What Is the Role of Lawyers in Cyberwarfare? ABA Journal

Apr 25th, 2012 Criticism, cyber attack, warfare

I just want to call your attention to a fascinating article written by Stewart A. Baker and Charles J. Dunlap Jr. for the ABA Journal.  Lawfare spotted this earlier today.  The article lays out a debate between Baker (a D.C. attorney) and Gen. Dunlap (the former deputy judge advocate general of the U.S. Air Force) on how the U.S. should approach cyberwar and whether lawyers are having a detrimental effect on the process.

Baker argued that "[l]awyers don't win wars" and the overly legal response to cyberwar–"Military lawyers are tying themselves in knots trying to articulate when a cyberattack can be classed as an armed attack that permits the use of force in response"–is counterproductive.  Baker goes on to compare cyberwar to airpower around WW2, noting that most countries agreed to avoid bombing civilian centers, but that clearly flew out the window once the realities of total war set in.  Similarly, trying to limit cyberwar through the use of international norms "is almost certainly doomed."

Gen. Dunlap responded to Baker by arguing that military lawyers understand the need for legal restrictions on cyberwar.  If military commanders understand the need for those restrictions and have "express[ed] satisfaction with a legal framework for cyberwar," who are we to second guess them?  Moreover, Gen. Dunlap argued that the U.S. military can still maintain superiority in cyberspace while following legal restrictions on cyberwar.  Finally, if the U.S. wages cyber war without legal limits, we lose the moral high ground.

Baker then rebutted Gen. Dunlap's points, and the ABAJournal gave Gen. Dunlap the last word. 

This was a wonderful read, and I highly recommend it.  You can find the debate on the ABAJournal website here.

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Professor William Snyder

Professor William C. Snyderis a member of the faculty of the Institute for National Security and Counter-terrorism at Syracuse University after fifteen years with the United States Department of Justice.

Ryan D. White

Ryan D. WhiteRyan is currently a third year law student at Syracuse University College of Law, and is also pursuing a Master of Public Administration degree from Syracuse’s Maxwell School of Citizenship and Public Affairs. Ryan spent time with Homeland Security Investigations while pursuing his undergraduate degree at Wesleyan University, and spent his first summer of law school as clerk for the U.S. Attorney’s Office in the Western District of New York. He is a member of Syracuse Law Review, the Journal on Terrorism and Security Analysis, and participates in the Veteran’s Legal Clinic. Full biography

Shelby E. Mann

Ryan D. WhiteShelby is a second year law student at the Syracuse University College of Law. During her final year at the University of Missouri, she served as a full-time news producer for ABC 17 News. Shelby spent her first summer of law school at the Shelby County District Attorney General's Office in Memphis, Tenn., in the Public Corruption and Economic Crimes Unit. She is a member of Syracuse Law Review, the Journal on Terrorism and Security Analysis, and the senior editor for the Syrian Accountability Project. Full biography

Christopher w. FolkChristopher W. Folk

is a 2017 graduate of SU College of Law. A non-traditional student, Christopher returned to academia after spending nearly twenty years in the high tech industry. Christopher served in the Marine Corps, graduated from Cornell University with a B.S. In Applied Economics and Business Management, attended Northeastern University’s High-Tech MBA Program and received a M.S. In Computer Information Systems. Christopher previously worked in Software Engineering. Christopher is currently serving his second term as Town Justice for the Town of Waterloo. Christopher externed with a Cybersecurity firm in the Washington, D.C. area between his first and second year at SU College of Law. Full biography

Anna Maria Castillo

Anna Maria Castillois 2016 graduate of Syracuse College of Law. She also holds a Master of Arts in International Relations from Syracuse University's Maxwell School of Citizenship and Public Affairs. She has interned at a London-based think-tank that specializes in transnational terrorism and global security and at the legal department of a defense contractor. She served as an executive editor in the Syracuse Law Review. Full biography

Jennifer A. CamilloJennifer A. Camillo

is a 2015 graduate of Syracuse College of Law and is a prosecutor. She has served as a law clerk in the United States Attorney’s Office for the Northern District of New York and the Cayuga County District Attorney’s Office and as an extern in the Oneida County District Attorney’s Office. She was a member of the Syracuse National Trial Team and was awarded the Tiffany Cup by the New York Bar Association for her trial advocacy achievements.

Tara J. PistoreseTara J. Pistorese

holds Juris Doctor and Masters of Public Administration degrees from Syracuse University's Maxwell School of Citizenship and Public Affairs and its College of Law. She wrote for this blog when a student. She is now a member of the U.S. Army Judge Advocate General's Corps.

Benjamin Zaiser

is both a scholar and a Federal Agent of the Federal Criminal Police Office of Germany. (Opinions expressed here are his own and not any part of official duty.) Full biography

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