Cyber Attacks and the Law of War: Decoding the Pentagon’s Response

The Pentagon recently stated it intends to treat sufficiently destructive cyber attacks as acts of war, subject to armed retaliation. In its report to the Congress, the Department of Defense (DoD) stated the use of armed force was on the extreme end of a continuum of policy choices rather than a default response. Yet the term “cyberwar” seems to imply the application of international humanitarian law (IHL) in the context of an armed conflict. Cyber attacks within an armed conflict, like those during the South Ossetia war of 2008, are problematic because organized crime and private citizens can more feasibly act on the basis of nationalist agendas rather than government direction. But most instances of cyber attacks against governments occur outside of armed conflict. Given most cyber attacks against American government infrastructure and websites occur outside of armed conflict and authorship of attacks is rarely certain, what are the implications of the DoD’s announced policy for the laws of war?

The first issue raised by “cyberwar” is whether a cyber attack can rise to the kind of attack indicative of war. War under IHL is conceptualized as the resort to protracted and intense armed force by two or more parties. Armed conflict is either between States, characterized as international armed conflict, or between States or armed groups operating inside a single State, referred to as non-international armed conflict. While the distinction can be ambiguous, both forms of conflict are characterized by the loss of life as a result of the commission of an attack. However, cyber attacks have yet to directly kill anyone. Cyberwarfare also raises the issues of what actions constitute an appropriate response to attacks, and to whom attacks should be attributed.

The DoD’s report provides the President with a wide array of options to confront cyber attacks, including intelligence, diplomacy, and law enforcement. For a cyber attack to rise to an act of war, it would have to trigger a self-defense claim, yet no war was started over a cyber attack, including those that caused widespread disruption in Estonia. The DoD report mentions cyber attacks meriting an armed response but mentions attacks that disable or damage vital infrastructure. IHL governs the conduct of the war rather than the beginning of the war. Assuming a cyber attack occurs within armed conflict it can be met with force and considered a war crime if it violates IHL. Such acts typically involve indiscriminate or disproportionate attacks upon a protected population or property. Interpretation will be necessary because none of the treaties which compose the body of IHL refer to cyber attacks, and the only international treaty governing cyber attacks addresses it as a crime issue. States could issue proportionate reprisals to respond to a cyber attack that violated IHL in order to deter future violations as a last resort, made from the highest level of government. On the other hand, any automatic use of armed force to respond to any cyber attack outside of armed conflict is as an act of aggression, because it would involve using force in the territory of another State in violation of that State’s sovereignty. The target could be a residential area or an internet café, likely resulting in substantial collateral damage. Unless the cyber attack was catastrophic, an armed response to a cyber attack would likely start a war or international controversy.

In the case a cyber attack is the catalyst for a war or is carried out during the context of armed conflict, the DoD report highlights multiple policy options prior to the use of force. The strategy it outlines focuses on deterrence and international cooperation in cultivating the growth of international law regulating cyberspace. Other States like Russia have adopted similar policies. Deterrence is questionable in practice. Cyber attacks can and are perpetrated by third parties acting for various reasons without State direction. To assign legal responsibility to a State for the cyber attacks of third parties, the injured State would have to prove those third parties were essentially organs of the accused State, acting at that State’s direction and on its behalf. In the alternative, the injured State would have to apply a standard focusing on the degree of control by the State, such as funding, legal and practical support. Effective deterrence involves dissuading third parties and potential State sponsors, which the DoD seeks to do through conventional means like law enforcement, intelligence, and international cooperation. Ultimately, the DoD announcement is about recognizing the emergence of a new theater of operations in cyberspace, not rewriting international humanitarian law.

Sequestration: At Odds With National Security?

The subject of sequestration is poised to take a significant role in coming weeks when Congress returns from its August recess and the presidential campaigns hold their respective party conventions. Sequestration’s meaning and its possible impact on the nation’s finances, particularly money spent on national security, may not yet be widely known, but nevertheless is being hotly contested within the national security field.

The process of sequestration aims to cut an additional $1.2 trillion over 10 years from the federal budget as a means of reducing the country’s deficit and was set in motion by last summer’s negotiations between the White House and Congress to raise the nation’s debt ceiling limit. The eleventh-hour borrowing agreement resulted in the Budget Control Act of 2011, in which both sides also agreed to $900 billion in spending cuts and set up a special committee tasked with identifying $1.2 trillion more in cuts over the next decade. If the committee failed to do so, blanket cuts to defense spending and other domestic programs would be automatically implemented under sequestration. The clock started ticking on sequestration after the committee announced last November that it was unable to agree on a deficit-reduction plan. Automatic cuts are set to start to take effect January 2, 2013, unless Congress acts in the meantime.

What sequestration means in terms of national security is largely shaped by the effect the automatic cuts would have on spending by the Department of Defense (DOD). Under sequestration, defense spending would be trimmed by $55 billion per year over the next 10 years. These annual cuts would be in addition to an already $487 billion budget reduction planned over the next decade by the Pentagon. In a House Armed Services Committee hearing on cuts under sequestration held earlier this month, Deputy Defense Secretary Ash Carter warned that sequestration would be a “major step” to creating “an unready, hollow” military force. Carter told the committee that sequestration in 2013 would cause the Pentagon to purchase four fewer F-35 fighter jets, one fewer P-8 aircraft, 12 fewer Stryker vehicles and 300 fewer Army medium and heavy tactical vehicles. The cuts could also lead to DOD partial hiring freezes or unpaid furloughs for civilian workers, he said. Executives at defense contractors such as Lockheed Martin Corp., the Pentagon’s biggest contractor, have also warned recently of possible layoffs or plant closures if sequestration goes into effect. In a June 21 report, the National Association of Manufacturers estimated 1 million jobs might be lost, including 130,000 manufacturing jobs, by 2014, as a result of defense spending cuts.

But would sequestration’s cuts jeopardize the country’s national security as Pentagon and industry officials claim or instead serve to reasonably trim a burgeoned U.S. defense industry? Facts and figures cited in a Salon.com article by Jeremiah Goulka argue the latter. In fiscal year 2012, Goulka states, U.S. spending on defense was set at about $676 billion. This amount means the U.S. spends five times more than China and Russia combined, according to the article citing the International Institute for Strategic Studies. The figure also illustrates a significant increase in military spending over the last decade, as top-line defense spending rose from $412 billion to $700 billion under George W. Bush, the article states. By comparison, under Ronald Regan military spending increased from $444 to $580 billion before settling at $524 billion, and George H.W. Bush reduced spending to $435 billion (in 2012 dollars). Goulka also argues that with 3,200 tactical combat aircraft – already about 1,000 more than China – in its arsenal, the US can afford to do without the $400 billion estimated cost of the threatened F-35 Joint Fighter Program – the most expensive weapon system procurement program in American history. Goulka claims similar reasoning of costs failing to justify needs applies to other defense programs that likely would be affected by sequestration.

Unfortunately, an earnest debate on an appropriate defense spending level sufficient to maintain national security is unlikely to occur because the issue arises within the political context of the final months of a presidential election and the larger battle between Republicans and Democrats over cuts to each party’s spending priorities

and possible tax hikes to address the country’s deficit. With little more than four months left before sequestration takes effect, expect another eleventh-hour agreement that offers only a short-term fix to an issue that deserves a more thoughtful analysis and long-term solution.

Ranger School for Females?

The Department of Defense revised the combat restriction for females in February, and since then, questions have been circulating regarding future

revisions. The DoD revision now restricts females from serving in direct ground combat units below the battalion level. This departed from previous policy, which restricted females from serving in direct ground combat units below the brigade level. Typically, an Army battalion has about 3,000-5,000

soldiers, while a brigade is the next larger unit, consisting of about 3-5 battalions. Changing the combat restriction opened over 14,000 Army jobs to females that were previously only opened to males.

In May, the Army’s Chief of Staff General Ray Odierno announced that because ninety percent of infantry officers who reach senior status are Ranger qualified, the Army is researching whether and how to open Ranger school to females. He elaborated that, “. . . if we determine that we’re going to allow women to go into infantry and be successful, they are probably at some time going to have to go through Ranger school.”

The Army has many training opportunities and Ranger School is regarded as one of the most rigorous, evidenced by its high attrition rates because only about 50% of candidates graduate. Ranger School is a grueling sixty-one day course where candidates average a half hour to three hours of sleep a night, and one 1250 calorie vacuum-packed meal per day.

The Army also has Sapper School for combat engineers and Airborne, or “Jump School” for any service member. Sapper School is a demanding and stressful twenty-eight day course that some graduates argue to be tougher than Ranger School. Notable training in Sapper School requires cadets to survive by killing animals with their bare hands. Airborne School is a twenty-one day course where candidates earn their “wings” by parachuting from C-130 or C-17 aircrafts at 1250 feet. Both Sapper School and Airborne School are open to females; yet, the schools differ in how they became co-ed. Sapper School maintained uniform standards for males and females physical tests. At first, female graduation rates were about 38%, but now they are equal to the male graduation rates. Conversely, Airborne School modified the physical standards for females at first. Later, Airborne School revised its standards, making them uniform for females and males. With these experiences to learn from, Army officials are researching whether to maintain uniform physical fitness standards or modify the standards if females are integrated into Ranger School.

Both proponents and opponents of opening Ranger School to females argue against modifying the physical fitness standards. They reason that if physical standards are lowered for females, it may detract from the prestige and value of attaining the Ranger patch. One female Sapper graduate remarked that she would attend Ranger School if it were opened to females, but stated that, “I think it is absolutely imperative that . . . absolutely nothing changes about the standard of performance. If you at all cheapen the value of that tab in the eyes of anyone who’s earned it or who earns it in the future, you are doing a great disservice to the legacy of the Rangers and to the legacy of women.”

Opponents of opening Ranger School to females argue that requiring uniform standards would be a disservice to the Army and to Ranger School candidates. The argument follows that if the physical standards are maintained, then female attrition and injury rates will increase. This argument is supported by the fact that the Army recognizes a disparity in physical abilities between males and females for the Basic Training fitness test that currently requires females to meet lower standards for the push-up, sit-up, and two mile run. Additionally, opponents argue that the fight load – how much weight each Ranger School cadet must carry –will be more too heavy for most females, thus their male battle buddies would be forced to pick up the slack.

General Odierno ordered the head of the U.S. Army Maneuver Center of Excellence, Major General Robert Brown, and the head of the U.S. Training and Doctrine Command, General Robert Crone, to research the issues of allowing females into infantry battalions and Ranger School. Following an order from the Secretary of Defense, Leon Panetta, by November, the Army will elicit a recommendation regarding whether and how it may integrate females into Ranger School.

President Obama's DHS to Shift away from Terrorism

The Obama Administration released the first Quadrennial Homeland Security Review on Monday. The document, 88 pages long, is a strategy document meant to outline budget priorities for the next four years.  The Review lists five missions backed by 14 goals, including preventing terrorism and enhancing security, securing U.S. borders, enforcing immigration laws, securing cyberspace and ensuring a vibrant response to disasters.  While preventing terrorism is the cornerstone of homeland security, the review identified hazards such as cyberattacks, pandemics, natural disasters, illegal trafficking and transnational crime.

Quadrennial Defense Review Report.

Modeled after the Quadrennial Defense Review, the Administration is attempting to move away from “budget politics of the moment” and move towards a comprehensive vision.  The Review won praise from both conservatives and liberals, and it is the culmination of a steady move away from terrorism caused by the mishap of Hurricane Katrina.  A “bottom-up” review is expected to buttress and elaborate the Review in 2012.

This review comes on the heels of President Obama’s proposed fiscal 2011 budget.  Funding for DHS would be up to $53.6 billion, a 2% increase from the current budget.  The budget would include $734 million to deploy Advanced Imaging Technology (“full-body” scanners) and new explosives detection equipment for the nation’s airports, $4.6 billion to support 20,000 Border Patrol Agents and to complete the first segment of the virtual fence along the nation’s border with Mexico, $1.6 billion for Immigration and Customs Enforcement programs to “expeditiously identify and remove” from the United States illegal immigrants who commit crimes, and $billion in state and local programs for equipping, training, and hiring first responders.

Official's Resignation Latest Challenge Facing Gitmo Closure

Almost immediately following his inauguration, President Barack Obama pledged to close the Guantanamo Bay detention facility by January 22, 2010. Following this declaration, however, closure efforts have been faced with a steady number of challenges, such as relocation of detainees, political pressure from federal lawmakers, and difficulty in retaining officials.

In early November of this year, Gregory B. Craig, White House counsel charged with Administration detainee policy, resigned his post. Following Craig’s resignation, the White House has also announced that it will not be able to meet the self-imposed January 22 deadline. With that news, a further setback occurred, as Philip Carter, Deputy Assistant Secretary of Defense for detainee policy, resigned. Carter indicated that “personal and family reasons” were the basis for his resignation. Although Carter’s rationale appears apolitical, some commentators have argued that his resignation is anything but.

Amid growing progressive dismay with Obama’s adoption of the Bush Administration’s stance on the state secrets doctrine (among other Executive policies), Salon’s Glenn Greenwald speculates that Carter’s resignation was no mere personal decision. Instead, the close timing of Craig and Carter’s resignations may suggest that they are vacating in protest. Conversely, Wired.com’s Noah Shachtman, a personal acquiantance of Carter, asserts that there may have been legitimate family reasons that triggered the resignation. The Atlantic links to further discussion of the basis for Carter’s regisnation.

Regardless of the political or apolitcal character of Carter’s departure, the Obama Administration has needed to engage in a delicate political balancing act over national security. Although it has essentially adopted the Bush stance on state secrets, for example, the Obama DoJ has indicated that state secrets doctrine is not immune to later reexamination. Over Guantanamo, the Administration has faced critics on the left and right, who charge that change is coming too slowly, or that change is jeopardizing the US, respectively.