The announcement by Special Counsel Robert Mueller of the indictment of 12 Russian GRU officers for hacking brought the usual cheers and jeers. That this was an affront to the United States isn’t, or at least shouldn’t be, controversial at all, any more than the Russians planting a spy in our State Department or military. That they hacked us is certainly a terrible thing from our perspective, but it does little to inform us as to why this is a crime.
After raising this question, following disclosure of the indictment, there were numerous responses that reminded me that people really have no grasp of criminal law, and that included lawyers who replied with some exceptionally dumb reactions.
This “crime” involved Russian military officers physically located in Russia hacking servers in the United States. So outrageous that they would interfere in our elections, even if we’ve been doing that to others for decades. But we’re us, so the Exceptionalism Exception applies and we’re only accountable for what we do to the extent we choose to be. But that’s an aside to the legal question of whether the elements of a crime exist.
There are two predominant questions raised by the indictment. The first arises from the fact that the “defendants” are Russian military officers. They act on behalf of their country, just as our military acts on behalf of ours. Was their intent to commit a crime or to do their duty on behalf of their nation? The mens rea of “intentional” was certainly beyond question, but intentionally what? There was intent to perform the acts involved in hacking, but it was not for a malevolent purpose from their perspective. It was for the Motherland. That’s what they are sworn to do, as are our military, CIA, NSA, et al.
The second question is in personam jurisdiction. There is a practical aspect to this, as in how we’re going to rummage through Moscow in search of GRU officers to arrest, but there is also a legal point that many miss. These Russians weren’t renting a studio in New Jersey from which to hack the DNC servers, but were happily going home to their dachas every night. That their actions would have been a crime if perpetrated on US soil doesn’t mean the critical element of jurisdiction gets overlooked. They weren’t here. They were there. There, the conduct wasn’t criminal no matter how we feel about it.
The hot take reaction is that the servers were here, which is important for the purpose of venue even if the location of the servers is largely fortuitous. After all, if the physical server had been located in Ireland, and the hacking perpetrated from New Jersey, would that prevent it from being a US crime because the server was overseas? And in reality, servers can be anywhere, and have no material connection to anything else in the digital age.
Some people tried to analogize the hacking to other crimes, often fixing on only one aspect of the fact pattern with the nexus argued in the negative. By doing so, the arguments simply ignored the problems presented in this peculiar indictment and proffered the philosophical “why not?” When it comes to crimes, the “why not” is that we still have elements required by our law even when our reach exceeds our grasp.
The unspoken, and ignored, aspect of jurisdiction is our jingoistic assumption of universal jurisdiction over all persons anywhere. Are people in Russia subject to our law? Are we subject to theirs? Bear in mind that Germany has no First Amendment and criminalizes a broad swathe of speech.
If we twit something, it ends up in Germany as well as New Jersey, and if it’s deemed a crime in Germany, should we be concerned that the Bundesnachrichtendienst will be knocking on our door with a warrant any day now? Or more realistically, if we take a lovely boat tour of the Rhine, will we be taken into custody? Just as we’re allowed to enact our own crimes, so too are other nations. Yet, we are subject to American law. Are we so blindly jingoistic as to believe that our law extends to the streets of Moscow?
It’s not that many Americans want desperately to find some external source to blame for the election of Donald Trump, since it obviously couldn’t be that Hillary Clinton didn’t win them over or Americans reject progressive ideology. And this fervor pushes many to want to believe that this is a crime, given how making the hacking a crime imputes malevolence to a foreign power interfering in our blessed democracy. It’s entirely different when our CIA did it in South America since we’ve got God on our side.
But we can still recognize that the Russians interfered in our elections, even if the significance of that interference with the outcome of the election will never be known and subject to argumentation and outrage, without trying to make it out as a crime or indulge in the fantasy of indicting Russian military officers for being good Russians rather than law-abiding Americans.
When all you have to grasp is straws, then strawman arguments are the best you can do. Russia interfered in our election, but that fact doesn’t make it an American crime or make Mueller’s indictment less silly.