When is it Enough for Putin and Russia?

Image result for russian hacking NBC

FBI: Russian Citizen Pleads Guilty For Involvement In Global Botnet Conspiracy

The summary below for the most part echoes the same testimony delivered by 6 panel members in two separate hearings before the Senate on March 30, 2017.

Two particular panel witness members were Clint Watts and Thomas Rid. (videos included)

There are several experts and those in media commentary that say there is no evidence of Russian intrusions. But there IS in fact evidence and attribution does required a long time to investigate, collaborate and convey, which is why the FBI has taken so long to provide. There are countless private corporations in the cyber industry, not tied to government in any form. They are hired to protect systems, investigate intrusions and research hacks and variations of interference both nationally and globally.

The United States is hardly the only victim of Russian intrusion, as Europe and the Baltic States are having the exact issues. But Americans rarely pay attention to anything outside the United States.

So, when is enough…enough for Putin? No one knows and due to the constant successes listed so far, there is very little reason for ‘active measures’ of asymmetric warfare tactics to cease….it is cheap ad effective and for the most part anonymous. The mission objective by the Kremlin is division, chaos, leaked propaganda and repeat….works doesn’t it.

Image result for russian hacking  DailyMail

Related reading: America Is Ill-Prepared to Counter Russia’s Information Warfare

Propaganda is nothing new. But Moscow is frighteningly effective—and worse is on the way.

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What the Russians want: How Russia uses cyber attacks and hybrid warfare to advance its interests

What, exactly, do the Russians want? Their very active cyber operations obviously serve state goals, but what are those goals, and how can they inform a Western response?

ITSEF’s second day opened with a panel on Russian hybrid warfare—a combination of cyberattack and  information operations with both conventional and irregular military operations. Larry Hanauer, of the Intelligence and National Security Alliance, chaired a discussion among the Hoover Institution’s Herb Lin, Lookout’s Mike Murray, and LIFARS CEO Ondrej Krehel.

Policy driven by resentment.

Hanauer’s opening question was open-ended: what are Russia’s policy goals, and how does it use hybrid warfare to advance them? The panel was in agreement that the key to understanding Russian actions in cyberspace is to recognize them as driven by resentment. Lin called that resentment “longstanding.” It stems from the collapse of the Soviet Union at the end of the Cold War and Russia’s treatment internationally since then. Russian leaders and a substantial set of the Russian population views that treatment as disrespectful, contemptuous.

Russia has a very long tradition of using deception and propaganda, Lin said, and he added that the country doesn’t draw clear lines between peace and war. “It’s always war, even below the level of armed conflict.” The long-term goal is restoration of Russia’s place in the world. Creation of chaos through the dissemination of fake news and other information operations is simply battlespace preparation. Cyber, he added, gives you low-cost tools you didn’t have before. “It’s an attack on brainspace, and we’re all in the attack surface.”

Murray agreed, noting one current success of Russian information operations. We’ve been distracted from their intervention in Syria by news and fake news surrounding the US elections.

One of the more prominent features of the Russian way of cyber warfare is their willingness and ability to use criminal organizations for operational purposes. During the Cold War, Krehel explained, “if you did harm to the US, you were a hero.” Among other possibilities, that harm could be reputational or it could be economic, and criminals are well-adapted to inflicting those kinds of harm. There’s a view now, among Russian leaders, that they can expose personal information of essentially all Americans, and that this will yield a comprehensive picture of American finances down to the individual level. It’s very important to the Russian government, Krehel observed, to understand what the US can afford, and what capabilities we’re investing in, and all manner of data go into building up that picture. Lin: agreed that Russian espionage aggregates data in ways that render those data more valuable than the simple loss would impose on any single victim.

As a side note on the Russian President, the panel appeared to agree, as one member put it, that we now see one man, President Putin, who is able to use the resources of a modern nation-state to redress a deeply held personal grievance.

Chaos as statecraft.

This general orientation, according to Murray, can be encapsulated by noting that all war, to Russia, is about political ends. There’s no separation of politics from the economy or business. The increase in chaos we see in Western news, information, and political culture is, from a Russian point of view, a desirable thing.

And chaos serves tactical as well as strategic ends. Krehel expanded on this by asserting that Russia wants chaos because it doesn’t have the funding, the financial resources, of, say, the US. Thus Russian security services hand intelligence over to criminal groups. “A normal government doesn’t hand over its political agenda to criminal groups,” he said, but Russia’s does.

Murray offered an evocative story: “The number two guy in Russia has two pictures on his desk: one of Putin, and the other of Tupac Shakur.” So there’s a kind of gangster ethos at the highest levels. And whie using criminal gangs as cutouts also affords an obvious form of deniability, we shouldn’t be deceived.

In response to Hanauer’s question about who might be the leading cyber actors in the Russian government, Krehel said that they were the organizations one would expect, with the FSB and GRU occupying prominent positions. Different units within the government do cooperate—resource and manpower constraints make this inevitable—and in those services “loyalty is high, and rated very highly.”

You cheated them. Expect payback.

There’s also a common motivation, and Russian information operations play into it, especially domestically. “Russia believes all of you in this room cheated them,” Krehel said, and this theme is consciously exploited to the population as a whole, but particularly to the security services. “So the GRU’s big objective is to cripple you financially. And then they want to make you look ridiculous.”

Lin agreed. “That’s an accurate picture of how it works on the ground. Russia is a thugocracy, a state of organized crime.” He has seen reports (unconfirmed reports, he stressed, but he also clearly thought them plausible) that there are formal memoranda of understanding from the FSB to criminal gangs, outlining what the gangs can expect in return for services. “Other governments have done this, but it’s a way of life in Russia. The line between intelligence services and gangs is very vague.”

There’s no such thing as a win-win, Lin said, in the Russian worldview. “To Russia, it’s always win-lose.” Hanauer noted that this seemed a point of difference between Russia and China, and Lin agreed. Where there have been agreements of a sort between the US and China moderate conduct in cyberspace, Lin thinks there’s little evidence that such deterrent or confidence building agreements will have much effect in US-Russian relations.

Protect what’s important? Everything’s important (to the Russians).

Asked about defensive measures, Lin said that, “while there’s a logic to saying, ‘protect what’s important,’ to a good intelligence agency there’s never too much data.”

There are preferences for certain kinds of targets, which Krehel enumerated: first, oil, second, pharma, and a distant third, tech. Tech was less actively prospected because of Russian confidence that “they’re so much better at tech than we are.” Lin agreed, and said there was some basis for that confidence. “In the physics community, for example, we’ve long noted the sophistication of Russian physicists. They have great theoretical insight.”

Humiliation as statecraft, and the commodity tools used to do it.

Murray said he’d recently heard someone lamenting that he missed the Chinese, who just stole without embarrassing you. “That says a lot about Russian operations.”

Turning to the embarrassment inflicted during the US elections, Hanauer asked what kinds of tools the Russians were using for their attacks? Lin answered that the most consequential hack—Democratic Party operative John Podesta’s email—was phishing, a very basic approach.

Krehel said that, during the run-up to the election, he observed the Democratic and Republican National Committee networks being equally pressured by the Russians, the former more successfully than the latter. The approach in both cases focused on human engineering.

The Russian services, Murray explained, focus on engineering end-to-end systems. “‘PowerShell’ is the magic word for Russian coding.” There’s an emphasis on the least common denominator—phishing, PowerShell, darkside commodity tools—in effect a startup mentality. “All their tools are malleable and in motion, all the time.”

Critical infrastructure and acts of war.

Hanauer asked about the much-feared prospect of an attack on US critical infrastructure. Are we seeing, he asked, Russian attacks on US critical infrastructure? And if and when we do, would these be acts of war? “If they’re not trying [to hit US critical infrastructure]” Lin said, “then someone over there should be fired.” In Murray’s view, “Everyone’s trying to figure out the act-of-war line.” He reviewed briefly the history of Russian attacks (a coordinated mix of criminal and intelligence service attacks) on the Ukrainian power grid. He thought Russia would be more circumspect about doing such things to the US grid because, of course, the US is potentially a more dangerous adversary than Ukraine. But he also thought that if the Russians came to believe such attacks would be useful, they wouldn’t hesitate to undertake them.

– See more at: https://thecyberwire.com/events/sinet-itsef-2017/what-the-russians-want-how-russia-uses-cyber-attacks-and-hybrid-warfare-to-advance-its-interests.html#sthash.FnUREpYT.dpuf

Sanctuary Cities Don’t Comply Face Loss of Federal Dollars/Clawback

AG: Sanctuary Cities Face Ineligibility for Future Federal Funds, ‘Clawback’ of Funds Already Awarded

(CNSNews.com) – Attorney General Jeff Sessions said Monday that states and localities that refuse to comply with federal immigration laws will be deemed ineligible for federal grants.

“Today, I’m urging  states and local jurisdictions to comply with these federal laws, including 8 U.S.C. Section 1373. Moreover, the Department of Justice will require that jurisdictions seeking or applying for Department of Justice grants to certify compliance with 1373 as a condition of receiving those awards,” he said, adding that the policy “is entirely consistent with the Department of Justice’s Office of Justice Program’s guidance that was issued just last summer under the previous administration.

“This guidance requires state and local jurisdictions to comply and certify compliance with Section 1373 in order to be eligible for OJP grants. It also made clear that failure to remedy violations could result in withholding grants, termination of grants, and disbarment or ineligibility for future grants,” Sessions added.

“The Department of Justice will also take all lawful steps to clawback any funds awarded to a jurisdiction that willfully violates 1373. In the current fiscal year, the Department of Justice’s Office of Justice Program and Community Oriented Policing services anticipates awarding more than $4.1 billion in grants,” he said.

The attorney general said that in one week alone, “there were more than 200 instances of jurisdictions refusing to honor ICE detainer requests with respect to individuals charged or convicted of a serious crime,” according to a report released recently by the Department of Homeland Security.

“The charges and convictions against these aliens included drug-trafficking, hit-and-run, rape, sex offenses against a child, and even murder. Such policies cannot continue. They make our nation less safe by putting dangerous criminals back on the streets,” Sessions said.

He pointed to the murder of 32-year-old Kate Steinle who was killed two years ago in San Francisco as an example.

“The shooter, Francisco Sanchez, was an illegal immigrant who had already been deported five times and had seven felony convictions,” Sessions pointed out.

“Just 11 weeks before the shooting, San Francisco had released Sanchez from its custody, even though Immigration and Customs Enforcement officers had filed a detainer requesting that he be held in custody until immigration authorities could pick him up for removal. Even worse, Sanchez admitted the only reason he came to San Francisco was because it was a sanctuary city,” the attorney general said.

“A similar story unfolded just last week, when Ever Valles, an illegal immigrant and a Mexican national was charged with murder and robbery of a man at a light rail station. Valles was released from a Denver jail in late December, despite the fact that ICE has lodged a detainer for his removal,” he said.

“The American people are not happy with these results. They know that when cities and states refuse to help enforce immigration laws, our nation is less safe. Failure to deport aliens who are convicted of criminal offenses puts whole communities at risk, especially immigrant communities in the very sanctuary jurisdictions that seek to protect the perpetrators,” Sessions said.

Sessions said recent polling shows that 80 percent of Americans “believe that cities that arrest illegal immigrants for crime should be required to turn them over to immigration authorities.”

“DUIs, assaults, burglaries, drug crimes, gang rapes, crimes against children, and murderers — countless Americans would be alive today and countless loved ones would not be grieving today if these policies of sanctuary cities were ended. Not only do these policies endanger lives of every American — just last May, the Department of Justice inspector general found that these policies also violate federal law,” he said.

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Nine Bipartisan Homeland Security-Related Bills Passed by House

What the House Committee on Homeland security described as an “unprecedented number of bipartisan [bills] aimed at keeping Americans safe,” were passed this last week by the House which deal with a variety of aspects of homeland Security.

The nine pieces of legislation, the committee said, are designed “to … also save taxpayer dollars by improving the acquisition process at the Department of Homeland Security [DHS] and make important reforms to the operations of the Transportation Security Administration [TSA].”

“It is critical that we continue to re-examine our strategy, technology and the infrastructure we currently have in place to strengthen the Department of Homeland Security and stop terrorists from reaching our shores,” said committee chairman Michael McCaul (R-TX). “The evolving threats we face demand action to address vulnerabilities in our defenses. I commend the work of my Committee—particularly the bipartisan nature in which these bills were advanced—to make our country safer.”

The nine bills out the Homeland Security Committee passed by the House included a key counterterrorism bill, the Terrorist and Foreign Fighter Travel Exercise Act of 2017 (HR 1302), which expands on the work of last Congress.

The other key pieces of legislation passed this past week include the:

DHS Multiyear Acquisition Strategy Act of 2017 (HR 1249), introduced by Rep. Brian Fitzpatrick (R-PA), and amends the Homeland Security Act of 2002 to require a multiyear acquisition strategy of DHS.

DHS Acquisition Authorities Act of 2017 (HR 1252), introduced by Rep. Clay Higgins (R-LA), amends the Homeland Security Act of 2002 to provide for certain acquisition authorities for the Under Secretary of Management of DHS.

Reducing DHS Acquisition Cost Growth Act (HR 1294), introduced by Rep. John Rutherford (R-FL), amends the Homeland Security Act of 2002 to provide for congressional notification regarding major acquisition program breaches.

TSA Administrator Modernization Act of 2017 (HR 1309), introduced by Rep. John Katko (R-NY), streamlines the office and term of the administrator of TSA.

Quadrennial Homeland Security Review Technical Corrections Act of 2017 (HR 1297), introduced by Rep. Bonnie Watson Coleman (D-NJ), amends the Homeland Security Act of 2002 to make technical corrections to the requirement that the Secretary of Homeland Security submit quadrennial homeland security reviews.

Transparency in Technological Acquisitions Act of 2017 (HR 1353), introduced by Rep. Kathleen Rice (D-NY), amends the Homeland Security Act of 2002 to require certain additional information to be submitted to Congress regarding the strategic 5-year technology investment plan of the TSA.

Read Homeland Security Today’s report on the bill here.

Securing our Agriculture and Food Act (HR 1238), introduced by Rep. David Young (R-IA), amends the Homeland Security Act of 2002 to make the Assistant Secretary of Homeland Security for Health Affairs responsible for coordinating the efforts of DHS related to food, agriculture and veterinary defense against terrorism.

Read Homeland Security Today’s report on the legislation here.

Terrorist and Foreign Fighter Travel Exercise Act of 2017 (HR 1302), introduced by Rep. Martha McSally (R-AZ), requires an exercise related to terrorist and foreign fighter travel, and for other purposes.

Department of Homeland Security Acquisition Innovation Act (HR 1365), introduced by Rep. Lou Correa (D-CA), amends the Homeland Security Act of 2002 to require certain acquisition innovation.

Visa Overstays are a Bigger Issue then the Border Wall

Primer: If you overstay your visa for 180 days or more (but less than one year), when you depart the U.S. you will be barred from reentering the U.S. for three years. If you overstay your visa for one year or more, when you depart the U.S. you will be barred from reentering the U.S. for ten years.

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Related reading: Rep. Henry Cuellar (D-TX), reports on 30 countries that refuse to take back their criminals. He appeared on CSpan and Full Measure explaining the issue. The Washington Times reports under federal law, the U.S. government can refuse to issue visas to nationals of countries that refuse to take back their citizens who have been ordered deported from the United States. But according to Cuellar, the government is not enforcing the law.
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TruthRevolt reports in part: The Center for Migration Studies reports that “two-thirds of those who arrived in 2014 did not illegally cross a border, but were admitted (after screening) on non-immigrant (temporary) visas, and then overstayed their period of admission or otherwise violated the terms of their visas.” This is a trend, far above illegal crossings, which is anticipated to continue climbing from now on.

“That’s because, incredibly, the U.S. doesn’t have an adequate system to assure the foreigners leave when they’re supposed to,” Judical Watch reports. “This has been a serious problem for years and in fact some of the 9/11 hijackers overstayed their visa to plan the worst terrorist attack on U.S. soil. More than a decade and a half later little has changed. Securing the famously porous southern border is essential to national security but so is a reliable system that cracks down on visa overstays.”

According to the CMS study, there have been 600,000 more overstays than illegal border crossings since 2007. Mexico leads in both overstays and EWIs, or entries without inspection. Here are the breakdowns:

  • California has the largest number of overstays (890,000), followed by New York (520,000), Texas (475,000), and Florida (435,000).
  • Two states had 47 percent of the 6.4 million EWIs in 2014: California (1.7 million) and Texas (1.3 million).
  • The percentage of overstays varies widely by state: more than two-thirds of the undocumented who live in Hawaii, Massachusetts, Connecticut, and Pennsylvania are overstays. By contrast, the undocumented population in Kansas, Arkansas, and New Mexico consists of fewer than 25 percent overstays. More here.

*** So who is responsible for control of this? ICE holds all accountability, which reports to the Department of Homeland Security. What about Congress you ask?

Check this out…

Well, there was a bill introduced in 2013, 2015 and again in January of 2017. Yup. The current bill was only introduced and has a 1% chance of passing. It is only a 2 page bill to amend current law noted as H.R. 643. This bill would make it a crime for visa overstays with defined penalties. It is the U.S. State Department, Bureau of Consular Affairs that is responsible for issuing visas and waivers in the case of denials. If you can stand reading the steps and caveats to this process, go here.

Related reading: DHS Releases Entry/Exit Overstay Report For Fiscal Year 2015

For context on how DHS under Secretary Jeh Johnson at the time packaged the report, here is a sample:

DHS conducts the overstay identification process by examining arrival, departure and immigration status information, which is consolidated to generate a complete picture of an individual’s travel to the United States.  The Department identifies two types of overstays – those individuals for whom no departure has been recorded (Suspected In-Country Overstay) and those individuals whose departure was recorded after their lawful admission period expired (Out-of-Country Overstay).

This report focuses on foreign nationals who entered the United States as nonimmigrant visitors for business (i.e., B1 and WB visas) or pleasure (i.e., B2 and WT visas) through an air or sea port of entry, which represents the vast majority of annual nonimmigrant admissions.  In FY 2015, of the nearly 45 million nonimmigrant visitor admissions through air or sea ports of entry that were expected to depart in FY 2015, DHS determined that 527,127 individuals overstayed their admission, for a total overstay rate of 1.17 percent.  In other words, 98.83 percent had left the United States on time and abided by the terms of their admission.

The report breaks the overstay rates down further to provide a better picture of those overstays that remain in the United States beyond their period of admission and for whom CBP has no evidence of a departure or transition to another  immigration status. At the end of FY 2015, the overall Suspected In-Country Overstay number was 482,781 individuals, or 1.07 percent.

Due to further continuing departures by individuals in this population, by January 4, 2016, the number of Suspected In-Country overstays for FY 2015 had dropped to 416,500, rendering the Suspected In-Country Overstay rate as 0.9 percent.  In other words, as of January 4, DHS was able to confirm the departures of over 99 percent of nonimmigrant visitors scheduled to depart in FY 2015 via air and sea POEs, and that number continues to grow.

This report separates Visa Waiver Program (VWP) country overstay numbers from non-VWP country numbers.  For VWP countries, the FY 2015 Suspected In-Country overstay rate is 0.65 percent of the 20,974,390 expected departures. For non-VWP countries, the FY 2015 Suspected In-Country Overstay rate is 1.60 percent of the 13,182,807 expected departures. DHS is in the process of evaluating whether and to what extent the data presented in this report will be used to make decisions on the VWP country designations.

Overall, CBP has improved the collection of data on all admissions to the United States by foreign nationals, biometric data on most foreign travelers to the United States, and processes to check data against criminal and terrorist watchlists.  CBP has also made tremendous progress in accurately reporting data on overstays to better centralize the overall mission in identifying overstays.  CBP will continue to roll out additional pilot programs during FY 2016 that will further improve the ability of CBP to accurately report this data.

U.S. Immigration and Customs Enforcement’s (ICE) Counterterrorism and Criminal Exploitation Unit (CTCEU) is the program dedicated to the enforcement of nonimmigrant visa violations.  Each year, ICE analyzes records of hundreds of thousands of potential status violators from various investigative databases and DHS entry/exit registration systems. The goal is to identify, locate, prosecute when appropriate, and remove overstays consistent with DHS’s immigration enforcement priorities, which prioritize those who pose a risk to national security or public safety.

Read more here.

The Counterterrorism and Criminal Exploitation Unit prevents terrorists and other criminals from exploiting the nation’s immigration system. Really? Yup, that is what the website reads. In a hearing from 2012, you may be interested in reading the testimony on the matter of visa overstays delivered by DHS Deputy Counterterrorism Coordinator John Cohen and ICE Homeland Security Investigations Deputy Executive Associate Director Peter Edge.

DOJ Moves to Remove U.S. Citizenship of AQ Operative

Department of Justice                                 The official criminal complaint is here.
Office of Public Affairs

FOR IMMEDIATE RELEASE
Monday, March 20, 2017

Denaturalization Lawsuit Filed Against Convicted Al Qaeda Conspirator Residing In Illinois

The United States has filed a civil action in the Southern District of Illinois against a 47-year-old naturalized citizen, formerly of Cleveland, Ohio, accused of unlawfully procuring his U.S. citizenship, announced Acting Assistant Attorney General Chad A. Readler of the Justice Department’s Civil Division and U.S. Attorney Donald S. Boyce for the Southern District of Illinois.

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Iyman Faris, a native of Pakistan, is currently serving a criminal sentence at the U.S. Penitentiary at Marion, Illinois for conspiracy to provide material support to a designated foreign terrorist organization, namely, al Qaeda, and for providing material support to al Qaeda. In October 2003, the U.S. District Court for the Eastern District of Virginia sentenced Faris to 20 years in prison. The civil complaint alleges that Faris entered the United States fraudulently by using another’s passport that he willfully misrepresented the circumstances under which he entered the United States on subsequent applications for immigration benefits, and that he twice testified falsely to obtain immigration benefits. Additionally, the complaint alleges Faris lacked the required attachment to the principles of the U.S. Constitution at the time of his naturalization, as proven by his 2003 federal conviction for providing material support to al Qaeda, a designated terrorist organization. Faris was naturalized as a U.S. citizen on Dec. 16, 1999.

“The Department’s Office of Immigration Litigation will continue to pursue denaturalization proceedings against known or suspected terrorists who procured their citizenship by fraud,” said Acting Assistant Attorney General Readler. “The U.S. government is dedicated to strengthening the security of our nation and preventing the exploitation of our nation’s immigration system by those who would do harm to our country.

“The prosecution of this case demonstrates the commitment of the Department of Justice to preventing immigration fraud,” said U.S. Attorney Boyce. “It is important to ensure the path to legal naturalization remains secure and free of fraud. When people enter the United States, immigrate, and later become citizens, all done through fraud and misrepresentation, their unlawful actions harm the integrity of our immigration system.”

Under the Immigration and Nationality Act, a naturalized U.S. citizen’s citizenship may be revoked, and his certificate of naturalization canceled, if the naturalization was illegally procured or procured by concealment of a material fact or by willful misrepresentation.

This case was investigated by the Civil Division’s Office of Immigration Litigation, District Court Section and U.S. Immigration and Customs Enforcement. The litigation is being handled by Trial Attorney Edward S. White of the Office of Immigration Litigation and Assistant U.S. Attorney Nicholas J. Biersbach of the U.S. Attorney’s Office for the Southern District of Illinois.

The claims made in the complaint are allegations only, and there has been no determination of liability.

*** On background, here is the basis of the case from 2003:

IYMAN FARIS SENTENCED FOR PROVIDING MATERIAL SUPPORT
TO AL QAEDA

WASHINGTON, D.C. – Attorney General John Ashcroft, Assistant Attorney General Christopher A. Wray of the Criminal Division, and U.S. Attorney Paul McNulty of the Eastern District of Virginia announced today that Iyman Faris was sentenced to 20 years in prison for providing material support and resources to al Qaeda and conspiracy for providing the terrorist organization with information about possible U.S. targets for attack.

Faris, a/k/a Mohammad Rauf, 34, of Columbus, Ohio, was sentenced this afternoon by U.S. District Court Judge Leonie M. Brinkema, at federal court in Alexandria, Virginia. Before sentencing Faris, Judge Brinkema denied Faris’ request that he be allowed to withdraw his guilty plea.

Faris, a naturalized U.S. citizen born in Kashmir, pleaded guilty on May 1, 2003, to casing a New York City bridge for al Qaeda, and researching and providing information to al Qaeda regarding the tools necessary for possible attacks on U.S. targets.  More here.

 

Government ‘Dark’ Regulations Mapped Out

Read the report in .pdf form here.

One of the first Executive Orders signed by President Trump was on Regulations. Read that text here from the White House.

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Mapping Washington’s Lawlessness: CEI Releases Updated Inventory of “Regulatory Dark Matter”

The Competitive Enterprise (CEI) released the 2017 update to its comprehensive report Mapping Washington’s Lawlessness: An Inventory of “Regulatory Dark Matter.” This analysis covers how, in addition to Congress’s own laws and the many thousands of rules issued by unelected regulators, regulatory dark matter exists in the form of thousands of additional issuances from executive and independent agencies. This dark matter goes around Congress, the Administrative Procedure Act’s (APA) public notice and comment requirements, and the American people themselves.

Examples include presidential and agency memoranda, guidance documents, bulletins, and public notices. These directives interject the federal government into our businesses, our communities, and our personal lives on matters such as healthcare, retirement, labor policy, education policy, and more.

President Trump is already taking certain steps to “deconstruct” the administrative state’s excesses, starting with a temporary regulatory freeze that includes agency guidance documents and rules. His executive orders concerning deregulation are helping, but a regulatory hangover from the Obama administration still lingers.

CEI’s Vice President for Policy Clyde Wayne Crews, Jr., the author of the report, calls on Congress to remedy the problem:

“Congress needs to take back its authority over federal agencies. The problem with regulatory dark matter is that it allows the executive branch of our government to rule sectors of our economy through mere announcements, rather than actual lawmaking or even proper rulemaking. This allows the government to interfere in many aspects of Americans’ lives without our input or that of Congress.

“We’ve been pleased to see the president’s aggressive out-of-the-gate actions to free up the economy, but agencies under President Trump could still create new dark matter behind the scenes. That is why Congress must tackle regulatory reform legislation to ensure an end to this problem.”

Some quick takeaways on regulatory dark matter:

  • Regulatory dark matter has accompanied the rollout of programs ranging from Obamacare to Dodd Frank to drone regulations from the Federal Aviation Administration.
  • Recent major Labor Department mandates like the franchising and independent contracting rules were dark matter, not formal regulations as they should have been.
  • No one really knows for certain how many federal regulatory agencies there are:
    • The Unified Agenda lists 61 agencies
    • The Administrative Conference of the United States lists 115
    • The Federal Register office 440 agencies
  • The Obama administration issued 3853 rules in 2016, while Congress passed and the president signed 214 bills into law – a ratio of 18 rules for every enacted law.
  • The report’s conclusion lists specific ways the Trump administration, either alone or with Congress, can tackle regulatory dark matter so that agencies are not incentivized to use it.
    • APA “notice and comment” provisions should apply to any proposed rule
    • Each piece of regulatory reform legislation passed in the 115th Congress and beyond needs to incorporate language to address dark matter, not just rules

*** A weekday never passes without new regulations being issued or proposed. Yet beyond those rules, Congress lacks a clear grasp of the amount and cost of the thousands of executive branch and federal agency proclamations and issuances, including guidance documents, memoranda, bulletins, circulars, and letters that carry practical (if not always technically legally) binding regulatory effect. There are hundreds of “significant” agency guidance documents now in effect, plus many thousands of other such documents that are subject to little scrutiny or democratic accountability.

It has long been the case that there are far more regulations than laws. That is troublesome enough. But with tens of thousands of agency proclamations annually, agencies may articulate interpretations and pressure regulated parties to comply without an  actual formal regulation or understanding of costs, generally with judicial deference to what agencies contend, an issue of increasing concern to Congress. The result is that no one knows how much the regulatory state “weighs,” or even the number of agencies. The Administrative Procedure Act (APA) of 1946 established the process of public notice for proposed rulemakings, providing the opportunity for public input and comment before a final rule is published in the Federal Register, and a 30-day period before the rule becomes effective. But the APA’s requirement of publishing a notice of proposed rulemaking and allowing public comment does not apply to “interpretative rules, general statements of policy, or rules of agency organization, procedure, or practice.”