Navy Ford (CVN-78) Class Aircraft Carrier Program: Background and Issues for Congress

Ronald O'Rourke
Specialist in Naval Affairs

CVN-78, CVN-79, and CVN-80 are the first three ships in the Navy's new Gerald R. Ford (CVN- 78) class of nuclear-powered aircraft carriers (CVNs). 

CVN-78 was procured in FY2008 and is being funded with congressionally authorized four-year incremental funding in FY2008-FY2011. The Navy's proposed FY2011 budget estimates the ship's procurement cost at $11,531.0 million (i.e., about $11.5 billion) in then-year dollars, and requests $1,731.3 million in procurement funding as the final increment to complete this estimated procurement cost. 

CVN-79 is scheduled for procurement in FY2013, and has received advance procurement funding since FY2007. The Navy's proposed FY2011 budget estimates the ship's procurement cost at $10,413.1 million (i.e., about $10.4 billion) in then-year dollars and requests $908.3 million in advance procurement funding for the ship. 

CVN-80 is scheduled for procurement in FY2018, with advance procurement funding scheduled to begin in FY2014. The Navy's proposed FY2011 budget estimates the ship's procurement cost at $13,577.0 million (i.e., about $13.6 billion) in then-year dollars. 

On April 6, 2009, Secretary of Defense Robert Gates announced a number of recommendations he was making for the FY2010 defense budget. One of these was to shift procurement of carriers to five-year intervals. This recommendation effectively deferred the scheduled procurement of CVN-79 from FY2012 to FY2013, and the scheduled procurement of CVN-80 from FY2016 to FY2018. Secretary of Defense Robert Gates stated on April 6, 2009, that shifting carrier procurement to five-year intervals would put carrier procurement on "a more fiscally sustainable path." 

Potential oversight issues for Congress for FY2011 for the CVN-78 program include the following: 

• Did shifting carrier procurement to five-year intervals put carrier procurement on a more fiscally sustainable path? 

• Where do the estimated procurement costs of CVNs 78, 79, and 80 stand in relation to the unit procurement cost caps for the CVN-78 program that were established by Section 122 of the FY2007 defense authorization act (H.R. 5122/P.L. 109-364 of October 17, 2006)? 

• What is the likelihood that the estimated procurement costs of CVNs 78, 79, and 80 will increase from the estimates shown in the FY2011 budget? .


Date of Report: February 16, 2010
Number of Pages: 20
Order Number: RS20643
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Veterans Affairs: The U.S. Court of Appeals for Veterans Claims—Judicial Review of VA Decision Making

Douglas Reid Weimer
Legislative Attorney

Congress, through the Department of Veterans Affairs (VA), extends various benefits to veterans and certain of their family members. Sometimes veterans may not agree with the VA's initial decisions concerning the award and/or the amount of these benefits. Within the VA, there is an extensive appeal/review process that concludes with the decision of the Board of Veterans' Appeals (BVA). Final decisions of the BVA may be appealed to the U.S. Court of Appeals for Veterans Claims (CAVC), which is an independent federal court, entirely separate from the VA. With organizational and operational issues having been addressed by prior Congresses, the 111th Congress is considering legislation to deal with funding for the CAVC—H.R. 3082, H.Amdt. 315 to H.R. 3082, and S. 1407. A brief overview of the CAVC's historical and legislative background may help to give context to its current operation. .


Date of Report: February 22, 2010
Number of Pages: 9
Order Number: RS22561
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Satellite Surveillance: Domestic Issues

Richard A. Best Jr.
Specialist in National Defense

Jennifer K. Elsea
Legislative Attorney

Reconnaissance satellites, first deployed in the early 1960s to peer into denied regions of the Soviet Union and other secretive enemy states, have from time to time been used by civilian agencies of the federal government to assist with mapping, disaster relief, and environmental concerns. These uses have been coordinated by the Civil Applications Office at the U.S. Geological Survey, a component of the Interior Department. Post 9/11, the Bush Administration sought to encourage use of satellite-derived data for homeland security and law enforcement purposes, in addition to the civil applications that have been supported for years. In 2007, it moved to transfer responsibility for coordinating civilian use of satellites to the Department of Homeland Security. The initiative was launched, however, apparently without notification of key congressional oversight committees. 

Members of Congress and outside groups raised concerns that using satellites for law enforcement purposes may infringe on the privacy and Fourth Amendment rights of U.S. persons. Other commentators questioned whether the proposed surveillance will violate the Posse Comitatus Act or other restrictions on military involvement in civilian law enforcement, or would otherwise exceed the statutory mandates of the agencies involved. Such concerns led Congress to preclude any funds in the Consolidated Appropriations Act, 2008 (H.R. 2764, P.L. 110-161), from being used to "commence operations of the National Applications Office ... until the Secretary [of the Department of Homeland Security] certifies that these programs comply with all existing laws, including all applicable privacy and civil liberties standards, and that certification is reviewed by the Government Accountability Office." (Section 525.) Similar language has been included in a subsequent Continuing Appropriations Act (P.L. 110-329) approved in September 2008. 

The Obama Administration conducted its assessment of the issue and terminated the NAO in June 2009, maintaining that there were better information sharing programs to meet the needs of state and local homeland security partners. Little public information is available concerning current policies for the use of satellite information for domestic purposes. 

This report provides background on the development of intelligence satellites and identifies the roles various agencies play in their management and use. Issues surrounding the current policy and proposed changes are discussed, including the findings of an Independent Study Group (ISG) with respect to the increased sharing of satellite intelligence data. There follows a discussion of legal considerations, including whether satellite reconnaissance might constitute a "search" within the meaning of the Fourth Amendment; an overview of statutory authorities, as well as restrictions that might apply; and a brief description of executive branch authorities and Department of Defense directives that might apply. The report concludes by discussing policy issues Congress may consider as it deliberates the potential advantages and pitfalls that may be encountered in expanding the role of satellite intelligence for homeland security purposes. 


Date of Report: February 1, 2010
Number of Pages: 28
Order Number: RL34421
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Defense Authorization and Appropriations Bills: FY1970-FY2010

Mari-Jana "M-J" Oboroceanu
Information Research Specialist

The passage of the Department of Defense (DOD) authorization and appropriations bills through Congress often does not follow the course laid out in textbooks on legislative procedure. Tracking DOD authorization or appropriation bills can often be confusing and time-consuming; this has been particularly true in recent years, when continuing resolutions (CRs) containing the DOD and other appropriation bills have been passed in lieu of the 12 regular appropriations bills for the entire U.S. government. 

This report is a research aid, which lists the DOD authorization bills (Table 1) and appropriations bills (Table 2) for FY1970-FY2010. This report includes all the pertinent information on the passage of these bills through the legislative process: bill numbers, report numbers, dates reported and passed, recorded vote numbers and vote tallies, dates of passage of the conference reports with their numbers and votes, vetoes, substitutions, dates of final passage, and public law numbers. Key definitions are also included. This report will be updated as legislative activity warrants.


Date of Report: February 17, 2010
Number of Pages: 21
Order Number: 98-756
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Arms Control and Nonproliferation: A Catalog of Treaties and Agreements

Amy F. Woolf
Specialist in Nuclear Weapons Policy

Mary Beth Nikitin
Analyst in Nonproliferation

Paul K. Kerr
Analyst in Nonproliferation

Arms control and nonproliferation efforts are two of the tools that have occasionally been used to implement U.S. national security strategy. Although some believe these tools do little to restrain the behavior of U.S. adversaries, while doing too much to restrain U.S. military forces and operations, many other analysts see them as an effective means to promote transparency, ease military planning, limit forces, and protect against uncertainty and surprise. Arms control and nonproliferation efforts have produced formal treaties and agreements, informal arrangements, and cooperative threat reduction and monitoring mechanisms. The pace of implementation slowed, however, in the 1990s, and the Bush Administration usually preferred unilateral or ad hoc measures to formal treaties and agreements to address U.S. security concerns. But the Obama Administration has resumed bilateral negotiations with Russia and pledged its support for a number of multilateral arms control and nonproliferation efforts. 

The United States and Soviet Union began to sign agreements limiting their strategic offensive nuclear weapons in the early 1970s. Progress in negotiating and implementing these agreements was often slow, and subject to the tenor of the broader U.S.-Soviet relationship. As the Cold War drew to a close in the late 1980s, the pace of negotiations quickened, with the two sides signing treaties limiting intermediate range and long-range weapons. But progress again slowed in the 1990s, as U.S. missile defense plans and a range of other policy conflicts intervened in the U.S.- Russian relationship. At the same time, however, the two sides began to cooperate on securing and eliminating Soviet-era nuclear, chemical, and biological weapons. Through these cooperative efforts, the United States now allocates more than $1 billion each year to threat reduction programs in the former Soviet Union. 

The United States is also a prominent actor in an international regime that attempts to limit the spread of nuclear weapons. This regime, although suffering from some setbacks in recent years in Iran and North Korea, includes formal treaties, export control coordination and enforcement, U.N. resolutions, and organizational controls. The Nuclear Nonproliferation Treaty (NPT) serves as the cornerstone of this regime, with all but four nations participating in it. The International Atomic Energy Agency not only monitors nuclear programs to make sure they remain peaceful, but also helps nations develop and advance those programs. Other measures, such as sanctions, interdiction efforts, and informal cooperative endeavors, also seek to slow or stop the spread of nuclear materials and weapons. 

The international community has also adopted a number of agreements that address non-nuclear weapons. The CFE Treaty and Open Skies Treaty sought to stabilize the conventional balance in Europe in the waning years of the Cold War. Other arrangements seek to slow the spread of technologies that nations could use to develop advanced conventional weapons. The Chemical Weapons and Biological Weapons Conventions sought to eliminate both of these types of weapons completely. 

This report will be updated annually, or as needed.


Date of Report: February 2, 2010
Number of Pages: 71
Order Number: RL33865
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Pakistan’s Nuclear Weapons: Proliferation and Security Issues

Paul K. Kerr
Analyst in Nonproliferation

Mary Beth Nikitin
Analyst in Nonproliferation

Pakistan's nuclear arsenal consists of approximately 60 nuclear warheads, although it could be larger. Islamabad is producing fissile material, adding to related production facilities, and deploying additional delivery vehicles. These steps will enable Pakistan to undertake both quantitative and qualitative improvements to its nuclear arsenal. Whether and to what extent Pakistan's current expansion of its nuclear weapons-related facilities is a response to the 2008 U.S.-India nuclear cooperation agreement is unclear. Islamabad does not have a public, detailed nuclear doctrine, but its "minimum credible deterrent" is widely regarded as primarily a deterrent to Indian military action. 

Pakistan has in recent years taken a number of steps to increase international confidence in the security of its nuclear arsenal. In addition to dramatically overhauling nuclear command and control structures since September 11, 2001, Islamabad has implemented new personnel security programs. Moreover, Pakistani and some U.S. officials argue that, since the 2004 revelations about a procurement network run by former Pakistani nuclear official A.Q. Khan, Islamabad has taken a number of steps to improve its nuclear security and to prevent further proliferation of nuclear-related technologies and materials. A number of important initiatives, such as strengthened export control laws, improved personnel security, and international nuclear security cooperation programs have improved Pakistan's security situation in recent years. 

Instability in Pakistan has called the extent and durability of these reforms into question. Some observers fear radical takeover of a government that possesses a nuclear bomb, or proliferation by radical sympathizers within Pakistan's nuclear complex in case of a breakdown of controls. While U.S. and Pakistani officials continue to express confidence in controls over Pakistan's nuclear weapons, continued instability in the country could impact these safeguards. For a broader discussion, see CRS Report RL33498, Pakistan-U.S. Relations, by K. Alan Kronstadt. This report will be updated.


Date of Report: February 4, 2010
Number of Pages: 23
Order Number: RL34248
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Enemy Combatant Detainees: Habeas Corpus Challenges in Federal Court

Jennifer K. Elsea
Legislative Attorney

Michael John Garcia
Legislative Attorney

After the U.S. Supreme Court held that U.S. courts have jurisdiction pursuant to 28 U.S.C. § 2241 to hear legal challenges on behalf of persons detained at the U.S. Naval Station in Guantanamo Bay, Cuba, in connection with the war against terrorism (Rasul v. Bush), the Pentagon established administrative hearings, called "Combatant Status Review Tribunals" (CSRTs), to allow the detainees to contest their status as enemy combatants, and informed them of their right to pursue relief in federal court by seeking a writ of habeas corpus. Lawyers subsequently filed dozens of petitions on behalf of the detainees in the District Court for the District of Columbia, where district court judges reached inconsistent conclusions as to whether the detainees have any enforceable rights to challenge their treatment and detention. 

Congress subsequently passed the Detainee Treatment Act of 2005 (DTA) to divest the courts of jurisdiction to hear some detainees' challenges by eliminating the federal courts' statutory jurisdiction over habeas claims (as well as other causes of action) by aliens detained at Guantanamo. The DTA provided for limited appeals of CSRT determinations or final decisions of military commissions. After the Supreme Court rejected the view that the DTA left it without jurisdiction to review a habeas challenge to the validity of military commissions in the case of Hamdan v. Rumsfeld, the 109th Congress enacted the Military Commissions Act of 2006 (MCA) (P.L. 109-366) to authorize the President to convene military commissions and to amend the DTA to further reduce detainees' access to federal courts, including in cases already pending. 

In June 2008, the Supreme Court held in the case of Boumediene v. Bush that aliens designated as enemy combatants and detained at Guantanamo Bay have the constitutional privilege of habeas corpus. The Court also found that MCA § 7, which limited judicial review of executive determinations of the petitioners' enemy combatant status to that available under the DTA, did not provide an adequate habeas substitute and therefore acted as an unconstitutional suspension of the writ of habeas. The immediate impact of the Boumediene decision is that detainees at Guantanamo may petition a federal district court for habeas review of the legality and possibly the circumstances of their detention, perhaps including challenges to the jurisdiction of military commissions. President Barack Obama's Executive Order calling for a temporary halt in military commission proceedings and the closure of the Guantanamo detention facility is likely to have implications for legal challenges raised by detainees. Later this year, the Supreme Court is expected to consider arguments in the case of Kiyemba v. Obama as to whether federal habeas courts have the authority to order the release into the United States of Guantanamo detainees found to be unlawfully held. 

In March 2009, the Obama Administration announced a new definitional standard for the government's authority to detain terrorist suspects, which does not use the phrase "enemy combatant" to refer to persons who may be properly detained. The new standard is similar in scope to the "enemy combatant" standard used by the Bush Administration to detain terrorist suspects. The standard would permit the detention of members of the Taliban, Al Qaeda, and associated forces, along with persons who provide "substantial support" to such groups, regardless of whether such persons were captured away from the battlefield in Afghanistan. Courts that have considered the Executive's authority to detain under the AUMF and law of war have reached differing conclusions as to the scope of this detention authority. In January 2010, a D.C. Circuit panel held that support for or membership in an AUMF-targeted organization may constitute a sufficient ground to justify military detention. .


Date of Report: February 3, 2010
Number of Pages: 57
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CRS Issue Statement on Terrorism

John Rollins, Coordinator 
Specialist in Terrorism and National Security

Terrorism remains a transnational threat, and understanding the global nature of the numerous organizations and persons wishing to harm U.S. national security interests is central to formulating sound strategic policy and overseeing its effective implementation. The past year has witnessed an increase in terrorist actions by both affiliated but decentralized and non-associated groups of individuals claiming allegiance to terrorist organizations and their underlying ideologies. Many of the past year's terrorist attacks were conducted by individuals or small terrorist cells that received support ranging from resources and training to having minimal connections, if any, with the terrorist groups to which they claim allegiance. 

The terrorist threat to U.S. global interests remains a critical issue for the current Administration and 111th Congress. Over the past year, numerous individuals were arrested in the homeland and abroad for conducting attacks and planning terrorism related activities directed at U.S. national security interests. All of the attacks—successful and unsuccessful—were of a transnational dimension and ranged from a lone shooter who may have become radicalized over the Internet to a continued focus of terrorist organizations wishing to use airliners as platforms for destruction.


Date of Report: January 11, 2010
Number of Pages: 3
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Southwest Border Violence: Issues in Identifying and Measuring Spillover Violence

Jennifer E. Lake, Coordinator
Analyst in Domestic Security

Kristin M. Finklea, Coordinator
Analyst in Domestic Security

Mark Eddy
Specialist in Social Policy

Celinda Franco
Specialist in Crime Policy

Chad C. Haddal
Analyst in Immigration Policy

William J. Krouse
Specialist in Domestic Security and Crime Policy

Mark A. Randol
Specialist in Domestic Intelligence and Counter-Terrorism

There has been a recent increase in the level of drug trafficking-related violence within and between the drug trafficking organizations in Mexico. This violence has generated concern among U.S. policy makers that the violence in Mexico might spill over into the United States. Currently, U.S. federal officials deny that the recent increase in drug trafficking-related violence in Mexico has resulted in a spillover into the United States, but they acknowledge that the prospect is a serious concern. 

The most recent threat assessment indicates that the Mexican drug trafficking organizations pose the greatest drug trafficking threat to the United States, and this threat is driven partly by U.S. demand for drugs. Mexican drug trafficking organizations are the major suppliers and key producers of most illegal drugs smuggled into the United States across the Southwest border (SWB). The nature of the conflict between the Mexican drug trafficking organizations in Mexico has manifested itself, in part, as a struggle for control of these smuggling routes into the United States. Further, in an illegal marketplace—such as that of illicit drugs—where prices and profits are elevated due to the risks of operating outside the law, violence or the threat of violence becomes the primary means for settling disputes. 

When assessing the potential implications of the increased violence in Mexico, one of the central concerns for Congress is the potential for what has been termed "spillover" violence—an increase in drug trafficking-related violence in United States. While the interagency community has defined spillover violence as violence targeted primarily at civilians and government entities— excluding trafficker-on-trafficker violence—other experts and scholars have recognized trafficker-on-trafficker violence as central to spillover. When defining and analyzing changes in drug trafficking-related violence within the United States to determine whether there has been (or may be in the future) any spillover violence, critical elements include who may be implicated in the violence (both perpetrators and victims), what type of violence may arise, when violence may appear, and where violence may occur (both along the SWB and in the nation's interior). 

Currently, no comprehensive, publicly available data exist that can definitively answer the question of whether there has been a significant spillover of drug trafficking-related violence into the United States. Although anecdotal reports have been mixed, U.S. government officials maintain that there has not yet been a significant spillover. In an examination of data that could provide insight into whether there has been a significant spillover in drug trafficking-related violence from Mexico into the United States, CRS analyzed violent crime data from the Federal Bureau of Investigation's Uniform Crime Report program. The data, however, do not allow analysts to determine what proportion of the violent crime rate is related to drug trafficking or, even more specifically, what proportion of drug trafficking-related violent crimes can be attributed to spillover violence. In conclusion, because the trends in the overall violent crime rate may not be indicative of trends in drug trafficking-related violent crimes, CRS is unable to draw definitive claims about trends in drug trafficking-related violence spilling over from Mexico into the United States. 

This report will be updated as circumstances warrant. 


Date of Report: January 28, 2010
Number of Pages: 37
Order Number: RS22855
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Security Assistance Reform: “Section 1206”Background and Issues for Congress

Nina M. Serafino
Specialist in International Security Affairs

Section 1206 of the National Defense Authorization Act (NDAA) for Fiscal Year 2006 provides the Secretary of Defense with authority to train and equip foreign military and foreign maritime security forces. The Department of Defense (DOD) values this authority as an important tool to train and equip military partners. Funds may be obligated only with the concurrence of the Secretary of State. Thus far, the Department of Defense (DOD) has used Section 1206 authority primarily to provide counterterrorism support. This authority expires in FY2011. 

As of October 13, 2009, Section 1206 allocations total a little under $1 billion for FY2006 through FY2009. Section 1206 allocations totaled some $100 million for FY2006, $274 million for FY2007, $272 million for FY2008, and $340 million for FY2009. (The amounts allocated are somewhat less than the amounts notified to Congress, which totaled over $1 billion for FY2006- FY2009.) 

For FY2010, Congress provided $345 million in the Department of Defense Appropriations Act, 2010, P.L. 111-118. (The amount is not specified in the act, but is included under the total appropriated to the Defense Security Cooperation Agency.) The FY2010 National Defense Authorization Act (NDAA) put in place a temporary limit of $75 million on the use of Section 1206 funds for each FY2010 and FY2011 to train military troops that would deploy to military or stability operations in which U.S. armed forces participate. The President signed the FY2010 NDAA into law on October 28, 2009 (P.L. 111-84). 

Through the use of FY2006 through FY2009 funds, Section 1206 has supported bilateral programs in 24 countries, 13 multilateral programs, and a global human rights program. Just over 40% of the FY2006-FY2009 Section 1206 funding has been obligated for three countries: Pakistan, Lebanon, and Yemen. Pakistan has been by far the largest recipient, receiving $203.4 million or over 20% of total. About 20% has been allocated to bilateral programs in four countries: Bahrain, Indonesia, the Philippines, and Malaysia. Most of the Section 1206 funding to the latter three focuses on controlling the Celebes Sea that sits among them, as well as adjoining waters. Smaller allocations (i.e., those ranging from $1 million to $32 million) comprise close to 40% of the total. 

Some Members are concerned with several issues related to Section 1206 authority, both narrow and broad. Specific current concerns include whether Section 1206 funds are being used appropriately and effectively, and whether the authority should be expanded to provide training not only military forces but also to a wide range of foreign security forces. (Currently, Section 1206 limits security force training to maritime security forces.) An overarching issue is whether Congress should place Section 1206 train and equip (T&E) authority under the State Department with other T&E authorities. (Members have thus far refrained from codifying Section 1206 in permanent law, as requested by DOD.) A related issue is whether Congress should grant the State Department its own security assistance contingency fund with purposes that overlap Section 1206, as provided in the House-passed FY2010-FY2011 Foreign Relations Authorization Act (H.R. 2410, Section 841). Finally, as the Obama Administration conducts an overall assessment of foreign assistance, including security assistance, some Members may wish to examine the status of Section 1206 in the context of broader security assistance reform. 

This report will be updated as warranted. 


Date of Report: January 28, 2010
Number of Pages: 37
Order Number: RS22855
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Military Construction, Veterans Affairs, and Related Agencies: FY2010 Appropriations

Daniel H. Else, Coordinator
Specialist in National Defense

Christine Scott
Specialist in Social Policy

Sidath Viranga Panangala
Analyst in Veterans Policy

The Military Construction, Veterans Affairs, and Related Agencies appropriations bill provides funding for the planning, design, construction, alteration, and improvement of facilities used by active and reserve military components worldwide. It capitalizes military family housing and the U.S. share of the NATO Security Investment Program, and finances the implementation of installation closures and realignments. It underwrites veterans benefit and health care programs administered by the Department of Veterans Affairs, provides for the creation and maintenance of U.S. cemeteries and battlefield monuments within the United States and abroad, and supports the U.S. Court of Appeals for Veterans Claims and Armed Forces Retirement Homes. The bill also funds construction supporting Overseas Military Operations, a function previously carried out through emergency supplemental appropriations, and advance appropriations for veterans medical services. 

Rather than submit a complete appropriations request for FY2010 only five weeks after taking office, President Barack Obama published a budget overview, A New Era of Responsibility: Renewing America's Promise, on February 26, 2009. The President submitted his regular FY2010 appropriations request to Congress on May 7, 2009, including $133.5 billion for programs covered in the regular Military Construction, Veterans Affairs, and Related Agencies appropriations bill: $24.4 billion for Title I (military construction and family housing); $108.9 billion for Title II (veterans affairs); and $275.7 million for Title III (related agencies). Compared with funding appropriated for FY2009, this represented decreases for Title I of $3.7 billion (13.4%), and increases for Title II of $12.9 billion (13.5%) and for Title III of $69.0 million (33.3%). The overall increase in appropriations between that requested for FY2010 and enacted for FY2009 was $9.2 billion (7.4%). The enacted bill (P.L. 111-117) appropriated $23.3 billion for Title I, $157.8 billion for Title II, $280.7 million for Title III, and $1.2 billion for Title IV (Overseas Contingency Operations construction included in Title I of the President's request). 

Military construction is experiencing an overall decrease in spending as the annual appropriation required to implement the 2005 Defense Base Closure and Realignment round begins to drop off. Also, appropriations dedicated to the construction and operation of military family housing are decreasing as its privatization program expands. 

In the area of veterans' non-medical benefits, mandatory spending is increasing as claims for disability compensation, pension, and readjustment benefits increase due to a combination of several factors including the aging of the veterans' population and the current conflicts in Iraq and Afghanistan. As a result, the average number of days for completing a pension or compensation claim in FY2008 was 179 days. To reduce the pending claims workload and improve processing time, funds have been provided in previous appropriation bills for hiring and training additional claims processing staff. 

The House version of the Military Construction, Veterans Affairs, and Related Agencies Act for 2010 (H.R. 3082) was passed by the House on July 10, 2009, and sent to the Senate. The Senate passed an amended version of the bill on November 17, 2009. H.R. 3082 was subsequently incorporated as Div. E of the Consolidated Appropriations Act, 2010 (H.R. 3288). 

Date of Report: February 4, 2010
Number of Pages: 37
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Department of Defense “Section 1207”Security and Stabilization Assistance: Background and Congressional Concerns

Nina M. Serafino
Specialist in International Security Affairs

Section 1207 of the National Defense Authorization Act (NDAA) for Fiscal Year 2006 (P.L. 109- 163) provides authority for the Department of Defense (DOD) to transfer to the State Department up to $100 million per fiscal year in defense articles, services, training or other support for reconstruction, stabilization, and security activities in foreign countries. It expires at the end of FY2010. The State Department's FY2011 Foreign Assistance budget request asks for $100 million for a Complex Crises Fund, established last year by Congress as a USAID account, "to respond to emerging or unforeseen crises through support for reconstruction, security, or stabilization needs." It notes that this fund is "similar to Section 1207 Authority." 

DOD transferred $10 million in FY2006, $99.7 million in FY2007, and $100 million in FY2008 under this authority. For FY2009, Congress added special authority to transfer up to an additional $50 million for Georgia: DOD transferred a total of $143.3 million to the State Department in FY2009 Section 1207 funds. In all, these funds have supported projects in 18 countries and two regions. 

In action on the FY2010 NDAA (P.L. 111-84), Congress extended the $100 million authority through FY2010. Congressional authorizers and appropriators strongly expressed in several documents that Section 1207 authority is temporary, and indicated that such funding is better provided under the State Department budget. 

The Obama Administration decision to request Section 1207-type funding under the Foreign Assistance account may moot further discussion of Section 1207 authority. 

This report may be updated if events warrant. 


Date of Report: February 4, 2010
Number of Pages: 14
Order Number: RS22871
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Inherently Governmental Functions and Department of Defense Operations: Background, Issues, and Options for Congress

John R. Luckey
Legislative Attorney

Valerie Bailey Grasso
Specialist in Defense Acquisition

Kate M. Manuel
Legislative Attorney

An "inherently governmental function" is one that, as a matter of law and policy, must be performed by federal government employees and cannot be contracted out because it is "intimately related to the public interest." Concerned that the existence of multiple or inconsistent definitions of "inherently governmental functions" might be partly responsible for the alleged contracting out of inherently governmental functions by the Department of Defense (DOD) and other agencies, the 110th Congress enacted legislation (P.L. 110-417) requiring the Office of Management and Budget (OMB) to develop a "single consistent definition" of "inherently governmental functions." This definition is to "ensure that the head of each ... agency is able to identify each position … that exercises an inherently governmental function." By statute, OMB was required to report on its definition by October 14, 2009, but had not as of January 2010. 

The current debate over which functions are inherently governmental is part of a larger debate about the proper role of the federal government vis-à-vis the private sector. This debate is as old as the Constitution, which prohibits privatization of certain functions (e.g., Congress's legislative function), a prohibition courts enforce under various judicial tests (e.g., nondelegation, functions "affected with the public interest," etc.). Since the 1920s, federal contracting has been a primary arena for the public/private debate, with the executive and legislative branches contesting (1) which functions the government must perform because they are inherently governmental; (2) which functions the government should perform because they are closely related to inherently governmental functions or for some policy reason; and (3) which functions should be left to the private sector. DOD functions are often central to debates over which functions are inherently governmental because of the specific functions DOD performs; its prominent role in federal contracting; and its unique workforce, which blends military and civilian personnel. 

Two main definitions of "inherently governmental functions" currently exist within federal law and policy. One is a statutory definition, enacted as part of the Federal Activities Inventory Reform (FAIR) Act of 1998. This definition states that an inherently governmental function is "a function so intimately related to the public interest as to require performance by Federal Government employees." The other is a policy-oriented definition contained in OMB Circular A- 76. This definition states that an inherently governmental activity is "an activity that is so intimately related to the public interest as to mandate performance by government personnel." Other statutes and regulations that define inherently governmental functions do so either by reproducing the language of the FAIR Act or OMB Circular A-76, or by incorporating the definitions of the FAIR Act or OMB Circular A-76 by reference. 

Congress has several options if it is concerned that deficiencies in the existing definitions of inherently governmental functions may lead agencies to improperly contract out such functions. Options include (1) relying upon recent statutory changes and/or the policies of the Obama Administration, which proposes to limit contracting out generally, to effect desired changes in agency contracting; (2) changing the existing definition of "inherently governmental functions"; (3) placing limits on contracting out or use of appropriated funds; (4) addressing structural factors potentially prompting agencies to rely on contractors; (5) providing for more effective oversight of executive branch contracting decisions; and (6) focusing more on questions of contracting policy (i.e., what functions should the government perform?) than on contracting law (i.e., what functions must the government perform?). The 111th Congress has enacted or is considering several bills addressing inherently governmental functions, including P.L. 111-8, P.L. 111-84, P.L. 111-117, H.R. 1436, H.R. 2142, H.R. 2177, H.R. 2682, H.R. 2736, H.R. 2868, and S. 924.


Date of Report: February 1, 2010
Number of Pages: 62
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CRS Issue Statement on Border Security

Jennifer E. Lake, Coordinator
Analyst in Domestic Security

The terrorist attacks of September 11, 2001, launched an intense and extended examination of the nation's policies designed to defend against non-state threats to the homeland. Border security is a component of the nation's homeland security strategy. This strategy involves a series of activities that apply a layered approach to securing the homeland by deterring, detecting, and preventing terrorist attacks at the earliest possible stages; protecting or "hardening" critical infrastructure against attacks; and preparing for and responding to attacks. Border security activities include not only those activities that take place at U.S. ports of entry, but also encompass extra-border activities, such as targeting and pre-inspection of U.S.-bound people and cargo in ports around the world; cross-border efforts between ports of entry; and intra-U.S. enforcement activities. 

The overarching border security issue for Congress is how to balance two competing public policy goals: (1) the need to enhance border security with (2) an equally compelling requirement to facilitate legitimate trade and travel. This requires a sophisticated border management system that identifies and intercepts dangerous or unwanted (high-risk) people or goods, while facilitating access for legitimate (low-risk) travelers and commerce without excessive infringement on privacy or civil liberties. Another policy challenge is how to balance competing demands for resources, concentrating them on higher-risk areas while also providing security to lower-risk areas. A variety of legislative and oversight issues flow from this framework.


Date of Report: January 12, 2010
Number of Pages: 4
Order Number:IS40280
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CRS Issue Statement on Arms Sales and Military Exports

Richard F. Grimmett, Coordinator
Specialist in International Security

Christopher M. Blanchard
Analyst in Middle Eastern Affairs

Shirley A. Kan
Specialist in Asian Security Affairs

George Mangan
Information Research Specialist

The sale of United States armaments to foreign countries is governed by the Arms Export Control Act (AECA). Whenever the President proposes to sell items on the United States Munitions List and their value exceeds specific dollar thresholds he must notify Congress of the details of these prospective arms sales before he is authorized to make them. During the Congressional review period, which is 30 or 15 days depending on which country is the prospective buyer, Congress can, if it chooses to do so, block an arms sale by passing a joint resolution of disapproval to that end. Should Congress not act to block a sale within the review period, the President is authorized to proceed with the arms sale in question. Sales of non-lethal or dual-use items and equipment are governed by the Export Administration Act (EAA), and are a subject of the CLI entitled Export Policy.


Date of Report: January 11, 2010
Number of Pages: 2
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Nuclear Weapons R&D Organizations in Nine Nations

Jonathan Medalia, Coordinator
Specialist in Nuclear Weapons Policy

Seven nations—China, France, India, Pakistan, Russia, the United Kingdom, and the United States—possess nuclear weapons. In addition, North Korea tested a nuclear explosive device in 2006 and announced that it had conducted another such test in 2009, and Israel is widely thought to have nuclear weapons. As an aid to Congress in understanding nuclear weapons, nuclear proliferation, and arms control matters, this report describes which agency is responsible for research and development (R&D) of nuclear weapons (i.e., nuclear explosive devices, as distinct from the bombers and missiles that deliver them) in these nations and whether these agencies are civilian or military. It also traces the history of such agencies in the United States from 1942 to the present. This report will be updated annually, or more often as developments warrant. 

In the United States, the Army managed the nuclear weapons program during World War II. Since 1946, weapons R&D has been managed by civilian agencies, at present by the National Nuclear Security Administration, a semiautonomous agency in the Department of Energy. 

China's nuclear weapons R&D is apparently under the direction of the military, collectively called the People's Liberation Army. 

France's nuclear weapons R&D is supervised by the Ministry of Defense, which delegates the direction of these programs to the French Atomic and Alternative Energy Commission (CEA). However, as with NNSA in the United States, CEA is not a part of the Ministry of Defense. CEA also conducts nuclear programs in science and industry, under the supervision of other ministries. 

India's nuclear weapons R&D appears to be controlled by the Department of Atomic Energy, which is under the direct control of the Prime Minister. 

Israel's nuclear program is under civilian control, but since Israel neither confirms nor denies that it possesses nuclear weapons, it classifies information on nuclear weapons, including organizations responsible for R&D. The Israel Atomic Energy Commission reportedly has overall responsibility for Israel's nuclear weapons program, and the Director General of that commission reports directly to the Prime Minister. 

North Korea's Ministry of Atomic Energy Industry is in charge of the day-to-day operation of the nuclear weapons program. Under it are nuclear-related organizations. Policy is decided by leader Kim Jong-il and other Communist Party and military leaders who advise him. 

Pakistan's National Command Authority (NCA) supervises the functions and administration of all of Pakistan's "Strategic Organizations," which are composed of all organizations involved in nuclear weapons. The Prime Minister is the chair of the NCA, and the membership includes senior civilian and military leaders. 

Russia's State Atomic Energy Corporation (Rosatom) is responsible for nuclear weapons R&D and production. It is a civilian agency, though it has many links to the military. 

In the United Kingdom, a private company, AWE Management Limited, manages and operates the Atomic Weapons Establishment (AWE), a government-owned, contractor-operated entity. The Ministry of Defence (MoD), which is headed by a civilian, controls the operations, policy, and direction of AWE and can veto actions of the company. The MoD provides most of the funding for AWE.


Date of Report: January 25, 2010
Number of Pages: 13
Order Number: R40439
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Intelligence Authorization Legislation: Status and Challenges

Richard A. Best Jr.
Specialist in National Defense

Since FY2005, no annual intelligence authorization bill has been enacted. Although the National Security Act requires intelligence activities to be specifically authorized, this requirement has been satisfied in recent years by one-sentence catch-all provisions in defense appropriations acts authorizing intelligence activities. This procedure meets the statutory requirement but has, according to some observers, weakened the ability of Congress to oversee intelligence activities. 

Annual intelligence authorization acts were first passed in 1978 after the establishment of the two congressional intelligence committees and were enacted every year until 2005. These acts provided specific authorizations of intelligence activities and were accompanied by reports that provided detailed guidance to the nation's intelligence agencies. However, in practice, the absence of intelligence authorization acts has meant that key intelligence issues have been addressed in defense authorization acts and defense appropriations acts that focus primarily on the activities of the Department of Defense. 

Several Members have maintained that this procedure has been characterized by misplaced priorities and wasteful spending estimates that could run into billions. One example is the eventual cancellation of a highly classified and very costly overhead surveillance system that had been approved without support from the two intelligence committees. 

Some also argue that the ability to link together the collection and analytical efforts of intelligence agencies must extend well beyond the Defense Department given the challenges of the 21st century and that intelligence authorization legislation is essential to ensure the effectiveness of this linkage. When Congressional approval of intelligence programs is limited to defense authorizations and appropriations legislation, the result arguably can be an overemphasis on military missions by the Intelligence Community. 

Other observers counter, however, that, even without intelligence authorization acts, Congress makes its views known to the Intelligence Community and that defense authorization and appropriations acts provide adequate legislative authority for major acquisition efforts of agencies that are in large measure integral parts of the Defense Department. .


Date of Report: January 27, 2010
Number of Pages: 16
Order Number: R40240
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Instances of Use of United States Armed Forces Abroad, 1798-2009

Richard F. Grimmett
Specialist in International Security

This report lists hundreds of instances in which the United States has used its armed forces abroad in situations of military conflict or potential conflict or for other than normal peacetime purposes. It was compiled in part from various older lists and is intended primarily to provide a rough survey of past U.S. military ventures abroad, without reference to the magnitude of the given instance noted. The listing often contains references, especially from 1980 forward, to continuing military deployments especially U.S. military participation in multinational operations associated with NATO or the United Nations. Most of these post-1980 instances are summaries based on Presidential reports to Congress related to the War Powers Resolution. A comprehensive commentary regarding any of the instances listed is not undertaken here. 

The instances differ greatly in number of forces, purpose, extent of hostilities, and legal authorization. Eleven times in its history the U.S. has formally declared war against foreign nations. These eleven U.S. war declarations encompassed five separate wars: the war with Great Britain declared in 1812; the war with Mexico declared in 1846; the war with Spain declared in 1898; the First World War, during which the U.S. declared war with Germany and with Austria- Hungary during 1917; and World War II, during which the U.S. declared war against Japan, Germany, and Italy in 1941, and against Bulgaria, Hungary, and Rumania in 1942. 

Some of the instances were extended military engagements that might be considered undeclared wars. These include the Undeclared Naval War with France from 1798 to 1800; the First Barbary War from 1801 to 1805; the Second Barbary War of 1815; the Korean War of 1950-1953; the Vietnam War from 1964 to 1973; the Persian Gulf War of 1991; global actions against foreign terrorists after the September 11, 2001, attacks on the United States; and the war with Iraq in 2003. With the exception of the Korean War, all of these conflicts received Congressional authorization in some form short of a formal declaration of war. Other, more recent instances often involve deployment of U.S. military forces as part of a multinational operation associated with NATO or the United Nations. 

The majority of the instances listed prior to World War II were brief Marine or Navy actions to protect U.S. citizens or promote U.S. interests. A number were actions against pirates or bandits. Covert actions, disaster relief, and routine alliance stationing and training exercises are not included here, nor are the Civil and Revolutionary Wars and the continual use of U.S. military units in the exploration, settlement, and pacification of the western part of the United States. This report will be updated as warranted. .


Date of Report: January 27, 2010
Number of Pages: 33
Order Number: RL32170
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Comparison of Rights in Military Commission Trials and Trials in Federal Criminal Court

Jennifer K. Elsea
Legislative Attorney

The Obama Administration's decision to try certain detainees and other terrorist suspects in federal criminal court, including those accused of conspiring to commit the 9/11 terrorist attacks and the man arrested after a failed aircraft bombing on Christmas Day, 2009, and to try other detainees by military commission, has focused attention on the procedural differences between trials in federal court and those conducted under the Military Commissions Act (MCA), as recently amended. Some who are opposed to the decision argue that bringing detainees to the United States for trial poses a security threat and risks disclosing classified information, or could result in the acquittal of persons who are guilty. Others have praised the decision as recognizing the efficacy and fairness of the federal court system and have voiced confidence in the courts' ability to protect national security while achieving justice that will be perceived as such among U.S. allies abroad. Some continue to object to the planned trials of detainees by military commission, despite the amendments Congress enacted as Title XVIII of the National Defense Authorization Act for Fiscal Year 2010, P.L. 111-84, because they say it demonstrates a less than full commitment to justice or that it casts doubt on the strength of the government's case against those detainees. Four bills have been introduced in the House of Representatives to require military commission trials for certain classes of suspected terrorists or to authorize their detention: H.R. 4111, H.R. 4463, H.R. 4415, and H.R. 4127. One bill in the Senate, S. 2943, would require the Attorney General to consult with the Director of National Intelligence as well as the Secretaries of Defense and Homeland Security prior to proceeding against a terrorism suspect in the criminal justice system. 

This report provides a brief summary of legal issues raised by the choice of forum for trying accused terrorists and a table comparing selected military commissions rules under the Military Commissions Act, as amended, to the corresponding rules that apply in federal court. The table follows the same order and format used in CRS Report RL31262, Selected Procedural Safeguards in Federal, Military, and International Courts, to facilitate comparison with safeguards provided in international criminal tribunals. For similar charts comparing military commissions as envisioned under the MCA, as passed in 2006, to the rules that had been established by DOD for military commissions and to general military courts-martial conducted under the Uniform Code of Military Justice (UCMJ), see CRS Report RL33688, The Military Commissions Act of 2006: Analysis of Procedural Rules and Comparison with Previous DOD Rules and the Uniform Code of Military Justice, by Jennifer K. Elsea. For information about legislation with relevance to Guantanamo detainees, see CRS Report R40754, Guantanamo Detention Center: Legislative Activity in the 111th Congress, by Anna C. Henning.


Date of Report: January 26, 2010
Number of Pages: 27
Order Number: R40932
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Military Base Closures: Socioeconomic Impacts

Tadlock Cowan
Analyst in Natural Resources and Rural Development

Oscar R. Gonzales
Analyst in Economic Development Policy

The most recent Base Realignment and Closure (BRAC) Commission submitted its final report to the Administration on September 8, 2005. Implementation of the BRAC round is occurring and, barring future congressional action, will be completed by 2011. In the report, the commission rejected 13 of the initial Department of Defense recommendations, significantly modified the recommendations for 13 other installations, and approved 22 major closures. The loss of related jobs, and efforts to replace them and to implement a viable base reuse plan, can pose significant challenges for affected communities. However, while base closures and realignments often create socioeconomic distress in communities initially, research has shown that they generally have not had the dire effects that many communities expected. For rural areas, however, the impacts can be greater and the economic recovery slower. Drawing from existing studies, this report assesses the potential community impacts and proposals for minimizing those impacts. For additional information on the BRAC process, see CRS Report RL32216, Military Base Closures: Implementing the 2005 Round, by David E. Lockwood; and CRS Report RL33766, Military Base Closures and Realignment: Status of the 2005 Implementation Plan, by Kristine E. Blackwell.


Date of Report: January 25, 2010
Number of Pages: 9
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Economic Development Assistance for Communities Affected by Employment Changes Due to Military Base Closures(BRAC)

Oscar R. Gonzales
Analyst in Economic Development Policy

This report is intended to discuss the geographic impact of base closures and realignments; provide an analysis of federal economic assistance programs for communities and individuals affected by military base closures and realignments (BRAC); and analyze possible policy issues for Congress. 

Unlike previous rounds, the 2005 BRAC round is focused on creating the infrastructure needed to support a transformed, expeditionary armed force—concentrated more on shifting forces and installation assets to promote the centralization of units in places from which they can be deployed rapidly. Thus, the 2005 BRAC round is characterized much more by realignment than closure. In 20 communities, an estimated increase of 170,000 workers is expected. In addition, estimated construction costs are anticipated to increase by 80% from $17 billion to $32 billion. These communities identified transportation, schools and affordable housing as their top infrastructure challenges. Some communities, however, will be affected by job losses, and job creation and unemployment were cited as key concerns. 

Economic development programs for communities affected by BRAC include the Office of Economic Adjustment (OEA); the Economic Development Administration (EDA); the Community Development Block Grant (CDBG) program; Historically Underutilized Business Zones (HUBZones) under the Small Business Administration (SBA); and programs such as the Homeowner's Assistance Program (HAP), the Defense Access Road (DAR) program, Recovery Zone Economic Development Bonds, and Economic Development Conveyances (EDCs). 

Understanding the process to access funding under these programs is important for communities impacted by job losses and those affected by growth. EDA, for example, allocates funding to groups of counties organized as Economic Development Districts (EDDs), based on a plan known as a Comprehensive Economic Development Strategy (CEDS) and communities affected by BRAC must contact an EDA regional office and EDD to understand if competitive grant funding may be available. In contrast, CDBG allocates funding to one of over 1,100 entitlement communities based on a formula and on a plan known as the Consolidated Plan; BRAC funding is available primarily to help the homeless population near a base. The local communities must establish a Local Redevelopment Authority (LRA) to access assistance. The LRA serves as the primary link between the Department of Defense, the current installation, the local community, and the Federal and State agencies responsible for all BRAC matters. 

In the 111th Congress, the American Recovery and Reinvestment Act of 2009 (ARRA, P.L. 111-5) provides $555 million for the Homeowner's Assistance Fund under the Housing Improvement Program (HAP), for military personnel affected by the 2005 BRAC round. In addition, ARRA provides $10 billion for Recovery Zone Economic Development Bonds for areas designated as economically distressed under previous BRAC round closures. 

This report will be updated as events warrant. 


Date of Report: January 27, 2010
Number of Pages: 33
Order Number: RL34709
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Defense Logistical Support Contracts in Iraq and Afghanistan: Issues for Congress

Valerie Bailey Grasso
Specialist in Defense Acquisition

This report examines logistical support contracts for troop support services in Iraq and Afghanistan (for Afghanistan, beginning with LOGCAP IV) administered through the U.S. Army's Logistics Civil Augmentation Program (LOGCAP). LOGCAP is an initiative designed to manage the use of civilian contractors that perform services during times of war and other military mobilizations. On April 18, 2008, DOD announced the Army's LOGCAP IV contract awards to three companies—DynCorp International LLC, Fort Worth, TX; Fluor Intercontinental, Inc, Greenville, SC; and KBR, Houston, TX, through a full and open competition. The LOGCAP IV contract calls for each company to compete for task orders. Each company may be awarded up to $5 billion annually for troop support services with a maximum annual value of $15 billion. Over the life of LOGCAP IV, the maximum contract value is $150 billion. Under LOGCAP IV, the U.S. Army Sustainment Command awarded the first performance task order on September 25, 2008 to Fluor Intercontinental, Inc., for logistical support services in Afghanistan. 

The U.S. Army's Logistics Civil Augmentation Program (LOGCAP), an Army program designed to manage civilian contractors, is now in transition. The current LOGCAP III contractor supports the drawdown in Iraq by providing logistical services, theater transportation, augmentation of maintenance services, and other combat support services. According to Army contracting officials, all LOGCAP requirements in Kuwait have successfully transitioned from LOGCAP III to LOGCAP IV contracts. The transition of requirements is continuing from LOGCAP III to LOGCAP IV contracts, and will be used for combat support services in Afghanistan. 

Congress is concerned about the Federal oversight and management of DOD contracting in Iraq and Afghanistan, particularly under programs like LOGCAP. Recent assessments from the Government Accountability Office (GAO), DOD Office of the Inspector General (DOD-IG), and the Special Inspector General for Iraq Reconstruction (SIGIR) reveal a lack of accountability for large sums of money spent for Iraq contracts. According to the recent congressional testimony of Charles Williams, Director of the Defense Contract Management Agency, there are more than 600 oversight positions still vacant in Iraq and Afghanistan. Congress is also concerned about contractor insurance premiums through the Defense Base Act (DBA); such premiums comprise significant costs under LOGCAP. The DBA requires that many Federal government contractors and subcontractors provide workers' compensation insurance for their employees who work outside of the United States. The U.S. Army's LOGCAP contract covers costs for DBA insurance and includes significant overheard and other costs beyond the costs of the actual insurance claims. 


Date of Report: January 27, 2010
Number of Pages: 38
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Closing the Guantanamo Detention Center: Legal Issues

Michael John Garcia
Legislative Attorney

Elizabeth B. Bazan
Legislative Attorney

R. Chuck Mason
Legislative Attorney

Edward C. Liu
Legislative Attorney

Anna C. Henning
Legislative Attorney

Following the terrorist attacks of 9/11, Congress passed the Authorization to Use Military Force (AUMF), which granted the President the authority "to use all necessary and appropriate force against those ... [who] planned, authorized, committed, or aided the terrorist attacks" against the United States. Many persons subsequently captured during military operations in Afghanistan and elsewhere were transferred to the U.S. Naval Station at Guantanamo Bay, Cuba, for detention and possible prosecution before military tribunals. Although nearly 800 persons have been transferred to Guantanamo since early 2002, the substantial majority of Guantanamo detainees have ultimately been transferred to another country for continued detention or release. The 192 detainees who remain fall into three categories: (1) persons placed in non-penal, preventive detention to stop them from rejoining hostilities; (2) persons who have faced or are expected to face criminal charges; and (3) persons who have been cleared for transfer or release, whom the United States continues to detain pending transfer. Although the Supreme Court ruled in Boumediene v. Bush that Guantanamo detainees may seek habeas corpus review of the legality of their detention, several legal issues remain unsettled, including the extent to which other constitutional provisions apply to noncitizens held at Guantanamo. 

On January 22, 2009, President Obama issued an Executive Order requiring the closure of the Guantanamo detention facility no later than a year from the date of the Order. Although this deadline has not been met, the Administration has stated that it remains committed to closing the facility as expeditiously as possible. Numerous legislative proposals have been introduced in the 111th Congress concerning the potential closure of the Guantanamo facility. Congress has enacted several appropriations measures which contain provisions restricting funds from being used to transfer detainees into the United States for release or purposes other than prosecution. These measures also limit funds from being used to transfer detainees into the country for purposes of prosecution unless certain reporting requirements to Congress are first fulfilled. The National Defense Authorization Act for FY2010 (P.L. 111-84) also contains provisions modifying the rules for military commissions, which may have implications for Guantanamo detainees. For more information, see CRS Report R40754, Guantanamo Detention Center: Legislative Activity in the 111th Congress, by Anna C. Henning, and CRS Report R40932, Comparison of Rights in Military Commission Trials and Trials in Federal Criminal Court, by Jennifer K. Elsea. 

The closure of the Guantanamo detention facility may raise a number of legal issues with respect to the individuals formerly interned there, particularly if those detainees are transferred to the United States. The nature and scope of constitutional protections owed to detainees within the United States may be different from the protections owed to persons held outside the United States. This may have implications for the continued detention or prosecution of persons who are transferred to the United States. The transfer of detainees to the United States may also have immigration consequences. This report provides an overview of major legal issues likely to arise as a result of executive and legislative action to close the Guantanamo detention facility. It discusses legal issues related to the transfer of Guantanamo detainees (either to a foreign country or into the United States), the continued detention of such persons in the United States, and the possible removal of persons brought into the country. It also discusses selected constitutional issues that may arise in the criminal prosecution of detainees, emphasizing the procedural and substantive protections that are utilized in different adjudicatory forums (i.e., federal civilian courts, court-martial proceedings, and military commissions). 


Date of Report: January 27, 2010
Number of Pages: 50
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Peacekeeping/Stabilization and Conflict Transitions: Background and Congressional Action on the Civilian Response/Reserve Corps and other Civilian Stabilization and Reconstruction Capabilities

Nina M. Serafino
Specialist in International Security Affairs

The second session of the 111th Congress faces a number of issues regarding the development of civilian capabilities to carry out stabilization and reconstruction activities. In September 2008, Congress passed the Reconstruction and Stabilization Civilian Management Act, 2008, as Title XVI of the Duncan Hunter National Defense Authorization Act for Fiscal Year 2009 (S. 3001, P.L. 110-417, signed into law October 14, 2008). This legislation codified the existence and functions of the State Department Office of the Coordinator for Reconstruction and Stabilization (S/CRS) and authorized new operational capabilities within the State Department, a Civilian Response Corps (CRC) of government employees with an active and a standby component, and a reserve component. Although the establishment of active and standby units began under the Bush Administration, Congress has yet to fund the reserve component. The first session of the 111th Congress created a new fund to support Corps deployments, but the second session faces questions about the appropriate funding level for it. 

S/CRS was established in 2004 to address longstanding concerns, both within Congress and the broader foreign policy community, over the perceived lack of the appropriate capabilities and processes to deal with transitions from conflict to stability. These capabilities and procedures include adequate planning mechanisms for stabilization and reconstruction operations, efficient interagency coordination structures and procedures in carrying out such tasks, and appropriate civilian personnel for many of the non-military tasks required. Effectively distributing resources among the various executive branch actors, maintaining clear lines of authority and jurisdiction, and balancing short- and long-term objectives are major challenges for designing, planning, and conducting post-conflict operations, as is fielding the appropriate civilian personnel. 

Since July 2004, S/CRS has worked to establish the basic concepts, mechanisms, and capabilities necessary to carry out such operations. Working with a staff that has slowly grown from a few dozen to 175 individuals, S/CRS has taken steps to monitor and plan for potential conflicts, to develop a rapid-response crisis management "surge" capability, to improve interagency and international coordination, to develop interagency training exercises, and to help State Department regional bureaus develop concepts and proposals for preventive action. In 2008, Congress first provided funding to establish civilian response capabilities. Bush Administration plans at that point contemplated a CRC force of 4,250, including a sizable reserve component of private citizens similar in concept to the U.S. military reserve. 

In 2009, the Obama Administration requested $323.3 million in FY2010 funds for the Civilian Stabilization Initiative (CSI) to continue developing and to deploy a CRC active component and a CRC standby component, and to establish a 2,000-member civilian reserve component. In addition, the Administration requested a $40 million Stabilization Bridge Fund under the Economic Support Fund (ESF) to support the activities of deployed CRC members and $76 million to establish a response fund under the USAID Transition Initiatives account. 

The first session of the 111th Congress partially funded this initiative. In the FY2010 Consolidated Appropriations Act (P.L. 111-117) Congress provided $150 million for CRC development and support: $120 million for the State Department and $30 million for USAID to support the recruitment, hiring, and training of the first two response corps components, the Active and Stand-by units of federal government employees. Congress did not provide funding for the CRC reserve component. In addition, Congress established a new USAID Complex Crises Fund to support programs and activities to respond to emerging or unforeseen complex crises abroad, but the $50 million appropriated for it falls short of the amount many analysts argue is necessary. 

This report will be updated as events warrant. 


Date of Report: January 28, 2010
Number of Pages: 29
Order Number: RL32862
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Conducting Foreign Relations Without Authority: The Logan Act

Michael V. Seitzinger
Legislative Attorney

The Logan Act, codified at 18 U.S.C. § 953, states: 

Any citizen of the United States, wherever he may be, who, without authority of the United States, directly or indirectly commences or carries on any correspondence or intercourse with any foreign government or any officer or agent thereof, in relation to any disputes or controversies with the United States, or to defeat the measures of the United States, shall be fined under this title or imprisoned not more than three years, or both. 

This section shall not abridge the right of a citizen to apply, himself or his agent, to any foreign government or the agents thereof for redress of any injury which he may have sustained from such government or any of its agents or subjects. 

The Logan Act was intended to prohibit United States citizens without authority from interfering in relations between the United States and foreign governments. There appear to have been no prosecutions under the act in its more than 200 year history. However, there have been a number of judicial references to the act, and it is not uncommon for it to be used as a point of challenge concerning dealings with foreign officials. Although attempts have been made to repeal the act, it remains law and at least a potential sanction to be used against anyone who without authority interferes in the foreign relations of the United States. 


Date of Report: January 20, 2010
Number of Pages: 13
Order Number: RL33265
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Department of Defense “Section 1207”Security and Stabilization Assistance: Background and Congressional Concerns

Nina M. Serafino
Specialist in International Security Affairs

Section 1207 of the National Defense Authorization Act (NDAA) for Fiscal Year 2006 (P.L. 109- 163) provides authority for the Department of Defense (DOD) to transfer to the State Department up to $100 million per fiscal year in defense articles, services, training or other support for reconstruction, stabilization, and security activities in foreign countries. DOD transferred $10 million in FY2006, $99.7 million in FY2007, and $100 million in FY2008 under this authority. For FY2009, Congress added special authority to transfer up to an additional $50 million for Georgia: DOD transferred a total of $143.3 million to the State Department in FY2009 Section 1207 funds. In all, these funds have supported projects in 18 countries and two regions. 

In action on the FY2010 NDAA (P.L. 111-84), Congress extended the $100 million authority through FY2010. Congressional authorizers and appropriators strongly expressed in several documents that Section 1207 authority is temporary, and indicated that such funding is better provided under the State Department budget. 

In the event the Obama Administration decides to request Section 1207 funding for FY2011, the second session of the 111th Congress may wish to consider extending this authority for another year, taking into account various issues regarding the use of DOD funds for State Department activities. Principal among them is and whether funding intended for use by the State Department is better funded under the State Department budget. Another is whether projects funded under Section 1207 authority are being used for the purposes intended by Congress. 

This report will be updated as events warrant.


Date of Report: January 28, 2010
Number of Pages: 13
Order Number: RS22871
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“Gang of Four” Congressional IntelligenceNotifications

Alfred Cumming
Specialist in Intelligence and National Security

"Gang of Four" intelligence notifications generally are oral briefings of certain particularly sensitive non-covert action intelligence activities, including principally, but not exclusively, intelligence collection programs, that the Intelligence Community typically limits to the chairmen and ranking members of the two congressional intelligence committees, and at times, but not always, to their respective staff directors.

Gang of Four notifications are not based in statute but have constituted a practice generally accepted by the leadership of the intelligence committees and that is employed when the Intelligence Community believes a particular intelligence activity to be of such sensitivity that a restricted notification is warranted in order to reduce the risk of disclosure, inadvertent or otherwise. Intelligence activities viewed as being less sensitive typically are briefed to the full membership of each committee.

In either case—whether a given briefing about non-covert action intelligence activities is limited to the Gang of Four, or provided to the full membership of the intelligence committees—the current statute conditions the provision of any such information on the need to protect from unauthorized disclosure classified information relating to sensitive intelligence sources and methods or other exceptionally sensitive matters.

Congress has said that its intent in this regard is that in extremely rare circumstances a need to preserve essential secrecy may result in a decision not to impart certain sensitive aspects of operations or collection programs to the intelligence oversight committees in order to protect extremely sensitive intelligence sources and methods. With regard to the phrase "other exceptionally sensitive matters," Congress has said its intent in using this phrase is to refer to other extremely sensitive categories of classified information such as information concerning the operational details of military deployment and extraordinarily sensitive diplomatic contacts, which the intelligence committees do not routinely require to satisfy their responsibilities.

This report reviews the history of Gang of Four notification process and compares this procedure with that of the "Gang of Eight" notification procedure. The "Gang of Eight" procedure is statutorily based and provides that that the Chairmen and Ranking Members of the intelligence committee, along with the Speaker and minority leader of the House, and Senate majority and minority leaders—rather than the full membership of the intelligence committees—are to receive prior notice of particularly sensitive covert action programs, if the President determines that limited access to such programs is essential to meet extraordinary circumstances affecting vital U.S. interests.

Although the FY2010 Intelligence Authorization bills approved by the two congressional intelligence committees address Gang of Eight covert action notifications, neither of the two bills reference Gang of Four notifications. Congress has not acted on the FY2010 Intelligence Authorization bill.


Date of Report: January 29, 2010
Number of Pages: 14
Order Number: R40698
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The Berry Amendment: Requiring Defense Procurement to Come from Domestic Sources

Valerie Bailey Grasso
Specialist in Defense Acquisition

In order to protect the U.S. industrial base during periods of adversity and war, Congress passed domestic source restrictions as part of the 1941 Fifth Supplemental Department of Defense (DOD) Appropriations Act; these provisions later became the Berry Amendment. The Berry Amendment required DOD to give preference in procurement to domestically produced, manufactured, or home grown products, notably food, clothing, and fabrics, and specialty metals. The current Berry Amendment (Title 10 United States Code [U.S.C.] Section 2533a, Requirement to Buy Certain Articles from American Sources; Exceptions) contains a number of domestic source restrictions that prohibit DOD from acquiring food, clothing, fabrics (including ballistic fibers), stainless steel, and hand or measuring tools that are not grown or produced in the United States. The Berry Amendment now excludes specialty metals; Section 842 of the FY2007 Defense Authorization Act (P.L. 109-364) enacted a new legislative provision which effectively moved the specialty metal provision out of the Berry Amendment and into a separate section of Title 10. On July 29, 2009, DOD issued a final rule which addresses statutory restrictions on the acquisition of specialty metals not melted or produced in the United States. 

The Berry Amendment applies to DOD purchases only. However, the American Reinvestment and Recovery Act of 2009 (P.L. 111-5, H.R. 1) contains a provision (Section 604) that appears similar to the Berry Amendment. Section 604 of H.R. 1 affects all funds appropriated or otherwise made available to the Department of Homeland Security (DHS). These restrictions serve to prohibit DHS from the purchase of clothing, tents, tarpaulins, and certain other textiles unless the items are grown, reprocessed, reused, or produced in the United States. 

Some policymakers believe that policies like the Berry Amendment contradict free trade policies, and that the presence and degree of such competition is the most effective tool for promoting efficiencies and improving quality. On the other hand, others believe that key U.S. sectors need the protections afforded by the Berry Amendment. The debate over the Berry Amendment raises several questions, among them: (1) If the U.S. does not produce a solely domestic item, or if U.S. manufacturers are at maximum production capability, should DOD restrict procurement from foreign sources, and (2) to what extent do U.S. national security interests and industrial base concerns justify waiver of the Berry Amendment? 

This report examines the original intent and purpose of the Berry Amendment and legislative proposals to amend the application of domestic source restrictions, as well as options for Congress.


Date of Report: January 29, 2010
Number of Pages: 20
Order Number: RL31236
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Sensitive Covert Action Notifications: Oversight Options for Congress

Alfred Cumming
Specialist in Intelligence and National Security

Legislation enacted in 1980 gave the executive branch authority to limit advance notification of especially sensitive covert actions to eight Members of Congress—the "Gang of Eight"—when the President determines that it is essential to limit prior notice in order to meet extraordinary circumstances affecting U.S. vital interests. In such cases, the executive branch is permitted by statute to limit notification to the chairmen and ranking minority members of the two congressional intelligence committees, the Speaker and minority leader of the House, and Senate majority and minority leaders, rather than to notify the full intelligence committees, as is required in cases involving covert actions determined to be less sensitive. 

Congress, in approving this new procedure in 1980, during the Iran hostage crisis, said it intended to preserve operational secrecy in those "rare" cases involving especially sensitive covert actions while providing the President with advance consultation with the leaders in Congress and the leadership of the intelligence committees who have special expertise and responsibility in intelligence matters. The intent appeared to some to be to provide the President, on a short-term basis, a greater degree of operational security as long as sensitive operations were underway. In 1991, in a further elaboration of its intent following the Iran-Contra Affair, congressional report language stated that limiting notification to the Gang of Eight should occur only in situations involving covert actions of such extraordinary sensitivity or risk to life that knowledge of such activity should be restricted to as few individuals as possible. 

In its mark-up of H.R. 2701, the FY2010 Intelligence Authorization Act, the House Permanent Select Committee on Intelligence (HPSCI) replaced the Gang of Eight statutory provision, adopting in its place a statutory requirement that each of the intelligence committees establish written procedures as may be necessary to govern such notifications. According to committee report language, the adopted provision vests the authority to limit such briefings with the committees, rather than the President. 

On July 8, 2009, the executive branch issued a Statement of Administration Policy (SAP) in which it stated that it strongly objected to the House Committee's action to replace the Gang of Eight statutory provision, and that the President's senior advisors would recommend that the President veto the FY2010 Intelligence Authorization Act if the committee's language was retained in the final bill. 

The Senate Intelligence Committee, in its version of the FY2010 Intelligence Authorization Act, left unchanged the Gang of Eight statutory structure, but approved several changes that would tighten certain aspects of current covert action reporting requirements. Although the executive branch has not issued a Statement of Administration Policy with regard to the Senate's bill, Director of National Intelligence Admiral Dennis Blair has indicated that he would recommend that the President veto the bill if the covert action notification changes contained in the bill remained in final legislation. Congress has not acted on the FY2010 Intelligence Authorization bill. 

With Congress considering possible changes in covert action congressional notifications, this report describes the statutory provision authorizing Gang of Eight notifications, reviews the legislative history of the provision, and examines both the impact of such notifications on congressional oversight as well as options that Congress might consider to possibly improve oversight.


Date of Report: January 29, 2010
Number of Pages: 17
Order Number: R40691
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Intelligence Issues for Congress

Richard A. Best Jr.
Specialist in National Defense

To address the challenges facing the U.S. Intelligence Community in the 21st century, congressional and executive branch initiatives have sought to improve coordination among the different agencies and to encourage better analysis. In December 2004, the Intelligence Reform and Terrorism Prevention Act (P.L. 108-458) was signed, providing for a Director of National Intelligence (DNI) with substantial authorities to manage the national intelligence effort. The legislation also established a separate Director of the Central Intelligence Agency. 

Making cooperation effective presents substantial leadership and managerial challenges. The needs of intelligence "consumers"—ranging from the White House to cabinet agencies to military commanders—must all be met, using the same systems and personnel. Intelligence collection systems are expensive and some critics suggest there have been elements of waste and unneeded duplication of effort while some intelligence "targets" have been neglected. 

The DNI has substantial statutory authorities to address these issues, but the organizational relationships remain complex, especially for Defense Department agencies. Members of Congress will be seeking to observe the extent to which effective coordination is accomplished. 

International terrorism, a major threat facing the United States in the 21st century, presents a difficult analytical challenge, vividly demonstrated by the attempted bombing of a commercial aircraft approaching Detroit on December 25, 2009. Counterterrorism requires the close coordination of intelligence and law enforcement agencies, but there remain many institutional and procedural issues that complicate cooperation between the two sets of agencies. 

Techniques for acquiring and analyzing information on small groups of plotters differ significantly from those used to evaluate the military capabilities of other countries. U.S. intelligence efforts are complicated by unfilled requirements for foreign language expertise. Whether all terrorist surveillance efforts have been consistent with the Foreign Intelligence Surveillance Act of 1978 (FISA) has been a matter of controversy. 

Intelligence on Iraqi weapons of mass destruction was inaccurate and Members have criticized the performance of the Intelligence Community in regard to current conditions in Iraq, Iran, and other areas. Improved analysis, while difficult to mandate, remains a key goal. Better human intelligence, it is widely agreed, is also essential. 

Intelligence support to military operations continues to be a major responsibility of intelligence agencies. The use of precision guided munitions depends on accurate, real-time targeting data; integrating intelligence data into military operations challenges traditional organizational relationships and requires innovative technological approaches. Stability operations now underway in Afghanistan may require very different sets of intelligence skills. 

Date of Report: January 22, 2010
Number of Pages: 27
Order Number: RL33539
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U.S. Strategic Nuclear Forces: Background, Developments, and Issues

Amy F. Woolf
Specialist in Nuclear Weapons Policy

During the Cold War, the U.S. nuclear arsenal contained many types of delivery vehicles for nuclear weapons. The longer range systems, which included long-range missiles based on U.S. territory, long-range missiles based on submarines, and heavy bombers that could threaten Soviet targets from their bases in the United States, are known as strategic nuclear delivery vehicles. At the end of the Cold War, in 1991, the United States deployed more than 10,000 warheads on these delivery vehicles. That number has declined to less than 6,000 warheads today, and is slated, under the 2002 Moscow Treaty, to decline to 2,200 warheads by the year 2012. The United States and Russia are discussing a potential new treaty that will further reduce U.S. forces to between 1,500 and 1,675 deployed warheads. 

At the present time, the U.S. land-based ballistic missile force (ICBMs) consists of 450 Minuteman III ICBMs, each deployed with between one and three warheads, for a total of 1,200 warheads. The Air Force has deactivated all 50 of the 10-warhead Peacekeeper ICBMs; it plans to deploy Peacekeeper warheads on some of the Minuteman ICBMs. It has also deactivated 50 Minuteman III missiles. The Air Force is also modernizing the Minuteman missiles, replacing and upgrading their rocket motors, guidance systems, and other components. The Air Force had expected to begin replacing the Minuteman missiles around 2018, but has decided, instead, to continue to modernize and maintain the existing missiles, so that they can remain in the force through 2030. 

The U.S. ballistic missile submarine fleet currently consists of 14 Trident submarines; each carries 24 Trident II (D-5) missiles. The Navy has converted 4 of the original 18 Trident submarines to carry non-nuclear cruise missiles. The remaining submarines currently carry around 1,200 warheads in total, a number that has been declining decline as the United States implements the Moscow Treaty. The Navy has shifted the basing of the submarines, so that nine are deployed in the Pacific Ocean and five are in the Atlantic, to better cover targets in and around Asia. It also has undertaken efforts to extend the life of the missiles and warheads so that they and the submarines can remain in the fleet past 2020, and to begin design work on a new submarine. 

The U.S. fleet of heavy bombers currently includes 19 B-2 bombers and 94 B-52 bombers. The B-1 bomber no longer is equipped for nuclear missions. The 2006 QDR recommended that the Air Force reduce the B-52 fleet to 56 aircraft; Congress rejected that recommendation, but will allow the fleet to decline to 76 aircraft. The Air Force has also begun to retire the nuclear-armed cruise missiles carried by B-52 bombers, leaving only about half the B-52 fleet equipped to carry nuclear weapons. 

The Obama Administration is currently reviewing the size and structure of the U.S. nuclear force as a part of the congressionally mandated Nuclear Posture Review. It plans to submit its conclusions in early March, 2010. Congress will review the Administration's plans for U.S. strategic nuclear forces during the annual authorization and appropriations process, and if it assesses the terms of a prospective nuclear arms control treaty with Russia. This report will be updated as needed. 

Date of Report: January 20, 2010
Number of Pages: 33
Order Number: RL33640
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