The Washington Post’s Ellen Nakashima examines the question of what constitutes war if the trigger point originates in cyberspace:

Deciding what amounts to an act of war is more a political judgment than a military or legal one. International law avoids the phrase in favor of “armed attack” and “use of force.” [...]]]> via Lobe Log

The Washington Post’s Ellen Nakashima examines the question of what constitutes war if the trigger point originates in cyberspace:

Deciding what amounts to an act of war is more a political judgment than a military or legal one. International law avoids the phrase in favor of “armed attack” and “use of force.” Retired Gen. James Cartwright, former vice chairman of the Joint Chiefs of Staff, has often said that an act of war “is in the eye of the beholder.”

As Cartwright has pointed out, the United States didn’t go to war with North Korea after it sank a South Korean warship in 2010, nor with Iran after the U.S. Embassy in Tehran was seized in 1979. Would we want to start a war over a virus that causes a power blackout? And if not, what other actions might the government contemplate?

The government has defined an armed attack in cyberspace as one that results in death, injury or significant destruction, as Harold Koh, the State Department’s chief legal adviser, recently put it. Here’s the rule of thumb, as Koh stated it: “If the physical consequences of a cyberattack work the kind of physical damage that dropping a bomb or firing a missile would, that cyberattack should equally be considered a use of force.” If an attack reaches those levels, then a nation has a right to act in self-defense.

Columbia Law School professor Matthew Waxman elaborates on the legal and policy dimensions at the Lawfare blog. Demonstrating attribution and the need for self-defence will be a multi-dimensional, complicated process, he writes:

As to the last questions, whatever certainty about the perpetrator is necessary to satisfy internally the legal self-defense question, a state will also need to explain and justify its military response externally, to domestic and international audiences – and those exercises may look very different. A state may not be willing to disclose publicly some of the intelligence information and analysis used to satisfy its internal legal analysis (I’m assuming that the attribution of a major cyber-attack could involve a combination of sophisticated digital forensics, human intelligence, reliance on circumstantial evidence and reasoning, and other means). Even if it chooses to disclose intelligence, that information might be unintelligible or unpersuasive to skeptical outside audiences. And the threshold of certainty necessary to win support from allies and partners may be higher (or perhaps in some cases lower) than that needed to satisfy legal requirements.

In terms of evolving international law in this area, the challenges of demonstrating attribution – besides just assessing it internally – will make it especially difficult to develop consensus legal appraisal of self-defensive actions against cyber-attacks, because so many of the key facts about the attack will be contested, secret, or difficult to observe.

With news yesterday of a foiled bomb plot that allegedly ties the Iranian government to an attempt to assassinate foreign diplomats in the U.S., Republicans are now calling for escalated actions against the Iranian regime. Many have focused their talking points on describing the alleged Iranian-backed [...]]]> Reposted by arrangement with Think Progress

With news yesterday of a foiled bomb plot that allegedly ties the Iranian government to an attempt to assassinate foreign diplomats in the U.S., Republicans are now calling for escalated actions against the Iranian regime. Many have focused their talking points on describing the alleged Iranian-backed plot as a declaration of war on the U.S. Here’s a quick rundown:

FORMER REP. PETE HOEKSTRA (R-MI)

Pete Hoekstra told the right-wing magazine Newsmax that the plot allegedly coordinated by Iran constituted “acts of war”:

The plot will “heighten the tensions throughout the Middle East… These are acts of war, and they need to be viewed and treated as such,” said Hoekstra, the former ranking member of the House Permanent Select Committee on Intelligence, told Newsmax in an exclusive interview.

REP. PETER KING (R-NY)

House Homeland Security Committee Chairperson King told CNN that he considered the plot an “act of war” and said “the Iranians have crossed a red line”:

KING: This is such — again, this violates all international norms, violates international law. Basically, you’re talking about an act of war. I think we have to — the United States has to really consider taking very significant action. [...]

[W]e should not be, I don’t think, automatically saying we’re not going to have a military action. I think everything should be kept on the table when you’re talking about a potential attack against the United States, an act of war.

SEN. MARK KIRK (R-IL)

Appearing on a Chicago talk radio show, Kirk boosted his recent legislative attempt to collapse the Iranian currency by going after the Iranian central bank. Though Kirk didn’t endorse “military action” by the U.S., he justified a new push to move his legislation forward by saying that the Iranian government has already declared war on the U.S.:

KIRK: I think the declaration of war has already happened by Iran on us. If their intelligence service, called the MOIS, is seeking to blow up American targets, we are already in a state of conflict with them, but for the good work of the FBI, the Department of Homeland Security, and the Justice Department.

RADIO HOST: …You believe this to be true? This is an act of war?…

KIRK: …This is pretty in-your-face by the government of Iran, to be trying to put together bomb plots inside Washington, D.C. And it’ll be now time for the Obama administration to take action.

Watch King and listen to Kirk here:

The plot itself remains merely in indictment form, and, as many commentators have pointed out, we don’t know exactly what was going in this situation, and we do know that a bold move like this would be well out-of-character for Iran’s normally very professional intelligence agencies. Considering the high stakes of possible regional conflagration, perhaps it’s best to save all the “declaration of war” talk until the facts of the case and Iranian complicity are more clear.