Legal Zero-Days

It is well-established that the US Constitution grants the President wide latitude as Commander-in-Chief. National defense and foreign affairs are in the purview Presidential privilege by design. Jon Yoo, (the guy famous for the Torture Memos), wrote a 2003 legal review expressing the limits and opportunities available for judicial review for constraining the President's war-making powers. He wrote, "the courts historically have refused to adjudicate disputes over which branch may initiate military hostilities abroad, a result produced by the Constitution's textual allocation of war powers to the political branches and its structural failure to define a specific process for war-making."

Congress can pull purse-strings to create constraints, and there are audience costs a President must face with the electorate via the press for unpopular actions or plans. The Vietnam war took a hard u-turn when the gruesome images started coming home, and more recently the missions in Iraq and Afghanistan are occasionally discussed as examples of how quickly the Americans fatigue from war. Presidents face constraints imposed from without as well as within. Alliances enable and constrain, treaties constrain, international organizations constrain. A 2016 RAND whitepaper on international legal policy included this handy chart illustrating the "gates" through which decisions to use drones for targeted killing must pass.

Available in RAND report "Clarifying the Rules for Targeted Killing"

The volume of dialogue around the legality of the use of a weapon is interesting. Militaries field new weapons all the time, but only some seem to create significant concern about their use. Nobody seems to be questioning the ethical use of the F-22, or that the law of armed combat needs revision to account for railguns per se. Some new weapons technology seem to create legal "zero-days." A zero-day exploit is valuable because it has a unique kind of stealth. It leverages gaps in the defender's planning or imagination. Autonomous robots, remotely operated UAV, even the first nuclear weapons are sort of black swans of the armaments world. The advantages created by having a zero-day or black swan weapon are so great as to sort of open up new patterns of war that just aren't understood well enough for people to decide on what is fair. The US used UAVs for reconnaissance during Vietnam, but the way they are used today is dramatically different. The low-signature nature of malware and drone strikes are really attractive as tools, not simply because of their physical stealth, but because of their legal stealth.

So guess who's back to tell us all about that problem—John Yoo. John and Jeremy Rabkin have written a new book called Striking Power: How Cyber, Robots, and Space Weapons Change the Rules of War (Encounter Books, 2017). Vince Vitkowsky's review for Lawfare approaches the book's premises critically. I recommend reading the full review to get a sense of their arguments, particularly Rabkin and Yoo's challenge to traditional just war theory, but also see how technical innovation can create legal ambiguities that are attractive to commanders operating in the permanent fog of war.