Today, I start with a simple, easily answered question followed by another inquiry that at this moment appears to be of infinite complexity.
Q1: Does the word “cyber” appear in the black letter text of the US Constitution? The answer is an easily ascertainable and definite “no.” The closest early American touchpoint we have is Ben Franklin’s kite/key trying to catch lightning in a bottle lucky he didn’t electrocute himself experiment into the working of electricity.
Q2: Should Congress begin legislating for the cyber realities of tomorrow that I would argue are already here today? My answer would be not only “yes,” but I would emphatically add as soon as possible, and in no instance later than the beginning of the 2020 Presidential election. Our very lives and future as a planet may depend upon it.
So, where do we start? I would start with the redefinition of a word that does appear in the Constitution. War, as in Congress’ power to declare.
Congress has not officially declared war since June 5, 1942 when, by joint resolution, both houses of Congress declared war on Bulgaria, Hungary and Romania.
Since that time, Presidents from Truman to Kennedy to Bush have referred to their lack of actual Congressional approval to assume the role of acting commander in chief has been “politely” sidestepped by using a series of euphemisms for War. Truman called the Korean War a “police action” sanctioned under the auspices of the United Nations.
In 1964 Congress passed the “Gulf of Tonkin Resolution” that authorized the president to take all necessary measures, including “the use of armed force” in the fight against the perceived threat of Communist domination in South East Asia.
In 2002, Congress passed the “Iraq Resolution” as an “Authorization for Use of Military Force” and away went George “I’m a war president” Bush No. II.
Not an actual Congressional Declaration of War in sight.
Regardless of what they may call it, it is essential Congress assert its power to include declarations of war with computer programs, viruses, hackers, and bots taking the place of soldiers battling on the field of cyberspace. The sooner the better. It is cyber suicide not to.
Everything is computerized including many of the classic attack targets of all-out war. More importantly, we are vulnerable. What would happen if the following, all online and subject to cyber-attack were disrupted or taken “off-line”? It could happen.
· Economic/Online Retailers (aka life without Amazon)
Why I dare say we’d be reduced to reading the LA Free Press by candlelight (the “paper” edition, that is!). In-light-of the likelihood of a severe cyber interruption with our basic functions of life, I would posit all the fuss concerning hacking into social media sites, Facebook is, if not misplaced, a bit over the wrought top. But interference with our elections? That is a different matter entirely. How can we ensure the basic accuracy, reliability and integrity of our elections? Let me ask you another question, this time a not so simple one.
What is more troubling, the FACT that Russian interfered in our 2016 Presidential election, or that the benefitted candidate has every intention of “aiding and abetting” a foreign nation (Russia) to do it again in 2020?
I would opt for the latter. In an effort to stop what we know is going to happen, may I suggest the Constitutional remedy most readily available? Treason. Treason is the only criminal felony defined in the Constitution. All we need to employ it against Trump and his merry band of traitors when they are “aiding the enemy” is a declaration of war.
Constitutional treason by aiding the enemy is judicially interpreted as only possible during a time of declared war. In short, meaning you need an identified, declared enemy to aid or abet. So, before the next election cycle, why not declare cyber war against Russia? Before all the fun and games and well, treason begins. We have already seen and felt the effects of Cyber War. It is a real and serious threat to our democracy. Isn’t it time we began to take it seriously? Before it’s too late, again?
Did you get your Phil?
[Ed.’s Note: Today is the day that Professor Philip Drucker graduated from being a Guest Columnist on ‘Today’s Rant’ to ranting on his own at ‘Phil Drucker’s Rant’. Not only is his quick rise as a thinker of note notable, but he is now among the past notable Columnists of the LA Free Press.
To wit (as some legal scholars might say), here are some of them: Charles Bukowski, Earl Ofari Hutchinson, Gene Youngblood, Harlan Ellison, Lawrence Lipton, Liza Williams, and Paul Schrader.]