effects. sometimes cyber operations have the potential to have kinetic effects but not all the time. the law really isn't made to deal with those things. yes, we can start saying, well, maybe we should talk about functionality or loss of functionality, which is one thing we talked about in the group, but i'm not convinced that's such a good idea. whatever rules we make for cyber, if we're change the entire body of armed conflict, also apply to kinetic warfare do we want -- would states agree to a rule that it if we lift the functionality of an object that it is damaged and the rules apply. if you drive a military convoy across the bridge, the bridge loses functionality for a period of time, is that really an asnack you're just using the bridge to drive things across it. all kind things that flow from trying to expand and stretch the body of law. >> it's interesting you say that

there does appear to me to be implicit agreement on a threshold for what qualifies as use of force or armed attack. it's even explicit in some negotiations among states that if it has the equivalent effect to a kinetic attack, implicit -- almost explicit understanding. the difficult area is this gray area about nonkinetic, and it's -- i don't see it implicit. one thing that sort of gets lost in translation is there's a discussion of the use of force armed attack threshold and they're a separate threshold for what constitutes attack and the application of proportionality, and discrimination. and they're not necessarily the same thing. >> we have agreement on the latter. on the former, that's the point you raised about countermeasures, and it hasn't been discussed as much in the cyber context, but it was raised

by one of the european delegations, and you will probably see it come back. so it's an important point to think about. cathryn we'll let katherine speak, and then ask the ambassador if he has any reactions. >> thank you. thank you for coming, actually, today, and thank you for inviting me to speak. i loaf the opportunity to talk to my students now just about nip about international law, and i do tend to go on for a long time, but i've worked hard to keep my points limited, but something i'm very passionate about, and often whether we're talking about cyber or i'll actually begin with kind of describing a definitional approach of automated versus autonomous weapons. we're focusing on autonomous today, but i've been at many policy meetings and discussions with state leaders, and i've often heard the expression that when a question comes up, does

something rise to the level of use of force or the level of armed attack, go off and start talking about international law and what prim principles we know and examples and cases where the icj is given some, although limited, insight. tip through what i hear back from poll so imakeers, that's nice and sweet but it will be decided by in the case of the united states, people saying it, the president of the united states will decide that something is a use of force and that's a political decision and not a legal decision, and i always strongly object to that. so i'm glad we're talking about that today because, yes, at the end of the day it may be the president that authorizes the use of force, but that use of fours may not be internationally accept because you're responding to something that was less than an armed attack under the charter so from my perspective,

an international law professor it's not just a political decision. certainly the states are involved, about it is a legal decision, and we have learned from practice in the past that it's not -- one for one state to decide on its own whether something is legitimately a use of force sonics why -- this is exactly why this conversation is important and why it has to be international. when you're trying to come to terms with something which is a challenge and new technology and the development of it. what i find really interesting and unique in cyber and autonomous weapons like robots that have not yet been fielded into warfare but is generally accepted as coming, is that we have a unique opportunity now. , some of us who, working on cyber for a long time, couple of decades. most people are recently introduce ted the topic as we see some of these very visible intrusions and hacks. but in the autonomous wents like robot we have the opportunity because they haven't been

fielded yet to actually set out what would be acceptable, right? you have to think carefully about a truly awe thon muss weapon, how to deal these. there's starting to be developed now. so here's some thoughts i'll say about the law. first, kind of laying it out. the debate on autonomous weapons is really one about whether these weapons are per se prohibited under the law or that there's possible unlawful uses, and gary said -- made his position clear, and i agree with him, there is nothing per se unlawful about these weapons, and that goes for cyber. i won't talk about drones because drones technically -- i tell my students, i'm definitely type a on definitional terms and i make them understand there's a difference between automated weapons and awe thon mouse. drones as their used and deployed now are automated. autonomous weapons, there's a human in the loop, somebody out a joy stick.

the autonomous weapons, though, that is kind of not here yet in terms of fielding them in the battlefield. when you think of robots and artificial intelligence. so when we think about the debate, die have to say this is one area i disagree with human rights laws which is sometimes that happens. >> that's a good thing. >> we disagree on things. we're friends but we'll duke it out after the panel. came out with a report, and for those interest in the legality of autonomous weapons, highly recommend you read it. came out in 2012, the name was called "losing humanity: the case against killer robots" they're clock was robotters unethical. i disagree with that. the debates whether. whether it's per se that international law and states agreed to are per se unlawful. meaning you cannot use them. a. in the camp and gary made it

clear -- i align midstses -- this weapons are not per se illegal but about how to regulate them in warfare, and that is what is going to take a lot of effort among experts, technical experts, policy experts, legal experts, and the result may -- there may be -- i'll end with a few options. we may end up with an international instrument like a treaty, we may not have. to on the treaty discussion is hat been my position on new issue of threats and technology that has developed. i i've always been in the camp, some we don't need a new international treaty too deal with these things. after 9/11, i was on many panels where some people advocated we need a new general have no cocoon venges to deal with nonstate actors, terrorists same, don't need it. we can work with what we got, and by the way, geneva convention is applicable to nonstate actors. cat came up in cyber before cyber was popular to discuss.

people said, katherine, we need a new treaty. they believe still we need a new treaty, i'm still of the position it's not about creating a new treaty but we have applicable law. we just need to know how it applies. that's how the u.s. is going. and then last about autonomous weapons. why don't i abelieve the new treaty is necessary or needed? one you must be cautious when you start drafting a new treaty. you do not know what you may end up win, right? and while we might think we have a lot of for -- forsight -- it takes a long time to negotiate treaties and we don't have that time. so you should be coming to agreement, states coming to agreement about what the rules of the road will be investigation ave weapons. so here's some of the legal principles important to think about. we mentioned -- bellum and use of -- both areas of

international law, although related, are very separate and need to be analyzed for autonomous weapons how to comply with these prims. under cyber we have got agreement that they u.n. charter apply us. autonomous weapons we don't have that yet and that's what states need to work on. new, in terms of cyber and aautonomous, the best example we he seen in the cyber context is the -- while most states have acknowledge -- exerted said it hat to have been a state. so we can talk about it in ate least a hypothetical, that state has used a weapon that is autonomous in the sense -- you can have cyber weapons that actually not just automated but are truly autonomous and they are similar to to robots discussed here's the legal principles for both cyber and autonomous weapons that need to be considered. this is where i disagree with

the human rights law, where i can counter some things they said. there's three major principles in the laws of war, which some of them mention and i'll emphasize them. look at whether weapons are indiscriminate by they're tour. i do not believe-a-thon mon weapons necessarily are indiscriminate. that would support human right if was wrong. unnecessary suffering. if a weapon is developed where it causes unnecessary suffering, then it would be unlawful per se. and also the last principle on loac, harmful effects that are uncontrolled. have to be able in warfare to scale back, to reallocate in order to control the harmful effects, particularly to protect civilians. this can be built into -- autonomous weapons. on the targeting law, which gary is very familiar with as a form jag officer, you have to be able

to develop and field a weapon that both discriminates and can make a distinction between civilians and military personnel, or those involved in hostilities. also, the weapon has to be able to operate and make decisions or at least operate in a proportional manner. when you talk about-a-thon mouse, that had -- a -- autonomous and those have to be preprogrammed. you have to be caution in your attack. you have to have the weapon break off or alter engagement. that needs to built into any autonomous weapon, whether it's cyber or a robot. the presence of civilians have to come into the contemplation of developing these weapons. here's some quick options. it may be you get an international instrument or treat -- >> maybe we can come book to the options. i think that be part of the discussion. >> okay. >> and i thought this -- that was good lead-in. i would see to ask the

ambassador if he has any reaction to what he has herd. one thing we want to talk about is options, and you should be thinking oft questions. i have at least three. so. booster, did -- ambassador, did you have any? >> thank you very much. i'd like to build on something david said, the transparency that is applied in the united states. listening to you, my impression is that there are probably not many countries in the world that have your level of knowledge about all these issues. the united states is transparent to a much larger degree than in other countries. the challenge we will have to face is how your knowledge -- because you are at the forefront of the development of these technology in cyber space. how can we make sure that the understandings about the applicable rules are shared by others? you mentioned that in the -- one

process it was a rather restricted group, while opened up the -- the fear i have is that highly advanced states that are highly advanced in technology will just move forward and lose, so to speak, the others, and the important thing is to find international mechanisms. what you have discussed are to a large extent internal discussions in the united states. you mentioned the law of war that was issued by the pentagon. we were trying to have ways to share your knowledge and also to share the -- i do think the united states has to have a lawful development, to find ways to apply the law to these developments, because i'm not certain that this attitude is shared by others who may be as

advanced as you are. we know that other big powers are now slowly proposing new legal rules. one of them has even proposed codifyication in cyber space, and the issue is how to make sure those who have an interest in applying the existing law, as you mentioned, to the new technologies, how can we make sure that we have a very broad consensus among the different countries. and it's very important to have the -- in the end they will follow. if you look at -- you mentioned the autonomous weapons. that may be in the hand of the few at the beginning in the end everyone will have them. you said for the time being we do not have processes, but the

area will start with a broad-based consensus mechanism to find common agreement or common understandings, think the better it is. to gary, your remarks on cyber space to say it's like your batman costume. in the end, if you think -- when you say there is no regulation possible because attribution will not be possible, all clandestine, nobody will live up to -- will say this was his or her attacking. i would just like to give one example. you said that it's very difficult to distinguish between nonstate actors and governments and how they interact. i know that technically speaking it's probably very difficult to see who does what, but wouldn't it be possible, because we also have a rule and law that

regulates the relationship between the government and private actors. wouldn't it be possible to try to develop these rules also to this new relationship in cyber space? it may be too early to know how that will be done but the basic principles when a government will have to take responsibility for the actors, the controls, so it's probably the challenge to find out how can we apply them to cyber space. >> actually, that is one of my questions. let me ask the question, and then is a place where i'm not as strong so may not be -- i will say that the lack of expertise on how cyber warfare is conducted or what the effect of a cyber weapon would be, cyber attack would be, is a major impediment in negotiation, and sow have many nations who are deeply concerned but don't have a good understanding, and the

public accounting of attacks is largely pathetic so they read something in the paper and they -- makes as i very -- it's much more difficult than others. but the question i was going to ask, gets back to this state responsibility issue, and the one that has come up repeatedly, although not with much clarity -- and maybe we'll go down the row -- is the ruling of the international court of justice on the nicaragua case which is painfully for -- painful for me personally. >> for other reasons. >> yes, comes up as a precedent in this area. can we go down -- gary, you want to start? scene to katherine and david. >> i think just to respond to a couple things the ambassador said. first of all, i would say my comments -- by my comments i depend mean to imply there would never be any regulation. i'm saying i'm not sure loac is

the create body of law. maybe if we stretch it to the point -- the costume tears and then it's no good for my son either. then nobody can wear it because loac works because state as i agree on the rules, and if we stretch them to night where nobody agrees-it's pointless with don't want to lose this body of law for kin it in techs because we're trying to stretch it to cyber operations. one other direct point i'll make is when -- as far as states being responsible for loosely affiliate civilians, my suggestion is let's start with the clear situation we have, which i the little green men in europe that may be affiliated with some big power over there in europe, and let's solve that problem, and once we solve that problem, cyber will follow. so until we can solve the problem in the kinetic world, which has clearer rules, it's futile to try to solve it in cyber and there are anothers of

issues. attribution. >> in term owes the applicable of loac and whether this will -- in applying loac new technology, which it's autonomous robots or cyber weapons, there is a -- me a disagree a little bit i get his point that you don't want to twist and turn the law so much that you undo its intent. however, i am of the position that the principle that underlie the traditional treaties of loac. >> geneva and haig can be applied in the cyber weapon in the artificial intelligence as it's starting to be discussed in terms of hough it was developed one day and will be used. this who is is happy in the u.n. report that couple out, there may have been disagreement about whether states felt comfortable invoking the phrase, law of armed conflict ," yes, we're

otherould like too see that, or geneva and hague. the important part for me at least was they actually agreed in that report to the principle that are codified and customary international law. in loac, and i think you mentioned this at the beginning, jim. they actually said that the principles of necessity, distinction, or discrimination, proportionality, and humanity, applies. i think it might -- was it military necessity in there? i'm not sure. >> no. >> effectively whenned read it that struck me as very telling, they have at least 20 states which were -- and the security council members but importantly, powers like china and russia and the u.s. that have been in disagreement, they agreed to that. it's point. it didn't say jeff feenstra and hague -- geneva and hague, but sometimes it is more important that the customary principles are applied, not necessarily

that a treaty per se was honored, and that's when you -- another thing i was happy to see in the u.n. report, both the 2013 one and the 2015, the principle state responsibility was in that report. that goes to an important element when we have nonstate actors that will continue to be engaged in military uses of force, how do you hold the state responsible for the acts of nonstate actors? in international law this debate has been going on for years amongst professors, and until 9/11, there was quite a lot of split. after the u.n. recognized through its resolution that terrorist organizations could carry out the armed attack which triggered article 51 which allowed the united states and other states to use force again them in another state that we aren't at war with, there are a few outliers, colleagues that

teach international law which i disagree with but people recognize this debate -- you can actually attribute the activity of nonstate actors to a state and then hold them accountable. here's where the debate still lies and people are still engaging in this. two thresholds, though. the anything -- nicaragua gays, they came up with effective control. what kind of evidence do you have to bring forththat shows the state, using proxies, have effective control over the proxies, and that means that the state -- you have to know and show the state is directing specific operations. they might not not be doing that. we know in cyber they're not doing that. and in other autonomous weapons they not not be directing but what if they're funding in a group that is willing to do your work and be your face, whether

it's a company, it's an academic, students in a university in cyber, that's being done, but the case which i refer to you to read one day, they in that case -- mike schmidt disagrees with me on this so we have head so many disagreements -- the court lowered the threshold. that's my position, just to be clear north all international lawyers agree with that. they came up with the new threshold of overall control, and now this is key in cyber, and i've written some very boring and long articles that no one will ever read on the subject here's the challenge, due diligence. that is the legal threshold. you have to show that the state failed to do its due diligence internal to its territory to prevent these nonstate actors, individuals, from harming others outside because -- international law, the channel case. that is yet to be determined and it's going to be determined in practice. but talking, heavy geeky lawyers

get together and talk about thresholds, even with the russians, not in the manual. >> let me put a footnote in. nicaragua turn out to be very influential in the discussion of how to think about applying international law to cyber -- >> i'm glad someone things so because i write about it. >> i had to look them up and i'm listening to other countries talk about this, what the -- >> it's very important. on the manuals it's interpret, irrespect tonight of an international treat use on atop mouse weapons or -- autonomous weapons comes into may -- what you need to start seeing is national laws or procedures starting to be developed. the u.s. has been pretty transparent in our policy. the u.s. will not be able to be totally transparent because a lot of these documents or detectives will be classifiedful here's what i get concerned about. last year, the year before, was

in moscow, the icc had a small group conference there about cyber, and mall, like 30 people in the room and they were al russians and me and my colleague from brigham young university, the only americans. i was concerned not that the russians were denying they did cyber operation which flies in the face of their public announcements over the years, but they actually asked me whether the u.s. had manuals, and i said, without talking about anything classified, it said, listen, the united states has been very clear the laws apply and in the united states practice, when they've say that, we sign up for loac, that means the military starts developing manuals, and most of the specific ones will be classified. those are public. i said you should be happy we have manual its. soening ask you a question? do you have manual? and the russian official said no, because we don't do cyber operations.

i said, okay, end of story. that is important in terms of developing these manuals, and in the international legal community, there are many, many of us around the globe that work together, like you mentioned the forum in geneva, as you start doling that, and the power manual, that's the slow work of making progress. and tends to be not very high profile, not sexy, pretty geeky, but that's how it gets through. even if we never have a treaty, that's how you get agreement. >> david, did you want to add anything? and then we can turn to the ambassador and then get to questions. so quickly we'll close out on this one. >> i would say i think on one hand you have do we need new law right now? in light of the new technology and all the possibilities. on the other hand can we search back and look at what exist if think about something that bogey be berra said, it's tough to make predictions about the future. i think we have cases

international court of justice handed down which can be used, like anything rag -- nicaragua to argue -- the channel is not well understood but certainly important to understanding threshold use of force. so then you look at these and say, okay, what is available? in 2012 in the first few moments in terms of getting into these issues the obama administration has then legal adviser and state department -- laying out exactly how we think the law of armed conflict and law of war applies to cyber operations, gets into specific effects and then sort of -- physical effect in the real world as basis forrestering there's been a use of force. that's something that a lot of countries are not -- dod manual, which was released recently, 100 pages and publicly available. these are the kind of things -- need the public debate the ambassador discussed and it's important, separate and apart

from internal discussions. the only other thing i would say is that what sort of unites these questions about whether the law needs to change or whether we just need to know better what the actual circumstances are, this question about attribution, because that is not fundamentally a legal question. if you can attribute it to a state we know that at least the draft articles of state responsibility apply and we understand what the geneva conventions say and you said -- knowing whether a state is responsible and then there are consequences in attributing it and that's a tough call. in the cyber realm, in the realm of using new technology, we are mindful in advising clients in the private second you're governments don't distinguish between the public and private sector in ways we do. i am not of the view, as many on the panel are, the law needs to involve right now. >> the disparity in attribution

capables is also a significant obstacle in negotiations and that a few countries, largely those with very powerful establishments can attribute the majority of day tacks or indications -- attacks or cases but that is a handful of countries, less than half a dozen, and so when you get the others in the room, they cite attribution as an -- but currently it's a major obstacle. we have a question in the front. >> good morning. i'm dr. donna wells, my question is to the ambassador, the commodities market and what regulations and systems in place to regulate the price indexes? being investigated on the price of gold.

thank you. >> do you want to take that one? >> i'm sorry, didn't understand. >> the question was, what are the -- do you want to rephrase the question? i'm sorry. about -- >> thank you for your patience. i'm a trained engineer so i know about cyber stuff. this might be a new field, the commodities market and price indexes. essentially price index for gold or copper or silver, everything electronic has copper in it, and so the price index is a lot of money, and so what regulations are in place to make sure that these price indexes are respective of supply and demand. is that in place yet? can we talk about that? thank you. >> sure. >> i have no knowledge of this field. >> okay. >> have done a little work on the economic issues. probably not. >> on the price index of gold? >> no. not my field of --

>> we'll come back to that one. give us time to think about it. ... does that change the complexion

of it? for d.c. this as a truly universally applicable? >> i think this has come up a couple times. there's an economic element that apparently didn't touch on since the first two questions. it's come up in this notion that i'm going to mock it a little bit. china has 100 year campaign of economic warfare, and it is death by a thousand cuts, et cetera, et cetera. this is an intentional effort to undercut the united states and other western powers through economic kind of a very slow drip economic warfare. whether or not you believe in it, my own feeling is it sounds like a charlie chan movie, you should reject it. but i think that's the question is if you have these long-term economic campaigns, how would that be treated by the laws of armed conflict or international laws? you know what i'm talking about.

there's a couple of articles about china's alleged strategy. >> let me try and then you will -- i haven't been following these articles. i think we have to be careful with the terminology we use. economic warfare is a political term. if the wage war against another country but with economic means, that may also be, call the competition and actual competition between countries. what we are talking here is armed conflict with the involvement of forests, of military. it's a bit like the war on terror. the war on terror that was called by the bush administration, is a political term. in our view it is not a legal term. illegal term is clearly defined in law, and the law applicable during armed conflict, and all

the other so-called wars, you could have a war on drugs or a war on organized crime. these are political terms that or not, that do not follow the laws of war. for example, of how you regulate price indexes are to make sure that they can be abused, that can be regulated by other means. that would be an entirely different war, and i am not simply with a commodity trade. i do not know what would be the right term. but you could also extend this to other economic areas, like, for example, customs. you can lower customs in a way that could bring economic problems to another country and undermine its ability. so you would go to the world trade organization to try to address this issue. but we have to be very careful

with the terms war on something. and economic war in my view, is not a legal term. it is an important political term but do we have defined the appropriate way in which to deal with it. most of these issues have to be in the regulatory framework of international trade, for example, that we have to find -- >> in 1945, those who drafted the u.n. charter at the time, they made it clear because there was a debate among the states. latin american states were in one camp. the issue came up. this economic action, whether you want to call it, sanctions, that was the legal issue, warfare and broader, would that trigger the u.n. charter? meaning would that constitute a use of forests? the answer which is still the answer is no. so we know that economic actions in this comes out on side with china with the ip theft, right?

>> i was thinking rare earth issue as well where you get manipulations of commodities and markets. >> that's what the wto, other international regimes which do with actions that involve trade and economic relations, but in warfare, notice like even the u.n. charter, the word war is not in the charter because that word, it's kind of a thing of the past and international law. they talk about use of forests, armed attack. laws of armed conflict but arms of armed conflict it is about public about the economic i. i agree that it's a political phrase. >> maybe we should take a pledge to never use the term act of war again. go ahead. spent osha's would ask, didn't the new manual use the term more? [talking over each other]

>> resort to use of forests. this is 90 with respect to economic warfare as it is referred to. it is certainly an international legal foundation for economic sanctions. look worldwide, the sanctions that are discussed in the context of the iran deal. one that has been in the news recently is a u.n. security council resolution 1929, question about whether was violated by the launch of a ballistic missile by iran in october. this is something t that the u.. security council under chapter seven article 41 past. and so it's an international legal standing of its an obligation, not a basis for use of forests if someone violates it so that's an example of our state like the united states and you can't impose magically or regionally sanctions pursuant to international law. but i do think that sort of legal basis for the separate from a u.n. security council

resolution is sort of the same question about threshold for the use of forests. a lot of countermeasures or the source of things inform them as they would these questions that we have been discussing. >> let me ask gary, he could start, then all you can jump in, although discussion of a lot of countermeasures which is for actions below the threshold are yet undefined threshold of use of forests. a lot of countermeasures i think is recently been introduced into how international law applies to cyber discussion but i think it will be a major topic in the future. >> it's a great topic and i was a a little bit about countermeasures but first let me come as a military guy i guess i won't dumb it down to, back to the actual law of armed conflict are i love the question because what it brought to my mind was, at one point it was controversial that the u.s. and allies were bombing oil

refineries that were controlled by isis, to take away some of the economic capacity. in the context of armed hostilities, taking out economic targets was at one point controversial. i think people decided maybe it was a good idea. putting that aside think of the cyber equivalent of that. is it okay inside the context of armed hostilities is it okay to use cyber techniques to re-create something like the flash crash? hundreds of billions of dollars disappeared in a microsecond. that could be done as a cyber attack as opposed to somebody -- maybe we don't know exactly what happened for that event, or just hacking into financial systems and making value disappear off the books as opposed to stealing a. for the most part we decided we will handle that with law enforcement and domestic law. but inside the context of armed conflict there may be a role for the. that they can point out some the

problems with applying this body of law to cyber techniques. jim, you are right, countermeasures are the really hot topic now because, partly because there isn't this consensus on how the laws of armed conflict applies. there's a feeling with a lot of the states that are big targets, i think of cyber hostilities or fences or whatever you want to call it, i do want to call them a tax consultant ailes. cyber nastiness. theatre sort of you we should be doing something. we are starting to settle on the consensus i think in the international legal community that was the would do something that violates the law, i can for lack of a better term although it's not an accurate term, trackback, use electronic measures spent you as a state, not as an individual? >> you could do other things as well but mostly focus on the cyber response, to make it stop as larger proportion and is

necessary to make it stop spent is it fair to say would include sanctions and that would be part of -- >> i think that's easy. that's much lower. i don't think would be like a retort should love which doesn't require an illegal action in first place. the thing that distinguishes countermeasures is of the thing you're doing in response would ordinarily be unlawful but for the fact you're doing as a countermeasure to get the other party to stop doing something unlawful. >> today you say, one thing i would disagree with is there are some people have been writing on this for a long time but it's usually at the international law crowd, the academics. we are talking about things under the threshold, when you talk about the things of countermeasures, anything, activity centers under the threshold of article two of the u.n. charter. what is your response? my first article, the norm is that intervention is not popular. my first article on cyber and a lot of non-individualist in

2001. there are people who have been working on it. the issue of countermeasures is what can you do in response for an action yo yourself as a victm which is below the 2-4. innovation of sovereignty, the norm of nonintervention the that an intervention. the reason why i started think about it because i became fund intelligence community and espionage is below 2-4. there are things states can do and they're called countermeasures that are specifically defined principles of the law of countermeasure. i deeply policymakers need to pay attention more to policy, the law of countermeasures. academics come it's been part of the law for many years and it's relevant and cyber as most of these intrusions are below the 2-4. i think the policymakers should read up on what the law professors have been saying. >> just let me respond a little bit do that. is nice that the person writing

about it. it's not come up in international political discussion until this year. so perhaps the discussions have reached the point where understandings are sufficient to talk about it. this is the first year i've ever heard having done this now for six years. >> i think it is the ip theft that triggered the editors with china. when you saw much of the discussions documenting the damage at least to the u.s. from the cyber enabled ip theft, so i ended up because of that road 101 page law review article of what can you do in response to state-sponsored, what i have said, economic espionage. that's not the company on company or country on company. it's country on foreign company to rent and give it to you private sector spent 99 pages maybe we have read it. 101, no way spent these are not new concepts. toward countermeasure has a

particular purchase right now but in the legislation that congress is debating before this and the use of the term defensive measures. same kind of many. the word reprisal which is sort of not well, not in good favor now, it's a term i think he is in some respects. countermeasures is per se a legal read pashtun a legal act. you start saying i should dr. buechner but the basic concept is what is a proportionate response? when the president said after the sony attack we're going to respond in a proportionate manner in the time a place of our choosing, that in some embracing this kind of concept that is in the duty of cyber strategy and so their basic rules from necessity that apply to whatever your response happenhappened to be. i don't think this is a question of needing to make a new law. it's there. it's just you have to read the nicaragua case pitch well more than 100 pages and the corporate showcase a look at the platform

case. there's a fair amount of legal guidance. >> gary or ambassador? >> we're getting close to the witching hour which is the following. i think we have time for a least -- we have three questions. we would do the three questions. the ask perhaps we ask all three and that we can respond to so we can keep more or less on track? hold up your hand if you're going to ask a question. we have not one, not one of 12:00 from the and one of your at 10:00. >> i have a question about international criminal law. in regard to the countermeasure. specifically to the first chamber of the icc on this regard, that if there is a criminal act that is a part of intervention in civil war where

such countermeasures are being used, doesn't their leaves a certain room for discussing this implication of countermeasures in terms of the criminal law issues? >> and we have a question their and a final question. >> my question is for the colonel but if you all want to weigh in that's great. one of the things that cyber does is allows people remotely to engage in a conflict that the navy would have able to engage in otherwise. either because that's the expertise they bring to the fight, or maybe they're not willing to lay their life on the line by going to the middle east and engaging with an ak-47. now, when the u.s. military killed junaid hussain it was a hacker, propagandist and recruiter, back in august, it, i guess my question is, it allowed

somebody, the dod essentially said that thing you're going to support remotely, we will kill you for that now. we will come find you even though you're not actually on the battlefield. so my question is really two parts. one, does that inform the discussion of deterrent in cyberspace? and number two, is there a nation of reciprocity at play here, where the u.s. military cyber committee should not be thinking about how other states might respond to the u.s. dod who, because of the stand up to the new forces are now doing these types of cyber operations? >> okay, and then the last question. >> syria which is a mess that is only getting messier, you've got the russians being invited by, recognize government of syria. you got iran to further involve. you've got nonstate actors such as hezbollah or the kurdish

melissa, the u.s. backing and supporting certain elements whether plan destiny or album openly. going after isis. has been exposed gaps in public international law, or has it highlighted chartering interpretations of public international law? thank you. >> three great questions to close on. so we had the criminal court one. we had this reciprocity and deterrence and then we had the implications of syria. we want to just go right down the panel and start with dave? let's start with you, ambassador. we will go down the panel and respond to each. >> on the question of syria, that's a terrific question. and it's also if you look at syria on the one hand and ukraine on the other. in the case of syria, under

international law the u.s. government position, in the absence of a u.n. security council authorization under chapter seven, in the absence of a basis under national collective self-defense or consent of the government, there is not a basis for under international law for using military forests they are absent other circumstances. we d begin with nonstate actors that can be other circumstances. that's pretty well-established are there some significant limitations. and i think that's a good example of how not withstanding those clear lines the united states has found ways to be involved in trying to achieve its objective. but there are reciprocity applications, for example, in deciding there's a fourth basis. for example, the debate about humanitarian intervention cut into cybersecurity. what if we sort of decide to adopt, but because we claim international is a basis for acting in syria, what then would

was able to use force in another state whether through cyber rant or through the use of autonomous robots? you can see a suddenly the stability of international legal systems is really in question. and so whenever a decision is made i think about whether to stretch the law in that regard. i think the real question is what is the implications of that? that affects the build and cuts right into deterrence. so i think it's hard to sort of maintain your negative security assurance if you're going to suddenly change the law to fit a particular model, and that's one of the main questions with respect to what russia seems to be doing in the ukraine. >> i will address the question about the hacker. i think there are a couple different ways but i could've been a target. i so they think reciprocity is always a consideration. whenever we get policies in any country, that's one of the

reasons why states have been reluctant to put up their heads and say we did this because they are concerned about the reciprocal by and of themselves and their actions to rules and the do not know what he wanted was to be. in this case the united states decided this guy was either a member of an organized armed groups or was directly purchase made in hostilities in which case civilians lose. as far as the reciprocal, the flipside of that for the u.s., most of the cyber games that have been put together, most will be uniformed military folks who are going to be in armed conflict or targets all the time anyway. the civilians we have to think about whether or not it would directly participating in hostilities as well. you just have to analyze the nature of the action. the question would be when you're fighting a group like isis is whether or not the allocation of law has any meaning for them at all. >> i will try to add to the one

i suspect i'm not the me with a case that you alluded to. but my reaction will be that countermeasures are an instrument that are used by states, instrument of international public law. while in the icc we addressed it as an individual criminal responsibility. the question would be in the icc whether the fact that something was done as part of the countermeasure can be used as an excuse as a justification for what has been done. i would have my doubts but i would have to know that case but at least it's not forcing in the statute of the icc to argue that defense. and apart from that i would be astonished if countermeasures get into the deliberations because it is purely criminal. if you allowed also to say just a word on syria question because -- it also shows one, and david alluded to, one of the structural weaknesses you could

save international law because international law is a moving target so to speak. is never set, even though we have article 2-4 of the united nations charter, that should indicate when an attack on a country is. we have other -- humanitarian intervention is an interesting example of how you could, you could develop international law. if the view is accepted by others, and in syria, the united states used it to indicate come in the case of collective self-defense. the interesting thing or the interesting question will be whether because it is a new concept, whether that will be accepted over time. and as you certainly know, the syrian government has not written a letter to the u.n.

security council indicating that they disagreed with the bombings of some other states. what we will have to see is what influence that will have on the defense or on the explanation of unwilling and unable. but it's an interesting example of how you can really develop international law. endemic the point because we mentioned international of which may have thought come in my view, this is a different case from what we were addressing because this is a field where you develop international law based on the, consensus. and if, for example, after the intervention there have been another humanitarian intervention, that would have been widely accepted. we could slowly say as international lawyers we do have a new standard that would be an exception to article 2-4. that may be the case one day

from being able able unwilling partner but what we alluded to, we are really missing parts of the law and this is something we will have to look into to perhaps come to my left for the new technology and the challenges we have to face. whether you are really black spots that we cannot develop by law, but that we would really have to sort of legislate to have a common solution for the. thanthank you very much. >> comment on the syria question. there's a very important case study for not only development of the norm of humanitarian intervention and whether that will because the international law one day, it also on the issue of civil and mixed conflict. because that's what you have there. it is exactly what the nicaragua case was. civil and next conflict. remember what the united states

lost in the case in the legal argument. the united states argued self-defense, that they were coming in and collective self-defense because the other states were propping up the other government. we lost on that argument. so i have less hope on the unwilling and unable because nicaragua still holds weight in the international community. here's the challenge to the united states government. the united states has been opposed to the development of customer international law on humanitarian intervention, repeatedly. you'll notice in any intervention you're talking about, the leaders of our country will never use that word. they will never use that phrase. there's an important reason, because practice makes custom. that united states has not been willing because of the danger i think david mentioned before, that when you open up a can of worms we are concerned about what that means. if there is a humanitarian intervention norm we don't have any agreed criteria for under what circumstances one state to do that in our view be different

than another country. i think the united states isn'tn a difficult position. they will not call it community intervention. some people will not like is the because of this area of the law and because at least the tiny position id to develop when the u.s., when it makes a political decision to a certain groups of people that are not part of the recognized government, then it's because of what the law is. about the dude clandestinely. i know that's not a lot of people might not be in favor of that but it's how you recognize, reconcile international law without ripping it apart. or creating a precedent that is dangerous for a lot of people. while in the same respect helping people that are suffering. if it does reach the legal threshold of the genocide and that's what we have, by reducing or lost hope with kosovo. that he was excited, at least the international lawyers were. we saw hope for the new world order, and documenting individual is going to prevail. and then we have bosnia and

rwanda, and then we'll get to that as international lawyers, we are not there. in the united states, i'm not speaking for the tiny. i might not even agree to it but they been very clear as a policy matter the norm of humanitarian intervention is not one of these countries willing to kind of abide by. and yet the united states will still be hard and take certain action to of people in need. in olivia as well. i know that's not positive, but -- >> on that cheery note, dan, did you have something you want to announce? [inaudible] >> write up the stairs. >> okay. i think then i would conclude by doing two things. first i was a that i do think this just may change in a nation of international negotiation on the new technologies. so we are in a different area where there are more participants from the non-western world, from the global south, but if you want to call them. and also additional level on

understanding some of the issues that might come. so there's been a lot of discussion about what is the appropriate for a for the committee on disarmament. isn't a standing committee, is a some third body art the default position is probably going to be another gge on because everything else is two or. not because people like it. all the topics you've heard today from this there are things that think you can expect to see on the negotiating agenda in the next couple of years. so it's been very helpful for me. please join me in thanking our panelists. [applause] >> do me a favor -- [inaudible] spin we are just a moment away from the senate getting back underway today. they will continue debate on the bill for military construction and veterans affairs. at 5:30 p.m. thursday vote on the nomination of scott allen to

debut as a director of the european bank for reconstruction and development. tomorrow we expect the senate to vote on defense programs and policy bill. they are out wednesday for veterans day and our live coverage of the senate gets underway right now on c-span2. the president pro tempore: the senate will come to order. the chaplain dr. barry black will lead the senate in prayer. the chaplain: let us pray. lord, you have been our dwelling place in all generations. before the mountains were formed or the earth received its frame, you are and have been without beginning or ending. thank you for the heartbeats

we borrow each day. may your life-sustaining power inspire our lawmakers to trust your sovereignty and to lean on your love. supply their needs from the bounty of your transcendent goodness, never forsaking them during turbulent times. rule and reign in your world in spite of the prevalence of pathology and sin. may your peace guard and guide our hearts and minds. we pray in your merciful name. amen.

the president pro tempore: please join me in reciting the pledge of allegiance to our flag. i pledge allegiance to the flag of the united states of america, and to the republic for which it stands, one nation under god, indivisible, with liberty and justice for all.

mr. mcconnell: madam president? the presiding officer: the majority leader. mr. mcconnell: i'd like to welcome prime minister benjamin netanyahu to washington. today's visit between president obama and the prime minister was the first time the leaders of our two countries have met in over a year. it's also their first time meeting since president obama concludeed his deal with iran. we know that that deal is likely to entrench iran's nuclear threshold capabilities while helping subsidize terrorist groups dedicated to israel's destruction, like hezbollah and hamas. we know that the president's deal does not even require iran to recognize israel's right to exist. so i'm sure these leaders had much to discuss. i'm sure they engage in a frank discussion. but a relationship based on frank exchanges of views, a relationship centered on substance rather than just

permits is important for both of our countries. it's, in fact, healthy. that's certainly true when we hear iran's supreme leader reiterating calls for israel's destruction. that's certainly true when we hear him saying change will never happen as he continues to rail against our own country. so it's good that prime minister netanyahu and president obama had a chance to meet today. it's good that the prime minister will have an opportunity to visit the capitol again tomorrow as well. we appreciated his last visit very much. it was important to hear the perspective of a leader from -- for whom threats from countries like iran and terrorist groups like isil and the palestinian islamic jihad are hardly just theoretical. that was made clear when i led a congressional delegation to the middle east last month that included congressman barr and senators from arkansas, south dakota and iowa. we met with leaders in jordan,

iraq and afghanistan, and in israel we had a chance to visit with the prime minister. it was productive, it was eye opening and it underlined a key point. israel's prime minister is a great friend of the united states. the bonds between our nations are strong, and i hope we can all find ways to strengthen them further because the threats facing both our countries are real and they are certainly worrying. mr. reid: madam president? the presiding officer: the democratic leader. mr. reid: i look forward to meeting with the prime minister of israel tomorrow, and i'll

have plor to say about that in the morning -- more to say about that in the morning. today the senate continues its consideration of the military construction and veterans' affairs appropriation bill. this appropriation bill is a modest step in the right direction. excuse me, madam president. i forgot to take off my dark glasses. i get kind of used to them, but i had some pictures taken and my new eye doesn't look good sometimes if the light's wrong, my eye shuts involuntarily. i'll start over again. i was wondering why i was having trouble seeing here. today the senate continues its consideration of the military construction and veterans' affairs appropriation bill. this appropriations bill is a modest step in the right direction. it provides resources that will address the veterans' care backlog, including 770 new claims processors and 200 new

appeals adjudicators. it expands medical treatment for veterans. it provides state grants for extended care homes in rural areas. extremely important. but i want to make sure one thing is understood and is very clear. if it had been up to republicans, the legislation would have shortchanged america's veterans. remember, republicans' original appropriation bill for the v.a. was a far cry from this funding measure today. they ranted and raised, but in the process, it would have cost the veterans $2 billion. the republicans' bill included devastating sequester of caps that would have underfunded the veterans administration by billions of dollars. if republicans had passed their bill, 70,000 vets would not receive the care they deserve, 70,000. the reason the senate is considering this much-i am proved appropriation legislation is because democrats refuse to

go along with republican efforts to underfund our middle class. instead, democrats held firm to stop devastating sequester cuts from hurting america's priorities. because we refused, funding for the veterans administration is more than $2 billion over what it would have been. democrats refuse to let congressional republicans do what they always do, disregard the needs of the middle class -- in this case, middle-class veterans. those people at home we so try to protect. in the aftermath of president bush's two unpaid-for wars, republicans have made little effort to meet the nation's obligations to its veterans. the work that's been done in recent years to do a better job with veterans, wounded warriors legislation and on and on with things that we on this side of the aisle proposed and passed.

this is symptomatic of today's republicans. they want to start and fund wars overseas. when the bill comes -- when the time comes to make good on our promises to our service members, many republicans are nowhere to be found. taking care of our veterans is one of the prices of war. it is one of the costs of a robust defense that keeps america safe. to neglect that responsibility is calloused and some say immoral. we can do better by our nation's veterans. this appropriations bill is a start. we still have a long way to go in meeting our commitments to the brave men and women who defend our country and have defended our country. i would ask consent, madam president, that we have a separate place in the record for what i'm going to say now. the presiding officer: without objection. mr. reid: thank you very much. for more than three months, the

senior senator from iowa has been blocking confirmation promotion of more than 20 career foreign service officers. these foreign service officers are career diplomats. they're some of our finest people in our government. they're brave. they work in some of the most remote, difficult, crime-ridden war zones in the world. many of these foreign service officers are always ready to serve at a moment's notice in hot spots throughout the world, hot spots like iraq and afghanistan. they're not partisan. they're diplomats. they're not political appointments. that's why it's troubling to see the senior senator from iowa politicize these promotions. he admits that he's blocking the promotion of these foreign service officers until he gets answers about secretary hillary clinton's emails and a woman by

the name of homa abedin. i told senator grassley's he's making a mistake by targeting these fine public servants. they have worked all over the world. with rare exception, they know multiple languages. but instead of changing course and doing what's right by these diplomats, senator grassley seems to be doubling down on his obstruction. and as the senator from iowa digs in on this failed policy, more innocent people, these diplomats, are being caught in the resulting backlog. last month, the senate received several lists containing more than 600 foreign service promotions. in the past, it didn't matter if democrats controlled the senate or republicans. they would have passed that list quickly in a matter of a day or two, with no opposition, of course. but times have changed, and these lists of 600 career

foreign service officers sit unpassed before this body. among the 600 individuals on these promotion lists are two people from iowa. these iowans had -- that's right. two of the senior senator from iowa's own constituents are being denied a promotion. why are nonpartisan public service positions being used as political pawns, especially if they are being blocked just because senator grassley doesn't want hillary clinton to be the next president of the united states. i haven't heard yet who he is supporting, trump, carson, cruz, bush, rubio, christie or a long list of others. obviously, he doesn't want hillary clinton to be elected. so i ask the senior senator from wyoming is he blocking two of his own constituents? why? should he allow all foreign

service lists to be confirmed by the senate without further delay? of course he should. we could confirm them right now. it's time for my friend from iowa to end these foolish campaigns to undermine secretary clinton. under senator grassley's leadership, the judicial committee continues to hound the state department for information about secretary clinton and her staffers. he and his fellow republicans want emails. he wants the time sheets for state department employees as do some of the other republicans. committee staff want transcribed interviews with young people vendors, and they want attorney leave records for one of secretary's closest aides, huma abedin. think about that, madam president. republicans want to know how long one of secretary clinton's staff took for her maternity leave. is that ludicrous? of course it is. those who know miss abedin best vouch for her integrity and her

work ethic, as a close aide to senator clinton for decades. when her reputation was attacked in the past -- that is, miss abedin's, republicans, including senator john mccain, defended her. here's what senator mccain said, and i quote. an intelligent, up standing, hardworking, loyal servant of our country. the daughter of immigrants who has risen to the highest levels of our government on her substantial personal merit. close quote. can you imagine wanting to know if she took off too much time to have a baby? let's remember that she is a staff member, not a principal. it's one thing to level charges at an elected member of congress or the administration. it's a completely different matter to target a staff member, especially someone who john mccain says -- quote -- represents the best about america. how much money will republicans in congress waste to try to bring down hillary clinton? we don't know all the numbers.

we have already seen that the so-called benghazi committee has wasted 18 months and more than $5 million. numerous other committees have conducted like investigations. we don't know how much they have cost, but millions. how much taxpayer money is senator grassley wasting on this antihillary clinton campaign. we know how much money and staff are being devoted to investigating secretary clinton in the house. $8,000 to $10,000 a day. that's low-balling. how many millions are the american people paying for the judiciary committee to duplicate the house's wasteful political tricks? well, the senior senator from iowa always talks out here on the floor about the proper use of taxpayer resources. he should walk in his bathroom,

look into the mirror and find out what he's doing about the proper use of taxpayer resources. he should be willing to tell us about his committee resources that are used to investigate secretary clinton. the american people deserve to know how much money is being spent on these investigations, especially if 600 honorable foreign service officers are going to be used as political pawns in a crusade to prevent hillary clinton from being elected president. i hope he will drop his opposition to career diplomats and other important nominations and we can give these good people the motions they've earned. as i've traveled the world these many years, madam president, i always go to the embassies, and i always ask to meet with as many of the staff that's there as possible, and i tell them that there's no finer group of people representing america today than our foreign service corps. and i stand by that.

it's a shame that i have to come to the floor and talk about this. we should pass these promotion lists tonight with no further delay. would the chair tell us the schedule of today's business of the senate. the presiding officer: under the previous order, the leadership time is reserved. under the previous order, the senate will be resume consideration of h.r. 2029, which the clerk will report. the clerk: calendar number 98, h.r. 2029, an act making appropriations for military construction, the department of ventvent veterans affairs and so forth and for other purposes. the presiding officer: under the previous order, the time until 5:30 p.m. will be equally divided in the usual form.

mr. tester: madam president? the presiding officer: the senator montana. mr. tester: i will defer my remarks until the chairman of the v.a. milcon appropriations subcommittee comes. until that time comes, i suggest the absence of a quorum. the presiding officer: the clerk will call the roll. quorum call:

the presiding officer: the senator from montana. mr. tester: i ask that the quorum call be vitiated. the presiding officer: without objection. mr. tester: thank you, madam president. senator kirk, it will be sometime before he gets here, so i do want to give my remarks for the purpose of other folks that would like it talk to this bill. madam president, i rise today along with senator kirk to usher the legislation through this chamber, the v.a.-milcon aeption pros bill legislation, through this chamber as quickly as possible. i do want to thank senator kick for his work on this bill. as i said last week when we began debating the v.a.-mill appropriations bill, this legislation has huge significance. it marks a good-faith effort on behalf of this body to move forward with appropriations bills that responsibly invest in our national security, our comirks aneconomy,and our count. i also think of all the appropriations bills to move forward, it's right and just that a bill to honor our commitment to in our nation's

veterans be the first one to break the gridlock. the realize that the v.a.-milcon aeptiov.a.-milconappropriationsl that i come out of committee fell far short. now that congress has passion add budget agreement, we crafted a substitute amendment that will bring this bill closer to where it has to be to meet the needs of our brave men and women who have served this country. this amendment will provide an additional $1.9 billion for v.a. medical services. this amendment fixes a flawed bill. the bill the committee passed in may grossly shortchanged our veterans and undermined the ability of the v.a. employees do their jobs, that's one of the reasons i voted against it. now six months later we're go -- we're about to right the committee's wrong and make the investments we've known all along the v.a. needs. the money will help increase

treatment for hep-c treatments and it will ensure that we can betterrecruit doctors and nurses in every state of the union. it also provides greater care for vietnam veterans who are reaching retirement age and treats the physical and mental ailments of veterans returning home after 1 15 years of war in the middle east. these are investments the v.a. desperately needs to do its job. now i no he that the v.a. has been under a microscope and it should be. it is spooming fo sponch respona promise. we need to fix it. the substitute amendment before the senate will begin to right these wrongs. you have my word that i and others will be scrutinizing how ever dollar spent because we can't afford to make these investments. without knowing they are producing real results for the

courageous service members who have earned it. i encourage my colleagues to provide amendments in a timely manner because i think we all would like to pass this bill before veterans day. once we passed bill, it will prove we're serious will living up to the promises we make our nation's veterans. it will empower v.a. employees to $their jobs and provide veterans are the care they've earned and it is not just health care. this bill will improve consideration of compensation claims for injuries suffered during their service. it gives the v.a. the tools to maintain our national cemetery system. and it supports the office of the inspector general, which we need in order to ensure that the v.a. is living up to the demands that we have placed upon it. it also adds $170 million for military construction. these funds will go towards additional projects to enhance our military readiness, tuckly fotuck --particularly for the a. it will set the stage for future

appropriations bill that invest in education, energy, in infrastructure,ing and in our public lands. so i am very happy we're considering this bill today. hopefully we can finish this bill tomorrow, as we should. it will take some cooperation, but i think the senate is finally ready for some cooperation. i look forward to that. with that, madam president, i yield the floor. i suggest the absence of a quorum. the presiding officer: the clerk will call the roll. quorum call:

quorum call:

quorum call:

a senator: madam president? the presiding officer: the senator from indiana. mr. coats: madam president, are we in a quorum call? the presiding officer: we are. mr. coats: i ask unanimous consent that the call of the quorum be expedited and expunged. the presiding officer: without objection. mr. coats: madam president, back on the floor once again for my waste of the week. i've been doing this for well over 20 weeks, highlighting

waste, fraud, and abuse of taxpayers' money. it's said that can't afford to cut another dime. programs are too important. well, i question that. since the governmental accounting office -- since the office of management and budget, since the congressional accounting office have all looked at various federal programs and said why in the world are you doing this in the first place? it's no longer relevant. it's waste of money. the function's already been taken care of. so today we're going to highlight yet another situation where this money ought to be going into either higher-priority uses such as the department of defense or funding soaldz or veterans or -- soldiers or veterans or something of that need or not taken from the taxpayer in the first place. as we document each week, our account keeps growing in terms of money that falls clearly into

the category of waste, fraud, and abuse. now, today's situation is a little bit different because the money is not being spent. and the question is, well, okay, it's reserved for something; right? well, it was. but that action has been fulfilled. and so why is that money still sitting there and who is using it, or if it's not being used, why isn't it redirected or returned to the taxpayer? let me talk about this program. throughout our nation's history, the united states has pursued various paths of energy development in order to power our communities. one of the ways we have pursued energy production is through uranium enrichment and nuclear reactors. now, that's not a popular way today of providing trek power. by the way, it is totally