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Congress To Amend NDAA To Give DoD & NSA Greater 'Cyberwar' Powers

from the say-what-now dept

Remember the NDAA? Yeah, for a variety of reasons that bill got a lot of attention last year -- mostly focused on the question of detainment of terrorists. But there are some other nuggets in the bill, including one tidbit about "military activities in cyberspace." The existing version of the NDAA does grant the Defense Department the ability to conduct such military activities, but only "upon direction by the President" and if the purpose is to "defend our Nation, Allies and interests," subject to existing laws.

Here's the existing text:
SEC. 954. MILITARY ACTIVITIES IN CYBERSPACE.

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.).
However, the House Armed Services Committee is getting ready to do a markup on the NDAA that includes a change to that section (section 954), which expands the powers of the Defense Department, and basically gives it broad powers to conduct any military actions online -- with it specifically calling out clandestine operations online. Here's the text they want to substitute:
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.’"
Note a bunch of slightly sneaky things going on here. First, it gives blanket powers to the DoD, rather than saying it can only take actions on the President's direction. While we may not have much faith that the President wouldn't let the DoD do such things, giving such blanket approval upfront, rather than requiring specific direction is a pretty big change.

Second, and perhaps more important, the new language specifically grants the DOD (and the NSA, which is a part of DOD) the power to conduct "clandestine operations." This is (on purpose) left basically undefined. Combine this with the fact that the "Authorization of Use of Military Force" is so broadly defined in the current government, this then grants the DOD/NSA extremely broad powers to conduct "clandestine" operations with little oversight. Related to this is that it removes the restriction that the DOD must take actions that are "subject to the policy principles and legal regimes that the Department follows for kinetic capabilities, including the law of armed conflicts." Instead it lets them use such powers, without these restrictions, against anyone declared an enemy under the AUMF (lots and lots of people) or in any effort to stop a cyberattack against the DOD -- which again you can bet would be defined broadly. This is a pretty big expansion of online "war" powers for the Defense Department, with what appears to be less oversight. And all done while people are looking the other way...


Reader Comments (rss)

(Flattened / Threaded)

  1.  
    identicon
    Anonymous Coward, May 8th, 2012 @ 1:55pm

    people hate people too much

     

    reply to this | link to this | view in thread ]

  2.  
    identicon
    Anonymous Coward, May 8th, 2012 @ 2:01pm

    Re:

    If there were no people, than it's obvious that people would not have a problem with people.... Thus people are both the source of the problem and the solution....

    "We the People..." if we are the people, and we have a problem with ourselves, perhaps we should seek help....

     

    reply to this | link to this | view in thread ]

  3.  
    icon
    weneedhelp (profile), May 8th, 2012 @ 2:04pm

    What are they gearing up for?

    Appears to be war against its own citizens.

     

    reply to this | link to this | view in thread ]

  4.  
    icon
    The Spork (profile), May 8th, 2012 @ 2:05pm

    is it just me

    or is congress just using the bill of rights like toilet paper instead of actually reading the thing?

     

    reply to this | link to this | view in thread ]

  5.  
    identicon
    rubberpants, May 8th, 2012 @ 2:16pm

    Cyberwar

    Cyberwar (n)

    1. Anything involving computers that's convenient to label as such

     

    reply to this | link to this | view in thread ]

  6.  
    identicon
    Anonymous Coward, May 8th, 2012 @ 2:22pm

    the USA is getting more and more akin to the description about Fascism in the article by Political scientist Dr. Lawrence Britt.

     

    reply to this | link to this | view in thread ]

  7.  
    identicon
    Anonymous Coward, May 8th, 2012 @ 2:26pm

    Re: Re:

    I think you don't even know what "We the People" actually means if you read the Trickster's contract deeper enough. The main problem is that most people don't have a class analysis ("We the People" actually means the Haute Bourgeoisie the ones who currently own & control the means of production).

     

    reply to this | link to this | view in thread ]

  8.  
    identicon
    Anonymous Coward, May 8th, 2012 @ 2:29pm

    Re: is it just me

    Do you really think the Bill of Rights was written for everyone? Class Analysis will tell you otherwise which would explain things alot more clearer (The Bill of Rights was actually written for the Haute Bourguise the ones who own and control the means of production not for everyone).

     

    reply to this | link to this | view in thread ]

  9.  
    identicon
    Anonymous Coward, May 8th, 2012 @ 2:30pm

    The incompetent morons in the Pentagon...

    ...showed us, ten years ago, that they were far too stupid and too slow to defend their own HQ from poorly-trained amateurs. And we're supposed to believe that they can "defend cyberspace"?

    They couldn't defend a barn from a pissed-off cow.

     

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  10.  
    identicon
    arcan, May 8th, 2012 @ 2:32pm

    Re: is it just me

    that is not much paper for the gigantic rears that control congress....

     

    reply to this | link to this | view in thread ]

  11.  
    identicon
    arcan, May 8th, 2012 @ 2:33pm

    Re: Re: is it just me

    was not sure if i was allowed to swear or not... might be accused of cyber terrorism for swearing in a tech forum...

     

    reply to this | link to this | view in thread ]

  12.  
    identicon
    arcan, May 8th, 2012 @ 2:35pm

    Re: The incompetent morons in the Pentagon...

    sure they could. but instead of of a guy with a shotgun. they would use a 10 warhead thermonuclear missile. which would miss and kill everything but the pissed off cow they were aiming at.

     

    reply to this | link to this | view in thread ]

  13.  
    identicon
    Anonymous Coward, May 8th, 2012 @ 2:35pm

    Re: Re: is it just me

    You meant Haute Bourgeois.

     

    reply to this | link to this | view in thread ]

  14.  
    icon
    That One Guy (profile), May 8th, 2012 @ 2:39pm

    Umm...

    Is it just me or does this line:

    (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.’"

    Essentially completely nullify the conditions listed right above it?

    Seems to me that it means that the rules and conditions listed above don't actually prevent the Secretary of Defense from doing anything, or say... ordering some other person/group to do it in their stead.

     

    reply to this | link to this | view in thread ]

  15.  
    identicon
    arcan, May 8th, 2012 @ 2:46pm

    Re: Umm...

    i think it means that the secretary of defense's interpretation of this law is the only one that matters. well them and the supreme court. but the government will never let these bills get there if at all possible.

     

    reply to this | link to this | view in thread ]

  16.  
    icon
    gorehound (profile), May 8th, 2012 @ 2:55pm

    Re: What are they gearing up for?

    +1
    At the rate things are going I am hoping the Cancer of Washington is eliminated within the next ten years.Would not surprise me to see mass civil discontent one bit.

     

    reply to this | link to this | view in thread ]

  17.  
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    Overcast (profile), May 8th, 2012 @ 3:52pm

    At the rate things are going I am hoping the Cancer of Washington is eliminated within the next ten years.Would not surprise me to see mass civil discontent one bit.

    What worries me, is the concept that just that - might be the intent.

    http://www.intrepidreport.com/archives/3260

    http://www.valuewalk.com/2012/01/george-so ros-expect-civil-unrest/

    Free free to dig deeper, but you might not like what you find.

     

    reply to this | link to this | view in thread ]

  18.  
    identicon
    Anonymous Coward, May 8th, 2012 @ 4:45pm

    DHS makes plans for civil war.
    DHS buys ammo for stockpile beyond it's training needs.
    POTUS signs orders to make international rules binding on US Citizens.
    Congress passes the NDAA.
    Congress make NDAA worse for Individual Liberty.
    If anyone believes we are not living in an authoritarian police state, please tell us what you do believe?

     

    reply to this | link to this | view in thread ]

  19.  
    identicon
    Anonymous Coward, May 8th, 2012 @ 6:30pm

    The DOD and the NSA?

    You mean the agencies whose employees were caught downloading child porn on their computers? THAT DOD and NSA?

     

    reply to this | link to this | view in thread ]

  20.  
    icon
    That One Guy (profile), May 8th, 2012 @ 8:09pm

    Re: Re: Umm...

    But the thing is that little bit is specifically talking about what the Secretary of Defense(hereby referred to as the SoD, due to it fitting and being easier to type) can and can't do.

    ‘‘(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—


    So right after they say what the Sod can and can't so, they then stick in a clause stating that the Sod isn't actually limited by the rules they just listed at all. Seems to me of a case of 'having your cake and eating it too', where they can point out that there are indeed limits to what the Sod can do or order done, and yet the limits are in fact purely imaginary.

     

    reply to this | link to this | view in thread ]

  21.  
    identicon
    Rekrul, May 8th, 2012 @ 8:33pm

    Re: is it just me

    The Bill of Rights got flushed a long time ago...

     

    reply to this | link to this | view in thread ]

  22.  
    identicon
    Cowardly Anonymous, May 8th, 2012 @ 9:33pm

    Re: Re: Re: Umm...

    Actually, they never place a limit in the entire scope. The whole thing is worded as a minimum authority. Includes is the key word there.

     

    reply to this | link to this | view in thread ]

  23.  
    identicon
    Cowardly Anonymous, May 8th, 2012 @ 9:46pm

    Re:

    That the worst is yet to come and this is just a taste of a true police state.

    We are spiraling in that direction and the outlook is pretty bleak, but we aren't there yet.


    Just remember, they want you to be violent. Keep talking, never raise a fist and obscure your identity as much as possible. Do not fight until they start it. Do not go beyond defense.

    A large portion of the international community is aching for an excuse to vilify the US. In the worst case, a Gandhi with an internet connection will bring actual military power to our side.

    Rebellion is the fool's road.

     

    reply to this | link to this | view in thread ]

  24.  
    identicon
    Anonymous Coward, May 9th, 2012 @ 3:11am

    You know what I hate the most about this?
    Not the tyranny. Not the spying. The incompetence. The sheer idiocy of these people as they desperately struggle to figure out how to oppress the public.
    Look at those oh-so-official paragraphs they wrote. They want to regulate the internet, but they're not bright enough to know the word "internet"; it's all cyber-this and cyber-that. You could probably convince them Neuromancer was a documentary. Heck, maybe they already believe that.
    I'd love to pin one of them down and ask them to define "cyberspace" and "cyber attack". I bet I'd get nothing but stammering. It'd be nice to get a laugh before they allocate several hundred million to a "cyber defense fund" (probably used to buy copies of Vista Antispyware 2012).

    (...By the way, don't buy Vista Antispyware 2012.)

     

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  25.  
    identicon
    Anonymous Coward, May 9th, 2012 @ 3:35am

    http://www.valuewalk.com/2011/12/us-vs-china-the-economic-cold-war-has-begun-video/

    Does anyone know if there is any truth to this story?
    The fact the youtube video was taken down, is a bit of a concern

    Forgive my ignorance, but when was the NDAA act actually passed?

     

    reply to this | link to this | view in thread ]

  26.  
    identicon
    Michael, May 9th, 2012 @ 6:08am

    Re: What are they gearing up for?

    "Appears to be war against its own citizens."

    Let's say that sometime in the future the government goes to war with the citizens. That would give the UN the perfect excuse to invade in order to "rescue" the citizens, offering us "peace." Americans would be cheering, even though this would ultimately lead us down the path to a one-world government dictatorship. In essence, we'd trade one totalarian regime for another totalarian regime but on a far bigger scale.

    That's just a hypothetical guess.

     

    reply to this | link to this | view in thread ]

  27.  
    identicon
    Anonymous Coward, May 9th, 2012 @ 6:50am

    Re: Re: What are they gearing up for?

    "Would not surprise me to see mass civil discontent one bit."

    Especially if Willard wins... ;-(

     

    reply to this | link to this | view in thread ]

  28.  
    icon
    Rapnel (profile), May 9th, 2012 @ 8:12am

    Re: Re:

    Indeed. You must be eaten by the parasite so that you may retrieve your weapon and destroy it from within.

    Now where did I put that stupid, little poison cat poopy tipped blow dart?

     

    reply to this | link to this | view in thread ]

  29.  
    identicon
    Footnote, May 9th, 2012 @ 8:23am

    Matching Lethalities

    Isn't it reasonable to acknowledge that they (DOD) should be able to match deemable threats with sufficiently equal or greater lethal force or operations hithertofore without restraint in this world of rampantly maniacal regimes and mutually destructive governments who have already declared war upon US? Why would we want to tie the hands of the Department of Defense when they are in charge of protecting the very same system of freedom we enjoy? Thus, our new war cry doth compel:

    Give Them (DOD) Liberty or Give Us Death!!
    Go Yanks!

     

    reply to this | link to this | view in thread ]

  30.  
    identicon
    Footnote, May 9th, 2012 @ 9:17am

    Re: Re: Re: Umm...

    The atrocities and instant destruction that is so overwhelmingly prevelant in our world today could have not even scarcely been imagined at the time of the origional constitution and declaration of war powers available to the US Presidents back in that day. We are facing threats that are so unbelievably hideous and terrorizing that it should come as no surprise that our Defenses do not wish to be hog-tied by some obscure antiquated notion of our forefathers' vision for a free nation under God when today's threats include nations tunneling under nations, deadly HAARP radio frequencies uninhibited to cause death and mayhem almost anonymously at any position on earth, spy satellites, particle beams weaprony, operations so insidious that they can literally make your blood boil out of thin air, and not to mention all the other "conventional" weapons of mass destruction raining down upon an unsuspecting nation while most of us lay asleep at night or are eating our Sunday dinners while the kids play in the yard. The only reason we are not scared to death already is that most of the real threats are kept from our awareness so we can go about our daily lives graciously according to our nations' militarys' perseverance and vigilance and unseeming diligence from our country's leadership.

     

    reply to this | link to this | view in thread ]

  31.  
    identicon
    arcan, May 9th, 2012 @ 12:09pm

    Re: Re: Re: Re: Umm...

    Citation needed

     

    reply to this | link to this | view in thread ]

  32.  
    icon
    nasch (profile), May 9th, 2012 @ 2:53pm

    Re: Re: What are they gearing up for?

    Let's say that sometime in the future the government goes to war with the citizens. That would give the UN the perfect excuse to invade in order to "rescue" the citizens, offering us "peace."

    lol, the UN invade the US. Good one. The UN has only a small peacekeeping force. They would be obliterated if they tried to go up against the US military.

     

    reply to this | link to this | view in thread ]

  33.  
    identicon
    Kai San, May 9th, 2012 @ 10:59pm

    Waking Up In Time

    Foster Gambles also discusses in detail the recent actions of the NSA, with the massive new center in Utah, along with the NDAA legislation and Obama's recent Executive Order, the National Defense Resources Preparedness - and what it means for us as citizens. I'd highly recommend checking it out: http://www.thrivemovement.com/foster-gamble-waking-up-in-time-from-police-state.blog

     

    reply to this | link to this | view in thread ]

  34.  
    identicon
    phildem, May 10th, 2012 @ 7:55am

    ahem, stuxnet, and variants...

    With stuxnet, and it's variants, its clear that state actors are using software and the internet to commit acts of war/ This is about making that theatre of war an official domain
    of the pentagon, and MI complex.

    It's just an added benefit that it will also provide a means to react in a more timely manner to quell populist dissent when it arises.

     

    reply to this | link to this | view in thread ]

  35.  
    icon
    JackOfShadows (profile), May 13th, 2012 @ 8:17pm

    Late to the party, sorry!

    If you are at all familiar with the statutory authority of the various Commanders in Chiefs (CINC's in military parlance, such as CINCPAC, CINCCENT, &c.) and that of, for instance, Supreme Allied Commander, Europe (SACEUR, again in military parlance), they do not have to wait around for civilian authority to pull their thumbs or other appendages out of whatever orifices they have them stuck into to preempt or react to an imminent threat or attack. It's been that way for an awfully long time; no new Pearl Harbors anyone?

    Now, why the change in this case if the law was already drawn as to what the DoD, especially the military, can do? It comes down to one non-obvious conclusion. Formerly the law stated that cyber-warfare attacks and threats were to be treated as equivalent to kinetic (bombs, bullets, that kind of thing) weapons. Bits equals bombs. The new law says nothing of the kind. This allows cyber-warfare to be treated as equivalent to a NBC (Nuclear, Biological, Chemical) attack. Bits equals WMD's. That policy question has been bouncing around Washington, D. C., and think-tank set for a while now. Congress has officially gone on paper as to what equivalence, or actually the lack of direct equivalence really, between the various arenas of combat.

    So, if Iran, China, Russia, hell North Korea, should engage in this kind of asymmetric warfare, they could wake up to a second sunrise, if they aren't already plasma.

    [Note: This is not speculation. I served for well over a decade in the US Navy and from the time I swore my oath of enlistment, I've been interested in exactly what "protecting the Constitution of the United States against all enemies, foreign and domestic" and on the nature of a "lawful" order from "those officers appointed above me. Then again, everyone in my extended family has served in one of the branches. It's what we do and have done for generations. Ummm, those that aren't rock-farmers. I can also blame Mom, who corrupted me with many a Robert A. Heinlein novel at an extremely young age.]

     

    reply to this | link to this | view in thread ]


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