Cyber 'Hostilities' and the War Powers Resolution

The U.S. military appears to be advancing toward a more offensive strategy in cyberspace. The Pentagon is expanding offensive cyber teams and the Air Force recently classified six of its cyber capabilities as "weapons." As the stage is being set for an increase in offensive military activities in cyberspace, this article addresses congressional efforts to improve the governance of those cyber operations. Congress addressed "Military Activities in Cyberspace" in the National Defense Authorization Act for Fiscal Year 2012 and suggested a connection to the War Powers Resolution. This article proffers an in-depth analysis of the interaction between offensive military cyber operations and the "hostilities" triggering language of the War Powers Resolution. A cyber "hostilities" analysis is then applied to the first computer software threat that was used as a cyber-weapon, the Stuxnet computer virus attack in Iran. This application illustrates the gap that exists between the War Powers Resolution and cyber warfare. This article argues that under current practice, the Executive is unlikely to deem stand-alone offensive military activities in cyberspace as "hostilities" which trigger the statute