NPR had an excellent short piece on the laws regarding US military engagement for cyberwar–something several of my students will be helpful in shaping.
Recently, the Senate confirmed General Keith Alexander to head U.S. Cyber Command, a command dedicated to protecting US military networks from cyber-espionage and cyber-attack. While the military is recruiting and training “fighters in the cyber domain” (read, people with technical skills), the military also needs a legal framework for engaging in cyber activities (needing people with legal skills).
The US military adopts and follows rules of engagement. These are rules on how to engage the enemy–including when force is authorized, what kind of force is authorized, and who can authorize it. These rules are related to our international obligations–undertaken in treaties and based on custom–referred to as the laws of armed conflict. The rules of engagement cannot violate our international obligations, so we can think of the laws of armed conflict as outer bounds of the rules of engagement. Often, our rules of engagement will be even stricter–providing, say, greater protection for civilians and neutral countries.
The NPR story discusses how the US Cyber Command is grappling with the legal issues. Some include: who in the chain of command can authorize a counter-attack under particular circumstances; when and how can the military respond to an attack being routed through a neutral country (considering, for example, the Hague Convention); when is a preemptive cyber strike justified?
While teaching, I ask these questions, and others like them, every year in a class on Global Communications and Cyberwarfare Law. We spend weeks on these issues–none of which yet have clear answers.
And, in my class, every year has been one US Air Force JAG attorney getting an LLM degree in the University of Nebraska’s Space & Telecom program. After receiving the LLM, that JAG returns to the military to advise on cyber law and policy.
And I’m quite proud of them, for their hard work and for the task they’ve taken on for the nation.
So I’ll brag for a moment.
Our first wrote an excellent LLM thesis arguing that, on balance, a new cyberwar treaty is unnecessary. She has been an advisor to Air Force’s “Cyber Command,” officially known as the 24th Numbered Air Force.
Our second is completing her thesis on how some domestic telecom rules could impede cybersecurity. She will soon help advise the US Cyber Command.
Our third, who begins in August, has big shoes to fill. But he has already impressed me when I met him at a recent conference we had in Nebraska.
So, at any rate, this is a post bragging about my excellent students and how proud I am of them. I have enjoyed the intellectual challenge of working on such complex legal issues with the exceptional lawyers that the Air Force has sent to our program. And it’s an important challenge.
But this also gives me the opportunity to convey how thoughtfully and systematically (it seems from my point of view) the US military is addressing the legal, and even ethical, issues in this new space. They should be commended.