Cyber War Powers Act?

I read this NY Times article on cyber warfare with interest, if not alarm. By nature, I prefer the “wondering monk” approach to security — i.e., accumulate nothing that anyone else would value and avoid attachments to physical locations — to the fortress mentality. As a locksmith once told me, locks serve mainly to reassure those who install them, and to deter bumbling amateurs. Professionals get in to where they want to go. So rest assured, our systems will be hacked, and even if they aren’t, any secrets that appear on our computer screens are vulnerable to side-channel leaks.

On the other hand, the article did make me wonder about whether the new acts of offensive cyber warfare are covered by the War Powers Act. And lo and behold, via Defense News, I see that Sen. John Kerry is proposing an overhaul of the WPA. No specific mention of cyber warfare, though.

The proposed changes strike me as problematic. As currently structured, any military engagement requires Congressional approval within 60 days. Should that not happen, the engagement is automatically considered unauthorized. In practice, this is next to impossible to enforce, short of a congressional measure cutting off funding. But the default setting means that the engagement is de jure unauthorized without congressional approval, even if it continues de facto.

The new version would require a three-step process: executive consultation with a newly created congressional committee before hostilities; a 30-day period in which Congress can authorize the military engagement; in the absence of authorization, any member of Congress could then sponsor a “resolution of disapproval,” which would have to pass and be signed by the president, or else pass with a veto-safe margin.

Either way, it adds another pro-active step to congressional oversight before the engagement becomes legally unauthorized. And as the Defense News piece points out, by establishing another reduced congressional committee for the consultation phase, it also creates yet another reduced oligarchic circle around the executive for national security consultations, and worse still, one that bypasses the already existing “Gang of Four” and “Gang of Eight” formats.

Advocates say it codifies the consultation phase, giving Congress more input in formulating war planning. The problem is that historically, American public opinion is usually pretty well shaped in the run up to war, meaning the executive and legioslative branches don’t really have any trouble arriving at consensus. I’d rather see a more adversarial system adopted that gives skepticism and restraint more of a fighting chance against war hysteria. The current WPA is imperfect in that regard, but I don’t see the proposed changes as an improvement.

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