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Mick Mulvaney Confesses OMB and DOD Are Withholding Evidence of a Crime from Congress

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Amid the tsunami of alarming news Mick Mulvaney made at today’s press conference (Trump is holding the G-7 at Doral next year, he likely will invite Putin, Trump did engage in a quid pro quo with Volodymyr Zelensky on his July 25 call), one of the more important admissions got missed.

Mick Mulvaney admitted that the White House would have been breaking the law by withholding Ukrainian security funds because it did not have a “really really good reason not to do it.”

By the way, there was a report that we were worried that the money, that if we didn’t pay out the money it would be illegal. It would be unlawful. That is one of those things that has a little shred of truth in it, that makes it look a lot worse than it really is. We were concerned about — over at OMB, about an impoundment. And I know I’ve just put half you folks to bed, but there’s a, the Budget Control Act, Impound — the Budget Control Impoundment Act of 1974 says that if Congress appropriates money you have to spend it. At least, that’s how it’s interpreted by some folks. And we knew that that money either had to go out the door by the end of September, or we had to have a really really good reason not to do it. And that was the legality of the issue.

He’s referring, presumably, to a WSJ report that OMB — the agency Mulvaney is still officially in charge of — put a political appointee in charge of withholding duly appropriated security funds for Ukraine so that President Trump could extort concessions from Ukraine.

The White House gave a politically appointed official the authority to keep aid to Ukraine on hold after career budget staff members questioned the legality of delaying the funds, according to people familiar with the matter, a shift that House Democrats are probing in their impeachment inquiry.

President Trump’s order to freeze nearly $400 million in aid to Ukraine in mid-July is at the center of House Democratic efforts to investigate allegations that Mr. Trump used U.S. foreign policy powers to benefit himself politically.

[snip]

The president has the authority to delay the release of money in certain instances, according to the Congressional Research Service, a nonpartisan research agency, including if there has been an unexpected change in circumstances for the program. But without being provided explanation or justification about why the administration was delaying the aid, some career officials at the Office of Management and Budget became worried they didn’t have the legal authority to hold up the funds, according to the people familiar.

While career civil servants put an initial hold on the aid, Michael Duffey, associate director of national security programs in OMB, was given the authority for continuing to keep the aid on hold after the career staff began raising their concerns to political officials at OMB, according to the people familiar with the matter. Mr. Duffey also began overseeing the process for approving and releasing funds, called apportionment, for other foreign aid and defense accounts, according to a public document indicating the change.

As noted by Mulvaney today, a law passed in the wake of Richard Nixon playing games with appropriations requires that if you withhold duly appropriated funds, you explain to Congress why you’re doing so, a decision that Congress then gets to veto simply by refusing to approve of the decision. The law makes it clear that the President can’t simply ignore the will of Congress on appropriations.

And yet, that’s what Trump did for the entirety of the summer.

Worse, in his press conference today, Mulvaney admitted that Trump didn’t have a “really really good reason not to” release the funds. Rather, he had a really bad reason: he was trying to extort a quid pro quo.

And that’s why the decision — reported in ho hum fashion on Tuesday as if it were just another case of the Administration refusing Congressional subpoenas — that OMB and DOD would not respond to subpoenas is actually really important.

The subpoena to those agencies lays out some of the evidence that Trump withheld the funds after DOD cleared them. Then it lays out the evidence that Trump was defying bipartisan Congressional will in doing so.

As you are aware, the Impoundment Control Act of 1974 authorizes the President to withhold the obligation of funds only “(1) to provide for contingencies; (2) to achieve savings made possible by or through changes in requirements or greater efficiency of operations; or (3) as specifically provided by law.” The President is required to submit a special message to Congress with information about the proposed deferral of funds.

On August 30, 2019, Chairman Adam Smith and Ranking Member Mac Thornberry of the House Committee on Armed Services wrote a letter to Mr. Mulvaney requesting information why military assistance to Ukraine was being withheld and when it would be released. They wrote: “This funding is critical to the accomplishment of U.S. national security objectives in Europe.”

On September 3, 2019, a bipartisan group of Senators–including Rob Portman, Jeanne Shaheen, Dick Durbin, Richard Blumenthal, and Ron Johnson–wore a letter requesting that OMB release the military assistance to Ukraine that the Trump Administration was withholding:

The funds designated for the Ukraine Security Assistance Initiative are vital to the viability of the Ukrainian military. It has helped Ukraine develop the independent military capabilities and skills necessary to fend off the Kremlin’s continued onslaughts within its territory. In fact, Ukraine continues to fight daily on its eastern border against Russia-backed separatists in the provinces of Donetsk and Luhansk, and over 10,000 Ukrainian soldiers and civilians have lost their lives in this war. U.S.-funded security assistance has already helped turn the tide in this conflict, and it is necessary to ensure the protection of the sovereign territory of this young country, going forward.

On September 5, 2019, Chairman Eliot L. Engel and Ranking Member Michael McCaul of the House Committee on Foreign Affairs wrote a letter to OMB urging the Trump Administration to lift its hold on security funds to support Ukraine, writing: “These funds, which were appropriated by Congress as Foreign Military Financing and as part of the Ukraine Security Assistance Initiative and signed into law by the President, are essential to advancing U.S. national security interests.”

On September 9, 2019, the Committees on Intelligence, Foreign Affairs, and Oversight wrote to the White House requesting documents related to “the actual or potential suspension of security assistance to Ukraine.” The White House never responded to this request. However, two days later, on September 11, 2019, the White House released its hold on the military assistance to Ukraine.

On September 24, 2019, Senate Majority Leader Mitch McConnell stated that, although he was “very actively involved in advocating the aid,” he “was not given an explanation” about why it was being withheld, even though he talked to the Secretary of Defense and the Secretary of State. He stated: “I have no idea what precipitated the delay.”

The enclosed subpoena demands documents that are necessary for the Committees to examine the sequences of these events and the reasons behind the White House’s decision to withhold critical military assistance to Ukraine that was appropriated by Congress to counter Russian aggression.

That’s the subpoena that Mulvaney’s agency and DOD (the latter, after initially saying it would cooperate) are defying. It’s a subpoena that goes to the zenith of Congress’ authority, whether it is issued within or outside of an impeachment inquiry. But within an impeachment inquiry, it illustrates that on one issue of fact at the core of the investigation, there is bipartisan agreement that the White House was in the wrong.

And today, Mulvaney admitted that the White House did not have a very very good reason to withhold those funds, even while confirming that Trump was withholding the funds, in part, to extort a quid pro quo.

Even if the White House had a very very good reason, the law obliges the White House to explain to Congress why it blew off Congress’ power of the purse. The White House didn’t do it in real time — not even to Mitch McConnell. And the White House is refusing to do it now.

Update: Jack Goldsmith did a review of this issue in Lawfare today, but before the Mulvaney comments.

Update: Lisa Murkowski complained about this issue to Tim Mak today.

Military Intelligence Industrial Complex Providing 30% Bonuses to Potential HASC and HPSCI Chairs

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Because of Buck McKeon and Mike Rogers’ retirement this year, the Chairmanships of both the House Armed Services Committee and the House Intelligence Committee will be up for grabs early next year.

Roll Call decided to see how this was affecting funding for the contenders to replace McKeon and Rogers.Their results were pretty striking. HASC contenders Mac Thronberry and Randy Forbes and HPSCI contenders Devin Nunes and Mike Pompeo are experiencing significantly bigger hauls from defense contractors than in the past.

Four of the top five candidates for the chairmanships of the House Armed Services and Intelligence panels have raised considerably more money this election cycle than they did at a similar point in 2012. The same four have also raised much more money from the defense industry than before – in some cases, more than doubling their takes.

Most of them, too, have raised more money in the first full quarter since the departures of the incumbent chairmen became official, and donated more to other candidates and GOP party committees than in the last cycle.

[snip]

Thornberry, Forbes, Nunes and Pompeo each have raised at least 30 percent more through the first six quarters of the 2014 election cycle than they did over same period of 2012. Only King — who was Homeland Security chairman through 2012 — has raised less. Nunes has raised the most overall: $2 million.

Thornberry, Nunes and Pompeo have more than doubled in the current election cycle the amount they got from the defense sector over the same period in the 2012 election cycle, and Forbes has reaped 40 percent more, while King’s dipped. Thornberry has received the most overall — $344,350.

Thornberry, too, saw the biggest leap from the most recent fundraising quarter than ended in June compared with the same quarter in the 2012 cycle, 84 percent. Forbes and Pompeo also saw increases over that period.

Click through to see how McKeon and Rogers’ retirement announcements set off this boondoggle and how the take has allowed the contenders to fund their colleagues as well.

Ah, democracy as our forefathers intended! Where campaign bribery plays a key role in determining who will oversee the National Security State.

Shorter Mac Thornberry: the Armed Services Committees Do Oversight, Not Intelligence

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As Bobby Chesney lays out, the GOP Chair of the Intelligence, Emerging Threats and Capabilities Subcommittee of the House Armed Services Committee, Mac Thornberry, has introduced legislation to codify oversight over kill-or-capture missions. Before you read the actual legislation, it’s worth reading how Thornberry described the legislation to Craig Whitlock. According to Thornberry, this is mostly about codifying what is already in place, so that mere citizens will take comfort that the oversight is in place.

“We’ve been doing a lot of this oversight anyway,” Thornberry said in an interview. “But I think it is time, for a variety of reasons, to formalize that in statute and make it clear to the American people that it’s happening, because a lot of the oversight that has gone on, most people don’t know about it.”

[snip]

In recent years, the Armed Forces subcommittee has modified the military’s reporting requirements to keep up with changes in the nature of warfare, he said. Two years ago, lawmakers passed a measure requiring the Defense Department to provide a formal quarterly briefing on counterterrorism operations. Last year, it did the same for cyber operations.

“There’s been a comfort level that’s been achieved and that’s even an additional reason to say, ‘Okay, we’ve got this down to where it’s working pretty well, so let’s put it in statute so everybody knows,’ ” he said.

At one level, this seems like Thornberry’s just trying to claim credit for what is actually taking place (that’s a read Micah Zenko also had).

But with that claim — and Ron Wyden’s year-plus effort to get a list of all the countries we’re using targeted killing authorities in — consider this aspect of the legislation.

  • Section 130f(c) – defines “sensitive military operations” (SMOs) with four elements:
  1. Operation involves lethal force or attempt to capture
  2. Carried out by US armed forces (without respect, notably, to whether those armed forces are acting in a Title 10 or Title 50 capacity, thus closing an oversight gap that arguably emerged thanks to the Traditional Military Activities exception to the Title 50 covert action definition and also ensuring that SASC and HASC stay informed on a timely and relatively granular basis when it comes to SOF or other armed forces acting temporarily within a Title 50 framework; note that the language would not obviously encompass a “proxy force” scenario involving close support to direct action conducted by a foreign security service/military).
  3. Carried out abroad (but see section 130f(d) below, which excludes Afghanistan for now)
  4. Carried out under color of the 2001 AUMF or Article II authority (that is, generally applicable except in the event of some future AUMF or some future declaration of war; obviously this element could have interactions with a possible revision to the 2001 AUMF…in the event there is a revision to the 2001 AUMF, either this passage in the SMO oversight bill would need to be tweaked or else the AUMF renewal legislation should speak directly to the SMO scenario) [my emphasis]

The legislation requires the military to inform the Armed Services Committees of such SMOs after the fact. As Chesney describes, this is a similar, though not necessarily parallel, notification system as mandated by the National Security Act for CIA’s covert ops.

Section 130f(a) – requires written, post-hoc notification to SASC and HASC.  No specific deadline; the language is “promptly.”  Not necessary that POTUS sign it, so this is not quite analogous to notification to SSCI and HPSCI of covert action findings (though there are obvious parallels).

I tend to believe that last difference — that this notification requirement doesn’t mandate sign-off from the President — is a significant one, but maybe that’s because I’m obsessed with the way Obama has hidden Bush’s role in setting up the rendition and torture program.

In any case, given Thornberry’s and Wyden’s public comments, my takeaway from all this is that it serves silence concerns that the Intelligence Committees aren’t getting briefings on JSOC’s targeted killings (or the logic underlying the killings), because the Armed Services Committees are.

Well, fine.

But does that really satisfy oversight needs? Is there a reason for the Intelligence Committees to know everything that done under Title 50, even while the Armed Services Committees know of everything done by DOD? Given the overlap between Defense and Intelligence at this point, is there a reason to sustain this dual reporting (it seems the Intelligence Committees increasingly serve as a legal way to spread propaganda about secret programs). Is either of the committees able to perform independent oversight (Intelligence clearly isn’t; I suspect some on Armed Services are, but both committees are becoming increasingly means for politicians to tap into a steady stream of campaign donations).

Perhaps this legislation is just a means to make us comfortable with the current stance of the turf battle between these two committees. And I’m not actually opposed to codifying this, particularly the requirement that the Defense Secretary brief the committees on the targeting process (though I think it should be shared in unclassified form with the public).

I’m just not sure that it actually gives us adequate oversight.

 

The Cyberwar Campaign against Jihadi Literature and WikiLeaks

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Ellen Nakashima has a piece following up on the WSJ story previewing DOD’s cyberwar (which I posted on here). Before you read it, though, I wanted to suggest another reason we may be seeing this policy early (in addition to the hacking of all the defense contractors, now including L-3; and note, Nakashima references this legislation at the end of her article).

Last Thursday, the Defense Authorization bill passed the House. It retains Section 962, to which the Administration objected, which reads,

SEC. 962. MILITARY ACTIVITIES IN CYBERSPACE.

(a) AFFIRMATION.—Congress affirms that the Secretary of Defense is authorized to conduct military activities in cyberspace.

(b) AUTHORITY DESCRIBED.—The authority referred to in subsection (a) includes the authority to carry out a clandestine operation in cyberspace—

(1) in support of a military operation pursuant to the Authorization for Use of Military Force (50 U.S.C. 1541 note; Public Law 107–40) against a target located outside of the United States; or

(2) to defend against a cyber attack against an asset of the Department of Defense.

(c) BRIEFINGS ON ACTIVITIES.—Not later than 120 days after the date of the enactment of this Act, and quarterly thereafter, the Secretary of Defense shall provide a briefing to the Committees on Armed Services of the House of Representatives and the Senate on covered military cyberspace activities that the Department of Defense carried out during the preceding quarter.

(d) RULE OF CONSTRUCTION.—Nothing in this section shall be construed to limit the authority of the Secretary of Defense to conduct military activities in cyberspace.

So as you read Nakashima, remember that the Obama Administration objected to a section that authorized cyberwar in two circumstances–in support of an AUMF against a target outside of the US and in defense against a cyber attack on a DOD asset–and required quarterly briefings.

OK, now go read Nakashima.

Within the context of the Defense Authorization, a few points of DOD’s campaign to describe what they believe their cyberwar policy to be stick out. First, it envisions preparatory actions–basically spying on a presumably non-belligerent adversary’s infrastructure to map out how DOD would launch a cyberattack if the time came.

The framework clarifies, for instance, that the military needs presidential authorization to penetrate a foreign computer network and leave a cyber-virus that can be activated later. The military does not need such approval, however, to penetrate foreign networks for a variety of other activities. These include studying the cyber-capabilities of adversaries or examining how power plants or other networks operate. Military cyber-warriors can also, without presidential authorization, leave beacons to mark spots for later targeting by viruses, the official said.

In other words, DOD is indicating that it will engage in cyberwar activities outside of those authorized by Congress, activities which I’m sure they’re claiming fall under their “preparing the battlefield” giant loophole they use to engage in spywork.

Then there’s this:

Last year, for instance, U.S. intelligence officials learned of plans by an al-Qaeda affiliate to publish an online jihadist magazine in English called Inspire, according to numerous current and senior U.S. officials. And to some of those skilled in the emerging new world of cyber-warfare, Inspire seemed a natural target.

The head of the newly formed U.S. Cyber Command, Gen. Keith Alexander, argued that blocking the magazine was a legitimate counterterrorism target and would help protect U.S. troops overseas. But the CIA pushed back, arguing that it would expose sources and methods and disrupt an important source of intelligence. The proposal also rekindled a long-standing interagency struggle over whether disrupting a terrorist Web site overseas was a traditional military activity or a covert activity — and hence the prerogative of the CIA.

The CIA won out, and the proposal was rejected. But as the debate was underway within the U.S. government, British government cyber-warriors were moving forward with a plan.

As Nakashima goes onto explain, the British attack on Inspire managed to delay the publication of a bomb-making article in the magazine for two weeks. But it did eventually get published.

The Inspire story is fascinating not just because it reveals the ongoing turf war between DOD and CIA–and makes clear Mac Thornberry intends to let DOD win these battles.

But also, consider the cyberattack-which-shall-not-be-named: someone’s successful effort to ensure WikiLeaks couldn’t publish the State Department cables from a US server. The Inspire story makes it clear DOD is thinking in terms of take-downs of speech, which is precisely what the WL hack was.

And since WL was ultimately a compromise of DOD’s networks, it would solidly fall under the congressionally-defined defense “against a cyber attack against an asset of the Department of Defense.”

That is, it seems that Thornberry has authorized DOD to do things like hack WL. Congress seems to be in the business of helping the government exercise prior restraint.

That First Amendment sure was nice when we had it!

Though there’s just one weird aspect to this: DOD didn’t launch a cyberattack on WL when it compromised DOD resources: the Afghan and Iraq cables. Rather, it waited until all the DOD materials were already out, and then (we assume though don’t know) started attacking free speech to protect the State Department’s assets.

Anyway, all that prior restraint isn’t good enough, it seems, and the Administration is going to campaign for more lenient guidelines allowing DOD to wade through other countries’ infrastructure to figure out how to cyberattack them when the time comes.

I guess they can’t very well complain about the Lockheed and L-3 hacks then.