Congress Won't Tear Down China's Legal Wall Using PowerPoint

SOUTH CHINA SEA – MARCH 05: Philippine Coast Guard personnel pass through China Beach in a rubber boat … (+) Guard ship during a resupply mission for troops stationed at Second Thomas Shoal in the South China Sea on March 05, 2024. Philippine and Chinese ships collided offshore and four Filipinos were slightly injured after a supply ship’s windshield was shattered by water cannon, the Philippines said. The incidents occurred while the Philippines was conducting a routine resupply mission to troops stationed on the BRP Sierra Madre, a grounded Navy ship that serves as the country’s outpost at Second Thomas Shoal (locally referred to as Ayungin Shoal). (Photo: Ezra Acayan/Getty Images)

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The People’s Republic of China is accused of storing Americans’ data, justifying human rights violations against citizens and foreigners, and legitimate It violates the sovereignty of its neighbors. In response, Congress requested that the Department of Defense create a PowerPoint.

The House and Senate Armed Services Committees, which were the first to recognize the legitimate threat of war from the People’s Republic of China and other adversaries, requested A briefing from the Department of Defense regarding the threat of legal warfare against the enemy, also known as law. While this briefing is an important step taken by the Armed Services Committees to combat adversarial law, it is woefully inadequate given the nature of the threat. The PRC views legal warfare as a pillar of its overall civil-military fusion strategy and is actively working to remake the rules-based international order in favor of its interests. Meanwhile, the United States has neither an office nor a single full-time employee dedicated to challenging opposing laws. Congress must take additional steps to protect the rights of Americans, U.S. companies, and the rules-based international order.

Department of Defense Recognizes China’s Legal Threat

The Department of Defense has paid increasing attention to the legal threat of war from U.S. adversaries. Various Combat Commands improved counter law programs or projects handled by Staff Judge Advocate or senior military attorneys. Last week, the Ministry of Defense issued a statement. report He notes that the PRC uses the law to promote illegal maritime and territorial claims in the South China Sea and Taiwan Strait and impose restrictions on foreign businesses. Congress has requested the Department of Defense to prepare an annual report on Military and Security Developments concerning the PRC since 2000. The China Military Power Report, as is widely known, is largely devoted to analyzing the PRC’s military and technological strategy and capabilities. Unusually, this year the report includes a section titled “Legal Framework” detailing a number of PRC laws adopted in recent years that are part of what the PRC calls the “Legal Great Wall”. The report states that these laws are integrated into the PRC’s Military-Civil Fusion strategy, which draws on all civilian elements of the national power to support the strategic objectives of the military and the state. According to the PRC, the purpose of the Legal Great Wall is to protect national security. However, the PRC has used laws such as: Coast Guard Law and the Anti-Secession Act to support its illegal and coercive actions in the South and East China Seas and the Taiwan Strait.

The Chinese Communist Party has also used the Legal Wall as justification to surveil and raid foreign businesses, suppress dissent, and potentially halt lawsuits in U.S. courts. The report identifies twelve laws specifically relevant to the PRC’s military power, as well as various export controls. National Security Law, Intelligence Law and Anti-Espionage ActIt provides justification for state surveillance of foreign individuals and businesses, especially those in the ICT sector. The Anti-Terrorism Law requires telecommunications and internet companies to provide information and technical support to public organizations investigating terrorism. The Cybersecurity Law and the Data Security Law together require companies to submit ICT to the government for review, store certain data in the PRC, and seek permission from the government before transferring some data outside the PRC.

Congress’ Request for Legal Briefing Inadequate and Flawed

Congress finally became concerned about the threat of hostile law. I had the honor of testifying before the China House Committee in September. hearing “How the Chinese Communist Party Uses the Law to Silence Critics and Enforce Its Rules.” The hearing discussed the long-term scope of China’s legal war, including the PRC’s attempts to suppress the First Amendment rights of U.S. citizens, block American businesses, spy on foreign firms, and engage in deceptive business practices and vexatious litigation in cases sensitive to national security. Perhaps mindful of these trends, the Joint House-Senate Conference report accompanying the NDAA expressed concern about “foreign interpretations or practices of law that deliberately challenge the rules-based international order,” including those of the PRC, Iran, Russia, and North Korea. expresses. Korea. The report requests that the Department of Defense provide a briefing on the issue within 180 days of the NDAA going into effect.

This request is an important step, but it does not go far enough. I helped draft legislation on the Department of Defense Role in Support of International Lawful Operations, which made it into the Senate draft of the NDAA but was not adopted into the final text. The legislation would require the Secretary of Defense, along with other relevant agencies, to prepare a more detailed report on how the Department of Defense could support a whole-of-government strategy to counter adversarial international lawful operations. The draft legislation made clear that the Ministry of Defense would play a supporting role in a whole-of-government strategy to counter adverse legislation.

Considering the nature of the threat, a briefing request is not sufficient. The Armed Services committee report calls for a simple briefing, not the comprehensive report needed to assess the threat. Because it is not a legal obligation, there is no guarantee that DoD will comply with the request within 180 days. There is also no guarantee that the DoD will devote sufficient resources to a simple briefing. Most problematic is that there is no guarantee that Congress will act on any material briefed.

Public and Private Sectors Should Fight Against Chinese Law Together

The committees’ report is also flawed because the DoD briefing would not require full government consultation. A strategy that involves the whole of government and the private sector is vital to countering adverse legislation. As a nation of laws, the law underpins everything the United States does. A rules-based international order enables free trade and American businesses to thrive. Separation of powers is part of the strength of American democracy, and the American free market economy is the hallmark of what makes America great. However, the PRC can seamlessly use civilian capabilities and entire markets to support its military, as well as countless data on foreign governments and organizations, and has full legal authority to do so. The United States can only meet this with a whole-of-government strategy and private sector cooperation.

As the 2022 National Security Strategy states, the People’s Republic of China is the only rival of the United States with the intention and capacity to reshape the international order. The Philippines and China’s other neighbors in the South China Sea watch as the PRC reforms the rules in its image every day. Americans’ rights and American business are colliding with the PRC’s Legal Wall. Congress needs more than a Powerpoint. A research center to study the legal issue should move to create a whole-of-government anti-legal strategy and an office to lead it.