The Domestic Legal Framework for U.S. Military Cyber Operations

Hoover Institution Aegis Paper Series No. 2003, 2020

U of Texas Law, Public Law Research Paper No. 722

20 Pages Posted: 18 Sep 2020

See all articles by Robert Chesney

Robert Chesney

University of Texas School of Law

Date Written: August 1, 2020

Abstract

Conventional wisdom holds that Congress has abandoned its duty regarding the government’s war powers. It is not hard to understand why. Between the agelessness and flexibility of the 2001 and 2002 Authorizations for Use of Military Force (AUMFs) and periodic unilateral uses of military force in Libya, Syria, and Iraq, the executive branch appears to act largely at its own discretion when it comes to conventional military operations. But matters are different in the cyber domain. With little fanfare and less public notice, Congress and the executive branch have cooperated effectively over the past decade to build a legal architecture for military cyber operations. This framework reflects recurring and constructive congressional engagement. The resulting structure is far less familiar to most observers than its cousins — those architectures associated with conventional military operations and intelligence activities — but is no less important. This is particularly true in light of the Pentagon’s commitment to the “defend forward” operational model.

Keywords: cyber, cyber-command, cyber-security, defend forward, persistent engagement, covert action, military cyber operations, computer network operations

Suggested Citation

Chesney, Robert, The Domestic Legal Framework for U.S. Military Cyber Operations (August 1, 2020). Hoover Institution Aegis Paper Series No. 2003, 2020 , U of Texas Law, Public Law Research Paper No. 722, Available at SSRN: https://ssrn.com/abstract=3668463

Robert Chesney (Contact Author)

University of Texas School of Law ( email )

727 East Dean Keeton Street
Austin, TX 78705
United States

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