National Cyber Director Hearing

The primary committee of jurisdiction over a bill to create a White House Cyber Director held a hearing on the ramifications of creating just such a position.

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On 14 July, the House Oversight and Reform Committee held a virtual hearing to discuss the recently introduced “National Cyber Director Act” (H.R.7331) that would implement one of the Cyberspace Solarium Commission’s (CSC) most significant recommendations. Representative James Langevin (D-RI), who served on the CSC, introduced the bill a few weeks ago when it appeared clear that neither Armed Services Committee will include the CSC’s recommendation that a position be established inside the Executive Office of the President of a National Cyber Director to coordinate much of the United States’ cyber policy that would need to be confirmed by the Senate. Langevin and a number of others submitted an amendment to the House Rules Committee for consideration of the “William M. (Mac) Thornberry National Defense Authorization Act (NDAA) for Fiscal Year 2021” (H.R.6395) that would add H.R.7331 to the House’s FY 2021 NDAA. It is possible this amendment is made in order and will be debated on the House floor when the chamber turns to H.R.6395, which could happen as soon as next week.

The holding of this hearing is likely part of an effort to convince House Democratic Leadership and the House Rules and Armed Services Committees of the support for H.R.7331 so that it can be debated during consideration of the FY 2021 NDAA. The chair of the House Oversight and Reform Committee cosponsored Langevin’s amendment as did a number of Republicans, demonstrating its bipartisan nature. Also, having held a hearing at which a number of witnesses endorsed the idea will lend further weight to it being allowed to be offered to the annual Department of Defense policy package.

The Senate’s NDAA does not include language establishing a National Cyber Director position. Rather, the “National Defense Authorization Act for Fiscal Year 2021“ (S.4049) would require “the  Secretary  of  Defense,  in  coordination  with  the Secretary  of  Homeland  Security,  shall  seek  to  enter  into  an  agreement  with  an  independent  organization  with  relevant expertise in cyber policy and governmental organization  to  conduct  and  complete  an  assessment  of  the  feasibility and advisability of establishing a National Cyber Director.” It is possible that CSC co-chair Senator Angus King (I-ME) succeeds in getting this recommendation included in the Senate’s FY 2021 NDAA when the body continues with debate next week.

Chair Carolyn Maloney (D-NY) stated

Cyberattacks are a critical, complex, prevalent, and growing threat to the nation’s safety and economic security, touching nearly every aspect of our lives. This assessment was upheld by recent findings from the U.S. Cyberspace Solarium Commission, which was established by the 2019 National Defense Authorization Act to review the state of our cybersecurity posture and develop bipartisan solutions for defending America against cyberthreats.  This commission of Congressional, Executive Branch, and private sector cybersecurity leaders sounded the alarm that, in addition to millions of intrusions that disrupt operations in America on a daily basis, we remain vulnerable to catastrophic attacks on critical infrastructure and economic systems that could cause widespread damage and death.

Maloney noted “[a] number of the commission’s recommendations fall within the legislative jurisdiction of this Committee…[and] [t]his includes one that has sparked a high level of interest on both sides of the aisle—the recommendation for a centralized cybersecurity position at the White House to develop and streamline the federal government’s strategy, coordination, and response to cyberthreats.” She said that “[t]his role was first formalized during the George W. Bush Administration, and then elevated and expanded during the Obama Administration…[b]ut in 2018, then-National Security Adviser John Bolton eliminated the role, reportedly to cut “another layer of bureaucracy.”

Maloney said that “we will review H.R. 7331, which would implement the Commission’s recommendation to establish a National Cyber Director in the Executive Office of the President.” She said that “[t]his new position would restore that cyber coordination and planning function at the White House…[and] [i]n addition, for the first time, it would be backed with resources and statutory authority to lead strategic planning efforts, review cybersecurity budgets, and coordinate national incident response.” Maloney stated “[a] challenge as complex and pervasive as cybersecurity requires that our government be strategic, organized, and ready…[and] Democrats and Republicans agree we need a National Cyber Director to ensure we are fully prepared for, and coordinated in, our response to cyberattacks as our nation fights this silent war.” She explained “[o]ur mission today is to gain a detailed understanding of the threats we face, and to thoroughly examine H.R. 7331 as the vehicle for preparing our country against those threats.”

Ranking Member James Comer (R-KY) said the federal cyber domain is dispersed with varying jurisdictions and expertise among agencies organized to fight cyber-crime, defend national security, and support the private sector’s critical cyber infrastructure. He noted the increasingly reliance in the US on technology and growing inter-connected nature of the American economy. Comer said foreign actors, terrorist groups, domestic agitators, and criminal enterprises all have a vested interest in exploiting US networks. Comer said the remote operations of the pandemic have created new cyber vulnerabilities that malicious actors are taking advantage of. He added the same threats face private sector and state, local, tribal, and territorial governments. Comer stressed that fostering relationships across the private sector and state and local partners, vital cyber threat information can be shared that helps secure critical infrastructure.

Comer noted the witnesses have vast experience in combatting cyber threats from nations like the People’s Republic of China (PRC) that has historically hacked into agencies like the Federal Deposit Insurance Corporation, stolen intellectual property, and paid professors and researchers for research and development information. He stated he would welcome the opportunity to work with Democrats to hold the PRC accountable for these bad acts as well as their deceptive tactics over the course of the COVID-19 pandemic. Comer said the present hearing would, instead, examine a proposal to create a National Cyber Director. He stressed that Members have a duty to be good stewards of taxpayer dollars and not create more bureaucracy. Comer commended the Trump’s Administration’s performance in fending off threats to medical and health facilities and to teleworkers during the pandemic.

Comer asked whether it is truly necessary to establish a new position to coordinate cybersecurity, and, if so, would this official actually have the authority necessary to execute her responsibilities. Moreover, will other stakeholders fall in line and work in harmony, he asked. Comer said it is already he case the multiple federal agencies have cybersecurity jurisdiction and wondered whether another official would help the US government’s cyber posture. He expressed his concern that the bill may create a duplicative, bureaucratic layer of government that will hinder future responses to cyber-attacks.

Representatives and CSC Members James Langevin (D-RI) and Mike Gallagher (R-WI) claimed

First and foremost, the Executive Branch must establish a National Cyber Director to centralize and coordinate the cybersecurity mission at the national level. The National Cyber Director would work among Federal departments and agencies to bring coherence in both in the development of cybersecurity policy and strategy and in its execution. The position would provide clear leadership in the White House and signal cybersecurity is an enduring priority in U.S. national security strategy.

Langevin and Gallagher stated “[l]ooking at the history and the current structure of the Executive Branch, four clear institutional challenges emerge:

• First, the Federal government lacks consistent, institutionalized leadership in the White House on cybersecurity strategy and policy.
• Second, due to the absence of a consistent advocate, cybersecurity is inconsistently prioritized in the context of national security.
• Third, the United States lacks a coordinated, cohesive, and clear strategic vision for cyber.
• Fourth, the lack of centralized Executive Branch leadership complicates and prevents effective congressional oversight. In the March 2020 Commission report, the Commission recognized the need for a single individual at the highest level in the Federal government to take on these responsibilities.

Langevin and Gallagher explained

On the issue of whether to recommend the creation of new Executive Branch structures, or strengthen the existing structures, the Commission explored several different options. These models included the creation of a new cabinet department for cyber led by a Secretary, an independent agency for cyber led by a Director reporting to an existing cabinet department, an equivalent to a Homeland Security Advisor for cyber within the National Security Council, or a new office within the White House Executive Office of the President (EOP) led by a Director. Ultimately, the Commission decided that the Federal government would be better served by strengthening existing department and agency efforts in cybersecurity, including strengthening CISA and Sector-Specific Agencies, rather than the creation of a new department. While the creation of a new cabinet department or independent agency would give the position gravitas, the Commission recognized the protracted development of a new department would prevent, or even eliminate, much-needed near-term progress.

Cyber Threat Alliance President and Chief Executive Officer Michael Daniel claimed “we have reached the point where making more than incremental progress will prove difficult unless we address at least four impediments:

• First, cybersecurity’s cross-cutting nature does not fit with the US government’s bureaucratic structure, making the issue difficult to deal with during policy development. 
• Second, agencies are not incentivized to sustain the degree of coordination required for effective cybersecurity over the long term. 
• Third, a lack of central coordination hinders effective incident response actions. 
• Fourth, cybersecurity’s complexity and unusual nature make it tough for the President and other senior leaders to tackle without access to expertise. 

Daniel stated “[a]ddressing these impediments would be challenging under normal circumstances, but this Administration has chosen to take a step backward by eliminating the cybersecurity coordinator position at the White House, which makes it even harder.” He said that “[c]learly, no single policy action will solve these problems…[and] [t]hey are too complicated for a one-shot solution.” Daniel said “[t]hat said, creating a position like a National Cyber Director along the lines the Cyberspace Solarium Commission recommends or that Representative Langevin has proposed is a necessary part of the solution.”

Daniel asserted

• Cybersecurity is a strategic, national level problem that defies easy categorization.  Cyberspace and the Internet are permanent features of our society, economy, public safety, and national security.  We will not “solve” our cybersecurity problems; cyber threats are now a permanent feature in society and international relations.  Instead, we will manage and mitigate the threat.  Thus, we need a strategic level leader focused on this problem with a government-wide perspective.  Moreover, we will need a national cyber director for the long-term. 
• The EOP is the only part of the executive branch with a sufficiently broad scope to look across all the different aspects of cybersecurity.  It is the only part of the executive branch that can overcome the “you’re not the boss of me” effect and incentivize agencies to engage in regular, sustained, and intense coordination. It is the logical place to organize a cyber crisis response because it can serve as a neutral, inter-agency hub and activate resources across the entire Federal government. Finally, it is the primary organization for direct Presidential advisors.

Daniel said that “[a]s Congress debates this issue, I would urge it to consider certain parameters in crafting the position: The NCD Office should be big enough to run effective processes, but not so big that it tries to be operational.” He claimed “[i]f we want the office to succeed, then it cannot be so small that the staff do not have time to do anything right…[and] [o]n the other hand, it should not be so large that its staff are tempted to try to run operations directly.” Daniel stated that “[t]he NCD Office should integrate tightly with OMB’s budget process and NSC’s policy process, otherwise it will be irrelevant.”

Daniel stated

• The NCD Office should have insight into and a policy oversight role for all Federal government cyber functions, including military, intelligence, or law enforcement activities; this insight must extend to offensive cyber operations. We cannot exclude those activities from the NCD’s purview and expect the position to succeed. For the record, I strongly support the independence of indictment and prosecutorial decisions from the White House, but that separation does not mean the NCD should not understand what law enforcement operations are occurring or influence our strategic level policy toward cybercrime. If the NCD only has oversight and coordination roles for network defense activities and working with the private sector, then the position would largely duplicate the CISA director, which we do not need.
• NCD staff should not participate in policy execution. Law enforcement agencies investigates and prosecutes crime, intelligence agencies collect information, the military conducts offensive cyber operations, and the sector specific agencies work with their industries. Policy execution should remain the domain of the departments and agencies.
• The office will need a clear relationship with the Federal Chief Information Security Officer (CISO). This existing office has worked hard to improve the security of Federal networks. The NCD’s office will need to work closely with the Federal CISO to ensure that Federal agencies are following the general guidance and advice the government gives the private sector. We must walk our talk.

Tenable Chairman and CEO Amit Yoran stated

Beyond the authorities already included in H.R. 7331, I recommend additional authorities for the National Cyber Director that would improve the nation’s cybersecurity risk management for both the public and private sectors. These additional authorities include developing a national encryption policy, managing the Vulnerabilities Equities Process (VEP), coordinating with regulatory entities, driving cybersecurity workforce development, and leading all international cybersecurity efforts, to include the development of international cyber strategies and international engagement.

Yoran added that

The Cyberspace Solarium Report also included recommendations on how to further strengthen the Cybersecurity Infrastructure Security Agency (CISA) in order to ensure the national resilience of critical infrastructure, promote a more secure cyber ecosystem and serve as the central civilian authority to support federal, state, local and private sector cybersecurity efforts. CISA has established information sharing capabilities across the government, provides technical assistance to cybersecurity operators in the public and private sectors, and engages stakeholders both inside and outside the federal government. However, CISA’s role has clear limitations:

• CISA’s convening power is not widely understood or consistently recognized.
• CISA does not have jurisdiction over law enforcement, the Department of Defense or federal intelligence agencies, which are all critical pieces of a unified approach to U.S. cyber defense, nor are these organizations required to collaborate and share their activities with CISA.
• CISA does not have the budget or the analytic capacity to assess, plan for and lead a unified effort to mitigate national systemic cyber risk.

Yoran said that “[t]he creation of the National Cybersecurity Director role should be done in conjunction with efforts to empower and appropriately resource CISA as a critical player to improve the nation’s cybersecurity.” He contended “[t]o strengthen CISA, Congress should elevate the Director position as recommended by the Cyberspace Solarium Commission and provide additional funding and program support that will enable the organization to enhance current operations.” Yoran stated that “[a]n expanded budget would also allow CISA to increase funding for the Continuous Diagnostics and Mitigation (CDM) program in order to meet surge capacity to protect .gov networks, support state and local cybersecurity networks and systems, and expand other programs that support the private sector, including many of the public-private operations that comprise the U.S. critical infrastructure.”

George Mason University’s National Security Institute Founder & Executive Director Jamil Jaffer stated

• Given the general agreement that such [cyber] coordination is advisable, and indeed, necessary, one needs wonder why the Commission’s approach might be controversial.  The first and most obvious issue that would likely trouble any White House—regardless of political party and relationship with Congress—is the idea of having yet another Senate-confirmed appointee in the White House Office. 
• The challenge, of course, with a National Cyber Director, particularly as it relates to a position in the White House Office and as described in H.R. 7331, is that this individual would have responsibilities that are generally understood by Presidents to be squarely in their control, namely matters related to the execution of the President’s textual Commander-in-Chief responsibilities. And while Congress may certainly argue that it has a number of textual commitments in this area also, like the declaration of war authority and the provisioning of the armed forces, the reality is that Presidents have long taken the view that matters of national security decisionmaking, particularly in the White House, are firmly committed to their discretion.  Thus, it is likely that any President, regardless of party or relationship with Congress, would be strongly opposed to Senate-confirmation of such an individual and, if such confirmation was ultimately required, it may actually undermine rather than buttress the individual position’s influence and role within the White House.
• Moreover, making such a position Senate-confirmed essentially seeks to elevate it to an Assistant to the President role, namely a principal officer inside the White House Office. The challenge with doing so, of course, is that the vast majority of issues such an individual would deal with likely also fall squarely within the ambit of the existing responsibilities of the Assistant to the President for National Security (i.e., the National Security Advisor). 
• The legislation clearly envisions the former approach—that is, direct advice to the President—which could very well create its own set of coordination and integration challenges within the White House and with the interagency. This challenge is enhanced, in particular, when it comes to areas of clear overlap between existing White House officials like the National Security Advisor (e.g., in the case of offensive and defensive cyber operations), as well as the Director of OMB (e.g., in the case of budgetary authority). Where the situation becomes even more problematic, however, is where the NCD’s assigned authorities appear to directly conflict with the authorities of another cabinet-level official. 
• Finally, the size of the office likewise presents its own challenges.  While it is true that the USTR has an office of over 200 individuals and OMB has nearly 500, even at 75 authorized individuals, when one adds in the authority for other outside experts, consultants, and other government agency personnel in support, this number is likely to be viewed as too high for the mission.  This is particularly the case given that such an office would be roughly1/3 the size of the entire National Security Council staff, which itself is currently seen as fairly bloated (even after the Trump-directed staff reductions in 2019)

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