Jack Goldsmith

Quick Thoughts on the USG’s Refusal to Use Cyberattacks in Libya

Eric Schmitt and Thom Shanker of the NYT report that the Obama administration considered using offensive cyber-weapons in the war in Libya, but in the end did not use them.  Schmitt and Shanker give several reasons why the USG declined to use the weapons, some of which make more sense to me than others.

A cyberattack would have implicated the War Powers Resolution.  The story suggests that the government considered using cyber weapons to disable Libyan air-defense missiles and radars, but then switched to kinetic attacks to achieve the same ends because it worried that the cyberweapons would have amounted to “hostilities” that triggered the WPR.  But if the kinetic and cyber attacks would have achieved the same effect on Libyan air defenses (which is what the story suggests), it is hard to see why the cyber attack and not the kinetic attack would have constituted “hostilities” under the WPR.  Indeed, on the administration’s narrow theory of “hostilities” under the WPR, the likelihood of an attack being deemed “hostilities” rises with the likelihood that a U.S. soldier will receive hostile fire or injury.  But as the story noted, the likelihood of risk to U.S. soldiers was higher with the kinetic than with the cyber attack, so it is not clear why a cyber attack would raise heightened concerns under the WPR.  The description of the legal concerns is unclear in other respects as well.  The story suggests that the government worried about whether a “purely cyber-based attack” would have implicated the WPR; this might suggest that the legal issue was presented at a time when the choice was between a cyber attack or no attack at all, and not as a choice between a cyber and a kinetic attack.  The story also notes that government lawyers were “unable to resolve whether the president had the power to proceed with such [a cyber] attack without informing Congress.” But of course the administration did inform Congress about the kinetic attacks, so it is not clear what the concern is here.  Perhaps the administration did not want to reveal publicly that it used cyber weapons, though of course the administration has, and could once again, file a classified annex to a WPR report.  All in all, the discussion of the legal issues in the story is very unclear.

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