Syria and Biological Weapons? And Cluster Munitions?

Posted: September 5, 2013 | Author: | Filed under: Biological, Conventional | Tags: , , , | 10 Comments

SYRIA AND BIOLOGICAL WEAPONS?

Joby Warrick has a story in today’s Washington Post about emerging concerns that Syria has, and might use, biological weapons. The article states:

Syria’s bioweapons program, which U.S. officials believe has been largely dormant since the 1980s, is likely to possess the key ingredients for a weapon, including a collection of lethal bacteria and viruses as well as the modern equipment needed to covert them into deadly powders and aerosols, according to U.S. and Middle Eastern officials and weapons experts.

This latent capability has begun to worry some of Syria’s neighbors, especially after allegations that the regime of President Bashar al-Assad used internationally banned chemical weapons against civilians in an Aug. 21 attack.

Top intelligence officials in two Middle East countries said they have examined the potential for bioweapons use by Syria, perhaps as retaliation for Western military strikes on Damascus. Although dwarfed by the country’s larger and better-known chemical weapons program, Syria’s bioweapons capability could offer the Assad regime a way to retaliate because the weapons are designed to spread easily and leave few clues about their origins, the officials said.

The story is definitely worth a read, but I am not going to guess what people might read into it.

Very briefly, as for the applicable treaty law on biological weapons, Syria is a party to the Geneva Protocol of 1925 but is not a party to the Biological Weapons Convention. As with chemical weapons, most international lawyers hold that customary international law bans the use of biological weapons in any form of armed conflict. As a member of the UN, Syria is subject to relevant Security Council decisions on biological weapons, such as Resolution 1540 on preventing non-state actors from obtaining WMD material.

SYRIA AND CLUSTER MUNITIONS?

Rick Gladstone in the New York Times reports on allegations that the Syrian military has used cluster munitions:

In the shadow of a confrontation over whether Syria’s government had attacked civilians with internationally banned chemical munitions, a rights group reported Wednesday that Syrian armed forces had repeatedly used cluster bombs, another widely prohibited weapon, in the country’s civil war.

The group, Human Rights Watch, said in a report on cluster bomb use that it had documented dozens of locations in Syria where cluster bombs had been fired over the past year.

Cluster bombs are munitions that may be fired from artillery or rocket systems or dropped from aircraft. They are designed to explode in the air over their target and disperse hundreds of tiny bomblets over an area the size of a football field. Each bomblet detonates on impact, spraying shrapnel in all directions and killing, maiming and destroying indiscriminately.

The Human Rights Watch report mentioned can be found here. Syria is not a state party to the Convention on Cluster Munitions.

President Obama Will Go to Congress on Military Strikes Against Syria

Posted: August 31, 2013 | Author: | Filed under: Chemical | 1 Comment

The New York Times just reported that President Obama has decided to seek congressional authorization for military strikes against Syria as a response to the chemical weapons attacks his administration attributes to the Syrian government. This unexpected development has significant legal implications not only for US law but also international law.

With the political context rocked by the UK Parliament’s rejection of military action, the Obama administration’s move from “consulting” with members of Congress to seeking authorization for the use of military force changes the legal context domestically in the US–with the question now laid before Congress and its war powers. Not only is this decision significant for the Syrian crisis but it will also factor into war powers debates in the future, as a precedent to rival the Obama administration’s decisions on US law and the use of force against Libya.

But, as we know from Congress’ authorization of the invasion of Iraq, having a constitutionally clean outcome in US law does not resolve international legal issues and controversies. The Obama administration’s legal case for military strikes under international law relies primarily on the need to respond to the violation of the prohibition on the use of chemical weapons, supported by a secondary rationale of collective self-defense. Congressional authorization to use force will not settle the international legal controversies surrounding this crisis. How these controversies might affect congressional debates and votes is not clear, but, with US domestic politics now to become more fully engaged, the Obama administration’s international legal case will factor into the arguments for and against military intervention, even if international legal analysis is not, in the end, decisive in the ultimate decision achieved.

A taste of these international legal debates appeared today in Harvard professor Jack Goldsmith’s New York Times op-ed arguing that military strikes by the Obama administration, under its stated legal rationales, would violate international law.

UK Government Releases Intelligence Assessment on Chemical Weapons Use in Syria and Legal Position on Use of Military Force against Syria

Posted: August 29, 2013 | Author: | Filed under: Chemical | Tags: , , , , | 4 Comments

The UK government has released its intelligence assessment of chemical weapons use in Syria, and its legal position on using military force against Syria in the absence of a Security Council authorization.

Neither Humanitarian Intervention Nor Self-Defense in Syria: A New Justification for the Use of Force in International Law?

Posted: August 28, 2013 | Author: | Filed under: Chemical | Tags: , , , , | 62 Comments

As matters hurtle toward a military strike against Syria, the debate about the prudence and legality of such a strike is in full frenzy–and Arms Control Law has participated in this debate earlier and over the past few days.

Here, I follow-up on a thought I raised in a reply to a comment on my August 23rd post on international and national legal issues associated with possible military action against Syria in response to the chemical weapons attack, namely that the international legal justification for using force against Syria is not really humanitarian intervention.

So, to continue this thought experiment, what might be emerging here is, in essence, a claim that use of chemical weapons on a large-scale provides an independent basis in international law for countries to use force against the government perpetrating such an illegal action.

As we have seen in the debate, including my August 23rd post, commentators have tried to slot a military response to the Syrian chemical weapons incident into existing exceptions to the prohibition on the use of force in international law, including arguments that such a military response:

  • Can only be legal if authorized by the Security Council;
  • Could, perhaps, fall under a broad concept of self-defense; and
  • Can be justified as humanitarian intervention not requiring Security Council authorization.

However, Security Council authorization is unlikely, and arguments from self-defense (even broadly interpreted) and humanitarian intervention encounter serious problems as justifications for the use of military force against Syria as a response to the chemical weapons incident. As between a self-defense argument and the humanitarian intervention argument, the humanitarian intervention argument appears to have more support, with the humanitarian intervention in Kosovo undertaken without Security Council authorization often considered the best precedent. The resolution the U.K. has introduced at the Security Council apparently seeks authorization for “all necessary means to protect civilians,” which links to the humanitarian intervention framing of the problem.

Although I understand the framing of the issue in this manner, especially given existing international law on the use of force, the humanitarian intervention argument does not fit this crisis well. The humanitarian intervention exception to the prohibition on the use of force is very controversial even when used to prevent or stop humanitarian atrocities. Even many supportive of the humanitarian intervention in Kosovo acknowledged it did not, or should not, constitute a strong precedent for a humanitarian intervention exception to the prohibition on the use of force in international law.

The path to the use of force against Syria is hard, however, to pave with humanitarian intentions. From the “red line” laid down by President Obama through the present crisis, the focus has been on the use of chemical weapons by Syria in its civil war. Although we do not know what the anticipated military strike will involve, public statements of the U.S. and other governments indicate that the military response will be limited in scale and duration, designed to deter any further use of chemical weapons, and is not intended to change the course of the Syrian civil war or effect regime change. Put another way, based on what we are being told, this military intervention appears surgically focused on shoring up the international legal prohibition against the use of chemical weapons.

Preventing any more use of chemical weapons would have positive humanitarian consequences in removing one type of weapon from the battlefields of Syria, but, as many have already argued, the currently stated purposes and objectives of the military response will not alleviate the humanitarian disaster the Syrian civil war has become. As has already been asked, is death and suffering from chemical weapons worse, as a humanitarian matter, than death and suffering from conventional weapons?

The anticipated military strikes will not, apparently, degrade the Syrian military’s ability to use heavy conventional weapons against civilians and civilian areas, which have been the source of much human death and suffering in this conflict to date. Nor apparently are the strikes designed to change the Syrian government’s and military’s strategies, tactics, and choice of weapons, except with regard to chemical weapons. Humanitarian protection, as an objective or outcome, is deliberately limited to use of a specific type of weapon. Put differently, but for the use of chemical weapons, we would not be debating humanitarian intervention any differently than we have since the Syria civil war started. More simply, it’s fundamentally about the weapon not the human suffering.

Following this thought, justifying military action against Syria flows most directly, then, from the importance of protecting the “chemical weapons taboo” in international law–the complete prohibition in armed conflict of the use of any chemical weapons. This prohibition contains within it not only the purpose of limiting the suffering war causes but also the core interests of states in eliminating chemical weapons from armed conflict. These core interests have coalesced multilaterally in a manner that makes this prohibition one of the most important rules in international law, an importance developed on the journey from the trenches of World War I, to the Geneva Protocol of 1925, and to the CWC of 1993–as enhanced by actions to prevent chemical terrorism (e.g., Security Council Resolution 1540).

Looking at the way the move to military action against has developed, the anticipated military response appears most deeply rooted in this prohibition and its fundamental importance in international relations. This prohibition is, then, the basis for justifying the legitimacy and legality of a use of force against Syria in the absence of a Security Council resolution.

But. wait, I hear people saying (or perhaps shouting), international law has not recognized such an exception to the prohibition on the use of force–there’s no state practice or opinio juris supporting this notion, nor does any treaty, including the Geneva Protocol or CWC, create any such exception. All correct arguments, but my point is that we are perhaps seeing unfold a rapidly emerging acceptance of a new exception to the prohibition on the use of force grounded in a critical rule of international law, the importance of which depends on its protection or, if you will, its enforcement, including through military means against violators. Otherwise, we are left with the contorting legal gymnastics necessary to make what is about to happen “humanitarian intervention” or “self-defense.”

This thought experiment has not addressed every issue, problem, pitfall, or potential “you can’t be serious” response raised by what it has suggested, but, being a speculative enterprise, pushing this idea farther at the moment might aggravate more than illuminate.

SCOTUS and the CWC: A Challenge to the U.S. CWC Implementation Act

Posted: August 28, 2013 | Author: | Filed under: Chemical | Tags: , , , , , , | 2 Comments

And now for something completely non-Syrian that still involves chemical weapons. In its October 2013 Term, the US Supreme Court will hear Bond v. United States, a case that involves treaty interpretation and constitutional challenges to the CWC Implementation Act. Briefly, the federal government successfully prosecuted Carol Ann Bond under the criminal provisions of this Act for using toxic chemicals against a woman who had an affair with Bond’s husband. Bond challenged the federal government’s interpretation of the CWC (as implemented in the Act) and asserted that the treaty did not apply to her case. She also argued that the CWC Implementation Act was unconstitutional because it exceeded Congress’ authority to pass legislation to implement a valid treaty, encroached on state authority for local criminal matters, and, thus, violated principles of federalism.

For those interested in learning more about the case, see the Bond v. United States page on SCOTUSblog. This page includes links to the briefs filed by the parties and amicus briefs submitted by various experts. One such amicus brief filed by experts on international arms control agreements (including me) supports the U.S. government’s position in this case and seeks “to explain the CWC’s requirements in light of its text, structure and history and the shared understanding of the 189 states parties to the CWC, to explain the treaty’s importance for the United States and the rest of the world, and to explain the reasons why the terms of the treaty were intentionally made expansive.”

Now What? Responding to Alleged Chemical Weapons Attack in Syria

Posted: August 23, 2013 | Author: | Filed under: Chemical, War | Tags: , , , , , , , , , | 55 Comments

As media are reporting, high-level discussions in Washington, D.C. and elsewhere are focusing on how governments should respond to the incident in Syria involving an alleged chemical weapons attack by the Syrian regime. These discussions include consideration of military strikes against Syria. Earlier, in light of conclusions that the Assad government had used chemical weapons on a small scale, deliberations about arming Syrian rebels raised questions of international law and other sources of law (EU law, US law). See, for example, Pierre-Emmanuel Dupont’s Arms Control Law post on this issue.

At present, the debate about direct military strikes is dominated by non-legal questions, such as (1) clarifying what happened and who is responsible (on which see Jean Pascal Zanders’ posts on Arms Control Law and The Trench), (2) further danger to US credibility given existing controversies about President Obama’s “red line” statements, and (3) whether military intervention would be prudent or effective. However, as suggested by gathering momentum for military action, legal issues are on the agenda internationally and within governments contemplating the use of force. So, here are some preliminary, general thoughts on these legal questions.

International Law

In terms of international law, two critical, linked issues are (1) the principles on state responsibility (did a chemical weapons attack occur, and was the Syrian government responsible?), and (2) the rules on the use of force (does a chemical weapons attack attributable to the Syrian government provide a justification for other states to use force against Syria?).

The cleanest scenario would be for the evidence to show that the Syrian government used chemical weapons, and, then, for the Security Council to authorize UN member states to respond with military force to this threat to international peace and security.

For many reasons, this scenario is unlikely to be the one that plays out. At the moment, it appears as if definitive attribution of this attack to the Syrian government will prove time-consuming, difficult, and politically contentious, leaving enough room and time for differences among members of the Security Council to produce opposition to a resolution authorizing the use of force against Syria.

The next strongest basis for using force, the right to use force in self-defense, is not an option because the attack in question was not perpetrated against another state. Nor, at the moment, would an argument of anticipatory or pre-emptive self-defense be persuasive as a justification for using force.

That leaves the more controversial option of justifying a use of force under the “responsibility to protect” (R2P) principle, or (to the extent it is considered distinct from R2P) under the older idea of humanitarian intervention. This option is controversial because, among other things, whether a state can rely on these grounds to use force without Security Council authorization remains hotly debated, indicating that no consensus exists in international law on this question. The Syrian conflict, and the humanitarian debacle associated with it, has revealed the depth of disagreement about, and the difficulties associated with, the R2P principle in international law.

However, even given this controversy, the large-scale use of chemical weapons by a government against civilians in a civil war constitutes an atrocity of sufficient gravity that states can, with some force, argue that international law permits military action against that government without authorization of the Security Council. This argument will agitate the long-standing legal controversy in this area, but the controversy cuts both ways in that its existence means neither position is beyond the legal pale. Potentially effective ways to manage the controversy in order to tip opinion in the direction of using force without Security Council authorization include (1) producing clear and convincing evidence of Syrian government responsibility for a chemical weapons attack, (2) making good faith efforts to try to obtain Security Council authorization for a use of force, and (3) ensuring serious multilateral support for, and participation in, military action against Syria.

US Law

In terms of US law, military strikes by US armed forces would bring questions of constitutional war powers into play, as well as the War Powers Resolution (WPR). Most recently, controversies about the application of constitutional war powers and the WPR erupted in connection with the US air campaign against Libya. To much debate, the Obama administration argued that US military activities against Libya did not constitute “war” under the Constitution or “hostilities” under the WPR. Whether the administration would use the same reasoning with respect to military action against Syria depends on many factors, including the scope and seriousness of US military efforts.

However, we know enough to understand that Libya and Syria are not comparable. To date, US reluctance to get involved militarily in Syria flows, in part, from a realization Syria presents a harder target, and a more difficult operational context, than Libya. These differences would probably require more extensive, much riskier military activities than the US was able to undertake against Libya. Legally, it would be harder to sustain the position that such activities do not constitute “war” under the Constitution or “hostilities” under the WPR. Further, very limited military actions designed to permit re-use of the legal positions taken in the Libya incident could undermine the international legal case that military force is justified in responding to a large-scale atrocity committed with chemical weapons.

To avoid constitutional and statutory problems, the President could seek congressional authorization to use force, but the wisdom of US military intervention into the Syrian conflict has been, and currently is, at issue in Washington, D.C., even in light of the alleged chemical weapons atrocity. Given this, and the nasty political climate between the White House and Congress, it is difficult to believe that Congress would declare war on Syria absent some development that would dramatically change the political calculations inside the Beltway.

NSA Disclosures Derail Cyber “Star Wars” Defense Strategy?

Posted: August 13, 2013 | Author: | Filed under: Cyber | Tags: , , , , | 1 Comment

In today’s New York Times, David Sanger published an article that the damage caused by Edward Snowden’s disclosures of NSA surveillance might have killed what Sanger calls “the equivalent of a ‘Star Wars’ defense for America’s computer networks, designed to intercept cyber attacks before they could cripple power plants, banks or financial markets.” More specifically:

Under this proposal, the government would latch into the giant “data pipes” that feed the largest Internet service providers in the United States, companies like A.T.&T. and Verizon. The huge volume of traffic that runs through those pipes, particularly e-mails, would be scanned for signs of anything from computer servers known for attacks on the United States or for stealing information from American companies. Other “metadata” would be inspected for evidence of malicious software.

Whether this idea would have matured and proceeded without leaks about NSA surveillance is not clear because opposition within the US government existed:

Top officials of the Department of Homeland Security, which is responsible for domestic defense of the Internet, complained that N.S.A. monitoring would overly militarize America’s approach to defending the Internet, rather than making sure users took the primary responsibility for protecting their systems.

The deputy secretary of defense, Ashton B. Carter, described in speeches over the past year an alternative vision in which the government would step in to defend America’s networks only as a last line of defense. He compares the Pentagon’s proper role in defending cyberattacks to its “Noble Eagle” operation, in which it intercepts aircraft that appear threatening only after efforts by the airlines to identify the passengers and by the Transportation Safety Administration to search passengers and luggage have failed.

The disclosures about NSA surveillance and its scale have, however, altered the nature of discourse in Washington, D.C. about this debate on US cyber defense in ways that make progress in this area, for the near future, potentially very, very difficult.

President Obama Announces Steps to Address Concerns About NSA Surveillance

Posted: August 9, 2013 | Author: | Filed under: Cyber | Tags: , , , , , | Leave a comment

Today, President Obama outlined steps his administration would take to address the controversial debate taking place concerning NSA surveillance activities disclosed by Edward Snowden. The New York Times reports that:

Mr. Obama announced the creation of a high-level task force of outside intelligence and civil liberties specialists to advise the government about how to balance security and privacy as computer technology makes it possible to gather ever more information about people’s private lives.

The president also threw his administration’s support behind a proposal to change the procedures of the secret court that approves electronic spying under the Foreign Intelligence Surveillance Act in order to make its deliberations more adversarial. The court, created in 1978, was initially envisioned to carry out a limited role of reviewing whether there was sufficient evidence to wiretap someone as a suspected foreign terrorist or spy.
. . .
The Obama administration is also planning to release a previously classified legal analysis explaining why the government believes it is lawful under a provision of the Patriot Act known as Section 215 for the N.S.A. to collect and store logs of every phone call dialed or received in the United States.

At the same time, the N.S.A. was expected to release a paper outlining its role and authorities, officials said. The six- to seven-page document was described as setting up a “foundation” to help people understand the legal framework for its activities. Next week, the agency will open a Web site designed to explain itself better to the public amid Mr. Snowden’s disclosures.

The “previously classified legal analysis” on the government’s interpretation of Section 215 is available now in a document entitled: Administration White Paper: Bulk Collection of Telephony Metadata Under Section 215 of the USA PATRIOT Act (August 9, 2013).

For the argument that the bulk telephony metadata program does not satisfy the requirements of Section 215, see this amicus brief filed with the US Supreme Court today by a group of professors expert in information privacy and surveillance law, a group that includes me. This amicus brief supports the petition filed in July with the Supreme Court by the Electronic Privacy Information Center against the bulk telephony metadata program.

Related to the President’s announcement, the NSA released a document today entitled The National Security Agency: Mission, Authorities, Oversight and Partnerships (August 9, 2013), which, among other things, describes NSA’s authorities to collect intelligence under Executive Order 12333 and the Foreign Intelligence Surveillance Act, including Section 702 of that Act (the legal basis for the PRISM program targeting non-US persons located outside the US).

It’s Baaack! The Biosecurity Controversy Over “Gain-of-Function” Research on Influenza Viruses Returns

Posted: August 8, 2013 | Author: | Filed under: Biological | Tags: , , , , , , | 1 Comment

On August 7th, a group of influenza scientists published online a letter in Nature in and Science in which they proposed conducting “gain-of-function” (GOF) research on the avian influenza A (H7N9) virus. GOF research is sometimes discussed as “dual use research of concern,” or DURC. I have posted on Arms Control Law, and published elsewhere, on developments in the biosecurity and public health controversy over GOF research on the highly pathogenic avian influenza A (H5N1) virus by Dutch researchers, led by Ron Fouchier from the Erasmus Medical Center, and American scientists, led by Yoshihiro Kawaoka from the University of Wisconsin-Madison. The announcement of the proposed GOF experiments on the H7N9 virus has brought the controversy back into the spotlight.

To recap, “gain-of-function” research involves scientific experiments that alter pathogens in ways that give them features or functions not presently found in the wild. In the H5N1 GOF research that sparked the worldwide controversy from late 2011 until early 2013, researchers manipulated the H5N1 virus so that it achieved transmissibility between mammals–a capability the virus had not readily demonstrated in nature. Generally speaking, an objective of GOF research on influenza viruses is to provide an earlier understanding of how the viruses might mutate in the wild and cause human pandemics, potentially giving scientists and public health experts more time to develop potential responses, such as alerting surveillance systems and preparing vaccine strategies.

Critics of the H5N1 GOF research worried about a number of problems, including whether (1) biosafety conditions in laboratories would be adequate to prevent accidents that could cause outbreaks, and (2) such experiments could threaten biosecurity by providing states, terrorists, or criminals with “blueprints” for making biological weapons. The controversy led to delayed publication of the H5N1 GOF research results, a voluntary moratorium on GOF research, and the development by the U.S. government of new, stricter rules and oversight processes for GOF research it funds.

Similar to the GOF H5N1 experiments, the proposed H7N9 GOF research includes, among other things, experiments “[t]o assess the pandemic potential of circulating [H7N9] strains and perform transmission studies to identify mutations and gene combinations that confer enhanced transmissibility in mammalian models (such as ferrets and guinea pigs).” Global health concerns about the H7N9 virus arose in spring 2013 when a worrying number of cases of humans infected by contact with birds occurred in China. As of early July, the mortality rate among humans infected with H7N9 was approximately 33%, making the virus a killer pathogen. To date, the H7N9 virus has not demonstrated serious human-to-human transmission, but the fear is that it might mutate and spread more readily in human populations. The proposed GOF experiments on the H7N9 virus are intended to give scientists and public health officials possible insights into how the virus might change into something more fearsome–and, thus, give them more time to prepare.

Critical reactions to the proposed H7N9 GOF research indicated that the biosecurity and public health controversy over GOF experiments has not subsided. A flavor of the criticism can be found in this story from Science:

“The scientific justification presented for doing this work is very flimsy, to put it mildly, and the claims that it will lead to anything useful are lightweight,” says Adel A. F. Mahmoud, an infectious disease specialist at Princeton University and the former president of Merck Vaccines. And the security precautions are “insufficient and amazingly lame,” says molecular biologist Richard Ebright of Rutgers University in Piscataway, New Jersey.

And from this story in The Scientist:

Simon Wain-Hobson, a virologist from the Pasteur Institute in France, was critical of the move. “Since when do scientists try to get manifestos into Nature and Science?” he asked. “If they were going to do the human genome or go after the Higgs boson, I could understand that, but this is extraordinarily focused. They are ramming gain-of-function experiments down our throats against debate, and it’s not scientific.”
. . .
Michael Osterholm, director of the Center for Infectious Disease Research and Policy (CIDRAP) at the University of Minnesota and a vocal critic of last year’s decision to publish the H5N1 research, added that the flu community still has not rigorously weighed the risks and benefits of gain-of-function studies. “I support doing them for basic research purposes, and I have always maintained that Yoshi [Kawaoka] and Ron [Fouchier] could do this work safely,” he said. “But my concern is that publishing their data would allow labs around the world, which won’t adhere to the same safety requirements, to do the same.”

Osterholm added that the signatories of today’s letter have overstated the benefits of gain-of-function research, including the potential for developing better vaccines and antiviral drugs, or improving surveillance measures. “We still do H5N1 surveillance in the same way a year later,” he said.

In terms of arms control and non-proliferation, the GOF controversy includes arguments about the BWC’s (ir)relevance to the challenge of balancing public health and biosecurity in scientific research. The BWC review conference in December 2011 occurred when the H5N1 GOF controversy was in full swing, but the BWC states parties did not address it in any serious way , despite much rhetoric about the BWC being a central forum for discussing biosecurity issues beyond the traditional focus on non-proliferation of biological weapons by states. The reticence of BWC states parties to address this controversy connected to a larger governance problem that emerged from the H5N1 GOF research episode–the inadequacy, or lack of, adequate national and international rules and processes to deal effectively with the pros and cons of GOF research.

The scientists proposing the H7N9 GOF research are seeking U.S. government funding, so the proposal will be subject to the heightened U.S. rules and procedures adopted after the H5N1 controversy. The H7N9 GOF experiments, if approved and funded by the U.S. government, will go forward under these rules. How the U.S. government handles these proposals under its new approach will be closely watched by the biosecurity, public health, and scientific communities around the world.

Nuclear Strategy Push-Back Against the “Cyber Industrial Complex”?

Posted: August 7, 2013 | Author: | Filed under: Cyber, Nuclear | Tags: , , , , , , | 6 Comments

Greg Austin of the EastWest Institute published a piece in China-US Focus on August 6th in which he identifies possible push-back against the US government’s race to achieve “cyber superiority” and the emergence of “the American cyber industrial complex” from people in the US military knowledgeable about US nuclear weapons and strategy. He argues that disclosures by Edward Snowden reveal a “lack of restraint” in US cyber behavior and:

This lack of restraint is especially important because the command and control of strategic nuclear weapons is a potential target both of cyber espionage and offensive cyber operations. The argument here is not to suggest a similarity between the weapons themselves, but to identify correctly the very close relationship between cyber operations and nuclear weapons planning. Thus the lack of restraint in cyber weapons might arguably affect (destabilize) pre-existing agreements that constrain nuclear weapons deployment and possible use.

The cyber superiority of the United States . . . is now a cause of strategic instability between nuclear armed powers. . . . [I]n the long run, the most influential voice to end the American quest for cyber military superiority may come from its own armed forces. There are military figures in the United States who have had responsibility for nuclear weapons command and control systems and who, in private, counsel caution. They advocate the need to abandon the quest for cyber dominance and pursue a strategy of “mutual security” in cyber space – though that has yet to be defined. They cite military exercises where the Blue team gets little or no warning of Red team disruptive cyber attack on systems that might affect critical nuclear command and control or wider war mobilization functions. Strategic nuclear stability may be at risk because of uncertainty about innovations in cyber attack capability. This question is worth much more attention.

Cybersecurity literature contains references and analogies to nuclear weapons and nuclear strategy, including attempts to draw on the nuclear experience to address what some perceive as a cyber arms race. However, Austin is talking about something different–concern among experts that what is happening with US cyber policy, strategy, and capabilities threatens US nuclear strategy and stability. I do not know how prominent such strategic introspection actually is, or whether it deserves the level of deliberation Austin advocates.

In the most general terms, Austin seeks reassessment of what he and others believe is an insufficiently restrained American quest for superiority in military and intelligence cyber capabilities–not because of perceived threats to privacy and other civil liberties at home, but because this path might create strategic problems for US national security down the road, including in the context of nuclear weapons. For Austin, this reassessment should include more scrutiny of permitting one military officer to lead both NSA and US Cyber Command, a situation Austin provocatively describes as “an unprecedented alignment of Praetorian political power in any major democracy in modern political history.”

A unrestrained cyber industrial complex led by a cyber Praetorian guard potentially causing strategic nuclear instability? Well, now, the “national conversation” is getting more interesting by the day . . .

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