WHEN THERE WAS A 'DOUBLY-ILLEGAL' ACTING SECURITY OF HOMELAND SECURITY

SOUNDS FAMILIAR AND NORMALIZED NOW: It was under Wolf’s direction that a motley crew of federal law enforcement — drawn from Border Patrol, ICE, the US Marshals, and Federal Protective Services — would occupy the city of Portland, Oregon, bathing its downtown district in a pea-souper of tear gas and snatching up its citizens for questioning in unmarked minivans. These brutal yet ineffective tactics were a response to the supposed “lawlessness” of the George Floyd protests in Portland. But Wolf’s own lawless occupation of the secretary’s seat would go largely unchecked. . .

Chad Wolf, the illegal secretary

6.29.22

Governance by tweet. Incorrect paperwork. Total chaos.

 

The Verge |

By: Sarah Jeong

Art: Klawe Rzeczy

Photos: Getty Images

"Kirstjen Nielsen’s tenure as the head of the Department of Homeland Security was perhaps best known for the family separation policy at the border. The recordings of crying toddlers, the children wrapped in silver foil blankets, the detention conditions likened to “cages” — this was her legacy. Nielsen was reviled by almost everyone from the center and leftwards. Ironically, President Trump himself disliked her, in part for not being tough enough on immigration, and would eventually force her out. 

Nielsen would be the last legal secretary of homeland security in the Trump administration. What would follow would be a chaotic parade involving governance by tweet, a thicket of laws and regulations, incorrectly amended paperwork, and a strangely hilarious internal legal memo referencing a @DHSgov tweet as though it held some kind of binding authority. Seven months later, Nielsen’s eventual successor, Chad Wolf, would take her place. . .

“My ‘actings’ are doing really great,” President Trump said to reporters in January 2019. “It gives me more flexibility. Do you understand that? I like ‘acting.’ So we have a few that are acting. … If you look at my Cabinet, we have a fantastic Cabinet. Really good.”

As flexible as the Vacancies Act is, there are still limits. The executive branch has 210 days — a little under seven months — after a vacancy is created to put forth an appointee for Senate confirmation. By the end of the Trump administration, countless key appointments had run out the clock, with over a dozen government officials squatting illegally in their acting roles. 

Unlike the vast majority of these cases, the question of who was legally the secretary of homeland security was not governed by the Vacancies Act. The infamous 210-day limit that became so widely known during the second half of the Trump administration was not at play. (Although, if it had been, Chad Wolf — who took office 216 days after Nielsen vacated her position — would still have been an illegal acting secretary).   

On April 9th, 2019, Nielsen filed two fateful pieces of paperwork that would haunt the agency for the rest of Trump’s term and beyond. The first was a boilerplate letter written by John Mitnick, the DHS general counsel, specifying that, “By approving the attached document, you will designate your desired order of succession for the Secretary of Homeland Security in accordance with your authority pursuant to Section 113(g)(2) of title 6, United States Code.” (This, importantly, is the Homeland Security Act and not the Vacancies Act.)

The second piece of paperwork was the “attached document,” which amended the succession order so that Kevin McAleenan — a DHS official whose harsh approach to immigration had found favor in Trump’s eyes — would succeed Nielsen, as was intended by the president. 

Unfortunately, Nielsen amended the wrong section of the succession order. . .[    ] But the unfortunate part of being an illegal secretary of homeland security is that the things you do are not legal. Under both the original succession order and Kirstjen Nielsen’s incorrectly amended succession order, Chad Wolf was not the next in line. He had been made acting head through the actions of an already illegal acting head; he was a doubly illegal acting secretary of homeland security. 

The Government Accountability Office called foul on the DHS succession in August 2020. In a reflection of the extraordinary chaos afoot, DHS responded to the government’s own watchdog agency with an inexplicably combative letter calling the report’s conclusions “baseless and baffling” and demanding that GAO “rescind its erroneous report immediately.” The letter was signed by yet another Chad — Chad Mizelle — who was also one of Trump’s actings, an official who was “performing the duties of the general counsel.”

. . .Shortly after the GAO report was released, Trump would officially nominate Wolf for the job. But the nomination itself couldn’t fix the illegal succession — and in any case, the nomination never went through.

For those on the outside looking in, Chad Wolf’s tenure would mostly be remembered for the battle of Portland. Wolf also oversaw an increasingly hostile immigration policy. He suspended — or rather, attempted to suspend — the Deferred Action for Childhood Arrivals (DACA) program. He made sweeping changes to the asylum system that, among other things, would have disqualified many refugees fleeing domestic abuse or anti-LGBTQ persecution. “These regulations aimed to strip immigrants of basic rights to work authorization and due process,” said Zachary Manfredi, an attorney with the Asylum Seeker Advocacy Project, who spearheaded litigation that tested the legality of Wolf’s appointment in court.

> Undocumented and semi-documented immigrants — human beings who are declared “illegal” in the mainstream rhetoric of the Republican Party — face overwhelming odds. They are left to navigate an inscrutable legal and regulatory code in a language they may or may not have facility in, often with limited access to legal counsel. Their fates frequently rest on the paperwork they have or have not filed, the declarations they have or have not made. The moment they set foot on American soil, unseen timers begin a countdown. For them, their entire lives can hinge on being able to prove themselves to the great and towering machine of bureaucracy.

> Kirstjen Nielsen had all the help of the general counsel of the Department of Homeland Security, and she still filed her paperwork incorrectly. Years later, the Biden administration is paying for that mistake. Biden’s DHS — now headed by a legal, Senate-confirmed secretary — has attempted to retroactively ratify Chad Wolf and Kevin McAleenan’s administrative rulemakings; federal judges have refused to accept this maneuver. These policies originated illegally, and they remain illegal. Laws matter, and the process matters, especially when applied to an agency that inflicts a mercilessly exacting process on so many people. . .

[    ]  The actions Chad Wolf ordered in Portland in the summer of 2020 stemmed from Trump’s own obsession with “lawlessness,” and Wolf justified the DHS’s brutality by citing damage to buildings on federal property and violence against law enforcement officers.

On January 6th, 2021, a pro-Trump mob would storm federal property and attack federal law enforcement. The next day, Trump withdrew Chad Wolf’s nomination for secretary of homeland security after Wolf urged him to condemn the violence at the Capitol.

There had been a long and predictable lead-up to January 6th, which started with Trump’s refusal to concede and his continuing assertion that the election had been stolen.

After Christopher Krebs, the director of the CISA Cybersecurity and Infrastructure Security Agency, openly stated that there were no security anomalies in the 2020 election, Trump fired him via tweet. This was maybe par for the course; Trump had spent the last four years purging various top officials at the Department of Homeland Security for being insufficiently hard-line.

This is the third act, in which Chekhov’s gun makes its inevitable appearance. Krebs was the director of an agency that Trump himself had created in 2018; he had served in that position from the beginning. He was also, according to the last legally amended DHS succession order, the real legal Acting Secretary of Homeland Security."

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RELATED CONTENT ON THIS BLOG Christopher Krebs:

23 June 2019

The New Game of Double-Jeopardy: Offensive Cyberwarfare Attacks on "Virtual Territory"

According to a report by Ellen Nakashima in The Washington Post late yesterday afternoon, offensive cyber strikes were launched Thursday night by personnel with U.S. Cyber Command that  disabled Iranian computer systems used to control rocket and missile launches in response to its downing Thursday of an unmanned U.S. surveillance drone.
The subsequent reaction:Two days later the Trump administration on Saturday warned industry officials to be alert for cyberattacks originating from Iran.

> Ellen Nakashima notes in her report, "The White House declined to comment, as did officials at U.S. Cyber Command. Pentagon spokeswoman Elissa Smith said: “As a matter of policy and for operational security, we do not discuss cyberspace operations, intelligence or planning.'"

> . . . On Saturday, the Department of Homeland Security issued a warning to U.S. industry that Iran has stepped up its cyber-targeting of critical industries — to include oil, gas and other energy sectors — and government agencies, and has the potential to disrupt or destroy systems. . .

“There’s no question that there’s been an increase in Iranian cyber activity,” said Christopher Krebs, director of DHS’s Cybersecurity and Infrastructure Security Agency. “Iranian actors and their proxies are not just your garden variety run-of-the-mill data thieves. These are the guys that come in and they burn the house down.”

Krebs, in an interview, said, “We need everyone to take the current situation very seriously. Look at any potential incidents that you have and treat them as a worst-case scenario.

 

This is not you waiting until you have a data breach . . . This is about losing control of your environment, about losing control of your computer.”

 

“The reality is we’ve been seeing more and more aggressive activity for quite some time,” he said. “It’s just getting worse.”

All these offensive and defensive actions are a reflection of a new Cyber Command strategy — called “defending forward” — that its leader, Gen. Paul Nakasone, has defined as operating “against our enemies on their virtual territory.” 

The Implications of Defending Forward in the New Pentagon Cyber Strategy
Blog Post by Guest Blogger for Net Politics

September 25, 2018

Link to the source:

Council on Foreign Relations

 

Ben Buchanan is an assistant teaching professor at Georgetown University and the author of The Cybersecurity Dilemma. You can follow him @BuchananBen
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". . . it was hard to know if the intruders were setting up for a significant cyberattack or if they were just gathering intelligence. In light of this ambiguity, and due to some particular operational factors endemic to hacking efforts, nations are likely to assume the worst and not give the intruders the benefit of the doubt.

It seems reasonable to expect that, as hard as it is to differentiate between intelligence collection and attack in cyber operations, it is even harder still to distinguish between defending forward and attacking forward.

If  the new strategy permits U.S. operators to be more aggressive than what the NSA was previously doing, that could have significant implications for escalation risks.  
. . . policymakers and scholars should not pretend that defending forward is an entirely new concept nor one without its own associated dangers.  "