Congress Sanctions Offensive Military Action in Cyberspace

Thursday, December 15, 2011

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Congress has officially sanctioned the option for the military to use offensive measures in cyberspace should the tactics be deemed necessary.

The language which supports the use of offensive capabilities was tucked away in the 2012 defense authorization act which has progressed to the point of reconciliation by the House and Senate and is expected to be signed into law by President Obama soon.

Section 954 of the the FY 2012 defense authorization act states that “Congress affirms that the Department of Defense has the capability, and upon direction by the President may conduct offensive operations in cyberspace to defend our Nation, allies and interests."

House and Senate conferees further acknowledged that given the lack of a comparable theater of action prior to the advent of modern information and communications technologies such as the Internet, operations in cyberspace should be conducted in a fashion similar to traditional military options.

“The conferees recognize that because of the evolving nature of cyber warfare, there is a lack of historical precedent for what constitutes traditional military activities in relation to cyber operations and that it is necessary to affirm that such operations may be conducted pursuant to the same policy, principles, and legal regimes that pertain to kinetic capabilities,” a conference report regarding the defense authorization act stated.

The Congressional conferees went on to acknowledge that the use of offensive measures in cyberspace may be at times considered the most expedient and effective way for the military to address identified threats.

“The conferees also recognize that in certain instances, the most effective way to deal with threats and protect U.S. and coalition forces is to undertake offensive military cyber activities, including where the role of the United States Government is not apparent or to be acknowledged. The conferees stress that, as with any use of force, the War Powers Resolution may apply," the report said.

Congressional authorization comes just a few weeks after the Pentagon produced a twelve page report that reiterates assertions that the United States reserves the right to respond with military force to any "significant cyber attacks directed against the U.S. economy, government or military".

The report was mandated as part of the 2011 Defense Authorization Act, and provides the strongest language to date regarding the prospect that a coordinated cyber attack could elicit a traditional military reprisal.

"When warranted, we will respond to hostile attacks in cyberspace as we would to any other threat to our country. We reserve the right to use all necessary means - diplomatic, informational, military and economic - to defend our nation, our allies, our partners and our interests," the report stated.

Earlier this year, the Department of Defense had concluded that the Laws of Armed Conflict, which govern the level of appropriate military action in the face of naked aggression by a foreign power, should also extend to the cyberspace field of operations.

This most recent report underscores the fact that the Pentagon takes the threat of cyber aggression most seriously, and is in no way limiting the range of responses available to the military under the direction of the Commander and Chief.

"If directed by the president, DoD will conduct offensive cyber operations in a manner consistent with the policy principles and legal regimes that the department follows for kinetic capabilities, including the law of armed conflict," the report continued.

The measure of a cyber attack and the corresponding response would be determined by evaluating the level of "death, damage, destruction or high-level disruption" caused by an attack. Under this strategy, a sizable event could prompt a significant military response given the level of damage incurred

 

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