Joint Targeting in Cyberspace

Article excerpt

America relies on our digital infrastructure daily, and protecting this strategic asset is a national security priority.

- President Barack Obama, 2010

Security in Cyberspace is a clear national priority, but the role of the US military in this new domain is not so clear. With the activation of US Cyber Command in 2010, debate concerning the militarization of Cyberspace and the conduct of cyber "warfare" has taken center stage among US government policy makers.1 Complicating matters is the uncertain practice of governing behavior in Cyberspace by applying domestic leeal and policy euidelines as well as international treaties based on kinetic warfare.2 Despite this uncertainty, Department of Defense (DOD) policy requires that DOD components "comply with the law of war during all armed conflicts, however such conflicts are characterized, and in all other military operations."3 Although it remains to be seen what roles and responsibilities policy makers in Washington, DC, will carve out for the military, the DOD should prepare to conduct military operations in the cyber domain. Tb do so effectively, the department should apply, with slieht modification, time-tested ioint tarneting principles to military operations in Cyberspace.4 This article explores the efficacy of Joint Publication (JP) 3-60, Joint Targeting, as applied to military operations in Cyberspace and proposes recommendations for joint targeting doctrine for Cyberspace.5

Foundational Principles of Joint Targeting

Before we can address the adequacy of applying JP 3-60 to cyber targeting, we must understand the foundations of its principles, the reason for its application, and the relationship between doctrine and law. "Joint doctrine presents fundamental principles that guide the employment of US military forces," and "[commanders] at all levels [must] ensure their forces operate in accordance with the 'law of war/ " which is "binding on the United States."6 Joint doctrine incorporates what the United States has agreed to follow in international law as well as operational best practices. The "law of war" consists of conventional international law (treaties and agreements between nation-states) and customary international law (based on state practice).7 The latter develops from state practicenamely, official governmental conduct reflected in a variety of acts, including published doctrine. Thus, joint doctrine not only reinforces bindine leeal obligations but also advances the development of customary international law.

For simplicity, the primary canons that set the foundation for the modern law of war are divided between rules for the conduct of war and the treatment of parties to the conflict and its by Standers: the Hague and the Geneva conventions, respectively.8 Additionally, the Charter of the United Nations outlines obligations of the organization's member states with regard to the "use of force" against other states.9 Domestic law (federal statutes and judicial decisions), US government policy, joint and service doctrine, as well as rules of engagement (ROE) specify how US military forces will comply with these international obligations. We must understand that neither military doctrine nor ROEs, whether standing or mission specific, replace or supersede the laws of war. Rather, they represent US implementation of agreed-upon international principles to a specific situation.

We can distili this vast body of rules, regulations, and doctrine to five simple principles that apply to any specific operation. First, the use of force presupposes the existence of military necessity (a valid military reason to use force necessary to carry out the mission).10 Second, the proposed employment of force must not cause the civilian population or the targeted enemy force unnecessary suffering.11 Commanders must apply this principle- the basis for later conventions that outlaw certain types of weapons and munitions (e.g., chemical weapons)not only to potential "collateral damage" (incidental loss of civilian life or damage to civilian property) but also to the intended object of attack. …