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the US government will not be apparent or acknowledged publicly.[228] This can cover a wide range of activities in foreign countries, including political advice to foreign persons or organizations, financial support and assistance to foreign political parties, propaganda, and paramilitary operations designed to overthrow foreign regimes or capture and detain operations against foreign terrorists. Covert action does not include “activities the primary purpose of which is to acquire intelligence, traditional counterintelligence activities, traditional activities to improve or maintain the operational security of United States Government programs, or administrative activities.”[229] Traditional military activities are also excluded from the scope of covert action.[230]

Covert action is conducted in support of US foreign policy objectives, as well as when the president has determined that the use of covert action is necessary for US national security. It is done on the assumption that the link between the activities and the US government can be kept secret. Executive Order 12333 makes the CIA the lead—though not exclusive—agency with authority for covert actions.[231] If the president determines that another agency, for example the NSA, is better suited to achieve a particular operational objective, he may direct that agency to conduct the covert action. No matter which government agency is responsible for its planning and execution, however, the legal definition of that term applies equally to those elements of the US government. Covert cyber actions could be of two general types: (1) propaganda and disinformation that would come under psychological operations; and (2) actions to paralyze the computer networks of target countries or nonstate actors supporting the critical elements of the target country.

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[215] This is a guest chapter by my friend and colleague, Professor Catherine Lotrionte, Visiting Assistant Professor and Executive Director, Institute for Law, Science and Global Security, Georgetown University. In my opinion, Professor Lotrionte’s work in her field of international law and global security is among the very best in the world today.

[216] US Department of Defense, “Department of Defense Strategy for Operating in Cyberspace,” July 2011. (“Active cyber defense is DoD’s synchronized, real-time capability to discover, detect, analyze, and mitigate threats and vulnerabilities. It builds on traditional approaches of defending DoD networks and systems, supplementing best practices with new operating concepts. It operates at network speed using sensors, software, and intelligence to detect and stop malicious activity before it can affect DoD networks and systems. As intrusions may not always be stopped at the network boundary, DoD will continue to operate and improve upon its advanced sensors to detect, discover, map, and mitigate malicious activity on DoD networks.”)

[217] National Research Council, Technology, Policy, Law, and Ethics Regarding US Acquisition and Use of Cyberattack Capabilities, 10–11 (2009), pp. 2–46.

[218] Martin C. Libicki, Cyberdeterrence and Cyberwar (Rand Publishing), p. 39; Greg J. Rattray, Strategic Warfare in Cyberspace (MIT Press), p. 77.

[219] Christopher M. Petras, “The use of force in response to cyber-attack on commercial space systems—reexamining ‘self-defense’ in outer space in light of the convergence of US military and commercial space activities,” Journal of Air Law and Commerce 67, no. 4 (Fall 2002): 1213–1263, 1224.

[220] Maura Conway, “Terrorism and the Internet: New Media—New Threat,” Parliamentary Affairs 59(2) (2006): 283–298, 295.

[221] The White House, Fact Sheet On National Space Policy Review, National Security Presidential Directive/NSPD-15, June 28, 2002, p. 1.

[222] US Department of Defense, Department of Defense Directive 3100.10, Space Policy, July 9, 1999, pp. 6–7. This document may be found at the Washington Headquarters Services website at http://www.dtic.mil/whs/directives.

[223] US Department of Defense, 2010 Quadrennial Defense Review,