[EL] "critical Infrastructure" and national police

[Paul Lehto]

This bombshell investigative report shows heavy rightwing militia presence
at critical national infrastructure such as gas plants in North Dakota.  A
Three Percenter candidate for office in Washington state backs up the claim
of militia presence in gas and oil and a former FBI terrorism expert
emphasized its seriousness. Other experts are quoted.  It is quite
comprehensive.

Disclosure: I am one of two whistleblowers quoted in the article and
knowing and having worked with militia folks I wouldn't be the least bit
surprised to see them get involved with "securing our elections" against
"voter fraud."

https://www.desmogblog.com/2020/07/21/three-percenters-militia-bakken-oil-oneok-domestic-terrorism

My address below is no longer up to date.

Paul

On Thu, Jul 23, 2020, 3:26 PM Kirsten Nussbaumer <kirsten_n at me.com> wrote:

> Thanks, Charles, this is helpful.  But the two-pager doesn't give me the
> reassurance I want.  (Seriously, I want someone to please give me that egg
> on my face.)
>
> In a more general way, I’ve been raising questions about the national
> securitization of election law (in a few conference papers and public talks
> ~2016-18) based in part on the broad statutory language for “critical
> infrastructure” and DHS power to remedy an attack on CI and to keep some
> such matters secret (i.e. the statutory framework that was enacted before
> the non-statutory CI designation for elections).
>
> I have not checked to see if any of the relevant language has been amended
> or reassuringly interpreted or if it appears in an entirely different light
> when interpreted against related statutes.
>
>  (Yes, my original list-serve post is, in part a Tom Sawyer quest to get
> someone else to do my homework on what's happened in the relevant
> legislation, agencies and scholarship.  But, I’m also happy to get others
> to think they want this to be their homework too.)
>
> I do not see the CRS two-pager as even addressing my questions about the
> national securitization of election law.  If it refutes my concerns, then I
> think it does so only by not addressing them.  (Perhaps the silence hints
> that my questions are outside of the Overton window, but if so, what stays
> there these days?  And if the CI statutory framework is much broader and
> open-ended?)
>
>
> On your point about the worries that were voiced when the CI designation
> occurred, I do not think the quantity of public and scholarly attention was
> commensurate to the importance of the issues.  But, yes, arguments from
> *federalism or states rights* did get some attention (from the
> power-guarding state officials who objected to NVRA, HAVA, etc. but also
> from serious election scholars—e.g.. if I remember correctly, from Derek
> Muller).
>
> The fact that so many state and local elected officials are comfortable
> NOW with the DHS role is also, to me, of little relevance by itself.  I
> imagine they are comfortable and happy with the same kinds of DHS work that
> make me happy and grateful (hence my mention in the original post about
> DHS’s vital election-security work).
>
> However, DHS (like most large organizations) is not just one thing, and
> even one thing can evolve into some other thing over time.  State and local
> election administrators are largely encountering DHS and other federal
> agencies in the election-security roles that are assistive, consultative,
> non-regulatory, non-coercive, and (at least at most levels) non-partisan.
>  (Questions of funding levels and prioritization and presidential viewpoint
> may always have a political aspect.)
>
> What I did not encounter *anywhere* in the original CI debate and not
> since then (perhaps just my lack of thoroughness or access to the insiders
> you may know better) is my questions about other (more centralized) kinds
> of DHS roles that may be very different from what you and the two-page have
> in mind.
>
> My questions include:
>  the unintended consequences of inserting (some of) election
> law/administration into the statutory framework of critical infrastructure
> and perhaps other national-security statutes; the fact that the CI leg/reg
> can come with some very open-ended language, e.g., acute agency responses
> to a perceived attack on critical infrastructure (not something within the
> current ken of state and local elected officials); the long-run risks of
> increased national securitization of election law in the absence of
> conscious election-specific design principles  (e.g.. protections against
> partisanship and in favor of transparency and public ‘ownership’ of
> elections), [and again, leaving aside my more theoretical/historical
> (non-federalism) constitutional questions].
>
> Federalism concerns can be an important part of this discussion, but they
> can also be orthogonal or independent of the kinds of policy concerns I’m
> raising.  If the effects of dividing power through federalism are being
> tested right now in the Portland courthouse context (with, e.g., the fact
> that the OR Atty General has filed suit against DHS), of course the same
> kind of federal/state contest might happen in the DHS elections context.
>
> But the questions I ask about encompass much more than federalism
> (including what properly belongs to legislative authority, what is
> necessarily public).  If I were having a full constitutional/admin-law
> discussion, my own lay-of-the-legal-land wouldn’t actually be that much
> about federalism.
>
> I have never claimed “deep knowledge of the designation of elections as
> critical infrastructure,” and hope with you that some such person will
> weigh in.  What I do claim is that (outside of the valuable federalism
> challenge from Muller, etc.)   I have not come across *any* sustained
> analysis (deep or not) of the statutory CI framework as applied to
> elections and no analysis of the (non-federalism) constitutional-design
> implications of giving some role (apparently including some coercive power)
> over election law/administration to secrecy-oriented agencies not
> constructed with the same kinds of concerns about nonpartisanship and
> public control that have informed election law.  (Folks out there whose
> work I’m missing, please feel free to share.)
>
> thanks, and forgive me for writing fast without edits,
> Kirsten
> —others who are not at work white-washing this fence between election law
> and nat’l security don’t know what they are missing. Come on over...
>
>
> On Jul 23, 2020, at 5:01 PM, Charles H Stewart <cstewart at mit.edu> wrote:
>
> I am hoping that someone with deep knowledge of the designation of
> elections as critical infrastructure weighs in, but until then, a couple of
> things.
>
>
>    1. The Congressional Research Service has a two-pager on this issue:
>    https://fas.org/sgp/crs/misc/IF10677.pdf.
>    2. DHS has regularly noted that the CI designation confers no
>    regulatory or enforcement authority on the federal government.  Worries
>    consistent with those expressed in the e-mail were among those voiced when
>    the CI designation occurred.  My observation as an outsider is that state,
>    who are very jealous of their autonomy from federal regulation in election
>    administration, are comfortable with the federal involvement with elections
>    within the CI designation.
>
>
> From my reading of the situation, if one wants to worry about what
> Portland portends for November, focusing on the CI designation is a
> diversion.
>
> -cs
>
> *From:* Law-election <law-election-bounces at department-lists.uci.edu> *On
> Behalf Of *Kirsten Nussbaumer
> *Sent:* Thursday, July 23, 2020 4:12 PM
> *To:* law-election at uci.edu; rhasen at law.uci.edu
> *Subject:* [EL] "critical Infrastructure" and national police
>
> Dear colleagues:
>
> Some of the news and commentary on the DHS forces in Portland (Federal
> Protective Services, CBP, federal marshals, or who knows) has been
> indirectly linking the action to the November election (e.g.. speculating
> that this is part of the President's electoral strategy).  But I have not
> come across anything about whether there might be any prospect of a more
> direct connection to the election and election administration.
>
> Here, I am not immediately fearing the most dystopian scenarios for
> November.  (Perhaps, the reaction of courts, national security elites or
> the public to the policing in Portland is going to discourage more
> innovations in national policing.)  For now, I am more interested in
> whether the *legal* authority presently claimed by the DHS for Portland
> might be loose enough to cover direct national policing of elections as
> easily as it does the current rationale of protection of monuments, federal
> properties, etc.
>
> Of course, DHS personnel acting have been taking election protection as a
> core mission  in good faith since President Obama and DHS Secretary Jeh
> Johnson designated elections as "critical infrastructure".  (For present
> purposes, I set aside constitutional and other legal objections to the
> designation.)  There's no doubt many DHS folks have been doing vital
> election-security work, and that national elite acceptance of “
> elections-as-critical-infrastructure” now straddles two administrations (of
> different parties).
>
> However, a DHS-led national police force on an election-protection mission
> in the election-administration field (e.g., a polling place, vote-counting
> site, post office) at the discretion of only executive officials (at the
> present, perhaps ones who are only in "acting capacity", not
> Senate-confirmed) would surely be a wild escalation of national executive
> power in elections, no?  I hope someone (on or off list) can tell me what I
> am missingion to even consider this quest.  I will be happy to have egg on
> my face with this one!
>
> If elections as "critical infrastructure" and the current DHS's legal
> authority claims might be taken as warrant for intervention in elections as
> easily as what is happening in Portland, then what would be the
> self-limiting principles?  Could DHS run with the asserted legal authority
> of its latest memo* and treat any claim of election fraud or a pandemic
> emergency as a factual predicate for a policing intervention?  Would DHS
> (as in Portland) feel entitled to act regardless of state or local
> permissions?  (Or what if a state government official of one party
> disagreed with the relevant state or local government officials of the
> other party on whether to grant permission or declare an election attack in
> need of a DHS remedy?)  If DHS policing of the election were to be premised
> only on decisions of DHS or the president, what would they consider a valid
> factual predicate?  Could it be the always ongoing cyberattacks (not easily
> verified by the public)?  The currently ongoing pandemic?
>
> Under the "critical infrastructure” statutory language, would DHS feel
> entitled to keep its plans and reasoning a secret in advance or even
> classify it for the long-run?
>
> Again, I am not in late July willing to imagine that this will be a
> realistic factual scenario for November.  (I don’t perceive the Portland
> action as popular or electorally helpful.)  But it seems important to me to
> understand the legal parameters regardless of the factual odds because
> legal authorities that are *claimed*  (even if not acted upon) might matter
> some elections down the road, if not this round.
>
> If there is a discussion on these things that I have missed, please
> forgive me (and ideally direct me to them).  It is hard to keep up with the
> information overload!
>
> merci,
> Kirsten
>
> *Speaking of the DHS memo, I am benefiting from and riffing off Steve
> Vladeck and Benjamin Wittes at Lawfare [writing on non-election matters]:
>
>   "The new memo, which is undated, is styled as specific implementation
> guidance with respect to the protests for more general rules
> <https://www.dhs.gov/sites/default/files/publications/office-of-intelligence-and-analysis-intelligence-oversight-program-and-guidelines.pdf>
>  regarding DHS intelligence activity. These rules authorize I&A
> intelligence activities on what are termed “departmental missions” where
> they assist in combatting domestic terrorism threats; threats to *critical
> infrastructure* and key resources; significant threats to the economic
> security, public health or public safety; major disasters and other
> catastrophic acts; or “any other threat of such severity and magnitude that
> effective response would be beyond the capabilities of any affected State
> and local governments, such that Federal assistance would be necessary.”
>  *The rules also contain this catch-all sentence: “In addition, the
> intelligence activities of I&A personnel further a departmental mission
> where they support the Secretary, the Deputy Secretary, the DHS Chief of
> Staff, or their respective staff, Component Heads, or any other
> departmental officials, offices, or elements in the execution of their
> lawful missions.” In other words, if the president directs DHS and the rest
> of the government to protect monuments, then intelligence activity in
> support of monument protection is arguably furthering the departmental
> mission"*
> [emphasis added]
>
>
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