Self-Defensive Force Against Cyber Attacks: Legal, Strategic and Political Dimensions

When does a cyber attack (or threat of cyber attack) give rise to a right of self-defense – including armed self-defense – and when should it? By cyber attack I mean the use of malicious computer code or electronic signals to alter, disrupt, degrade or destroy computer systems or networks or the information or programs on them. It is widely believed that sophisticated cyber attacks could cause massive harm – whether to military capabilities, economic and financial systems, or social functioning – because of modern reliance on system interconnectivity, though it is highly contested how vulnerable the United States and its allies are to such attacks. This article examines these questions through three lenses: (1) a legal perspective, to examine the range of reasonable interpretations of self-defense rights as applied to cyber attacks, and the relative merits of interpretations within that range; (2) a strategic perspective, to link a purported right of armed self-defense to long-term policy interests including security and stability; and (3) a political perspective, to consider the situational context in which government decisionmakers will face these issues and predictive judgments about the reactions to cyber crises of influential actors in the international system. My main point is that these three perspectives are interrelated, so lawyers interested in answering these questions should incorporate the strategic and political dimensions in their analysis. This is not just to make the banal, generic point that politics, strategy and law are interrelated. Of course they are. Rather, this article aims to show specifically how development of politics, strategy and law will likely play out interdependently with respect to this particular threat – cyber attacks – and to draw some conclusions about legal development in this area from that analysis. The focus of this essay on military self-defense to cyber attacks (that is, self-defense in a legal sense of resort to force) is not meant to suggest that this is the most important element of a comprehensive cybersecurity strategy – far from it. Most attention these days is properly on other components of that strategy, including better network security and offensive cyber measures, though military force is part of the strategic tool set. Also, an important caveat is that this analysis is self-consciously colored with an American perspective. If one assumes, as I do, though, that legal analysis and development cannot be divorced from strategy and politics, then America\u27s power – in its various forms – and vulnerabilities to power will greatly influence its own interpretive approach to these issues, and because of its relative power globally it will greatly influence international legal movement in this area

The Power to Threaten War

Existing war powers scholarship focuses overwhelmingly on the President\u27s power to initiate military operations abroad and the extent to which that power is constrained by Congress. It ignores the allocation of legal power to threaten military force or war, even though threats – to coerce or deter enemies and to reassure allies – are one of the most important ways in which the United States government wields its military might. This paper fills that scholarly void, and draws on recent political science and historical scholarship to construct a richer and more accurate account of the modern presidency\u27s powers to shape American security policy. The swelling scope of the President\u27s practice in wielding threatened force largely tracks the standard historical narrative of war powers shifting from Congress to the President. Indeed, adding threats of force to that story might suggest that this shift in powers of war and peace has been even more dramatic than usually supposed. This Article shows, however, that congressional influence operates more robustly – and in different ways – than usually supposed in legal debates about war powers to shape strategic decision-making. In turn, these mechanisms of congressional influence can enhance the potency of threatened force. By refocusing the debate on threatened force and its credibility requirements, this Article also calls into question many orthodoxies of the policy advantages and risks attendant to various allocations of legal war powers. Instead of proposing a policy-optimal solution, the Article concludes that the allocation of constitutional war powers is – and should be – geopolitically and strategically contingent. The actual and effective balance between presidential and congressional powers over war and peace in practice necessarily depends on shifting assumptions and policy choices about how best to secure U.S. interests against potential threats

The Caroline Affair in the Evolving International Law of Self-Defense

The Caroline incident – an 1837 raid by British Canadian militia across the Niagara River border to sink an American steamboat being used by Canadian insurgents – is well-known to many international lawyers. United States Secretary of State Daniel Webster’s resulting correspondence with British representative Lord Ashburton is often cited today as a key authority on customary international self-defense standards. University of Ottawa professor Craig Forcese has produced a valuable new history and analysis of that event, its legal context, and its continuing influence: Destroying the Caroline: The Frontier Raid that Reshaped the Right to War. As explained in this review, the book corrects some misunderstandings about the incident and shows its continuing relevance to contemporary international legal debates about military force. It also helps in understanding this period of U.S. foreign relations law, especially with regard to powers of war and peace

Presidential Use of Force in East Asia: American Constitutional Law and the U.S.-Japan Alliance

The U.S. Constitution’s allocation of military authority has adapted over time to major shifts in American power and grand strategy. This paper explains, with a focus on U.S. military actions in East Asia and possible scenarios of special joint concern to the United States and Japan, that the president in practice wields tremendous power and discretion in using military force. Although formal, legal checks on the president’s use of force rarely come into play, Congress nevertheless retains some political power to influence presidential decision-making. The president’s powers are also constrained by interagency processes within the executive branch, and alliance relations often feed into those processes

Syria, Threats of Force, and Constitutional War Powers

In this Essay, Professor Matthew Waxman argues that debates about constitutional war powers neglect the critical role of threats of war or force in American foreign policy. The recent Syria case highlights the President’s vast legal power to threaten military force as well as the political constraints imposed by Congress on such threats. Incorporating threats into an understanding of constitutional powers over war and peace upends traditional arguments about presidential flexibility and congressional checks – arguments that have failed to keep pace with changes in American grand strategy

Cyber Attacks as Force Under UN Charter Article 2(4)

In a 2010 article in Foreign Affairs, Deputy Secretary of Defense William Lynn revealed that in 2008 the Department of Defense suffered the most significant breach of U.S. military computers ever when a flash drive inserted into a US military laptop surreptitiously introduced malicious software into US Central Command\u27s classified and unclassified computer systems. Lynn explains that the US government is developing defensive systems to protect military and civilian electronic infrastructure from intrusions and, potentially worse, disruptions and destruction, and it is developing its own cyber-strategy to defend the United States in the digital age. To what extent is existing international law, including the UN Charter, adequate to regulate cyber attacks and related offensive and defensive activities today and in the future? By cyber attacks I mean efforts to alter, disrupt, degrade or destroy computer systems or networks or the information or programs on them. This article examines one slice of that legal puzzle: the UN Charter\u27s prohibitions of the threat or use of force contained in Article 2(4). Other writings in this volume deal with questions such as Article 51\u27s self-defense provisions and questions of State responsibility, and there are other international legal prohibitions and regulations that are relevant as well. But Article 2(4) is a good place to start because it establishes or reflects foundational principles upon which most international law regulating international security sits. As a general matter, military attacks are prohibited by Article 2(4) except in self-defense or when authorized by the UN Security Council. Also as a general matter, most economic and diplomatic assaults or pressure, even if they exact tremendous costs on a target State, are not barred in the same way. Where along the spectrum in between might cyber attacks – which have some attributes of military attacks and some attributes of non-military pressure – lie? Almost a decade ago, in a previous volume of this series, Professor Yoram Dinstein observed of cyber attacks: The novelty of a weapon – any weapon – always baffles statesmen and lawyers, many of whom are perplexed by technological innovation.... [A]fter a period of gestation, it usually dawns on belligerent parties that there is no insuperable difficulty in applying the general principles of international law to the novel weapon.... This article takes up that claim in examining how US officials, scholars and policy experts have sought to adapt the UN Charter\u27s basic principles. This analysis yields two descriptive insights. First, it shows that American thinking (both inside and outside the government) inclines toward reading prohibited force broadly enough to include some hostile actions that might be carried out with bits of data in cyberspace. Although not necessarily inconsistent with interpretations previously dominating American thinking, this recent inclination reflects a shift away from the stricter readings of Article 2(4) and related principles that the United States government defended in the past when it was often the United States and its allies resisting efforts by some other States to read force broadly or flexibly. Second, any legal line drawing with respect to force and modes of conflict has distributive effects on power, and it is therefore likely to be shaped by power relations. Because States have different strategic cyber-capabilities and different vulnerabilities to those capabilities, it will be difficult to reach international consensus with regard to the UN Charter\u27s application to this problem

United States Detention Operations in Afghanistan and the Law of Armed Conflict

Looking back on US and coalition detention operations in Afghanistan to date, three key issues stand out: one substantive, one procedural and one policy. The substantive matter – what are the minimum baseline treatment standards required as a matter of international law? – has clarified significantly during the course of operations there, largely as a result of the US Supreme Court’s holding in Hamdan v. Rumsfeld. The procedural matter – what adjudicative processes does international law require for determining who may be detained? – eludes consensus and has become more controversial the longer the Afghan conflict continues. And the policy matter – in waging counterinsurgency warfare, how do foreign military forces transition military detention operations to effective civilian institutions? – has emerged as a critical strategic priority for which the law of armed conflict provides little instructive guidance. After briefly outlining the basis of US and coalition detention operations, this article addresses each of these issues in turn. It concludes with some general observations about the convergence of law and strategy

Siegecraft and Surrender: The Law and Strategy of Cities and Targets

The razing of Jericho; the sack of Magdeburg; the siege of Leningrad; the fire-bombing of Dresden. Ever since civilizations began organizing permanent economic settlements, cities and towns have occupied a central role in warfare and in our images of war. On almost every page of historical writings, remarked Grotius, you may find accounts of the destruction of whole cities, or the leveling of walls to the ground, the devastation of fields, and conflagrations. A driving force behind the evolution and development of cities has been defense and security. As a result, how-ever, cities have become a primary target or object of war, exposing their residents to all the ravages and privations of conflict. While the targeting of cities has remained a constant in warfare, the political role of cities within the nation-state has shifted. The centralization of authority during the past several centuries made states the primary political unit comprising the international system, while economic development and nationalism made cities integral to the functioning of that modern state. As the strategic significance of cities, and the value military planners place on their protection or capture, has changed, so too have the customs and international legal norms that govern how cities were to be treated during hostilities

Administrative Detention of Terrorists: \u3cem\u3eWhy\u3c/em\u3e Detain, and Detain \u3cem\u3eWhom\u3c/em\u3e?

This article aims to reframe the administrative detention debate, not to resolve it. In doing so, however, it aspires to advance the discussion by highlighting the critical substantive choices embedded in calls for legal procedural reform and by pointing the way toward appropriately tailored legislative options. It argues that the current debate’s focus on procedural and institutional questions of how to detain suspected terrorists has been allowed to overshadow the questions of why administratively detain, and whom to detain. Not only are the answers to these questions at least as important as the procedural rules in safeguarding and balancing liberty and security, but their resolution should precede analysis of the procedural issues. The soundness of any specific procedural architecture depends heavily on its purpose and on the substantive determinations it is expected to make