The Attack of the Lawyers

And Caesar’s spirit, raging for revenge,
With Ate by his side come hot from hell,
Shall in these confines with a monarch’s voice
Cry “Havoc!” and let slip the lawyers of war


Ok, that’s not exactly what Shakespeare said in Act 3 of Julius Caesar, but that’s what Obama said to Holder. The president has unleashed the Justice Department on Beijing’s cyber-attackers.

Barely a month after the two countries agreed to work together on cybersecurity, China suspended cooperation with the U.S. on Monday after the Justice Department charged five Chinese military hackers with cyberespionage.

The “deliberately fabricated” charges put U.S.-Chinese relations in jeopardy, the Foreign Ministry said in a blisteringly worded statement that accuses the U.S. of its own “large-scale and organized cyber theft” in violation of international law.

In retaliation, it said, “China has decided to suspend activities of the China-US Cyber Working Group” — the high-level diplomatic initiative both countries agreed to in April to stop their war of words over allegations of government-sponsored hacking.

But even as both countries agreed to stop the public acrimony, the Justice Department was actually putting the finishing touches on “a multi-year investigation that began in Pennsylvania and reached all the way to Datong Road in Shanghai”. The accusations allege China stole “emails, technical documents and financial spreadsheets, Justice Department officials say. The alleged corporate victims include some straight from the U.S. heartland, several of them blue chip symbols of American industry, such as Alcoa, U.S. Steel and Westinghouse Electric.”

More pointedly, though, the indictments exposed the tip of what many U.S. officials consider to be the cyber-war iceberg. The Republican and Democratic leaders of the House Intelligence Committee charged Monday that “thousands of People’s Liberation Army (are) hackers working every day, at the behest of the Chinese government, to steal American trade secrets.”


The Chinese threat to counter-expose US efforts may involve Edward Snowden, whose last post was in Hong Kong. It is conjectured Snowden’s target, or at least the unit he worked with, was China. Now that Snowden is on the other side, he may have a tale or two to tell.  Moreover, the Daily Caller notes that Obama gratuitously took credit for deploying the Stuxnet worm when he wanted to appear gung-ho against Iran, itself a confession of offensive cyber-operations.

As many writers and politicians, Republican and Democrat, have noted, the Obama administration’s decision to take credit for Stuxnet will have serious and long-lasting effects on our national security. By publicly acknowledging the use of this program, the U.S. has given ammunition to adversaries who wish to use this technology against us. We’ve also let the enemy know what to expect and what we’re capable of. The moral high ground and plausible deniability are not petty things. Now that we’ve admitted to using a cyber weapon against Iran, what will we say to China or Russia when they use one against us? The line in the sand on government cyber warfare has been crossed, and there is no turning back.

For those who don’t find my argument convincing, I pose a simple question: What possible advantage was there to releasing this information? If, as the Obama administration claims, this information was already public knowledge, what did we gain by publicly confirming it?

What did he gain? Obama gained was polling points;  a bump in the news cycle.  China is more formidable than Iran, however and it may escalate  lawfare into cyberwarfare an area of struggle where the Pentagon’s legacy infrastructure and systems may prove vulnerable. Breaking Defense’s Colin Clark describes what is known about American weaknesses:


“We are certainly behind right now. We are chasing our adversary, for sure,” one of the Air Force’s top cyber warriors, Col. Dean Hullings, told an audience of about 350 here at the National Space Symposium‘s one-day cyber event.

Hullings, chief of Air Force Space Command’s cyber superiority division, said the US is behind countries he declined to name when I asked him later (OK, we all know it’s China and Russia and Israel and…) both in defense and in offense. This may be part of the reason recently retired Gen. Keith Alexander, former head of the National Security Agency and Cyber Command, poured so much money and passion into offensive cyber capabilities.

American institutions with their huge inventory of legacy systems may not be able to play the defensive game very well with their creaky architecture and politicized contracts. Think How do you defend that?

So military planners have opted to go on the offense. Tom Gjelten at the World Affairs Board has been tracking the offensive cyber-warfare trend. “Much of the cyber talk around the Pentagon these days is about offensive operations.”  The idea is US defense circles is that defense is a losing game. Only having superior attack capabilities can the US marshal its strengths.

The US Air Force was also signaling its readiness to go into cyber attack mode, announcing in August that it was looking for ideas on how “to destroy, deny, degrade, disrupt, deceive, corrupt, or usurp the adversaries [sic] ability to use the cyberspace domain for his advantage.”…

The growing interest in offensive operations is bringing changes in the cybersecurity industry. Expertise in patching security flaws in one’s own computer network is out; expertise in finding those flaws in the other guy’s network is in. Among the “hot jobs” listed on the career page at the National Security Agency are openings for computer scientists who specialize in “vulnerability discovery.” Demand is growing in both government and industry circles for technologists with the skills to develop ever more sophisticated cyber tools, including malicious software—malware—with such destructive potential as to qualify as cyberweapons when implanted in an enemy’s network. “Offense is the biggest growth sector in the cyber industry right now,” says Jeffrey Carr, a cybersecurity analyst and author of Inside Cyber Warfare.


But offense in principle bothers the left, who say America should concentrate on cyber-protection instead of preparing for an informational “first strike”.  The NSA comes in for the worst denunciation.

Not surprisingly, the National Security Agency—buying through defense contractors—may well be the biggest customer in the vulnerability market, largely because it pays handsomely. The US military’s dominant presence in the market means that other possible purchasers cannot match the military’s price. “Instead of telling Google or Mozilla about a flaw and getting a bounty for two thousand dollars, researchers will sell it to a defense contractor like Raytheon or SAIC and get a hundred thousand for it,” says Soghoian, now the principal technologist in the Speech, Privacy and Technology Project at the American Civil Liberties Union and a prominent critic of the zero-day market. “Those companies will then turn around and sell the vulnerability upstream to the NSA or another defense agency. They will outbid Google every time.”

The ACLU has accused the NSA of preparing for offensive cyber-war and creating a “national security state”, singling out Keith Alexander for particular opprobrium:

Americans tend to gravitate toward personal explanations. James Bamford, the author of several important books and articles on the NSA, recently published a piece in Wired focusing on General Keith Alexander and the growth of a US capacity for offensive cyberwar. Of Alexander Bamford writes,

Never before has anyone in America’s intelligence sphere come close to his degree of power, the number of people under his command, the expanse of his rule, the length of his reign, or the depth of his secrecy. A four-star Army general, his authority extends across three domains: He is director of the world’s largest intelligence service, the National Security Agency; chief of the Central Security Service; and commander of the US Cyber Command. As such, he has his own secret military, presiding over the Navy’s 10th Fleet, the 24th Air Force, and the Second Army.


Rebounding off the NSA scandal, Podesta and Sunstein are at the tip of a burgeoning movement to regulate data security. The EU with its divisions of intellectuals and lawyers also want to put the crimp on “our bad guys”. Podesta in particular is seeking sweeping new powers to regulate data and data access. In his White House blog Podesta describes his plans:

In January, President Obama asked me to lead a wide-ranging review of “big data” and privacy—to explore how these technologies are changing our economy, our government, and our society, and to consider their implications for our personal privacy. Together with Secretary of Commerce Penny Pritzker, Secretary of Energy Ernest Moniz, the President’s Science Advisor John Holdren, the President’s Economic Advisor Jeff Zients, and other senior officials, our review sought to understand what is genuinely new and different about big data and to consider how best to encourage the potential of these technologies while minimizing risks to privacy and core American values. …

One significant finding of our review was the potential for big data analytics to lead to discriminatory outcomes and to circumvent longstanding civil rights protections in housing, employment, credit, and the consumer marketplace. … To that end, we make six actionable policy recommendations in our report to the President … Pass National Data Breach Legislation … Expand Technical Expertise to Stop Discrimination … We also identify several broader areas ripe for further study, debate, and public engagement that, collectively, we hope will spark a national conversation about how to harness big data for the public good.

Quite a cast of characters, that review team. And they’ve come up a framework with built in masks to stop inconvenient data from emerging.  It’s a blueprint for a permanent Democratic majority. No one who reads Podesta’s blog can avoid thinking that while Holder may be charging the Chinese, it is only as preparation for charging Americans.


However Beijing is unlikely to be intimidated by Holder’s lawyers and is likely to answer with increased cyberwar. America must at this juncture think clearly about the cyber-security issue. It must grapple with hard issues because the public is clearly in a squeeze play. On the one hand it is important to protect America against foreign cyber-attack. But on the other hand, every little bit of power that is given to the watchdogs creates another kind of danger.

To what extent will lawfare make everyone safer? To what degree will it hold back the Russians, who seemed to care not a whit for laws in Ukraine? Now that Obama has fired his legal broadsie at Beijing,  we can only await their response.  That response is unlikely to come in the registered mail.

No plan survives contact with the foe. Surely it is fair to ask Obama: if you’re fighting China, what’s the plan? And more important, who’s the enemy?

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