I. INTRODUCTION.....................................................................1

II. BACKGROUND ......................................................................6

A.  The National Security Strategy..........................................6

B. The National Strategy to Secure Cyberspace..............................8

A. Doctrine of Anticipatory Self-Defense: The Caroline case..........................................................10

B. Conflict Management Under the U.N. Charter.............................12

C.  Should States Consider a Cyberattack an "Armed Attack"?...............................................................17

D.  International Court of Justice Treatment...............................20

 1.  The Corfu Channel Case..........................................20

2.  The Nicaragua Case..............................................23

3. The Gabcikovo-Nagymaros Project Case............................24

E.  Anticipatory Self-Defense and the Potential for Abuse..............................................................25

1. Has the United States Impermissibly Expanded the Doctrine of Anticipatory Self-Defense?............25

a.  Military Actions Under Previous Administrations..........................................26

b.  Military Actions Under the Bush Administration...........................................28

1. Afghanistan, 2001..................................28

2.  Iraq, 2003.........................................30

2.  What is the Potential for Abuse of the Doctrine of Anticipatory Self-Defense in Cyberspace?..........34

3. Should the United States Utilize Cyberwarfare in Anticipatory Self-Defense?......................36

The debate surrounding offensive actions and defensive responses involving cyberwarfare begins with the most basic and long-standing strategic military dilemma: "Deny, deceive, destroy, or exploit?"1 To what extent can this dilemma embrace the complexities of cyberwar?

Should and can states cut off internet access to potential enemies? Should and can states attempt to manipulate information over the net to confuse possible adversaries? Should and can states find a cyberattacker at the source and kill the individual? Should and can states track a potential cyberthreat (whether an individual or a state) and kill the individual or stage a pre-emptive attack against the state?

According to CIA director, George Tenet, the world faces "a growing cyberthreat. . .from so-called weapons of mass disruption."2 Tenet notes that there is an extraordinary threat of "intrusion, tampering, and delivery of malicious code," and further states that "[w]e know with specificity of several nations that are working on developing an information warfare capability.3

Modern warfare's most vital concerns include the emergence of asymmetric threats,4 current and past changes in modern warfare from information technology,5 the importance of beating the opponent's decision cycle,6 and changes in military organization due to "interconnected, digital communications."7 The prospect of cyberwarfare incorporates all of these concerns as countries consider adding cyberattacks to their military strategies.8

In his preface to the National Strategy to Secure Cyberspace [National Cyberspace Strategy], President Bush asserts that "[w]e must act to reduce our vulnerabilities to these threats before they can be exploited to damage the cyber systems supporting our Nation's critical infrastructures."9 Examples of recent cyberattacks by individuals and between nations include a successful attack on physical infrastructure,10 "hactivism",11  worms,12 and cyberattacks between nations in conflict.13

This article contends that notwithstanding the potential threat posed by cyberattacks, the United States should recognize the reasonable limits on the use of force imposed under international law.  Currently, there is no consensus among scholars regarding the proper scope of Article 51 of the United Nations Charter regarding anticipatory self-defense,14 the proper characterization of cyberattacks15 as a use of force under international law, and the appropriate legal responses to cyberattacks.16

This article first details the background of the United States Security Strategy and the National Strategy to Secure Cyberspace. These policies appear to foreshadow potential use of force by the United States in response to potential cyberattacks.

Second, this article narrowly examines the legality, under international law, of the doctrine of anticipatory self-defense generally, and as it could apply in cyberspace. Some scholars address this issue briefly,17 or advocate expanding the scope of the Article 51 self-defense exception to Article 2(4) of the United Nations Charter.18 This article analyzes conflicting scholarly interpretations of contemporary jus ad bellum under the United Nations Charter, select cases from the International Court of Justice, and United States' current and past application of the doctrine of anticipatory self-defense.

  In conclusion, United States' policy decisions should incorporate a proper narrow interpretation of contemporary jus ad bellum and utilize the ICJ interpretation of anticipatory self-defense. The United States should not use force in anticipatory self-defense against cyberattacks.

II. BACKGROUND

A. The National Security Strategy19

 Just over one year after the September 11 terrorist attacks, the Bush Administration disclosed a new "strategic doctrine" incorporating the concept of anticipatory self-defense against "any country or terrorist group that could potentially threaten U.S. security."20 As a precursor to the doctrine, in a June 2002 speech to the U.S. Military Academy, President George W. Bush stated that the "cold war doctrines of deterrence and containment" are no longer sufficient strategies to combat "shadowy terrorist networks."21 The President further noted that the United States "must take the battle to the enemy, disrupt his plans, and confront the worst threats before they emerge."22

On September 17, 2002, the White House issued the National Security Strategy, which codified the Bush Doctrine.23 The drafters of the National Security Strategy acknowledged that under international law anticipatory self-defense is lawful where there is "an imminent danger of attack."24 However, the strategy takes a new direction by proposing that the United States should broaden the concept of imminence according to the "capabilities and objectives of our adversaries."25
During that time period, Bush was attempting to garner support domestically and internationally for action against Saddam Hussein.26 The Bush Administration wanted to both provide political justification for the use of force to remove Hussein from power, and to enable the United States to expand the definition of self-defense for future purposes.27

 This strategic doctrine challenges the current scope of Article 51 of the U.N. Charter. The Security Council must authorize a nation's unilateral use of force in self-defense or the nation must meet the lawful conditions accompanying the right of self-defense against an unlawful use of force.28 Anticipatory self-defense incorporates the principles of necessity, proportionality, and imminence, discussed in more detail later in this article.

B. The National Strategy to Secure Cyberspace

The language of the National Strategy to Secure Cyberspace [National Cyberspace Strategy] additionally foreshadows the United States' potential use of force in response to actual or potential cyberattacks. The National Cyberspace Strategy seeks to "prevent cyber attacks against America's critical infrastructures, reduce national vulnerability to cyber attacks, and minimize damage and recovery time from cyber attacks that do occur."29 The National Cyberspace Strategy's first four priorities deal primarily with domestic initiatives,30 while the fifth priority addresses "[n]ational security and [i]nternational [c]yberspace [s]ecurity [c]ooperation."31

This analysis centers upon Priority Five's first focus, which involves protection of national security through the strengthening of counter-intelligence, improvement of cyberattack prevention through rapid discovery of the source of threats, improved coordination to ensure proper referral of criminal matters to the appropriate agency,32 and significantly, reservation of the right to respond in an appropriate manner that "need not be limited to criminal prosecution."33

By reserving the right to respond in a manner other than criminal prosecution, the United States may potentially resort to force in response to actual or potential cyberattacks.34 Thus the language contained in the National Cyberspace Strategy appears to follow the same principles inherent in the National Security Strategy, which is that of a broad right of response.

III. DISCUSSION

A. Doctrine of Anticipatory Self-Defense: The Caroline case

Most scholars point to Secretary of State Daniel Webster's statements in the 1837-1842 dispute between the British and the United States regarding a British attack on the American ship Caroline while in U.S. waters as the origin of the concept of anticipatory self-defense.35 In 1837, the Caroline supplied Canadian forces during Canada's rebellion against the British.36 The British attacked the Caroline, killing two people in the process of forcing the occupants ashore.37 The British then set the ship on fire and pushed it into the current, where it eventually drifted over the Niagara Falls.38 Britain considered the attack as a "justifiable act of self-defense" because the ship "had been used and might be used again" against the British.39
Proponents of the National Security Strategy point to the Caroline case as evidence that the concept of pre-emption is thus not new, and in fact "part of a longstanding legal tradition" dating back to Webster's statements.40 Daniel Webster, noting that the British acted when the Caroline was moored and not preparing an attack on the British, stated:

[W]hile it is admitted that exceptions growing out of the great law of self-defence do exist, those exceptions should be confined to cases in which the 'necessity of that self-defence is instant, overwhelming, and leaving no choice of means, and no moment for deliberation.'41 (emphasis added)

B. Conflict Management Under the U.N. Charter

Taken in concert, Articles 2(4), 51, and 39 constitute "contemporary jus ad bellum."48 Article 2(4) of the U.N. Charter limits nations' unilateral use of force by stating that "[a]ll Members shall refrain. . .from the threat or use of force against the territorial integrity or political independence of any state."49 Article 51 describes when nations may invoke self-defense:

 Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations, until the Security Council has taken the measures necessary to maintain international peace and security. Measures taken by Members in the exercise of this right of self-defence shall be immediately reported to the Security Council and shall not in any way affect the authority and responsibility of the Security Council under the present Charter to take at any time such action as it deems necessary in order to maintain or restore international peace and security (emphasis added). 50

Under Article 41, the Security Council considers whether measures "not involving the use of armed force," ranging from economic sanctions to disruption of the target country's communications, will suffice.52 Under Article 42, states may use force if the Article 41 measures are unsuccessful, or if the Security Council determines such measures are unlikely to be successful.53

The Charter does not specifically address the concept of anticipatory self-defense.54 Scholars debate the extent to which the Charter does or should cover the concept. Under the strictest interpretation, the right of self-defense by states only arises in response to an armed attack.55 Alternatively, some view the Charter's silence regarding anticipatory self-defense as maintaining a customary right.56 One scholar properly asserts that Article 51 does not preclude anticipatory self-defense, but rather nations should interpret Article 51 narrowly.57 A narrow interpretation, unlike the Bush Administration's approach in the National Security Strategy, includes the Caroline requirement of imminence.

Scholars further debate the legitimacy of anticipatory self-defense in response to a cyberattack. Under one approach, cyberattacks are by nature instantaneous, the "right to respond must accrue immediately," notwithstanding the difficulty of determining the attacker's location, identity, and intent and the risk to neutrals.58 However, the principles of necessity and proportionality limit the use of self-defense and anticipatory self-defense.59 Self-defense is necessary when there is "imminent danger of an armed attack."60 A proportional response must be "reasonable in terms of intensity, duration, and magnitude, [and be] required to decisively counter the hostile act or demonstration of hostile intent."61

Ian Brownlie, a scholar frequently cited62 regarding states' proper use of force under international law, notes that "there is a general assumption by jurists that the Charter prohibited self-help and armed reprisals."63 In a 1955 Security Council determination, the Council condemned a retaliatory attack by Israel on Syria,64 with several members stating that "forcible retaliations and reprisals were unlawful under the United Nations Charter."65 However, the U.N. Charter allows reprisals not involving force.66

The drafters of the U.N. Charter effectively altered the customary right to self-defense as it existed prior to 1945 to exclude forcible reprisals.67 The right expanded to include collective self-defense in addition to individual self-defense.68  The right contracted as legitimate acts of self-defense now only arose in response to an "armed attack" and the right of self-defense became a "temporary right" until the Security Council took appropriate measures under Article 39.69

Much debate surrounds the determination of when this "temporary right" surfaces in the context of cyberspace. One view supports defensive action during the "last possible window of opportunity... to effectively counter an armed attack."70 This view thus appears to contain an imminence component.

Another approach takes a more expansive view of the appropriate use of self-defense (i.e. may be invoked where conclusive evidence of intent to attack, rather than actual attack).71 While this view does not incorporate the necessary imminence requirement, it still does not approach the broad interpretation codified in the National Security Strategy.

As the United Nations Charter drafters intentionally left the term "armed attack" undefined,72 the determination of when an attack is "armed" resides with the state parties until the Security Council institutes appropriate measures pursuant to Article 51.73 This article proposes that states narrowly interpret the concept of armed attack. The Security Council would then determine whether an "armed attack" has occurred in a case-by-case fashion.74

C.  Should States Consider a Cyberattack an "Armed Attack"?
 
One scholar argues that cyberattacks against "a nation's critical national infrastructure. . . [automatically] constitute a use of force."75 Under this analysis, nations may respond to a cyberattack not only with "proportional self-defense," but also with "anticipatory self-defense-even if the [cyberattack] is not an armed attack under Article 51 of the United Nations Charter."76 This view follows the Bush Doctrine's underlying premise, thus drastically stretching the concept of anticipatory self-defense and extending it beyond the Charter's boundaries.

Adoption of such a view violates current international law standards by allowing unilateral use of force under the guise of self-defense. There will always be hypothetical situations where one may envision harm averted by the use of anticipatory self-defense. However, international law regarding force evolved to ensure that nations take such steps only where faced with "imminent" harm in order to avoid such unlawful unilateral uses.

An alternative approach contends that threats of a "non-military" nature by a state may rise to the level of an armed attack where they "intentionally cause any destructive effect within the sovereign territory of another state."77 The relevant elements of this argument involve intent and any destructive  effect (emphasis added). This definition of "armed attack" is over-inclusive[PC1] because it would legitimize the use of force in response to a wide spectrum of cyberattacks. By emphasizing that any destructive effect rises to the level of armed attack, no parameters or boundaries exist to limit use of force in response.

A third approach supports the use of force in response to a cyberattack when, after conducting a holistic inquiry, one finds the attack involves "physical damage or human injury" or was an imminent part of a larger scheme of attack.78 The inquiry includes the following: (1) How severe are the consequences? (2) How immediate? (3) How directly did the attack cause the consequences? (4) How invasive was the attack? (5) How are the consequences measured? (6) What is the legitimacy of the action under national and international law? (7) How responsible is the involved State for the actions?79  Unlike the previous approach, this evaluation painstakingly analyzes a cyberattack's consequences, and thus does not broadly legitimize self-defense against any destructive effect.80 However, in terms of an isolated cyberattack and in a situation where the cyberattack is part of a larger military operation, the same criterion of necessity, proportionality, and imminence should apply regarding the potential use of anticipatory self-defense.

As noted earlier in this article, cyberattacks raise the spectre of "mass disruption."81 Unlike the prevention of nuclear warfare, in which the key is to find the weapons cache or prevent the accumulation of nuclear capability, the weapon in cyberwarfare is within a human mind. The key to winning a cyberwar is not by pre-emptive use of force against a potential cyberattacker, but rather by anticipating and beating your opponent's decision cycle82 by developing better defensive capabilities and eliminating possible "critical flaw[s]."83 Non-traditional conflict requires non-traditional responses. However, the combined difficulty of finding the actual source of the attack and potential international implications of pre-emptive action against a possible threat advise against the utilization of pre-emptive force.

D.  International Court of Justice Treatment

Even assuming that a cyberattack can rise to the level of force prohibited under the U.N. Charter,84 states should not interpret Article 51 as allowing the use of force in anticipatory self-defense against a potential cyberattack. States should interpret Article 51's scope through the framework of the International Court of Justice's [ICJ] jurisprudence. The ICJ jurisprudence forbids self-help in the absence of necessity, requires a prior armed attack for justifiable self-defense, and outlines proportionality requirements for countermeasures.

1. The Corfu Channel Case
 
The ICJ indirectly addressed the concept of self-defense in the Corfu Channel Case. This case centered upon right of passage through the North Corfu Strait.85 In May of 1946, Albania fired on passing British ships, declaring "no right of innocent passage through its territorial waters."86 British ships again attempted to pass through the strait in October of 1946 and were damaged by mines.87 Suspecting Albanian involvement in the mine placement, British ships re-entered the strait with minesweepers and found more newly placed mines.88

Albania claimed that the British October re-entry was politically motivated and therefore unprotected by international law.89 The dispute centered upon whether the United Kingdom should have brought the matter immediately to the Security Council to determine the legal propriety of passage through the strait rather than engaging in re-entry to assert a legal right.90
The ICJ majority found that the strait "belonged 'to the class of international highways through which passage cannot be prohibited by a coastal State in time of peace.'"91 The dissent agreed with the majority regarding "self-help," noting that once the U.N. Charter came into force, "the right of necessity. . . [could] no longer be invoked. It must be regarded as obsolete. . . [and] is forbidden by the Charter."92 The British ships justifiably could have responded with force if attacked during the October passage through the strait, but should not have resorted to self-help to investigate for the presence of new mines.93

2.  The Nicaragua Case

In the Nicaragua Case, the ICJ contemplated the meaning of "armed attack."94 The United States justified its actions against Nicaragua under the rubric of collective self-defense on behalf of El Salvador.95 Nicaragua contended that its assistance to Salvadorian rebels did not constitute an armed attack.96 The ICJ agreed, finding that the Nicaraguan assistance did not in fact qualify as an armed attack,97 and thus the United States' actions were "clearly prohibited."98 While the court did not directly address anticipatory self-defense, the court noted that individual self-defense by a state requires a prior "armed attack."99 It follows that the ICJ would also require the same  criteria of any action taken in anticipatory self-defense.100

3. The Gabcikovo-Nagymaros Project Case

The ICJ addressed the role of proportionality regarding countermeasures in a treaty dispute between Hungaria and Slovakia101 over responsibility for a discontinued water management project aimed at producing hydroelectricity, improving navigation, and protecting the banks of the Danube from flooding.102 The treaty described the operation as "an integrated joint project with the two contracting parties" sharing "financing, construction, and operation of the works."103 Relations disintegrated and Czechoslovakia subsequently appropriated "between 80 and 90 per cent of the waters of the Danube. . . despite the fact that the Danube is. . . a shared international watercourse but also an international boundary river."104 The ICJ found that Czechoslovakia's actions constituted "an internationally wrongful act," but could be justified as a lawful countermeasure if the act followed "Hungary's prior failure to comply with its obligations under international law" and met certain conditions.105 The ICJ referenced its decision in the Nicaragua case, an arbitral award between the United States and France, and the Draft Articles on State Responsibility.106

The ICJ outlined when a state may utilize "proportionate countermeasures."107 First, there must have been a "previous international wrongful act of another state."108 Secondly, "the injured state must have called upon the offending state to discontinue its wrongful conduct or to make reparation[s] for it."109 Third, the injured state's response "must be commensurate with the injury suffered, taking into account the rights in question.110  The court found that Czechoslovakia "failed to respect the proportionality which is required by international law" by its unilateral assumption of control of a "shared resource."111 The option of utilizing countermeasures thus offers an alternative to anticipatory self-defense, but such measures must still incorporate the principle of proportionality.

E.  Anticipatory Self-Defense and the Potential for Abuse

1. Has the United States Impermissibly Expanded the    Doctrine of Anticipatory Self-Defense?
 
 This section begins with some brief examples of U.S. military actions taken in previous administrations that the United States asserted as lawful self-defense. More detailed examples of actions under the Bush Administration follow to show the evolution and current uncertain status of international law due to United States' use of anticipatory self-defense as detailed by the Bush Doctrine.

     a.  Military Actions Under Previous Administrations

The United States, during its 1986 bombing of Libya during the Reagan Administration, advocated the lawful use of "force in self-defense if it had reason to believe that a state that has already used force is planning to do so in the near future."112 Without providing any evidence for verification, the United States invoked the doctrine of anticipatory self-defense, claiming that Libya planned future terrorist attacks.113 The U.N. General Assembly rejected this rationale and passed a resolution condemning the bombing.114 This rationale also fails the ICJ necessity, proportionality, and imminence requirements for "proportionate countermeasures."115 The purported 1998 Libyan response to the bombing of destroying Pan Am Flight 103 over Lockerbie, Scotland, additionally illustrates the inherent danger of potentially setting off a chain reaction of retaliation by engaging in anticipatory self-defense.116

Some felt that after the Pan Am Flight 103 bombing that the United States began to shift away from pre-emptive action.117 However, in 1998, during the Clinton Administration, the United States engaged in a missile attack on a Sudanese factory, justifying its action to the Security Council by stating that the factory produced a deadly nerve gas.118 Sudan denied the allegations and requested a Security Council investigation.119 After officials admitted that they had no proof of nerve gas production, the United States "stopped asserting its certainty over the evidence."120 As with the 1986 bombing of Libya, the United States unjustifiably used force under the ICJ framework.

b. Military Actions Under the Bush Administration

 1. Afghanistan, 2001

 The United States and the United Kingdom began operation "Enduring Freedom" in October of 2001 as a response to the terrorist attacks of September 11.121 Enduring Freedom involved a "massive aerial and land operation on the territory of Afghanistan."122 As the Security Council did not explicitly authorize the operation, the operation was lawful if it met four conditions. First, the United States must have been the "victim of a significant armed attack."123 The events of September 11 support this condition.[PC2] One can hardly begin describing the previously unimaginable destruction and loss from the attacks on the World Trade Center and Pentagon, both in terms of life and monetary damage.124

Secondly, the "armed attack must be underway. . . or [there must be] clear and convincing evidence that more attacks are planned."125 The United States and the United Kingdom argued that September 11 represented only "part of a series of attacks that began in 1993. . .[and] that future attacks in the same series were planned."126 NATO members found the series, beginning with the World Trade Center attack, attacks on embassies in Tanzania and Kenya, and most likely the USS Cole attack, to be "compelling."127

Third, Afghanistan must be responsible for the September 11 attacks and potential future attacks.128 The United Kingdom outlined the close relationship between the Taliban, Afghanistan's "de facto government, and the "known terrorist organization al Qaeda."129 The world community appeared to accept this linkage.130

Fourth, the operation must be "necessary for the purpose of the defense. . .and proportional to the injury threatened."131 While the operation initially met the necessity and proportionality standards, many states criticized the United States for continuing the operation after the fall of the Taliban.132

   2.  Iraq, 2003

The United States and the United Kingdom began Operation Iraqi Freedom133 in response to Iraq's failure to comply with UN Security Council Resolution 687, which required proof of disarmament.134 President Bush issued an ultimatum to Saddam Hussein: "[i]n 1 year, or 5 years, the power of Iraq to inflict harm on all free nations would be multiplied many times over .... We choose to meet that threat now, where it arises, before it can appear suddenly in our skies and cities."135
 This operation represents the first application of the Bush Doctrine of "preventive war" codified in the National Security Strategy.136 The operation rests solely on the Bush Doctrine as Operation Iraqi Freedom fails the test for lawfulness under international law absent explicit Security Council authorization for legal use of force.

Applying the same analysis used regarding Operation Enduring Freedom in Afghanistan, the United States must have been the "victim of a significant armed attack."137 Iraq did not attack the United States. President Bush sidestepped this question by referring to the "sovereign authority [of the United States] to use force in assuring its own national security."138
Second, the "armed attack must be underway. . . or [there must be] clear and convincing evidence that more attacks are planned."139 Unlike the situation in Afghanistan, the United States could not conclusively link Iraq to al Qaeda or provide evidence of potential nuclear capability.140

Third, the United States must find Iraq responsible for present attacks and/or potential future attacks.141 The Bush Administration attempted to prove Iraqi possession of hidden chemical and biological weapons caches.142 Neither the Security Council nor the international community accepted this argument.143

Fourth, the operation must be "necessary for the purpose of the defense. . .and proportional to the injury threatened."144 The United States additionally failed to persuade the Security Council that "remedies short of force had run their course."145

Operation Iraqi Freedom thus does not fall under the lawful conditions for self-defense and rests solely on the concept of
anticipatory self-defense outlined in the National Security Strategy.146 This underlying justification for attack risks the "unraveling of the constraints governing force" and impermissibly expands the scope of anticipatory self-defense.147
Unlike military situations arising in previous administrations, and even the more recent actions in  Afghanistan, where the United States attempted to place its actions within the realm of international law regarding self-defense, the current administration's actions in Iraq seem to advocate a certain brand of "exceptionalism," which entails viewing the United States as possessing a "privileged, exceptional position. . . that puts it above international law."148 Professor O'Connell, writing for the American Society of International Law Task Force on Terrorism, notes that "[p]erhaps the Bush Administration will seek to avoid a dangerous precedent by taking the position that the US has a special legal status, in which it has rights not available to others."149 However, O'Connell stresses that "the United States is equal before the law with all other sovereign states."150

Not all scholars view exceptionalism, per se, as undesirable. However, such scholars distinguish between "good exceptionalism" and bad exceptionalism."151 The first refers to eagerness on the part of the United States "to set the world to rights," as in upholding human rights, and "the other ready to turn its back with contempt if its message should be ignored."152 United States' actions in Iraq display contempt. The United States should encourage "exceptional American leadership, while discouraging double standards."153

This analysis does not argue that all fault lies with the current administration. The United States tested the boundaries of the proper use of force during both the Reagan and Clinton administrations.154 However, the Bush Doctrine goes farther than any previous administration's policy by disregarding or attempting to redefine the constraints of international law, rather than attempting to fit its actions within an internationally accepted legal definition of lawful use of force.155

2.  What is the Potential for Abuse of the Doctrine of Anticipatory Self-Defense in Cyberspace?
 
Nations may abuse the anticipatory self-defense doctrine in three ways.156 First, the potential attack "may never have materialized."157 During the 2002 confrontation between India and Pakistan, during which each state stationed troops on either side of their common border, either state could have argued that the other would attack, in order to justify engaging in anticipatory self-defense.158

Second, under a broad construction of self-defense, states may "invent anticipated attacks as a pretext."159 Israel attempted to justify its attack on Egypt in 1967, reporting to the Security Council that additional Egyptian jets were approaching Israel following an Egyptian attack on three Israeli villages.160 The report was completely fabricated-the Israeli cabinet decided to attack the previous day, there had been no attack on Israeli villages, and no Egyptian jets approached Israel.161

Finally, the attacking state may be mistaken as to the other nation's intent.162 The previously described United States missile attack on a Sudanese factory provides a concrete example of such a situation.163

Utilizing the anticipatory self-defense doctrine in response to cyberattacks raises the same potential for abuse by states, with an additional caveat. Given the inherent nature of cyberspace, attackers could disguise the source of the cyberattack and implicate a different state or group, thus setting off an entirely new chain reaction.164

3. Should the United States Utilize Cyberwarfare in Anticipatory Self-Defense?

While this analysis focuses on the use of force in anticipatory self-defense of potential cyberattacks, other levels of response raise similar questions. As noted in the discussion regarding Libya infra, the dangers inherent in utilizing anticipatory self-defense include the prospect of setting off a continuing chain reaction of retaliation.
As the United States further develops its rules of engagement in cyberspace, similar issues arise.165 If the United States used malicious code against either an isolated system or a combatant state's infrastructure, the code could spread over the Internet to harm allies, non-combatants, or circle back to the United States itself.166 Additionally, a terrorist group could potentially "copy, or reverse-engineer [the code]" for its own offensive use.167

The potential for unforeseeable, widespread effects from an offensive release of malicious code raises concerns similar to those regarding the use of nuclear weapons. Richard A. Clarke, former head of the Office of Cyberspace Security, noted the potential for "collateral damage" to civilians.168  To illustrate this, Clarke noted that a cyberattack "on an electric power grid, intended to pull the plug on military facilities, might end up turning off electricity to hospitals on the same network."169  Clarke asserted that the question of whether to engage in cyberwarfare mirrors the "strategic nuclear issue [debate]. . .[d]o you ever want to do it? Do you want to legitimize that kind of weaponry?"170

IV. CONCLUSION

Under the proper narrow interpretation of Article 51, analysis of contemporary jus ad bellum, and ICJ interpretation of anticipatory self-defense, the United States should not use force in anticipatory self-defense against cyberattacks. Notwithstanding the potential threat posed by cyberattacks, the United States should recognize reasonable limits on the use of force imposed under international law.

The current Bush Doctrine, which advocates a strategy of anticipatory self-defense that disregards the imminence requirement imposed by the Caroline doctrine and first utilized in its 2003 military actions in Iraq, impermissibly expands the scope of Article 51. The National Cyberspace Strategy, viewed in the context of the underlying option of pre-emption detailed in the National Security Strategy, presents the identical possibility of the United States' future use of force in response to potential cyberattacks.

Pursuit of double standards regarding the legitimate use of force lends hypocrisy to United States' efforts in other areas, such as human rights, thus promoting "bad exceptionalism."171 Such an application strains United States' efforts "to lead globally through moral authority."172 By claiming the right to pre-emption against the weight of international law, the United States erodes "the legitimacy of the rules themselves."173

Returning to the basic strategic military dilemma of whether to "[d]eny, deceive, destroy, or exploit,"174 the United States should concentrate on greater development of its defensive capabilities.175 The complexities of both defending and engaging in cyberwar demand full consideration of the potential domestic and international effects. The United States should not respond to potential threats by tracking a cyberattack to its source and either killing the individual or engaging the state in war. Neither should the United States pre-emptively attack a  potential cyberthreat (whether an individual or a state).  Such an expansion of anticipatory self-defense "create[s] a 'loaded weapon' that can be used against the United States and against the general interest in a stable world order."176 Additionally, United States' potential use of malicious code in anticipatory self-defense generates the same risk of creating a potential weapon for current or future adversaries.

As former Secretary of State Henry Kissinger noted, the United States' current status as the world's only remaining superpower confers a "special unilateral capacity to implement its convictions."177 However, such a unilateral ability includes the "special obligation to justify its actions by principles that transcend the assertions of preponderant power."178

Kissinger concludes that "[i]t cannot be in either the American national interest or the world's interest to develop principles that grant every nation an unfettered right of preemption against its own definition of threats to its security."179 Such a stance opens a virtual Pandora's box within the international legal regime.180

1 BRUCE BERKOWITZ, THE NEW FACE OF WAR 26 (2003). Berkowitz draws an analogy to Indian tribes confronting a rival tribe's smoke signals for the first time.

Do you transmit your own smoke signals to interfere with his? Do you send bogus signals to confuse your adversary so that he is easier to kill? Do you find the enemy sending the message and kill him? Or do you quietly watch the signals so you know where your adversary plans to be, head him off, and kill him then? Id.

2 Michael Evans, War Planners Warn of Digital Armageddon, LONDON TIMES, Nov. 20, 1999 (quoting CIA director George J. Tenet).
 
3  CYBERTERRORISM AND INFOWARFARE, DATA SECURITY AND PRIVACY LAW: COMBATING CYBERTHREATS § 1.5 (2003) (citing Information Warfare and Infrastructure: Hearing Before Senate Committee on Government Affairs, 105th Congress (June 24, 1998) (statement of George J. Tenet, Director, Central Intelligence Agency at http://www.cia.gov/cia/public_affairs/speeches/archives/1998/
dci_testimony_ 062498.html) (last updated May 30, 2001).

4 BERKOWITZ, supra note 1, at 75. Berkowitz credits Andrew W. Marshall for coming up with the concept of "asymmetric threats" while Marshall worked at Project Rand, a non-profit think tank set up by the Air Force in 1946 to evaluate military proposals. Id. at 31-33. A colleague of Marshall's, Albert Wohlstetter, noted that the "ultimate asymmetric threat" was the finding and exploitation of a critical flaw by a weak combatant against even the most powerful. Id.

5 BERKOWITZ, supra note 1, at 75. Berkowitz credits Tom Rona, a staff scientist for Boeing (later recruited by Marshall at Rand) for coining the phrase "information war." Id. at 30. Rona noted that "[c]ountermeasures aimed at the external flow of information will be further improved to the point that they may well become crucial in influencing the outcome of future engagements." Id. at 30 (quoting THOMAS P. RONA, WEAPONS SYSTEMS AND INFORMATION WAR 1-2 (Boeing Aerospace Company 1976)).

6 BERKOWITZ, supra note 1, at 75. While an Air Force combat tactics teacher, John Boyd created the idea of an "OODA loop," which essentially covered the basic decision cycle of effective combat: "observation, orientation, decision, action." Id. at 42.

7  BERKOWITZ, supra note 1, at 75. Berkowitz details Arquilla and Ronfeldt's development of the idea of "networked armies." Id. at 71-72.

8 See Eric Talbot Jensen, Computer Attacks on Critical National Infrastructure: A Use of Force Invoking the Right of Self-Defense, 38 Stan. J. Int'l L. 207 (2002) Jensen details a strategy listed in "Unrestricted Warfare," a Chinese military guide, for using cyberattacks in conjunction with a larger military scheme to dehabilitate the enemy's civilian infrastructure in preparation for a conventional attack. Id. (citing Qiao Liang & Wang Xiangsui, Unrestricted Warfare 75 (FBIS trans. 1999), quoted in Arnaud de Borchgrave et al., Center for Strategic & International Studies, Cyber Threats and Information Security Meeting the 21st Century Challenge 8 (2000)) available at http:// www.csis.org/homeland/reports/cyberthreatsandinfosec.pdf. See also Bradley Graham, Bush Orders Guidelines for Cyber-Warfare, Wash. Post, Feb. 7, 2003, at A01 at http://www.washingtonpost.com/ac2/wp-dyn?pagename=article&node=&contentId=A38110-2003Feb6&notFound=true.

9 WHITE HOUSE, NATIONAL STRATEGY TO SECURE CYBERSPACE (2003)[hereinafter NATIONAL CYBERSPACE STRATEGY], available at http://www.whitehouse.gov/pcipb/cyberspace_ strategy.pdf. The National Cyberspace Strategy emphasizes that the United States is vulnerable to cyberattacks. The report notes the 1998 attacks breaching the security of the Department of Defense, NASA, and government research labs. Id. at 50. Cf. Clay Wilson, Computer Attack and Cyber Terrorism: Vulnerabilities and Policy Issues for Congress, CRS-9 (2003), at http://www.fas.org/irp/crs/RL32114.pdf. Wilson listed several DOD simulations that indicated "vulnerabilities in U.S. military information systems" and the "need for greater coordination between military and non-military organizations." Id. However, the most recent simulation, conducted in 2002, found only "a small possibility" of a "Digital Pearl Harbor." Id. at CRS-10.

10 In 2002, an Australian hacker was arrested for taking over a sewage and water treatment plant, thus causing the release of waste into parks and water systems. CYBERTERRORISM AND INFOWARFARE, supra note 3 (citing Barton Gellman, Cyber-Attacks by Al Qaeda Feared (June 27, 2002) at http://www.washingtonpost.com/ac2/wp-dyn/A50765-2002Jun26?) (last visited Jan. 30, 2003).

11 Individuals protesting NATO bombings during the Kosovo conflict inflicted e-mail bombs and "denial of service" attacks on NATO computers. CYBERTERRORISM AND INFOWARFARE, supra note 3.
 
12 In 2003, five out of thirteen world-wide Internet root servers were temporarily disabled by the "slammer" worm. (also known as "sapphire" or "SQ Hell"). Id. (citing Cyber Attacks During the War on Terrorism (Sept. 22, 2001) at http://www.ists.dartmouth.edu/ISTS/counterterrorism/cyber_attacks.htm (last visited Jan. 31, 2003).

13 During a territory dispute in Kashmir, both Indian and Pakistani hackers disrupted systems using cyberattacks. Id. Pakistani hackers defaced Indian websites 275 times. Id.

14 This term will be used throughout this analysis. Scholars use a variety of terms to describe this concept, including preemptive self-defense or preventive self-defense. See Miriam Sapiro, Iraq: The Shifting Sands of Preemptive Self-Defense, 97 AM. J. INT'L L. 599 (2003). Sapiro chooses to use the term "preventive self-defense" to describe the Bush Administration's approach to the war against terrorism. Id. at 599.

15 Similarly, authors use a variety of terms to describe cyberattacks. See generally Michael N. Schmitt, Computer Network Attack and the Use of Force in International Law: Thoughts on a Normative Framework, 37 COLUM. J. TRANSNAT'L L. 885 (1999); Captain Robert G. Hanseman, USAF, The Realities and Legalities of Information Warfare, 42 A. F. L. REV. 173 (1997); Daniel M. Creekman, A Helpless America? An Examination of the Legal Options Available to the United States in Response to Varying Types of Cyber-Attacks From China, 17 AM. U. INT'L L. REV. 641 (2002).

16 See generally Id.

17 See Schmitt, supra note 15, at 924. Schmitt notes that "an in-depth analysis of the appropriateness of responding to computer network attack with force is beyond the purview of. . . [his] essay." Id.

18 See Jensen, supra note 8, at 207. Jensen "propose[s] that international law must evolve to recognize that attacks against a nation's critical national infrastructure from any source constitute a use of force." Id.

19 THE NATIONAL SECURITY STRATEGY OF THE UNITED STATES OF AMERICA 15 (Sept. 2002), available at http://www.whitehouse.gov/nsc/nss.pdf [hereinafter NATIONAL SECURITY STRATEGY].

20 Richard N. Gardner, Neither Bush Nor the "Jurisprudes," 97 AM. J. INT'L L. 585, 585 (2003). Professor Gardner notes that "most UN members have rejected the Bush doctrine." Id.

21 George W. Bush, Commencement Address at the United States Military Academy in West Point (June 1, 2002), 38 WEEKLY COMP. PRES. DOC. 944, 946 (June 10, 2002).

22 Id.

23 Gardner, supra note 20, at 586.

24 NATIONAL SECURITY STRATEGY, supra note 19, at 15.

25 Id. Professor Gardner notes that this concept is a "new legal as well as strategic concept that. . . represent[s] a fundamental change." Gardner, supra note 19, at 586.

26 Sapiro, supra note 14, at 600.
 
27  Id. Sapiro notes that "the preoccupation with Iraq was clearly a driving force...[for] a doctrine that could serve two purposes-one immediate and another longer term." Id.

28 Gardner, supra note 20, at 585.

29 NATIONAL CYBERSPACE STRATEGY, supra note 9, at viii. The White House released its final draft of the National Strategy to Secure Cyberspace on February 14, 2003. This strategy is an "implementing component" of the National Strategy for Homeland Security. Id. at vii. The National Strategy for the Physical Protection of Critical Infrastructures and Key Assets accompanies the National Cyberspace Strategy. Id. at viii.

30 The National Cyberspace Strategy focuses on five priorities:
I. A National Cyberspace Security Response System;
II.  A National Cyberspace Security Threat and Vulnerability Reduction System;
III. A National Cyberspace Security Awareness and Training Program;
IV.  Securing Governments' Cyberspace;
V. National Security and International Cyberspace Security Cooperation.
Id. at x.

31 NATIONAL CYBERSPACE STRATEGY, supra note 9, at x.

32 Id. The agencies include "law enforcement, national security, and defense agencies involving cyber-based attacks and espionage." Id. at 50.

33 Id. at x. The National Cyberspace Strategy next focuses on enhancing international cooperative efforts through work with international organizations and industry, development of network security, promotion of "North American Cyberspace Security," development of "Watch-and-Warning Networks," and endorsement of other countries' adherence to the Council of Europe Convention on Cybercrime or, in the alternative, adaptation of similarly comprehensive legal protocols in order to cooperatively combat cybercrime. Id. at 50-52.

34 Wilson, supra note 9, at CRS-15. While Wilson does not explicitly acknowledge the potential use of force in response to a cyberattack, he notes that the United States has reserved an open-ended right to respond "in an appropriate manner" that could include "cyber weapons, or malicious code designed to attack and disrupt the targeted computer systems of an adversary." Id.

35 See Commander Byard Q. Clemmons & Major Gary D. Brown, Rethinking International Self-Defense: The United Nations' Emerging Role, 45 NAVAL L. REV. 217, 221 (1998) (the authors note that Daniel Webster's statements in the Caroline case are the "standard expression of the right...[and] the reference point for cases of national self-defense). Cf. Abraham D. Sofaer, On the Necessity of Pre-emption, 14 EUR. J. INT'L L. 209, 220 (2003)(arguing that the Webster definition is artificial and restrictive).

36 R.Y. Jennings, The Caroline and McLeod Cases, 32 AM. J. INT'L. L. 82, 84 (1938).

37 Id.

38 Id.

39 Gardner, supra note 20, at 585.
 
40 Gardner, supra note 20, at 586.

41 Id. (quoting Letter from Daniel Webster to Lord Ashburton (Aug. 6, 1842) in 2 JOHN BASSETT MOORE, A DIGEST OF INTERNATIONAL LAW 412 (1906)). The incident eventually ended with a British apology in 1842. See Clemmons & Brown, supra note 35, at 220.

42 Id. Professor Gardner notes that such characterization of Webster's arguments is "patently misleading." Id.

43 NATIONAL SECURITY STRATEGY, supra note 19, at 15.

44 Sapiro, supra note 14, at 600 (quoting 1 HUGO GROTIUS, DE JURE BELLI AC PACIS LIBRI TRES 173 (Francis W. Kelsey trans., 1925) [hereinafter GROTIUS]; EMMERICH DE VATTEL, THE LAW OF NATIONS 243 (Charles G. Fenwick trans., 1916)[hereinafter VATTEL]).

45 Id. (quoting GROTIUS).

46 Id. (quoting VATTEL).

47 Id. Sapiro notes that the National Security Strategy correctly describes pre-1945 international law, but "neglects. . . [the] adoption of the UN Charter-which changed the parameters governing the use of force." Id. at 600.

48 WALTER GARY SHARP, SR., CYBERSPACE AND THE USE OF FORCE 33 (1999). Jus ad bellum is the Latin form of the phrase law of conflict management. Id. at 151.

49 U.N. CHARTER art. 2, para. 4.

50 U.N. CHARTER art. 51.

51 U.N. CHARTER art. 39.

52 U.N. CHARTER art. 41.

53 U.N. CHARTER art. 42.

54 Oscar Schachter, The Right of States to Use Armed Force, 82 MICH. L. REV. 1620, 1633 (1984).
 
55 IAN BROWNLIE, INTERNATIONAL LAW AND THE USE OF FORCE BY STATES 278 (1963). Brownlie strictly interprets Article 51 and states that those who argue for the inclusion of anticipatory self-defense within the Charter offer "unconvincing" and "inconclusive" evidentiary support. Id.

56 Schachter, supra note 54, at 1633.

57 Id. at 1634.

58 Jensen, supra note 8, at 208-209.

59 Id. at 218.

60 Id. (quoting Richard J. Grunawalt, The JCS Standing Rules of Engagement: A Judge Advocate's Primer, 42 A. F. L. REV. 245, 251 (1997)).

61 Jensen, supra note 8, at 218.
 
62 See Schachter, supra note 54; John Quigley, The Afghanistan War And Self-Defense, 37 VAL. U. L. REV. 541 (2003); Clemmons & Brown, supra note 35; Mary Ellen O'Connell, American Exceptionalism and the International Law of Self-Defense, 31 DENV. J. INT'L L. & POL'Y 43, 54 (2002)[hereinafter O'Connell, American Exceptionalism]. These are but a few examples of the innumerable authors that refer to Brownlie as a pre-eminent authority.

63 BROWNLIE, supra note 55, at 265, n.1 (1963) (internal citations omitted).
64 Id. at 281 (quoting S.C., Off. Recs., Tenth Year, 707th Meeting seq.).

65 Id. at 281-282.

66 Id. at 282.

67 STANIMIR A. ALEXANDROV, SELF-DEFENSE AGAINST THE USE OF FORCE IN INTERNATIONAL LAW 95 (1996).

68 Id.

69 Id.

70ote 70, )d pasts it could apply "revailing lier states and reading of self-defense that allows it to be invoked. . . [where] t70ote 70, )d pasts it could apply "revailing lier states and reading of self-defense that allows it to be invoked. . . [where] t70ote 70, )d pasts it could apply "revailing lier states and reading of self-defense that allows it to be invoked. . . [where] t Michael N. Schmitt, The Sixteenth Waldemar A. Solf Lecture in International Law, 176 MIL. L. REV. 364 (June, 2003)[hereinafter Lecture].
 
71 Jensen, supra note 8, at 225. Jensen notes Schmitt's more restrictive view. Id.

72 ALEXANDROV, supra note 67, at 95.

73 See Id. at 98; U.N. CHARTER art. 51.

74 ALEXANDROV, supra note 67, at 95-96.

75 Jensen, supra note 8, at 208-209.
 
76 Id.

77 SHARP, supra note 48, at 28.

78 See Lecture, supra note 70, at 420.

79 Id. at 417.

80 Id. at 416-420.

81 Evans, supra note 2 (quoting George J. Tenet).

82 BERKOWITZ, supra note 1, at 75. While an Air Force combat tactics teacher, John Boyd created the idea of an "OODA loop," which essentially covered the basic decision cycle of effective combat: "observation, orientation, decision, action." Id. at 42.

83 BERKOWITZ, supra note 1, at 75. Berkowitz credits Andrew W. Marshall for coming up with the concept of "asymmetric threats" while Marshall worked at Project Rand, a non-profit think tank set up by the Air Force in 1946 to evaluate military proposals. Id. at 31-33. A colleague of Marshall's, Albert Wohlstetter, noted that the "ultimate asymmetric threat" was the finding and exploitation of a critical flaw by a weak combatant against even the most powerful. Id.

84 See Todd A. Morth, Considering Our Position: Viewing Information Warfare as a Use of Force Prohibited by Article 2(4) of the U.N. Charter, 30 CASE W. RES. J. INT. 567 (1998). Morth views information warfare as having "the potential to inflict catastrophic damage on society." Id.

85 BROWNLIE, supra note 55, at 283.

86 ALEXANDROV, supra note 67, at 122.

87 Id.
88 Id.

89 BROWNLIE, supra note 55, at 283.

90 ALEXANDROV, supra note 67, at 139.

91 BROWNLIE, supra note 55, at 283 (quoting I.C.J. Reports, 1949, p. 29.)

92 ALEXANDROV, supra note 67, at 124-125.

93 Id.

94 Lecture, supra note 70, at 388.

95 Id.

96 ALEXANDROV, supra note 67, at 141.

97 Id. at 143.

98 ALEXANDROV, supra note 67, at 143 (1996). The ICJ noted that "the reaction of the United States in the context of what it regarded as self-defence was continued long after the period in which any presumed armed attack by Nicaragua could reasonably be contemplated." Id.

99 Id. at 144.

100 Jensen, supra note 8, at 220.

101 Gabcikovo-Nagymaros Project (Hung. v. Slovk.), 1997 I.C.J. 7, 55-56 (Sep. 25).

102 Id. at 18, para. 15. The Danube flows along the boundary between Hungary and Slovakia and is the second longest river in Europe. Id. at 18, para. 16.

103 Id. at 24, para. 20.

104 Gabcikovo-Nagymaros Project, supra note 101, at 54, para. 78.

105 Id. at 55, para. 82.

106 Id. at 55, para. 83.

107 Id.

108 Gabcikovo-Nagymaros Project, supra note 101, at 55-56.

109 Id.

110 Id.

111 Id. at 56, para. 85.

112 Quigley, supra note 62, at 558. George Schultz, the Secretary of State, developed this legal rationale. Id.

113 Id. The United States did not provide specific dates or targets of the alleged potential future attacks. Id. See also Lou Cannon, Reagan Acted Upon 'Irrefutable' Evidence, Wash. Post, Apr. 15, 1986, at A01, available at 1986 WL 2050378.

114 Quigley, supra note 62, at 558 (referencing G.A. Res. 38, U.N. GAOR, 41st Sess., Supp. No. 53, at 34, U.N. Doc. A/41/38 (1987)).

115 Gabcikovo-Nagymaros Project, supra note 101, at 55-56.

116 Jules Lobel, The Use of Force to Respond to Terrorist Attacks: The Bombing of Sudan and Afghanistan, 24 YALE J. INT'L L. 537, 555 (1999). Lobel quotes a former U.S. counter-terrorism official as stating that "we [had] just set up the next round of terrorism." Id. See also Wilson, supra note 9, at CRS-15. Wilson notes that any use of force in response to a cyberattack "must be carefully weighed to avoid mistakes in retaliation, or other possible unintended outcomes." Id.

117 Id. at 555-556. Lobel claimed that "the United States government shifted its strategy and focused on law enforcement." Id.

118 Quigley, supra note 62, at 560-561 (quoting Bryan Bender, Poor US Intelligence May Have Led to Sudan Strikes, JANE'S DEFENCE WKLY., Sept. 2, 1998, at 4; Tim Weiner & James Risen, Decision to Strike Factory in Sudan Based on Surmise Inferred from Evidence, N.Y. TIMES, Sept. 21, 1998, at A1)).
 
119 Id. at 560.

120 Id. at 561. The United States never formally acknowledged error. Id.

121 Mary Ellen O'Connell, Lawful Self-Defense to Terrorism, 63 U. PITT. L. REV.  889, 889 (2002). [hereinafter O'Connell, Lawful Self-Defense]

122 Id.

123 Id. at 899.

124 Official Count of Sept. 11 Victims, People's Daily, Feb. 26, 2002, available at http://english.peopledaily.com.cn/200202/26/eng20020226_91008.shtml. The official count of victims from the September 11 attacks totaled 3,071 dead. See also Lucien J. Dhooge, A Previously Unimaginable Risk Potential: September 11 and the Insurance Industry, 40 AM. BUS. L. J. 687 (2003). The estimates for the financial impact from September 11 vary from $30 billion to $90 billion. Id.
125 O'Connell, Lawful Self-Defense, supra note 121, at 899-890.

126 Id. at 899.

127 Id.
 
128 Id.

129 O'Connell, Lawful Self-Defense, supra note 121, at 901.

130 Id. at 902. The author notes that there was very little criticism towards the United States and United Kingdom for linking the Taliban to al Qaeda. Id.

131 Id. at 890.
132 O'Connell, Lawful Self-Defense, supra note 121, at 904.

133 Lecture, supra note 70, at 368.

134 Sapiro, supra note 14, at 603.

135 Id. at 602.

136 Id.
 
137 O'Connell, Lawful Self-Defense, supra note 121, at 899.

138 Address to the Nation on Iraq, Mar. 17, 2003, 39 WEEKLY COMP. PRES. DOC. 338, 340 (Mar. 24, 2003).

139 O'Connell, Lawful Self-Defense, supra note 121, at 899-890.

140 Sapiro, supra note 14, at 603.

141 O'Connell, Lawful Self-Defense, supra note 121, at 899.

142 Sapiro, supra note 14, at 603.

143 Id.

144 O'Connell, Lawful Self-Defense, supra note 121, at 890.

145 Sapiro, supra note 14, at 603.

146 Id.

147 Id. Sapiro analyzes whether the Bush doctrine can be defended on other grounds. Id.

148 O'Connell, American Exceptionalism, supra note 62, at 54. O'Connell notes that the Reagan and Clinton administrations also advocated an "exceptionalist" view, but the current administration has taken it even farther by seeing "no need to offer explanations...[or to show that] it has acted consistently with the principles of the [international] community." Id. at 43. See also Harold Hongju Koh, On American Exceptionalism, 55 STAN. L. REV. 1479, 1501-1502 (2003) (distinguishing between "good exceptionalism" and "bad exceptionalism").

149 Mary Ellen O'Connell, The American Society of International Law Presidential Task Force on Terrorism, The Myth of Pre-emptive Self-Defense, at 19 (2002) available at http://www.asil.org/taskforce/oconnell.pdf. [hereinafter O'Connell, Pre-emptive Self-Defense]

150 Id. (citing Helmut Steinberger, Sovereignty, in 4 ENCYCLOPEDIA OF PUBLIC INTERNATIONAL LAW 397, 412 (Rudolf Bernhardt ed., 1984) for the proposition that "[s]tates enjoy an equal juridical status under international law"; U.N. Charter Art. 2(1): "The Organization is based on the principle of the sovereign equality of all its Members."). Id. at 19, n.96.

151 See Koh, supra note 148, at 1501-1502.
 
152 Id. at 1479.

153 Id. at 1527.

154 O'Connell, American Exceptionalism, supra note 142, at 43. O'Connell notes that Reagan Administration officials, Jeanne Kirkpatrick and Allen Gerson, and Clinton Administration officials, Madeleine Albright and William Cohen, advocated exceptionalist views. Id.

155 Professor O'Connell argues that United States acknowledgment of the international constraints on force "support[s] U.S. security and American values" by restraining other states' anarchic behavior and upholding the fundamental American value of respect for "prevailing legal principle[s]." O'Connell, Pre-emptive Self-Defense, supra note 149, at 16.

156 See Quigley, supra note 62, at 558-560.

157 Id. at 559.
158 Id.

159 Id.

160 Quigley, supra note 62, at 559. Israel's U.N. representative reported that "Egyptian forces engaged us by air and land, bombarding the [Israeli] villages of Kissufim, Nahal-Oz and Ein Hashelosha," and that further "approaching Egyptian aircraft appeared on our radar screens." Id.
 
161 Id. at 560-561.

162 Id. at 560. Quigley notes that such examples of potential abuse "reflect the serious danger to international order posed by a reading of self-defense that allows it to be invoked. . . [where] the attack being defended is not obvious." Id. at 561.

163 Quigley, supra note 62, at 560-561.

164 Wilson, supra note 9, at CRS-18. Wilson notes the dangers involved in identifying the source of a cyberattack when the network may have been used by the guilty party as a diversionary tactic, thus implicating an innocent. Id.

165 Graham, supra note 8, at A01.

166 Wilson, supra note 9, at CRS-16. Wilson outlines the dangers of offensive cyberwarfare and notes that "the use of cyber weapons, if the effects are widespread and severe, could arguably exceed. . . the international laws of war." Id.

167 Wilson, supra note 9, at CRS-16.

168 Graham, supra note 8, at A01. See also Mark R. Shulman, Discrimination in the Laws of Information Warfare, 37 COLUM. J. TRANSNAT'L L. 939, 952 (1999). Schulman acknowledges the potential dangers of information warfare and his primary concern is with the potential for an armed response endangering civilians. Shulman endorses only shutting down (either temporarily or permanently) the computer system believed to be generating the original attack. Id.

169 Graham, supra note 8, at A01.

170 Id.
 
171 See Koh, supra note 148, at 1487. Koh notes that the United States then "finds itself co-opted into either condoning or defending other countries' human rights abuses, even when it previously criticized them." Id.

172 Id. Koh states that by loss of moral authority, the United States weakens its "power to persuade through principle, a critical element of American 'soft power'". Id.

173 See Koh, supra note 148, at 1487. Koh notes that such an erosion is ironic as this is "precisely the moment when...[the United States] needs those rules to serve its own national purposes." Id.

174 See supra text accompanying note 1.

175 Gregory J. Rattray, The Cyberterrorism Threat, in The TERRORISM THREAT AND U.S. GOVERNMENT RESPONSE: OPERATIONAL AND ORGANIZATIONAL FACTORS 82 (James M. Smith & William C. Thomas eds., 2001), at http://www.usafa.af.mil/inss/terrorism.htm. Rattray notes that "[m]uch of the current hype about cyberterrorism is built on fear of the unknown...[and] our nation must remain alert, learn, and invest [resources] wisely." Id.

176 Gardner, supra note 20, at 588. Professor Gardner draws an analogy between the National Security Strategy and Justice Jackson's warning regarding Supreme Court validation of an unconstitutional military order: "The principle then lies about like a loaded weapon ready for the hand of any authority that can bring forward a plausible claim of urgent need." Korematsu v. United States, 323 U.S. 214, 246 (1944). See also O'Connell, Pre-emptive Self Defense, supra note 149, at 19(O'Connell similarly compares United States' creation of precedent through the practice of anticipatory self-defense to a "loaded gun, for other states to use as well.")

177 Henry A. Kissinger, Consult and Control: Bywords for Battling the New Enemy, WASH. POST, Sept. 16, 2002, at A19.

178 Id. Professor Gardner ironically notes that Kissinger is "not known for his dedication to international law." Gardner, supra note 20, at 588.

179 Kissinger, supra note 177. See also Koh, supra note 148, at 1479. Koh urges the United states to follow "norm-based internationalism" and "respond to crisis not with power alone, but with power coupled with principle." Id. at 1527.

180 Gardner, supra note 20, at 588. Professor Gardner notes that the implications of evolving the Bush doctrine into a "legal principle of general application. . . are so ominous as to justify universal condemnation." Id. Gardner urges "modest reinterpretations of the law concerning the use of armed force. . . that stop short of opening a 'Pandora's box' as the drastic formulation of a right of preventive war would do." Id. at 589.