An Ever-Expanding War: Legal Aspects of Online Strategic Communication

Abstract

Nearly eight years after 9/11, senior US leadership is redefining the war on terrorism as a global counterinsurgency effort, one that requires both kinetic force and indirect, smart power collaboration by civilian agencies. Department of Defense has taken on many of these burdens that might have been assumed by civilian agencies in the past, said Secretary of Defense Robert Gates. Forced by circumstances, our brave men and women in uniform have stepped up to the task, with field artillerymen and tankers building schools and mentoring city councils--usually in a language they don't speak.... But it is no replacement for the real thing, civilian involvement and expertise. (1) Although the requirement for interagency cooperation is a neartruism of US national security policy today, finding the appropriate role for the Department of Defense (DOD) remains a key challenge. This article examines one aspect of activities that potentially overlap with other government departments, DOD's growing involvement in the battle of ideas. (2) Much consternation exists in the foreign policy community regarding DOD's expansion into missions traditionally performed by civilian agencies. (3) A small but critical example of this growth involves DOD's efforts to use the Internet to craft a positive perception abroad, while attacking the ideological underpinnings of terrorism. (4) In mid 2007, the Department of Defense issued policies authorizing commanders to engage foreign audiences via online interactive methods, such as texting, blogging, e-mail, and regionally focused Web sites. (5) The guidance was in direct response to long-standing complaints from the ten regional and functional Combatant Commanders that a terrorist could post videos of a beheading or other form of extremist propaganda, unhindered by policy considerations, whereas US commanders had to navigate hurdles to get psychological operations (PSYOP) videos and themes approved. (6) A key issue is whether these online activities, while critical to overall American strategic communication efforts, are properly characterized as that make use of DOD funding. DOD's communication activities are increasingly separated in time and space from a kinetic mission; are directed at broad, cross-regional audiences; and, on their face, appear more like a public diplomacy campaign than a military program. (7) It would be unfair to fault DOD for its involvement in such hybrid activities. The Department is arguably filling a need where resource-strapped civilian agencies might be falling short. PSYOP are a key aspect of counterinsurgency efforts. As former participants in and now observers of DOD's expanding communication portfolio, the authors are particularly aware of the argument that the US government needs to respond in real time to extremist propaganda in order to thwart violent extremism and lessen the need for military intervention. Yet DOD's expansion into the field of interactive communication is troubling on two counts. First, once the Department no longer labels its communication measures as PSYOR it potentially subverts its own statutory authorities to conduct such programs. The Department has limited authorities to engage foreign audiences, and PSYOP are the principal authorized mechanism to do so. In legal terms, in order to justify the use of appropriated funds, DOD activities are required to support a DOD-specific and not conflict with the responsibility of another agency. (8) Once DOD stops calling interactive communication activities PSYOP and undertakes functions similar to those of another department, the mission becomes less defined. Second, DOD may be encroaching upon the Department of State's to engage foreign audiences. The two departments' missions, while overlapping, are distinct. DOD's is one of influence; the State Department's is one of relationship-building and dialogue. …