Archive for January, 2012

New From the GAO

January 31, 2012 Comments off

New GAO Reports
Source: Government Accountability Office

1. Homeland Defense: Continued Actions Needed to Improve Management of Air Sovereignty Alert Operations.  GAO-12-311, January 31.
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2. Department of Energy: Additional Opportunities Exist to Streamline Support Functions at NNSA and Office of Science Sites.  GAO-12-255, January 31.
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3. Antibiotics: FDA Needs to Do More to Ensure that Drug Labels Contain Up-to-Date Information.  GAO-12-218, January 31.
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CRS — Federal Aid to Roads and Highways Since the 18th Century: A Legislative History

January 31, 2012 Comments off

Federal Aid to Roads and Highways Since the 18th Century: A Legislative History (PDF)
Source: Congressional Research Service (via Federation of American Scientists)

The federal government has provided aid for roads and highways since the establishment of the United States in 1789. This report comprises a brief history of such aid, detailing some precedent setters and more recent funding through the Highway Trust Fund, which was created in 1956.

CRS — “Who is a Veteran?” — Basic Eligibility for Veterans’ Benefits

January 31, 2012 Comments off

“Who is a Veteran?” — Basic Eligibility for Veterans’ Benefits (PDF)
Source: Congressional Research Service (via Federation of American Scientists)

A broad range of benefits are offered to veterans of the U.S. Armed Forces and to certain members of their families by the U.S. Department of Veterans Affairs (VA). Among these benefits are various types of financial assistance, including monthly cash payments to disabled veterans, health care, education, and housing benefits. Basic criteria must be met to be eligible to receive any of the benefits administered by the VA.

For a former servicemember to receive certain VA benefits, the person must have active U.S. military service for a minimum period of time and meet nature of discharge requirements. Some members of the National Guard and reserve components have difficulty meeting the active duty and length of service requirements. However, a member of the National Guard or reserve components who is activated for federal military service and serves the full period of activation is considered a veteran for purposes of VA benefits.

The GI Bill Improvement Act of 1977 (P.L. 95-202) recognized the service of one group of civilians, the Women’s Air Forces Service Pilots, as active service for benefits administered by the VA, and it also established that the Secretary of Defense could determine that service for the Armed Forces by a group of civilians, or contractors, be considered active service for benefits administered by the VA.

This report examines the basic eligibility criteria for VA administered veterans’ benefits, including the issue of eligibility of members of the National Guard and reserve components.

CRS — Legal Issues Associated with the Proposed Keystone XL Pipeline

January 31, 2012 Comments off

Legal Issues Associated with the Proposed Keystone XL Pipeline (PDF)
Source: Congressional Research Service (via Federation of American Scientists)

In 2008, TransCanada Corp. applied for a presidential permit from the State Department to construct and operate an oil pipeline across the U.S.-Canada border in a project known as Keystone XL. The Keystone XL pipeline would transport oil produced from oil sands in Alberta, Canada, to Gulf Coast refineries. The permit application was subjected to review by the State Department pursuant to executive branch authority over cross-border pipeline facilities as articulated in Executive Order 13337.

After several phases of review, on November 10, 2011, the State Department announced that it would seek additional information about alternative pipeline routes before it could move forward with a national interest determination. In response, several pieces of legislation were introduced, including Title V of the Temporary Payroll Tax Cut Continuation Act of 2011. Title V dictated that President must grant the Keystone XL pipeline permit within 60 days of the law’s enactment, unless the President determined that the pipeline is not in the national interest. If the President did not make a national interest determination and took no action to grant the permit, then the law provided that the permit “shall be in effect by operation of law.” The Temporary Payroll Tax Cut Continuation Act of 2011 (P.L. 112-78), including Title V addressing the Keystone XL permit, was enacted on December 23, 2011.

Pursuant to the requirements of Title V, on January 18, 2012, the State Department recommended that “the presidential permit for the proposed Keystone XL pipeline be denied and, that at this time, the TransCanada Keystone XL Pipeline be determined not to serve the national interest.” The same day, the President stated his determination that the Keystone XL pipeline project “would not serve the national interest.”

New legislative activity with respect to the permitting of border-crossing facilities, a subject previously handled exclusively by the executive branch, has triggered inquiries as to whether this raises constitutional issues related to the jurisdiction of the two branches over such facilities. Additionally, as states have begun to contemplate taking action with respect to the pipeline siting, some have questioned whether state siting of a pipeline is preempted by federal law. Others argue that states dictating the route of the pipeline violates the dormant Commerce Clause of the Constitution which, among other things, prohibits one state from acting to protect its own interests to the detriment of other states.

This report reviews those legal issues. First, it suggests that legislation related to cross-border facility permitting is unlikely to raise significant constitutional questions, despite the fact that such permits have traditionally been handled by the executive branch alone pursuant to its constitutional “foreign affairs” authority. Next, it observes generally that state oversight of pipeline siting decisions does not appear to violate existing federal law or the Constitution. Finally, the report suggests that State Department’s implementation of the existing authority to issue presidential permits appears to allow for judicial review of its National Environmental Policy Act determinations.

A companion report from CRS focusing on policy issues associated with the proposal, CRS Report R41668, Keystone XL Pipeline Project: Key Issues, by Paul W. Parfomak et al., is also available.

CRS — Presidential Signing Statements: Constitutional and Institutional Implications

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Presidential Signing Statements: Constitutional and Institutional Implications (PDF)
Source: Congressional Research Service (via Federation of American Scientists)

Presidential signing statements are official pronouncements issued by the President contemporaneously to the signing of a bill into law that, in addition to commenting on the law generally, have been used to forward the President’s interpretation of the statutory language; to assert constitutional objections to the provisions contained therein; and, concordantly, to announce that the provisions of the law will be administered in a manner that comports with the administration’s conception of the President’s constitutional prerogatives. While the history of presidential issuance of signing statements dates to the early 19th century, the practice has become the source of significant controversy in the modern era as Presidents have increasingly employed the statements to assert constitutional and legal objections to congressional enactments. President Reagan initiated this practice in earnest, transforming the signing statement into a mechanism for the assertion of presidential authority and intent.

President Reagan issued 250 signing statements, 86 of which (34%) contained provisions objecting to one or more of the statutory provisions signed into law. President George H. W. Bush continued this practice, issuing 228 signing statements, 107 of which (47%) raised objections. President Clinton’s conception of presidential power proved to be largely consonant with that of the preceding two administrations. In turn, President Clinton made aggressive use of the signing statement, issuing 381 statements, 70 of which (18%) raised constitutional or legal objections.

President George W. Bush continued this practice, issuing 161 signing statements, 127 of which (79%) contain some type of challenge or objection. The significant rise in the proportion of constitutional objections made by President George W. Bush was compounded by the fact that his statements were typified by multiple objections, resulting in more than 1,000 challenges to distinct provisions of law. Although President Barack Obama has continued to use presidential signing statements, the Obama Administration has used the interpretive tools with less frequency than previous administrations—issuing 20 signing statements, of which 10 (50%) contain constitutional challenges to an enacted statutory provision.

The number and scope of such assertions in the George W. Bush Administration gave rise to extensive debate over the issuance of signing statements, with the American Bar Association (ABA) publishing a report declaring that these instruments are “contrary to the rule of law and our constitutional separation of powers” when they “claim the authority or state the intention to disregard or decline to enforce all or part of a law … or to interpret such a law in a manner inconsistent with the clear intent of Congress.”

However, in analyzing the constitutional basis for, and legal effect of, presidential signing statements, it becomes apparent that no constitutional or legal deficiencies adhere to the issuance of such statements in and of themselves. Rather, it appears that the appropriate focus of inquiry in this context is on the assertions of presidential authority contained therein, coupled with an examination of substantive executive action taken or forborne with regard to the provisions of law implicated in a presidential signing statement. Applying this analytical rubric, it seems evident that the issues involved center not on the simple issue of signing statements, but rather on the view of presidential authority that governs the substantive actions of the administration in question. This report focuses on the use of signing statements by recent administrations, with particular emphasis on the Administrations of George W. Bush and Barack Obama.

CRS — Kim Jong-il’s Death: Implications for North Korea’s Stability and U.S. Policy

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Kim Jong-il’s Death: Implications for North Korea’s Stability and U.S. Policy (PDF)
Source: Congressional Research Service (via Federation of American Scientists)

North Korea represents one of the United States’ biggest foreign policy challenges due to its production and proliferation of nuclear weapons and missiles, the threat of attacks against South Korea, its record of human rights abuses, and the possibility that its internal problems could destabilize Northeast Asia. The North Korean government’s December 19, 2011, announcement of the death of the country’s “Dear Leader,” Kim Jong-il, has the potential to be a watershed moment in the history of the Korean Peninsula and the region. Ever since the death of his father, the “Great Leader” Kim Il Sung, in 1994, Kim Jong-il had sat at the apex of a highly centralized, brutal regime. During his tenure, his regime subjected North Korea’s people to profound impoverishment and massive food shortages, developed nuclear weapons and long-range missiles, and sold technology related to both programs abroad.

The effect of Kim Jong-il’s death on North Korea’s stability is uncertain. Many experts doubt that his anointed successor, his third son Kim Jong-un, will over the course of time be able to maintain effective control over his country due to his relative inexperience and the mounting internal and external pressures confronting North Korea. Yet, the North Korean regime under the elder Kim proved to be remarkably resilient, and many of the forces that held it together will continue to operate even if the young Kim himself remains weak. A key to the Kim Jong-un regime’s stability will be its ability to continue obtaining and distributing funds, mostly from external sources. Of particular importance will be China’s willingness to provide commercial, financial, and other support for the regime. Over the years, China reportedly has resisted repeated U.S. and South Korean attempts to discuss North Korea contingency plans. It is unclear whether Kim Jong-il’s death will change this situation, though there have been calls to redouble outreach to Beijing. A possible opportunity for high-level dialogue could come in January 2012, when Chinese Vice President Xi Jinping visits Washington, DC. Xi is widely expected to be chosen as China’s top leader over the coming year.

Very little is known about the inner workings of the North Korean elite, as evidenced by the U.S. and South Korean intelligence services apparent surprise at the announcement of Kim Jong-il’s death. Even less is known about Kim Jong-un, who is believed to be in his late 20s and to have attended primary school in Switzerland in the 1990s. Kim Jong-un was being groomed to be the successor since his father’s August 2008 stroke that put a spotlight on the succession question.

In the days after the announcement, U.S. and South Korean officials issued statements that expressed support for the North Korean people, hope that the new leadership will continue recent diplomatic initiatives with Washington and Seoul, and a desire for a smooth transition in Pyongyang. (For the text of these statements as well as a joint message from several Chinese state and communist party organs, see the Appendix. U.S. and South Korean influence over events in North Korea is widely believed to be limited. In the coming weeks, the Obama Administration will be confronted with a decision of whether to persist with two proposed new agreements that reportedly were in the process of being concluded with the Kim Jong-il government in mid- December: a resumption of U.S. food assistance, and in return, a reported agreement by North Korea to shut down key sites of its nuclear program and open them to international monitoring.

CRS — Building Civilian Interagency Capacity for Missions Abroad: Key Proposals and Issues for Congress

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Building Civilian Interagency Capacity for Missions Abroad: Key Proposals and Issues for Congress (PDF)
Source: Congressional Research Service (via Federation of American Scientists)

Within the past two decades, prominent foreign policy organizations and foreign policy experts have perceived serious deficiencies in the authorities, organizations, and personnel used to conduct interagency missions that prevent the United States from exercising its power to full advantage. For the 112th Congress, proposals to address these problems may be of interest for their perceived potential not only to enhance performance, but also to save money by streamlining processes, encouraging interagency cooperation, and reducing duplication. These proposals also provide context for current legislation, including the Interagency Personnel Rotation Act of 2011 (S. 1268 and H.R. 2314), the Global Security Contingency Fund contained in the FY2012 National Defense Authorization Act (NDAA, Section 1207, H.R. 1540, as sent by Congress to the President on December 21, 2011), as well as in the House’s FY2012 Foreign Relations Authorization Act, Section 924, H.R. 2583. The FY2012 NDAA, as sent to the President, requires the President to submit to Congress a “whole-of-government” implementation plan (Section 1072, H.R. 1540).

Despite a growing perception during the 1990s that reforms were needed to foster interagency cooperation in missions abroad, it was not until the terrorist attacks on the United States of September 11, 2001, during the presidency of George W. Bush, and subsequent U.S. military interventions that the need became urgent enough to result in significant changes. The earlier first steps of the Clinton Administration toward interagency reform were in short order embraced and then expanded by the Bush Administration, which also implemented reforms of its own. The Barack H. Obama Administration has endorsed these changes and undertaken some of its own.

Three problems with the current interagency cooperation system are most commonly cited. These are: (1) a government-wide lack of strategic planning and interagency operational planning capabilities among civilian agencies; (2) a variety of structural deficiencies in the U.S. government for conducting missions abroad that lead to a tendency for “stove-piping” responses, with each agency operating independently and to civilian agencies’ reluctance to divert scarce resources, including personnel, from their core missions to interagency missions; and (3) personnel who are not trained for interagency missions and often unfamiliar with the missions, capabilities, and cultures of other agencies.

This report draws on over three dozen studies with recommendations to improve the current national security system. The studies surveyed include three prepared by the Project on National Security Reform, with comprehensive recommendations, four prepared or co-sponsored by the Center for Strategic and International Studies (CSIS), and two by RAND in conjunction with the American Academy of Diplomats, as well as reports by the Council on Foreign Relations, the Defense Science Board, the National Defense University, and others. This report draws from these studies, as well as a few articles, for recommendations to improve strategy-making, planning, and budgeting; to improve institutional authorities, structures and arrangements; and, to create interagency personnel policies and mechanisms.

As the breadth and variety of the recommendations indicate, there is no consensus on how to fix the perceived problems. Nor is there agreement among policymakers on a number of overarching questions: whether interagency reform is necessary for missions abroad, which proposals are considered highest priority, whether reforms would save money, and whether reform of Congressional organization or procedures must accompany other national security reform measures.