Cyber “Emergency” Order Nets No Culprits

In April 2015, President Obama issued Executive Order 13694 declaring a national emergency to deal with the threat of hostile cyber activity against the United States.

But six months later, the emergency powers that he invoked to punish offenders had still not been used because no qualifying targets were identified, according to a newly released Treasury Department report.

In a White House statement coinciding with the release of last year’s Executive Order, the President said that “Cyber threats pose one of the most serious economic and national security challenges to the United States, and my Administration is pursuing a comprehensive strategy to confront them….  This Executive Order offers a targeted tool for countering the most significant cyber threats that we face.”

The Executive Order authorized the Secretary of the Treasury “to impose sanctions on individuals or entities that engage in malicious cyber-enabled activities that create a significant threat to the national security, foreign policy, or economic health or financial stability of the United States.”

But although the criminal justice system has produced indictments against suspected Chinese and Iranian hackers, the President’s cyber “emergency” regime has not yielded any comparable results.

In the first periodic report on the implementation of the order, Treasury Secretary Jacob J. Lew said that “No entities or individuals have been designated pursuant to E.O. 13694.” Accordingly, the Department of the Treasury took no punitive licensing actions, and it assessed no monetary penalties, Secretary Lew wrote.

A copy of the Treasury report was obtained through the Freedom of Information Act. See Periodic Report on the National Emergency With Respect to Significant Malicious Cyber-Enabled Activities, October 1, 2015.

Even though it generated no policy outputs, implementation of the executive order nevertheless incurred costs of “approximately $760,000, most of which represent wage and salary costs for federal personnel,” the Treasury report said.

Unbeknownst to most people, there are typically multiple “national emergencies” in progress at any given time. A helpful introduction to the subject was prepared by then-CRS specialist Harold C. Relyea a decade ago.

By invoking emergency powers derived from the Constitution or from statutory law, Relyea wrote, “the President may seize property, organize and control the means of production, seize commodities, assign military forces abroad, institute martial law, seize and control all transportation and communication, regulate the operation of private enterprise, restrict travel, and, in a variety of ways, control the lives of United States citizens. [However], Congress may modify, rescind, or render dormant such delegated emergency authority.” See National Emergency Powers, updated August 30, 2007.

One other ongoing “emergency” pertains to North Korea. A Treasury Department Periodic Report on the National Emergency With Respect to North Korea, dated May 21, 2015, reveals that five financial transactions involving North Korean agents or interests — and totaling $23,200 — were blocked by executive order between December 2014 and April 2015. That’s an increase from $17,600 during the previous reporting period.