Preemption: Not Just for Neocons (or Shooting Wars) Any More

by Daniel Foster

I’m old enough to remember when the moral and strategic argument for launching preemptive or preventive attacks against rogue states with WMD or lawless territories harboring terrorists was part of a neocon plot to inaugurate an endless war.

But much the same as things like Gitmo, drone strikes, and the unitary executive have become less problematic over the last four years, the need for (highly classified) protocols governing preemptive and preventive action against America’s enemies is now being embraced by the current administration.

See the New York Times’ genuinely fascinating article on the administration’s year-long development of a legal framework for military and intelligence protocols on cyber warfare:

WASHINGTON — A secret legal review on the use of America’s growing arsenal of cyberweapons has concluded that President Obama has the broad power to order a pre-emptive strike if the United States detects credible evidence of a major digital attack looming from abroad, according to officials involved in the review.  Related Hackers in China Attacked The Times for Last 4 Months (January 31, 2013) Pentagon Expanding Cybersecurity Force to Protect Networks Against Attacks (January 28, 2013) Connect With Us on Twitter

That decision is among several reached in recent months as the administration moves, in the next few weeks, to approve the nation’s first rules for how the military can defend, or retaliate, against a major cyberattack. New policies will also govern how the intelligence agencies can carry out searches of faraway computer networks for signs of potential attacks on the United States and, if the president approves, attack adversaries by injecting them with destructive code — even if there is no declared war.

Of course, President Obama didn’t invent cyber-warfare. And indeed, like the drone program, cyber assaults such as Operation Olympic games, which helped slow down the Iranian nuclear program, have their roots in the Bush administration. But as in so many other areas, the current administration is both expanding their scope and concentrating authority around the president:

One senior American official said that officials quickly determined that the cyberweapons were so powerful that — like nuclear weapons — they should be unleashed only on the direct orders of the commander in chief. 

A possible exception would be in cases of narrowly targeted tactical strikes by the military, like turning off an air defense system during a conventional strike against an adversary.

“There are very, very few instances in cyberoperations in which the decision will be made at a level below the president,” the official said. That means the administration has ruled out the use of “automatic” retaliation if a cyberattack on America’s infrastructure is detected, even if the virus is traveling at network speeds.

The world is an increasingly complicated place, and it’s good that the national-security complex is thinking through new challenges. But to make the obvious political point, it will be interesting if and how the media/public reaction to developments like this changes when there is a Republican in the White House.

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