Last Tuesday, Jack Goldsmith published a remarkable series of tweets about the apparent Russian hack and publication of confidential DNC emails on the eve of the Democratic presidential convention. Goldsmith made the surprising claim that if Russia hacked the DNC and published its communications, the US is also not “innocent.”

Goldsmith appears to imply that the US has lost its standing to object to what, if reports are true, is an unprecedented operation by a foreign state to steal the private communications of an American political party and publish those communications in an obvious effort to discredit the party and influence the election.

The tweets seem to imply that US covert Cold War operations to influence foreign elections somehow forfeited the US’ right to object to this operation. Goldsmith also seems to equate the US “cyber-attack on Iranian nuclear centrifuges” intended to disrupt Iran’s illegal program to acquire a nuclear weapon, with the apparent intentional effort by Russian security services to interfere in US elections through stealing and publicizing private communications. While Goldsmith explicitly disavows accusing the US of hypocrisy or defending Russia, his tweets appear to suggest some parallel between the Russian action and “aggressive” US cyber-espionage efforts. Goldsmith of course doesn’t make any argument that they are, tweets are not well suited for argumentation and therein lies the problem. 

Goldsmith does suggest the existence of a category of “playing rough” in cyberspace, in which he seems to treat all the activities listed in his tweets as legally and morally equivalent. The suggestion seems to be that all intrusions on a nation’s sovereignty, of whatever sort and to whatever end are equivalent. But how is an operation to sabotage a country’s efforts to build a nuclear bomb — efforts condemned by the world community — the equivalent of an operation to sabotage a democratic election in another country?

On Wednesday , Goldsmith wrote a fuller explanation. He explained that he meant to question what if anything is “new” or “untoward” in the apparent Russian hack given the history of US covert actions. But a comparison of past US covert actions to the Russian DNC hack demonstrates that the Russian operation is both new and untoward. The US did support undemocratic and violent coups during the Cold War in order to further its own interests. But Congress subsequently investigated and statutorily limited those actions. The Church committee specifically condemned “covert operations in an attempt to subvert democratic governments,” which would seem to describe the Russian operation here. It’s also worth noting that those attempts to subvert democratic governments were fundamentally different, in means, objective and effect than the US’s effort to provide non-lethal assistance to the democratic movement Solidarity in its efforts to challenge the communist dictatorship in Poland, also referenced by Goldsmith. If the US government is still secretly interfering in democratic elections overseas – in addition to its public efforts to insure free and fair elections and promote democratic governance – we the American public need to know, and I haven’t seen any reports of such.

What looks like a Russian attack on democratic process is much more similar to operations that the United States long ago decided were untoward than to those intended to support democratic aspirations.

Of course, there is no question that the US conducts cyber espionage against other nations including Russia. And while Goldsmith is certainly correct that “intelligence/covert action techniques” are still available to the US, he points to no evidence that the US is now using hacking or any other covert technique to interfere in the actual machinery of democratic elections overseas.

Goldsmith overlooks what is most disturbing about this operation. It appears that Russian intelligence services engaged in secret surveillance and corrupt use and publication of massive numbers of individual communications for political purposes. This is a textbook example of political spying directed at the democratic process in the US by the Russian government. Such political spying has always been the most worrying potential abuse created by the massive surveillance capabilities of intelligence agencies like the NSA. I know of no evidence that US agencies are currently running operations to disrupt US elections. But it seems likely that the Russian intelligence agencies are. Such operations threaten to create international lawlessness by attacking the integrity of democratic political processes. The argument that the DNC hack represents business as usual in the cyber espionage game, even with a nod to it being different in method, scale and target, ignores the significant threats posed to democracy and the rule of law by this activity.