TECHNIQUES, AND PROCEDURES, AND OF MILITARY RULES OF ENGAGEMENT, FROM RELEASE UNDER FREEDOM OF

Similar documents
EXECUTIVE ORDER 12333: UNITED STATES INTELLIGENCE ACTIVITIES

9/2/2015. The National Security Exemption. Exemption 1. Exemption 1

section:1034 edition:prelim) OR (granul...

Department of Defense DIRECTIVE

APPENDIX N. GENERIC DOCUMENT TEMPLATE, DISTRIBUTION STATEMENTS AND DOCUMENT DATA SHEET and THE IMPORTANCE OF MARKING DOCUMENTS

ADDITIONAL AMENDMENTS RELATING TO TOTAL FORCE MANAGEMENT (SEC. 933)

Homeland Security. u.s. Department of Homeland Security Washington, DC April I, 2010

Department of Defense INSTRUCTION. DoD Unclassified Controlled Nuclear Information (UCNI)

Department of Defense INSTRUCTION. SUBJECT: Security and Policy Review of DoD Information for Public Release

Department of Defense DIRECTIVE. SUBJECT: Department of Defense Unclassified Controlled Nuclear Information (DoD UCNI)

Student Guide: Controlled Unclassified Information

Department of Defense DIRECTIVE

Department of Defense DIRECTIVE. SUBJECT: Release of Official Information in Litigation and Testimony by DoD Personnel as Witnesses

CONVERSION OF CERTAIN FUNCTIONS FROM CONTRACTOR PERFORMANCE TO PERFORMANCE BY DEPARTMENT OF DEFENSE CIVILIAN EMPLOYEES (SEC. 938)

Department of Defense INSTRUCTION

Department of Defense INSTRUCTION. SUBJECT: DoD Information Security Program and Protection of Sensitive Compartmented Information

Department of Defense DIRECTIVE

Department of Defense DIRECTIVE

Defense Security Service Academy OCA Desk Reference Guide

REVISED PROPOSED REGULATION OF THE BOARD OF REGISTERED ENVIRONMENTAL HEALTH SPECIALISTS. LCB File No. R August 2, 2006

Department of Defense DIRECTIVE. SUBJECT: Under Secretary of Defense for Acquisition, Technology, and Logistics (USD(AT&L))

IN THE COUNCIL OF THE DISTRICT OF COLUMBIA

UNIFORMED AND OVERSEAS CITIZENS ABSENTEE VOTING ACT (UOCAVA) (As modified by the National Defense Authorization Act for FY 2010)

Department of Defense DIRECTIVE

DEPUTY SECRETARY OF DEFENSE 1010 DEFENSE PENTAGON WASHINGTON, DC

Department of Defense

Department of Defense INSTRUCTION

Department of Defense INSTRUCTION

Department of Defense DIRECTIVE

SEC UNIFORM STANDARDS FOR THE INTERROGATION OF PERSONS UNDER THE DETENTION OF THE DEPARTMENT OF DEFENSE.

PUBLIC LAW OCT. 1, 1986

PIPES Act of 2006 Redline of 49 USC CHAPTER SAFETY 49 USC CHAPTER SAFETY 01/19/04 CHAPTER SAFETY

SUBJECT: Directive-Type Memorandum (DTM) Law Enforcement Reporting of Suspicious Activity

Department of Defense INSTRUCTION

SECRETARY OF DEFENSE 1000 DEFENSE PENTAGON WASHINGTON, DC

Commercial Solutions Opening (CSO) Office of the Secretary of Defense Defense Innovation Unit (Experimental)

Department of Defense MANUAL

Article 140a (New Provision) Case Management; Data Collection and Accessibility

CHAIRMAN OF THE JOINT CHIEFS OF STAFF INSTRUCTION

Department of Defense DIRECTIVE

DEPUTY SECRETARY OF DEFENSE 1010 DEFENSE PENTAGON WASHINGTON DC

SUBCOMMITTEE ON INTELLIGENCE, EMERGING THREATS AND CAPABILITIES

Department of Defense INSTRUCTION

Supply Chain Risk Management

AN ACT IN THE COUNCIL OF THE DISTRICT OF COLUMBIA

Department of Defense DIRECTIVE

DEPUTY SECRETARY OF DEFENSE 1010 DEFENSE PENTAGON WASHINGTON, DC

124 STAT PUBLIC LAW JAN. 7, 2011

S. ll. To provide for the improvement of the capacity of the Navy to conduct surface warfare operations and activities, and for other purposes.

DEPARTMENT OF DEFENSE OPERATION AND MAINTENANCE. Operation and Maintenance, Defense-Wide

Protection of Classified National Intelligence, Including Sensitive Compartmented Information

July 30, July 31, 2012

TITLE III OPERATION AND MAINTENANCE SUBTITLE A AUTHORIZATION OF APPROPRIATIONS SUBTITLE B ENERGY AND THE ENVIRONMENT

Department of Defense MANUAL. DoD Information Security Program: Controlled Unclassified Information (CUI)

DEPARTMENT OF THE NAVY OFFICE OF THE CHIEF OF NAVAL OPERATIONS 2000 NAVY PENTAGON WASHINGTON, DC

Export-Controlled Technology at Contractor, University, and Federally Funded Research and Development Center Facilities (D )

10 USC NB: This unofficial compilation of the U.S. Code is current as of Jan. 4, 2012 (see

The Arizona HIO Statute

COMPLIANCE WITH THIS PUBLICATION IS MANDATORY

Originating Component: Office of the General Counsel of the Department of Defense. Effective: February 27, Releasability:

Commercial Solutions Opening (CSO) Office of the Secretary of Defense Defense Innovation Unit (Experimental)

DoD R, December 1982

PRELIMINARY PLANNING AND DURATION OF PUBLIC-PRIVATE COMPETITIONS (SEC. 937)

DOD DIRECTIVE E ROLES AND RESPONSIBILITIES ASSOCIATED WITH THE CHEMICAL AND BIOLOGICAL DEFENSE PROGRAM (CBDP)

SEC.. INCLUSION OF CHIEF OF THE NATIONAL GUARD BUREAU AND SENIOR ENLISTED ADVISOR TO THE CHIEF OF THE NATIONAL

Agency Mission Assurance

Department of Defense MANUAL

DODEA ADMINISTRATIVE INSTRUCTION , VOLUME 1 DODEA PERSONNEL SECURITY AND SUITABILITY PROGRAM

Department of Defense INSTRUCTION

41 USC NB: This unofficial compilation of the U.S. Code is current as of Jan. 4, 2012 (see

Department of Defense DIRECTIVE

CHAPTER 246. C.App.A:9-64 Short title. 1. This act shall be known and may be cited as the "New Jersey Domestic Security Preparedness Act.

SUBCHAPTER III INDOOR RADON ABATEMENT

Department of Defense INSTRUCTION

Begun and held at the City of Washington on Tuesday, the third day of January, two thousand and seventeen An Act

Student Guide Course: Original Classification

Department of Defense DIRECTIVE

49 USC NB: This unofficial compilation of the U.S. Code is current as of Jan. 4, 2012 (see

HOUSE OF REPRESENTATIVES BUY AMERICAN AMENDMENTS TO THE FY 2004 DEFENSE AUTHORIZATION BILL

DEPARTMENT OF THE NAVY COUNTERINTELLIGENCE

THE WHITE HOUSE. Office of the Press Secretary. For Immediate Release January 17, January 17, 2014

Department of Defense DIRECTIVE. SUBJECT: Unauthorized Disclosure of Classified Information to the Public

10-May-2010 (appeal)

National Preparedness Grant Program. Sec. XXX. ESTABLISHING THE NATIONAL PREPAREDNESS GRANT PROGRAM.

SUBJECT: Army Directive (Installation Energy and Water Security Policy)

SUMMARY FOR CONFORMING CHANGE #1 TO DoDM , National Industrial Security Program Operating Manual (NISPOM)

INTELLIGENCE COMMUNITY DIRECTIVE NUMBER 304

Department of Defense INSTRUCTION. Protection of Mission Critical Functions to Achieve Trusted Systems and Networks (TSN)

Attorney General's Guidelines for Domestic FBI Operations V2.0

SUMMARY: The Department of Homeland Security (DHS) is revising its procedures

TITLE 14 COAST GUARD This title was enacted by act Aug. 4, 1949, ch. 393, 1, 63 Stat. 495

v. : 18 U.S.C. 371, 951 & 2 MICHAEL RAY AQUINO, : I N D I C T M E N T a/k/a "Ninoy" The Grand Jury in and for the District of New Jersey,

Department of Defense DIRECTIVE. SUBJECT: Environmental Effects Abroad of Major Department of Defense Actions

Department of Defense DIRECTIVE. SUBJECT: Disclosure of Classified Military Information to Foreign Governments and International Organizations

Department of Defense DIRECTIVE

Department of Defense DIRECTIVE

One Hundred Eighth Congress of the United States of America

Directive on United States Nationals Taken Hostage Abroad and Personnel Recovery Efforts June 24, 2015

Student Guide: North Atlantic Treaty Organization

TITLE VI--CHILD AND FAMILY SERVICES AND SUPPORTS EXTENDERS. Subtitle A--Continuing the Maternal, Infant, and Early Childhood Home Visiting Program

Transcription:

1 9 10 11 1 1 1 1 1 1 1 19 0 1 SEC.. EXEMPTION OF INFORMATION ON MILITARY TACTICS, TECHNIQUES, AND PROCEDURES, AND OF MILITARY RULES OF ENGAGEMENT, FROM RELEASE UNDER FREEDOM OF INFORMATION ACT. (a) EXEMPTION. Subsection (a) of section 10e of title 10, United States Code, is amended (1) in the matter preceding paragraph (1), by inserting, military tactic, technique, or procedure information, or rule of engagement information after security information ; and () by striking paragraph (1) and inserting the following: (1) the information is (A) Department of Defense critical infrastructure security information; (B) military tactic, technique, or procedure information that identifies a method for using equipment and personnel to accomplish a specific mission under a particular set of operational or exercise conditions, including offensive, defensive, cyberspace, stability, civil support, freedom of navigation, and intelligence collection operations, the public disclosure of which could reasonably be expected to provide an operational military advantage to an adversary; or (C) rule of engagement information, the public disclosure of which could reasonably be expected to provide an operational military advantage to an adversary;. 1

1 9 10 11 1 1 1 1 1 1 1 19 0 1 (b) DELEGATION AND TRANSPARENCY. Such section is further amended (1) by striking subsection (d); () by redesignating subsection (e) as subsection (d); and () in subsection (d), as redesignated by paragraph () (A) by striking, or the Secretary s designee, ; and (B) by striking through the Office of the Director of Administration and Management and inserting in accordance with guidelines prescribed by the Secretary. (c) CITATION FOR PURPOSES OF OPEN FOIA ACT OF 009. Such section is further amended (1) in the matter preceding paragraph (1) of subsection (a), as amended by subsection (a) of this section, by striking pursuant to section (b)() of title ; and () by inserting after subsection (d), as redesignated by subsection (b)(), the following new subsection: (e) CITATION FOR PURPOSES OF OPEN FOIA ACT OF 009. This section is a statute that specifically exempts certain matters from disclosure under section of title, as described in subsection (b)() of that section.. (d) DEFINITIONS. Subsection (f) of such section is amended to read as follows: (f) DEFINITIONS. In this section: (1) ADVERSARY. The term adversary means a party acknowledged as potentially hostile to a friendly party and against which the use of force may be envisaged.

1 9 10 11 1 1 1 1 1 1 1 19 0 1 () DEPARTMENT OF DEFENSE CRITICAL INFRASTRUCTURE SECURITY INFORMATION. The term Department of Defense critical infrastructure security information means sensitive but unclassified information that, if disclosed, would reveal vulnerabilities in Department of Defense critical infrastructure that, if exploited, would likely result in the significant disruption, destruction, or damage of or to Department of Defense operations, property, or facilities, including (A) information regarding the securing and safeguarding of explosives, hazardous chemicals, or pipelines, related to critical infrastructure or protected systems owned or operated by or on behalf of the Department of Defense; (B) vulnerability assessments prepared by or on behalf of the Department of Defense; (C) explosives safety information, including storage and handling; and (D) other site-specific information on or relating to installation security. () PROCEDURE. The term procedure means standard, detailed steps that prescribe how to perform a specific task. () RULE OF ENGAGEMENT. The term rule of engagement means a directive issued by a competent military authority that delineates the circumstances and limitations under which the armed forces will initiate or continue combat engagement with other forces encountered.

1 9 10 () TACTIC. The term tactic means the employment and ordered arrangement of forces in relation to each other. () TECHNIQUE. The term technique means a non-prescriptive way or method used to perform a mission, function, or task.. (e) SECTION HEADING AND CLERICAL AMENDMENT. (1) The heading of such section is amended to read as follows: 10e. Nondisclosure of information: critical infrastructure; military tactics, techniques, and procedures; military rules of engagement. () The item relating to such section in the table of sections at the beginning of chapter of such title is amended to read as follows: 10e. Nondisclosure of information: critical infrastructure; military tactics, techniques, and procedures; military rules of engagement.. [Please note: The Changes to Existing Law section below sets out in red-line format how the legislative text would amend existing law.] Section-by-Section Analysis This proposal would amend section 10e of title 10, United States Code (U.S.C.), to authorize the Department of Defense to withhold sensitive, but unclassified, military tactics, techniques, or procedures, and military rules of engagement, from release to the public under section of title, U.S.C. (known as the Freedom of Information Act (FOIA)), if public disclosure could reasonably be expected to provide an operational military advantage to an adversary. The decision of the Supreme Court in Milner v. Department of the Navy, 11 S. Ct. 19 (011), significantly narrowed the long-standing administrative understanding of the scope of Exemption of the FOIA ( U.S.C. (b)()). Before that decision, the Department was authorized to withhold sensitive information on critical infrastructure and military tactics, techniques, and procedures from release under FOIA pursuant to Exemption. Section 10e of title 10, U.S.C., was established in the National Defense Authorization Act for Fiscal Year 01 to reinstate protection from disclosure of critical infrastructure security information. This proposal similarly would amend section 10e to add protections for military tactics, techniques, and procedures (TTPs), and rules of engagement that, if publicly disclosed, could reasonably be expected to provide an operational military advantage to an adversary. Military TTPs and rules

of engagement are analogous to law enforcement techniques and procedures, which Congress has afforded protection under FOIA Exemption (E). The effectiveness of U.S. military operations is dependent upon adversaries, or potential adversaries, not obtaining advance knowledge of sensitive TTPs or rules of engagement that will be employed in such tactical operations. If an adversary or potential adversary obtains knowledge of this sensitive information, the adversary would gain invaluable knowledge on how our forces operate in given tactical military situations. This knowledge could then, in turn, enable the adversary to counter the TTPs or rules of engagement by identifying and exploiting any weaknesses. From this, the defense of the homeland, success of the operation, and the lives of U.S. military forces would be seriously jeopardized. Furthermore, the probability of successful cyber operations would be limited with the public release of cyber-related TTPs. This proposal would add a layer of mission assurance to unclassified cyber operations and enhance the Department of Defense s ability to project cyber effects while protecting national security resources. This proposal additionally would make minor amendments in section 10e to: (1) clarify the citation for the purposes of the OPEN FOIA Act of 009; () remove references to reflect the merger of the Director of Administration and Management with the Deputy Chief Management Officer of the Department of Defense; and () remove the prohibition on further delegation. Budget Implications: Exemptions for the release of certain information under FOIA would generate minimal savings to the Administration by avoiding the preparation of select materials for release. The resources reflected in the table below are funded within the 019 President s Budget. FOIA Cost Avoidance Army FOIA Cost Avoidance Navy FOIA Cost Avoidance Air Force FOIA Cost Avoidance Defense-Wide 019 00 RESOURCE REQUIREMENTS ($MILLIONS) 01 0 0 $-.001 $-.001 $-.001 $-.001 $-.001 $-.001 $-.001 $-.001 $-.001 $-.001 $-.001 $-.001 $-.001 $-.001 $-.001 $-.001 $-.001 $-.001 $-.001 $-.001 Appropriations From Operation and Maintenance, Army Operation and Maintenance, Navy Operation and Maintenance, Air Force Operation and Maintenance, Defense-Wide Budget Activity Dash-1 Line Item Program Element Various Various Various Various Various Various Various Various Various Various Various Various Total $-.00 $-.00 $-.00 $-.00 $-.00 -- -- -- -- Changes to Existing Law: The proposal would make the following changes to existing law: TITLE 10, UNITED STATES CODE

* * * * * * * CHAPTER General Power and Functions * * * * * * * 10. Authority to withhold from public disclosure certain technical data. [10a. Repealed.] 10b. Personnel in overseas, sensitive, or routinely deployable units: nondisclosure of personally identifying information. 10c. Nondisclosure of information: certain sensitive information of foreign governments and international organizations. 10d. Treatment under Freedom of Information Act of certain confidential information shared with State and local personnel. 10e. Treatment under Freedom of Information Act of critical infrastructure security informationnondisclosure of information: critical infrastructure; military tactics, techniques, and procedures; military rules of engagement. 10f. Congressional notification regarding sensitive military operations. * * * * * * * 10e. Treatment under Freedom of Information Act of critical infrastructure security informationnondisclosure of information: critical infrastructure; military tactics, techniques, and procedures; military rules of engagement (a) EXEMPTION. The Secretary of Defense may exempt Department of Defense critical infrastructure security information, military tactic, technique, or procedure information, or rule of engagement information from disclosure pursuant to section (b)() of title, upon a written determination that (1) the information is (A) Department of Defense critical infrastructure security information; (B) military tactic, technique, or procedure information that identifies a method for using equipment and personnel to accomplish a specific mission under a particular set of operational or exercise conditions, including offensive, defensive, cyberspace, stability, civil support, freedom of navigation, and intelligence collection operations, the public disclosure of which could reasonably be expected to provide an operational military advantage to an adversary; or (C) rule of engagement information, the public disclosure of which could reasonably be expected to provide an operational military advantage to an adversary; and () the public interest consideration in the disclosure of such information does not outweigh preventing the disclosure of such information. (b) DESIGNATION OF DEPARTMENT OF DEFENSE CRITICAL INFRASTRUCTURE SECURITY INFORMATION. In addition to any other authority or requirement regarding protection from dissemination of information, the Secretary may designate information as being Department of Defense critical infrastructure security information, including during the course of creating such information, to ensure that such information is not disseminated without authorization.

Information so designated is subject to the determination process under subsection (a) to determine whether to exempt such information from disclosure described in such subsection. (c) INFORMATION PROVIDED TO STATE AND LOCAL GOVERNMENTS. (1) Department of Defense critical infrastructure security information covered by a written determination under subsection (a) or designated under subsection (b) that is provided to a State or local government shall remain under the control of the Department of Defense. ()(A) A State or local law authorizing or requiring a State or local government to disclose Department of Defense critical infrastructure security information that is covered by a written determination under subsection (a) shall not apply to such information. (B) If a person requests pursuant to a State or local law that a State or local government disclose information that is designated as Department of Defense critical infrastructure security information under subsection (b), the State or local government shall provide the Secretary an opportunity to carry out the determination process under subsection (a) to determine whether to exempt such information from disclosure pursuant to subparagraph (A). (d) DELEGATION. The Secretary of Defense may delegate the authority to make a determination under subsection (a) to the Director of Administration and Management. (ed) TRANSPARENCY. Each determination of the Secretary, or the Secretary's designee, under subsection (a) shall be made in writing and accompanied by a statement of the basis for the determination. All such determinations and statements of basis shall be available to the public, upon request, though the Office of the Director of Administration and Managementin accordance with guidelines prescribed by the Secretary. (e) CITATION FOR PURPOSES OF OPEN FOIA ACT OF 009. This section is a statute that specifically exempts certain matters from disclosure under section of title, as described in subsection (b)() of that section. (f) DEFINITIONS. In this section, t: (1) ADVERSARY. The term adversary means a party acknowledged as potentially hostile to a friendly party and against which the use of force may be envisaged. () DEPARTMENT OF DEFENSE CRITICAL INFRASTRUCTURE SECURITY INFORMATION. The term Department of Defense critical infrastructure security information means sensitive but unclassified information that, if disclosed, would reveal vulnerabilities in Department of Defense critical infrastructure that, if exploited, would likely result in the significant disruption, destruction, or damage of or to Department of Defense operations, property, or facilities, including (A) information regarding the securing and safeguarding of explosives, hazardous chemicals, or pipelines, related to critical infrastructure or protected systems owned or operated by or on behalf of the Department of Defense,; (B) including vulnerability assessments prepared by or on behalf of the Department of Defense,; (C) explosives safety information, (including storage and handling information),; and (D) other site-specific information on or relating to installation security. () PROCEDURE. The term procedure means standard, detailed steps that prescribe how to perform a specific task. () RULE OF ENGAGEMENT. The term rule of engagement means a directive issued by a competent military authority that delineates the circumstances and limitations

under which the armed forces will initiate or continue combat engagement with other forces encountered. () TACTIC. The term tactic means the employment and ordered arrangement of forces in relation to each other. () TECHNIQUE. The term technique means a non-prescriptive way or method used to perform a mission, function, or task.