Response to Russian Cyber-Espionage

Cyber-security has become arguably the most serious challenge to face the nation in a very long time. The conclusions the American intelligence community have come to regarding the hacking of the Democratic National Committee during the election implicating the Russians, most probably all the way up to Putin, are the latest signal of difficult times ahead.

President Obama’s earlier statements in response to the intelligence reports indicated a strong response was necessary and now with three official executive actions we see some of the specific details of that response. Undoubtedly, more covert actions are also in the works, but they may never be known. If they are eventually revealed, it will be many years from now when they are no longer relevant to national security.

In some ways I find this humorous. For whatever reasons, I am reminded of the 1960’s Mad Magazine’s Spy vs. Spy cartoons when I think about the ongoing spy activity everyone in the world knows goes on, even among our so called friends. Collection of intelligence has gone on ever since humans developed any kind of society. In this most recent case, it feels like yet another swing of the pendulum and the Russians are the ones with the egg on face this time. Putin’s choice not to expel American diplomats might be a tacit admission of that, or it may just be cover for significant clandestine operations in the never ending tit-for-tat.

I am sobered quickly, however, by thinking about the potential for a complete dismantling of the uniquely American democratic republic. The president-elect’s dismissal of the intelligence reports and downplaying of the accusation of Russian involvement (supported by several elected members of Congress) are enough to remind us this is serious business.

Fortunately, this issue is extremely high profile in the national and international news. There is no doubt internationally of the seriousness of the infraction and how important it is to respond forcefully. Unfortunately, a number of partisan hacks claim it is being blown out of proportion, but I suspect most of them have no clue how their response is aiding and abetting the Russian activity. Once again, authoritarianism rears its ugly head.

Three documents posted on the White House website detail the actions to be taken.

  • Executive Order — Taking Additional Steps to Address the National Emergency with Respect to Significant Malicious Cyber-Enabled Activities

This is actually an updating of an earlier Executive Order (13694 of April 1, 2015) amending it to add Russian owned properties and individual Russians to that order.

  • Annex to Executive Order — Taking Additional Steps to Address the National Emergency with Respect to Significant Malicious Cyber-Enabled Activities

The annex referred to in the Executive Order is a brief document listing the five specific entities and four individuals affected by the order.

  • Letter from the President — Taking Additional Steps to Address the National Emergency with Respect to Significant Malicious Cyber-Enabled Activities

The letter is to the Speaker of the House of Representatives and the President of the Senate reporting the action of the Executive Order as required by law.

All three documents were posted December 29, 2016. The Executive Order took effect at 12:01 a.m. December 29.

President on Vacation

On December 16, 2016 the President and his family left for his annual vacation in Hawaii. He is scheduled to return to Washington, D. C. January 3, 2017.

Through December 28 there have been 17 presidential actions (posted on the White House Presidential Actions page) and two bill signing statements, not to mention the numerous other statements and releases posted on the Statements page of the site. More are on the site already today (as of early afternoon December 29).

Who knew the president did anything on vacation?

Four Proclamations of December 28, 2016

All four proclamations signed December 28, 2016

Not every presidential proclamation makes the news, but this day, two  were widely reported because of their controversial nature. Several of the media saw the actions establishing two more National Monuments in the western U.S. as the President thumbing his nose at the opposition to the broad powers given to every president by the Antiquities Act (section 320301 of title 54, United States Code).  The original act of Congress is labeled American Antiquities Act of 1906 (16 USC 431-433).

No one disputes the power of the president in this regard, but it remains to be seen if new congressional action in the coming months or years will strip this power from the president. All previous attempts to do so have failed.

The two non-controversial proclamations declared January 2017 to be:

  • National Mentoring Month, 2017
  • National Slavery and Human Trafficking Prevention Month, 2017

Both are self-explanatory in their titles.

The two new monuments established by proclamations are:

  • Bears Ears National Monument (Southeastern Utah)
  • Gold Butte National Monument (Southeast Nevada)

Judging from the detailed descriptions of the lands designated for the monuments, these proclamations are important and warranted for environmental as well as cultural and aesthetic reasons.

Statement by the President on Signing the National Defense Authorization Act for Fiscal Year 2017

Bill and Statement signed December 23, 2016

Obviously, I have not been monitoring Presidential actions for very long, but this is the first time I have encountered a significant difference of opinion between the President and Congress on a bill signing. The Statement addresses several sections in the bill the President has concerns about including some constitutional issues, especially related to the separation of powers.

Parts of the bill have to do with cyber-security and the management of those efforts. I will quote the most interesting sentence by the President with regard to those parts of the bill:

“Although I appreciate the Congress’s interest in strengthening our Nation’s cyber capabilities and ensuring that the NSA and CYBERCOM are best positioned to confront the array of cyber threats we face, I do not support these provisions as drafted:  the Congress should leave decisions about the establishment of combatant commands to the executive branch and should not place unnecessary and bureaucratic administrative burdens and conditions on ending the dual-hat arrangement at a time when the speed and nature of cyber threats requires agility in making decisions about how best to organize and manage the Nation’s cyber capabilities.”

Rather than attempt to summarize this statement, I am going to simply list some of the issues the President addresses.

  • Changes the bill imposes on the Defense Department disregarding advice of the leaders of the department
  • Failure again to authorize funding to close the Guantanamo Bay facility
  • Unnecessary restrictions on transfer of detainees
  • Several items that raise constitutional concerns

I will quote the last section of the statement so you can get a more detailed sense of what some of the President’s constitutional concerns are in this bill.

“Several other provisions in the bill also raise constitutional concerns.

First, section 507 of the bill would authorize certain cabinet officials to “drop from the rolls” military officers without my approval.  The Constitution does not allow Congress to authorize other members of the executive branch to remove presidentially appointed officers, so I will direct my cabinet members to construe the statute as permitting them to remove the commission of a military officer only if the officer accepts their decision or I approve the removal.

Second, section 553 of the bill would establish a commission, composed primarily of members appointed by the Congress, in the executive branch.  Because the commission contains legislative branch appointees, it cannot be located in the executive branch consistent with the separation of powers.  My Administration will therefore treat the commission as an independent entity, separate from the executive branch.

Finally, section 1263(d) purports to require me to determine whether a foreign person has committed a sanctionable human rights violation when I receive a request to do so from certain members of Congress.  Consistent with the constitutional separation of powers, which limit the Congress’s ability to dictate how the executive branch executes the law, I will maintain my discretion to decline to act on such requests when appropriate.”

In my opinion, this is an important and significant signing statement. It clearly states the President’s concerns with the bill, sometimes in forceful language. We all should be reminded that President Obama is a constitutional scholar and that gives unusual weight to his arguments. It is well worth reading the statement in its entirety, so I encourage you to do so. Follow this link to see the full statement.

Two Signing Statements of December 16, 2016

I have been somewhat remiss in not monitoring the Statements section of the White House website in the last few weeks. Today I discovered there are some that have occurred during that time.

On December 16, 2016 two statements were attached to bills signed that day:

  • Statement by the President on the Water Infrastructure Improvements for the Nation (WIIN) Act
  • Statement by the President on Signing the Ensuring Access to Pacific Fisheries Act

Neither of them appear to be controversial as both bills are bi-partisan in their support.

 

Executive Order — Adjustments of Certain Rates of Pay

Signed December 27, 2016

This executive order supersedes a previous order (13715) dated December 17, 2015. Thus, it appears to be a fairly routine adjustment of pay rates for various executive officers, some legislative and judicial employees, as well as all “uniformed employees” that include the military.

Several schedules (presumably lists of categories and rates) are referred to in the order as attached documents, but they do not appear on the White House site.

The National Defense Authorization Act for Fiscal Year 2017 (signed December 23, 2016) is cited as part of the authority for establishing the pay rates in this order.

Order of Succession for Various Departments

All dated December 23, 2016

One Executive Order (for a cabinet department) and four Memoranda (for several government agencies) were posted detailing the order of succession in case of resignation, death, etc of the leaders of the departments or agencies. This appears to be routine work, probably updating previous orders of succession. Although routine, this is important for continued operation in the transition of administrations.

Following are the titles of the documents posted today.

  • Executive Order — Providing an Order of Succession Within the Department of Labor
  • Presidential Memorandum — Designation of Officers of the National Archives and Records Administration to Act as Archivist of the United States
  • Presidential Memorandum — Providing an Order of Succession within the National Endowment for the Arts
  • Presidential Memorandum — Providing an Order of Succession within the Social Security Administration
  • Presidential Memorandum — Providing an Order of Succession within the Federal Mediation and Conciliation Service