President Obama speaks about counterterrorism during his visit to MacDill Air Force Base in Tampa on Dec. 6. (photo: Kevin Lamarque/Reuters)
White
House Prepares Covert Action, Sanctions to Punish Russia for Election Hack
By Ellen Nakashima, The
Washington Post
28 December 16
The
Obama administration is close to announcing a series of measures to punish
Russia for its interference in the 2016 presidential election, including
economic sanctions and diplomatic censure, according to U.S. officials.
The
administration is finalizing the details, which also are expected to include
covert action that will probably involve cyber-operations, the officials said.
An announcement on the public elements of the response could come as early as
this week.
The
sanctions portion of the package culminates weeks of debate in the White House
on how to revise a 2015 executive order that was meant to give the president
authority to respond to cyberattacks from overseas but that did not cover
efforts to influence the electoral system.
The
Obama administration rolled the executive order out to great fanfare as a way
to punish and deter foreign hackers who harm U.S. economic or national
security.
The
threat to use it last year helped wring a pledge out of China’s president that
his country would cease hacking U.S. companies’ secrets to benefit Chinese
firms.
But
officials concluded this fall that the order could not, as written, be used to
punish the most significant cyber-provocation in recent memory against the
United States — Russia’s hacking of Democratic organizations, targeting of
state election systems and meddling in the presidential
election.
With
the clock ticking, the White House is working on adapting the authority to
punish the Russians, according to the officials, who spoke on the condition of
anonymity to discuss internal deliberations. President Obama pledged this month
that there would be a response
to Moscow’s interference in the U.S. elections.
Russia
had denied involvement in the hacking.
One
clear way to use the order against the Russian suspects would be to declare the
electoral systems part of the “critical infrastructure” of the United States.
Or the order could be amended to clearly apply to the new threat — interfering
in elections.
Administration
officials would also like to make it difficult for President-elect Donald Trump
to roll back any action they take.
“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,” said one senior administration official.
Obama
issued the executive
order in April 2015, creating the sanctions tool as a way to
hold accountable people who harm computer systems related to critical functions
such as electricity generation or transportation, or who gain a competitive
advantage through the cybertheft of commercial secrets.
The order allows
the government to freeze the assets in the United States of people overseas who
have engaged in cyber-acts that have threatened U.S. national security or
financial stability. The sanctions would also block commercial transactions
with the designated individuals and bar their entry into the country.
But
just a year later, a Russian military spy agency would hack into the Democratic
National Committee and steal a trove of emails that were released a few months
later on WikiLeaks, U.S. officials said. Other releases followed, including the
hacked emails of Hillary Clinton’s campaign chairman, John Podesta.
“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.
“When
the president came into office, he didn’t have that many tools out there to use
as a response” to malicious cyber-acts, said Ari Schwartz, a former senior
director for cybersecurity on the National Security Council. “Having the
sanctions tool is really a big one. It can make a very strong statement in a
way that is less drastic than bombing a country and more impactful than sending
out a cable from the State Department.”
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,” said the administration official. “Those are two high
bars.”
Although
Russian government hackers are believed to have penetrated at least one state
voter-registration database, they did not tamper with the data, officials said.
Some
analysts believe that state election systems would fit under “government
facilities,” which is one of the 16 critical infrastructure sectors designated
by the Department of Homeland Security.
Another
option is to use the executive order against other Russian targets — say,
hackers who stole commercial secrets — and then, in either a public message or
a private one, make clear that the United States considers its electoral
systems to be critical infrastructure.
The
idea is not only to punish but also to deter.
“As
much as I am concerned about what happened to us in the election, I am also
concerned about what will happen to us in the future,” a second administration
official said. “I am firmly convinced that the Russians and others will say,
‘That worked pretty well in 2016, so let’s keep going.’ We have elections every
two years in this country.”
Even
the threat of sanctions can have deterrent value. Officials and experts point
to Chinese President Xi Jinping’s agreement with Obama last year that his
country would stop commercial cyberspying. Xi came to the table after news
reports that summer that the administration was preparing to sanction Chinese
companies.
Complicating
matters, the Trump transition team has not yet had extensive briefings with the
White House on cybersecurity issues, including the potential use of the cyber
sanctions order. The slow pace has caused consternation among officials, who
fear that the administration’s accomplishments in cybeysecurity could languish
if the next administration fails to understand their value.
Sanctions
are not a silver bullet. Obama noted that “we already have enormous numbers of
sanctions against the Russians” for their activities in Ukraine. So it is
questionable, some experts say, whether adding new ones would have a meaningful
effect in changing the Kremlin’s behavior. But in combination with other
measures, they could be effective.
Criminal
indictments of Russians might become an option, officials said, but the FBI has
so far not gathered enough evidence that could be introduced in a criminal
case. At one point, federal prosecutors and FBI agents in San Francisco
considered indicting Guccifer 2.0, a nickname for a person or people believed
to be affiliated with the Russian influence operation and whose true identity
was unknown.
Before
the election, the administration used diplomatic channels to warn Russia. Obama
spoke to Russian President Vladimir Putin at a Group of 20 summit in China in
September. About a week before the election, the United States sent a
“hotline”-style message to Moscow using a special channel for crisis
communication created in 2013 as part of the State Department’s Nuclear Risk
Reduction Center. As part of that message, the officials said, the
administration asked Russia to stop targeting state voter registration and
election systems. It was the first use of that system. The Russians, officials
said, appeared to comply.
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