Obama Authorizes Penalties For Foreign Cyber Attackers

An anonymous reader writes President Barack Obama has today signed an executive order extending the U.S. administration's power to respond to malicious cyberattacks and espionage campaigns. The order enforces financial sanctions on foreign hackers who action attacks against American businesses, institutions and citizens. It will enable the secretary of the Treasury, along with the attorney general and secretary of State, to inflict penalties on cyber criminals behind hacking attacks which "create a significant threat to U.S. national security, foreign policy or economic health or financial stability of the United States," Obama said. Sanctions could include freezing of assets or a total ban on commercial trade.

Comments

Please, no more!

[Anonymous Coward]

I'm tired of these April Fool's articles!

Re:Please, no more!

[ScentCone]

This is apparantely not a joke ... it is from the whitehouse.gov website

Well which is it?

How can foreigners be charged under US law?

[Anonymous Coward]

This is ridiculous. Law is part of the agreement between citizens and their government. Citizens get certain benefits like public education and healthcare, and in return must pay the government taxes and obey their laws. If the citizen disagrees with this, he can resign his citizenship, but by doing so loses the benefits of citizenship as well.

Foreigners, on the other hand, have no such agreement, and therefore it's ridiculous to charge them. What's next, Saudi Arabia charges me for having a beer tonight? North Korea charges me for criticizing their regime? Should I serious have to look up every single country's law before I do something, just to make sure I'm not breaking some obscure country's law?

Re:How can foreigners be charged under US law?

[Dutch Gun]

Should I serious have to look up every single country's law before I do something, just to make sure I'm not breaking some obscure country's law?

Yeah, you should probably check a country's laws before you electronically infiltrate their corporations, banking system, or military computers. This isn't about citizens in other countries simply minding their own business. For those that are wondering how foreigners can be charged with US law, look up "extradition treaty". For those with whom we haven't signed such a treaty, look up "financial sanctions" or "asset forfeiture".

How purposefully obtuse do you have to be not to get this?

Re:How can foreigners be charged under US law?

[NicBenjamin]

This is ridiculous. Law is part of the agreement between citizens and their government. Citizens get certain benefits like public education and healthcare, and in return must pay the government taxes and obey their laws. If the citizen disagrees with this, he can resign his citizenship, but by doing so loses the benefits of citizenship as well.

Foreigners, on the other hand, have no such agreement, and therefore it's ridiculous to charge them. What's next, Saudi Arabia charges me for having a beer tonight? North Korea charges me for criticizing their regime? Should I serious have to look up every single country's law before I do something, just to make sure I'm not breaking some obscure country's law?

He's not charging them. He's not arresting them. He's got multiple sets of powers, and he isn't using the law enforcement one here because there is no actual statute passed by Congress to deal with the problem.

He's using his military powers, which are incredibly broad because the Founders really did not want Congress and the Supreme Court to stop expeditions against Tecumseh-types on any basis whatsoever. He has an enemy that is partly military (China's cyber-ops unit is in the military), so he's probably good as long as he doesn't start abusing the law.

Re:How can foreigners be charged under US law?

[NicBenjamin]

Ever been in the military? Nothing involves more administrative procedures then military action. Even during our Civil War there were formal procedures to determine precisely what you were allowed to do to that dude on the gray coat.

As for your claims about statutory basis, I fully understand that Americans have this broad-based-delusion that Congress has a significant say over what the military actually does beyond a) the budget, and b) officer promotions; but there is simply no Constitutional basis for that claim. There's statutory basis, but the basis is generally "Congress pitched a huge hissy fit when President Jefferson used his powers to unilaterally invade the Barbary Pirates so he went along with it when they proposed a retroactive statute to authorize the operation." Then you get case law based on the resulting hissy-fit statutes, but here's the key thing:
Nobody ever claimed that anybody had the legal Power to Order the Fleet back into port after Jefferson sent them to Libya solely on his say-so. Nobody tried to make the legal case Nixon couldn't bomb Cambodia stand up in Court. The hissy-fit statutes like the War Powers Act are legitimate to the extent they are used by Congress to explain what, precisely, it intends to fund when it funds the military. They are clearly not legitimate to the extent that they could actually be used against a President in a Court of Law.

What's going on in this case is simple: it's established that Commanders-in-Chief can freeze the bank accounts of enemies of the US. This did require a statute, the PATRIOT Act, because it would not have been in the toolbox of an 18th-century monarch or George Washington. But now that it's established, and it's widely considered to have been a useful military tool against Al Qaeda, the administration can use it against anyone it thinks is a military opponent. Congress will bitch, because they always bitch.

But that doesn't mean PLA Col. Wu's attempt to get his bank account bank will actually work.

Another puff of hot air from our Obama-in-chief

[American Patent Guy]

Obama has no authority to impose sanctions on anybody for these acts, unless (1) Congress passes a law that says he does or (2) a foreign country says he does, creating jurisdiction. Neither has happened.

Obama said "From now on, we have the power to freeze their assets, make it harder for them to do business with U.S. companies, and limit their ability to profit from their misdeeds" in the making (apparently) of an executive order. If the power existed, it existed prior to Mr. Obama's order because it was authorized by 1 or 2 above. Mr. Obama's declarations of power are worthy of the bottom of my birdcage.

This idiot of a reporter at The Stack dot com thinks that an executive order is "legislation". Someone should inform her that legislation almost always appears in the U.S. Code, not in some press release on the White House Blog. I can't wait for this administration to try to enforce these sanctions: they're going to get tossed out of court on their rear ends if they try.

Re:Another puff of hot air from our Obama-in-chief

[NicBenjamin]

That is the least relevant statute on the books.

Why?

Because the Founders clearly didn't want Congress to have any say over day-to-day military operations. They explicitly designed the President's powers to totally pre-empt any Congressional claim to such control. Their reasoning was quite simple: in 1789 there was no telegraph, so a message to Congress asking for authorization to deal with a Spanish Governor who was trying to eat a little bit of Georgia would not be dealt with by Congress until everyone was already dead. The local garrison commander had to have the ability to order his forces into combat without Congressional authorization. Since he gets his legal authority from the President, that means the President also has to have the authority to authorize small-scale military operations without asking Congress.

Congress's checks on the local Army commander's authority were the facts that a) Congress could eliminate his regiment in the next budget, which would fire him, and b) since all military officer-level jobs are Congressionally confirmed they could also refuse to let him have another job.

The Declaration of War clause doesn't actually justify give Congress much power over anything but a Total War we start, and couldn't apply here because if the Chinese are attacking us we get to attack them back. They have started the War.

The "Necessary and proper" clause, combined with the changes in technology that have made Congressional control possible, would a good enough rationalization for a sane Supreme Court. But we do not live in a world where the Supreme Court is sane. We live in a world where the Supreme Court is dominated by textual Federalists who think the solution to this problem is to go through the Amendment process.