On Dec. 14th, 2011, Ryan Singel wrote for Wired on how the NDAA (which is the fiscal year 2012 defense authorization act) contained a provision that will allow the US to conduct offensive cyberattacks.
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Section 954 of the Act reads:
Congress affirms that the Department of Defense has the capability, and upon direction by the President may conduct offensive operations in cyberspace to defend our Nation, Allies and interests, subject to–
(1) the policy principles and legal regimes that the Department follows for kinetic capabilities, including the law of armed conflict; and
(2) the War Powers Resolution (50 U.S.C. 1541 et seq.).
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The conference report says:
"The conferees recognize that because of the evolving nature of cyber warfare, there is a lack of historical precedent for what constitutes traditional military activities in relation to cyber operations and that it is necessary to affirm that such operations may be conducted pursuant to the same policy, principles, and legal regimes that pertain to kinetic capabilities.
The conferees also recognize that in certain instances, the most effective way to deal with threats and protect U.S. and coalition forces is to undertake offensive military cyber activities, including where the role of the United States Government is not apparent or to be acknowledged. The conferees stress that, as with any use of force, the War Powers Resolution may apply."
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The Wired source article can be found here.
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Robert Chesney does a great analysis of what this all means over at Lawfare.
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