During the keynote address at a symposium organized by the Center for Ethics and the Rule of Law (CERL) at the University of Pennsylvania Law School on April 18, General Michael Hayden, former CIA and NSA Director, described Russian cyber-hacking during last fall’s Presidential campaign as an example of “honorable international espionage.” He pointed out, however, that the Kremlin’s efforts to affect the U.S. election went farther than Soviet Cold War-era information campaigns by “weaponizing” the data and manipulating social media to exploit, rather than create, fractures in the U.S. political system. He added that if Americans allow the Russians to influence our elections, it is more “shame on us than on them.”
General Hayden’s remarks were delivered at the 2017 Distinguished Haaga Lecture, entitled, “Russian Meddling in the 2016 Presidential Election: Implications for the Rule of Law,” and entailed a moderated conversation with Professor Claire Finkelstein, CERL’s founder and faculty director. General Hayden’s lecture followed two expert panels, which included, among others, former U.S. Ambassador to the Czech Republic The Honorable Adrian Basora, American Enterprise Institute (AEI) Resident Scholar Dr. Fred Kagan, and the first senior legal counsel to U.S. Cyber Command Colonel Gary Brown. The panels addressed foreign interference with democratic institutions from military, diplomatic, media, and legal perspectives. The panels were co-sponsored by CERL, AEI, and the Center for Advanced Research in Global Communication (CARGC) at Penn’s Annenberg School of Communication.
The panels reached consensus on several key issues, including that the Russian cyber-hacking was reminiscent of old-style Soviet espionage intended to upend the existing U.S.-led world order, but was new in its cyber-enabled form by capitalizing on a far greater quantum of data and with much faster and better-timed dissemination. They agreed that cyber-hacking does not necessarily constitute an “act of war” or the use of force amounting to an armed attack, but rather perhaps a casus belli in which the U.S. could, depending on the circumstances, decide to treat it as such. The panelists expressed concern about an international legal regime that would permit a “kinetic” (or lethal) response to a non-kinetic cyber operation. The panelists fear such a regime would be destabilizing, prone to escalation, and vulnerable to third-party “false flag” operations.
The panelists discussed potential responses to cyber-hacking, concluding that countermeasures were warranted either to stop an ongoing information campaign or to signal deterrence, whether to a second party or potential third party, privately or publicly. Panelist Mr. David Sanger, chief White House correspondent for the New York Times, noted that he knew a number of Obama Administration officials who regretted, prior to their departure, not having done more to publicly expose the Russian hacking of U.S. government agencies by way of a deterrent.
As for a defensive response, the panelists maintained that transparency is preferable to censorship, and to that end the American public needs to be better educated about “fake news” stories and the U.S. government need not go it alone, but rather can seek reinforcement from such entities as Crowdstrike, a private cybersecurity company. On that score, General Hayden pointed out an important lesson from the Wikileaks disclosures: the American public is no longer satisfied delegating oversight of what the intelligence community is doing and learning to the three branches of government, but wants to hear about it directly. He proposes a “translucent” rather than “transparent” approach in which the intelligence community would share the broad contours of its activities and findings without disclosing the details that could compromise ongoing operations and intelligence sources and methods.
No panelist maintained that the current international legal regime is adequate to address the novel, gray-area issues that are surfacing in the world of cyber operations. Panelist Mr. Sean Kanuck, the first National Intelligence Officer for Cyber Issues (2011-16) and now at Stanford University, pointed out that space law may provide a useful analog for developing a new cyber legal regime. The panelists agreed that a multilateral treaty on cyber operations was highly unlikely, as there are too many disparate views, including among the permanent members of the U.N. Security Council, and too many non-State actors who operate in this sphere.
The Center for Ethics and the Rule of Law (CERL) is a non-partisan interdisciplinary research and policy institute, housed at the University of Pennsylvania Law School and dedicated to the preservation and promotion of ethics and the rule of law in twenty-first century warfare, other transnational conflicts, and U.S. national security. CERL holds conferences, publishes scholarship, issues briefing papers, and undertakes other activities in the furtherance of its mission. For more information about CERL’s work, please contact its Executive Director, David Sadoff, at email@example.com.