Cyber Operations, Legal Secrecy, and Civil-Military Relations (book chapter in Reconsidering American Civil-Military Relations, Lionel Beehner, Risa Brooks & Daniel Maurer, eds. (2020))

Abstract

Civil-military relations in cyberspace are under-studied. So too are the roles at their intersection played by law and secrecy. To illuminate the nexus of these matters and to spur additional thought and policy action, this chapter makes several observations and recommendations. First, salient aspects of cyberspace make civil-military relations in the realm of digital national security operations especially challenging, uncertain, and consequential. Second, the two most powerful masters of the military in the American constitutional system – the Congress and the President – have in recent years given the military expansive authority for operations in a realm where it is unusually difficult for civilians and elected officials to monitor and appraise their performance. A reported classified order by President Trump appears to be consistent with his administration’s broader effort to drive responsibility for national security decisions down the chain of command. That is, away from suits and toward uniforms, and away from the Executive Branch’s electorally accountable Commander in Chief and toward agencies. Third, the public record indicates that the military is gaining its greater authority in cyberspace in meaningful part through legal secrecy – via the use of unpublished legal authorities. Such “secret law” is both useful and inherently problematic in a republic, as I have explored in depth elsewhere in my scholarship. Fourth and finally, this chapter argues that Congress is right to be engaged on cyber operations. But Congress should be doing more than delegating authority. It should also exercise its constitutional prerogatives to write rules that govern and regulate cyber operations in ways that expressly account for the challenges in transparency, technical familiarity, and civil-military relationships these operations inevitably raise.