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As the Bush administration debates how to respond to the threat of cyberterrorism — and with Vice President Dick Cheney’s recent remarks that the behavior of Iraq has provided an “imperative for pre-emptive attack” — clarifying the ambiguities of cyberwar has become a top administration priority. The largely invisible network upon which our advanced society is completely dependent — from banking to transportation to power generation to emergency services — relies on computer and telecommunication systems that are lucrative targets for terrorists “casing” the country. While some of these targets are vulnerable to traditional attacks that rely on explosives, a stealthier and potentially more destructive route exists: the Internet. With the July 16 release of a White House report, “National Strategy for Homeland Security,” we should start by clarifying the legal ambiguities surrounding an attack in or through cyberspace, both for our own sake and for that of the international community. Perhaps the first question we need to ask ourselves is: When do such actions rise to the level of a “use of force” under international law permitting a violent response to prevent future attacks? The debate over whether such a question is quantitative (i.e., a certain amount of damage, caused by a bomb or computer code, is the threshold for armed response) or qualitative (i.e., a certain type of damage, such as that caused by tanks across a border, triggers the inherent right of self-defense, but nonmilitary coercion does not) was a conceptual stumbling block for years. Common sense suggested that the quantitative approach was correct (damage is damage, regardless of the means of attack). But the foundational document of international law, the Charter of the United Nations, was built on the qualitative approach. This conflict has been resolved only recently by Michael Schmitt, a leading legal scholar at the George C. Marshall European Center for Security Studies. Known as the Schmitt analysis, his working theory inserts some common sense into the U.N. Charter paradigm, and should be incorporated into our current thinking when responding to, and preparing for, acts of cyberterrorism. Here are the concepts we should keep in mind: � Severity: If people are killed or there is serious property damage, the action is probably military; the less damage, the less likely it is a “use of force.” � Immediacy: When the effects are seen within seconds to minutes — such as when a bomb explodes — the operation is probably military; if the effects take weeks or months to appear, the action is more likely diplomatic or economic. � Directness: As the link between cause and effect attenuates, so does the military nature of the act. � Invasiveness: A violated border is still an indicator of a military operation. � Measurability: If the effect can be quantified immediately — such as a photograph of a “smoking hole” where the target used to be — the operation has a strong military characteristic. � Presumptive Legitimacy: Actions that have not been the sole province of nation-states are less likely to be viewed as military. � Responsibility: If a state takes visible responsibility for any destructive act, it is more likely to be categorized as a traditional military operation. These are the standards by which policy documents, such as “National Strategy,” should judge the actions of our enemies, and the standards by which we should formulate our response to cyberprovocation. Using the Schmitt analysis, government decision-makers, operators, mission planners — and the attorneys who advise them — would have a common and necessary intellectual and practical framework. Arguably, this (or any) standard, government-wide methodology for dealing with the legal peculiarities of cyberoperations is currently absent. It should not be. By highlighting the aspects of cyberoperations that are legally problematic, this approach not only allows legal advisors to correct discrete problems within otherwise lawful (though often opaque) missions but also permits more responsive lawyers to serve better-educated clients. The Schmitt framework also provides Congress and the courts with clearer standards by which to perform their respective oversight roles — and even the press could perform its watchdog function in a more surgical, incisive and comprehensive way. Finally, and perhaps most importantly, the Bush administration should embrace the Schmitt analysis as a means of illustrating the unique aspects of lawful information operations to our enemies and allies alike — all the while maintaining deference for and applying the standards of the United Nations Charter. This is not simply the best approach but the only approach because it demonstrates our understanding of international concerns and our respect for those governments whose opinions of us often are formed after, rather than before, receipt of the facts. Indeed, making apparent America’s commitment to the rule of law and evenhandedness, even in the midst of war, would be the best kind of public relations and practical bite that “National Strategy” could ever hope for: the truth made more visible and a nation made more secure. Thomas Wingfield, author ofThe Law of Information Conflict: National Security Law in Cyberspace, can be reached at [email protected]. Steven Roberts, a terrorism and information-security consultant in Boca Raton, Fla., can be reached at [email protected].

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