Even if the Russian government was behind the hack of the Democratic National Committee (DNC) and various other political organizations and figures, the US government's options under international law are extremely limited, according to Jack Goldsmith, a Harvard law professor and former US assistant attorney general.

Goldsmith, who served at the Justice Department during the administration of George W. Bush and resigned after a dispute over the legal justifications for "enhanced interrogation" techniques, spoke on Tuesday about the DNC hack during a Yale University panel.

"Assuming that the attribution is accurate," Goldsmith said, "the US has very little basis for a principled objection." In regard to the theft of data from the DNC and others, Goldsmith said that "it's hard to say that it violates international law, and the US acknowledges that it engages in the theft of foreign political data all the time."

Goldsmith pointed out that when Director of the Office of National Intelligence James Clapper testified before Congress about a data breach at the Office of Personnel Management, which collected sensitive information on millions of individuals who had worked for or done business with the government, "He said, 'I'm really impressed with what they did, and I would have done the same thing if I could have.'"

As far as the publication of the stolen data in a way intended to interfere with the US presidential election, Goldsmith noted that the US has a long history of interference in other countries' politics. "Misinformation campaigns are a core element of what the [Central Intelligence Agency] has done" since it was created, he said.

Goldsmith cited a study published in August by Dov H. Levin of the Institute for Politics and Strategy at Carnegie Mellon University. The dataset for the study details all 117 known times the US and the USSR (later Russia) attempted to manipulate the outcome of elections in other countries. "This was either supporting one side, or taking actions to denigrate or harm the other side," explained Goldsmith. "And 69 percent of this was the US."

Bad precedents

In 1989, as a young Navy officer, I got a front-row seat to one of the more overt efforts by the US government to influence the results of a foreign election. I was in Panama, and the outskirts of Panama City were plastered with campaign signs for Guillermo Endara, the presidential candidate of the Democratic Alliance of Civic Opposition (ADOC), the opposition party challenging General Manuel Noriega's Democratic Revolutionary Party.

The CIA funded Endara's campaign, giving him $10 million—a huge sum for a country of 2.4 million people. As an independent commission led by former Attorney General Ramsay Clark found in a report, "It is the per-capita equivalent of a foreign government spending over $1 billion to influence a US national election (five times the amount spent by George Bush and Michael Dukakis combined in the 1988 presidential election)."

I left the country just before the election, which Endara apparently won based on exit polls—though that result wouldn't stand because of vote fraud by Noriega's supporters. A "dignity battalion" attacked Endara and his running mate with clubs.

I returned in December to do a security inspection at Rodman Naval Station, only to find myself being ushered into a van to the nearby Air Force base in the early morning hours of December 20 to evacuate as the US "corrected" the election results with Operation Just Cause.

There are many other examples, some of them less direct—such as US support for a 1973 coup in Chile that overthrew the elected government of socialist President Salvador Allende.

Other US efforts to affect politics—even those within the Soviet Union—were more subtle. Goldsmith cited an example in the early 1950s, when "[Nikita] Khrushchev trashed Stalin in a party meeting. The CIA got a recording of it and leaked it to newspapers in an attempt to harm Khrushchev."

"No piece of [the DNC hack] is different functionally" from what both the US and Russia have done in the past, Goldsmith said. What's different is that it's happening to the United States—and that doesn't feel good.

Thanks to the Internet and the powerful asymmetric capabilities it provides, events like these are likely to continue. Cyber-disinformation campaigns can happen "with an ease and scale that dwarfs everything that happened before," Goldsmith noted. The threat of interference in politics through hacking and data manipulation might render all past precedents set by intelligence organizations moot.

"Theft and publication of truthful information is small beans—what about theft and publication of faked information, which is hard to verify, or tampering with the vote itself?" Goldsmith said. "That could have huge consequences, the number of actors who could do this are many, and our ability to defend against it is uncertain."

The Russian government has been preparing for this game for some time. Individuals aligned with the Russian government have used social media disinformation, denial of service attacks, and hacking campaigns to shape the political landscape in former Soviet states and elsewhere in Europe frequently over the last decade. China also has shown a willingness to use information operations to influence US politics—apparently hacking the networks of both Barack Obama and John McCain during the 2008 presidential election campaign, using information obtained about McCain's interactions with Taiwan to further its own political objectives.

Echoing comments made by Edward Snowden last year, Goldsmith concluded, "The US has the most powerful cyber capabilities in the world... but we are very much also the most vulnerable, and we're going to be more and more on the losing end of the stick. I think this is just the beginning."