The Fiscal Cliff Is Here Again Along With Cyber Insecurity

Greetings Fiscal Cliff Dwellers!  By the time you read this there will be less than two weeks before automatic sequestration cuts take effect – – – a week of which the Congress will be in recess!  What was meant to be a “poison pill” to force the legislative and executive branches to compromise on rational budgets so the government could reduce the deficit by $1.2 trillion over the next ten years now appears inevitable.  Since January we have been fed a steady stream of increasingly dire consequences from Navy aircraft carriers not deploying, to Army readiness declining, to Air Force airplanes not being maintained, to civilian workers being furloughed, and to contracts being canceled unless there is some relief from the automatic 9.4% sequestration of funds scheduled for March 1st.   Yet none of this doom and gloom was in evidence as late as Thanksgiving of 2012 when the reflexive answer from DoD consistently was “the Congress won’t allow sequestration to happen!”

Of course throughout 2012 DoD was planning on rolling a “7” to get Congress to lift sequestration by overtly not planning for it; instead “snake eyes” came up when on New Year’s Day the Congress and the President deferred sequestration until 01 March in order to get a deal for a tax increase and raising the debt ceiling short term.  I don’t know about the rest of the country, but here in Washington sequestration fatigue has set in after a year of meaningless political posturing resulting in a now conflicted sense of resignation that sequestration is unavoidable because “the other side won’t be reasonable.”  Moving on to “what’s next” Beltway wisdom is projecting that the pain of sequestration will bring both sides in Congress to their senses almost immediately, which will result in the Continuing Resolution that needs to be enacted by 27 March to avoid a government shutdown having language that will at least allow departments to allocate the sequestration cuts as they think best vice in their current across the board nature.  Poke me in April to let me know how this going!

Were you as amused as I was about the constitutional law debate associated with the “discovery” the day before John Brennan’s Senate confirmation hearing to be CIA Director that the executive branch has detailed legal guidance regarding when American citizens engaged with terrorists abroad can be purposely targeted for elimination?  The use of lethal force is never a trifling matter and an American citizen’s inalienable right to life, liberty, and the pursuit of happiness is inviolateable, but as Justice Robert Jackson observed in his 1949 dissenting opinion on Terminiello verses Chicago “the constitution is not a suicide pact.”  While legal purists will disagree, I am of the view that when an American knowingly acts in concert with a foreign adversary against the national security interests of the United States his/her claim to the protections associated with U.S. citizenship are abrogated.  Then there is the criteria of “imminent danger” that is tantamount to “self defense” which should obviate the need for offering Miranda Rights.  I certainly want the U.S. government acting preemptively overseas to take out any immediate threat from those who have said they are motivated to destroy the United States.

That said I am not so certain that the authority to execute preemptive drone strikes against terrorists, American citizens or otherwise, manifesting imminent danger to U.S. national security is well placed with the Intelligence Community (IC), except for instances where deniability is essential.  There is a “Star Chamber” quality to the IC being responsible for identifying terrorist threats, targeting their location and then flying the missions to destroy them that overtime could be corrupting while engendering mistrust that would harm the overall effectiveness of the community.  During the Cold War when the danger of a nuclear ICBM attack was immense and imminent we depended on the IC “warning,” the President “deciding,” and the military “responding” – a model of specific executive power with Congressional oversight.

The recent Mandiant report that China is “eating our cyber lunch” to the point of threatening our national infrastructure, gaining economic advantage against our leading companies, and stealing our most sensitive intellectual property seems to have finally shaken our country into acceptance that we are collectively and individually at considerable “cyber risk.”   This is not news to the cyber digitari or anyone who has read anything by Richard Clarke, but it surfaces an important policy question directly related to the IC running the nation’s counterterrorist drone program: how and where do we want to defend our “cyber sovereignty” understanding that the National Security Agency (NSA) currently possesses our most effective capabilities in this domain?

If it makes sense for CIA to identify and take out dangerous terrorists with remote drone attacks then shouldn’t NSA be launching bots against cyber foreign threats it detects?  I don’t know what the right answer to this question is, but I am not comfortable extending by fiat an analog of our drone approach to counterterrorism to cyber security.  I am, however, confident that I could support any cyber security response policy that has been subjected to national debate so we know the options and risks, involves checks and balances between departments if not branches of the government, and can be easily adjusted or rescinded.  Finally like most Vietnam era intel officers, I have no confidence in “body count” metrics, so neither the number of terrorists killed by drones nor cyber threats thwarted by good guy malware are by themselves going to convince me that we are safer.

That’s what I think; what do you think?