Joe Biden's nominee to lead a Department of Homeland Security unit that fights foreign cyber threats negotiated a sweetheart deal that allowed an American cyberspy to avoid jail time for hacking the phones of human rights activists and journalists on behalf of the United Arab Emirates.
Financial disclosures reveal that Kenneth Wainstein, whom Biden tapped to serve as undersecretary for intelligence and analysis at DHS, represented Marc Baier, a former National Security Agency analyst charged with hacking for the United Arab Emirates. As a contractor at the firm DarkMatter, Baier led "Project Raven," a campaign the Emiratis used to spy on critics of the regime.
One target of the initiative was an activist who had criticized the Emirati government. Another was a British journalist who had criticized the UAE's human rights record, according to reports. Baier and two colleagues at DarkMatter admitted to purchasing cyber tools from American companies to use in the hacking campaign. They also ignored warnings that they had failed to get approval from the U.S. government to use the cyber tools.
If confirmed, Wainstein will serve as DHS's liaison to the intelligence community and oversee DHS's Cyber Mission Center. The center analyzes cyber threats such as Russia's attempts to hack U.S. election infrastructure in 2016. The Biden administration is planning to lead a coalition of nations to curb the sale of hacking tools to authoritarian regimes. The indictment of Baier and his colleagues highlights the growing industry of former American spies who go to work for foreign governments, a trend that has concerned some American spy agencies. The CIA's assistant director for counterintelligence last year warned former officers against going to work for foreign governments, saying they would "undermine" U.S. national security.
Wainstein represented Baier in a settlement with the Justice Department. In September, Baier was required to pay $750,000 and relinquish his security clearances in exchange for a deferral of his prosecution, according to government documents. A former Justice Department national security official said the deferment was "extraordinarily lenient" to the hackers, given that they knew their conduct violated federal export laws. Brandon Van Grack, who served as head of the Justice Department's Foreign Agents Registration Act division, said the government "rarely" extends deferred prosecution agreements in export control cases.
The Justice Department and Wainstein did not respond to questions about their negotiations in the Baier case.
Wainstein is well known in national security circles, having served in top positions at DHS, the Justice Department, and the FBI during the George W. Bush administration. A lifelong Republican, Wainstein last year broke with his party to endorse Joe Biden for president, calling Donald Trump "a threat to the rule of law."
Wainstein's financial disclosure shows he represented other controversial clients, including Purdue Pharma, the company that has been sued for fueling the opioid epidemic. Wainstein also represented Naeem Tyab, a Canadian energy executive indicted for bribing Chadian officials. Wainstein served as legal counsel for former CIA director John Brennan, former director of national intelligence James Clapper, and other government officials, according to his financial disclosure.