Executive Warmaking Authority and Offensive Cyber Operations: Can Existing Legislation Successfully Constrain Presidential Power?

Abstract

Offensive cyber operations represent a broad new frontier in warfare that allow states to achieve kinetic-like effects without using traditional means such as airstrikes and troop deployments. For example, in a recent debate in the Obama Administration in the lead-up to the deployment of NATO forces in Libya, lawyers and policymakers considered using such cyber attacks in lieu of traditional military operations to disable Libya’s air defense network. Yet, like many areas of emerging warfare, a bevy of questions concerning the legality of these new types of operations arise. In particular, American policymakers have only begun to question whether the use of cyber weapons – such as the Stuxnet virus purportedly developed by the United States and Israel and responsible for attacking and destroying Iranian uranium enrichment facilities – trigger traditional means of limiting the President’s war-making authority, such as the War Powers Resolution.This article examines the interaction of this new tool of warfare with the War Powers Resolution, one of the most controversial means by which Congress has attempted to limit the President’s ability to use his Article 2, Section 2 authority as Commander in Chief to deploy U.S. military forces. 50 U.S.C. sec. 1541–1548. At its core, the article answers the following questions: insofar as it is constitutional, can (and under what circumstances) the War Powers Resolution serve as an effective limit on the President’s Article 2, Section 2 power? Conversely, does this new type of tool help the executive branch evade Congressional oversight of U.S. military operations?