There are few remaining obstacles to the U.S. military using offensive cyber operations at home against the president’s domestic “enemies.”
Sometime soon, President Trump might order military forces to conduct offensive cyber operations on U.S. domestic networks against those he has declared enemies. If this were to happen, he would face few legal or procedural roadblocks.
The legal analysis is neither straightforward nor simple, but the ultimate consequence will be one of the following: Either the currently understood limits on deploying troops within the United States constrain domestic military activity or they don’t.
If it is legal to deploy the 10th Mountain Division to the border to deal with an “invasion” or “insurrection”—or the 82nd Airborne to the streets of Washington, D.C., as nearly happened in 2020—there are few barriers to ordering U.S. Cyber Command to spy on or disrupt domestic networks against whatever domestic enemies a president might declare.
The Pentagon has already confirmed it is using offensive cyber operations against drug traffickers and human smugglers at the southern U.S. border. According to Defense Secretary Pete Hegseth’s chief cyber adviser, the Pentagon is “actively working to disrupt these networks, intercept their communications and dismantle their digital infrastructure.” To help stop this presidentially declared “invasion,” it would not be a major legal or operational step to order further military Title 10 cyber operations to disrupt the communications of those criminal organizations operating on the U.S. side of the border, or nongovernmental organizations or individuals harboring immigrants within the United States. Such digital effects are less publicly visible and thus less likely to generate protest than paratroopers marching through the streets in riot gear.
Pundits and legal experts will rightly detail all sorts of legal complexities. Little of that may matter. The administration has repeatedly shown it does not care about legal quibbles, and commanders who decide to not follow orders and wait for legal clarity would do so with the clear expectation of being fired for second-guessing the commander in chief.
Legal Analysis
In Lawfare, Chris Mirsola recently summarized the current facts and legal analysis of President Trump’s use of the military to deal with declared national emergencies.
In short, the executive order “Clarifying the Military’s Role in Protecting the Territorial Integrity of the United States” declares a national emergency along the southern border and orders U.S. Northern Command to “seal the borders and maintain the sovereignty, territorial integrity, and security of the United States by repelling forms of invasion” and assess “all available options” to do so. This is relatively well precedented and legal.
A companion executive order tasks the Departments of Homeland Security and Defense to recommend whether to invoke the Insurrection Act of 1807, authorizing the military to enforce federal law when “unlawful obstructions, combinations, or assemblages, or rebellion against the authority of the United States, make it impracticable to enforce the laws of the United States in any state by the ordinary course of judicial proceedings.”
According to the Congressional Research Service, the section that authorizes the president to use armed force to suppress any “insurrection, domestic violence, unlawful combination, or conspiracy” “does not require the request or even the permission of the governor of the affected state,” just a “proclamation, immediately order[ing] the insurgents to disperse.” There is no time limit, authorizing presidential action for, say, 90 days, to be followed by a requirement of seeking congressional approval.
Presidents have used this authority to put down a military plot by Aaron Burr, invade the Confederacy to unite the nation, and suppress riots in Los Angeles. Though categorically different, President Trump now seeks to fight an “invasion” of immigrants. At a later time, he might seek to identify political opponents, no longer “enemies of the people” just in name but as insurrectionists—even if only in one person’s opinion.
Cyber Options
How might the Department of Defense and U.S. Northern Command respond to these tasks and authorities in the cyber domain, either for the “invasion” or in the future?
Five options might present themselves, in order from merely worrying to the outright tyrannical. All are legally complex but the Trump administration might brute force its way through subtleties.
First, cyber forces could be ordered to actively monitor networks of the Department of Defense and U.S. government to sniff out perceived opposition to the president’s agenda, such as slow-rolling the roundup of immigrants or simply showing support for diversity, equity, and inclusion initiatives. Congress has granted department chief information officers broad authority to monitor their own networks, and it has long been the case that an employee’s protected First Amendment activities should occur on their own time. Nearly any content transmitted on the federal network is fair game for review.
Second, National Guard cyber forces might be activated by their governors, possibly under White House pressure and even coordination, to monitor or disrupt networks and communications to track immigrant smuggling networks and immigrants at the southern border.
Two traditional breaks to such activities, the Posse Comitatus Act and Executive Order 12333, might be bypassed. Posse Comitatus normally restricts the use of the military for domestic policing, but it does not apply to National Guard forces operating under the orders of governors. Executive Order 12333 imposes limits on intelligence collection in the United States. But those limits were imposed by past presidents and could be rescinded by another. There are other limitations, such as the Foreign Intelligence Surveillance Act (FISA), which may not apply for declared domestic enemies or during an invasion.
Third, it is possible that active-duty cyber forces from U.S. Cyber Command would be ordered to support U.S. Northern Command for the same purpose: monitoring and disruption of immigrant-related electronic networks and communications—not just south of the border as they are currently doing, but north of it as well.
If immigrants and their supporters are enemies engaged in an invasion, as the president has declared, then military operations to spy on and disrupt those networks could be conducted under warfighting Title 10 authorities (and possibly under the Insurrection Act, should that be invoked by the administration). Either would bypass Posse Comitatus and other limitations like FISA, which applies only to intelligence operations conducted under Title 50 authorities.
Fourth, either the National Guard or U.S. Cyber Command could be authorized to conduct cyber operations to stop the invasion not just at the southern border, but anywhere within 100 miles of any external U.S border. This expanded geographic authority is reported to underlie the recent tasking of the National Reconnaissance Office and the National Geospatial-Intelligence Agency to assist in border control.
Within that 100-mile zone, the Supreme Court has ruled that the government holds relatively extraordinary powers of search and seizure, bypassing many protections of the Fourth Amendment. This 100-mile zone includes all borders, including maritime, and encompasses many Americans nowhere near a land boundary, such as San Francisco or New York City. Indeed, two-thirds of Americans live in that zone. While other laws, such as FISA, might not have the same 100-mile carve-out, government lawyers would likely argue that any limitations would not matter during an invasion or insurrection.
To be clear, this activity would come with legal ambiguity. No court has ever ruled on whether other statutory limitations, such as FISA and the Electronic Communications Privacy Act apply to military actors operating under wartime Title 10 authorities to combat an invasion or insurrection within the borders. We suspect, strongly, however, that the Trump administration would have little hesitancy in arguing that the limits do not apply—and that resolution of that assertion in the courts would occur sometime after the administration attempted to implement its views on the ground.
And fifth, either the National Guard, if federalized, or the Cyber National Mission Force could be deployed against any declared enemies, such as protesters or political opponents, pursuant to the president’s invocation of the Insurrection Act. The military oath is to “support and defend against all enemies, foreign and domestic,” and in the Insurrection Act, Congress delegated to presidents the authority to declare those enemies without restrictions or even explanations. It is far from clear that the act is so sweeping, but the executive branch has had relative indifference to legal custom and judicial orders, especially on immigration and the border. Once again, we anticipate the possibility that the Trump administration would press ahead, leaving open the question of when and how those demands might be resolved.
This unlimited authority to define enemies and declare an invasion is, of course, at the core of several current disputes before the courts. But should the decisions in those cases ultimately advance presidential authority, it would not be limited to kinetic assistance—it would also, by extension, authorize digital action by American cyber warriors.
A real outside possibility would be using the extraordinary authorities of Section 606 of the Communications Act. These would not be cyber operations but could have the same impact, such as ordering telecommunications companies to disconnect from countries that do not accept deportees or surrender portions of their sovereign territory. Simply with a proclamation of “public peril,” this act allows the president to “suspend or amend, for such time as he may see fit, the rules and regulations applicable to any or all stations or devices capable of emitting electromagnetic radiations within the jurisdiction of the United States.” The First Amendment should, normally, limit much of the impact within the United States. For example, the president could not order offline, say, Harvard University. But those restrictions would not apply similarly to targets overseas.
Normally, this would be exceptionally unlikely, but the U.S. Postal Service has already temporarily stopped incoming packages from China. Given the extraordinary nature of some of Trump’s claimed authorities, even greater extensions of the principle are no longer unthinkable.
Nor is there much comfort in the possibility that these orders are likely to be found to be illegal. The Supreme Court has granted presidents immunity from liability for such “official” acts as ordering the military to spy on and disrupt the communications of political opponents. Trump will pay no personal price for his adventurism.
Those in the military following his orders are not similarly shielded.
Will the Military Follow Orders?
Orders to the military to conduct domestic offensive cyber operations would be “awful but lawful”—Trump’s lawyers would likely assert that they are presumptively legal, rooted in long-standing congressional authorities, though used in novel ways. And as demonstrated by the seemingly arbitrary and capricious firing of Gen. Timothy Haugh, the commander of U.S. Cyber Command and director of the National Security Agency, apparently for not being quite loyal enough, Trump’s administration would not hesitate to summarily (or anticipatorily) replace those who might delay implementation by waiting for a legal ruling.
The assessment of Peter Feaver and Heidi Urben, two scholars of civil-military affairs, is instructive here. In the analogous situation of immigration enforcement, if the president ordered the military to round up immigrants, “the U.S. military would be obligated to follow the order unless the courts intervened decisively.” They continue:
Even though the military is obligated to disobey an unlawful order, it is easier said than done … Any commander would probably want reassurance from legal authorities that the order is indeed invalid before refusing to follow it, but he could receive contrary legal guidance from general counsels at the White House and the Department of Defense. If one office says the order is legal and the other disagrees, military officials might opt to follow the legal advice they prefer. If that advice rubs against the president’s wishes, a civil-military crisis may emerge.
The main, perhaps only, defense against potentially unlawful orders is for citizens to hope that cyber commanders refuse to authorize electronic spying on their fellow citizens. Many senior military leaders might question such orders, seeking guidance and counsel as to their obligations. There will be legal issues, technical problems, and more. But as Feaver and Urben conclude, the president is, in the end, the commander in chief:
A determined president could replace an officer who defied an order with one more pliable, or even fire officers en masse until he found someone unscrupulous enough to carry out the unlawful act. Although military officers understand that they must resist unlawful orders, they would do so at considerable personal risk.
The new administration has been clear that this president is indeed determined to root out those in the “deep state” who would resist orders. Commanders cannot doubt, after the firing of Gen. Haugh (as well as the chairman of the Joint Chiefs, the judge advocates, and the chief of naval operations), that loyalty is being measured and that perceived obstruction could mean the end of their careers.
When combat elements of the 82nd Airborne Division were sent to Washington D.C., in 2020, they never deployed to the streets. President Trump was eventually “dissuaded” from committing them by Gen. Mark Milley, then the chairman of the Joint Chiefs of Staff, and Attorney General William Barr. This time around, there will be no cooler heads in the White House to prevail.
Depending on the personal bravery of officers to refuse orders of their chain of command is no way to run a democracy.
In a wiser world, Congress would have reformed the Insurrection Act in advance of this looming constitutional crisis. But it did not.
And so, the only realistic answer here is the vigilance of citizens. Americans must ceaselessly watch the watchers and call them to account when they are asked to do unreasonable things. It is insufficient to the moment—but merely by acknowledging and cataloging the possibilities, we hope we have contributed to the effort to restore the rule of law.
– Jason Healey, Paul Rosenzweig, Published courtesy of Lawfare.
