Congressional Oversight of Hostilities in the Fifth Domain: Cyber Conflict and the War Powers Resolution by Jason Healey and A.J. Wilson

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Jason Healey is the Director of the Cyber Statecraft Initiative of the Atlantic Council, focusing on international cooperation, competition and conflict in cyberspace. Since the 1990s, he worked on cyber issues as a policy director at the White House, vice president at Goldman Sachs and a U.S. Air Force intelligence officer.

A.J. Wilson is a Visiting Fellow with the Atlantic Council’s International Security program. He is a former Political Advisor in the British Parliament, and previously practiced law with the firm of Dorsey & Whitney LLP.

"The waging of significant cyber warfare should not be left to the Executive alone."
"The administration’s restrictive defini- tion of “hostilities” could open up a huge area of untrammeled executive power."
"There are no relevant “hostilities” for the same reason: no boots on the ground, no active exchanges of fire, and no body bags."

Since 1973, Congress has claimed the right to terminate mil- itary engagements under the War Powers Resolution (WPR).1 Beginning with Richard Nixon, whose veto had to be over- turned to pass the WPR, presidents have typically regarded its provisions as unconstitutional limits on the authority of the Commander-in-Chief.2 The Obama administration has taken a slightly different tack, however, accepting “that Congress has powers to regulate and terminate uses of force, and that the [WPR] plays an important role in promoting interbranch dialogue and deliberation on these critical mat- ters,” but seeking nonetheless to limit the application of the WPR to certain types of conflict.3

In a recent report, the Pentagon has made clear its view that, on its own, a cyber conflict would not require con- gressional approval under the WPR.4 However, since future cyber conflicts could involve physical injury and death, this is neither the only possible view nor the most obvious one. The alternative position—that the waging of cyber war ought to receive as much legislative scrutiny as kinetic con- flicts—depends in large part on the recognition that, since cyber is indeed the fifth domain of conflict, logical pres- ence in cyberspace counts for as much as physical presence in the kinetic domains. This paper argues that the WPR does, in fact, apply to cyber operations, even on the basis of the Department of Defense’s own policy statements on the matter. And so, in our view, WPR should be adopted because the waging of significant cyber warfare should not be left to the Executive alone.

We will first analyze the critical provisions of the WPR and identify the key terms. We will then focus on the current administration’s view of the Resolution, as developed in the context of the Libyan conflict, and show that it is remarkably narrow in light of the WPR’s history and intent. Then we will examine how the Pentagon has applied a similar approach in the realm of cyber conflict, and contrast that approach with other recent policy statements from the Department of Defense. Finally, we will introduce the concept of ‘logical pres- ence’ and argue on that basis that the WPR ought to apply to cyber conflicts in the same way that it applies to physical ones. (purchase article...)