the most recent of which funds ATF at its FY2010 enacted level through March 4, 2011 (P.L. 111-322). Congress also provided ATF with $37.5 million in supplemental FY2010 appropriations for Project Gunrunner (P.L. 111-230).
In March 2010, the House Commerce-Justice-State Appropriations Subcommittee held a hearing on the ATF FY2011 budget submission. Members of the subcommittee raised questions about gun trafficking on the Southwest border, regulatory backlogs, violent crime impact teams, and interagency coordination on gang violence. Congress passed and the President signed into law the Prevent All Cigarette Trafficking Act (P.L. 111-154). This act grants ATF greater authority to inspect the businesses and records of “cigarette deliverers.” In addition, under the Mérida Initiative, ATF released a Spanish-language version of its firearms trace request software (e-Trace 4.0) to Mexico, Guatemala, and Costa Rica, and established a U.S.-Mexico ballistic information exchange capability. Also of note, in November 2010, the DOJ Office of the Inspector General (OIG) released an updated report on ATF’s Project Gunrunner, which recommended among other things that ATF work with DOJ to require federally licensed gun dealers to report multiple long gun sales. In addition, the OIG released reports on ATF’s efforts to investigate contraband cigarette trafficking, and on ATF’s concurrent jurisdiction with the Federal Bureau of Investigation for explosives-related investigations. This report complements CRS Report RL34514, The Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF): Budget and Operations for FY2008, FY2009, and FY2010, and will be updated as needed.
Date of Report: January 6, 2011
Number of Pages: 29
Order Number: R41206
Price: $29.95
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Jennifer K. Elsea
Legislative Attorney
The recent online publication of classified defense documents and diplomatic cables by the organization WikiLeaks and subsequent reporting by the New York Times and other news media have focused attention on whether such publication violates U.S. criminal law. The Attorney General has reportedly stated that the Justice Department and Department of Defense are investigating the circumstances to determine whether any prosecutions will be undertaken in connection with the disclosure.
This report identifies some criminal statutes that may apply, but notes that these have been used almost exclusively to prosecute individuals with access to classified information (and a corresponding obligation to protect it) who make it available to foreign agents, or to foreign agents who obtain classified information unlawfully while present in the United States. Leaks of classified information to the press have only rarely been punished as crimes, and we are aware of no case in which a publisher of information obtained through unauthorized disclosure by a government employee has been prosecuted for publishing it. There may be First Amendment implications that would make such a prosecution difficult, not to mention political ramifications based on concerns about government censorship. To the extent that the investigation implicates any foreign nationals whose conduct occurred entirely overseas, any resulting prosecution may carry foreign policy implications related to the exercise of extraterritorial jurisdiction and whether suspected persons may be extradited to the United States under applicable treaty provisions.
This report discusses the statutory prohibitions that may be implicated, including the Espionage Act; the extraterritorial application of such statutes; and the First Amendment implications related to such prosecutions against domestic or foreign media organizations and associated individuals. The report provides a summary of recent legislation relevant to the issue as well as some previous efforts to criminalize the unauthorized disclosure of classified information.
Date of Report: January 10, 2011
Number of Pages: 30
Order Number: R41404
Price: $29.95
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Richard A. Best Jr.
Specialist in National Defense
The National Intelligence Council (NIC), composed of some 18 senior analysts and national security policy experts, provides the U.S. intelligence community’s best judgments on crucial international issues. NIC members are appointed by the Director of National Intelligence and routinely support his office and the National Security Council. Congress occasionally requests that the NIC prepare specific estimates and other analytical products that may be used during consideration of legislation.
It is the purpose of this report to describe the statutory provisions that authorize the NIC, provide a brief history of its work, and review its role within the federal government. The report will focus on congressional interaction with the NIC and describe various options for modifying congressional oversight.
Date of Report: January 10, 2011
Number of Pages: 16
Order Number: R40505
Price: $29.95
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David F. Burrelli
Specialist in Military Manpower Policy
In 1981, the Supreme Court ruled that the former spouse of a military member or retiree could not be awarded any share of that member’s/retiree’s retired pay as a part of a divorce property settlement in a community property state. In response, Congress enacted the Uniformed Services Former Spouses’ Protection Act (USFSPA) in 1982. Under the USFSPA, state courts can treat disposable military retired pay as divisible property in divorce cases. In addition, certain former spouses would remain eligible to receive certain military benefits or privileges. The USFSPA has since been modified on a number of occasions.
The USFSPA allows for ‘disposable’ military retired pay to be divided as part of a divorce settlement. The law makes no assumption of such a division nor does it presume how much of a division should be made. However, state laws may vary on these concepts. In addition, the USFSPA allows for certain military benefits to be awarded to qualifying former spouse. These include health care benefits and commissary/exchange privileges.
Confusion exists over the distinction of ‘disposable’ versus ‘total’ retired pay. The use of disposable retired pay may have implications in terms of taxes withheld and taxes paid. In addition, recent changes in other laws that affect military retired pay may inadvertently affect the amount of retired pay a former spouse receives. For example, diability pay is not divisible under the USFSPA. Recent changes that allow certain military retires to receive both disability pay and military retired pay (until recently, these were offsetting), increase the amount a retire may receive and may also increase the former spouse’s share in cases where the division was made on a percentage basis.
In other situations, later career and financial decisions made my military retirees may affect the availability of their retired pay. For example, military retirees who take federal civilian jobs and then retire from those jobs can waive their military retired pay and credit their military time to their civilian careers. In so doing, they eliminate their retired pay, and thereby any share that might have been awarded to the former spouse.
Since its inception, the USFSPA has remained contentious. Opponents of the law feel that it is unfair and should be modified or repealed. Proponents argue that the law protects the former spouse within nationally accepted standards and that protection should be improved in some details. These proposed modifications include (1) expanding the eligibility for commissary and exchange benefits for former spouses, (2) providing survivor benefits for certain former spouses, (3) terminating direct payments to a former spouse upon remarriage, (4) limiting judicial jurisdiction during the reopening of a settled divorce, and (5) further redefinition of “disposable” retired pay. As with the original provisions of the USFSPA, these and other proposed changes have been the source of great debate.
On October 12, 2004, a Federal Judge dismissed a case challenging the USFSPA.
Although legislation making various changes to the USFSPA has been introduced in the past, none of this legislation has allowed for retroactive change to settled cases.
Date of Report: January 12, 2011
Number of Pages: 23
Order Number: RL31663
Price: $29.95
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