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Napolitano: We Still Need Comprehensive Cybersecurity Legislation

(Washington, DC)  Although President Obama plans to issue an executive order on cybersecurity, Congress still needs to pass comprehensive cybersecurity legislation, Department of Homeland Security (DHS) Secretary Janet Napolitano said today. Speaking at the Cybersecurity Summit hosted by the National Journal and Government Executive here, Napolitano said that “an executive order will help but we still need comprehensive cybersecurity legislation.”

An executive order can’t do a lot of things that legislation can do, such as give critical infrastructure industries liability protection or give DHS relief to offer higher civil service salaries in order to attract the much in-demand specialists the agency needs.  “Congress has had a full opportunity to act and that is the preference.  Any executive order cannot do what legislation can do but in the meantime there are things the president can do under existing authority,” she said.

Some Republicans and scholars have indeed challenged the President’s legal authority to issue an executive order on cybersecurity, a thorny and complex constitutional question that has arisen time and again when the administrative branch has taken action on matters without specific Congressional directives to do so.  One option for Obama is to issue the current order as a modification of an earlier, related executive order, arguably giving him greater legal justification for this latest action.

But, Napolitano said, the current order will instead likely be in the format of a new order, not a modification of an existing order.  When asked under what authority, if not Congressional directive, the new order will be issued she said that Article II of the Constitution, which grants the President executive power and assigns him responsibility as Commander in Chief of the military, is sufficient legal authority.  (CRS has a recent and concise overview and the history of executive orders in this PDF, including discussion of Article II authority.)

When the executive order will come out is unclear.  “I can’t give you a firm timeline,” Napolitano said.  The executive order is still in draft form and the “president has not yet had an opportunity to review it.”

On the subject of cyberwar, Napolitano advocated greater international collaboration in developing conventions of use, much the way countries have cooperated in developing accepted practices regarding traditional warfare.  “It’s time for the nations of the world to have some kind of opportunity to come together and look at a global convention...for having a safe cyber environment for everybody’s benefit.  That international dialog has been missing.”

Does Obama Dare to Issue a Cybersecurity Executive Order Before Election Day?

Next Monday, the Department of Homeland Security (DHS) kicks off National Cybersecurity Awareness Month, which features events and initiatives aimed at stressing the importance of good cyber security practices.  The timing of this annual event could not be more propitious given the mounting battle between President Obama and his Republican (and business lobby) adversaries over the expected, imminent executive order on cyber security the Administration has developed in the wake of failed cyber security legislation.

A  draft of the order was circulated earlier this month and it looks a lot like the Democratic-backed Cybersecurity Act of 2012, which was aimed at setting up government programs to ensure better cyber security information sharing for critical infrastructure industries.  (One major difference between the order and the Senate bill is that the order specifies by name 16 different sectors that constitute the “critical infrastructure” industries covered by the order, although energy and communications are spelled out upfront as “uniquely” critical sectors that cut across all the other industries.)

A growing number of developments hint that the executive order could come out any day now.  DHS Secretary Janet Napolitano told the Senate last week that the order is near completion, a host of current and former Pentagon officials are speaking out daily about the threat lax cyber security poses to the nation’s welfare while the Senate champion of the Cybersecurity Act, Joe Lieberman (I-CT) is pushing the president to get the order out the door.

Does all this add up to Obama issuing the executive order before the end of October?  Not exactly.  Despite the intense pressure and momentum, this is an election year and despite Obama’s current comfortable lead in the polls and the resulting lift for all Democratic contests, some smart insiders say the Administration won’t needlessly give Republicans any new ammunition before the polls close on Election Day by issuing what is already a controversial order.   Further dimming the order's pre-election day prospects are Republican rumblings of late that the Congress might still pass a bill before Inauguration Day.  Obama might be reluctant to look like he's pulling ahead of the legislative branch, even if it’s unlikely that the lame duck Congress can get the job done. 

On the other hand, the President could gain even more points in the polls by issuing the order, burnishing his already strong image on national defense.  But, if the smart money is right, look for an executive order no sooner than November 7.

Nod to Energy in Obama's Speech Tonight? Maybe, Even If It's "Boring"

Energy independence has been a staple of American presidential politics since the early 1980s, a hot button issue that nevertheless hasn't triggered the vitriolic level of discord between the two parties typical of other important (and not so important) issues.  High-wire fights over drilling and cap-and-trade notwithstanding, both parties are generally rowing in the same direction on energy independence and efficiency.

Over the past month both parties have embraced the "all-of-the-above" approach, a pragmatic view of energy issues, recognizing that the shift to renewable energy will be a longer slog than optimists thought.  At  a panel during the Democratic National Convention yesterday, Howard Dean, former Democratic Governor of Vermont and a one-time presidential contender himself acknowledged what Democrats have reluctantly embraced:  The country and the economy is dependent on non-renewable energy sources and will be for a long time.   "We're going to need petroleum for the foreseeable future," Dean said.

Still, it's a good idea for the government to push the country in the direction of non-renewable energy as much as is practicable, Dean said.  "I do think there are some reasons to spread out the use of this stuff and to minimize carbon footprint."

One barrier to the shift to renewable energy sources, or to lowering energy consumption, is that to most consumers "energy is boring," according to Art Lasky, President and Founder of consumer energy management company Opower, speaking on a separate panel at the DNC yesterday.  Although "90% of people at this convention and elsewhere would say saving money is important...the only time you think about energy in the home is when the power is out," he said, noting that research shows the average customer spends only six minutes per year actively engaged with their energy utility.

If that's the case, will Obama push energy issues high on his reelection agenda and will we hear much about energy in tonight's speech?  According to some sources, Obama plans to promote his track record on energy issues tonight, pointing to reduced oil imports, improved vehicle efficiency and more renewable energy generation.

In his now-revered nominating speech, Bill Clinton mentioned but only touched on energy, praising Obama's all-of-the-above energy strategy.  It's possible that because both parties seem to agree on the big points, or that most people think the topic is boring, that energy isn't a big issue this election season that will sway voters one way or the other.

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