Guest Post: Charles Gartland on “The CCP Puts the World on Notice”
Today’s guest post is the second in a series by Air Force lieutenant colonel Charles J. Gartland, who is the Law Chair Director at the U.S. Air Force Judge Advocate General’s School. Lt Col Garland is examining a really important and fascinating phenomena: Chinese lawfare. In his first essay, “Out to Sea with the CCP: A Contemporary Example of Lawfare with China” he dissected it in the context of China’s actions in the South China Sea.
In his current essay Lt Col Gartland explores the “lawfare machinations and strategies surrounding the rollout and interpretation of the two laws,” specifically China’s the 2015 National Security Law and 2017 National Intelligence Law. Enjoy this one, and be sure to be on the lookout for Lt Col Gartland’s next installment in his fascinating series!
The CCP Puts the World on Notice
by Lt Col Charles J. Gartland, USAF*
In a previous post I took up the topic of China’s non-kinetic master strategy for information warfare dominance, to include lawfare, known as The Three Warfares.
Today’s post puts a lens on two pieces of the Chinese national security statutory framework, the 2015 National Security Law and 2017 National Intelligence Law. [1]
While the laws constitute two weapons in the Chinese lawfare arsenal, the point of this post is more to explore the lawfare machinations and strategies surrounding the rollout and interpretation of the two laws, as opposed to a dissection of the laws themselves.
In terms of their impact—also not the focus of this piece, but certainly worthy of further discussion—the consensus is that they are heavy-handed and position the Chinese Communist Party (CCP) to learn a lot about people and companies everywhere.
The laws are museum-piece exemplars of the CCP’s instrumentalist, coercive “rule by law” approach as juxtaposed with the Western concept of “rule of law.”
2015 National Security Law
Among the many landmark features of the U.S. 2017 National Security Strategy (NSS) was its emphasis on the tie between economic security and national security. The NSS, however, is policy, not law.
Two years prior to the NSS, China recognized the same link between the economy and national security, but as a matter of law. A key excerpt from Article Two of the 2015 National Security Law:
National Security refers to the relative absence of international or domestic threats to the state’s power to govern, sovereignty, unity and territorial integrity, the welfare of the people, sustainable economic and social development, and other major national interests, and the ability to ensure a continued state of security.
While most nations strive to enhance the “welfare of [their] people” and seek “sustainable economic and social development,” they do as a matter of domestic public policy. By contrast, under China’s expansive interpretation of national security, economic growth is national security.
There is no bifurcation of domestic and foreign policy here. The threat could be “international or domestic” and the nature of the threat need not necessarily be another country’s military—it could be anything undermining the economy.
On the macro level, the domestic and global ramifications of this law are sweeping. The 2015 law’s passage set the stage for a similarly sweeping law to follow two years later, although its operation is at the micro-level.
The 2017 National Intelligence Law
Just as the 2015 law expands the definition of national security, the 2017 National Intelligence law is equally expansive in terms of what the state can do to its own people in the name of national security. Article seven of the law stipulates that: “[A]ny organization or citizen shall support, assist, and cooperate with state intelligence work…”
But does the law reach beyond its own citizenry? The text is clear that the obligation to actually undertake or cooperate with state-directed intelligence work applies only to Chinese citizens.
However, the impact of the law could fall on non-citizen organizations. Article 14 directs that “state intelligence work organs… may demand that concerned organs, organizations, or citizens provide needed support, assistance, or cooperation” (italics for emphasis).
Furthermore, Article 16 also reaches across national lines, granting security officials the power to “enter restricted areas… question relevant institutions, organizations, and individuals,” and finally “read or collect relevant files.”
The impact to foreign persons and entities is profound. Millions of Chinese citizens work outside China, while thousands of foreign firms work with or within China.
The Canadian Security Intelligence Service in a keenly comprehensive 2018 report entitled China and the Age of Strategic Rivalry underscored the national security risk posed by the global placement of Chinese companies. One of its observations is that Chinese intelligence services now have “direct access to… Allied and European countries with inroads into other societies.”
Why Declare the Obvious?
Why did China make public the authorities and practices laid-out in the 2015 and 2017 Laws? The laws generated considerable press attention, most of it negative and reproachful. Why court an avalanche of criticism and expose itself to denunciations of totalitarianism when it didn’t have to?
The question is even more perplexing, as the Canadian report notes, in light of the fact that China merely put in writing what has long been its practice.
One possible answer is that China simply miscalculated. [2] China underwent a veritable national-security-lawmaking frenzy between 2014 and 2017. This could be a sign of the CCP’s mounting arrogance on the world stage. The CCP simply lost impulse control and underestimated the fall-out. As Lord Acton famously quipped, “All power tends to corrupt; absolute power corrupts absolutely.”
Chairman Xi has accrued tremendous power during his tenure, second only to Mao among the post-Cultural Revolution figures. A downside to consolidating near-total control in one person however is a narrowed field of vision. Perhaps the upshot of strongman myopia is this rash of public disclosures.
The above answer is plausible, but there are better explanations. A scratch beneath the surface reveals fairly straightforward lawfare at work. Recall that lawfare is not just litigation. Some of the most compelling and fruitful forms of lawfare do not involve court victories, but rather propounding a new legal narrative through the information media.
Setting a New Legal Standard
The CCP has not been shy about asserting new norms of behavior, hence the “revisionist power” label slapped on China repeatedly in policy documents such as the NSS. The CCP model weds free-market capitalism to a heavy-handed form of state control that enforces rigid unity of effort across all the Instruments of Power.
It is a model that has “worked” in the sense of raising China from third-world impoverishment to Great Power status. (It has not “worked” so well for Hong Kong freedom fighters, the one million Uyghurs stuffed in concentration camps, and basic civil liberties such freedom of speech and religion.)
Western leaders have taken note and even surprisingly expressed their admiration for it. That being the case, it makes sense that an authoritarian one-party state would capitalize on its success and unfurl its overarching legal framework to a global audience. China ultimately cannot succeed in converting the world to its model without actually promoting it, which requires that it be on public display.
Feigning Western Norms
On the flip-side, there is an alternative explanation. While the public disclosure of the 2015 and 2017 laws amounts to an unabashed promotion of authoritarianism that is contrary to Western values, the regime simultaneously burnishes its Western bona-fides by adopting a norm of the international rules-based order, namely, transparency.
The legislation puts countries and companies doing business with China “on notice” that they and their employees are subject to oversight, intervention, and possibly surveillance by state security and intelligence organs.
Numerous online legal advisories from global American law firms alert their clients and the public at large to the laws’ security risks—a clear illustration that the West is keenly aware of the security laws’ effect.
Since notice is a cornerstone of Western due process, China can claim it has put the West “on notice.” Moreover, since the statutes were enacted by China’s highest national representative (in theory) body, the National People’s Congress, China can claim that it has provided the West notice the same way the West would, namely, legislatively.
Retaliatory Lawfare
Whatever nuances lie behind China’s launch of the two laws, many of the reactions have not been so subtle. India—at this point a fierce competitor with China and increasingly allied with the U.S. and Australia as a counterweight to China—proceeded to ban dozens of Chinese apps on the ground that the 2017 law in-effect authorizes the CCP to data-mine information from Indian citizens using the apps.
India’s reaction is a tactical one however, driven by immediate national security concerns. The same can be said for the UK move barring Huawei components from 5G network development, and the U.S. decision to restrict Huawei from receiving computer chips developed with U.S. software.
Piecemeal reactions are not a strategy however, much less a lawfare strategy. The forthcoming post in this series will examine what such a strategy should look like for the U.S. and its partners.
Notes
[1] The period of 2014 to 2017 saw an explosion of Chinese lawmaking by the National People’s Congress (China’s highest legislative body) in the realm of national security. For contextual purposes, the reader should be aware that the 2015 and 2017 laws discussed here are just two in a raft of laws passed during the period covering everything from counterespionage and counterterror to cybersecurity to NGO management. All of those statutes have a bearing on each other and must be construed collectively.
[2] Clive Hamilton & Mareike Ohlberg, Hidden Hand: Exposing How the Chinese Communist Party is Reshaping the World, (Oneworld Publications: 2020), p. 98.
Disclaimers:
* The views and opinions expressed here are the author’s alone and do not necessarily reflect the official policy or position of the U.S. Air Force the Judge Advocate General’s Corps, the Department of Defense, or any other agency of the U.S. government.
Moreover, the views and opinion expressed by guest authors do not necessarily reflect those of the Center on Law, Ethics and National Security, or Duke University.
About the author:
Lieutenant Colonel Charles J. Gartland is the Law Chair Director at the U.S. Air Force Judge Advocate General’s School. Among other previous positions, he has served as a deployed Staff Judge Advocate with Special Operations Command and as Agency counsel defending the Air Force against constitutional and APA claims in federal court.
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