[Congressional Record Volume 157, Number 190 (Monday, December 12, 2011)]
[Pages H8356-H8726]

                            FISCAL YEAR 2012

  Mr. McKEON submitted the following conference report and statement on 
the bill (H.R. 1540) to authorize appropriations for fiscal year 2012 
for military activities of the Department of Defense, for military 
construction, and for defense activities of the Department of Energy, 
to prescribe military personnel strengths for such fiscal year, and for 
other purposes.

                  Conference Report (H. Rept. 112-329)



       Congress affirms that the Department of Defense has the 
     capability, and upon direction by the President may conduct 
     offensive operations in cyberspace to defend our Nation, 
     Allies and interests, subject to--
       (1) the policy principles and legal regimes that the 
     Department follows for kinetic capabilities, including the 
     law of armed conflict; and
       (2) the War Powers Resolution (50 U.S.C. 1541 et seq.).


     Military activities in cyberspace (sec. 954)
       The House bill contained a provision (sec. 962) that would 
     clarify that the Secretary of Defense has the authority to 
     conduct clandestine cyberspace activities in support of 
     military operations pursuant to the Authorization for the Use 
     of Military Force (Public Law 107-40; title 50 United States 
     Code, section 1541 note) outside of the United States or to 
     defend against a cyber attack on an asset of the Department 
     of Defense.
       The Senate amendment contained no similar provision.
       The Senate recedes with an amendment.
       The conferees recognize that because of the evolving nature 
     of cyber warfare, there is a lack of historical precedent for 
     what constitutes traditional military activities in relation 
     to cyber operations and that it is necessary to affirm that 
     such operations may be

[[Page H8600]]

     conducted pursuant to the same policy, principles, and legal 
     regimes that pertain to kinetic capabilities.
       The conferees also recognize that in certain instances, the 
     most effective way to deal with threats and protect U.S. and 
     coalition forces is to undertake offensive military cyber 
     activities, including where the role of the United States 
     Government is not apparent or to be acknowledged. The 
     conferees stress that, as with any use of force, the War 
     Powers Resolution may apply.