26 April 2016

Research Papers, Spring 2016

In 2015, the United States took three significant steps to developing a cyber deterrence policy. In April, the Department of Defense released the DoD Cyber Strategy. At the same time, President Obama issued an Executive Order authorizing sanctions against cyber actors. And in December, the White House released its long-anticipated cyber deterrence policy. Specifically, the White House policy is built on a two-element strategy of deterrence by denial; and deterrence through cost imposition. Unfortunately, the White House policy does little to address or answer the thorny questions raised by the reality of today's cybersecurity environment. First, the policy relies on traditional notions of deterrence that may have been effective in prior nuclear and non-nuclear contexts, but it ill-suited to cybersecurity. Second, the policy focuses primarily on defensive strategies and does not confront the reality and likelihood of offensive counter-operations. Third, insomuch as deterrence is a public relations communications strategy and psychological game backed by capability and credibility, the United States has a poor track record of deterring cyber-attacks.

To understand this problem, my research begins with a brief historical review of the development of deterrence theory, in particular as it relates to conventional war and the Cold War. Next, I turn to the development of cyber deterrence as a strategy of the American government, and in particular, recent efforts by the United States to define a cyber deterrence policy. In that light, I examine the White House cyber deterrence policy from a historical and critical perspective, and especially given the distinct characteristics that distinguish cyber deterrence from traditional deterrence. Finally, this paper will discuss whether deterrence is even a reasonable strategy in the cyber environment.

Ultimately, this paper concludes that the current synthesis of cyber deterrence is unworkable and ought to be scrapped. As a result, cyber deterrence as an overall public relations strategy should be de-emphasized as part of an aggressive cyberspace strategy that acknowledges both defensive and offensive capabilities. To be sure, sub-components of the current policy, like strengthening networks to reducing the incentive to conduct cyber-attacks, are laudable goals that the United States should continue to pursue. However, relying on deterrence by denial as a publicly communicated strategy to discourage attacks has failed, and continues to fail with each new attack. Instead, American efforts should focus on improving attribution, not as a deterrent measure, but to allow policy makers the ability to respond to attacks with offensive cyber capabilities.

Former Chief Justice William Rehnquist’s book "All the Laws But One" is an account of the history of civil liberties during times of war and examines cases where presidents have suspended the law in the name of national security. Since the Constitution’s Suspension Clause only applies “when in cases of rebellion or invasion,” Rehnquist’s work discusses wartime powers, focusing on cases involving the Civil War, World War I, and World War II. On the other hand, events of the last century, including threats of severe economic collapse, natural disasters such as earthquakes, destructive hurricanes, and tsunamis, outbreaks of infectious diseases or other public health emergencies, suggest that governments may need to exert wartime-style powers to manage these potential disasters. Thus, state and federal governments may be confronted with the need to curtail civil liberties through confiscation of property, arbitrary detentions, mandatory evacuations, mandatory vaccinations, or other forced measures. This paper seeks to examine the constitutionality of such measures in the absence of direct rebellion or invasion. Through a review of relevant history, including Supreme Court and other judicial opinions, executive actions, and policy decisions, this paper ultimately concludes that weighty precedents already exist for abuse of civil liberties outside of wartime. Furthermore, the state and federal governments would not likely hesitate to use—and abuse—these precedents in an attempt to exert control in the midst of such emergency situations. Ultimately, these abuses have made a mockery of the rule of law. We should not be surprised when it happens again.

The constitutional basis for federal land ownership has not been seriously questioned in modern times. As early as 1840, the Supreme Court declared that Congress’ constitutional power over public lands was without limitation. The Court affirmed the federal government’s police power over public lands repeatedly, and as recently as 1976.

This paper does not dispute that classic property clause doctrine is at odds with the contemporary jurisprudence regarding federal land ownership and management as adjudicated by the courts. Rather, this research focuses on exploring the original understanding of federal land ownership as seen through three parallel tracks: first, political doctrines, including dual federalism, compact theory, and nullification; second, federal land principles and policies, including acquisition and disposition; and third, early Supreme Court decisions. Moreover, this paper seeks to examine whether classic property clause doctrine and other constitutional origins of power regarding federal lands were consistent with historical events and developments that occurred along these tracks from the founding through the Civil War. 

This paper concludes that political doctrines that supported the classic property doctrine were live at least until the early 20th century. These doctrines were seriously undermined by the Civil War, Reconstruction amendments, and finally by the New Deal. While federalism saw a minor revival in the 1990s by the Supreme Court, these political doctrines are now largely regarded as antebellum relics. Furthermore, federal land acquisition and disposition policies generally supported the classic property theory, at least until Withdrawal and Reservation at the beginning of the 20th century. Finally, Supreme Court decisions provided support for both the classic and police power theories. However, the full-fledged police power theory embraced in Kleppe was not fully articulated until the 20th century.
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