Just a week after Obama held a press conference announcing that he sent a stern warning to Vladamir Putin regarding his alleged "election hacking" efforts (see "Obama Told Putin To "Cut It Out" On Hacking"), the Washington Post is reporting that the Obama administration is close to announcing a series of economic sanctions and other measures to punish Russia for its "interference" in the 2016 presidential election. Quoting "U.S. officials," WaPo said that an announcement from the Obama administration could come as early as this week and would likely include "covert cyber operations."
According to WaPo's "sources", the delay in sanctions against Russia have come from Obama's inability to take unilateral actions under current laws. While Obama previously signed an executive order that would allow him to freeze the assets in the United States of people overseas who have engaged in cyber acts, it only applies to actions that have threatened U.S. national security or financial stability. Further, per a "senior administration official," use of the existing law would require (1) actual election infrastructure to be designated as 'critical infrastructure' and (2) the administration to prove that such infrastructure was actually "harmed," conditions which the National Security Council say have not been met.
The White House is still finalizing the details of the sanctions package. Holding up the announcement is an internal debate over how best to adapt a 2015 executive order that gave the president the authority to levy sanctions against foreign actors who carry out cyberattacks against the United States.
The order was used as the “stick” in negotiations over a highly-publicized 2015 agreement with China that neither nation would hack the other for economic gain.
But officials concluded this fall that the order does not cover the kind of covert influence operation that the Intelligence Community believes Russia carried out during the election — hacking political organizations and leaking stolen emails with the goal of influencing the outcome.
The April 2015 order allows the Treasury Department to freeze the assets of individuals or entities who used digital means to damage U.S. critical infrastructure or engage in economic espionage.
The National Security Council concluded that it would not be able to use the authority against Russian hackers because their malicious activity did not clearly fit under its terms, which require harm to critical infrastructure or the theft of commercial secrets.
“You would (a) have to be able to say that the actual electoral infrastructure, such as state databases, was critical infrastructure, and (b) that what the Russians did actually harmed it,” a senior administration official told The Post. “Those are two high bars.”
Of course, laws are merely suggestions for an Obama administration that has grown quite comfortable legislating through executive action from the White House. As Zachary Goldman, a sanctions and national security expert at New York University School of Law, points out the current laws simply require the Obama administration to "engage in some legal acrobatics to fit the DNC hack into an existing authority, or they need to write a new authority."
“Fundamentally, it was a low-tech, high-impact event,” said Zachary Goldman, a sanctions and national security expert at New York University School of Law. And the 2015 executive order was not crafted to target hackers who steal emails and dump them on WikiLeaks or seek to disrupt an election. “It was an authority published at a particular time to address a particular set of problems,” he said.
So officials “need to engage in some legal acrobatics to fit the DNC hack into an existing authority, or they need to write a new authority,” Goldman said.
Administration officials would like Obama to use the power before leaving office to demonstrate its utility.
And, not surprisingly, another administration official points out that “part of the goal here is to make sure that we have as much of the record public or communicated to Congress in a form that would be difficult to simply walk back." Yes, that is the problem with legislating through executive action rather than acknowledging the will of the American people and trying to work with Congress.
And while Obama and Democrats continue their crusade to deligitamize the Trump administration, we would point out once again that, despite all the rhetoric, not a single person has gone on the record and/or presented a single shred of tangible evidence to confirm Russian involvement in the DNC and/or John Podesta email hacks.