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Modern Moral Problems

Is Election Meddling an Act of War?

Elad Uzan argues that although it may well be, this doesn’t necessarily justify a warlike response.

In July 2020, then-Democratic presidential candidate Joe Biden put Russia and others on notice. “If any foreign power recklessly chooses to interfere in our democracy”, he said, “I will not hesitate to respond as President to impose substantial and lasting costs.” Soon after he was elected, Biden warned that a massive Russian cyber attack against the United States, revealed in late December, would not go unanswered. In a statement issued by his transition team, the President-elect sounded ready for battle: “A good defense isn’t enough. We need to disrupt and deter our adversaries from undertaking significant cyber attacks in the first place… Our adversaries should know that, as President, I will not stand idly by in the face of cyber assaults on our nation.”

Former President Trump never confronted Vladimir Putin over Russia’s cyber aggressions directed at American companies and government agencies. Nor did Trump and his congressional allies move to hold Moscow accountable for its attempts to undermine American democratic institutions: the hacking of prominent Democrats’ email accounts, and a concerted campaign by Russian agents to sway the outcome of the 2016 election using malignant software (in this case, bots), social media manipulation and online propaganda.

With a new team in the White House, perhaps the approach will change. But what should its response be? What, for that matter, should any state do when it finds itself on the wrong end of election interference? After all, the US is hardly the only victim. Facebook, for instance, acknowledges that “it has become a battleground for governments seeking to manipulate public opinion in other countries.”

At stake here is the issue of sovereignty itself. A foreign power need not directly tamper with election results in order to undermine the sovereignty of democratic states. Even if no voting machines are hacked or tallies altered, election meddling in the other ways mentioned corrupts the process by which publics form and express their wills. It also contaminates voters’ faith in the democratic process and the rule of law, leaving them suspicious of fraud and marring the legitimacy of elected bodies and officials. The fundamental purpose of election meddling is to substitute, to the greatest extent possible, the leadership preference of a foreign power for that of a sovereign people. Hardly anything could be more dangerous to the practice and ideals of democracy. What then should democratic leaders do when faced with election meddling?

In response to foreign interference in elections, warlike language is understandable. As a hostile violation of sovereignty, election meddling fits one technical description of an invasion. However, just war theory, the most influential source of objective guidance for the ethical prosecution of wars, and the philosophical heart of international law concerning war, offers a sobering rejoinder. The theory suggests that, while election meddling is in fact a belligerent act, no actual use of military force could ever be ethically justified as a response.

Roses’n’Gun © Federico De Cicco 2021. Please visit zumar7.com instagram.com/zumar7/ or www.federicodecicco.com

The Ethical Problem of Bloodless Violence

While no blood is shed in cases of election meddling, it is a warlike act. According to a declassified US government report, during the 2016 campaign President Putin ordered his subordinates to undermine faith in US democracy, harm Hillary Clinton’s chances of winning the election, and help Trump become President. In all of these ways, the Russian government assaulted the sovereignty of the American people, effectively attempting to replace the existing US system of government with a new one. Under this new system, Russian citizens, acting covertly and with no democratic mandate, would have an outsized role in deciding how the United States was governed.

Many Americans perceived these actions as attacks even though Russia never used violence. Bill Evanina, Director of the National Counterintelligence and Security Center issued a statement in August 2020 saying, “Foreign efforts to influence or interfere with our elections are a direct threat to the fabric of our democracy.” Congressman Eric Swalwell, who took part in the investigations into the Russian interference, wrote in a posting on his House of Representatives webpage that “Russia will use the lessons learned from their 2016 attack on our democracy to carry out future attacks on both our democracy and other sovereign nations worldwide.” Fiona Hill, who served as a top Russia expert on Trump’s National Security Council, told The Atlantic, “The fact that they faced so little consequence for their action gives them little reason to stop” – an argument for deterrence, and therefore suggestive of a security crisis. In an opinion piece for CNN.com (December 16, 2020) Christopher Krebs, formerly a high-ranking US cybersecurity official, accused Russia of corroding “public faith in American democracy through cyberattacks and a coordinated disinformation campaign.” What Krebs saw was “targeted, calculated threats from without, and from within.” Prominent newspapers similarly understood Russia to be a foreign power attempting to subvert US sovereignty. In an editorial, USA Today opined, “It is not unreasonable to see the Russian attack as a sort of digital version of 9/11. No one was killed, of course, but a foreign adversary sought to strike at one of the nation’s most cherished freedoms: the right to vote in a secure election for president.” And a Washington Post editorial concluded that “Biden must call out Putin’s secret war against the United States”, labeling Putin’s actions ‘asymmetric warfare’ by means of ‘unusual weapons’.

In sum, Russia’s election meddling was widely perceived in the United States as an assault on the government and on the rights of citizens. When such an assault is undertaken by force of arms, international law and the ethics of war grant the victimized party a right to defend itself also by force of arms. Yet we may be confident that even people deeply concerned about Russia’s attack on US sovereignty would have been horrified if the response had been military retaliation. None of the above voices calling out Russian interference as an act of war recommended that the US respond with violence. But setting aside the political and strategic arguments for restraint, is such caution warranted from a moral standpoint? A closer look at the notion of sovereignty and at the injunctions of just war theory suggests that caution against the use of force is indeed warranted, further narrowing the toolkit for ethical responses to election interference.

Sovereignty, Power & Violence

Just war theory is traditionally attributed to Ambrose (ca. 339-397 CE) and Augustine (354-430 CE). Nine hundred years later, Thomas Aquinas devised some ground rules for when it would or would not be justified to wage war. The theory has evolved over the centuries since, but the biggest developments took place due to the widespread adoption of the notion of sovereignty, while recasting it in terms of what is allowed or forbidden in wars between modern nation-states. Sovereignty is now. a guiding principle of international relations, referring to a state’s supreme authority within that state’s territory. The concept was developed first by Francisco de Vitoria in the early sixteenth century; then later in the same century by the likes of Jean Bodin, Hugo Grotius, and Alberico Gentili, who wrote during or in the aftermath of the French Wars of Religion. Their ideas inspired the Peace of Westphalia (1648), which concluded the Thirty Years’ War. The Peace of Westphalia proved to be more than an agreement to lay down arms, though: the notion of sovereignty embedded in the pact became the foundation of international law.

International law now holds sovereignty sacrosanct. Notably, what serves as a justification for defensive response is not the extent of the harm done to human life or property but the violation of sovereignty. History is full of violation of sovereignty cases in which states have responded violently to bloodless invasions, and yet have done so without suffering international accusations of wrongdoing. One such example is the British action following the 1982 invasion of the Falkland Islands by the Argentine armed forces. Amazingly, no British deaths or injuries resulted from the initial invasion. 107 Royal Marines surrendered following a brief clash, and were returned to Britain unscathed. Nevertheless, Britain’s response – a war that cost nearly a thousand lives, including those of a small number of Falkland Islands civilians – was lawful under international treaties, which grant states the right to use force in protecting their borders. The underpinning of this right is traditional just war theory’s unwavering respect for sovereignty regardless of other ethical factors. A state’s borders may be drawn unjustly; the territory these borders enclose may be of little value to the sovereign and its citizens, and may be subject to insistent claims by others, but even then the ethics of war lies on the side of the sovereign power. For, as the Westphalia participants realized, the injustices of the sovereignty itself may be outweighed by the benefits of peace achieved through a firm non-interference policy.

Traditionalists vs Revisionists

In our quest to make ethical choices about engaging in war, or not, we need not be guided by the example of Westphalia alone. In the centuries since that pact, philosophers have done much to further elaborate just war theory.

In modern times, just war theory has branched into two schools: traditionalist and revisionist. The traditionalist position reflects a position more or less in line with that derived from the Westphalian peace and contemporary international law, and is represented best by Michael Walzer’s seminal 1977 work, Just and Unjust Wars. According to Walzer, “every violation of the territorial integrity or political sovereignty of an independent state” constitutes an act of aggression. For Walzer, states have fundamental sovereignty rights, owing to which any harm done to the state’s sovereignty justifies the use of force.

The revisionist camp is in turn spearheaded by Jeff McMahan, whose landmark 2009 book, Killing in War, revolutionized the philosophical discussion of the ethics of war by questioning both the moral standing of states and the traditionalists’ presumption that sovereignty is the highest good. According to McMahan, states may ethically protect their citizens’ lives and rights, but sovereignty itself is not an independent good. Rather, it is worth protecting only insofar as doing so secures the rights and lives of citizens. The revisionist and traditionalist schools thus come to different conclusions over cases like the Falklands.

We might presume that if the British defense of its Falklands territory was in fact unjustified, then surely nonviolent Russian cyberactivity cannot justifiably be met with force, either. Yet revisionist just war theory actually comes to the opposite conclusion here: it can be met with force. This is a conclusion shared by the traditional theory. So although traditional and revisionist just war theories are in fundamental ways at odds and provide contradictory guidance in some cases, on the subject of foreign election interference they can be reconciled. This would seem a strong argument that a forceful response is justified in this case.

We need not delve deeply into traditional theory to understand its conclusion that election meddling is casus belli – just cause for going to war. That would be based simply on the violation of sovereignty. But what about the revisionist theory? According to McMahan, what makes someone liable to defensive harm is whether the defensive harm is justified under specific conditions, not the kind of harm threatened. Thus a sovereignty violation is not by itself an adequate cause for going to war, but sufficient harm to citizens’ rights does justify shedding blood. So, if foreign election meddling significantly undermines the political rights of enough citizens, the violated state might be justified in resorting to violence in order to redress the harm its people have suffered, and reestablish the integrity of their political institutions.

Other revisionists concur. Cecile Fabre asks us to imagine a situation in which voters in a state – let’s call it Democratania – are unable to use their intended ballots because hackers from an enemy state – Invada – sabotage the election’s result. Invada has not killed a single Democratanian. Still, according to Fabre, rights violations on such a large scale might justify lethal response.

To complicate Fabre’s example, let’s conceive of a democracy in which the burning political issue to be decided in the next election is whether to continue a protracted war against a neighboring state. Imagine, furthermore, that there are two plausible candidates for the election, and the winner will decide whether the war continues. The two candidates present opposing viewpoints: one promises to end the war, the other to extend it. Now imagine that a foreign power with financial and political interests in prolonging the war interferes in the democratic processes of the election, hacking internet accounts and balloting machines, in order to manufacture the victory of the pro-war candidate. In this case the people do not decide whether or not to continue the war – a foreign power does. Without incurring the substantial costs of invasion or of assassinating the other candidate, that power asserts its will over a state in which it has no political rights. If election meddling is a less costly way to achieve the goals normally achieved by violence, that does not mean the goals have changed in a way that would neutralized a state’s rights to self-defense.

The Spirit of Peace Flies Over The World
The Spirit of Peace Flies Over The World by Farshaad Razmjouie 2021

Further Reasons Against Force

It is easy to see, from the thought experiment, that election meddling can be a harmful violation of rights and sovereignty. Thus, at least at first glance, electoral interference may justify the use of force on both traditionalist and revisionist just war theories. However, both accounts place further constraints on the exercise of force, and it turns out that thanks to these constraints, it is impossible to ethically respond to election meddling with force.

Just war theory enumerates six preconditions for the justifiable use of force: 1) There must be a just cause; 2) The resort to violence must be necessary in order to realize that cause; 3) The planned response must be proportionate to the harm expected from the enemy’s actions; 4) There must be a reasonable probability of success in achieving the just cause; 5) The defender must be acting with the right intentions; and 6) The defender must be acting on legitimate authority. Let’s assume for the sake of argument that election meddling might provide a just cause. It is still unclear whether resorting to force would satisfy the further criteria of necessity, proportionality, and probability of success. Indeed, on my view, these conditions constitute the most significant ethical constraints on warmaking.

First let us consider necessity. Is it necessary to use force to prevent a foreign power’s interference in a nation’s elections? In most cases, probably not. A variety of other courses of action might be more effective. These could include improved security for online voting; regulations preventing the use of bots on social networks; and taking the balloting process entirely offline. The use of force is likewise unnecessary for punishing the meddler, who could instead be subject to economic sanctions or various other diplomatic censures.

Second let us consider proportionality. There’s the fraught problem of measuring the harm to proportionately tailor the response to it. How do you quantify the damage of electoral interference, especially when no votes are changed, or one cannot determine whether the meddling affected outcomes? How do you compare that with the quite different harms that would result from armed retaliation? Any answer to these questions will be marred by imprecision.

Third, how likely is it that a forceful response will achieve the just goal? That is, how probable is it that the use of force will restore the victim state’s sovereignty or the rights of its citizens? An armed operation could only be viewed as successful if the meddling state’s leaders come to admit and turn away from what they’ve done. But even then, the restoration of a state’s sovereignty would have to come from within the state itself. For instance, politicians elected illegitimately due to election interference might respond to that revelation by ceding power and agreeing that they never legitimately held it. Such an outcome is probably unachievable except at an enormous cost – far greater than could ever be proportionate to the harm done. And we cannot be confident that the people’s trust in their sovereignty would actually be restored in that case. And in all likelihood, a forceful retaliation in response to election interference would cause a much greater harm to the damaged democracy than the meddling itself. When it comes to election interference, large constituencies are probably better off ignoring the meddler, and taking non-violent steps to ensure that the meddling won’t happen again.

And so we reach a surprising conclusion. On both accounts of just war theory, election meddling of the kind Russia initiated in 2016 violates a state’s sovereignty in a way that justifies defensive response. Yet, on both accounts, the hands of the invaded sovereign are somewhat tied. The use of force would be unethical, in spite of real harms to sovereignty.

The Road Ahead

If we draw only on traditional and revisionist just war theories, then we’re stuck at this impasse, and must accept that election meddling cannot be prevented through either the use or the threat of force.

On my view, the real harm of election meddling to sovereignty plays out in terms of the rights of the victimized public. Election meddling creates a situation in which one portion of the electorate believes its rights undermined, while another portion remains committed to the legitimacy of the election outcome in spite of the acknowledged meddling. The problem therefore needs to be solved within the society and institutions of the attacked state. Although international institutions can help by adjudicating the facts and coming to some advisory determination, it is still up to the ‘invaded’ people to recognize that their democratic rights amount to more than the outcomes of tainted elections. So ultimately, although many Americans may see Russia’s election meddling as warlike, the defense of democracy must come from within and take the form of a realization across the ideological spectrum that it was an unacceptable violation of sovereignty, leading to a commitment to internal reform in order to steel the country against further similar violations. Reforms to social media regulation; reforms to election law; civic education to help citizens discern propaganda better; and political processes to remove from power politicians who refuse to condemn this violation of sovereignty, and thereby encourage it.

© Dr Elad Uzan 2021

Elad Uzan did his PhD in philosophy and law at Tel Aviv University. Starting October 2021, he will join Oxford University’s Faculty of Philosophy as a Marie Curie Fellow.

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