Cyber Operations, Legal Secrecy, and Civil-Military Relations
What civil-military challenges will arise from the virtual world of cyber warfare? Congress and the president have grown increasingly comfortable with permissive grants of authorities and decentralized delegations—including via classified documents with legal force (secret law)—, allowing military commanders to operationalize cyber tools in both defensive and offensive modes with greater ease and frequency. These cyber tools are unusually complex in their variety, design, and potential uses, at least relative to more traditional and conventional weapons. Their technical attributes render them difficult to monitor and regulate because those responsible for decisions to use such weapons—civilian officials—are often least likely to have experience or familiarity with them. The relatively low-cost, rapid-effect nature of cyberwar also encourages not just use in armed conflict, but also below the standard threshold of war. Cyber operations initiated without careful inter-agency planning, decision process, and presidential review drive up operational risk and undermine civil-military norms. To foster more effective civilian oversight and control of the nation’s military’s cyber sword, and to encourage more deliberative application of ever-evolving technologies, Congress should use its constitutional authorities over “the [cyber] land and naval Forces” to craft better decision processes and better civil-military and legal transparency balances.