Cyber 'Hostilities' and the War Powers Resolution

AuthorAllison Arnold
PositionResearch Associate, Defense Policy and Arms Control, Congressional Research Service, Foreign Affairs, Defense, and Trade Division, Washington, D.C.
Pages174-192
174 MILITARY LAW REVIEW [Vol. 217
CYBER “HOSTILITIES” AND THE WAR POWERS
RESOLUTION
ALLISON ARNOLD
I. Introduction
The Pentagon appears to be advancing toward a more offensive
strategy in cyberspace.1 At the very least, there seems to be a growing
acknowledgment of the U.S. military’s offensive cyber capabilities. For
example, the head of U.S. Cyber Command, General Keith Alexander,
announced in March that the Pentagon will have thirteen offensive cyber
teams by fall 2015.2 In April, the U.S. Air Force classified six of its
cyber capabilities as “weapons.”3 These recent pronouncements seem to
increase the likelihood that the United States may engage in future
offensive military activities in cyberspace.
It has become clear in the modern age that the cyber domain is as
relevant for military activities as the domains of land, sea, air, and
space.4 The increased use of cyber operations in modern warfare has
been well documented by scholars.5 Much of the legal analysis on the
use of cyber operations has focused on international law and the use of
force.6 This article turns from that debate to focus on U.S. domestic law
Research Associate, Defense Policy and Arms Control, Congressional Research
Service, Foreign Affairs, Defense, and Trade Division, Washington, D.C. J.D., 2013;
B.A., 2001, Brigham Young University. Member of the Virginia State Bar. The author
would like to thank Professor Eric Talbot Jensen for his mentoring and encouragement.
1 Tom Gjelten, First Strike: US Cyber Warriors Seize the Offensive, WORLD AFF. J.,
Jan./Feb. 2013, available at http://www.worldaffairsjournal.org/article/first-strike-us-
cyber-warriors-seize-offensive.
2 Ellen Nakashima, Pentagon Creates Teams to Launch Cyberattacks as Threat Grows,
WASH. POST, Mar. 12, 2013, available at http://articles.washingtonpost.com/2013-03-
12/world/37645469_1_new-teams-national-security-threat-attacks.
3 Andrea Shalal-Esa, Six U.S. Air Force Cyber Capabilities Designated “Weapons,
REUTERS, Apr. 8, 2013, http://www.reuters.com/article/2013/04/09/net-us-cyber-airforce-
weapons-idUSBRE93801B20130409 (designating the cyber capabilities as weapons to
help the programs compete for funding and garner more attention and recognition).
4 See U.S. DEPT OF DEF., QUADRENNIAL DEFENSE REVIEW REPORT 37 (2010).
5 See Eric Talbot Jensen, Cyber Deterrence, 26 EMORY INTL L. REV. 773, 775–76
(2012); Lesley Swanson, The Era of Cyber Warfare: Applying International
Humanitarian Law to the 2008 Russian-Georgian Cyber Conflict, 32 LOY. L.A. INTL &
COMP. L. REV. 303, 304 (2010).
6 See generally Eric Talbot Jensen, Computer Attacks on Critical National
Infrastructure: A Use of Force Invoking the Right of Self-Defense, 38 STAN. J. INTL L.
2013] CYBER “HOSTILITIES” & WAR POWERS 175
and the implications of congressional efforts to reach offensive
operations in cyberspace.
At the end of 2011, Congress addressed “Military Activities in
Cyberspace” in the National Defense Authorization Act for Fiscal Year
2012 (NDAA 2012).7 As will be discussed in Part II, Congress made an
effort to impact the governance of offensive military cyber operations by
referring to a piece of domestic legislation known as the War Powers
Resolution. The War Powers Resolution was enacted forty years ago
over the veto of President Nixon.8 There is a great deal of literature and
scholarly debate about its constitutionality and adequacy.9 This article
will not attempt to revisit those issues, but will instead examine the
limitations of Congress’s reference to the War Powers Resolution and
offensive military cyber operations in the NDAA 2012. This article
proffers an in-depth analysis of the interaction between offensive
military cyber operations and the “hostilities” triggering language of the
War Powers Resolution. The article argues that under current practice,
the executive branch is unlikely to deem stand-alone offensive military
activities in cyberspace as “hostilities” that trigger the statute.
This article begins with an analysis of the “Military Activities in
Cyberspace” section of the NDAA 2012 and its connection to the War
Powers Resolution. Part III examines the record of the 1973 Congress to
review how the term “hostilities” came to be the operative language of
the War Powers Resolution. Part IV explores how the executive branch
has explained which type of military activities it considers to be
207 (2002); Herbert S. Lin, Offensive Cyber Operations and the Use of Force, 4 J. NATL
SEC. L. & POLY 63 (2010); Michael N. Schmitt, Computer Network Attack and the Use
of Force in International Law: Thoughts on a Normative Framework, 37 COLUM. J.
TRANSNATL L. 885 (1999); Matthew C. Waxman, Cyber-Attacks and the Use of Force:
Back to the Future of Article 2(4), 36 YALE J. INTL L. 421 (2011).
7 National Defense Authorization Act for Fiscal Year 2012, Pub. L. No. 112-81, § 954,
125 Stat. 1298, 1551 (2011).
8 See Veto of the War Powers Resolution, 5 PUB. PAPERS 893 (Oct. 24, 1973).
9 See, e.g., Geoffrey S. Corn, Triggering Congressional War Powers Notification: A
Proposal to Reconcile Constitutional Practice with Operational Reality, 14 LEWIS &
CLARK L. REV. 687 (2010); Geoffrey S. Corn, Clinton, Kosovo, and the Final Destruction
of the War Powers Resolution, 42 WM. & MARY L. REV. 1149 (2001); Michael J.
Glennon, Too Far Apart: Repeal the War Powers Resolution, 50 U. MIAMI L. REV. 17
(1995); Robert F. Turner, The War Powers Resolution: Unconstitutional, Unnecessary,
and Unhelpful, 17 LOY. L.A. L. REV. 683 (1984); MILLER CTR. OF PUB. AFFAIRS, UNIV. OF
VA., NATIONAL WAR POWERS COMMISSION REPORT (2008); THE CONSTITUTION PROJECT,
DECIDING TO USE FORCE ABROAD: WAR POWERS IN A SYSTEM OF CHECKS AND BALANCES
(2005).

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