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

from the say-what-now dept

Tue, May 8th 2012 1:33pm — Mike Masnick

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...

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Filed Under: congress, cyberwar, dod, ndaa, nsa

35 Comments

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Anonymous Coward, 8 May 2012 @ 1:55pm

people hate people too much
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Anonymous Coward, 8 May 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....
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weneedhelp (profile), 8 May 2012 @ 2:04pm

What are they gearing up for?
Appears to be war against its own citizens.
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The Spork (profile), 8 May 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?
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rubberpants, 8 May 2012 @ 2:16pm

Cyberwar
Cyberwar (n)

1. Anything involving computers that's convenient to label as such
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Anonymous Coward, 8 May 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.
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Anonymous Coward, 8 May 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).
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Anonymous Coward, 8 May 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).
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Anonymous Coward, 8 May 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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arcan, 8 May 2012 @ 2:32pm

Re: is it just me
that is not much paper for the gigantic rears that control congress....
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arcan, 8 May 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...
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arcan, 8 May 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.
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Anonymous Coward, 8 May 2012 @ 2:35pm

Re: Re: is it just me
You meant Haute Bourgeois.
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That One Guy (profile), 8 May 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.
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arcan, 8 May 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.
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gorehound (profile), 8 May 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.
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Overcast (profile), 8 May 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.
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Anonymous Coward, 8 May 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?
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Anonymous Coward, 8 May 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?
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That One Guy (profile), 8 May 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.
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Rekrul, 8 May 2012 @ 8:33pm

Re: is it just me
The Bill of Rights got flushed a long time ago...
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Cowardly Anonymous, 8 May 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.
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Cowardly Anonymous, 8 May 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.
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Anonymous Coward, 9 May 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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Anonymous Coward, 9 May 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?
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Michael, 9 May 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.
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Anonymous Coward, 9 May 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... ;-(
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Rapnel (profile), 9 May 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?
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Footnote, 9 May 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!
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Footnote, 9 May 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.
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arcan, 9 May 2012 @ 12:09pm

Re: Re: Re: Re: Umm...
Citation needed
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nasch (profile), 9 May 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.
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Kai San, 9 May 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
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phildem, 10 May 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.
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JackOfShadows (profile), 13 May 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.]
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