Constitutional duties in the era of cyber warfare

Debates over the proactive use of American military power have had one consistent characteristic: A lack of concern about direct retaliation on the U.S. mainland. 

It is important to note that there has always been the possibility of terrorist reprisals against the U.S. and its citizens such as Muammar Gaddafi’s bombing of Pan Am Flight 103.  However those were always relatively remote fears, especially as more time elapses since the attacks of 9/11. 

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The assumption that we could attack anyone except for another superpower with relative impunity no longer exists.  Due to the proliferation of cyber weaponry, we now face the possibility of digital retaliation at any time.  Congress in particular needs to assert itself much more forcefully in decisions to use force.

To understand the implications of this change, one must start with recognition of the proliferation of cyber arms.  Numerous countries have invested in offensive cyber weapons with outsized results.  For example, the Chinese are masters of cyber attacks, regularly penetrating critical public and private networks.  North Korea has significant cyber capabilities, as demonstrated by several Pyongyang-launched attacks that caused major disruptions to the South Korean economy.

Perhaps the most striking example of the ability of a hostile government to strike at the United States is the recent cyber attack on U.S. Navy and Marine Corps.  Iran or its proxies were able to penetrate into the Marine Corps and Navy intranet system via an unsecured public portal.  While the true extent of the damage done is unknown, it is clear that it took several months to finally knock the virus out of the system. 

A vast underground cyber arms bazaar has sprung up, where for a relatively small investment, sometimes less than 100 dollars, freelance hackers are available to disrupt information systems through denial of service attacks.  Endless pieces of malware are also available at startlingly low prices, including ones that exploit dreaded “zero-day” or previously unknown, and thus unprotected, vulnerabilities. 

The emergence of cyber threats is incredibly important as America struggles with two difficult security challenges: Syria and the Ukrainian crisis.  In Syria, military action remains an entirely plausible option, while diplomatic and economic responses are most likely in the Ukraine.  In both cases, however, immediate cyber retaliation is not only possible, it is also highly likely.

In Syria, for instance, as the civil war continues and Bashir al-Assad retains his grip on chemical weapons, the idea of punitive strikes on Syrian forces is not far removed.  In years past, the most immediate costs associated with such attacks would have been fiscal and perhaps a drone or two.  Today, however, the prolific effort of the pro-Assad Syrian Electronic Army (SEA) has inserted a new cyber dimension into the intervention calculation.  We now have to consider the possibility the SEA will disrupt information systems in retaliation for U.S. military action.  SEA attacks are not likely to cause permanent damage, but they could cause a large impact on our economy and infrastructure. 

As we tackle the Ukraine crisis, we must consider that Russia is no stranger to using cyber attacks to assist in its geopolitical goals.  In the brief 2008 Georgian war, as Foreign Policy noted, the Russian military and private hackers successfully attacked Georgian military, government, and civilian targets, disrupting communications and sowing panic. 

The possibility of cyber counterattacks must now be a fundamental consideration in political decision-making.  This is especially true for Congress, which has the constitutional responsibility of authorizing the president to use force. 

Today, debates over using force must be entirely different.  Congressional leaders on both sides of the aisle, along with rank and file members, have to consider the very real possibility of American economic and physical health coming under attack immediately after a decision to take action. 

Now is the time for Congress to  assert itself much more forcefully into the debate on international interventions.  The executive branch has enjoyed relatively wide latitude in deciding when and where to use force due in no small part to the relatively small likelihood that the average American will feel immediate repercussions from such decisions.

The decision to use force must be much more carefully considered by Congress, as even seemingly obvious intervention decisions that would normally be deferred to the Executive Branch now carry the real likelihood of an immediate cyber reprisal.  Congress must stand up and press the President to justify military action in light of the strong possibility of retaliatory cyber attacks.

Americans cannot ignore global crises, but we now have to consider that the Putins and al-Assads of the world have shown a ready willingness to strike back with cyber weapons.  In order for Congress and the White House to fulfill their Constitutional obligations to the American people, all debates must be held using a new set of rules.  To ignore that is to put the future of our nation at risk.

Hastert served in the House of representatives from 1987 to 2007 and was speaker from 1999 to 2007. He is currently a senior adviser with the law firm of Dickstein Shapiro LLP. Finch is a partner at Dickstein Shapiro LLP, heads the firm's global security practice and is a professor at the George Washington University Law School.