Congress’s Role in Cyber Warfare

Abstract

U.S. defense and intelligence communities are currently working feverishly to prepare for electronic warfare. The threat of a cyber attack on the United States is extremely serious. Many nations and individuals now possess the means to carry out such an attack, and it might be impossible to identify the attacker. If the United States launches a preemptive strike or counterattack, it could be difficult to predict the effects, raising significant law of armed conflict concerns.

The potential strategic and diplomatic consequences of cyber warfare are at least at great as those of a conflict using conventional kinetic weapons. The Framers intended that Congress play a significant role in deciding when and how the United States should engage in such a consequential conflict. Yet little effort has been made so far to describe an appropriate role for Congress.

Borrowing from our experience in planning for nuclear war, this article suggests that Congress immediately engage in collaborative planning with the executive branch for cyber warfare. Specifically, it urges Congress to organize itself better to conduct this planning, to adopt general guidelines for the use of cyber weapons, and to strengthen existing rules for oversight and accountability. It proposes a review of relevant privacy laws. And it argues for a prohibition on automated offensive responses to cyber attacks, as well as on the employment of contractors to operate cyber weapons.

Keywords: cyber, war, warfare, Congress, intelligence