07 Jun Does the World Need a CyberWarfare Arms Limitation Treaty?
Now that the U.S. military has a CyberCommand, is it time for the U.S. to begin talks on a CyberWarfare Arms Limitation Treaty with Russia and other nations? (CALT?) The new Cyber Command chief says…maybe. Stewart Baker at Volokh, and former Homeland Security official in the Bush administration and author of a forthcoming book Skating on Stilts, thinks this is a really bad idea. The problem is that the U.S. military is highly legalized, and likely cyber-enemies are not.
The rise of JAG authority over every detail of warfighting means that the Pentagon would be exquisitely sensitive to arguable violations of international law in carrying out operations in cyberspace. Our guys would sit with their fingers poised over the “return” button for hours while the JAGs were trying to figure out whether the Belarussian remarks in committee were a consensus or an individual interpretation of article 42bis. And nobody else would give a damn what the treaty said, because they wouldn’t expect to get caught and because even implausible deniability can’t be rebutted with the certainty needed to make a legal case, let alone send missiles in response.
This seems sensible, but I don’t know enough about cyberwarfare to know if he’s right. And his description of the power of the JAGs over U.S military operations sounds right to me.
Comments of Judge Advocate (JA) power or authority over US military operations are overblown and border on misstating the JAG Corps’ role. JAs work in and with a command and advise the commander and staff on how to accomplish the mission. Contrary to misperceptions, JAs dont develop rules of engagement or “veto” targeting strikes.
Thanks for that clarification. This piece read like a smear on JAGs by the Intelligence types. With cyber dependence won’t there come the need for such a treaty in any event?
Best,
Ben
Response…The problem is that the U.S. military is highly legalized, and likely cyber-enemies are not.
This is a broad statement considering the number of conflicts [wars if you will] of questionable legality the U.S. military has engaged in unless one is arguing that "Oh, the military is highly legalized except on the question of making war, that is left up to the politicians and the military abdicates any responsibility to the "big" question." But call me naive in a different way.
The problem is also that governments cannot and will not disclose what forms of attack they have in their ‘cyber-arsenal’, for the very good reason that once they do, they can be defended against (obviously people can make an educated guess at some of them though). Also, they have incredible utility in supporting conventional attacks and states are unlikely to want to curb that. Thus any cyber treaty that actually gets agreed on will end up by stating general principles – which we already have. We simply need to adjust our mindset to apply them to a digital age. A military objective is still a military objective even if its server rather than a building.
I served as a Navy JAG Corps officer for 23 years, retiring as a Captain. In that time I served on four “4 star” staffs, to include the VCNO, then CINCPACFLT (now COMPACFLT), then CINCPAC (now COMPACOM), and COMUSJFCOM. I often focused on operations support; indeed that was my primary duty at the two Pacific commands. I also served as Fleet JAG to the Commander of the US Seventh Fleet and in support of various joint and combined task forces assigned to that officer for command. This is not the first time I have read comments of the so called power of the “JAGs” over military operations – with bemusement and amazement. This was certainly not the case in my experience. In my experience, the SJA on an operational staff is a supporting advisor to the commander, assisting him in risk assessment and planning, much like the intelligence officer (J2) and the Plans, policy and strategy officer (J5). One of my 4 star commanders often would say, rather pointedly: “Lawyers advise, commanders decide.” Certainly the experience — well documented by former Navy General Counsel Alberto Mora — of the military JAGs in the decision making over interrogation practices after 9/11 tends… Read more »
I think the main problem is that the United statess military is too highly legalised.