Friday News Analysis — September 28, 2018: A Delay in the Kavanaugh Confirmation; New DOD Cyber Strategy; Trump’s UN Speech & Press Conference; and Stories You May Have Missed
The sun is finally shining in Washington, D.C., and it finally feels like fall. With a great sports weekend ahead—great college matchups and baseball pennant races—many are welcoming a break from a week full of headlines. In this Friday’s analysis we look at what the 11th-hour delay in the Kavanaugh confirmation means; how the Pentagon’s new cyber strategy raises a lot of outstanding questions; what the President’s speech to the UN General Assembly and his press conference mean; and some stories that you may have missed.
This week, we also welcome two of our all-star fall interns to the Friday News Analysis with contributions from Katherine Atherton and Charlie Cousar!
After a Week of Kavanaugh Confirmation Drama, a One-Week Delay
This week was marked by the unprecedented Senate Judiciary Committee hearing to address the allegations of sexual assault by Judge Brett Kavanaugh put forward by Dr. Christine Blasey Ford. Until Friday afternoon, the narrative seemed to be that the measured, composed testimony of Dr. Ford — and Judge Kavanaugh’s vehement denial of the accusations — would not be enough to delay or derail his confirmation to the court.
Even if Judge Kavanaugh were to be confirmed, likely on party-line votes, the cloud of these allegations and the extreme partisanship of the process would be a black mark on the legitimacy of the Senate’s advise and consent role, as well as the legitimacy of the Supreme Court.
Even with the hearings by the Senate, a repeated point of dispute was the absence of an FBI investigation into the charges. Democrats blamed Republicans for wanting to hurry up the Kavanaugh nomination, while Republicans blamed the Democrats for sitting on the allegations until they would be most disruptive — despite Dr. Ford’s request for confidentiality. On an emotionally-charged Thursday, neither side of the dais was bathed in glory.
Dr. Ford will be remembered as a brave, compelling witness, and hopefully her example will prompt a turning point in how our nation addresses those who have suffered from sexual assault.
As the process continued into the committee vote on Friday afternoon, further drama was added to an already dramatic proceeding. Republican Senator Jeff Flake of Arizona — soon to leave the Senate after his open disagreements with President Trump — announced that he would vote for Judge Kavanaugh’s nomination to advance to the floor, but not commit to vote for Kavanaugh on the floor until a week’s delay was allowed for the FBI to investigate. As of writing this article, Senators Murkowski and Manchin have joined in supporting Senator Flake’s request for a delay.
With a 51–49 edge in the Senate, the question remains whether Majority Leader McConnell will push for a vote to go ahead, on-schedule, and risk a loss without the support of these swing Senators. With a week to investigate, an FBI investigation may allow for a more thorough investigation of Dr. Ford’s allegations and an opportunity to interview those who were allegedly present at the party where Dr. Ford claims the assault took place.
The investigation could discover something — it could equally discover nothing else. That said, the fact that an investigation takes place is important to the legitimacy of the Senate, the legitimacy of the court, and most importantly to establish further details about the incident that has sullied the reputations of Dr. Ford and Judge Kavanaugh. For the sake of all of these factors, Senator Flake was right to use his position to force a delay.
More Questions than Answers with Pentagon’s new Cyber Strategy
Last week, the Pentagon released the unclassified summary of “The Department of Defense Cyber Strategy 2018.” The new document reflects an important maturation in the DoD’s thinking about what it calls “the cyberspace domain” — a term of art that links the digital world with the traditional domains (air, land, sea, and space) where the military conducts operations — relative to the previous strategy that was published in 2015. As with the National Defense Strategy and the National Military Strategy, the Defense Cyber Strategy is more focused on great power competition with Russia and China than was the strategy released during the Obama Administration and contemplates a more active role for military and defense assets in both a possible wartime scenario and the “day-to-day competition” with adversary states.
The biggest single change is the emphasis in the new document on “forward defense.” The strategy says, “we will defend forward[sic] to disrupt or halt malicious cyber activity at its source”. This means that the Defense Department will actively seek to infiltrate the networks of adversary states to limit their ability to conduct malicious attacks on American networks. As Robert Chesney points out in Lawfare, this dovetails well with a provision in this years National Defense Authorization Act that gives the military the authority to “disrupt, defeat, and deter” attacks against “the Government or people of the United States in cyberspace,” and specifically mentions Russian efforts to influence American electoral processes.
One interesting element of this change is that it is necessarily preventative in nature, as opposed to the 2015 strategy that emphasized preparation and reaction. There have been several statements from the Trump administration that they will loosen the cyber rules of engagement and make it easier for the military to engage in cyberattacks against adversaries. Critics have argued that this increases the risks of escalation. An adversary could detect the U.S. military in one of its computer networks and decide that this is the first phase of a disabling attack — thus deciding that they need to try to disrupt key American capabilities first.
There are good reasons to be skeptical of this view. As Erica Borghard and Shawn Lonergan from the Army Cyber Institute pointed out, attribution of a cyber attack is very challenging and it might be difficult for an adversary to know whether a detected breach is intended to disrupt networks or merely collect intelligence. Furthermore, cyberattack tools tend to be exquisitely crafted for a particular target (for example, the Stuxnet attack on Iran’s uranium enrichment facilities was tailored to the specific equipment in a single facility in Iran, and was developed over an extended period of time). Since the Cyber Strategy also highlights that the Defense Department will work more closely with companies that operate “Defense Critical Infrastructure,” there will also be a more contested threat environment for an adversaries cyber tools. This could combine to mean that it would be difficult for that kind of escalation to take place.
As part of the Defense Department’s expanded mission in the cyber domain, the Cyber Strategy also highlights that there are cyberattacks that could constitute a use of force against the United States. “Should deterrence fail,” the document states, “the Joint Force stands ready to employ the full range of military capabilities in response.” Because we only have the unclassified summary of this document, we do not know what would provoke a response in a physical domain. Cyber weapons are not inherently violent and political — as opposed to physical weapons — so the link that the military is implying between the two is not necessarily clear. It is also a question that is worth asking: knowing that the United States might respond to a particular kind of attack with physical force would serve as an effective deterrent and, conversely, being coy about what would constitute a use of force risks miscalculation and crisis.
Since 2015, the threat environment in cyberspace has become more complicated, but the Defense Department has also greatly increased its investments in both personnel and systems. The free and open global internet is an important source of American national strength, but is also a vector for adversaries to attack. It is encouraging that the Defense Department’s thinking has advanced on how to conduct missions in this domain, but it is not finished and it will be up to watchdogs and legislative overseers to press the military to come up with rules of engagement that clearly communicate what and how the United States seeks to defend the cyber domain of operations.
Two Spectacles, Both Alike in Indignity
Quickly overshadowed by the events of Thursday and Friday, it is easy to forget the remarkable events in New York with President Trump’s Tuesday speech to the UN General Assembly and his Wednesday evening press conference. It is clear from these events that President Trump feels as empowered as ever to “let Trump be Trump.”
In his speech to the UN General Assembly, he discovered that the assembled diplomats and world leaders were a different audience than the usual campaign rally crowd, as his claims that “[his] administration has accomplished more than almost any administration in the history of our country” were met with laughter. While the rest of the speech defended the Trump Administration’s approach to trade and international relations — demonstrating that the influence of advisors like Gary Cohn, H.R. McMaster, and Rex Tillerson is long gone — it was the statements on sovereignty that were the most notable.
Demonstrating that President Trump has no patience for the international order that the United States and our allies have built, he spoke of a doctrine of sovereignty and respect for sovereignty. It almost seemed cribbed from the statements that Chinese leaders make when they are angered by international support for Taiwan or Tibet or criticism of the Chinese human rights record. Of course, following his full-throated support for sovereignty, he also decried many of the policies of other sovereign governments. It suggests that the Trump doctrine, if there is one, is to respect sovereignty until President Trump disagrees with your decision.
Following the General Assembly speech and days of meetings with world leaders, President Trump held a freewheeling press conference, fielding questions from an international press corps, including one reporter from Iraqi Kurdistan that the President dubbed “Mr. Kurd” — and one reporter with a website that peddles in anti-Semitic conspiracy theories. All par for the course in 2018, right?
It’s not hard to see that the President is energized by parrying with the media. It is likely that he welcomed it in a week where the attention was focused on the Kavanaugh controversy and the lukewarm reception to his General Assembly speech. He knows that the controversies will be reported by the mainstream media, but he also knows how well the image of President Trump handling a back-and-forth with a hostile media plays with his base.
What is lost in these events are two key aspects of presidential leadership — the global position as “leader of the free world” and the domestic “bully pulpit.” By turning his back on the concepts of a rules-based global order, economic ties, and the values shared with our closest allies, President Trump continues to shake up the global order. President Trump is correct when he suggests that we are entering an era where great power politics is returning, and there are areas where the trade agreements can be reformed and modernized for the benefit of the American economy. However, just because 19th century-style geopolitics are returning doesn’t meant that it the realities of the 21st century can be ignored. The United States is a key part of a globalized economy and benefits from it. The United States is stronger because of the ties and alliances it has built with partners — not weaker. At home, the press conference shows that the president’s focus remains on his base and driving the narrative of his conflict with the media. It does nothing to bridge the tribalism and partisanship of American politics.
We have long decried the “permanent campaign” — we never imagined that the president would be a permanent campaigner.
Stories You May Have Missed
On Wednesday, the Senate Committee on Commerce, Science and Transportation held a hearing regarding consumer data privacy in which executives from top technology firms gave testimonies in regard to what they would like to see in terms of federal privacy legislation. This hearing comes in the wake of Uber’s $148 million settlement to all 50 states and D.C. due to a data breach in 2016 that led the exposure of 57 million consumer’s personal information.
The future of the North American Free Trade Agreement (NAFTA), a trilateral deal signed in 1994 by Canada, Mexico and the U.S., appears to be in serious jeopardy. The prospect of a tit-for-tat, tariff war between Ottawa and Washington should be alarming to everyone involved. Canada is arguably America’s closest ally, and its second largest trading partner after China. In 2017, the cross border flow of goods & services between the U.S. and its northern neighbor was estimated at $673 billion. It is in both countries’ best interest to find a way to maintain the NAFTA framework, while addressing these longstanding grievances.
While arguing that increased climate change is inevitable—and therefore that more stringent fuel economy standards are unnecessary—buried in the policy document is the Trump Administration’s admission that the global climate will warm by 7-degrees Fahrenheit, or about 4-degrees celsius. Projections of such warming suggest even more devastating hurricanes and wildfires, and the risk of severe damage to coastal cities like New York and Miami.