Pre-emption, Cyberstrikes and Presidential Authority
After a secret review on the arsenal of the United States cyber-weapons, officials involved in that review state that President Obama has the legal power to order a pre-emptive strike if the United States finds credible evidence of a major digital attack looming abroad. That would have to include countries, such as China, which has allegedly engaged in repeated attacks on U.S. businesses and government agencies.
Currently, the Obama administration is engaged in making military rules for the defense of the nation against a major cyberstrike. The new policies will determine how America's intelligence agencies conduct searches of foreign computer networks for signs of looming attacks on the United States.
Moreover, the new policies will enable the President to attack enemies by the use of destructive code, presumably viruses, even if there is no declared war.
Of course, these classified rules will never be known to the public, as the classified rules for drone strikes on foreign lands are not known to the public.
According to a report in the New York Times, the Pentagon's current rules permit the United States military to operate only in places where the rules of war apply. However, the intelligence agencies have the authority to conduct covert drone strikes in Pakistan and Yemen, which are not declared war zones.
According to the same report, President Obama is known to have ordered a cyberstrike against Iran's nuclear enrichment facilities, early in his first term.
These rules are being disclosed at a time when American corporations, such as Twitter, The New York Times, The Wall Street Journal and The Washington Post have reported recent attacks from China and elsewhere on their systems.
Currently, international law permits any nation to defend itself from threats, and under George W. Bush, this law was first applied to permit pre-emptive attacks during the invasion of Iraq in 2003.
Under the new guidelines, the Pentagon would not be responsible for defense of American corporations or individuals. That responsibility would be left to the Department of Homeland Security and the Federal Bureau of Investigations.
However, the military would become involved in the case of a “cyber 9/11 strike”, the descriptive term used by Defense Secretary Leon E. Panetta.
Currently, Congress has yet to act on legislation to provide for a first line of defense from cyberattacks, the mandating of government standards on cybersecurity.