Information Warfare: They Died With Their Posse On

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May 13, 2012: As the U.S. government becomes more aware of the Cyber War threat, and makes an increasing effort to defend the nation from hoards of hackers, it is running into some serious obstacles because of bureaucratic infighting, insufficient resources, and laws that forbid the best qualified government employees to help.

Early on (in the 1990s) it was the Department of Defense that took the initiative to defend the country against attacks via the Internet. This effort was hampered by lack of money and lack of awareness by the other branches of the government. After September 11, 2001, everyone in the government became more security conscious and a new bureaucracy (DHS, or the Department of Homeland Security) was formed. DHS was created largely from existing agencies (Coast Guard, Border Patrol, Immigration, and Naturalization Services) with the addition of several new ones (like the Transportation Security Agency everyone encounters at airports). While some components of DHS are quite good (Coast Guard), most of them are mediocre or worse. Even though the Department of Defense was already heavily involved in Cyber War defense DHS saw this as a DHS responsibility and has sought to take over whatever the Department of Defense is doing here. This has caused a classic bureaucratic brawl of epic proportions.

Then there's another even larger problem: Cyber War involves defending networks and computers, not real estate. Most of those computers belong to companies and individuals. To deal with this the government is trying to formulate laws that would put all those computers under some control (for security purposes) of the government. This means more regulations stipulating what corporations and individuals must do to protect their networks and computers. Most Americans are hostile to this because networks in non-government organizations (especially banks and large corporations) are much better protected than those in the government, or even the military. No one wants to trust the government with something as crucial as Internet security, yet there is a need for someone to be in charge to deal with large scale issues (like what general protective measures to use for encryption or basic functions of the Internet). This is now taken care of by consensus among several voluntary organizations. This has not solved some major problems with Internet security and few trust governments to do any better.

It gets even more bizarre when you consider that, historically, the military defended the "homeland" from foreign threats. This sometimes involved protecting the property of American citizens overseas, especially needed raw materials (like oil). The navy defended sea lanes (the unfettered use of shipping lanes for importing and exporting). But Cyber War doesn't involve defending actual land or sea access. While many Cyber War targets are military or government computers, most belong to American citizens in the United States. DHS sees this as something it should do. But the Department of Defense has a strong case in that it has a lot more experience in that area and can reinforce that with conventional combat ability (to physically cut cables or destroy satellites used by a hostile power to wage Cyber War against the U.S.). Cyber War is an international effort and not just restricted to the homeland. There's also the fact that the Department of Defense is seen as a much more competent and well run organization.

Sadly, the American military is forbidden, by law, from defending the United States from within the United States. That is, as some DHS advocates would have it, why the Department of Defense cannot run efforts to protect Internet based operations within the United States.

That's because the U.S. is unique in that, by law, the military cannot act as police inside the U.S. American Armed Forces are bound by the Posse Comitatus Act, which imposes limits on the use of federal military forces in domestic law enforcement.  The Posse Comitatus Act was originally enacted in 1878, in a largely successful effort to prevent the use of federal troops for enforcing the Fourteenth Amendment and other Reconstruction-era measures such as the Civil Rights Acts of 1866 and 1875, and the Ku Klux Klan Act of 1871. All this was in order to facilitate the re-establishment of white supremacy in the former Confederacy. Fearing precisely that President Rutherford B. Hayes opposed the measure, but it was passed over his veto. Despite these unsavory origins it has become firmly embedded in American culture.

Posse Comitatus does not actually restrict all military support to law enforcement. Under certain circumstances such support is permitted, as outlined in Army Regulation 500-51, "Emergency Employment of Army and Other Resources, Support to Civilian Law Enforcement, 1 July 1983."

• Actions taken for furthering a military or foreign affairs function of the United States, regardless of incidental benefits to civilian authorities.

• Actions taken under the inherent right of the U.S. Government to insure preservation of public order and carrying out of governmental operations within its territorial limits, by force if necessary.

It's believed that these exemptions would allow the Department of Defense to take the lead in Cyber War defense. But many Americans oppose this and no one knows how the courts would decide.

Moreover, there are detailed restrictions on the role of the military even within existing exemptions, to preserve the separation between civil and military authority.

Meanwhile, Congress has empowered the Armed Forces to support anti-drug operations in the Caribbean and Gulf of Mexico. A series of legislative initiatives during the '80s modified Title 10 of the US Code to make the Department of Defense (DoD) the lead agency in international waters for the detection and monitoring of air and sea traffic likely to be involved in the illegal international trade in drugs, with the authority to pass the information to law enforcement agencies, including the U.S. Coast Guard. In addition, the Department of Defense can provide equipment and facilities to law enforcement agencies and provide training and expert advice. Thus, although uniformed DoD personnel cannot directly participate in searches, seizures, arrests, or similar activities they can provide important support to law enforcement agencies (e.g., federal troops cannot arrest someone for a civil violation but can guard someone who has been arrested by a suitably authorized civilian law enforcement agency). The legislation further mandates that the appropriate departments arrange for Coast Guard Law Enforcement Detachments (LEDETS) to be aboard "every appropriate surface navy vessel at sea in a drug interdiction area," outside U.S. territorial waters.

So while the armed forces can perform certain roles in law enforcement, for the most part these are strictly support roles. Despite this restriction these arrangements have worked pretty well. But new law enforcement missions have arisen in the aftermath of the terrorist attacks on the United States on September 11, 2001. The Department of Defense sees its Cyber War defense efforts within the United States as a support role.

In a curious loophole Posse Comitatus does not restrict the Navy from conducting essentially law enforcement operations against anyone suspected of engaging in piracy, drug smuggling, the slave trade, and other activities defined by international agreements as "universal crimes." That is, provided those individuals are neither American citizens nor in American territorial waters. Thus, in January 2002, Navy personnel boarded and searched the Hajji Rahmeh, a Syrian merchant vessel, in the Mediterranean Sea. Had the ship been in US coastal waters or under US registry, however, the Navy would be prohibited from taking such action or even directly supporting a Coast Guard boarding team.

There have been recent calls to repeal or modify Posse Comitatus. However, this is likely to be very difficult to carry off. The Posse Comitatus Act has become deeply embedded in civil libertarian thought in America, on both the left and the right. For example, the very limited use of military reconnaissance aircraft to support the apprehension of the "D.C. Sniper" during October of 2002, led to a good deal of acrimony. At the time civil rights activists protested the measure, warning of a potential "slippery slope" in the erosion of constitutional rights. Similar protests have been heard from the right, with warning of grave consequences that might attend the modification of the law.

Meanwhile, the Department of Defense daily works on Cyber War defense with major corporations and other parts of the government (NSA, CIA, FBI, DHS, and others) and it seems unlikely that DHS will be able to reverse that momentum. But a lot of political and DHS officials want to, which will make the attempt interesting to watch.

 

 


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