Warner+Todd+Huston

-By Warner Todd Huston

A recent New York Times article revealed that the Pentagon briefly considered engaging in cyberwarfare at the outset of the actions in Libya, but decided against it for a variety of reasons. This reminds us all that as a nation we really need to discuss the use of cyberwarfare. The first question asked must be: should a president be able to simply order such an attack on his own hook?

The Times noted that one of the concerns about the use of cyberwarfare is how it would be justified under the War Powers Resolution of 1973?

One unresolved concern was whether ordering a cyberattack on Libya might create domestic legal restrictions on war-making by the executive branch without Congressional permission. One question was whether the War Powers Resolution — which requires the executive to formally report to lawmakers when it has introduced forces into “hostilities” and sets a 60-day limit on such deployments if Congress does not authorize them to continue — would be required for an attack purely in cyberspace.

One would think that the answer to this would be somewhat obvious — though nothing seems obvious in Constitution-based discussions, sadly.

We know that the Founders vested in Congress the power to declare war not in the president. They wanted to avoid a repeat of the historical outrage of a King’s untrammeled powers to declare wars without the consent of the people and their duly elected representatives.
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We Need Rules for Cyberwarfare Before a President Steals That Power, Too”