An Ever-Expanding War: Legal Aspects of Online Strategic Communication


Professional Writing image
Staff Sgt. Michael Cruz, of Cortland, N.Y., stands along the bank of the Pech River during a patrol through the streets of Asadabad city in Kunar province, Afghanistan, Aug. 19. Cruz is deployed with the 1st Battalion, 32nd Infantry Regiment, 3rd Bri... (Photo Credit: U.S. Army) VIEW ORIGINAL

Nearly eight years after 9/11, senior US leadership is redefining the Aca,!A"war on terrorismAca,!A? as a global counterinsurgency effort, one that requires both kinetic force and indirect, Aca,!A"smart powerAca,!A? collaboration by civilian agencies. Aca,!A"The Department of Defense has taken on many of these burdens that might have been assumed by civilian agencies in the past,Aca,!A? said Secretary of Defense Robert Gates. Aca,!A"Forced by circumstances, our brave men and women in uniform have stepped up to the task, with field artillerymen and tankers building schools and mentoring city councilsAca,!"usually in a language they donAca,!a,,ct speak . . . . But it is no replacement for the real thing, civilian involvement and expertise.Aca,!A?

Although the requirement for interagency cooperation is a near-truism of US national security policy today, finding the appropriate role for the Department of Defense (DOD) remains a key challenge. This article examines one aspect of activities that potentially overlap with other government departments, DODAca,!a,,cs growing involvement in the Aca,!A"battle of ideas.Aca,!A?

DODAca,!a,,cs expansion into missions traditionally performed by civilian agencies. A small but critical example of this growth involves DODAca,!a,,cs efforts to use the Internet to Aca,!A"craft a positive perceptionAca,!A? abroad, while attacking the ideological underpinnings of terrorism. In mid-2007, the Department of Defense issued policies authorizing commanders to engage foreign audiences via online interactive methods, such as texting, blogging, e-mail, and regionally focused Web sites.

The guidance was in direct response to long-standing complaints from the ten regional and functional Combatant Commanders that a terrorist could post videos of a beheading or other form of extremist propaganda, unhindered by policy considerations, whereas US commanders had to navigate Aca,!A"legalAca,!A? hurdles to get psychological operations (PSYOP) videos and themes approved.

A key issue is whether these online activities, while critical to overall American strategic communication efforts, are properly characterized as Aca,!A"military missions,Aca,!A? that make use of DOD funding. DODAca,!a,,cs communication activities are increasingly separated in time and space from a kinetic mission; are directed at broad, cross-regional audiences; and, on their face, appear more like a public diplomacy campaign than a military program.

It would be unfair to fault DOD for its involvement in such hybrid activities. The Department is arguably filling a need where resource-strapped civilian agencies might be falling short. PSYOP are a key aspect of counterinsurgency efforts. As former participants in and now observers of DODAca,!a,,cs expanding communication portfolio, the authors are particularly aware of the argument that the US government needs to respond in real time to extremist propaganda in order to thwart violent extremism and lessen the need for military intervention.

Yet DODAca,!a,,cs expansion into the field of interactive communication is troubling on two counts. First, once the Department no longer labels its communication measures as PSYOP, it potentially subverts its own statutory authorities to conduct such programs. The Department has limited authorities to engage foreign audiences, and PSYOP are the principal authorized mechanism to do so. In legal terms, in order to justify the use of appropriated funds, DOD activities are required to support a DOD-specific mission and not conflict with the responsibility of another agency. Once DOD stops calling interactive communication activities PSYOP and undertakes functions similar to those of another department, the Aca,!A"military missionAca,!A? becomes less defined.

Second, DOD may be encroaching upon the Department of StateAca,!a,,cs mission to engage foreign audiences. The two departmentsAca,!a,,c missions, while overlapping, are distinct. DODAca,!a,,cs mission is one of influence; the State DepartmentAca,!a,,cs mission is one of relationship-building and dialogue. The amalgamation of these tasks potentially undermines the State DepartmentAca,!a,,cs efforts. At a minimum, it forces one to ask exactly where does DODAca,!a,,cs mission end.

The concept of a Aca,!A"warAca,!A? on terrorism has been extensively analyzed in the context of detainee affairs. Numerous US Supreme Court cases and academic treatises have evaluated the Bush AdministrationAca,!a,,cs premise that the United States is engaged in an international armed conflict against terrorist organizations and that detainees are enemy combatants subject to the law of armed conflict.9 But labeling the ongoing effort a Aca,!A"global warAca,!A? or even a Aca,!A"worldwide irregular campaignAca,!A? greatly expands the range of activities that can be justified as a Aca,!A"military mission.Aca,!A?10 Using such terminology might be interpreted as grounds for giving DOD a significant role in areas where the efforts of civilian agencies may be more appropriate.

This article outlines the legal authority for the Department of Defense to conduct communication-related functions; examines how the policy for interactive Internet activities creates a potentially problematic hybrid activity; and assesses whether the policy for the Trans-Regional Web InitiativeAca,!"an effort to establish a network of regional Web sitesAca,!"constitutes a tenable DOD mission. The authors conclude that (1) although the authorized activities have potential to be a useful tool in the fight against terrorism, the Department of Defense may need to seek new legal authorities to undertake Internet-based communication; and (2) a conversation needs to take place regarding the degree to which the current configuration should be reworked to protect the missions of both DOD and the State Department and to maximize the efficacy of all US government communication efforts.

Authorized Strategic Communication

The confusion regarding the role and scope of DOD psychological operations in a worldwide irregular campaign stems from a long tradition of ambiguity regarding the relationship between PSYOP, public affairs, and public diplomacy. As a group, these three disciplines are often referred to as Aca,!A"strategic communication.Aca,!A?

The State DepartmentAca,!a,,cs authorities to communicate with foreign audiences are unambiguous and detailed. Among other purposes, including those of the now-defunct US Information Agency, the Secretary of State is statutorily directed to use appropriate media to accomplish the following:

[P]roperly explain the foreign policy of the United States to the governments and populations of such countries . . . counter misinformation and propaganda concerning the United States . . . [and] continue to articulate the importance of freedom, democracy, and human rights as fundamental principles underlying United States foreign policy goals.

In contrast, there is minimal legislative guidance regarding DODAca,!a,,cs authority to conduct information campaigns. Numerous statutes and directives permit the military departments to conduct public affairs, but there are no DOD-focused statutes that define such programs.14 Similarly, Title

10 of the United States Code, section 167 authorizes the Department of

Defense to conduct psychological operations as part of special operations campaigns. But Title 10 does not explain what PSYOP are, nor does it spell out DODAca,!a,,cs authority to engage in PSYOP versus public diplomacy.

The primary regulation governing PSYOP is a 1984 DOD directive, Aca,!A"Overt Psychological Operations Conducted by the Military Services in Peacetime,Aca,!A? but this document provides minimal guidance. The definition of PSYOP in the directive is sufficiently vague to support numerous activities:

Planned operations to convey selected information and indicators to foreign audiences to influence their emotions, motives, objective reasoning, and ultimately the behavior of foreign governments, organizations, groups, and individuals.

As noted by Carnes Lord in his 2006 study, this definition easily could describe a majority of the public diplomacy practices conducted by civilian agencies of the US government, although public diplomacy and public affairs programs never use the term Aca,!A"influenceAca,!A? to characterize their activities.

Among the legislative and regulatory specifications regarding the scope of DODAca,!a,,cs PSYOP authority is the legal requirement that a federal department perform only those missions for which it is authorized and funded. This is based on the fiscal law principle that an agency may not expend dollars unless it has authority to do so.20 The President, as commander-in-chief, may direct the military to act, but the action must fall within an authorized and funded activity. For example, DOD may conduct humanitarian relief operations,21 even though such assistance clearly overlaps the mandate of the US Agency for International Development, because DOD is authorized to do so within the auspices of Title 10.22

DODAca,!a,,cs strategic communication efforts also are limited by a Aca,!A"publicity or propaganda riderAca,!A? inserted annually in the defense appropriation act that prohibits use of funds for publicity or propaganda purposes that are not authorized by Congress.23 In the absence of statutory definitions for PSYOP and public diplomacy, the rider ostensibly limits DOD to conducting publicity or propaganda activities which Congress generally has approvedAca,!"namely traditional PSYOP or other efforts in support of a military mission.

To the extent a commander uses PSYOP to Aca,!A"shape a battlefieldAca,!A? in direct support of a tactical military mission, such a role would likely be unassailable from a legal vantage point. In fact, commanders who fail to use all available means to influence a battle, including preliminary actions to deter enemy forces or prevent civilian support for the enemy, might be considered derelict. But what happens when the use of PSYOP is not tied to a specific mission' Has Congress authorized the use of DOD funds for generalized, theater-level communication efforts'

Is it sufficient to conduct PSYOP under the banner that they support a broad campaign, such as a regional counterterrorism effort, or that they Aca,!A"shape the security environmentAca,!A?' When one eliminates the need for a nexus between communication activities and a specific military mission, such as PSYOP that support troop movement or complement force protection, then PSYOP theoretically can be conducted anywhere, for the broadest of purposes. And that is where DOD is now.

Online Guidance

Confronted by commanders eager to use new media tools to influence foreign populations and a legal landscape marked by an outdated PSYOP directive, then-Deputy Secretary of Defense Gordon England signed two policy memoranda in 2007. The stated purpose of the memoranda is to Aca,!A"provide authority and guidanceAca,!A? for conducting communication through the Internet. The first of these documents, Aca,!A"Policy for Department of Defense (DOD) Interactive Internet Activities,Aca,!A?24 was signed on 8 June 2007, and the second, Aca,!A"Policy for Combatant Command (COCOM) Regional Websites Tailored to Foreign Audiences,Aca,!A? on 3 August 2007.25 The latter policy guidance was promulgated subsequent to a Joint Staff message that had been issued on Much consternation exists in the foreign policy community regarding DODAca,!a,,cs expansion into missions usually performed by civilian agencies.

The memoranda are intended to complement each other.27 The June policy covers interactive Internet activities (IIA), defined as Aca,!A"the use of a system accessible via the Internet which allows for two-way communications, e.g., e mail, blogs, chat rooms, and Internet bulletin boards.Aca,!A?28 In other words, the IIA guidance authorizes methods that enable DOD personnel to personally engage with foreign audiences and respond directly to Internet postings, e-mail, and online statements. In contrast, the August policy applies only to Aca,!A"non-interactive content on Combatant Command regionally oriented Web sites tailored to foreign audiences.Aca,!A? For example, DOD sponsors Web sites such as, a news-like Web site focused on the Maghreb that does not allow for interaction between individuals.

So what is the Aca,!A"authority and guidanceAca,!A? for DODAca,!a,,cs online activities' To the extent possible, where has the Defense Department drawn the line in cyberspace among PSYOP, public affairs, and support for public diplomacy, and is this line legally defensible'

The Interactive Internet Activities Policy

The 8 June IIA guidance might be viewed as fusing PSYOP and public affairs into a generic communication effort Aca,!A"to provide information to the public, shape the security environment, and support military operations.Aca,!A? Interestingly, the policy provides no definitions for these terms, nor does it refer explicitly to PSYOP. Instead, the memo asserts at the outset that IIA are an Aca,!A"essential partAca,!A?of the listed responsibilities, without distinguishing among them.

The thrust of the IIA 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 Aca,!A"in support of their operations and public affairs activities.Aca,!A? 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.

Scope of Activities

In addition to the delegation of authority, the memorandum spells out two categories of activities to which the policy applies: Public affairs activities and Aca,!A"programs, products, and actions that shape emotions, motives, reasoning, and behaviors of selected foreign entities.Aca,!A?

As described in the IIAAca,!a,,cs statement of purpose, public affairs (PA) involves, in part, Aca,!A"provid[ing] information to the public.Aca,!A?34 The guidance includes a key limitation: Only PA personnel may engage in Internet-based exchanges with journalists. The policy specifically requires:

Combatant Commanders and [the Assistant Secretary of Defense for Public Affairs] will ensure that only public affairs personnel engage in interactive Internet activities with journalists employed by media organizations including news Web sites, online bulletin boards, and blog sites affiliated with news organizations.

The policy defines media broadly to include Aca,!A"journalists employed by media organizations including Web sites, online bulletin boards, and blog sites affiliated with news organizationsAca,!A? and those individuals and Web sites that have achieved a status equivalent to an established news organization.36

Theoretically, there should be little controversy regarding the provision of information to the public or media. Although no specific definition for DOD public affairs exists in statute, Congress has not interfered with DODAca,!a,,cs authority to inform the public, foreign and domestic, regarding its activities. From a policy perspective, one would hope that DOD would communicate with foreign media, particularly those in the ever-expanding online arena, to articulate its perspective on events.

Yet the guidance potentially recasts PSYOP-like initiatives as a public affairs activity by authorizing only public affairs personnel to use interactive Internet tools to engage journalists employed by a media organization. The policy restricts who may interact with foreign journalists, but it does not restrict the type of activities in which public affairs personnel may engage. One may presume that public affairs personnel would exclusively employ Aca,!A"public affairsAca,!A? tools, but the guidance is ambiguous. Thus, the policy could be interpreted as permitting public affairs personnel to engage in Aca,!A"shaping emotions, motives, reasoning, and behaviors of selected foreign entitiesAca,!A?Aca,!"the specified purview of PSYOP practitioners.

Under the new authority, a commander may choose to focus on online outlets Aca,!A"that have become news sources for large audiencesAca,!A? to maximize his effort (why pursue communication with a single blogger when a commander can reach a broader audience'). Thus, the policy would permit public affairs personnel to engage in both PA and PSYOP-like affairs.

In addition to public affairs activities, the IIA guidance authorizes Aca,!A"actions that shape emotions, motives, reasoning, and behaviors of selected foreign entities.Aca,!A? This phrasing is curious for two reasons.

First, the language is nearly identical to the definition of PSYOP, except for use of the term Aca,!A"shapeAca,!A? instead of Aca,!A"influence.Aca,!A? Second, contrary to the limitation of media contact to Aca,!A"public affairs personnel,Aca,!A? 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 methodsAca,!"PSYOP forcesAca,!"whose historical mission is to influence foreign audiences via information operations and whose training involves Aca,!A"motivatingAca,!A? behavior and Aca,!A"shapingAca,!A? 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 personnelAca,!"public affairs practitioners and othersAca,!"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 Aca,!A"informAca,!A? with the PSYOP mission to Aca,!A"influence,Aca,!A? the statutory basis to conduct the activity becomes increasingly dubious. A DOD agenda to Aca,!A"shape emotionsAca,!A? 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.

Prior to the policy change, DOD exclusively relied upon PSYOP forces to conduct Aca,!A"influenceAca,!A? operations. It trained PSYOP practitioners to work within long-standing regulatory directives that limited the scope of their activities and required extensive oversight. If PSYOP forces are no longer required for online strategic communication, then the training, capability, and oversight tied to the underlying authority are lost.

But labeling the ongoing effort a Aca,!A"global warAca,!A? or even a Aca,!A"worldwide irregular campaignAca,!A? greatly expands the range of activities that can be justified as a Aca,!A"military mission.Aca,!A?

The blurring of the lines of authority becomes even more acute when a GCC chooses to use contractors to provide IIA support. The new policy expressly permits contractor involvement so long as there is Aca,!A"rigorous US government oversight.Aca,!A?39 Notwithstanding the practical difficulties of providing Aca,!A"oversightAca,!A? to instantaneous interactive communications such as text messaging and blogging, the policy injects a third group into the mix by authorizing nonmilitary, nongovernmental personnel to engage with foreign audiences.

In summary, the IIA policy empowers commanders to engage in cyber activities away from a battlefield, with personnel who might not be trained in Aca,!A"influenceAca,!A? activities. Perhaps this is a positive development, as DOD is primarily seeking to engage civilian audiences using critical, nonkinetic methods of influence. Yet the breadth of authority bestowed on Combatant Commanders to engage in communication activities raises the question of whether a legislative Aca,!A"fixAca,!A? is necessary to fully define DODAca,!a,,cs responsibilities.

Limitations on IIA Policy

The policy contains four primary limitations.40 First, it requires that all

IIA conducted under its authority Aca,!A"will be accurate and true in fact and intent.Aca,!A?

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 Aca,!A"as appropriateAca,!A? 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 Aca,!A"defend the United StatesAca,!A? and the times when it is Aca,!A"appropriateAca,!A? 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 Aca,!A"attributionAca,!A? provision. Read in conjunction with the statutory provision restricting DODAca,!a,,cs conduct of covert operations, this section simply states a preference for US involvement in IIA to be Aca,!A"openly acknowledged.Aca,!A?42 The policy offers commanders two exceptions. First, it permits a commander to attribute his or her IIA activities to a Aca,!A"concurring partner nationAca,!A? if the partner nation and the US chief of mission agree. Second, the policy grants permission to disseminate information via IIA without Aca,!A"clear attributionAca,!A? 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 Aca,!A"operational considerations.Aca,!A? The policy stipulates that a commander will disclose US attribution Aca,!A"as soon as operationally feasible.Aca,!A? 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 DepartmentAca,!a,,cs or even possibly the Central Intelligence AgencyAca,!a,,cs role and authorities intersect with DODAca,!a,,cs 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 Aca,!A"shaping operationsAca,!A? 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 Aca,!A"shapeAca,!A? the emotions and motives of foreign audiences might not necessarily be PSYOP specialists, and the underlying mission itselfAca,!"to Aca,!A"shape a security environmentAca,!A?Aca,!"has little definition.

The Trans-Regional Web Initiative

As part of a campaign to counter terrorist influence, US European Command initiated two Web sites in 2007. That program led to the establishment of the Trans-Regional Web Initiative (TRWI), a USSOCOM-led plan to synchronize all Combatant Command Web sites that are tailored to foreign audiences.43 These Web sites provide news on political happenings, good governance, and other matters of concern to Geographic Combatant Commanders, with the intent of countering hostile propaganda and extremist influence. The TRWI program was approved in a message from the Chairman of the Joint Chiefs of Staff, which also includes policy guidance for the TRWI.

The TRWI message states that the regional Web sites are critical to Aca,!A"shaping [a Combatant CommandAca,!a,,cs] security environmentAca,!A? by enabling commanders to reach out to large audiences:

Web-based operations are an inexpensive and potentially effective method of communicating directly to target audiences with messages shaping the security environment in a Combatant CommandAca,!a,,cs area of responsibility by supporting US interests, the Geographic Combatant Command (GCC) theater security cooperation strategies, the respective country team objectives, and USSOCOM [Global War on Terrorism] objectives. Web sites tailored to foreign audiences can contribute to overall mission accomplishment by countering extremist and terrorist elements, countering hostile propaganda, promoting stability and security, building support for US counterterrorism and associated activities worldwide, and supporting GCC theater security cooperation efforts.

These objectives deserve analysis, as they hint at the amorphous nature of the initiative. The purposes described could refer to a majority of US government activities abroad; any military effort could be said to be justified if it improves the image of the United States. Moreover, the TRWIAca,!a,,cs objectives explicitly overlap with the State DepartmentAca,!a,,cs statutory mandate to Aca,!A"explain the foreign policy of the United States to the governments and populations of such countries . . . [and] counter misinformation and propaganda concerning the United States.Aca,!A?46 These goals are arguably the same as the TRWI mission to support US government counterterrorism and GCC theater security cooperation efforts; both involve reaching out to foreign audiences in an attempt to change perceptions regarding America and to counter extremist propaganda. The overlap would not be troublesome if the TRWI supported a specific military mission. Yet the TRWI is, by definition, regional and nonspecific. Unlike a IIA activity, DOD cannot Aca,!A"targetAca,!A? an enemy force with a Web site. In summary, because the TRWI Web sites are by their very nature not in direct and immediate support of military operations, the military mission underpinning these region-wide interests seems ambiguous.

Who Executes the TRWI'

Similar to the IIA memorandum, the TRWI message also provides minimal guidance regarding who executes or maintains the sites. The message unequivocally declares that the TRWI is not a public affairs activity (Aca,!A"[this guidance] does not apply to public affairs Web sites.Aca,!A?).48 While it is possible to foresee a non-public affairs Web site configured in support of ongoing military operations in Iraq or Afghanistan, DODAca,!a,,cs appropriate role becomes significantly less clear when a TRWI-sponsored Web site emerges elsewhere, where combat is not taking place.

The message is also silent on the role of PSYOP forces. Each Web site is required to contain a disclaimer that Aca,!A"clearly identifies the sponsoring Combatant Commander ... on the homepage of the Web site.Aca,!A? Use of

.com, .net, and .gov Internet addresses also is specified, unless the Deputy

Secretary of Defense authorizes use of other domains. In likely response to the Lincoln Group incident, if a writer is paid for online work, Aca,!A"the article will fully and clearly disclose such payment.Aca,!A?51 In content and appearance, the Web sites resemble formal news sites or diplomatic publications, not military periodicals. Without an indication of who formulates the content and executes the TRWI on behalf of Combatant Commands, it is difficult to discern the precise nature of the activity.

Finally, the Aca,!A"militaryAca,!A? aspect of the TRWI becomes increasingly nebulous once third parties are hired to execute the program.52 In January 2008, USSOCOM issued a solicitation for contractors to perform the sensitive cultural and political tasks inherent in creating and sustaining the Web sites. The notice included the following requirement:

The contractor shall: Develop, operate, and maintain a minimum of six Web sites, in the directed languages and conceptual approaches approved by the Government; Develop, operate, and maintain Web sites tailored to influence foreign audiences per Government-approved Concepts of Operations (CONOPs), conceptual approaches, and previously approved prototypes; Provide full-service cultural knowledge, political, editorial, media, and information technology capabilities; Identify, develop, obtain, and maintain a network of native/indigenous content contributors with backgrounds in politics, academics, security, culture, entertainment, and other aspects of the [Global War on Terrorism], which appeal to identified foreign target audiences.

One is left to wonder about the military nature of a Web site that is contracted out to civilian, possibly foreign, personnel. From a policy perspective, DODAca,!a,,cs sponsorship of the Web sites is troublesome due to the fact that creating such forums requires comprehension of local political events and circumstances, functions typically the purview of civilian US agencies.

Limitations on TRWI Policy

Similar to the IIA, the TRWI policy contains three primary limitations. First, it expressly declares that the authority may not be delegated. Contrary to the IIA policy, however, the TRWI provides a Aca,!A"geographicAca,!A? limitation when it specifies that Web sites have to be Aca,!A"regionally oriented.Aca,!A?

While the concept of physical limitation on a Web site is illusory, it provides a specification that helps crystallize the question of DODAca,!a,,cs authority.

Second, the policy states that a Geographic Combatant Commander will collaborate, as appropriate, with the Department of State, other US government agencies, and country teams in affected nations to coordinate themes and messages, orient to and emphasize specific issues, and recruit regional contributors and key communicators.54 The caveat Aca,!A"as appropriateAca,!A? negates the prospect of this limitation resolving the issue of DODAca,!a,,cs authority to conduct strategic communication in the place of other government agencies.

Third, the policy has a Aca,!A"transparencyAca,!A? provision. Contrary to the IIA policy that permits different methods of attribution, the Web site memorandum expressly requires that Aca,!A"[a]ll Web sites within the scope of this policy will display a disclaimer link that clearly identifies the sponsoring Combatant Command on the home page of the Web site . . . .Aca,!A? When this requirement is read in conjunction with the statement that the policy does not apply to public affairs Web sites, one is left to question what exactly is the nature of the activity.

Finally, while not a limitation, the policy states that any exceptions, requests for additional authorities, or recommended changes to the policy will be directed to the Deputy Secretary of Defense and that the Aca,!A"Strategic Communication Integration Group Executive CommitteeAca,!A? will support the Deputy Secretary in consideration of any such requests.56

In summary, the TRWI policy grants broad authority to GCCs to create and maintain Web sites to Aca,!A"shape the security environmentAca,!A? in their areas of responsibility. While these sites require truthful information and complete transparency, they are expressly forbidden from being public affairs Web sites. That stipulation begs the question, what are they' Are they PSYOP being conducted by trained forces in support of a specific mission, or are they public diplomacy sites recast in military terms'


This article highlights a specific example of DODAca,!a,,cs expanding mission in the war against terrorism. Arguably, the end goals for US national security agencies, including the State and Defense departments, are the same: Stop extremist activity, thwart terrorist violence, and advance overall US political and economic interests. For a variety of reasons, DOD has assumed control of many of the tools necessary to turn these goals into reality, including strategic communication. The Defense DepartmentAca,!a,,cs initial efforts to define the authority, scope, and limits of these influence activities are set out in the 2007 policy memoranda. By issuing these memoranda, DOD has significantly blurred its own long-standing distinctions between public affairs and psychological operations. These distinctions were critical in helping military commanders understand the authority and limits of strategic communication efforts. The decision not to define the latest programs as PSYOP raises significant legal questions regarding the authority for DOD to conduct such activities. When DOD expressly does not label these influence operations as PSYOP, has the Department in effect surrendered the authority it has to conduct such operations'

Ultimately, DODAca,!a,,cs participation in the Aca,!A"battle of ideasAca,!A? raises both policy and fiscal questions. In policy terms, DOD may be conducting programs that rightfully belong to another agency. A typical comment today is that the State Department has all the authorities to conduct public diplomacy, but DOD has all the resources. DOD has responded, in kind, by using military terms to define civilian activities for which the Department of State has purview. If DOD is conducting public diplomacy, it should come out and say so. That way Congress knows how appropriated funds are being used, and whether funds are applied for the right purposes, in the most impactful manner.

In dollar terms, DODAca,!a,,cs expansion into online strategic communication has potential to further undermine the capacity of civilian agencies, a situation which gave rise to the need for DOD to engage in these activities in the first place. At a certain point, if an agencyAca,!a,,cs mission is viewed as indistinct, that agencyAca,!a,,cs mission becomes a function of the budget process, and the need for funds becomes open-ended.

A new type of PSYOP method may be necessary to fight a Aca,!A"global irregular campaign.Aca,!A? It could be a hybrid initiative that draws upon classic forms of military support to public diplomacy and PSYOP.57 Perhaps existing lines of authority are obsolete and need to be restructured to encompass todayAca,!a,,cs ever-expanding communication methods. Clearly, a structured review needs to take place to determine whether the Department of Defense possesses adequate legal authority to conduct the Internet-based missions necessary in the ongoing fight against terrorism.

Related Links:

An Ever-Expanding War: Legal Aspects of Online Strategic Communication