Tournament: GSU | Round: 1 | Opponent: KCKCC FoJo | Judge: Autry
OCO-1AC

The United States is currently expanding Offensive Cyber Operations—OCO—in ways that threaten Separation of Powers and risk accidental conflicts. Congress needs to step in.

Plan:

The United States Federal Government, specifically Congress, should substantially increase statutory restrictions on the war powers authority of the President of the United States in the area of offensive cyber operations by prohibiting first use of destructive cyber operations on civilian networks.  Funding, enforcement, and intent assured through normal means.

Advantage 1: Accidental Escalation
A. Current offensive cyber doctrine leads to preemptive attacks and arms races
Xu ’13 -- PhD and Associate Research Fellow at the China Institute of International Studies
Xu Longdi, PhD and Associate Research Fellow at the China Institute of International Studies in Beijing, April 10, 2013, “Obama Intensifies Cybersecurity Measures,” China Institute for International Studies, http://www.ciis.org.cn/english/2013-04/10/content_5864549.htm
Intense moves by the U.S. are the newest in its assiduous efforts to strengthen its cyber security and can be explained by several reasons. First of all, in recent years, the number of cyber attacks, including those against the United States, has been increasing, thus alerting the entire world, particularly Americans who maintain that their cyber assets are owned and managed largely by the private sector. This seems to provide an objective ground for the U.S. to take proactive and preemptive measures to enhance and build its cyber security. Second, as a result of its lead in ICT, the United States is more dependent on the Internet than other states, which also means being more vulnerable to cyber attacks. Therefore, the U.S. attempts to use its technological superiority to deter potential cyber attackers by making public its intention of launching preemptive cyber strikes. Of course, this will not necessarily be a deterrent or yield desirable results. On the contrary, it might launch a cyber arms race and exacerbate cybersecurity concerns, which is not conducive to maintaining cyber stability and peace. Third, since its first secret talks on cyber war with Russia in Moscow in 1996, the United States has always been opposed to cyber arms control or signing any international treaty on cyberspace. In recent years, the U.S. has endeavored to intensify its cyber security, not only through further building its cyber capabilities, but also through domestic and international cyber legislation, such as the Cybersecurity Act of 2010 and the International Cybercrime Reporting and Cooperation Act (2010). After the failure of the 2012 U.S. Cybersecurity Act, both Democrats and Republicans have continued their efforts to pass cyber legislation in 2013. Moreover, last September, Harold Hongju Koh, legal adviser to the Department of State, clarified the U.S. position that existing international law is applicable to cyberspace. By way of constructing new rules for cyberspace, including rules for cyber warfare, the U.S. could offer a legal ground for its preemptive cyber strikes against others, thus increasing the legitimacy of its provocative cyber activities. However, it is doubtful whether it could achieve this much-needed legitimacy for preemption.

B. Our use of destructive cyberweapons, like logic bombs and trapdoors, in other nations’ networks significantly increase the risk of an accidental war escalating out of control
Clarke and Knake ’10 – former National Coordinator for Security, Infrastructure Protection, and Counterterrorism and Council on Foreign Relations
Richard Clarke, former National Coordinator for Security, Infrastructure Protection, and Counterterrorism and Robert Knake, international affairs fellow at the Council on Foreign Relations, Cyber War: The Next Threat to National Security and What to do About it, 2010. p. 254-5. (NSB)
Finally, limits on cyber war attacks against civilian infrastructure would probably mean that we and other states would have to cease any activity in which we may be engaged with logic bombs, and perhaps trapdoors, in other nations' civilian infrastructure networks. Lacing infrastructure with trapdoors and logic bombs, although little noticed or discussed by the media and the general population, is dangerously provocative. They are alluring because they offer some of the results of war, but without soldiers or death. But they also signal hostile intent far more than any weapon that stays in a nation's inventory. They could be utilized easily and quickly, without proper authorization, or without a full appreciation for what kind of spiral of escalation they might cause. Although a war might start in cyberspace and be conducted without soldiers or bloodshed, it would be highly unlikely to stay that way for long. By lacing on another's infrastructure networks with cyber weapons, nations have made starting a war far too easy.

C. Skeptics are wrong. Cyber Impacts outweigh other conflict scenarios for 6 reasons (scale, speed, global nature, affects civilians, blurs peace and war, is unpredictable)
Clarke and Knake ’10 – former National Coordinator for Security, Infrastructure Protection, and Counterterrorism and Council on Foreign Relations
Richard Clarke, former National Coordinator for Security, Infrastructure Protection, and Counterterrorism and Robert Knake, international affairs fellow at the Council on Foreign Relations, Cyber War: The Next Threat to National Security and What to do About it, 2010. p. 30-31. (NSB)
Others look at these and other recent incidents and do not see a new kind of warfare. They see in the Israeli attack a new form of airborne electronic jamming, something that has been happening in other ways for almost half a century. The American actions in Iraq appear to these doubters to be marginal and mainly propaganda. In the Russian and North Korean activities the doubters see only harassment and nuisance-value disruption.
Of course, the Syrians, Iraqis, Estonians, Georgians, and South Koreans saw these events as far more than a nuisance. I tend to agree. I have walked through these recent, well-known cyber clashes mainly to demonstrate that nation-state conflict involving cyber attacks has begun. Beyond that incontestable observation, however, there are five "take-aways" from these incidents:
Cyber war is real. What we have seen so far is far from indicative of what can be done. Most of these well-known skirmishes in cyberspace used only primitive cyber weapons•(with the notable exception of the Israeli operation). It is a reasonable guess that the attackers did not want to reveal their more sophisticated capabilities, yet. What the United States and other nations are capable of doing in a cyber war could devastate a modern nation.
Cyber war happens at the speed of light. As the photons of the attack packets stream down fiber-optic cable, the time between the launch of an attack and its effect is barely measurable, thus creating risks for crisis decision makers.
Cyber war is global. In any conflict, cyber attacks rapidly go global, as covertly acquired or hacked computers and servers throughout the world are kicked into service. Many nations are quickly drawn in.
Cyber war skips the battlefield. Systems that people rely upon, from banks to air defense radars, are accessible from cyberspace and can be quickly taken over or knocked out without first defeating a country's traditional defenses.
Cyber war has begun. In anticipation of hostilities, nations are already "preparing the battlefield." They are hacking into each other's networks and infrastructures, laying in trapdoors and logic bombs-now, in peacetime. This ongoing nature of cyber war, the blurring of peace and war, adds a dangerous new dimension of instability.

D. Solvency: Prohibiting the use of OCO on civilian networks improves stability and the benefits outweigh any loss of flexibility
Clarke and Knake ’10 – former National Coordinator for Security, Infrastructure Protection, and Counterterrorism and Council on Foreign Relations
Richard Clarke, former National Coordinator for Security, Infrastructure Protection, and Counterterrorism and Robert Knake, international affairs fellow at the Council on Foreign Relations, Cyber War: The Next Threat to National Security and What to do About it, 2010. p. 244-5. (NSB)
The main reason for a ban on cyber war against civilian infrastructures is to defuse the current (silent but dangerous) situation in which nations are but a few keystrokes away from launching crippling attacks that could quickly escalate into a large-scale cyber war, or even a shooting war. The logic bombs in our electric grid, placed there in all likelihood by the Chinese military, and similar weapons the U.S. may have or may be about to place in other nations' networks, are as destabilizing as if secret agents had strapped explosives to transmission towers, transformers, and generators. The cyber weapons are harder to detect; and, with a few quick keystrokes from the other side of the globe, one disgruntled or rogue cyber warrior might be able to let slip the dogs of war with escalating results, the limits of which we cannot know.
Although we can imagine situations in which the U.S. might wish it had already put logic bombs in some nation's civilian networks, the risks of allowing nations to continue this practice would seem to far outweigh the value of preserving for ourselves that one option to attack. Thus, as part of a ban on attacking civilian infrastructure with cyber weapons, we should probably agree that the prohibition include the penetration of civilian infrastructure networks for the purpose of placing logic bombs, and even the emplacement of trapdoors on networks that control systems such as electric power grids.

E. Unilateral NFU solves
Clarke and Knake ’10 – former National Coordinator for Security, Infrastructure Protection, and Counterterrorism and Council on Foreign Relations
Richard Clarke, former National Coordinator for Security, Infrastructure Protection, and Counterterrorism and Robert Knake, international affairs fellow at the Council on Foreign Relations, Cyber War: The Next Threat to National Security and What to do About it, 2010. p. 240. (NSB)
Saying we won't be the first ones to use cyber weapons may in fact have more than just diplomatic appeal in the international arena. The existence of the pledge. might make it less likely that another nation would initiate cyber weapons use because to do so would violate an international norm that employing cyber weapons crossed a line, is escalatory, and potentially destabilizing. The nation that goes first and violates an agreement has added a degree of international opprobrium to its actions and created in the global community a presumption of misconduct. International support for that nation's underlying position in the conflict might thus be undermined and the potential for international sanctions increased.

F. Solvency: The federal government is currently focused on offense and on military solutions, which undermines civilian and defensive options. Shifting away from an offensive focus improves true cybersecurity.
Schneier ’10 – Leading cybersecurity expert
Bruce Schneier, Chief Security Technology Officer of BT (formerly British telecom), CNN, July 7, 2010. Threat of "Cyberwar" Has Been Hugely Hyped, http://www.cnn.com/2010/OPINION/07/07/schneier.cyberwar.hyped/
We surely need to improve our cybersecurity. But words have meaning, and metaphors matter. There's a power struggle going on for control of our nation's cybersecurity strategy, and the NSA and DoD are winning. If we frame the debate in terms of war, if we accept the military's expansive cyberspace definition of "war," we feed our fears.
We reinforce the notion that we're helpless -- what person or organization can defend itself in a war? -- and others need to protect us. We invite the military to take over security, and to ignore the limits on power that often get jettisoned during wartime.
If, on the other hand, we use the more measured language of cybercrime, we change the debate. Crime fighting requires both resolve and resources, but it's done within the context of normal life. We willingly give our police extraordinary powers of investigation and arrest, but we temper these powers with a judicial system and legal protections for citizens.
We need to be prepared for war, and a Cyber Command is just as vital as an Army or a Strategic Air Command. And because kid hackers and cyber-warriors use the same tactics, the defenses we build against crime and espionage will also protect us from more concerted attacks. But we're not fighting a cyberwar now, and the risks of a cyberwar are no greater than the risks of a ground invasion.

Advantage 2: Separation of Powers

A. Current legislation doesn’t cover OCO, giving the President war powers outside Congressional reach
Lorber ’13 – JD and PhD Candidate
Eric Lorber, J.D. Candidate, University of Pennsylvania Law School, Ph.D Candidate, Duke University Department of Political Science. Executive Warmaking Authority and Offensive Cyber Operations: Can Existing Legislation Successfully Constrain Presidential Power?, Journal of Constitutional Law, January, 2013. (Lexis) (NSB)
The resulting picture is one of increased presidential flexibility; the War Powers Resolution and the Intelligence Authorization Act - while arguably ineffective in many circumstances - provide increased congressional oversight of presidential war-making actions such as troop deployments and covert actions. Yet these statutes do not cover offensive cyber operations, giving the President an increasingly powerful foreign policy tool outside congressional reach.

B. OCO allows the President to essentially circumvent Congressional authority, undermining Separation of Powers in the war powers area
Lorber ’13 – JD and PhD Candidate
Eric Lorber, J.D. Candidate, University of Pennsylvania Law School, Ph.D Candidate, Duke University Department of Political Science. Executive Warmaking Authority and Offensive Cyber Operations: Can Existing Legislation Successfully Constrain Presidential Power?, Journal of Constitutional Law, January, 2013. (Lexis) (NSB)
Second, the possible employment of these tools adds yet another wrinkle to the battle between the executive and legislative branches over war-making authority.  In particular, if neither the War Powers Resolution nor the Intelligence Authorization Act governs OCOs, the executive may be allowed to employ U.S. military power in a manner largely unchecked by congressional authority.  As a result, the employment of these tools implicates - and perhaps problematically shifts - the balance between the executive's commander-in-chief power and Congress's war-making authority. 

C. Each threat to Separation of Powers should be weighed as the equivalent to increased risk of nuclear war
Redish and Cisar ’91 – Prof of Law and Law Clerk to United States Court of Appeals
Martin Redish, Professor of Law and Public Policy, Northwestern University and Elizabeth Cisar, J.D., Northwestern, Law Clerk to United States Court of Appeals, : "If Angels Were To Govern": The Need For Pragmatic Formalism In Separation Of Powers Theory, Duke Law Journal December, 1991. 41 Duke L.J. 449, p473-474 (NSB)
To underscore the point, one need imagine only a limited modification of the actual scenario surrounding the recent Persian Gulf War. In actuality, the war was an extremely popular endeavor, thought by many to be a politically and morally justified exercise.  But imagine a situation in which a President, concerned about his failure to resolve significant social and economic problems at home, has callously decided to engage the nation in war, simply to defer public attention from his domestic failures. To be sure, the President was presumably elected by a majority of the electorate, and may have to stand for reelection in the future.  However, at this particular point in time, but for the system established by separation of powers, his authority as Commander in Chief to engage the nation in war would be effectively dictatorial. Because the Constitution reserves to the arguably even more representative and accountable Congress the authority to declare war, the Constitution has attempted to prevent such misuses of power by the executive. It remains unproven whether any governmental structure other than one based on a system of separation of powers could avoid such harmful results.
In summary, no defender of separation of powers can prove with certitude that, but for the existence of separation of powers, tyranny would be the inevitable outcome. But the question is whether we wish to take that risk, given the obvious severity of the harm that might result. Given both the relatively limited cost imposed by use of separation of powers and the great severity of the harm sought to be avoided, one should not demand a great showing of the likelihood that the feared harm would result. For just as in the case of the threat of nuclear war, no one wants to be forced into the position of saying, "I told you so."

D. Even diluting Separation of Powers risks undermining Democracy
Redish and Cisar ’91 – Prof of Law and Law Clerk to United States Court of Appeals
Martin Redish, Professor of Law and Public Policy, Northwestern University and Elizabeth Cisar, J.D., Northwestern, Law Clerk to United States Court of Appeals, : "If Angels Were To Govern": The Need For Pragmatic Formalism In Separation Of Powers Theory, Duke Law Journal December, 1991. 41 Duke L.J. 449, p 453 (NSB)
However, we believe that the separation of powers provisions of the Constitution are tremendously important, not merely because the Framers imposed them, but because the fears of creeping tyranny that underlie them are at least as justified today as they were at the time the Framers established them. For as the old adage goes, "even paranoids have enemies." It should not be debatable that, throughout history, the concept of representative and accountable government has existed in a constant state of vulnerability. This has been almost as true in the years since the Constitution's ratification as it had been prior to that time.  Abandonment or dilution of separation of powers as one of the key methods of reducing the likelihood of undue concentration of political power will dramatically increase that vulnerability

E. Maintaining democracy is critical to prevent extinction – it prevents war, terrorism, and environmental destruction
Diamond 95 – Senior Fellow the Hoover Institution
Larry Diamond, a senior research fellow at the Hoover Institution, Stanford University, Promoting Democracy in the 1990s: Actors and Instruments, Issues and Imperatives, A Report to the Carnegie Commission on Preventing Deadly Conflict, December 1995, http://carnegie.org/fileadmin/Media/Publications/PDF/Promoting20Democracy20in20the201990s20Actors20and20Instruments,20Issues20and20Imperatives.pdf (NSB)
This hardly exhausts the lists of threats to our security and well-being in the coming years and decades. In the former Yugoslavia nationalist aggression tears at the stability of Europe and could easily spread. The flow of illegal drugs intensifies through increasingly powerful international crime syndicates that have made common cause with authoritarian regimes and have utterly corrupted the institutions of tenuous, democratic ones. Nuclear, chemical, and biological weapons continue to proliferate. The very source of life on Earth, the global ecosystem, appears increasingly endangered. Most of these new and unconventional threats to security are associated with or aggravated by the weakness or absence of democracy, with its provisions for legality, accountability, popular sovereignty, and openness.
The experience of this century offers important lessons. Countries that govern themselves in a truly democratic fashion do not go to war with one another. They do not aggress against their neighbors to aggrandize themselves or glorify their leaders. Democratic governments do not ethnically "cleanse" their own populations, and they are much less likely to face ethnic insurgency. Democracies do not sponsor terrorism against one another. They do not build weapons of mass destruction to use on or to threaten one another. Democratic countries form more reliable, open, and enduring trading partnerships. In the long run they offer better and more stable climates for investment. They are more environmentally responsible because they must answer to their own citizens, who organize to protest the destruction of their environments. They are better bets to honor international treaties since they value legal obligations and because their openness makes it much more difficult to breach agreements in secret. Precisely because, within their own borders, they respect competition, civil liberties, property rights, and the rule of law, democracies are the only reliable foundation on which a new world order of international security and prosperity can be built.

F. Congressional action now is critical to maintain the balance in this area
Dycus ’10 – Prof of Law
Stephen Dycus, Professor, Vermont Law School, Congress’s Role in Cyber Warfare, Journal of National Security Law andPolicy, Vol 4.155. p. 158. http://jnslp.com/wp-content/uploads/2010/08/11_Dycus.pdf (NSB)
If Congress now fails to enact guidelines for cyber warfare, it might be perceived as inviting “measures on independent presidential responsibility.” Chief Justice Marshall suggested in Little v. Barreme that if Congress had remained silent, the President might have been free to conduct the Quasi-War with France as he saw fit. But the national interest in electronic warfare, just as in that early maritime conflict, is so great that the planning and conduct of such a war should not be left entirely to the Executive. And because a cyber war might be fought under circumstances that make it impossible for Congress to play a meaningful contemporaneous role, Congress ought to get out in front of events now in order to be able to participate in the formulation of national policy.

Advantage 3: Cybersecurity
A. Current focus on offensive operations has undermined our cyber-defenses
Clarke and Knake ’10 – former National Coordinator for Security, Infrastructure Protection, and Counterterrorism and Council on Foreign Relations
Richard Clarke, former National Coordinator for Security, Infrastructure Protection, and Counterterrorism and Robert Knake, international affairs fellow at the Council on Foreign Relations, Cyber War: The Next Threat to National Security and What to do About it, 2010. p. x-xi. (NSB)
The force that prevented nuclear war, deterrence, does not work well in cyber war. The entire phenomenon of cyber war is shrouded in such government secrecy that it makes the Cold War look like a time of openness and transparency. The biggest secret in the world about cyber war may be that at the very same time the U.S. prepares for offensive cyber war, it is continuing policies that make it impossible to defend the nation effectively from cyber attack.

B. The US is currently almost defenseless in the area of cybersecurity.
Rosenthal 12- Editor in chief of the New York Times.
Andrew Rosenthal, Editor in chief of the New York Times, July 31, 2012, http://www.nytimes.com/2012/08/01/opinion/cybersecurity-at-risk.html?_r=0
Officials and experts have warned about cybersecurity dangers for years; now the alarms are more insistent. On Thursday, Gen. Keith Alexander, the chief of the United States Cyber Command and the director of the National Security Agency, said intrusions against computers that run essential infrastructure increased 17-fold from 2009-11 and that it’s only a matter of time before an attack causes physical damage. He has also called the loss of industrial information and intellectual property through cyberespionage “the greatest transfer of wealth in history.” American officials say businesses already lose billions of dollars annually. Hundreds of major companies, defense contractors and government agencies have been affected. Attacks on power plants, electric grids, refineries, transportation networks and water treatment systems present an even greater threat. Last year, there were at least 200 attempted or successful cyberattacks on those facilities. Yet defenses are dangerously thin. On a scale of 1 to 10, General Alexander rated preparedness for a large-scale cyberattack — shutting down the stock exchange, for instance — as “around a 3.”

C. Cybercrime is the most serious threat we currently face. It already does tremendous economic damage—more than all the illegal drugs in the world combined
Senate Select Committee on Homeland Security 12
2/14/12, http://www.hsgac.senate.gov/media/majority-media/lieberman-collins-rockefeller-feinstein_offer-bipartisan-comprehensive-bill-to-secure-fed-and-critical-private-sector-cyber-systems
Collins said: “Our nation’s vulnerability has already been demonstrated by the daily attempts by nation-states, cyber criminals, and hackers to penetrate our systems. The threat is not just to our national security, but also to our economic well-being. A Norton study last year calculated the cost of global cybercrime at $114 billion annually. When combined with the value of time victims lost due to cybercrime, this figure grows to $388 billion globally, which Norton described as ‘significantly more’ than the global black market in marijuana, cocaine and heroin combined. Our bill is needed to achieve the goal of improving the security of critical cyber systems and protecting our national and economic security" Feinstein said: “Alongside terrorism, cybersecurity is perhaps the number one threat facing our nation today, but many obstacles exist that prevent the cooperation and coordination needed to deter this growing threat. It’s past time that the government and the private sector join together to address the widespread and devastating effects that cyber intrusions are having on our country."

D. Solvency: The federal government is currently focused on offense and on military solutions, which undermines civilian and defensive options. Shifting away from an offensive focus improves true cybersecurity.
Schneier ’10 – Leading cybersecurity expert
Bruce Schneier, Chief Security Technology Officer of BT (formerly British telecom), CNN, July 7, 2010. Threat of "Cyberwar" Has Been Hugely Hyped, http://www.cnn.com/2010/OPINION/07/07/schneier.cyberwar.hyped/
We surely need to improve our cybersecurity. But words have meaning, and metaphors matter. There's a power struggle going on for control of our nation's cybersecurity strategy, and the NSA and DoD are winning. If we frame the debate in terms of war, if we accept the military's expansive cyberspace definition of "war," we feed our fears.
We reinforce the notion that we're helpless -- what person or organization can defend itself in a war? -- and others need to protect us. We invite the military to take over security, and to ignore the limits on power that often get jettisoned during wartime.
If, on the other hand, we use the more measured language of cybercrime, we change the debate. Crime fighting requires both resolve and resources, but it's done within the context of normal life. We willingly give our police extraordinary powers of investigation and arrest, but we temper these powers with a judicial system and legal protections for citizens.
We need to be prepared for war, and a Cyber Command is just as vital as an Army or a Strategic Air Command. And because kid hackers and cyber-warriors use the same tactics, the defenses we build against crime and espionage will also protect us from more concerted attacks. But we're not fighting a cyberwar now, and the risks of a cyberwar are no greater than the risks of a ground invasion. We need peacetime cyber-security, administered within the myriad structure of public and private security institutions we already have.