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Covert Deception, Strategic Fraud, and the Rule of Prohibited Covert Deception, Strategic Fraud, and the Rule of Prohibited
Intervention Intervention
Gary Cor
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National Security, Technology, and Law
A HOOVER INSTITUTION ESSAY
Covert Deception, Strategic Fraud,
and the Rule of Prohibited Intervention
GARY P. CORN Aegis Series Paper No.2005
All warfare is based on deception.
1
It clearly follows from the liberty and independence of Nations that each has the right to
govern itself as it thinks proper, and that no one of them has the least right to interfere in the
government of another.
2
If information is power, then the corruption of information is the erosion, if not the
outright usurpation, of power. This is especially true in the information age, where
developments in the technological structure and global interconnectedness of information
and telecommunications infrastructure have enabled states to engage in malicious influence
campaigns at an unprecedented scope, scale, depth, and speed. The Digital Revolution and
the attendant evolution of the global information environment have intensified, if not
generated, what one expert describes as “one of the greatest vulnerabilities we as individuals
and as a society must learn to deal with.”
3
The relative explosion of digital information and
communications technology (ICT) and the modern information environment it has enabled
“have resulted in a qualitatively new landscape of influence operations, persuasion, and,
more generally, mass manipulation.”
4
As evidenced by Russia’s recent efforts at election interference in the United States and
Europe, the role of information conflict in global strategic competition has evolved and
taken on new weight.
5
A number of revisionist states, Russia and China chief among them,
have fully embraced the new reality of the modern information environment, deftly adapting
their capabilities and strategies to exploit the societal vulnerabilities it exposes. They have
incorporated sustained, hostile influence campaigns as a central part of their destabilizing
strategies to cause or exacerbate societal divisions, disrupt political processes, weaken
democratic institutions, and fracture alliances, all with a broader aim of undermining the
rules-based international order and gaining competitive advantage.
The anchor for these campaigns is the extensive and deep use of ICTs to conduct covert
deception and disinformation operations at an extraordinary scale. Deployed at a strategic
The opinions expressed herein are those of the author and do not necessarily reflect the views of the Department
of Defense or any other organization or entity with which the author is ailiated.
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Gary P. Corn • Covert Deception, Strategic Fraud, and the Rule of Prohibited Intervention
level, malign influence and disinformation operations have the very real potential to
undermine and disrupt a targeted state’s independent exercise of core governance prerogatives.
Along with the advent of hostile cyber operations, these ICT-enhanced deception campaigns
have raised challenging questions about whether and how international law applies to these
novel state interactions. This paper focuses on the customary international-law prohibition
against intervening in the internal and external affairs of another state—a rule intended to
protect the cardinal right of states to conduct their affairs without outside interference. It
considers the rule’s applicability to the murky and evolving landscape of information conflict.
Drawing on general principles of law, it argues for an interpretation of the nonintervention
rule better suited to the realities of the information age, where undermining the exercise
of sovereign free will is the specific aim of strategic covert deception and disinformation
campaigns.
The nonintervention rule is important because US adversaries see the information
environment as fertile ground for subverting the United States and the rules-based
international order. Among the reasons for this perspective is the tremendous ambiguity
surrounding the international legal framework applicable to states’ use of ICTs, especially in
the gray zone below traditionally recognized use-of-force thresholds and outside of armed
conflict. To date, efforts to achieve greater clarity regarding international law’s applicability
to states’ use of ICTs, whether led by states or otherwise, have focused almost exclusively
on the problem of harmful cyber-effects operations—the use of cyber capabilities to
disrupt, deny, degrade, destroy, or manipulate computers or information systems or the data
resident thereon. With the exception of some limited scholarship and commentary on the
international-law implications of Russia’s 2016 election interference, little work has been
done to analyze the use of ICTs as a platform for covert deception.
The primary conflict-regulation mechanism in international law is the United Nations
(UN) Charter prohibition on states using force against the political independence or
territorial integrity of other states. While a small number of states have recently signaled a
willingness to consider some cyber operations involving serious financial or economic harm
as amounting to uses of force, they have thus far not indicated the same openness with
regard to influence operations. For good reason, they are unlikely to do so. Overly expansive
invocation of the use-of-force prohibition has obvious escalatory implications. In contrast,
the nonintervention rule, which governs both forcible and nonforcible measures, is far more
suited to regulating the sub-use-of-force threats the nuanced sphere of information conflict
and covert deception pose.
With respect to cyber-effects operations, there is little if any dissent from the view that
the rule of prohibited intervention applies to states’ use of ICTs.
6
Consensus quickly breaks
down, however, over the rule’s content. The rule is generally described as prohibiting
coercive measures against a limited but important zone of sovereign interests falling
within what is commonly referred to as a state’s domaine réservé. Unfortunately, substantial
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3
definitional and conceptual uncertainty clouds understandings of the “elements” of this rule
and how they apply in practice, especially in the context of cyber and information conflict.
The International Court of Justice (ICJ) has described the element of coercion as “defin[ing],
and indeed form[ing] the very essence of, prohibited intervention.”
7
Many commentators
have treated this statement as canonical and have applied it dogmatically, notwithstanding
the court’s failure to offer a definition of the term. Both the ICJ’s statement and the undue
weight many afford it misapprehend the true objective of the rule—to prevent states from
employing measures aimed at depriving a targeted state of the free exercise of its will over
protected sovereign matters. They also fail to capture significant modes of state action,
strategic covert deception in particular, that should be considered internationally wrongful.
As the attorney general of the United Kingdom has noted, achieving greater clarity as to
the nonintervention rule’s force and effect is of “particular importance in modern times
when technology has an increasing role to play in every facet of our lives, including political
campaigns and the conduct of elections.”
8
Adapting the concept of coercion to account for
the realities of modern information conflict is a necessary step toward achieving the clarity
he seeks. Deception is frequently regulated in domestic legal regimes, either directly in the
form of criminal fraud provisions, or indirectly through the recognition that deception can
substitute constructively for the actual force and coercion elements of other crimes. In both
cases, it is the subversion of free will that is considered the cognizable harm. States should
draw on these general principles of law to inform the concept of coercion in international law
and thereby better define the nonintervention rule’s applicability to information conflict.
This paper’s efforts to reinforce the existing international legal architecture are not offered
as a panacea to the ill of foreign influence campaigns. International law has its limits,
and countering hostile foreign influence will require a far more holistic and concerted
approach than simply evolving or achieving greater clarity as to the scope of applicability
of any particular rule of international law. But as one important study notes, the United
States “needs an updated framework for organizing its thinking about the manipulation
of infospheres by foreign powers determined to gain competitive advantage.”
9
The
US Department of Defense’s implementation of a new cyber strategy in 2018 with its
operational concept of “defend forward” is a step in the right direction, as evidenced
by the success of US Cyber Command’s reported operations to counter Russian election
interference in 2018. Accurately characterizing covert influence campaigns as a matter of
international law would add additional tools to the defend-forward toolbox, and doing so
should figure prominently in a broader effort to develop a coherent strategy and framework
to counter foreign influence efforts while reinforcing the rules-based international order.
The Problem: Covert Deception and Disinformation Operations at Scale
Information conflict is not new. Propaganda is a truly ancient human endeavor, and states
have leveraged information—truthful, manipulated, and fabricated—for influence purposes
since the inception of the Westphalian order. Hostile influence campaigns have historically
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Gary P. Corn • Covert Deception, Strategic Fraud, and the Rule of Prohibited Intervention
assumed many monikers and taken many forms but generally share the common
characteristic of disseminating overt and covert propaganda (including facts, opinions,
rumors, half-truths, and lies) in pursuit of a competitive advantage over an opponent.
Suasion, including the use of propaganda, is a staple of statecraft and has long been viewed
as falling outside international law’s reach.
The Cold War provides a relatively recent example. Political warfare was the defining
characteristic of the conflict, and a primary weapon in the Soviet Union’s arsenal was
its use of “active measures”—subversive practices including political influence efforts,
the surreptitious use of Soviet front groups and foreign communist parties, and the core
element of dezinformatsiya (disinformation).
10
One former KGB general described the use
of active measures as “the heart and soul of the Soviet intelligence” apparatus, specifically
designed to subvert the United States and “drive wedges” in the West’s alliances.
11
To
be sure, the United States also employed deception during the Cold War. But Russia has
reinvigorated such efforts in the post– Cold War era; according to recent US intelligence
assessments, Russia’s campaign to interfere in the 2016 presidential election “demonstrated a
significant escalation in directness, level of activity, and scope of effort” to undermine “the
U.S.-led democratic order.”
12
Russia’s efforts in 2016 were aimed directly at the US presidential election. The objective
was to undermine public faith in the democratic process and to denigrate and harm the
electability of one candidate and boost the candidacy of another. Although unprecedented
in scope and scale, Russia’s campaign “followed a longstanding . . . messaging strategy
that blends covert intelligence operations—such as cyber activity—with overt efforts by
Russian Government agencies, state-funded media, third-party intermediaries, and paid
social media users or ‘trolls.’ ”
13
Russia employed a multifaceted approach to its interference
campaign that involved cyber espionage against both political parties; the weaponization
of sensitive information collected through those operations, specifically the timed release
through intermediaries of personal emails and other damaging information belonging to
Democratic Party officials and political figures; hacking into state and local electoral boards
and voting systems; and a deep and extensive propaganda effort, both overt and covert.
14
Russia’s use of “quasi-government trolls” to covertly propagandize and spread mis- and
disinformation played a central role in its election interference efforts and demonstrated
Russia’s broader goals of undermining public faith in the democratic process and
institutions and generally seeding and cultivating political discord. The Internet Research
Agency (IRA), an entity in St. Petersburg, Russia, financed by a Russian oligarch and close
Vladimir Putin ally with ties to Russian intelligence, ran an extensive and well-organized
social-media dezinformatsiya campaign.
15
Among other tactics, the IRA used false personas
and the stolen identities of real Americans to purchase millions of dollars’ worth of
advertising on social media platforms such as Facebook, Twitter, and Instagram to plant
propaganda, and used false accounts and bots to amplify its messaging. The IRA also used
Hoover Institution • Stanford University
5
these false social media accounts to stage political rallies in the United States and to solicit
and pay unwitting US persons to promote or disparage candidates.
Based on these well-documented interference efforts, in 2018 the grand jury in Special
Counsel Robert Mueller’s investigation returned an indictment of thirteen Russian
individuals and three companies associated with the covert deception campaign.
16
Each was accused, inter alia, of conspiring “to defraud the United States by impairing,
obstructing, and defeating the lawful functions of the government through fraud
and deceit for the purposes of interfering with the U.S. political and electoral process,
including the presidential election of 2016.”
17
The indictment lays out in detail the IRA’s,
and by extension Russia’s, extensive covert influence activities aimed at swaying the 2016
election and “sow[ing] discord in the U.S. political system.”
18
In 2020, the Senate Select
Committee on Intelligence released an extensive three-volume report, Russian Active
Measures Campaigns and Interference in the 2016 U.S. Election, confirming the intelligence
community’s assessment.
19
Russia’s interference and covert influence campaigns are not limited to targeting the
United States. Europe has been on the receiving end of Russia’s disruptive efforts perhaps
longer than has the United States.
20
In addition to targeting an array of European states
with destabilizing disinformation campaigns generally, Russia has targeted elections in
Ukraine, France, Germany, and the United Kingdom, to name a few, as well as the European
Parliament election in 2019.
Russia’s interference in the 2016 presidential election served as a wake-up call. In response,
the United States mounted a concerted, government-wide effort to protect the 2018 midterm
elections against Russian interference operations, taking measures that reportedly included
Department of Defense cyber operations. But Russia’s covert influence operations have not
abated. All indicators point to Russia stepping up its efforts to interfere in the 2020 elections.
21
Evidence is also mounting that Russia is disseminating disinformation regarding the
COVID-19 pandemic in order “to aggravate the public health crisis in Western countries,
specifically by undermining public trust in national healthcare systems—thus preventing
an effective response to the outbreak.”
22
Russia is not alone in this regard. Although arguably several steps behind, China has
also moved aggressively into the information conflict arena. The Chinese Communist
Party “has used ideology and propaganda as governing tools ‘since the People’s Republic
was established in 1949,’ and this can even be dated to the Party’s founding in 1921.”
23
While traditionally these efforts were more internally focused, China now views influence
and information operations as a “magic weapon” for achieving its foreign policy goals.
24
Indications are that it has learned from Russia’s disinformation campaigns. China is testing
those lessons and refining its influence capabilities in Taiwan and Southeast Asia and has
moved beyond spreading, for example, COVID-19−related disinformation.
25
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Gary P. Corn • Covert Deception, Strategic Fraud, and the Rule of Prohibited Intervention
Russia and China present the most advanced information-conflict threats, but they are not
the only threats. Iran and other US adversaries are studying, emulating, and adapting the
Russian and Chinese models to advance their own disruptive goals. According to the
2019 Worldwide Threat Assessment, “US adversaries and strategic competitors almost
certainly will use online influence operations to try to weaken democratic institutions,
undermine US alliances and partnerships, and shape policy outcomes in the United States
and elsewhere.”
26
In each case, these campaigns extend beyond open influence activities,
employing sophisticated deception operations to achieve strategic aims. Countering these
efforts is and should be a stated US policy goal, along with strengthening the international
rules-based order and the applicability of international law to states’ use of ICTs, other
emerging technologies, and interactions in the information environment.
27
The rule of
prohibited intervention is the most pertinent rule of international law available to confront
the harm of election interference and covert deception campaigns.
International Law and the Principle of Nonintervention
State sovereignty and the principle of sovereign equality form the foundation upon which
the rules-based international order rests.
28
At its core, sovereignty signifies independence in
relations between states, with independence being the right to exercise the functions of a state
within a defined portion of the globe—the territory under the state’s lawful jurisdiction—to
the exclusion of any other state.
29
These organizing principles underlie the most important
rules of international law governing interstate relations, such as the jus ad bellum prohibition
on states using force against the territorial integrity or political independence of other states.
30
States have also developed the customary international-law principle of nonintervention
as a safeguard against impairments of their sovereignty. The principle is considered
a “corollary of every state’s right to sovereignty, territorial integrity and political
independence.”
31
It protects the “right of every sovereign State to conduct its [internal and
external] affairs without outside interference.”
32
The nonintervention principle is written
into numerous international instruments, and states frequently invoke it, albeit with
imprecision and under disparate circumstances.
The customary status of the nonintervention rule is not controversial, and the proposition
that it applies to states’ use of ICTs, at least in the context of cyber operations, is gaining
increased acceptance among states.
33
Further, it is widely recognized that the rule can be
violated by both forcible and nonforcible means.
34
Unfortunately, outside of relatively clear
examples of forcible interventions—which concurrently violate the prohibition on the use
of force—the rule’s content is commonly recognized as ill defined.
35
This makes it difficult
to discern the line between nonforcible but unlawful interventions on the one hand and
lawful influence activities on the other.
States routinely employ various means of statecraft with the intent of shaping other states’
policy decisions or actions, and there is no general prohibition in international law against
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7
states engaging in suasion. And although states frequently invoke the terms intervention
and interference to complain about such activities, they are not the same normatively.
International law only proscribes the former as wrongful; “interference pure and simple is
not intervention.”
36
It is an important distinction, setting apart what states view as legitimate
from illegitimate forms of statecraft, itself an expression of sovereign will. Unfortunately,
the indeterminate line between mere interference and prohibited intervention weakens the
nonintervention rule’s value as a guard against impairments of sovereign rights and “risks
permitting coercive policies that undermine the political independence of states or impair
the right to self-determination,” especially in the context of information conflict.
37
Although the precise content and scope of the nonintervention principle are unclear,
certain core aspects of the rule are evident. The general contours can be gleaned from the
ICJ’s description of the principle in its Nicaragua judgment, where it explained:
The principle [of nonintervention] forbids all States or groups of States to intervene
directly or indirectly in internal or external affairs of other States. A prohibited
intervention must accordingly be one bearing on matters in which each State is permitted,
by the principle of State sovereignty, to decide freely. One of these is the choice of a
political, economic, social and cultural system, and the formulation of foreign policy.
Intervention is wrongful when it uses methods of coercion in regard to such choices,
which must remain free ones. The element of coercion, which defines, and indeed
forms the very essence of, prohibited intervention, is particularly obvious in the case of
an intervention which uses force, either in the direct form of military action, or in the
indirect form of support for subversive or terrorist armed activities within another State.
38
This passage is often cited for the proposition that interference is only internationally wrongful
when two constituent elements are present. First, the measures employed must be directed
against the domaine réservé of the targeted state. Second, such measures must be coercive.
39
The ambiguity that plagues the nonintervention rule generally also infects these two
elements. Unfortunately, the ICJ has offered little by way of additional explanation. This
should not be surprising. The court’s discussion of nonintervention in the Nicaragua
judgment was narrowly confined to the specific facts of the case, which primarily concerned
forcible measures.
40
Further, the court’s entire sua sponte discussion of the nonintervention
principle was only for the purpose of ruling out whether the forcible measures attributed to
the United States were justified as countermeasures.
41
As such, its broader pronouncements
on the elements of the rule— or lack thereof—were unnecessary and should be considered
with circumspection.
42
Still, convention holds that the concept of coercion demarcates the
line between mere interference and wrongful intervention.
43
The ICJ’s focus on coercion as the touchstone of prohibited intervention likely reflects
the evolution of the rule over time from one that traditionally served to protect only the
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Gary P. Corn • Covert Deception, Strategic Fraud, and the Rule of Prohibited Intervention
territorial integrity of states against military force to one aimed at also shielding political
independence against nonforcible infringements.
44
In this regard, the term is perhaps
equally inapt and unhelpful since in common parlance the concept of coercion is generally
considered to involve force or the threat of force to impose one’s will on another.
45
As set
out below, overreliance on coercion as a defining element of intervention distorts the focus
of the rule and risks excluding from its scope nonforcible means of subverting protected
sovereign interests. Before turning to the element of coercion, however, a brief discussion of
the concept of domaine réservé is useful.
The Concept of Domaine Réservé
As noted, the nonintervention rule does not reach all forms of state interference in the
internal affairs of other states. It is a rule of finite scope as to both the object and means
of outside state action. And states have generally rejected proposals to prohibit their use of
propaganda to influence other states. With respect to the object of prohibited intervention,
the zone of sovereign interests or state functions protected by the rule has never been well
understood or defined.
Oppenheim describes intervention generally as “a form of interference by one state in the
affairs, internal or external, of another” by either direct or indirect means.
46
By “affairs,”
Oppenheim is referring loosely to the prohibited object of intervention—matters which,
as a function of sovereignty, are reserved in international law to the sole prerogative of
states. This zone of protected interests is often referred to, imprecisely, as the state’s domaine
réservé. As Jens David Ohlin has noted, “despite the patina of precision in its French
rendering, the concept has little internally generated content” as a concept.
47
Strictly speaking, domaine réservé refers only to matters within a state’s internal jurisdiction,
and therefore does not speak to the full range of protected sovereign functions which
also include a state’s external affairs.
48
According to the ICJ, these matters include, but are
not limited to, the right to choose a political, economic, social, and cultural system and
to formulate and execute foreign policy.
49
The right of states to independence over these
matters is not conferred by international law, but rather is inherent in the concepts of
statehood and sovereignty. Therefore, the rule’s protection is better understood as extending
to those matters in which each state has the right, “by the principle of State sovereignty, to
decide freely.”
50
Restrictions on states’ independence over these sovereign matters cannot be
presumed.
51
Perhaps the most frequently cited example of a matter falling within the scope of the
domaine réservé, and thus within the nonintervention rule’s protection, is a state’s choice of
both its political system and its organization.
52
In contrast, purely commercial government
activities are generally considered to fall outside of the domaine réservé.
53
Between these
extremes, uncertainty lingers, and the rule’s scope depends on a number of variables,
including, perhaps most importantly, the degree to which a particular state’s discretion
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9
over a matter is subject to its specific international obligations. To the extent a state’s policy
choices are governed by international law, the state is considered to have surrendered its
discretion over the matter. That is, the concept of sovereign prerogative is not without
limits, and those “domains or activities” not strictly reserved to the state are said to be
potentially subject to foreign action.
54
Accordingly, in light of the ever-expanding subjects
of international regulation, some commentators argue that the concept of domaine réservé is
diminishing, and therefore so too is the utility of the nonintervention rule.
These are exaggerated claims. First, since international legal obligations vary from state to
state, the “margin of liberty” each exercises will differ accordingly.
55
International legal
obligations differ widely as to content and may apply differently depending on the state
involved and the given circumstances. Further, states often retain significant independent
authority even with respect to matters committed to international law.
56
The scope of
another state’s authority to intervene in a matter regulated by international law will generally
be defined by the source of the obligation at issue. Most often, available remedies are narrow
and specifically defined in applicable treaties. Outside of such treaty-based measures, the
customary law of state responsibility sets a high bar for an intervening state to claim that
the wrongfulness of its employment of coercion against a targeted state should be excused
or precluded as a legitimate countermeasure.
57
Therefore, the fact that a matter is in some
way the subject of international regulation does not equate to a license for other states to
coerce decisions or conduct with respect thereto.
Ultimately, like many aspects of international law, whether a matter falls within the
protective ambit of the nonintervention rule involves a fact-specific inquiry, considering
state practice and opinio juris prevalent at the time.
58
Suffice to say that, notwithstanding
the increasing degree to which states surrender some degree of sovereignty to international
regulation, there exists a strong presumption that matters of state governance fall to the
sole prerogative of states and are protected from external intervention. That is, “it is in the
expression of [the] idea” that sovereignty equates to “the exclusion of the authority of other
states, but not international law,” that “the principle of nonintervention has its primary
function.”
59
Holding elections and implementing public-health measures, two areas that
Russia has specifically targeted in the last several years, certainly fall within this protective
umbrella. Elections are frequently cited as a quintessential matter falling within a state’s
domaine réservé.
60
Similarly, the adoption and implementation of public-health policies and
measures, especially in the face of a global pandemic, are widely recognized as legitimate
matters of governance within a state’s internal sovereign jurisdiction.
61
The Elusive Element of Coercion
As with the concept of domaine réservé, little interpretive guidance exists in international
law regarding the element of coercion. In Nicaragua, the ICJ described as a particularly obvious
case “an intervention which uses force, either in the direct form of military action, or in
the indirect form of support for subversive or terrorist armed activities within another
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Gary P. Corn • Covert Deception, Strategic Fraud, and the Rule of Prohibited Intervention
State.”
62
Equally obvious is that neither propaganda nor aggressive diplomacy qualifies as
a prohibited intervention, at least not per se.
63
Between these extremes, the standard lacks
clarity, making it difficult to map to the realm of information conflict.
The principle of nonintervention has been described as a “doctrinal mechanism to
express the outer limits of permissible influence that one state may properly exert upon
another.”
64
Since the principle’s inception, locating the demarcation between permissible
and impermissible influence has proved exceedingly difficult. The vagueness in the rule’s
scope and meaning traces back to the principle’s conceptual roots and the differences in
the early naturalist and positivist approaches to international law generally, and to the
principle’s definition and evolution specifically— differences beyond the scope of this
paper.
65
It is enough to note that a significant aspect of these early debates centered on
whether the principle was absolute or was subject to exception, for example, as a matter of
self-preservation.
66
The latter view ultimately held sway, shifting the focus of the debate
to the issue of when interventions might be justified, and, more important to the present
discussion, how to define the “outer limits” of permissible influence.
Historically, armed force, described as “dictatorial interference,” was considered the dividing
line between permissible and impermissible influence.
67
In fact, well into the twentieth
century, many states and commentators, including the United States, held the view that
prohibited intervention and the prohibition on the threat or use of force were equivalent.
68
Over time, however, the concept of intervention expanded, and coercion evolved as a
broader but inapt benchmark for denominating the boundary between lawful influence and
prohibited intervention.
Thus, according to Oppenheim, “to constitute intervention [an] interference must be
forcible or dictatorial, or otherwise coercive,” and can take the form of direct or indirect
military action, as well as nonmilitary actions such as economic or political measures
“where they have the necessary coercive effect.”
69
This expanded concept of intervention
also finds expression in a number of treaties, declarations, and General Assembly
resolutions concluded in the latter half of the twentieth century—instruments that the
ICJ has cited as reflective of customary international law.
70
For example, the Friendly
Relations Declaration recalls “the duty of States to refrain in their international relations
from military, political, economic or any other form of coercion aimed against the political
independence or territorial integrity of any State.”
71
However, beyond reinforcing the
notion that prohibited interventions can be effected by nonforcible means, these sources
offer little guidance on the meaning of coercion as the term is used in the specific context
of intervention, and in certain respects are at odds with state practice. States routinely use
sanctions and other economic means to pressure or compel other states and have frequently
rejected proposals that would deem the use of economic pressure as internationally
wrongful.
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The ICJ’s rendering of the nonintervention principle in its Nicaragua judgment is often cited
as offering a definitive description of the rule’s content. According to the court:
Intervention is wrongful when it uses methods of coercion in regard to such choices,
which must remain free ones. The element of coercion, which defines, and indeed
forms the very essence of, prohibited intervention, is particularly obvious in the case of
an intervention which uses force, either in the direct form of military action, or in the
indirect form of support for subversive or terrorist armed activities within another State.
72
However, as noted above, the court specifically limited the scope of its review, confining
its description to “only those aspects of the principle which appear to be relevant to the
resolution of the dispute.”
73
By and large, the dispute was over measures the court separately
determined to constitute direct and indirect uses of force that it deemed “particularly
obvious” examples of intervention.
74
Beyond this discussion, the court intimates that
coercion can involve nonforcible measures, but offers no guidance on how.
Undue weight is often ascribed to the court’s discussion of the nonintervention rule.
Its account of the rule is nonbinding and general in description.
75
In this regard, its
comment that coercion “defines” and “forms the very essence” of the rule is overbroad and
misleading. As set out below, the essence of the nonintervention rule is the prevention of
measures intended to subvert a state’s independence over protected sovereign prerogatives,
or free will. The court’s reference to coercion is better understood as illustrative of the fact
that not all modes of interference are internationally wrongful, and a loosely conceived
concept of coercion specific to the nonintervention context has emerged over time as a
reference point for distinguishing between permissible and impermissible influence.
76
Defining a sensible limit to the principle’s reach is no doubt important; otherwise the
rule risks sweeping within its ambit “any act which ha[s] an effect on another state.”
77
However, overinclusiveness is not currently the problem. As reflected in the ICJ’s emphasis
in Nicaragua on the concept of coercion, the nonintervention rule is mired in the past
and therefore tethered to force as the sine qua non of its violation. This raises legitimate
questions as to the rule’s utility in light of the separate prohibition on the use of force.
And while there is general agreement that the rule now comprehends nonforcible modes
of coercion, what that means in practice remains clouded in uncertainty. Owing to the
historical force-prohibition emphasis of the rule, efforts to elucidate the meaning of
coercion frequently miss the mark on correlating this “element” to the underlying purpose
of the nonintervention principle—to protect against the subversion of a targeted state’s
independent sovereign choices—making underinclusiveness a far greater risk. This dynamic
has become particularly evident in the context of information conflict.
Some also consider the Nicaragua judgment to imply that to constitute coercion, one
state’s actions must involve an actual threat against the affected state, and the threatened
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Gary P. Corn • Covert Deception, Strategic Fraud, and the Rule of Prohibited Intervention
consequence of noncompliance must itself be unlawful.
78
However, nothing in the
judgment or international law more broadly requires that an intervention be effected by
threat of consequence, lawful or otherwise. To the extent that a threat is involved, the
threatened consequence must be judged contextually to determine whether it crosses the
line between prohibited coercion and lawful, albeit “corrosive,” pressure.
79
Furthermore,
interpreting nonintervention as being premised on a compelled quid pro quo again
misapprehends the interest protected by the rule—unimpeded sovereign prerogative and
the right of independence in governance. As discussed further below, threats of negative
consequence are not the only means for undermining this interest.
It is well recognized that the principle of nonintervention is an outgrowth, or corollary, of the
principles of sovereignty and the sovereign equality of states. “Sovereignty in the relations
between States signifies independence,”
80
and independence has long been understood as
“the power of giving effect to the decisions of a will which is free” from external restraint.
81
Where a state employs measures “calculated to impose certain conduct or consequences”
on a targeted state that if successful would “in effect [deprive] the state intervened against
of control over [a sovereign] matter,” the line between interference and intervention is
implicated and likely crossed.
82
Nonintervention is far more about potential consequence
than it is about the means employed. While the choice of means is a relevant factor, as in the
case of forcible measures that are presumptively employed to compel an outcome, it is not
definitive. Thus, the rule is better understood as prohibiting measures calculated and likely
to deprive, subordinate, or substantially impair the right of independence in governance, and
such interventions are wrongful even if inchoate or unsuccessful.
83
In her recent Chatham House paper on sovereignty and nonintervention, Harriet Moynihan
reaches a similar conclusion. She describes coercion as the application of pressure or
compulsion by one state sufficient to subordinate the sovereign will of the targeted
state.
84
Thus, in her view, “the non-intervention principle is in practice capable of broader
application” than a narrow interpretation of the ICJ’s description of coercion would
suggest.
85
According to Moynihan:
Sources [suggest] that the coercive behaviour could extend beyond forcing a change of
policy to other aims, such as preventing the target state from implementing a policy or
restraining its ability to exercise its state powers in some way. At the same time, as noted
above, the attempt to deprive the target state of its free will over its sovereign powers is
carried out for the benefit of the perpetrating state in some way: the unauthorized exercise
of authority is not incidental. The benefit sought need not relate to a specific policy issue;
it may suffice for the target state’s control over the underlying policy area to be impaired
in a way that adversely affects the target state. In light of this, the coercive behaviour is
perhaps best described as pressure applied by one state to deprive the target state of its free
will in relation to the exercise of its sovereign rights in an attempt to compel an outcome
in, or conduct with respect to, a matter reserved to the target state.
86
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This approach correctly places emphasis on the nonintervention rule’s central focus of
protecting states’ independence over core sovereign prerogatives.
87
Actions calculated to
subvert a state’s free will undermine the sovereign equality of states and the international
order, and present a direct threat to international stability, peace, and security.
The Tallinn Manual 2.0 appears to take a similar approach. Rejecting the idea that coercion
requires physical force, the manual states that coercion “refers to an affirmative act
designed to deprive another State of its freedom of choice, that is, to force that State to act
in an involuntary manner or involuntarily refrain from acting in a particular way.”
88
Not
surprisingly, Michael Schmitt, the general editor, also recognizes that the primary focus of
the nonintervention rule and the “core” function of the element of coercion is to prevent
subordination of sovereign free will. In his view, “a coercive action is intended to cause the
State to do something, such as take a decision that it would otherwise not take, or not to
engage in an activity in which it would otherwise engage.”
89
The evolving realm and nature of information conflict is providing states with lucrative
opportunities to undermine the sovereign decisions of adversaries, yet how the
nonintervention principle applies to propaganda and influence campaigns remains unclear.
Debates over whether Russia’s reported hack into the Democratic National Committee’s
(DNC) servers and subsequent “meddling” in the 2016 presidential election constituted a
prohibited intervention are a case in point. Some argue that, in the aggregate, Russia’s actions
sufficiently manipulated the election process to qualify.
90
Others view them as espionage and
propaganda, which are not violations of international law by themselves, at least not per se.
91
Some scholars and commentators considering the question of whether influence operations
or propaganda alone can violate the rule have converged on the view that the use of covert
deception crosses the intervention line, but little analysis is offered in support of this
conclusion.
92
For example, Schmitt suggests that Russia’s covert “troll” operation may have
violated the nonintervention rule because “arguably, the covert nature of the troll operation
deprived the American electorate of its freedom of choice” when exercising the franchise.
But he does not elaborate on how this aligns with more rigid interpretations of coercion,
such as those that would require an interaction premised on a threat of consequence.
93
The answer is twofold. First, as set out above, the nonintervention rule has never been
premised on the existence of a threat-based transaction. It is a rule meant to prevent states
from engaging in measures calculated to subvert sovereign free will. Second, measures
of deception are commonly recognized in domestic legal systems as cognizable harms
precisely because they are a means of undermining the exercise of free will. States frequently
regulate deception either directly in the form of fraud-based proscriptions, or indirectly by
making deception a constructive substitute for force or coercion elements of other crimes.
States can draw on these general principles to adapt the nonintervention rule to the
realities of the modern information environment.
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Gary P. Corn • Covert Deception, Strategic Fraud, and the Rule of Prohibited Intervention
General principles of law common to the principal legal systems of the world are
recognized as valid subsidiary sources for determining the scope and meaning of primary
treaty and customary international-law rules such as the rule of prohibited intervention.
94
Admittedly, the means of identifying general principles of law and the normative weight
to be accorded them is an open question, and a fulsome review of states’ domestic legal
regimes is beyond the scope of this paper.
95
What follows are illustrative examples with
an emphasis on US domestic law. Like all states, the United States can draw on these
principles to inform its views on the meaning of coercion as applied in the context of the
nonintervention rule and, by extension, the scope of application of the rule more generally.
Deception as a Means of Undermining Free Will
The indictment of the thirteen Russians and three Russian organizations stemming from
the special counsel’s investigation into Russian election meddling in 2016 is a compelling
exposition, albeit in the vernacular of US domestic law, of a prohibited intervention into
the US electoral process. The indictment lays out in great detail Russia’s extensive covert
deception campaign intended to impair, obstruct, and defeat the lawful functions of the US
government “for the purpose of interfering with the U.S. political and electoral processes.”
96
Significantly, the gravamen of the indictment was that the Russians carried out their
scheme of interference by nonforcible means of fraud and deceit.
Specifically, the defendants were charged, inter alia, with conspiring to defraud the United
States in violation of 18 U.S.C. § 371 by impeding the lawful functions of the Federal
Election Commission, the Department of Justice, and the Department of State to administer
federal requirements for disclosure of foreign involvement in certain domestic activities.
97
Section 371, the general federal conspiracy statute, prohibits two or more persons from
conspiring to obstruct or interfere with a legitimate government activity “by deceit, craft
or trickery, or at least by means that are dishonest.”
98
This portion of the statute is intended
to “protect governmental functions from frustration and distortion through deceptive
practices.”
99
While cheating the government out of money or property can serve as one
means by which someone can defraud the United States, prosecution under Section 371 is
not limited to financial crimes.
100
Actions “calculated to frustrate the functions of an entity
of the United States will suffice.”
101
The fraud provisions encompassed in Section 371 are not unique. They reflect long-
standing common-law fraud concepts that proscribe both pecuniary and nonpecuniary
harm, including depriving victims of a legal right. Fraud is also criminalized at the
state level throughout the United States, and similar concepts can be found in the legal
systems of most, if not all, nations. Fraud is a crime of deceit that traces its roots in both
common and civil law systems to the early Roman lex Cornelia de Falsis.
102
Fraud and similar
provisions recognize that deception can be both a means to a harmful end and a legally
cognizable harm in and of itself.
103
As such, legal systems universally regulate deception
directly by criminalizing fraud and other crimen falsi. Fraud and similar provisions are
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ultimately grounded in the recognition that at its core, deception is a nonforcible means of
undermining free will.
In addition to proscribing crimen falsi, legal systems commonly regulate deception
indirectly as well, prescribing it as a constructive substitute for elements of actual force and
coercion in other crimes. This legal principle has deep historical roots. For example, the
common law has long recognized that for the crime of burglary, the element of breaking can
be effected not just by actual force, but also constructively through deceit.
104
Constructive
force is recognized in other areas of law as well: deception can substitute for force as the
actus reus of larceny. Larceny by trick is a species of larceny dating back at least to 1779 in
English common law,
105
where the element of trick substitutes for the wrongful-taking
element required by larceny.
106
The rationale behind including larceny by trick within the
crime of larceny is that “fraud vitiates the property owner’s consent to the taking.”
107
As
such, the common law developed so that, to satisfy the requirements for larceny, “actual
trespass or actual violence is not necessary. Fraud may take the place of force.”
108
Rape law offers another example of constructive force through deception. Although the
traditional definition of rape required force or threat of force to satisfy the actus reus, the
common law developed to embrace situations “in which the defendant employed deception
rather than force.”
109
Traditional common law distinctions between fraud in the factum and
fraud in the inducement have steadily fallen away, with states trending toward adoption
of the Model Penal Code approach, which states that consent is ineffective if “it is induced
by force, duress or deception of a kind sought to be prevented by the law defining the
offense.”
110
Consistent with this trend, states have allowed specific instances of fraud in the
inducement to serve as the basis for a rape conviction, including fraud in the context of
certain professional relationships, spousal impersonation, impersonation of another, fraud
as to the nature of the act, and “a few newer provisions more generally making consent
obtained by fraud insufficient.”
111
In each of these cases, the salient point is the recognition
that deceit vitiates consent, the ultimate expression of free will.
Consider also the federal Trafficking Victims Protection Act (TVPA).
112
Passed as part of the
Victims of Trafficking and Violence Protection Act of 2000, it was the first comprehensive
federal law to address human trafficking. Recognizing that deception can “have the same
purpose and effect” as actual threats of or use of physical coercion, Congress criminalized
“severe forms” of human trafficking, which it defines as sex and labor trafficking induced
by, inter alia, force, fraud, or coercion.
113
As one court recognized, “the TVPA not only
protects victims from the most heinous human trafficking crimes, but also various
additional types of fraud and extortion leading to forced labor.”
114
The idea that deception is a legally cognizable harm, in the form of fraud or as a
constructive substitute for force or coercion, is not unique to United States law. These are
precepts of law commonly reflected in domestic legal systems.
115
Drawing on these precepts,
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Gary P. Corn • Covert Deception, Strategic Fraud, and the Rule of Prohibited Intervention
some states have also begun passing legislation specifically addressing foreign influence,
disinformation, and election interference.
116
Australia, for example, passed comprehensive legislation in 2018 in response to the
growing threat of foreign interference. As part of this legislation, the National Security
Legislation Amendment (Espionage and Foreign Interference) Act 2018 amended Australia’s
Criminal Code Act 1995 to create a slew of new criminal offenses related to national
security, espionage, and foreign influence. The two most relevant offenses are general
foreign interference and foreign interference involving a targeted person.
117
For purposes
of these new offenses, Australia distinguishes between foreign influence, which it deems
permissible, and foreign interference, describing the latter as conduct that “goes beyond
the routine diplomatic influence that is commonly practised by governments [and] . . .
includes covert, deceptive and coercive activities intended to affect an Australian political or
governmental process.”
118
This distinction tracks closely with general understandings of the
divide between lawful interference and prohibited intervention in international law, and
specifically recognizes covert deception as a means of intervention.
Australia is not alone in its efforts to combat foreign interference and adapt its domestic
legal structure to account for the evolving nature of information conflict. France and
other countries have either adopted or are considering laws to protect against foreign
interference, disinformation, and election meddling. Many of these approaches similarly
recognize the significance and threat of covert deception. These concepts are often reflected
in international instruments as well. For example, Congress’s approach to sex trafficking
finds a direct analog in international law, which also recognizes that coercion need not be
limited to physical force for purposes of human trafficking, defining trafficking to include
inducement “by means of the threat or use of force or other forms of coercion, of abduction,
of fraud, [or of] deception.”
119
The war crime of prohibited perfidy, which is predicated on
an act of treachery, offers another example of international law criminalizing deception,
albeit under very narrow and particular circumstances.
120
The foregoing examples are illustrative, not exhaustive. They demonstrate how deception
operates as a legally operative harm with direct relevance to the principle of nonintervention.
States can and should take account of these principles as legitimate subsidiary tools for
elaborating the meaning of coercion in the context of nonintervention, better defining the
scope of the rule, and adapting it to the realities of modern cyber and information conflict.
Calibrating the Pendulum
Applying these general principles to the element of coercion will better align the
nonintervention rule with its underlying purpose and adapt it to the realities of the
information age. As Sean Watts notes: “As States consider and weigh the merits and costs
of various modes of interaction in the international system, charting options on this legal
spectrum with some specificity becomes a prudent, if not always a simple exercise.”
121
This
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is notably true with respect to the increasingly complex dynamics of interstate relations in
the cyber and information environments. States should leverage the nonintervention rule as
a legitimate tool for deterring and regulating inimical action in these contexts.
Adopting the approach suggested here does not come without risk, however. Overbroad
application of the rule would capture legitimate forms of statecraft and influence in its scope
and raise collateral concerns regarding free expression that should be accounted for. States
are rightfully unlikely to subscribe to a framework that sweeps too wide. Overt influence
is a staple of international relations. It provides states an effective means of peacefully
advancing their individual and collective interests on the world stage in a way that, even
when aggressive, affords the targeted state the opportunity to contextualize and counter the
influence in ways that covert deception campaigns are specifically intended to prevent. As
Ohlin correctly asserts: “There must be a line between being coercive and being corrosive to
the proper functioning of a democracy.”
122
Clarifying how best to identify where that line
falls is one thing. Blurring it further or erasing it altogether is another. Recognizing covert
deception and disinformation campaigns as qualitatively and normatively distinct from
overt influence, and as such a means of actual or constructive coercion, is a necessary step
in drawing that line. However, additional limiting principles are warranted.
It is important to reemphasize at this point that to be wrongful, like any means or method
of statecraft, covert deception must be intended “to influence outcomes in, or conduct
with respect to, a matter reserved to a target State.”
123
Clarifying or recasting the meaning
of coercion would have no impact on defining the object of the rule’s protection—states’
domaine réservé. It would simply place the emphasis back on the ends that the principle
of nonintervention is concerned with, with less dogmatic focus on the means employed.
Ultimately, whatever means are employed, they “must have the potential for [actually or
constructively] compelling the target State to engage in an action that it would otherwise
not take (or refrain from taking an action that it would otherwise take).”
124
Noting that coercion might fall along a broad spectrum from minimally invasive to
“exceptionally aggressive” actions, any of which might or might not amount to intervention,
Watts, borrowing from McDougal and Feliciano, proposes a test of “consequentiality” for
determining wrongfulness.
125
This test would consider “three dimensions of consequentiality,”
including “the importance and number of values affected, the extent to which such values are
affected, and the number of participants whose values are so affected.”
126
Under this approach,
he suggests consideration of the scale of an operation, the effects it produces in the target
state, and its reach in terms of actors involuntarily affected.
127
There is merit to Watts’s approach, perhaps with slight modification and clarification. First, as
is often the case, it presupposes a consummated intervention. For the rule to have any true
force and effect, it needs to operate prophylactically—both as a deterrent and potentially as
a justification for measures intended to thwart an actual or anticipated intervention before
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Gary P. Corn • Covert Deception, Strategic Fraud, and the Rule of Prohibited Intervention
it works its harm. Responding to an intervention after the fact is suboptimal, because it may
be too late at that point to prevent harm. Thus, the consequentiality test, or any other, must
consider potential, not actual, harm.
128
Second, the number of participants whose values are affected is not a particularly helpful
dimension. It is just one measure of the extent to which sovereign values are affected and
is a highly dependent variable. This is apparent in the case of election interference through
covert deception, where the populace, or subsets thereof, are the primary targets of an
operation or campaign, and swaying or dissuading votes or generally causing distrust in
the results is the aim. In general terms, the degree to which the sovereign value of a free
and fair election will be affected will likely be a function of the number of voters deceived.
One can imagine how the viral spread of false reports of a candidate’s withdrawal from a
closely contested race on the eve of an election could swing the results. On the other hand,
where such close margins are at play, it might only require a handful of voters to alter the
outcome. In either case, the consequence is the same.
Thus, consequentiality, or perhaps better stated, potential impact, is better understood as
an assessment of the inverse relationship between the relative value of the targeted interest
and the anticipated extent to which the interest will be affected. Even among the bundle
of rights falling within the domaine réservé, there are necessarily qualitative differences.
As evidenced by recent state pronouncements, independence over the choice of a state’s
political system, that is, election processes and results, is at the core of protected sovereign
interests.
129
For heavily weighted interests such as elections, there should be lower tolerance
for interventions aimed at undermining their independence. In such cases, there should be
a strong presumption that covert deception measures targeting the electorate and election
processes constitute a prohibited intervention.
Some states have recently expressed a view that cyber operations intended to disrupt the
fundamental operation of legislative bodies or that would destabilize financial systems
would violate the nonintervention principle.
130
It is for those states to assign the relative
weight of these sovereign interests, and they must bear responsibility for those assessments.
Determining whether a covert disinformation campaign constitutes a prohibited
intervention must also account for intent. As noted in the Tallinn Manual 2.0, actions that
“have a de facto coercive effect must be distinguished from those in which a State intends to
coerce de jure.”
131
While discerning adversary intent is always a challenge, where a campaign
of covert deception is involved, intent is perhaps most easily assessed based on the nature of
the deception and the target or targets of the covert propaganda being spread. For example,
it is apparent from the record that the objective of Russia’s disinformation campaign during
the last several election cycles was at least to corrupt the process and alter the results. But
Russia has not confined its disinformation efforts to disrupting elections. It is also evident
from the nature of its deception operations that Russia has engaged in a broader, systematic
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campaign to sow division throughout Western democracies, demoralize cultural values, and
alter the populations’ perceptions of reality. These actions meet almost any definition of
subversion, where intent is fairly apparent.
132
Finally, assessing the potential consequentiality or impact of anticipated or ongoing
interference should be done holistically, considering the full context of an action or set of
actions and their potential impact on the affected state.
133
Information is but one element
of state power and is rarely employed in isolation. For example, analyses that attempt to
disaggregate the conglomeration of actions Russia took to impact the 2016 presidential
elections ignore context and miss the mark. Russia’s actions were synchronized over time
and space and mutually supportive—exactly the types of composite acts that “defined in
the aggregate” are internationally wrongful.
134
Conclusion
The advent of the modern, digital information environment has introduced the phenomenon
of cyber conflict and fundamentally recast the nature of information conflict. Taking cues
from Russia’s covert influence efforts, China and other revisionist states are more actively
stepping into the information conflict arena, and the United States’ national-security
apparatus is rightfully taking note. The recognition of this emerging threat is beginning to
drive the United States’ strategic orientation and efforts to better defend against hostile foreign
influence campaigns. International law can and should play a role in these efforts.
The rise of hostile cyber operations and the resurgence and evolution of information conflict
have placed renewed emphasis on the principle of nonintervention as a tool for regulating
interstate relations in the gray zone below and outside of armed hostilities. This renewed
emphasis on the rule has also highlighted its definitional weaknesses—flaws that limit its
immediate value as a means for regulating cyber and information conflict and risk, casting
it as an anachronism. Effective adaptation of the rule to account for the realities of cyber
and information conflict will require states to establish greater clarity on the core concept
of coercion and the boundaries between legitimate and illegitimate nonforcible measures
of influence and statecraft. This is difficult terrain, but states should start the process by
refocusing on the central interest the nonintervention rule is intended to protect—sovereign
equality and independence. Drawing a line between covert deception and overt influence is a
sound starting point, consistent with general principles of law common to many domestic legal
regimes that recognize and regulate deception as a legally cognizable harm in myriad ways.
A cornerstone of the rules-based international order, international law has played an
important role in regulating interstate relations and achieving some semblance of stability
and security in the post−World War II era—a proposition reflected in the United States’
long-standing commitment to the framework of international law and its contribution
to the peaceful resolution of disputes. Any US strategy aimed at effectively addressing
ICT-enabled national-security threats, including covert influence and deception campaigns,
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Gary P. Corn • Covert Deception, Strategic Fraud, and the Rule of Prohibited Intervention
should include the United States taking a lead on advancing the role of international law
and norms development. Drawing more definitive lines with respect to the role of the
rule of nonintervention will serve the dual purpose of deterring adversary states from
crossing articulated red lines and, where deterrence fails or is ineffective, underpinning the
legitimacy of US counter-cyber and counter-influence responses.
ACKNOWLEDGMENTS
Special thanks to Dillon Chepp (Washington College of Law, JD, 2020) and Matthew Kahn (Harvard Law School,
JD candidate, 2022) for their excellent research support for this paper.
NOTES
1 Sun Tzu, The Art of War, ⁋ 18, I C A (Lionel Giles trans.), http:// classics . mit . edu / Tzu / artwar
. html (last visited Jul. 14, 2020).
2 E. V, T L N T P N L 131 (James Brown Scott ed., CharlesG.
Fenwick trans., Carnegie Institute of Washington 1916) (1758).
3 Rand Waltzman, The Weaponization of Information: The Need for Cognitive Security: Hearing Before the
Subcomm. on Cybersec. of the S. Comm. on Armed Services, 115thCong. 1 (2017) [hereinaer Waltzman Testimony]
(testimony of Rand Waltzman, senior information scientist, RAND Corp.).
4 Id. at 2.
5 For purposes of this paper, information conflict refers to the strategic use of information to influence, disrupt,
corrupt, or usurp the decisions and actions of an adversary’s government, military, private sector, general
population, or a combination thereof.
6 See, e.g., Group of Governmental Experts on Developments in the Field of Information and Telecommunications
in the Context of International Security, ¶28(b), U.N. Doc. A/70/174 (July22, 2015) [hereinaer UN GGE Report].
7 Military and Paramilitary Activities in and Against Nicaragua (Nicar. v. U.S.), Judgment, 1986 I.C.J. Rep. 14, ⁋205
(June27).
8 Jeremy Wright QC MP, Cyber and International Law in the 21stCentury, GOV . UK (May23, 2018), https:// www . gov
. uk / government / speeches / cyber - and - international - law - in - the - 21st - century.
9 M J. M ., H S M: P R E T xii (2019).
10 Dennis Kux, Soviet Active Measures and Disinformation: Overview and Assessment, 15 P—J.U.S.
A W C. 19 (1985). By some counts, the Soviets carried out over 10,000 individual disinformation operations
during the Cold War. S. S C. I, R A M C I,
V II: R U S M A V, S. Rep. No.116-XX, at 11–12 (2020).
11 Inside the KGB: An Interview with Maj. Gen. Oleg Kalugin, CNN (Jan.1998).
12 O D. N I, A R A I R US
E ii (2017) [hereinaer ODNI R].
13 Id. at 2.
14 Id. at 1– 4.
15 See id. at 4.
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16 Indictment, United States v. Internet Research Agency, LLC, No.1:18-cr-00032-DLF (D.D.C. filed Feb.16, 2018).
17 Id. at 5. Specifically, the indictment alleges the defendants obstructed the lawful functions of the Federal
Election Commission, the US Department of Justice, and the US Department of State.
18 Id. at 4.
19 S. S C. I, supra note 10, at 11–12.
20 MargaretL. Taylor, Combating Disinformation and Foreign Interference in Democracies: Lessons from Europe,
B I: TT (July31, 2019), https:// www . brookings . edu / blog / techtank / 2019 / 07 / 31
/ combating - disinformation - and - foreign - interference - in - democracies - lessons - from - europe.
21 Nancy Cordes etal., Intel Oicials Warned Lawmakers Russia Trying to Interfere in 2020 Election, CBS N
(Feb.21, 2020, 11:11 AM), https:// www . cbsnews . com / news / russian - election - interference - intelligence - oicials
- warned - lawmakers - 2020.
22 James Frater etal., EU Says Pro-Kremlin Media Trying to Sow ‘Panic and Fear’ with Coronavirus Disinformation,
CNN (Mar.18, 2020, 1:13 PM), https:// www . cnn . com / 2020 / 03 / 18 / europe / eu - kremlin - disinformation - coronavirus
- intl / index . html.
23 M, supra note 9, at 107 (quoting Murong Xuecun, The New Face of Chinese Propaganda, N.Y. T
(Dec.20, 2013), https:// www . nytimes . com / 2013 / 12 / 21 / opinion / sunday / murong - the - new - face - of - chinese
- propaganda . html).
24 Id. at 114 (quoting President Xi Jinping).
25 JulianE. Barnes, Matthew Rosenberg, and Edward Wong, As Virus Spreads, China and Russia See Openings
for Disinformation, N.Y. T (Apr.10, 2020), https:// www . nytimes . com / 2020 / 03 / 28 / us / politics / china - russia
- coronavirus - disinformation . html.
26 D R. C, S R W T A US I
C S S C I 7 (2019).
27 O P, C S U S A 41 (2018).
28 UN Charter, art. 2, ¶ 1.
29 Island of Palmas (Neth. v. U.S.), 2 R.I.A.A. 829, 838 (Perm. Ct. Arb. 1928).
30 The jus ad bellum refers to the body of customary international law that governs the conditions under which
states may resort to force and is reflected in the United Nations Charter. See UN Charter, art. 2, ¶4; id. art. 51.
31 1 L O, O I L 428 (Sir Robert Jennings & Sir Arthur Watts eds., 9thed.
1992).
32 Military and Paramilitary Activities in and Against Nicaragua (Nicar. v. U.S.), Judgment, 1986 I.C.J. Rep. 14,
⁋202 (June27). Some assert that sovereignty is itself a primary rule of international law. That issue is beyond the
scope of this paper.
33 See, e.g., UN GGE Report, supra note 6, at ¶ 28(b) (“In their use of ICTs, States must observe, among other
principles of international law . . . non-intervention in the internal aairs of other States.”).
34 T M 2.0 I L A C O 317 (Rule 66) cmt. 18
(Michael Schmitt ed., 2d ed. 2017) [hereinaer T M 2.0].
35 See Sean Watts, Low-Intensity Cyber Operations and the Principle of Non-intervention, in C: L
E V C 255 (Jens David Ohlin, Kevin Govern & Claire Finkelstein eds., 2015) (noting that
jurists and commentators “have struggled to identify the precise contours of the principle and to apply those
delineations to ever-evolving and increasingly inter-tangled international relations”).
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36 O, supra note 31, at 432.
37 Mohamed Helal, On Coercion in International Law, 52 N.Y.U.J. I L. P. 1, 55 (2019).
38 Military and Paramilitary Activities in and Against Nicaragua (Nicar. v. U.S.), Judgment, 1986 I.C.J. Rep. 14,
⁋205 (June27).
39 T M 2.0, supra note 34, at 314 (Rule 66) cmt. 6.
40 Nicaragua, 1986 I.C.J. Rep. at ¶ 205 (noting that with regard to “the content of the principle of non-intervention—
the Court will define only those aspects of the principle which appear to be relevant to the resolution of the
dispute”).
41 Id. at ¶ 201 (noting that its analysis of the principle of nonintervention served only to “enquire whether there
is any justification for the activities in question, to be found not in the right of collective self-defence against an
armed attack, but in the right to take counter-measures in response to conduct of Nicaragua which is not alleged
to constitute an armed attack”).
42 See H M, C H, T A I L S C:
S N 27 (2019) (noting that the court’s discussion of nonintervention should be
considered nonprescriptive dicta).
43 O, supra note 31, at 432.
44 Philip Kunig, Prohibition of Intervention, in M P E P I L (2008),
https:// opil . ouplaw . com / view / 10 . 1093 / law:epil / 9780199231690 / law - 9780199231690 - e1434.
45 See, e.g., Coercion, USL, https:// definitions . uslegal . com / c / coercion / (last visited Jul. 25, 2020) (“Coercion
generally means to impose one’s will on another by means of force or threats.”).
46 O, supra note 31, at 430.
47 See Jens David Ohlin, Did Russian Cyber Interference in the 2016 Election Violate International Law?, 95 T. L.
R. 1579, 1588 (2017) (discussing the concept of domaine réservé).
48 M, supra note 42, at 34.
49 See id.; O, supra note 31, at 430–31. The Tallinn Manual 2.0 draws a distinction between inherently
governmental functions (protected by the purported rule of sovereignty) and the narrower class of protected
interests falling within the domaine réservé (protected by the rule of nonintervention). See T M 2.0,
supra note 34, at 24 (Rule 4) cmt. 22 (“Usurpation of an inherently governmental function diers from intervention
in that the former deals with inherently governmental functions, whereas the latter involves the domaine réservé,
concepts that overlap to a degree but that are not identical.”). The Tallinn Manual 2.0 oers no further explanation
to support this schema of distinct sovereign functions, which makes little sense in light of the broad presumptions
of independent internal governance that flow from the principle of sovereignty. See M, supra note 42,
at 34 (“In any event, since the non-intervention principle derives from and is a reflection of the principle of
sovereignty, the better view is that there are not two dierent standards of matters reserved to a state.”).
50 Military and Paramilitary Activities in and Against Nicaragua (Nicar. v. U.S.), Judgment, 1986 I.C.J. Rep. 14,
⁋205 (June27).
51 S.S. “Lotus” (Fr./Turk.), Judgment, 1927 P.C.I.J. (ser. A) No.10, at 18 (Sept. 7).
52 See, e.g., T M 2.0, supra note 34, at 315 (Rule 66) cmt. 10.
53 MichaelN. Schmitt, Grey Zones in the International Law of Cyberspace, 42 Y L.J. O 1, 7 (2017).
54 Ohlin, supra note 47, at 1588.
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55 Helal, supra note 37, at 66– 67 (“The domaine réservé . . . is not static. Its breadth is ever-changing depending
on the extent of the international legal obligations of a state, the growth of international law, and the
intrusiveness of international regulatory and adjudicatory bodies.”).
56 M, supra note 42, at 34.
57 Int’l Law Comm’n, Rep. of the Int’l Law Comm’n on the Work of Its Fiy-Third Session, Dra Articles on
Responsibility of States for Internationally Wrongful Acts, with Commentaries, art. 22, U.N. Doc. A/56/10, at 75 (2001).
58 See T M 2.0, supra note 34, at 314 (Rule 66) cmt. 7.
59 R.J. V, N I O 40 (2015).
60 See, e.g., Military and Paramilitary Activities in and Against Nicaragua (Nicar. v. U.S.), Judgment, 1986 I.C.J.
Rep. 14, ⁋205 (June27).
61 See, e.g., Jacobson v. Massachusetts, 197 U.S. 11 (1905) (upholding as within the general police power the
authority of states to enact and enforce compulsory vaccination laws).
62 Nicaragua, 1986 I.C.J. Rep. at ¶205. These actions would also constitute prohibited uses of force in violation
of Article 2(4) of the Charter, triggering the victim state’s inherent right of self-defense under the US view of the
jus ad bellum. See id. Some argue that, implicit in the Nicaragua judgment’s description is the notion that to
constitute coercion, the threatened consequence must itself be unlawful.
63 Schmitt, supra note 53, at 8; T M 2.0, supra note 34, at 318 (Rule 66) cmt. 21 (“Coercion must be
distinguished from persuasion, criticism, public diplomacy, [and] propaganda.”).
64 V
,
supra note 59, at 15.
65 For a discussion of the origins of the principle of nonintervention, see id. at 20– 44.
66 Id. at 35–37.
67 See Helal, supra note 37, at 56 (quoting Tomislav Mitrovic, Non-Intervention in the Internal Aairs of States, in
P I L C F R C 224–25 (Milan Šahović ed.,
1972)); Watts, supra note 35, at 256 (“Twentieth-century commentators observed that non-intervention prohibits
only acts that are ‘dictatorial’ by nature or eect.”).
68 See Helal, supra note 37, at 56.
69 O, supra note 31, at 432 (emphasis added), 434.
70 Military and Paramilitary Activities in and Against Nicaragua (Nicar. v. U.S.), Judgment, 1986 I.C.J. Rep. 14,
⁋203 (June27).
71 Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States
in Accordance with the Charter of the United Nations, G.A. Res. 2625, U.N. GAOR 6thComm., 25thSess., Supp.
No.28, U.N. Doc. A/8082 (Oct. 24, 1970).
72 Nicaragua, 1986 I.C.J. Rep. at ¶ 205.
73 Id.
74 Id.
75 M, supra note 42, at 34.
76 See, e.g., id. at 29 (noting that in the context of nonintervention, coercion bears a dierent meaning than
in normal usage); Watts, supra note 35, at 256 (“In this sense, it is likely that the best understanding of non-
intervention appreciates a nuanced and particularized notion of coercion.”).
77 Maziar Jamnejad and Michael Wood, The Principle of Non-intervention, 22 L J. I L. 345, 381 (2009).
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78 See Ohlin, supra note 47, at 1589.
79 See id.
80 Island of Palmas (Neth. v. U.S.), 2 R.I.A.A. 829, 838 (Perm. Ct. Arb. 1928).
81 W E H, A T I L 50 (1895).
82 O, supra note 31, at 430, 432.
83 T M 2.0, supra note 34, at 322 (Rule 66) cmt. 29 (“The fact that a coercive cyber operation fails to
produce the desired outcome has no bearing on whether [the nonintervention rule] has been breached.”).
84 M, supra note 42, at 28 (quoting Jamnejad and Wood, supra note 77, at 348).
85 Harriet Moynihan, The Application of International Law to Cyberspace: Sovereignty and Non-intervention, J
S (Dec.13, 2019), https:// www . justsecurity . org / 67723 / the - application - of - international - law - to - cyberspace
- sovereignty - and - non - intervention.
86 M, supra note 42, at 30 (internal citations omitted).
87 Moynihan’s eective substitution of “pressure and compulsion” for coercion to distinguish between
interference and intervention is less helpful. According those terms their common meaning, it is unclear whether
she uses them simply as synonyms for coercion or also to include persuasion and influence which, standing alone,
risks over-inclusion.
88 T M 2.0, supra note 34, at 317 (Rule 66) cmt. 18.
89 MichaelN. Schmitt, “Virtual” Disenfranchisement: Cyber Election Meddling in the Grey Zones of International
Law, 19 C. J. I L. 30, 51 (2018).
90 See, e.g., Schmitt, supra note 53, at 8; Ohlin, supra note 47, at 1579–80.
91 See T M 2.0, supra note 34, at 168 (Rule 32) cmt. 5.
92 See Schmitt, supra note 89, at 51 (“The deceptive nature of [Russian] trolling is what distinguishes it from a
mere influence operation.”); Helal, supra note 37, at 115 (“In times of peace, covert or black IO, IW, or PSYOPs, are
unlawful under the prohibition on intervention if these activities are undertaken to interfere with the domaine
réservé of a state.”); StevenJ. Barela, Cross-Border Cyber Ops to Erode Legitimacy: An Act of Coercion, J S
(Jan.12, 2017), https:// www . justsecurity . org / 36212 / cross - border - cyber - ops - erode - legitimacy - act - coercion.
93 Schmitt, supra note 89, at 51; see also Ohlin, supra note 47, at 1589 (“In order to count as illegal intervention,
the structure of the interaction must have the following form: engage in this action; otherwise you will suer a
particular consequence.”).
94 See Statute of the International Court of Justice, June26, 1945, Art. 38(1)(c), 59 Stat. 1055, 33 U.N.T.S. 933; see
also Restatement (Third) of the Foreign Relations Law of the United States §102(c)(4) (1987) (recognizing general
principles as those “common to the major legal systems, even if not incorporated or reflected in customary law or
international agreement, [that] may be invoked as supplementary rules of international law where appropriate”).
95 See generally Int’l L. Comm’n, Second Report on General Principles of Law, U.N. Doc. A/CN.4/741 (2020)
(describing the concept and means of identifying general principles of law).
96 Indictment, United States v. Internet Research Agency, LLC, No.1:18-cr-00032-DLF, at ¶2 (D.D.C. filed Feb.16,
2018). The Department of Justice has since decided to dismiss charges against two of the corporate defendants
due to their “ephemeral presence and immunity to just punishment, the risk of exposure of law enforcement’s
tools and techniques, and the post-indictment change in the proof available at trial.” Motion to Dismiss Concord
Defendants, United States v. Internet Research Agency, No.1:18-cr-00032-DLF, at ¶9 (D.D.C. filed Mar.16, 2020).
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97 Indictment, United States v. Internet Research Agency, LLC, No.1:18-cr-00032-DLF, at ¶9 (D.D.C. filed Feb.16,
2018).
98 Hammerschmidt v. United States, 265 U.S. 182, 188 (1924).
99 U.S. D J, C R M, 18 U.S.C. §371— C D U
S, https:// www . justice . gov / archives / jm / criminal - resource - manual - 923 - 18 - usc - 371 - conspiracy - defraud - us
(last updated Jan.21, 2020) [hereinaer DOJ C R M, 18 U.S.C. § 371].
100 See Hammerschmidt, 265 U.S. at 188.
101 C D, C. R S., R41223, F C L: A B O 9 (2020).
Although the Special Counsel’s indictment does not allege that the defendants’ actions altered the outcome
of the 2016 presidential election, it is suicient that there was an injury to the integrity of the government. DOJ
C R M, 18 U.S.C. §371, supra note 99.
102 See StuartP. Green, Deceit and the Classification of Crimes: Federal Rules of Evidence 609(A)(2) and the Origins
of Crimen Falsi, 90 J. C. L. C 1087, 1095–99 (2000).
103 See id. at 1093–94.
104 See, e.g., State v. Abdullah, 967A.2d 469, 476–77 (R.I. 2009); Davis v. State, 910 So. 2d 1228, 1231 (Miss. Ct.
App. 2005).
105 People v. Williams, 305 P.3d 1241, 1245 (Cal. 2013) (citing Rex v. Pear, 168 Eng. Rep. 208 (1779)).
106 Reid v. Commonwealth, 781S.E.2d 373, 375 n.1 (Va. Ct. App. 2016); see also Williams, 305 P.3d at 1241; State v.
Barbour, 570S.E.2d 126, 128 (N.C. Ct. App. 2002).
107 Williams, 305 P.3d at 1245.
108 Id. (quoting People v. Edwards, 236 P.944, 948 (Cal. Dist. Ct. App. 1925)).
109 W R. LF, 2 S. C. L. §17.3(c) (3d ed.), Westlaw (last updated Oct.2019).
110 M P C §2.11(3)(d) (A. L I., Proposed Oicial Dra 1962); see LF, supra note 109, at
§17.3(c) n.108 (collecting statutes).
111 LF, supra note 109, at §17.3(c) n.98, n.99 (collecting statutes).
112 Pub. L. 106–386, 114 Stat. 1464 (2000) (codified as amended in scattered sections of the US Code).
113 22 U.S.C. §§7101(b)(13), 7102(11) (2018). The TVPA directly prohibits sex traicking obtained by force, fraud,
or coercion. 18 U.S.C. §1591 (2018). The TVPA’s prohibitions on forced labor, §1589, and human traicking to
further forced labor, §1590, extend to involuntary servitude obtained by fraud, see Mairi Nunag-Tanedo v. E.
Baton Rouge Parish Sch. Bd., 790F. Supp. 2d 1134, 1144, 1147 (C.D. Cal. 2011) (refusing to dismiss plaintis’ claims
that defendants violated 18 U.S.C. §§1589, 1590 where defendants’ fraudulent scheme coerced plaintis into
performing forced labor).
114 Mairi Nunag-Tanedo, 760F. Supp. 2d at 1145.
115 For example, in the United Kingdom, deception or “dishonesty” forms the basis of numerous criminal and
civil proscriptions. See Ivey v. Genting Casinos [2018] AC 391 (defining dishonesty for purposes of acquisitive
crimes). Brazil’s public corruption statute similarly identifies fraud or deception as a means of harming government
administration. Lei Anticorrupção [Anticorruption Law] (Lei n. 12.846/2013), art. 5 (Braz.). A number of states
also recognize deception as a substitute for force or coercion in sex-related crimes. See, e.g., C P [C.P.]
[Penal Code], art. 215 (Braz.); R. v. Cuerrier [1998] 2S.C.R. 371, 374 (Can.); CrimA 5734/10 Kashour v. State of Israel
(Jan.25, 2012) (Isr.); Crimes Act 1900 (NSW) s61HE(6) (Austl.); Assange v. Swedish Prosecution Authority [2011]
EWHC (Admin) 2849 [87–90] (Eng.).
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116 See, e.g., Ruth Levush, Government Responses to Disinformation on Social Media Platforms: Comparative
Summary, L L C., https:// www . loc . gov / law / help / social - media - disinformation / compsum . php
(last updated Mar.16, 2020); Luis Acosta, Regulation of Foreign Involvement in Elections: Comparative Summary,
L L C., https:// www . loc . gov / law / help / elections / foreign - involvement / index . php (last updated
Nov.8, 2019); S B ., NATO S C. C. E, G R
M U S M (2018).
117 National Security Legislation Amendment (Espionage and Foreign Interference) Act 2018 (Cth) div. 92.2(1)(a)-(c)
(intentional), 92.3(1)(a)-(c) (reckless) (Austl.); id. at 92.2(2), 92.3(2). Additionally, the actor’s conduct must be covert
or deceptive, or involve a threat to cause serious harm or a demand “with menaces.” Id. at 92.2(1)(d), 92.3(1)(d).
118 AG. D, F I T S: F 2 (2019) (Austl.).
119 Protocol to Prevent, Suppress and Punish Traicking in Persons, Especially Women and Children,
Supplementing the United Nations Convention Against Transnational Organized Crime, art. 3(a), G.A. Res. 55/25,
U.N. Doc. A/55/383 (Nov.15, 2000).
120 For a general discussion of the crime of perfidy in the cyber context, see Colonel GaryP. Corn & Commander
Peter Pascucci, The Law of Armed Conflict Implications of Covered or Concealed Cyber Operations—Perfidy, Ruses,
and the Principle of Passive Distinction, in T I E T L A C
(Maj. RonaldT.P. Alcala & Eric Talbot Jensen eds., 2019).
121 Watts, supra note 35, at 249.
122 Ohlin, supra note 47, at 1593.
123 T M 2.0, supra note 34, at 318 (Rule 66) cmt. 19.
124 Id. at 319 (Rule 66) cmt. 21.
125 Watts, supra note 35, at 257.
126 Id.
127 Id.
128 This approach undoubtedly raises legitimate challenges with respect to available intelligence and the
ability to assess attribution and prejudge the intent, design, or causal connection to a protected aspect of
sovereignty, and the likely impact a planned or ongoing influence operation will have. But these are neither
unique nor insurmountable obstacles. States routinely face similar intelligence challenges when evaluating
adversary activities and considering responses, such as in the jus ad bellum context.
129 See, e.g., Letter from the Minister of Foreign Aairs to the President of the House of Representatives,
Letter to the Parliament on the International Legal Order in Cyberspace, Appendix at 3 (July5, 2019) (Neth.);
Honorable PaulC. NeyJr., DOD General Counsel Remarks at U.S. Cyber Command Legal Conference (Mar.2,
2020), https:// www . defense . gov / Newsroom / Speeches/Speech/Article/2099378/dod-general-counsel-remarks
-at-us-cyber -command-legal-conference; Wright, supra note 8.
130 Wright, supra note 8.
131 T M 2.0, supra note 34, at 321 (Rule 66) cmt. 27.
132 Some consider subversion a distinct category of intervention. See Watts, supra note 35, at 255–56.
133 See T M 2.0, supra note 34, at 319 (Rule 66) cmt. 21 (noting the view of some experts that actions
can rise to the level of an intervention based on the context and consequences).
134 See Int’l Law Comm’n, Rep. of the Int’l Law Comm’n on the Work of Its Fiy-Third Session, Dra Articles on
Responsibility of States for Internationally Wrongful Acts, with Commentaries, art. 15, U.N. Doc. A/56/10, at 62
(2001).
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The publisher has made this work available under a Creative Commons Attribution-NoDerivs 4.0 International
license. To view a copy of this license, visit https:// creativecommons . org / licenses / by - nd / 4 . 0.
Copyright © 2020 by the Board of Trustees of the Leland Stanford Junior University
26 25 24 23 22 21 20 7 6 5 4 3 2 1
The preferred citation for this publication is GaryP. Corn, Covert Deception, Strategic Fraud, and the Rule of Prohibited
Intervention, Hoover Working Group on National Security, Technology, and Law, Aegis Series Paper No.2005 (September18,
2020), available at https://www.lawfareblog.com/covert-deception-strategic-fraud-and-rule-prohibited-intervention.
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About the Author
GARY P. CORN
Colonel (ret.) Gary P. Corn is
program director and adjunct
professor, Tech, Law, and Security
Program, Washington College
of Law; senior fellow of national
security and cybersecurity, R Street
Institute; and founder of Jus Novus
Consulting. Corn previously served
as staff judge advocate for US Cyber
Command and as deputy legal
counsel to the chairman of the Joint
Chiefs of Staff.
Working Group on National Security,
Technology, and Law
The Working Group on National Security, Technology, and
Law brings together national and international specialists with
broad interdisciplinary expertise to analyze how technology
affects national security and national security law and how
governments can use that technology to defend themselves,
consistent with constitutional values and the rule of law.
The group focuses on a broad range of interests, from
surveillance to counterterrorism to the dramatic impact that
rapid technological change— digitalization, computerization,
miniaturization, and automaticity—are having on national
security and national security law. Topics include cybersecurity,
the rise of drones and autonomous weapons systems, and the
need for—and dangers of—state surveillance. The group’s
output will also be published on the Lawfare blog, which covers
the merits of the underlying legal and policy debates of actions
taken or contemplated to protect the nation and the nation’s
laws and legal institutions.
Jack Goldsmith is the chair of the National Security,
Technology, and Law Working Group.
For more information about this Hoover Institution Working
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