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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