Legal Considerations of Online PSYOP - Stay Golden

...thought the whole premise of the article below was kinda quaint -- Legal Considerations of Online PSYOP. Haven't they heard that per recent precedent, USG only needs a lackey staff attorney to craft a reliance memo declaring whatever you want to do to be legal. Stay within the four corners of the dodgy opinion and you are golden.

From "An Ever-Expanding War: Legal Aspects of Online Strategic Communication” by Daniel Silverberg and Joseph Heimann [PARAMETERS -- US Army War College Quarterly -- Summer 2009][17-page pdf]:

The thrust of the IIA [Interactive Internet Activities] policy rests in a delegation of authority from the Deputy Secretary of Defense to the Geographic Combatant Command­ers (and Commander, US Special Operations Command [USSOCOM] when designated as the supported commander) to approve IIA “in sup­port of their operations and public affairs activities.” The significance of this delegation cannot be overstated. Contrary to two decades of practice, the delegation empowers commanders to conduct information operations at their discretion. Previously they had to seek senior-level Department approval. In essence, this means that a Combatant Commander who wishes to blog on an Arab Web site or exchange e-mails with a Muslim commentator may do so without additional approval.

[...]

[T]he IIA guidance autho­rizes “actions that shape emotions, motives, reasoning, and behaviors of selected foreign entities.” This phrasing is curious for two reasons.

First, the language is nearly identical to the definition of PSYOP, ex­cept for use of the term “shape” instead of “influence.” Second, contrary to the limitation of media contact to “public affairs personnel,” the pol­icy does not say who may implement communications that shape emo­tions and behaviors on behalf of the Geographic Combatant Commander (GCC). In fact, the policy is silent regarding those most likely to use IIA methods—PSYOP forces—whose historical mission is to influence for­eign audiences via information operations and whose training involves “motivating” behavior and “shaping” emotions. Although the policy would allow PSYOP forces to add IIA to their list of authorized means of disseminating messages to shape a battlespace, it also potentially al­lows other personnel—public affairs practitioners and others—to engage in activities traditionally performed by PSYOP specialists.

The ambiguity regarding who will conduct these shaping activi­ties is legally significant for the following reason: Once one amalgamates the public affairs mission to “inform” with the PSYOP mission to “influ­ence,” the statutory basis to conduct the activity becomes increasingly dubious. A DOD agenda to “shape emotions” may well overlap with the State Department mission to counter propaganda; both programs involve commu­nicating with foreign audiences in order to positively shape their views of the United States. Once DOD separates IIA from psychological operations and removes a requirement that Internet communication be linked to a specific military mission conducted by PSYOP forces, DOD undermines the very authority it has to conduct such activities, Title 10, section 167. Absent the statutory authority of Title 10, the policy itself simply purports to authorize influence operations that are the equivalent of a State Department function.

[...]

The policy contains four primary limitations.

First, it requires that all IIA conducted under its authority “will be accurate and true in fact and intent.”

Second, the policy provides that a Geographic Combatant Commander will coordinate IIA with the US ambassador, as appropriate. This caveat could be interpreted in a number of ways. The phrase “as appropriate” possibly means that coordination is necessary only when the GCC assesses that it is. It might also mean that a commander has to coordinate with each ambassador who is ac­credited to a nation impacted by the IIA. If one pursues the latter interpretation, the limitation potentially causes conflict with existing military programs. Legal­ly, a commander assigned a mission from the President or Secretary of Defense to execute a military operation abroad has no obligation to seek the approval of, or even coordinate with, an ambassador. The GCC decides the limits of the mis­sion to “defend the United States” and the times when it is “appropriate” to con­sult with the ambassador regarding how the commander attempts to fulfill the mission (in fact, coordination does occur as a matter of prudence and good prac­tice). A requirement to coordinate with the US ambassador thus imposes a re­striction on commanders that does not exist in traditional military missions.

Third, the policy has an “attribution” provision. Read in conjunc­tion with the statutory provision restricting DOD’s conduct of covert operations, this section simply states a preference for US involvement in IIA to be “openly acknowledged.” The policy offers commanders two ex­ceptions. First, it permits a commander to attribute his or her IIA activities to a “concurring partner nation” if the partner nation and the US chief of mission agree. Second, the policy grants permission to disseminate infor­mation via IIA without “clear attribution” in support of a named operation in the Global War on Terrorism or when specified in a Secretary of Defense-approved Execute Order when attribution is not possible due to “operational considerations.” The policy stipulates that a commander will disclose US attribution “as soon as operationally feasible.” Because a named operation may be geographically broad or nonkinetic, this limitation could empower com­manders to engage in clandestine IIA across a wide geographic area. This lim­itation offers no guidance on where the State Department’s or even possibly the Central Intelligence Agency’s role and authorities intersect with DOD’s in conducting influence operations via the Internet.

Finally, the policy expressly provides that commanders may not delegate the authority granted in the policy. This limitation simply affects who may direct the mechanisms used, and it has no bearing on the under­lying substance of the activity.

The IIA policy grants broad authority to GCCs to use IIA in support of their missions. By not specifying who may engage in “shaping operations” or limiting the geographic scope of such activities, the policy in essence estab­lishes a hybrid PSYOP-public affairs model. The activity is, at a minimum, one of publicity, and likely one of propaganda. Yet the personnel engaging in operations to “shape” the emotions and motives of foreign audiences might not necessarily be PSYOP specialists, and the underlying mission itself—to “shape a security environment”—has little definition.