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A 9/11 Commission Approach to the Russian Hack of the DNC

This post is the latest installment of our “Monday Reflections” feature, in which a different Just Security editor examines the big stories from the previous week or looks ahead to key developments on the horizon.

On the eve of the Democratic convention, WikiLeaks released thousands of stolen emails from the Democratic National Committee (DNC). The leak roiled the American election across the political spectrum. Democratic Leader Rep. Nancy Pelosi (Calif.) called the DNC hack “electronic Watergate.” Circumstances and evidence point to Russian intelligence services as the hackers. As Vice President Joe Biden might less delicately say: This is a big deal.

Russian interference in the U.S. political system calls for action by the intelligence community, law enforcement, and congressional committees. There is a paramount need for a credible factual accounting of the hack and its aftermath for the sake of policy formulation, our strategic posture, and democratic legitimacy. But Congress’s track record is not great in this arena. Therefore, these unique circumstances call for a 9/11 Commission-like entity to handle this investigation.

America views the DNC Hack through two primary lenses. The first lens is the 2016 Election. Nearly all players involved in the race were touched: from the DNC and its staff as victims of the hack, to Bernie Sanders’ supporters aggrieved by the emails’ content, to Hillary Clinton’s campaign being damaged by WikiLeaks’ release at her convention moment, to the Trump campaign’s efforts to capitalize on the discord. The leak led to Florida Rep. Debbie Wasserman Schultz’s (D-Fla.) resignation as DNC Chair. Shortly after, a number of other senior DNC staffers whose emails were leaked left the party committee shortly into Donna Brazile’s tenure as interim DNC Chair.  More recently, there have been reports that Russian entities targeted some Republicans’ emails as well, although to less political effect.

Russian meddling also plays out in more traditional American politics. Some prominent Trump advisers have ties to Russia and its allies. Trump has made puzzling policy pronouncements that are in line with Russian interests, such as his occasional comments questioning US commitment to the North Atlantic Treaty Organization (NATO). Even Republican leaders rebuked Trump’s NATO wavering. He was roundly criticized for publicly encouraging Russia to “find” more of Clinton’s emails. Just this week, Vice President Biden traveled to the Baltics to reassure US allies rattled by Trump’s suggestion he might walk away from them in the face of Russian aggression. Trump’s refusal to release his tax returns has fueled speculation that his business interests are heavily leveraged by Russian financing. The Clinton campaign is actively connecting these dots in its messaging, including openly speculating about Russian financing in television ads.

The other lens through which to view the DNC Hack is geopolitics. It is clear that Russian President Vladimir Putin prefers Trump to Clinton. Former US Ambassador to Russia Michael McFaul explained the geopolitical reasons for Putin’s Trump preference. In that column, he noted that the Russian state-controlled news organization Sputnik validated Trump’s incendiary claim that President Barack Obama “founded” the Islamic State and in a Tweet containing the hashtag #CrookedHillary.

Russian interference in the US election is the geopolitical passive-aggressive move par-excellence. According to a report by the New York Times, “American intelligence agencies have told the White House they now have ‘high confidence’ that the Russian government was behind” the DNC Hack. But it is hard to confront this kind aggression. No matter how many credible investigative analyses cast suspicion or confirm Russia as the culprit, it can issue denials.

Congress’s role

Congress has a number of oversight and investigative angles it can take, some of which are more constructive than others. Two facts contribute to the context in which congressional activity will take place: First, Russian involvement raises incredible stakes of national security and democratic legitimacy and second, partisan incentives in fall 2016 are incredibly, perhaps irresistibly, strong.

An additional dynamic: Legislators will be looking for ways to stake their claims to this high-profile topic by means of a jurisdictional nexus to their committee leadership roles. Such signals operate as a function of inter-committee rivalry and member jockeying. They also project a message to the public that the government is taking this issue seriously. A good example of this type of activity is the letter Sen. Tom Carper (D-Del.) wrote to Secretary Jeh Johnson, to “commend” him for announcing the Department of Homeland Security would undertake efforts “to better secure election systems at the state and local level.”

Congress has made a few initial moves in furtherance of its multilayered interests in the DNC Hack and Russian involvement.

First, lawmakers have an interest in knowing what has happened and whether a Russian intelligence operation may still be in progress.  At this point, information will come primarily from the executive branch and the media.  In fact, the most senior congressional leaders have known about the hack for some time.  According to Reuters, congressional leadership was briefed a year ago on the hacking targeting Democrats, but was unable to inform the hacking targets because the information was classified.  Now, there will be pressure on the executive branch to loop in the various committees with jurisdictional interests, starting with the Senate Select Committee on Intelligence (SSCI) and the House Permanent Select Committee on Intelligence (HPSCI).

Second, some in Congress will push for the executive branch to declassify and publicly declare the intelligence community’s judgement with respect to Russian attribution for the DNC hack. Sen. Diane Feinstein (D-Calif.) and Rep. Adam Schiff (D-Calif.), in their roles as the Ranking Members of Senate and House intelligence committees, known respectively as the SSCI and HPSCI, called on President Obama to “consider declassifying and releasing…any Intelligence Community assessments regarding the incident, including any that might illuminate potential Russian motivations for what would be an unprecedented interference in a U.S. Presidential race” in a July 27 letter. Over at Lawfare, Matt Tait makes an additional argument in favor of public attribution.

Third, Congress will conduct oversight of the executive branch responses to cybersecurity threats and Russian influence operations. Committees will assess the performance of the agencies within their oversight jurisdiction. Sometimes that will come in the form of criticism. Other times committees may try to shield an overseen agency from criticism it deems undue. (I wrote about this phenomenon here).

Fourth, Congress needs to factor what it learns into its legislative program. A number of committees are actively addressing data protection and cybersecurity threats. Congress will need to assess existing authorities, enforcement mechanisms, funding levels, and technological capabilities to see whether further legislation is warranted.

Fifth, some Democratic members will really try to focus on Trump. Rep. Eliot L. Engel (D-N.Y.), Ranking Member of the House Committee on Foreign Affairs, issued a press release castigating Trump for his comments “call[ing] on a hostile government to commit cyber crime in the United States.”  He concludes “I am now reaching out to my colleagues to determine what role Congress should play investigating Russian and other foreign interference in our political process.”

Similarly, Reps. Patrick Murphy (D-Fla.), Andre Carson (D-Ind.), and Eric Swalwell (D-Calif.) sent a letter to Rep. Jim Sensenbrenner (R-Wisc.), a House Judiciary Committee subcommittee chair, asking for an investigation. To their credit, they made a case for a legislative purpose to their requested investigation: “We request that you hold a hearing to determine whether there are appropriate federal criminal statutes and federal court jurisdiction to address individuals’ actions that encourage foreign actors to carry out cyberattacks against U.S. citizens and influence or manipulate our electoral process” Unfortunately, however, the focus of their requested investigation was too political, asking whether Trump committed crimes when he encouraged Russia to look for more of Hillary Clinton’s emails. The letter specifically references the Logan Act, the Espionage Act, and the Computer Fraud and Abuse Act to “determine if appropriate federal criminal statutes and court jurisdiction exist to prevent individuals from conspiring with foreign governments to undermine our democracy and target American citizens.” I would be remiss if I did not note that Murphy is also running against Sen. Marco Rubio (R-Fla.).

While there may be some legitimate lines of inquiry related to the Trump campaign and Russian influence, there is no way to disentangle the inherent partisanship of the presidential election from the factual inquiry. Congress would serve the country far better if it focuses its investigative attention and power on the illegal hack and theft of DNC records and the Russian influence allegations. It would undermine Congress’s credibility by attacking the GOP nominee by means of a congressional oversight platform. One need only look to the congressional Benghazi investigations.  The relentless political focus of the House GOP on Clinton has been one of Congress’s great oversight embarrassments.

There is precedent for congressional investigations of improper foreign influences in domestic affairs. I recently wrote about the Red Scare as one infamous example. More recently, Chinese efforts to influence the 1996 presidential election helped trigger criminal and congressional investigations during President Bill Clinton’s second term. Those allegations most prominently focused on several straw political contributions made by nuns at a Buddhist Temple in California that Vice President Al Gore visited during the campaign. Republicans focused attention on Vice President Gore (my then boss) with unmistakable reference to his 2000 presidential campaign. Democrats should not make the same mistake by making Trump-as-villian the foregone conclusion of congressional investigation.

For Congress, this is an extraordinarily sensitive investigation.  There are clear, unhelpful partisan incentives. Any investigation will also touch caches of otherwise confidential Democratic Party information including protected political speech and associational behavior.

War on the Rocks published an open letter to congressional leadership by one largely Republican group of national security professionals. They “urge the appropriate congressional committees to launch an immediate investigation into the reported Russian cyberattack on the Democratic National Committee’s computer system.”  They also declare:

This is not a partisan issue. The foreign attack was an assault on the integrity of the entire American political process. Instead of focusing on who may have benefited and who was damaged, the investigation should focus on discovering the facts concerning the role of Russian intelligence in the hacking, whether others were involved, and the role of Wikileaks in disseminating the stolen information.

I could not agree more. The United States deserves an accounting of what has been happening this cycle that is bipartisan, credible, and fact-based.

I would recommend that Congress establish a blue ribbon investigative commission in the model of the 9/11 Commission, with a budget and mandate that extends into next year regardless of which party holds the House and Senate gavels after the election. This body should be comprised of serious foreign policy and law enforcement leaders with a small but highly professional investigative staff that is cleared to review the appropriate intelligence materials. Congress should provide it with subpoena power. This commission should then report its findings late next year to Congress and the Executive Branch, with a declassified report mandate for public consumption.

Confidence in the process leads to confidence in conclusions. This “electronic Watergate” is a matter of geopolitical significance. Americans deserve answers.

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About the Author

Professor at Savannah Law School, Former Associate Counsel to the President in the White House Counsel’s Office Follow him on Twitter (@AndyMcCanse).