Russia launches ‘Information’ War, U.S. responds with meaningless and trivial lawsuit

quote:

---

Mueller’s indictment is an ineffectual response to a provocation by Russia.

---

quote:

---

The Russians are engaged in “information warfare” against the United States. That was the big soundbite at Deputy Attorney General Rod Rosenstein’s press conference Friday afternoon, announcing Special Counsel Robert Mueller’s election-meddling indictment against 13 Russians and three Russian businesses.

That is certainly a fair assessment of what the indictment alleges. The account is disturbing, but its form leaves many of us underwhelmed. Our government says Russia is levying war. It is attacking a foundational institution — the electoral system of our democratic society and, more basically, our society’s cohesion as such. Our response should not be, nor appear to be, the filing of a lawsuit. That is provocatively weak.

---

quote:

---

The Russia probe has been a counterintelligence investigation, as it should be. That is why I’ve complained from the first that it was inappropriate to put a prosecutor in charge of it. This contention is reiterated in my weekend column. The main thrust of this complaint has been that a prosecutor should not be assigned unless there is first strong evidence of a crime. But that is not the half of it.

A government lawyer is a hammer who sees every problem as the nail of a lawsuit. As we saw in the Clinton and Obama years (and will tend to see in transnational-progressive governments that prize legal processes over the pursuit of national interests by the most effective means available), administrations dominated by government lawyers find even belligerent provocations by a foreign power to be fit for judicial resolution.

To the contrary, we use counterintelligence rather than criminal investigation to thwart foreign adversaries because prosecution is a woefully inadequate response. The point of counterintelligence is to gather information so we can stop our enemies, through meaningful retaliation and discouragement. Generally, that means diplomatic, economic, intelligence, and, in extreme cases, military means. It could mean deploying our own cyber capabilities. The idea is not to invade every rogue nation. It is to respond to provocations in a manner that hurts our rivals — conveying that the prohibitive cost we will exact makes attacking us against their interests.

That cannot be accomplished by a mere indictment on which no one will be tried.

When prosecutors are serious about nabbing law-breakers who are at large, they do not file an indictment publicly. That would just induce the offenders to flee to or remain in their safe havens. Instead, prosecutors file their indictment under seal, ask the court to issue arrest warrants, and quietly go about the business of locating and apprehending the defendants charged. In the Russia case, however, the indictment was filed publicly even though the defendants are at large. That is because the Justice Department and the special counsel know the Russians will stay safely in Russia.

Mueller’s allegations will never be tested in court. That makes his indictment more a political statement than a charging instrument.

---

quote:

---

There are reasons besides ineffectiveness to be concerned about turning this diplomatic dispute into a criminal-justice issue.

This is a dangerous game to play. Our government, American organizations, and individual Americans regularly take actions and engage in political expression (including pseudonymous expression) with the intention of affecting foreign political campaigns — or that could be understood that way regardless of American intent. In its lead story on Mueller’s indictment, the New York Times observes that “for decades,” the CIA has “work[ed] covertly to influence political outcomes abroad.” The Obama administration, on the American taxpayer’s dime, tried to get Israeli prime minister Benjamin Netanyahu defeated and agitated against Brexit. The Bush administration tried to democratize the Middle East. It is de rigueur to tut-tut that such meddling is unseemly, but it is what governments do and have always done. They have interests, and those interests can be profoundly affected by who is governing other countries.

---

quote:

---

Do we really want to signal that we see such agitation-by-information as an indictable crime, in response to which the affected government should issue arrest warrants that will inevitably make it risky for Americans to travel outside the U.S.?

Remember, we are talking here about a case in which Russia’s campaign, despite its energy and funding, was a drop in the ocean of American campaign spending and messaging. It barely registered. It had no impact. And, again, the indictment that has been filed is a gesture that will result in no prosecutions. Is it really worth opening this can of worms?

I know what you’re going to tell me: It’s not the same thing because we don’t do what they do: When we meddle, it is not through the kind of fraudulent activities that Mueller alleges the Russians engaged in — including bank fraud, wire fraud, and identity theft. But don’t kid yourself: What we are green-lighting here is criminal prosecution as a response to “interference” by alleged agents of a foreign power in another country’s elections and public debates. Once that is the rule of the road, we are not going to be able to control decision-making in other countries about what kind of conduct constitutes actionable “interference.”

---