Vital Interests: Thanks very much for participating in the Vital Interest forum. You have a new book on a very timely topic, Election Interference: International Law and the Future of Democracy. Can you tell us what motivated you to write this book?

Jens Ohlin: The inspiration was definitely the 2016 election. Right after the election happened, I started thinking about news reports that Russia had intervened. I was concerned, just like everyone else, that Trump didn't seem to be particularly concerned about it. More specifically, I was interested in the intelligence community's assessment that Russia had intervened. There wasn't a very clear or unambiguous answer amongst international law scholars about whether or not Russia's conduct violated international law.

There are different angles you can take and different questions you could ask about election interference, but I was interested in the basic question: Did Russia violate international law by interfering in the 2016 election? I thought, when I first looked into it, that there would be an easy and straightforward answer to the question. It turned out that there wasn't one at all. In fact, there was considerable disagreement about what framework to use to even explore this question.

VI: You used the word “intervention.” Others have been less precise in this. They said,  Russia was meddling in the U.S. election, without any real malicious intent. What is the significance of  the language being used? 

Jens Ohlin: I think the language is important, although I don't have a particular problem with “meddling.” You can call it interference. You can call it meddling. It doesn't really make much of a difference to me. I call it interference just because I think “election interference” is a term of art for this kind of behavior. I'm not concerned that the word meddling downplays its significance.

There are all sorts of other words that people use which are very significant. For example, some people will call it a “prohibited intervention.” Not interference or meddling but intervention. Also sometimes people will refer to it as an attack, a cyber attack. Possibly even an act of war. I think all of those terms are very significant because they suggest certain ways of analyzing the problem.

VI: These words all have their own connotations. Certainly, if it was an attack or an intervention, then international law has something to say about those kinds of actions?

Jens Ohlin: Exactly. If you call it an intervention, the question is, is it an illegal intervention? International law does have a lot to say about that but it is complex. States are doing things everyday of the week that cross paths with what other states are doing because we live in a globalized world. Not every action that affects another state would be an illegal intervention. There's a difficult line-drawing problem that international law has. Making life a little bit difficult for another state doesn't necessarily violate international law.

At some point, interventions cross a line and become illegal. The concept that international lawyers usually use to draw that line is the concept of coercion. If there's some coercive aspect to it, then the intervention becomes illegal. The thing that really struck me about the 2016 election is that it did seem like an interference. It was meddling. You might even call it an intervention but the problem is, it was really hard to identify any aspect of it that was coercive. For that reason, it doesn't seem like it was illegal under that framework, though part of my project was to look at other legal frameworks that might yield a different answer.

VI: Was it a case of Russia experimenting to see how they could use social media to spread disinformation and influence segments of the American public? Putting their troll farms and bots to work, testing their capabilities to impact a high profile event like the American presidential race?

Jens Ohlin: I think it was certainly more than testing their capabilities, I think they had a strategic objective in mind. I think Russia definitely accomplished it. I think they were engaging in a very coordinated and organized operation, and they wouldn't have put those kinds of resources into it unless they had a particular objective in mind. It seems clear to me that the objective was initially to delegitimize a future Hillary Clinton presidency, on the assumption that she was going to win an election and be very hostile to Russian interests. 

Then, I think towards the late stage of the campaign, the strategic objective changed slightly, or the objectives might have flipped a little bit. The Putin regime became interested in helping Trump get elected because that seemed like more of a possibility late in the campaign than it did at the beginning. Those were the twin objectives.

If you look at the social media posts, and there was a mountain of them, they were all focused on achieving those objectives, although not necessarily in a very direct way. Sometimes it was indirect, they wanted to foster a lot of division and polarization. They wanted to suppress voter output. They oftentimes were playing both sides of the debate. It was a messy interjection in the political landscape, but I do think that those were the objectives.

VI: A major accomplishment for the Russians was obtaining the emails of Democratic National Committee  officials and disseminating them through Wikileaks.  How did that change things?

Jens Ohlin: Tough to know what's in their heads but I think they definitely became emboldened by the success that they achieved along the way. The societal polarization was something that they knew all along they could probably amp up the volume on in terms of the fractured nature of the American political scene. It's not really hard to do that. You just insert some very destructive ideas on social media, and then you try to insert them into the echo-chamber.

I think they knew from the beginning that they could accomplish that, but I think they were probably a little bit surprised about how popular Trump ended up being. In terms of the email hacking, I think that's a whole interesting sub-story here. They spent a long time disseminating the information. It was fairly easy for them to steal the information from the Democratic email accounts, for example the Podesta emails. But then they had the problem: "How do we publicize them?"

They did this interesting thing where they created a website called DC Leaks, which pretended to be some kind of DC insider leaking all of these emails. It was supposed to be a beltway insider as opposed to Russian operatives. They had their own website, and then they also had a presence on social media, and they started releasing these emails. The weird thing that happened was that no one really paid much attention to them. They just didn't really get much traction in the mainstream media or in the general discourse.

Then they redid the whole dissemination a second time through WikiLeaks and because WikiLeaks is such a prominent organization, then it really, really took off because a lot of journalists were just taking what was on WikiLeaks and writing stories about it. Then all of a sudden, the Podesta emails were all over the place. It's interesting that the stealing of the information was the easy part, but it took them a while to figure out a good conduit to get it into the public discussion.

VI: The Russians have been masters of propaganda, of disinformation, for many years. It is one of their foreign policy tools. Do you think there was any idea within the Russian leadership that interference in an American presidential election was wrong or this was just standard procedure? 

Jens Ohlin: I think these are two sides of the same coin. I think the word “wrong” has a lot of different meanings -- it is an ambiguous word because there's different ways that something can be wrong. I think they probably knew what they were doing was wrong, but they also probably saw it as being just another example of active measures or information operations they've done in many different forms over the decades.

There's this interesting debate that people have. Political scientists and historians often have this debate over whether or not a phenomenon is genuinely new or not-- what they call old wine in new bottles. My response is, this may very well be old wine in new bottles because it's just classic propaganda or information operations, but through a new modality, which is covert social media activity. The fact that something is old wine in new bottles doesn't mean that it isn't wrong and it doesn't mean that we shouldn’t care about it. There's a lot of human activity which is eternal and ever-present.

War has always existed since the beginning of mankind, and murder has always existed, but the fact that we always have those things doesn't make them any less wrong or troubling or it doesn't mean we shouldn't work to reduce or eliminate them. That's the way I think about election interference, it's this new wave of covert information warfare or information operations, but it's something that we really haven't focused enough on, and it's definitely a violation of international law.

VI:  Let's look at your idea of using the lens of international law to examine Russian interference in the 2016 election. International law defines a number of ways a state can impinge on the sovereignty of another nation. For example a cyber attack that disabled the American electrical grid or caused chaos in the banking system - an operation that caused real dysfunction and harm in the United States could be considered an act of war. Then there’s the whole idea of intervention. You used another international law lens where you state that interference in the self-determination of a nation is where the real harm is done. Can you explain this view?

Jens Ohlin: The thesis of my book is that intervention and cyber warfare are popular but ultimately misguided frameworks for analyzing the problem. Cyber war doesn't really apply because under international law an armed attack usually has to cause physical destruction, such as blowing things up or killing people. Election interference is destructive in a political sense, but not destructive in the same sense as an armed attack.

The intervention concept doesn't really work well either because of what I talked about before--the requirement of coercion doesn't seem to apply here. I searched for a better framework and what I came up with was the idea of self-determination. The principle of self-determination under international law is that every people has a right to select its own destiny, which in some situations can mean forming and ruling a country, but in other situations can mean simply participating in a multicultural or federal state.

Self-determination was a very powerful concept during decolonization. It was the right that colonies invoked to press their claim that they should be free from imperial control and should be independent. Then, after decolonization, self-determination has waned as a powerful concept, but every international lawyer recognizes self-determination is a preeminent right under international law.

Everyone agrees on that. It's in all of the major international treaties. The point I make in my book is that election interference violates self-determination because it violates the right of the American people to select their own destiny, and the way that we do that in a democracy is through an election. Protecting the integrity of an election is wrapped up in this right of self-determination. 

VI: When it comes to self determination, there are domestic examples of organizations or political parties  trying to limit or prevent access to voting. Gerrymandering, for example, and voter suppression - aren’t these also means to thwart self determination? Certainly Jim Crow laws denied Blacks their rights to determine their political future.

Jens Ohlin: I don't think that domestic “interference” necessarily falls under the ambit of international law in cases where the interference with the right of self-determination is coming from a domestic private actor, rather than from a foreign state. But it is true that international law regulates how a state treats its own citizens, so a government might violate self-determination by oppressing its own people, for example, by denying them the right to vote.  

There is an interesting connection between the international right of self-determination and how a state conducts elections. The notion of self-determination also makes it legitimate for a state to enact regulations to protect the electoral process by excluding some people--foreigners--from voting.

If you look at how elections are policed in the United States and in every well-functioning democracy, there are all sorts of rules about making sure that every person has the right to vote, making sure that foreigners are prohibited from voting, making sure that campaign finance laws are respected. All of these regulations are there to ensure that the results of the election represent the will of the people.

To the extent that you have a democratic actor who's engaging in voter suppression and keeping people from going to the polls or something like that, they are violating a domestic law. The domestic law, I think, is important because it's a law that's meant  to protect the election and ensure that it represents the will of the American people. I think that's very much connected to self-determination.

VI: In American elections you talk about boundary regulations that keep any kind of foreign interference out of our electoral process. Can you explain these regulations?

Jens Ohlin: It's a self-evident concept, but it's a little bit politically fraught to articulate it in that way, because Trump has made such a pronounced war against foreigners with his immigration regulations, and so on and so forth. I think people who are progressive are inclined to push back against Trump’s war on immigration. The thing is, if you think seriously about elections, elections can't be for foreigners to participate in because if foreigners participate in elections, then elections in a democratic system become meaningless.

If people in Russia, and the United Kingdom, and Sweden, and Senegal can all participate in an American election, then the election in a sense becomes meaningless because we're not selecting our own leader, we're selecting a leader for the whole world. That's not what elections are supposed to be doing.

There is, inherent in the notion of a democratic election, a permissible discrimination against outsiders. There is a line, and that line is represented by the boundary of a polity.

Some people are members of the polity, and some people are not members of the polity. There are reasonable disagreements we can have about whether or not that line should be citizenship or should be permanent residency or something else. I think everyone has to agree that people who have no connection at all to the polity have no business participating in an election and voting. They shouldn't be funding the election, and I also don't think they should be participating in the deliberative process covertly. That's why we have these boundary regulations to protect the integrity of the election and make sure that it expresses the will of the American people.

VI: Some countries do allow people to vote in what they call the diaspora of their population. People living outside of their country, they may have dual citizenship or there may be the first or second generation with strong family ties in their home country. That's the kind of thing that you do not think is appropriate?

Jens Ohlin: I think that's fine, because those people are part of the polity because you have countries that will define their membership in their polity through something called jus sanguinis, which is actually a part of American law too, but it's more prominent in other countries, particularly European countries, where they understand membership through blood citizenship, so ancestral relations.

You become a citizen of your country because your parent or your grandparent was a member of that polity. That's actually the way it works in the U.S. too. We also have very much ingrained in the U.S. this notion of jus soli, which is the citizenship of territory and land. The typical way of gaining citizenship in the United States is by being born on the territory of the United States.

Other countries do it differently and that's fine, but the point is that they have criteria for membership in their polity. If they want to include as citizens people living abroad who have always lived abroad, because their parents came from this country, that's perfectly fine. What's not okay is to just open up an election for everyone in the world to participate in.

Then I think the next question you have to ask is, well, what exactly does participation mean? Does social media behavior constitute participating in an election? I think that's the next question. What I say in my book is that, it's okay for foreigners to participate in an election on social media, as long as it's clear that they are outsiders speaking their mind.

What was really insidious about the Russian election interference was that these were Russians participating in the deliberative process covertly, while masquerading as Americans on social media. That's what I identify as being very troubling.

VI: Toward the end of your book, you talk about how foreign intervention in our elections could be prevented.  You advocate criminal prosecution of people who  engage in these activities. Isn’t that what  the Mueller probe tried to do? Is that the kind of criminalization process that you recommend?

Jens Ohlin: I think the Mueller report was thwarted by Attorney General Barr and also particularly by people in Congress, in particular in the Senate, who didn't want to take it seriously. I also think there was a self-inflicted wound from the Mueller team in their report, because they focused too much on the concept of conspiracy, which requires an agreement between participants.

VI: The collusion part?

Jens Ohlin: Yes. “No collusion.” “No collusion.”

I think the reason why that became such a popular phrase is because Mueller was really focused on whether or not there was a conspiracy. Conspiracy is relevant, but it’s only one part of the story. I think the more relevant part is solicitation. It’s very wrong for a domestic actor to solicit interference from a foreign power in an election. I go through the various domestic statutes which might apply, and there are many.

I think some of them might apply to that behavior, but I concede that it's a little bit ambiguous. I suggest that Trump's major impeachable offense was soliciting Russia to interfere in the 2016 election. We've just learned, in John Bolton's book, that Trump also solicited China's interference in the 2020 election. This is an ongoing problem. I finish up that chapter by calling on Congress to pass a new criminal statute making it a federal crime for an individual to solicit a foreign power to interfere in an American election, which I think would remove all doubt that this behavior is criminal.

VI: Certainly the trials of Paul Manafort and Roger Stone tried to get at this kind of solicitation but those charges didn’t stick. Both were charged for other kinds of crimes.  It doesn't seem that “solicitation of foreign interference in an election” is a way prosecutors can get at this practice.

Jens Ohlin: At least not in a way that fits squarely within the four corners of a particular federal criminal statute. The shocking thing is, though, that just on the basis of Trump's phone call with Zelensky and the transcripts of that phone call regarding Ukraine, that is an interference, which was just right there on the page. There was direct evidence that it occurred because there was a transcript of the call. Whether or not that violated a federal criminal statute or not, it should have been enough, I think, to result in Trump's impeachment and removal, but it didn't.

VI: Bolton’s book portrays Trump having a conversation with the Chinese leadership where he says "Buy more American agricultural products because that helps me with my base, and that is important for my re-election." In fact, the purchase of large quantities of American farm products was part of the trade deal the U.S. recently negotiated with China. This has benefits to the U.S. economy - but where does it cross the line, this notion of foreign solicitation? Where does the quid pro quo begin?

Jens Ohlin: I think there are some grey lines. Not every diplomatic negotiation should be restyled as a solicitation of foreign interference. It is true that a president will always have political calculations in the back of their mind. That's certainly true. That being said, I think that the Zelensky call certainly stands out because there was nothing there that Trump was pursuing that was to the benefit of the country, it was just for his political benefit. Whereas if you're talking about a trade deal, you can at least make the argument that you're pursuing something that is for the benefit of the country, and then maybe it has some collateral political benefits for the president as a candidate, but really the primary benefit goes to the country. 

The other anecdote I focused on in the book, which has been largely forgotten or ignored, is Trump's speech when he was a candidate in Florida. He told the Russians that he wanted them to find Clinton’s emails, which was a solicitation of email hacking. That, I think, was clearly a violation of Florida criminal law, state criminal law. People just brushed it off because it was so brash and public that people ignored something that was hidden in plain sight.

Here again, there was no benefit to the country, it was just a personal benefit to his campaign. Now, this issue was discussed during the impeachment trial in the Senate when Alan Dershowitz and other lawyers for the President made this really absurd argument, which is that anything that a president does for their own benefit, for their own re-election, is in the national interest because the two are intertwined because it's for the country's benefit that he get re-elected. That, I think, is just a ridiculous argument.

VI:  We're coming to the end of our time. We like to end our conversations on a positive note. With a few months until the 2020 presidential election, do you think the Russians will be as engaged as they were in 2016? Or do you think that they will be more circumspect, more cautious, because they're under a lens of examination for what they’ve been up to?

Jens Ohlin: The Russians are not deterred. They're emboldened and they're going to be even more active. They have been even more active in the run up to the 2020 election. They're intervening in other elections as well. Moreover, other countries are getting into the game too, because they've seen the success of the Russian operation. It's really a force multiplier for some states. Russia does it because I think they're particularly good at active information operations.

But there are other countries that do it because they don't have a large military advantage. They're finding that, with a relatively small financial investment, they can achieve some results on the international stage. A lot of countries are borrowing a page from this playbook. That's a depressing reality. The one thing I would say, on a more optimistic note, is that I think the solution, in terms of combating this, resides both at a public and private level.

It's not just up to the American government -- it's something that private social media platforms need to take an active role in fixing. I think they are taking an active role in trying to identify social media activity that's coming from troll farms. I think that's really part of the solution and they don’t necessarily need a law to force them to do it.  They can do it voluntarily.

The size of the problem is so massive, though, that they're going to have to invest even more resources because you can't solve this with algorithms. You need human beings going through social media posts and making a determination of where this stuff came from. That requires a fairly large investment in human capital. I think they've made a lot of progress, the social media platforms, but I think that they have to do more.

Jens David Ohlin is the Vice Dean and Professor of Law at Cornell Law School. Professor Ohlin’s work stands at the intersection of four related fields: criminal law, criminal procedure, public international law, and the laws of war. Trained as both a lawyer and a philosopher, his research has tackled questions as diverse as criminal conspiracy and the punishment of collective criminal action, the philosophical foundations of international law, and the role of new technologies in warfare, including cyberwar, remotely piloted drones, and autonomous weapons. His latest research project involves foreign election interference. His book, Election Interference: International Law and the Future of Democracy will be published on July 16, 2020 by Cambridge University Press in 2020.