Answering the Cyber Oversight Call

Abstract

In the past few years, a revised cyber strategy, a spate of new cyber authorities, and revamped presidential directives have significantly expanded the cyber capabilities of the U.S. military. This expansion has coincided with a weakening and dispersion of traditional congressional oversight mechanisms, creating a separation of powers mismatch. This mismatch, and the necessarily stealthy features that characterize cyber operations, inhibit Congress’s ability to gain a comprehensive understanding of the use and deployment of these cyber powers, while obscuring the use of such powers from the public as well. Put bluntly, the traditional congressional oversight mechanisms are not suited to the cyber oversight task. There is a need to find alternative players able to answer the cyber oversight call. To fill this gap, scholars have proposed various “surrogates” and “intermediaries” including foreign allies, local governments, technology companies, and other private sector actors. This Article urges a different approach by examining the consequential role of the Department of Defense Office of Inspector General (DoD OIG) from the cyber oversight perspective. Although often maligned and misunderstood as the bean counters of the federal government, inspectors general serve critical functions in our constitutional scheme, both as internal checks on abuses of executive power and as conduits of information to the legislative branch. The DoD OIG is uniquely positioned and equipped to fill the gaps in the cyber oversight framework, and to ensure that the political branches are working together to appropriately limit and guide the use of these vast new cyber powers. In sum, this Article explores the DoD OIG’s distinctive ability to answer the cyber oversight call.

Keywords: cyberspace, separation of powers, national security

JEL Classification: K4omma separated]