NDAA Signing Prompts White House Planning on BBG, End to 'Dual-Hat' Cyber Leadership

The Obama administration aired constitutional concerns with the transition language in Section 1288 on the empowerment of a BBG CEO, regarding presidential appointments and removal powers. “My Administration will devise a plan to treat this provision in a manner that mitigates the constitutional concerns while adhering closely to the Congress's intent,” Obama said in his signing statement.

Radio Television Digital News Association (RTDNA) Executive Director Mike Cavender objected earlier this month to elements of the proposed CEO position, worrying about BBG independence (see 1612130070). Obama must develop his plans by the Jan. 20 inauguration of President-elect Donald Trump.

“Until details of President Obama’s mitigation plan are known, RTDNA cannot be certain of their impact on the day-to-day and long-range policies of these important broadcasting organizations,” Cavender told us Tuesday. “However, concentrating the total operating authority for them in the hands of one individual, who serves at the pleasure of the president, still opens up the agency to potential partisan conflicts that could affect the fairness of its journalistic mission.”

Obama otherwise backed changes to the BBG. “My Administration strongly supports the bill's structural reform of the Broadcasting Board of Governors (BBG), which streamlines BBG operations and reduces inefficiencies, while retaining the longstanding statutory firewall, protecting against interference with and maintaining the professional independence of the agency's journalists and broadcasters and thus their credibility as sources of independent news and information,” Obama said. “Section 1288 would elevate the current Chief Executive Officer of the Broadcasting Board of Governors to the head of the agency and reduce the current members of the Board, unless on expired terms, from serving as the collective head of the agency to serving as advisors to the Chief Executive Officer.”

Obama also said his administration will back leadership changes for cybersecurity. “I strongly support elevating CYBERCOM to a unified combatant command and ending the dual-hat arrangement for NSA and CYBERCOM -- a position my Administration has communicated to the incoming Administration,” Obama said in the signing message, citing consultation with the Defense secretary and the office of the director of national intelligence. “While the dual-hat arrangement was once appropriate in order to enable a fledgling CYBERCOM to leverage NSA's advanced capabilities and expertise, CYBERCOM has since matured and the current construct should be replaced through a deliberate, conditions-based approach to separating the organizations. The two organizations should have separate leaders who are able to devote themselves to each organization's respective mission and responsibilities, but should continue to leverage the shared capabilities and synergies developed under the dual-hat arrangement. To these ends, the Department of Defense and the Office of the Director of National Intelligence have taken steps to ensure that separation would occur in a phased manner that enables NSA to continue to provide vital operational support to CYBERCOM during a transition period.”

Obama criticized “Congress's interest in strengthening our Nation's cyber capabilities and ensuring that the NSA and CYBERCOM" by the provisions as drafted and said that “Congress should leave decisions about the establishment of combatant commands to the executive branch and should not place unnecessary and bureaucratic administrative burdens and conditions on ending the dual-hat arrangement at a time when the speed and nature of cyber threats requires agility in making decisions about how best to organize and manage the Nation's cyber capabilities.”

The incoming Trump administration hasn't weighed in on its plans for the leadership positions. Trump said Tuesday he appointed Tom Bossert, a fellow with the Atlantic Council and former official in the George W. Bush administration, assistant to the president for homeland security and counterterrorism. “We must work toward cyber doctrine that reflects the wisdom of free markets, private competition and the important but limited role of government in establishing and enforcing the rule of law, honoring the rights of personal property, the benefits of free and fair trade, and the fundamental principles of liberty,” Bossert said in a statement. “The internet is a U.S. invention, it should reflect these U.S. values as it continues to transform the future for all nations and all generations.”

The White House signing statement didn’t mention the expected spectrum provisions of the law. It sets up a pilot program on spectrum warfare in the Department of Defense and requires its officials to develop a spectrum warfare plan by April 1. The NDAA amended the Communications Act of 1934 to add a section on what it called harmful interference to DOD GPS. The new section is called “Conditions on Commercial Terrestrial Operations” and said the FCC “shall not permit commercial terrestrial operations in the 1525-1559 megahertz band or the 1626.5–1660.5 MHz band until the date that is 90 days after the Commission resolves concerns of widespread harmful interference by such operations in such band to covered GPS devices.” The defense secretary will have to review within 90 days of enactment “the ability of covered GPS devices to receive signals from Global Positioning System satellites without widespread harmful interference” and then “determine if commercial communications services are causing or will cause widespread harmful interference with covered GPS devices,” its final text said.

The law also inserts new language on protecting federal spectrum operations into the Bipartisan Budget Act of 2015 (HR-1314), which included significant spectrum language in its Spectrum Pipeline Act provisions compelling the freeing up of 30 MHz. If reporting “determines that reallocation and auction of the spectrum described in the report would harm national security by impacting existing terrestrial Federal spectrum operations at the Nevada Test and Training Range," the FCC should "establish rules for licensees in such spectrum sufficient to mitigate harmful interference to such operations,” it said.