Tag: White House

Biden Signs Largest Climate and Resiliency Infrastructure Bill in U.S. History

Today President Biden signed H.R. 3684, the “Infrastructure Investment and Jobs Act” (IIJA), into law after months of negotiations on both the bill itself and the still pending “Build Back Better Act”. These two measures encapsulate the Biden Administration’s legislative priorities, many of which were rolled out during the campaign. The U.S. Senate passed the IIJA on August 10 by a vote of 69-30. Last week, on November 5, the House of Representatives passed the measure by a vote of 228-206. The months long negotiations resulted in bipartisan support for the IIJA in both the House and Senate.

Broadly, the IIJA:

Provides Funding: The funds provided are appropriated dollars, allowing Executive Branch agencies to distribute funds without further legislative action. The funds provided are for both new and existing federal programs for surface transportation, energy infrastructure, transportation safety, transit, broadband, ports and waterways, airports, drinking water and wastewater. ​

Expedites Permitting: There are several new programs created to support transmission development and streamline the permitting of new energy infrastructure, such as electric transmission

Provides New Authorities and Creates New Programs: Various federal agencies are required to develop new programs and processes, all aimed at deploying clean energy or improving cybersecurity​.

The IIJA represents a monumental investment in all types of infrastructure. However, most significantly, it will provide the largest federal investment since the New Deal in the Nation’s infrastructure and in developing the tools to curb carbon emissions and harden infrastructure to increase resiliency against the current global challenge of climate change. The Department of Energy and other federal agencies will receive $65 billion for power and grid related programs, including grid infrastructure, resiliency investments, clean energy demonstration projects and cybersecurity. An additional $7.5 billion will be available for alternative fueling infrastructure for grants to build public fueling systems, including electric and hydrogen fuels, establish alternative fuel corridors, and find ways to recycle used electric vehicle batteries to be reused as energy storage devices.

In July, our team shared the details of the bill passed by the Senate Energy and Natural Resources Committee. As signed into law, this earlier summary still accurately reflects the details of the funding that will be provided.

Implementation and Timing of Funding: Agencies will now be tasked with standing-up new or expanding existing programs to award federal funds to eligible infrastructure projects. Agency offices will work over the coming weeks to establish grant program parameters, develop, and publish solicitations for applications, set timelines for awards and oversee implementation of awarded funds.

The IIJA included deadlines for some agency actions, requiring that programs be established in 60, 90, or 180 days. Note that many of the agency offices, particularly within the Department of Energy, remain functioning without political appointees. For instance, the Office of Electricity, which will be responsible for issuing $3 billion in grants through the Smart Grid Investment Matching Grant Program, is operating under an Acting Assistant Secretary until the Senate confirms the Biden Administration’s nominee for that post. There are no legal or political impediments to getting funding programs up and running without a political appointee heading any federal office, but political influence on the pace and timing for the process may be limited.

Certain programs will automatically send funds to states through existing formula funding programs. Formula grant programs are non-competitive awards based on a predetermined formula. These programs are sometimes referred to as state-administered programs and are found throughout the federal government. Examples include the Environmental Protection Agency’s Clean and Drinking Water State Revolving Loan program, and the Department of Transportation’s Formula Funds for Rural Areas, and Buses and Bus Facilities formula grants programs. Once the states have received their federal allocations they will then make those funds available through their existing award structure, which may be competitive or formula-based.

How Your Organization Can Apply for Federal Funding Opportunities: As agencies establish parameters for new programs or develop solicitations for existing programs, it is important to engage with the agencies in this process to ensure your project will meet agency program criteria for a funding award, and to ensure solicitations are designed to support your infrastructure projects. Our professionals have had significant success in assisting clients through these processes, and successfully assisted clients in the development of grant applications for awards under both Democratic and Republican Administrations. Contact any of our professionals to learn more about what grant programs your organization may be eligible for, how to engage with the agencies, as well as apply and partner with the federal government to ensure funding is awarded for your project.

What’s Next, Human Infrastructure: The IIJA represents only the provisions in the Biden agenda that were able to earn bipartisan support. The remainder of the President’s priorities are encapsulated in a Budget Reconciliation bill, H.R. 5376, the “Build Back Better Act”, (BBBA) developed by House and Senate Democrats and requiring only a 50-vote threshold in the Senate.

For months, the Build Back Better Act and IIJA and were linked in the legislative process by President Biden and House Speaker Nancy Pelosi (D-CA) who demanded that one not pass without the other. This approach resulted in a rift between the Democratic Party’s moderate and progressive members. While the final outcome for the IIJA resulted in bipartisan votes in both the House and Senate, passage only came after a deal was struck between moderates and progressives within the Democratic Caucus to decouple the IIJA and the “Build Back Better Act”.

House Speaker Nancy Pelosi has publicly said that the “Build Back Better Act” will be brought to the House Floor during the week of November 15. Senate Leadership has made no such promise for timely action. In addition, some House Democrats and some Senators have announced they want to see the details of budget scoring – what individual provisions will cost – from the Congressional Budget Office (CBO) and the Joint Tax Committee – before proceeding. Some limited data has begun to be released by the CBO but not any numbers covering many of the most complex and controversial programs. The schedule may be accelerated if Democrats and Republicans cannot come to an agreement to increase the debt ceiling, a must-pass measure that may need to be included in the Budget Reconciliation process. As negotiations continue, the content of the legislation passed by the House is expected to be altered significantly during Senate consideration. Should that be the case, the House will vote a second time on the measure as amended by the Senate.

Article By: Tracy Nagelbush Tolk and Tiffany Ganthier from Van Ness Feldman LLP

© 2021 Van Ness Feldman LLP

White House to Business: “Take Ransomware Crime Seriously”

As we come out of the COVID-19 pandemic, it appears that another type of infection is threatening business and ransomware continues to spread.

  • Colonial Pipeline
  • JBS (world’s largest meatpacking company)
  • Massachusetts Steamship Authority
  • Scripps Health
  • City of Tulsa

A roll call of entities suffering major ransomware attacks just in the few weeks.    After the Colonial Pipeline attack, President Biden issued an Executive Order establishing some baselines for cybersecurity with respect to government contracts and improving detection of cybersecurity incidents on federal government networks, among other things.   The White House has now issued a rare “wake-up call” to private business in the form of an open letter “to corporate executives and business leaders.”

Deputy National Security Advisor for Cyber and Emerging Technology Anne Neuberger wrote that while the Biden administration has placed an emphasis on resilience, the “private sector has a distinct and key responsibility.”

“All organizations must recognize that no company is safe from being targeted by ransomware, regardless of size or location.  But there are immediate steps you can take to protect yourself, as well as your customers and the broader economy.”   Neuberger continued that private companies that “view ransomware as a threat to their core business operations rather than a simple risk of data theft will react and recover more effectively.”

The letter encourages business to do what regular readers of this blog, or attendees at our webinar events, have heard for many years:  understand your business risk, convene leadership teams to discuss the ransomware threat, and review corporate security posture and business continuity plans.

Neuberger’s letter highlights best practices to help defend against ransomware attacks:

  • Implement the best practices from the President’s Cybersecurity Executive Order
    • Prevent Intrusion (Section 3 – multi-factor authentication)
    • Minimize impact of intrusion pre-detection (Section 3 – data encryption, zero-trust environment)
    • Detect and respond to intrusion (Section 6 – incident response playbook, Section 7 – endpoint detection and response, centralized threat-hunting, Section 8 – logging)
    • Learning (and disseminating) lessons from intrusion
  • Backup your data, system images, and configurations, and keep the backups offline
  • Regularly test your data resiliency
  • Update and patch systems promptly
  • Test your incident response plan (do you have one?)
  • Check your security team’s work using a third party pen tester
  • Segment your networks

In April, the Federal Trade Commission published a Business Blog post entitled “Corporate boards:  don’t underestimate your role in data security oversight”   This piece, combined with today’s open letter from the White House, should be mandatory reading for board members.   The need for proactive and preventative measures increases by the day.   We can assist with a wide range of activities, including:

  • Cyber Risk Assessment/Management
  • Employee Training
  • Incident Response Planning
  • Disaster Recovery/Resiliency Planning
  • Cyber Liability Insurance Placement

©1994-2021 Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C. All Rights Reserved.

ARTICLE BY Cynthia J. Larose of Mintz
For more articles on cybersecurity, visit the NLRCommunications, Media & Internet section.

The Impeachment Process: Politics, Procedure and Next Steps

The US House of Representatives is set to vote this week on impeaching President Donald Trump, and the impeachment vote is expected to pass.  This will set the stage for the next step in the impeachment process;  the third-ever Senate impeachment trial.

We thought this would be a good time to recap the steps in the impeachment process to better understand, procedurally, how the impeachment case against President Trump reached this point, and what is expected next.  Also, we wanted to dig into some of the issues which have been brought up as problematic by the Republican minority in the House related to the impeachment process and the structure of the House hearings.

Jeffrey S. Robbins, a litigation partner at the Boston offices of Saul Ewing Arnstein & Lehr LLP, served as Chief Counsel for the Minority (the Democrats) for the United States Senate Permanent Subcommittee on Investigations, and Deputy Chief Counsel for the Minority for the Senate Governmental Affairs Committee during its 1997 investigation into allegations of fundraising improprieties by the Clinton-Gore Administration during the 1996 presidential campaign.  Mr. Robbins was kind enough to share his expertise on past congressional investigations to help sort through some of the procedural issues raised and help us understand if the process, so far, has proceeded in a usual manner.

NLR: Impeachment is a three-step process, beginning with an investigation in the house and then a vote on articles of impeachment, then a trial in the Senate. What kind of evidence is the House looking for during the investigation stage prior to voting on articles of impeachment?

Robbins: The House committees are looking for the strongest quantum of evidence possible that the President engaged in conduct which amounts to an identifiable “crime,” since a conservative reading of the Constitution holds that some form of crime, at least, is necessary for impeachment.

House Republicans have complained about the limited access to closed-door House impeachment investigation and depositions leading up to the House’s impeachment vote should all be public and the transcripts should be released. Access to the House’s investigative hearings has been limited to members of the three House committees involved– Foreign Affairs, Intelligence and Oversight, and Reform which have a majority of Democratic House Members but Republican committee members can participate in the investigation and question the parties being deposed. Intelligence Committee Chairman Adam Schiff, D-Calif., said private sessions are needed to prevent witnesses from hearing each other, the same protocol used by prosecutors in criminal investigations.  House Minority Leader Kevin McCarthy, R-Calif., called Schiff a liar and a partisan leading a witch hunt and that the venerable Intelligence Committee has become the partisan Impeachment Committee.

NLR: How much of the House’s investigation needs to be in the form of public hearings?

Robbins: There is no Constitutional requirement that impeachment hearings be public or private, but as a practical and a political matter, it is obvious that impeachment hearings need to be conducted in public; after all, building public support for impeachment is a sine qua non (an essential condition) of a vote to impeach, let alone a vote to convict. On the other hand, there is nothing remotely nefarious about what the Minority refers to as “closed door” depositions; Congressional investigations routinely utilize depositions, by definition closed to the public, as a device to ascertain which witnesses have relevant evidence and what that relevant evidence is, in order to assess the strength of a “case” and to more effectively organize any public hearings associated with the investigation.

Intelligence Committee Chairman Adam Schiff said private sessions are needed to prevent witnesses from hearing each other. House and Minority Leader Kevin McCarthy said “I can’t even go down there and read the transcript,” alleging that Republicans have not been allowed to cross-examine the hearing witnesses, which is not accurate.

The reality is that Republicans have participated in each deposition, but their role is limited by the Democratic committee majority. Both Republicans and the Democrats get equal time to ask questions.  Forty-seven Republicans from the Intelligence, Foreign Affairs, and Oversight Committees have been allowed to attend and participate in the depositions.

NLR: What actually goes on in Congressional hearings? What is the timeline between the hearings and the public testimony?

Robbins: From personal experience, I can tell you that the preparation to question witnesses in a Congressional investigation is an intense process, made all the more intense by the volume of material that has to be consumed in order to question effectively and by the shortage of time within which to consume it. Here, for example, there is a steady drumbeat of witnesses being called for deposition on only a few days’ notice to all concerned, and then only a week or so between the deposition and the public hearing. The process is made more intense by the fact that there are other staff lawyers, and Members, and communications experts, all of whom quite properly want to weigh in on the thrust of the questioning, the messaging of the questioning, and the like.

In the hearings, according to the Wall Street Journal, Adam Schiff opens with remarks and then invites a Republican counterpart to do the same.  Each party receives a block of time to ask questions, and a timekeeper keeps track and moves the proceedings along.  Rep. Mark Meadows (R., N.C.), told the Wall Street Journal that each party gets equal time.  “There is a clock, with a timekeeper,” he said.  Other Republicans, including Reps. Jim Jordan of Ohio and Scott Perry of Pennsylvania have been attending the hearings regularly.  Besides Mr. Schiff, Reps. Jamie Raskin of Maryland, Sean Patrick Maloney of New York, Eric Swalwell of California and Gerry Connolly of Virginia have been attending for the Democrats.  Eventually, the committee voted down party lines to advance the impeachment proceedings.

Complicating the evidence-gathering process is the lack of cooperation from the White House, including Trump administration officials defying subpoenas.  Per Adam Schiff, the White House isn’t cooperating and is defying several subpoenas, which Schiff predicted would be considered obstruction and additional evidence “of the wrongfulness of the President’s underlying misconduct.”  When the House Leadership unveiled the articles of impeachment on December 10, 2019, they first focused on the Trump’s pressuring of Ukraine to investigate Joe Biden before the 2020 election by delaying a White House meeting and $400 million in US Security Aid, but the second focused on the obstruction related to the investigation into his misconduct.

NLR: What are the consequences if a witness refuses to testify at a hearing, or otherwise ignores a subpoena? 

Robbins: Under law, there are to be consequences to refusal to testify or disobedience of a subpoena to produce documents, in particular, contempt findings that are appropriately enforced by federal courts.

Mr. Schiff, accused by House minority Whip Steve Scalise of “…trying to impeach a president of the United States… behind closed doors,” pointed out that the president’s former attorney, Michael Cohen, pled guilty to lying to Congress out of loyalty to the president, and was recently sentenced to three years in prison as a result. Still, the White House has consistently refused to cooperate with the inquiry, citing executive privilege as justification to keep those subpoenaed from actually appearing under oath. Citing executive privilege is a not-uncommon tactic to prevent disclosure of goings-on at the top end of the executive branch, but it doesn’t always work well for those using it, and the privilege itself remains a cloudy legal concept.

NLR: What privileges, if any, can a witness assert?

Robbins: With respect to privileges, there are, of course, the “Big Three”: the attorney-client privilege, the Executive Privilege, and the Fifth Amendment. When those privileges are invoked, as a practical matter they are beyond being challenged, except in extreme circumstances, and for the purpose of this impeachment proceeding, where the time constraints are what they are, if they are invoked their invocation will effectively block disclosure of evidence.

There have been many examples of witnesses invoking their Fifth Amendment rights to avoid answering questions in Congressional hearings.  One prominent example is the case of Lt. Colonel Oliver North in the hearings around the Iran-Contra affair during Ronald Reagan’s presidency.

NLR: If the House votes to ratify the articles of impeachment, the Senate will hold a trial.  Who acts as a prosecutor in this instance, and who acts for the defense?  How is that determined?

Robbins: Since the House is the indicting authority, it will choose who presents the case for removal to the Senate. It will in all likelihood be one or more members of the House.

By way of reference, for President Andrew Johnson’s impeachment trial in 1868, an impeachment committee was made up of seven members of Congress, led by Thaddeus Stevens.  President Bill Clinton’s impeachment featured a team of thirteen House Republicans from the Judiciary Committee.

NLR: Why does the Supreme Court get involved in impeachment proceedings, and what is their role?

Robbins: As for the role of the Supreme Court, it is the Chief Justice who presides over the trial, per the Constitution, and it is he who will be involved in those proceedings, and not the full Court—at least this has not occurred in our limited experience with impeachment.

While it may seem plain that the Supreme Court would have a larger role in the impeachment proceedings, that’s not truly the case. The chief justice is, of course, given the power to preside of the Senate trial by the Constitution as a part of the doctrine of separation of powers – as Justice Joseph Story argued – removing the Vice President from Senate leadership to uphold the trial’s impartiality. Should there be a conviction in the Senate, and the convicted president were to try and engage the highest court, SCOTUS has already found that the Senate’s impeachment procedures are nonjusticiable, because of Article I’s designation of the Senate as the “sole power to try all impeachments” (Nixon v United States, 1993).

Many thanks to Mr. Robbins for his time and for helping break down these complex issues during a complicated time.

Copyright ©2019 National Law Forum, LLC

Kushner’s Bad Week: Losing Clearance, Suspicious Business Activities, and the Looming Russia Investigation

This week at the Trump White House was a cornucopia of news developments including a gun control meeting that quickly went off the rails, news of Trump confidant and stalwart Hope Hicks’s resignation, and Jared Kushner, First Son-in-Law, being stripped of his Security clearance for failure to complete paperwork in a timely manner, quickly followed by disturbing reports of Kushner’s business interests benefiting from his position in the White House and Kushner influence prompting possible backlash from the White House for parties who refused to support the Kushner Companies.

The Democratic National Committee says:

This week very clearly shows why Jared Kushner should lose his job at the White House. Kushner has never been qualified for his role . . . Kushner has repeatedly made critical omissions on his background check forms and has had to make dozens of revisions to his financial disclosure . . . multiple recent stories have further shown that the corruption Kushner brings to the White House is matched only by Trump himself …

Backing the DNC’s assertions, Kushner has amended and changed his financial filings on security documents 39 times, omitting significant financial disclosures.

Kushner’s Undisclosed Meetings with Foreign Nationals on Behalf of Kushner Cos.

 The Washington Post reported this week, that in December 2016, Kushner had meetings with the chairman of China’s Anbang insurance company, a Russian banker and a former prime minister of Qatar in the Kushner company’s efforts to get funding for the Kushner company’s $1.2 billion debt. The Washington Post revealed:

“Officials in at least four countries have privately discussed ways they can manipulate Jared Kushner, the president’s son-in-law and senior adviser, by taking advantage of his complex business arrangements, financial difficulties and lack of foreign policy experience, according to current and former U.S. officials familiar with intelligence reports on the matter.”

National Security advisor H.R. McMaster, later learned that Kushner’s contacts with foreign officials were not coordinated through the National Security Council nor did he officially report them.

NBC reported yesterday that special counsel Mueller is investigating if Kushner’s meetings with foreign officials during the presidential transition, impacted White House policy, specifically noting that the White House last year backed an economic blockade of Qatar in the weeks after Qatari officials declined to provide loans to the Kushner Companies.

SEC’s Decision to End an Investigation of Kushner Related to Apollo Loan

The AP is reporting on the SEC’s 2017 decision to end a Kushner Co. loan investigation. The SEC investigation was prompted after Apollo Global Management gave the Kushner Cos. a $180 million Real Estate loan.  Apollo’s loan to the Kushner Cos. followed several meetings at the White House with Jared Kushner and Apollo Global Management’s founder, reported by the New York Times this week.

Currently, there is no evidence that Kushner’s White House role or anyone else in the Trump administration played a role in the SEC’s decision to drop the Apollo inquiry.  ‘I suppose the best case for Kushner is that this looks absolutely terrible,’ said Rob Weissman, president of Public Citizen.

 ‘Without presuming that there is any kind of quid pro quo … there are a lot of ways that the fact of Apollo’s engagement with Kushner and the Kushner businesses in a public and private context might cast a shadow over what the SEC is doing and influence consciously or unconsciously how the agency acted.’

In its 2018 annual report, Apollo disclosed that the SEC had halted its inquiry into the firm’s financial reporting and how Apollo reported the results of its private equity funds.

New Revelations about Citibank Loan to Kushner Co. after White House Visit

Shortly after Citigroup’s CEO Michael Corbat visited Kushner’s White House office, Citigroup made a $325 million loan to the Kushner Companies, the New York Times reported this week.    “This is exactly why senior government officials…don’t maintain any active outside business interests,” per Don Fox, former Acting Director and General Counsel of the Office of Government Ethics during the Obama administration. “The appearance of conflicts of interests is simply too great.”

In spite of White House ethics rules, Kushner continues to own “as much as $761 million” of the Kushner Companies according to a New York Times estimate and the Times also notes that while Kushner is the point man for Middle East policy “his family company continues to do deals with Israeli investors.”

Separate Ongoing Federal and State Investigations of Kushner

Separately from the Mueller probe, Kushner is being investigated by federal prosecutors in Brooklyn for the Eastern District of New York.  Investigators have requested records related to a $285 million loan Deutsche Bank gave Jared Kushner’s family real estate company in October 2016, one month before election day. Kushner was the Kushner Companies’ CEO until January 2017 and still owns part of the Kushner Cos. after selling off part of his stake. The Kushner Companies have a long-term relationship with Deutsche Bank according to financial disclosure forms.

The New York State Department of Financial Services asked Deutsche Bank, Signature Bank and New York Community Bank for information about their relationships with Jared Kushner and his finances, The Wall Street Journal and ABC News reported this week. Responses to the New York State inquiry are due March 5.

Abbe Lowell, Kushner’s attorney, says Kushner has behaved “appropriately” in meetings with foreign officials and that he “has taken no part of any business, loans or projects with or for” Kushner Companies since joining the White House.”  In a statement provided to NPR, Lowell says, “Mr. Kushner has done more than what is expected of him in this [Security clearance] process.”

 

Copyright ©2018 National Law Forum, LLC
This post was written by Jennifer Schaller and Eilene Spear of the National Law Forum, LLC.

President Trump Will Welcome Palestinian President to White House, Meet with Australian Prime Minister in New York City

White HouseCongress Will Hold Hearings on Human Trafficking, Remittances and International Development, While Also Focusing on a Longer-Term Funding Measure for the Remainder of Fiscal Year 2017

President Donald Trump welcomed Argentine President Mauricio Macri to the White House last Thursday. In a joint statement, the two leaders committed to expanding bilateral trade and investments; strengthening cooperation to counter narco-trafficking, terrorist financing, money laundering, corruption and other illicit finance activities; and increasing cooperation on cyber policy. President Trump will welcome Palestinian President Mahmoud Abbas to the White House on Wednesday. The President will travel to New York City on Thursday for an event and will also meet with Australian Prime Minister Malcolm Turnbull.

President Trump signed multiple executive documents last week, including a Memorandum on aluminum and national security interests, as well as Executive Orders (E.O.) on veterans affairs, energy, agriculture, land management, and education. President Trump marked his 100th day in office with a Make America Great Again rally in Harrisburg, Pennsylvania, after signing two more E.O.s related to trade on Saturday.

On Friday, Secretary of Defense Jim Mattis honored two U.S. Army Rangers who died Thursday in Afghanistan. He said: “They carried out their operation against [the Islamic State of Iraq and Syria-Khorasan] in Afghanistan before making the ultimate sacrifice to defend our nation and our freedoms.”

Congress passed a short-term measure on Friday to fund the Federal Government for another week, allowing both chambers additional time to negotiate a longer-term measure that will fund the Government through the end of Fiscal Year 2017.  The Senate also approved the nomination of Sonny Perdue to serve as Secretary of the U.S. Department of Agriculture last Monday. Congress is in session this week.

North Korea – U.S. Continues Pressure on the International Community

Secretary of State Rex Tillerson chaired the U.N. Security Council on Friday, where he focused on North Korea’s illegal nuclear program and its continued provocative activities. He sought to get the Council to act and leverage additional pressure on North Korea, saying:

“For too long, the international community has been reactive in addressing North Korea. Those days must come to an end.”

He outlined steps that the international community could undertake to leverage North Korea into abandoning its nuclear program. The White House released a brief statement on Friday afternoon acknowledging President Trump was briefed on North Korea’s failed missile test that day.

On Wednesday, after a briefing to the Senators at the White House, Secretary Tillerson, Defense Secretary Mattis, and Director of National Intelligence Dan Coats issued a joint statement on North Korea’s unlawful weapons programs and nuclear and ballistic missile tests, saying each provocation jeopardizes stability in Northeast Asia and poses a growing threat to U.S. allies and the U.S. homeland. The officials noted: “We are engaging responsible members of the international community to increase pressure on the D.P.R.K. in order to convince the regime to de-escalate and return to the path of dialogue. We will maintain our close coordination and cooperation with our Allies, especially the Republic of Korea and Japan, as we work together to preserve stability and prosperity in the region. The United States seeks stability and the peaceful denuclearization of the Korean peninsula. We remain open to negotiations towards that goal. However, we remain prepared to defend ourselves and our Allies.”

Chairman of the Joint Chiefs of Staff Joseph Dunford also participated in the Senate briefing.  In a summary, the Defense Department recapped North Korea as an urgent national security threat and a top foreign policy priority for the U.S. Government.

On 27 April, the head of U.S. Pacific Command recommended that the U.S. military develop capabilities that can directly defend against North Korean artillery. Testifying at a Senate Armed Services Committee hearing last week, Adm. Harry Harris shared that the U.S. currently cannot counter an artillery barrage from North Korea. He explained the missile defense system that the United States is deploying to South Korea, is only designed to intercept ballistic missiles. North Korea currently possesses roughly 4,000 artillery pieces positioned near the demilitarized zone. Committee Chairman John McCain (R-Arizona) noted that these pieces had the potential to target the South Korean capital, Seoul, and its metropolitan area of 26 million people.

South Korea – McMaster Affirms Missile Defense

On 30 April, National Security Adviser Lt. Gen. H.R. McMaster confirmed that the United States would adhere to its agreement with South Korea for a new missile defense system, but indicated that payment for the system might be renegotiated. The Terminal High Altitude Area Defense system, also known as THAAD, is being rolled out in response to military provocations from North Korea.

In an interview with “Fox News Sunday,” McMaster shared that he told his South Korean counterpart that “until any renegotiation, that the deal’s in place,” but explained that, “what the president’s asked us to do is to look across all of our alliances and to have appropriate burden-sharing, responsibility-sharing.” President Donald Trump said in a recent interview that he “informed South Korea it would be appropriate if they paid” for the missile defense system.

Syria, Iraq – Combating ISIS

The Pentagon gave an update last Friday on the U.S. and Coalition military forces’ efforts to combat the Islamic State of Iraq and Syria (ISIS). Coalition forces conducted 24 strikes consisting of 30 engagements against ISIS targets in Syria. In Iraq, Coalition forces conducted eight strikes consisting of 24 engagements against ISIS targets, coordinated with and in support of the Iraqi government. The destruction of ISIS targets in both countries also further limits the group’s ability to project terror and conduct external operations throughout the region and the rest of the world, according to task force officials.

U.S. Ambassador to the United Nations Nikki Haley said on Thursday at a U.N. Security Council session she chaired on the humanitarian crisis in Syria:

“All eyes and all pressure now need to go to Russia because they are the ones that could stop this if they wanted to…the images don’t lie. The humanitarian workers don’t lie. The fact that they can’t get the assistance they need – that’s not lying. What is, is to continue to give Russia a pass for allowing this terrible situation to occur. I will continue to press the Security Council to act, to do something, regardless of if the Russians continue to veto it, because it is our voice that needs to be heard.”

The Department of State designated Mubarak Mohammed A Alotaibi as a Specially Designated Global Terrorist (SDGT) under Executive Order E.O. 13224 on 27 April.  Alotaibi is the Syria-based deputy leader of Islamic State of Iraq and Syria’s (ISIS) affiliate in Saudi Arabia, which was designated by the U.S. Department of State as a SDGT under E.O. 13224 on 19 May 2016.

On 24 April, the Department of the Treasury’s Office of Foreign Assets Control (OFAC) announced new sanctions targeting 271 Syrian individuals in response to the 4 April sarin gas attack in Syria. According to an accompanying press release, the action – one of the largest OFAC has ever taken – targets employees of Syria’s Scientific Studies and Research Center (SSRC). They have been added to OFAC’s list of Specially Designated Nationals (also known as the SDN List) pursuant to Executive Order 13582, “Blocking Property of the Government of Syria and Prohibiting Certain Transactions With Respect to Syria.” The full list of newly-designated individuals can be found here.

Afghanistan – Review of U.S. Policy

Defense Secretary Mattis added another stop to his Middle East trip last week that focused on a theme of combatting ISIS. The Secretary was in Kabul, Afghanistan, last Monday. At a press conference Secretary Mattis said of the 21 April Taliban attack on an Afghan military base and mosque that killed more than 100 people: “As if we needed a reminder of the type of enemy we’re up against, the killing of Afghan citizens and soldiers — protectors of the people — just as they were coming out of a mosque, a house of worship, it certainly characterizes this fight for exactly what it is. These people have no religious foundation. They are not devout anything, and it shows why we stand with the people of this country against such heinous acts perpetrated by this barbaric enemy and what they do.”

Regarding President Trump’s directive to review of U.S. policy in Afghanistan, Secretary Mattis said: “This dictates an ongoing dialogue with Afghanistan’s leadership, and that’s why I came here: to get with President Ghani and his ministers and hear directly and at length from … General Nicholson to provide my best assessment and advice as we go forward.”

NAFTA – U.S. Withdrawal Averted

President Trump considered signing an order last week that would have withdrawn the United States from the North American Free Trade Agreement (NAFTA). After news of the possible action emerged, the leaders of Mexico and Canada, interested stakeholders, and Members of Congress rallied to call the White House and urge against such action. President Trump said in an interview on Thursday: “I was all set to terminate [NAFTA]. I looked forward to terminating. I was going to do it.” Later in the interview, the President added he reserves the right to change his mind – “I can always terminate.”

Nominations – Update

The Senate has yet to schedule a final vote on Amb. Robert Lighthizer’s nomination to serve as U.S. Trade Representative.  A vote is expected to happen in the next couple of weeks.

Last week, President Trump announced his intent to nominate the following individuals: (1) Kari A. Bingen to serve as Principal Deputy Under Secretary of Defense for Intelligence.  Ms. Bingen currently serves as the policy director for the House Armed Services Committee. (2) Robert Story Karem to serve as Assistant Secretary of Defense for International Security Affairs.  Mr. Karem most recently served on the Presidential Transition Team as an advisor to Central Intelligence Agency Director, Mike Pompeo, during his confirmation process.  He previously served in the White House as a Middle East policy advisor to former Vice President Richard B. Cheney.

Congressional Hearings This Week

  • On Tuesday, 2 May, the House Foreign Affairs Subcommittee on Global Human Rights is scheduled to hold a hearing titled “Wining the Fight Against Human Trafficking: The Frederick Douglass Reauthorization Act.”

  • On Tuesday, 2 May, the Senate Banking, Housing, and Urban Affairs Committee is scheduled to hold a hearing titled “Examining the U.S. – E.U. Covered Agreements.”

  • On Tuesday, 2 May, the Senate Foreign Relations Committee has scheduled a hearing to consider the nomination of the Honorable Terry Brandstad, to serve as U.S. Ambassador to China.

  • On Wednesday, 3 May, the House Foreign Affairs Committee is scheduled to hold a hearing to consider the following bills:

    • R. 1625 – To amend the State Department Basic Authorities Act of 1956 to include severe forms of trafficking in persons within the definition of transnational organized crime for purposes of the rewards program of the Department of State, and for other purposes.

    • R. 1677 – To halt the wholesale slaughter of the Syrian people, encourage a negotiated political settlement, and hold Syrian human rights abusers accountable for their crimes.

    • R. 2200 – To reauthorize the Trafficking Victims Protection Act of 2000, and for other purposes.

  • On Wednesday, 3 May, the Senate Foreign Relations Subcommittee on International Economic, Energy, and Environmental Policy is scheduled to hold a hearing titled “Global Philanthropy and Remittances and International Development.”

  • On Thursday, 4 May, the Senate Foreign Relations Committee is scheduled to hold a hearing titled “International Development: Value Added Through Private Sector Engagement.”

Looking Ahead

Washington is expected to focus on the following upcoming events:

  • 3 May: President Trump will welcome Palestinian President Mahmoud Abbas

  • 4 May: President Trump travels to New York City, where he will hold a bilateral meeting with Australian Prime Minister Malcolm Turnbull

  • May: Formal notification to Congress of intent to renegotiate NAFTA expected

  • 25 May: President Trump to attend the NATO Leaders Meeting in Belgium

  • 26-28 May: President Trump to attend the G-7 Leaders’ Summit in Taormina, Sicily

  • 18-20 June: SelectUSA Investment Summit in National Harbor, Maryland

ARTICLE BY Stacy A. Swanson and Pooja Virkar of Squire Patton Boggs (US) LLP

© Copyright 2017 Squire Patton Boggs (US) LLP

The White House’s Revisions to its Breach Response Policy For Federal Agencies and Departments Also Affect Contractors

White House data breach responseOn January 3, 2017, the Obama Administration issued a memorandum to all executive departments and agencies setting for a comprehensive policy for handling breaches of personally identifiable information (the “Memorandum”), replacing earlier guidance. Importantly, the Memorandum also affects federal agency contractors as well as grant recipients.

The Memorandum is not the first set of guidance to federal agencies and departments for reporting breaches of personally identifiable information (PII), but it establishes minimum standards going forward (agencies have to comply within 180 days from the date of the Memorandum). The Memorandum makes clear that it is not setting policy on information security, or protecting against malicious cyber activities and similar activities; topics related to the recent fiery debates concerning the 2016 election results and Russian influence.

The Memorandum sets out a detailed breach response policy covering topics such as preparedness, establishing a response plan, assessing incident risk, mitigation, and notification. For organizations that have not created a comprehensive breach response plan, the Memorandum could be a helpful resource, even for those not subject to it. But it should not be the only resource.

Below are some observations and distinctions worth noting.

  • PII definition. Unlike most state breach notification laws, the Memorandum defines PII broadly: information that can be used to distinguish to trace an individual’s identity, either alone or when combined with other information that is linked or linkable to a specific individual. So, for example, the notification obligation for a federal contractor will not just apply if Social Security numbers or credit card numbers have been compromised.
  • Breach definition. Breaches are not limited phishing attacks, hackings or similar intrusions. They include lost physical documents, sending an email to the wrong person, or inadvertently posting PII on a public website.
  • Training. Breach response training must be provided to individuals before they have access to federal PII. That training should advise the individuals not to wait for confirmation of a breach before reporting to the agency. A belief (or hope) that one will find that lost mobile device should not delay reporting.
  • Required provisions in federal contracts. Federal contractors that collect or maintain federal PII or use or operate an information system for a federal agency must be subject to certain requirements by contract. The Memorandum requires agencies to update their contracts with contractors to ensure the contracts contain certain provisions, such as requiring contractors to (i) encrypt PII in accordance with OMB Circular A-130, (ii) train employees, (iii) report suspected or confirmed breaches; (iv) be able to determine what PII was or could have been accessed and by whom, and identify initial attack vectors, and (v) allow for inspection and forensic analysis. Because agencies must ensure these provisions are uniform and consistent in all contracts, negotiation will be difficult. The Federal Acquisition Regulatory Council is directed to work the Office of Management and Budget to promptly develop appropriate contract clauses and regulatory coverage to address these requirements.
  • Risk of harm analysis. Agencies will need to go through a complex risk of harm analysis to determine the appropriate breach response. Notably, encryption of PII is not an automatic exception to notification.
  • Notification. The rules for timing and content of breach notification are similar to those in many of the state breach notification laws. The Memorandum also advises agencies to anticipate undeliverable mail and to have procedures for secondary notification, something not clearly expressed in most state notification laws. The Memorandum also suggests website FAQs, which can be more easily updated and tailored. Agency heads have ultimate responsibility for deciding whether notify. They can consider over-notification and should try to provide a single notice to cover multiple notification requirements. They also can require contractors to provide notification following contractor breaches.
  • Tabletop Exercises. The Memorandum makes clear that testing breach response plans is essential and expressly requires that tabletop exercises be conducted at least annually.

Federal contractors and federal grant recipients that have access to federal PII will need to revisit (or develop) their own breach response plans to ensure they comply with the Memorandum, as well as the requirements of the applicable federal agency or department which can be more stringent. Of course, those plans must also incorporate other breach response obligations the organizations may have, whether those obligations flow from other federal laws (e.g., HIPAA), state laws, or contracts with other entities. Putting aside presidential politics, cybersecurity threats are growing and increased regulation, enforcement and litigation exposure is likely.

ARTICLE BY Joseph J. Lazzarotti of Jackson Lewis P.C.

Jackson Lewis P.C. © 2017

White House Announces Long-Awaited Trans-Pacific Partnership Agreement

The Obama administration released the full text of the Trans-Pacific Partnership (TPP) agreement, on November 5, kicking off a 90-day window for congressional review.

The TPP would arguably be the largest free trade agreement in history when considering the economies of the 12 Pacific Rim member countries, covering approximately 40% of the global economy. The agreement must now be individually approved by each of the 12 countries: Australia, Brunei, Canada, Chile, Japan, Malaysia, Mexico, New Zealand, Peru, Singapore, the United States, and Vietnam.

If ratified, the TPP will be one of President Obama’s crowning achievements. Obama has championed the landmark agreement as a vehicle for opening new markets to American products and establishing higher labor and environmental standards, while building an economic bloc in the Asia-Pacific region to compete with China. (See the White House Fact Sheet here.)

Obama now has an uphill climb as he launches a major public relations campaign to sell the agreement to the American public. The debate will be contentious, with a bitterly divided Congress voting on the final agreement in early 2016 – well into the election year as presidential primary elections are taking place.

Under pressure from labor unions to oppose the deal, Democrats have largely withheld support. In early October, former Secretary of State, and current presidential candidate, Hillary Clinton came out against the deal which she once called the “gold standard” of trade agreements. Last spring, Obama relied on Republicans in Congress to pass the underlying fast-track trade authority bill, with only 28 Democrats in the House voting in favor of passage. Under fast-track authority, Congress can approve or reject the agreement, but not amend it.

Note: The Office of the United States Trade Representative (USTR) posted the agreement in roughly two hundred separate PDF documents. The Washington Post promptly published a search function on their website for easier searching.

Article By Michelle A. Leeds of Foley & Lardner LLP

© 2015 Foley & Lardner LLP

White House Releases ‘Modernizing & Streamlining Our Legal Immigration System for the 21st Century’

The White House has just released a new report titled “Modernizing & Streamlining our Legal Immigration System for the 21st Century,” which builds on the President’s executive actions of Nov. 21, 2014. This report provides for plans to improve the immigration system to modernize and streamline the processes for certain visa categories and to address security issues. The report also calls for plans to strengthen the United States’ humanitarian system by providing benefits for certain individuals.

The report specifically addresses the EB-5 program in important ways. The White House acknowledges that the U.S. Immigration and Citizenship Services (USCIS) has undergone significant changes in an effort to enhance the program’s processes and to improve its integrity, including the creation of a new team with expertise in economic analysis and specific EB-5 components, as well as the issuance of updated policy guidance to provide better clarity as to program requirements.

The White House recognizes that there is a need for additional enhancements and improvements to address the integrity and impact of the EB-5 program. Specifically, the White House recommends additional measures including enhancements to avoid fraud, abuse, and criminal activity; measures to ensure that the program is reaching its full potential in terms of job creation and economic growth; and recommendations to streamline the program to make it efficient and stable for participants in the program, including petitioners and Regional Centers.

The report announces that Homeland Security Secretary Jeh Johnson has adopted the creation of a new protocol, announced previously, intended to insulate the EB-5 program from “the reality or perception of improper outside influence.” Further, the report reiterates the Secretary’s recommendations to Congress to provide the department with authority to deny or revoke cases based upon serious misconduct; prohibit individuals with past criminal or securities-related violations from program participation, and a mechanism to ensure regional center compliance with securities laws. It is notable that these recommendations are included in the bill that Senator Leahy and Senator Grassley introduced on June 3, 2015.

The report makes two specific recommendations. First, it announces that DHS will pursue rulemaking to improve program integrity, including conflict-of-interest disclosures by Regional Center principals, enhanced background checks and public disclosure requirements, and an increase in the minimum qualifying level of investment. The department will also pursue new regulations to improve adjudication of Regional Center applications. Second, the report announces that the State Department will amend guidance in the Foreign Affairs Manual to permit potential EB-5 investors to obtain visitor visas for the purpose of evaluating investment.

In addition, DHS will propose a parole program for entrepreneurs who “provide a significant public benefit.” The examples of “significant public benefit” include innovation and job creation through new technology development.

ARTICLE BY Kristen W. Ng & Matthew Virkstis of Greenberg Traurig, LLP

©2015 Greenberg Traurig, LLP. All rights reserved.

White House Releases ‘Modernizing & Streamlining Our Legal Immigration System for the 21st Century’

The White House has just released a new report titled “Modernizing & Streamlining our Legal Immigration System for the 21st Century,” which builds on the President’s executive actions of Nov. 21, 2014. This report provides for plans to improve the immigration system to modernize and streamline the processes for certain visa categories and to address security issues. The report also calls for plans to strengthen the United States’ humanitarian system by providing benefits for certain individuals.

The report specifically addresses the EB-5 program in important ways. The White House acknowledges that the U.S. Immigration and Citizenship Services (USCIS) has undergone significant changes in an effort to enhance the program’s processes and to improve its integrity, including the creation of a new team with expertise in economic analysis and specific EB-5 components, as well as the issuance of updated policy guidance to provide better clarity as to program requirements.

The White House recognizes that there is a need for additional enhancements and improvements to address the integrity and impact of the EB-5 program. Specifically, the White House recommends additional measures including enhancements to avoid fraud, abuse, and criminal activity; measures to ensure that the program is reaching its full potential in terms of job creation and economic growth; and recommendations to streamline the program to make it efficient and stable for participants in the program, including petitioners and Regional Centers.

The report announces that Homeland Security Secretary Jeh Johnson has adopted the creation of a new protocol, announced previously, intended to insulate the EB-5 program from “the reality or perception of improper outside influence.” Further, the report reiterates the Secretary’s recommendations to Congress to provide the department with authority to deny or revoke cases based upon serious misconduct; prohibit individuals with past criminal or securities-related violations from program participation, and a mechanism to ensure regional center compliance with securities laws. It is notable that these recommendations are included in the bill that Senator Leahy and Senator Grassley introduced on June 3, 2015.

The report makes two specific recommendations. First, it announces that DHS will pursue rulemaking to improve program integrity, including conflict-of-interest disclosures by Regional Center principals, enhanced background checks and public disclosure requirements, and an increase in the minimum qualifying level of investment. The department will also pursue new regulations to improve adjudication of Regional Center applications. Second, the report announces that the State Department will amend guidance in the Foreign Affairs Manual to permit potential EB-5 investors to obtain visitor visas for the purpose of evaluating investment.

In addition, DHS will propose a parole program for entrepreneurs who “provide a significant public benefit.” The examples of “significant public benefit” include innovation and job creation through new technology development.

ARTICLE BY Kristen W. Ng & Matthew Virkstis of Greenberg Traurig, LLP

©2015 Greenberg Traurig, LLP. All rights reserved.

White House Will Unveil Cyber Executive Actions At A Summit This Week

Squire Patton Boggs (US) LLP law firm

Legislative Activity

This Week’s Hearings:

  • Wednesday, February 11: The Senate Commerce, Science and Transportation Committee will hold a hearing titled “The Connected World: Examining the Internet of Things.”

  • Thursday, February 12: The House Homeland Security Subcommittee on Cybersecurity, Infrastructure Protection and Security Technologies will host a hearing titled “Emerging Threats and Technologies to Protect the Homeland.”

  • Thursday, February 12: The House Education and the Workforce Subcommittee on Early Childhood, Elementary and Secondary Education will hold a hearing titled “How Emerging Technology Affects Student Privacy.”

  • Thursday, February 12: The House Science, Space and Technology Subcommittee on Research and Technology and Subcommittee on Oversight will hold a joint hearing titled “Can Americans Trust the Privacy and Security of their Information on HealthCare.gov?”

Regulatory Activity

White House Will Unveil Cyber Executive Actions at a Summit this Week

On Friday, February 13, the White House will hold its Summit on Cybersecurity and Consumer Protection at Stanford University. President Obama will be speaking at the Summit and plans to issue a new Executive Order focusing on ways to increase cybersecurity information sharing between the private sector and the U.S. Department of Homeland Security (DHS).

The executive action will likely expand the current work that DHS’s National Cybersecurity and Communications Integration Center (NCCIC) does to include a new concept of Information Sharing and Analysis Organizations (ISAO), which was briefly previewed by the President last month. As currently discussed, ISAOs would be designed to share information across multiple industry sectors to supplement the work of the current network of Information Sharing and Analysis Centers (ISACs).  According to press reports from government officials, the executive action is expected to create a network of ISAOs that would be managed by DHS in the beginning and eventually would become a privately-run entity. Several government officials and industry representatives have said that the President’s action will represent a step forward to improving the current information sharing platforms but they also recognize that information sharing legislation is still needed.

In addition to the Summit on Friday, the National Institute of Standards and Technology (NIST) will hold a half-day workshop on Thursday focused on the technical aspects of consumer security. The Office of Science and Technology Policy will also host a meeting leading up to the Summit on Thursday focused on cybersecurity workforce development.

White House Blog Highlights Future Action on Cyber Risk Management

Last week, White House Cybersecurity Coordinator Michael Daniel wrote a blog post on how companies can strengthen their cyber risk management and the role of the federal government in incentivizing stronger cybersecurity practices in the private sector. He notes in the post that the White House believes “the market offers the most effective incentives for the private sector to adopt strong cybersecurity practices,” but also stated that the Obama Administration will continue to work in a variety of areas to support these efforts by streamlining regulations, investing in cybersecurity research and development, and updating federal procurement policies and practice. Daniel wrote that the White House is working with federal agencies and critical infrastructure to identify regulations that are excessively burdensome, conflicting, or ineffective and will release a report on the findings no later than February 2016. Additionally, the White House plans to release a report this spring on the key priorities for cybersecurity research and development over the next three to five years.

The blog post also noted that the White House will not pursue public recognition as a means of incentivizing the private sector to adopt cybersecurity best practices or the NIST Cybersecurity Framework given that this could take away from the voluntary nature of the Framework. While Daniel did not mention liability protection as an incentive for greater information sharing in the blog post, it is still a possible incentive that the White House would support given that it was also included in the information sharing legislative proposal that the President released last month.

ARTICLE BY

Amy F. Davenport
Norma M. Krayem
OF
Squire Patton Boggs (US) LLP