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New NDAA Would Give the Military Clandestine Cyberwar Powers

May 8, 2012 - by Donny Shaw

Remember the 2012 National Defense Authorization Act (NDAA) and its language “affirming” the military’s power to indefinitely detain anyone, including U.S. citizens, without charge or trial? Well, the 2013 NDAA bill begins its journey through the legislative process tomorrow morning in the House Armed Services Committee; take a look at what power they’ll be trying to affirm for the Defense Department this time around:

SEC.941 MILITARY ACTIVITIES IN CYBERSPACE.

Section 954 of the National Defense Authorization Act for Fiscal Year 2012 (Public Law 112–81; 125 Stat. 1551) is amended to read as follows:

‘‘SEC. 954. MILITARY ACTIVITIES IN CYBERSPACE.

‘‘(a) AFFIRMATION.—Congress affirms that the Secretary of Defense is authorized to conduct military activities in cyberspace.

‘‘(b) AUTHORITY DESCRIBED.—The authority referred to in subsection (a) includes the authority to carry out a clandestine operation in cyberspace—

‘‘(1) in support of a military operation pursuant to the Authorization for Use of Military Force (50 U.S.C. 1541 note; Public Law 107-40) against a target located outside of the United States; or

‘‘(2) to defend against a cyber attack against an asset of the Department of Defense.

‘‘(c ) RULE OF CONSTRUCTION.—Nothing in this section shall be construed to limit the authority of the Secretary of Defense to conduct military activities in cyberspace.’’.

Primary source here for now. This language is from a just-released chairman’s mark that is not yet available on OC.

Congress has already given the Department of Defense some cyberwar powers. Under current law, the DoD can conduct “offensive operations in cyberspace” at the discretion of the President and in the context of a declared war. The new language would expand the DoD’s cyberwar powers by authorizing clandestine operations, removing the requirement for presidential approval, and expanding the authority beyond declared war by authorizing cyberwar actions response to cyberattacks against the military.

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