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Guest post: Charles Gartland on “Mao’s Magic Weapon”

Today’s guest post is the third 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 second essay Lt Col Gartland explored 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

In his current essay LT Gartland addresses the Chinese Communist Party’s (CCP) use of the United Front Work Department (UFWD) to garner influence across the globe.  He offers some specific recommendations as to how to counter it, including the establishment of a “Lawfare Czar”.  Here’s Charles’ latest analysis: 

Mao’s Magic Weapon

by Lt Col Charles J. Gartland, USAF* 

The prior two posts in this series looked at the CCP’s Three Warfares strategy and its underlying statutory framework.  Today’s final post spotlights a vital weapon in the CCP lawfare arsenal, the United Front Work Department (UFWD), and then goes on to look at possible counter-measures.  The post concludes with a brief proposal for how the U.S. can best orchestrate lawfare strategy going forward.

Influence & Information Ops: The United Front Work Department (UFWD)

The UFWD is a sprawling network of official and quasi-official propaganda and influence organizations that target both the Chinese diaspora (Chinese citizens and ethnic Chinese) and foreign political or business elites. [1]

Most people outside of China have never heard of the UFWD—and that is precisely how the CCP would like to keep it:  Shadows and ambiguity are both a philosophical tenet and tactic of the UFWD.  Mao lifted the UFWD directly from Lenin’s Soviet version, and wielded it to great effect in China’s Communist Revolution in the 1940s. [2]

Xi Jingping has prioritized UFWD operations and elevated its stature to heights not seen since Mao, ominously echoing Mao in calling it China’s “magic weapon.” [3]  Since assuming power in 2012, he has added no less than 40,000 workers.  (By comparison, that is about double the number of estimated total CIA employees.)  Xi now personally oversees the UFWD with a direct line through the CCP Politburo. [4]

The UFWD operates behind the scenes, not attacking systems, but rather seeking to influence the people within them to harness the system’s machinery in furtherance of CCP narratives. [5]  It is not espionage work per se, although many UFWD entities and officials have ties to the Chinese intelligence apparatus and information collected by the UFWD can ultimately serve the intelligence community. [6]

UFWD-linked Organizations

UFWD operations take direction from Chinese consulates and embassies, in addition to associated and entirely benign-sounding entities such as the following:

    • Confucius Institutes: located on Western university campuses; frequently a vehicle for the dissemination of CCP ideas, delivered under the guise of educating foreigners on “Chinse culture”
    • Chinese Scholars and Students Associations: 142 chapters in the U.S.; aimed at influencing the Chinese diaspora in academia to both undertake UFWD work and reign-in dissidents
    • China Council for the Promotion of Peaceful Reunification: 200 chapters in 90 countries that propound the Party line on Taiwan (i.e. Taiwan is part of China, not a separate sovereign nation)
    • China Association for International Friendly Contact: Establishes contacts with government agencies, political parties, and high-profile political and military figures [7]

Targeting Western Political Elites

Foreigners targeted by the above groups are generally unaware that they are being induced to transmit the CCP position to people in their zone of influence or the public at large. [8]  Targets are slowly softened with repeated introductions to various Chinese officials, ego-buffing compliments on their “unique understanding” of China’s position, and occasionally lavish and highly-curated trips to China. [9]

Before they know it, targets are writing an op-ed or issuing a tweet or press release towing the party line. [10]  Neither the Westerners enabling or the Westerns reading that op-ed realize they’re receiving a carefully crafted CCP narrative. [11]  The UFWD calls this process a “repurposing of democracy” [12]  and no CCP fingerprints are left behind.

The examples span the entire globe, with some of the most dramatic impacts in Australia, New Zealand, the U.S. and the UK:

    • A prominent Australian senator had long advocated for the China’s position regarding its claims in the South China Sea. He resigned from parliament in 2017 after his connections with a real estate tycoon—a president of the local UFWD chapter—were revealed; the senator had also tipped-off the tycoon that Australian intelligence was likely conducting surveillance on him. [13]
    • A Chinese-born but naturalized New Zealand citizen and Member of Parliament (MP) had formerly worked with the Chinese intelligence sector (and quite likely the intelligence arm of the PLA itself) for 15 years. While an MP, he consistently pushed the CCP line on matters affecting China.  He had previously been the president of a UFWD organization while attending university in Australia. [14]
    • A British MP received hundreds of thousands of pounds from a Chinese national who held leadership roles in multiple UFWD organizations. The MP advocated for partnering with a Chinese state-owned-entity subject to a U.S. export ban owing to its links with the Chinese military on a economically dubious nuclear energy project. [15]
    • The 2019 China-U.S. National Governors’ Collaboration Summit was co-sponsored by a UFWD organization at the peak of the U.S.-China trade war. Comments from U.S. officials—to include more than one Governor—sympathetic to China’s position in the trade dispute were magnified in Chinese state media. [16]

Counter-Measure Proposals

The good news is that the West is waking up to the damage wrought by the UFWD’s continual interference in its democracies.  At least 60 Confucius Institutes have been closed or curtailed since 2017.  In 2018 Australia passed the Foreign Influence Transparency Scheme, partially in response to UFWD penetration of their society.

In the U.S., a flurry of recent Congressional Reports and legislative proposals on both the right and left (Great Power Competition with China appears to be one of last remaining issues of general bipartisan accord) have been published on CCP malign influence, much of it centering on the UFWD.

Here are two of many possible legal reforms that will further U.S. efforts to counter the UFWD:

Expanding The DOJ China Initiative.  This is a classic (and highly successful) example of lawfare:  Litigate the criminal activity of your adversary to deter it and raise awareness.  Based on results so far, with dozens and dozens prosecuted for illegal trade practices, espionage, and violating foreign agent disclosure laws, this DoJ effort could be multiplied three or four-fold and still fall short of its potential.

Indeed, bearing in mind that UFWD tentacles reach out all across America from universities to state legislatures, the number of potential defendants would only seem to be limited by the number of prosecutors devoted to prosecuting them.

Overhaul of The Foreign Agents Registration Act (FARA).  Originally intended to root out Nazi propaganda in the pre-WWII period, the FARA took its modern form in the 1960s during the Cold War.  The Act is more of a procedural disclosure than substantive statute; in effect, it is a public notice transparency statute. [17]

A purpose of the Act is to provide public notice of those “[e]ngaging in political activities or those designed to influence the U.S. Government or public regarding domestic or foreign policy [or] taking part in perception management effort[s].”

To that end, a publicly available database maintained by DoJ lists the identities of those who are agents of foreign governments and the nature of their activities, to include monetary transactions and/or benefits received.

At least three significant problems with the FARA require remedy if it is to be a useful weapon in fighting the UFWD juggernaut:  1) comparatively weak penalties; 2) debilitating exemptions; and 3) a lack of enforcement and coverage.

Regarding the first, maximum penalties of $10,000 and five years in prison are not the stuff of “Great Power Competition” and fail to communicate that the U.S. takes the UFWD’s meddling in domestic politics seriously.

Second, specifically exempted from coverage are, among others, news organizations and those engaged in academic or scientific endeavors, all of which have been prime targets of UFWD operations.  Some might object here that singling-out press and academic activity runs afoul of the First Amendment, but remember:  this is a public disclosure statute, not a statute that prohibits any kind of speech or conduct.

Another cavernous exemption is for those registered under the Lobbying Disclosure Act.  One might argue that the LDA exemption is not problematic because the FARA goal of public disclosure is attained regardless of the particular disclosure mechanism used.

That is true, but the FARA’s purpose is to shed light on foreign agency and influence; that purpose is not met if national security implications are obscured under the generic umbrella of “lobbying.”

Third, one number proves the utter inadequacy of FARA coverage and enforcement: 26.  That is the total number of entities listed as Chinese “active foreign principals” on the DoJ FARA website (as of 9 Aug 2021).  With thousands of Chinese nationals and state-owned-entities operating in the U.S., this is a laughably low number that on its own reveals the degree to which the UFWD evades detection.

How to unearth an influence operation such as the UFWD, which works in the shadows of pretext and concealment?  A 2016 DoJ IG Report on FARA provides one possible solution:  Reform FARA to grant DoJ Civil Investigative Demand Authority.

This is essentially an administrative subpoena power.  Numerous federal agencies such as the EPA already exercise this authority, ironically for reasons arguably far less compelling than national security.  Enabling administrative subpoenas under FARA would enable DoJ to peel back the first layer of the complex UFWD onion in any given case.

A Focused Approach to Lawfare

Chinese lawfare is a kaleidoscope of tactics and doctrine.  Sometimes it takes the form of positive law, such as 2017 National Intelligence Law, the epitome of a Marxist-Leninist legal instrumentalism that weaponizes the ordinary citizen by requiring his collaboration in intelligence efforts.

Other times it is more abstract, such as incrementally redefining freedom of navigation in the South China Sea through a combination of overt military action and incessant propaganda campaigns.

A U.S. integrated lawfare effort would have to combine consciousness of all the above CCP lines of effort with expertise on the mechanics of our own countermeasures, e.g. FARA (one example).

At present this multidimensional legal conundrum is not the province of any one lawyer or legal office.  That needs to change, and fast, considering the decades-long head start had by our CCP rivals.  This post is not the first to suggest it, but something in the nature a “Lawfare Czar” is called for to both assess what the adversary is doing and formulate responsive solutions, offensive and defensive.

The locus of such a position is debatable, but there is a strong case for situating it within the national security apparatus as opposed to somewhere else.  There is a twofold rationale for that.  First, lawfare is far more than litigation; thus, an agency with a litigation mandate, such as DoJ, is an imperfect fit.

Second, a plain reading of lawfare’s classic definition frames the concept in military, not legal, terms: “The strategy of using—or misusing—law as a substitute for traditional military means to achieve an operational objective” (emphasis added).

Our adversaries see it the same way:  Three Warfares is about utilizing the law to either bring about or fortify a military objective.  DoJ for instance has a National Security Division—but national security is not DoJ’s mission—that is the purview of the DoD and other national security agencies.

Whatever the final form or placement of the “Lawfare Czar” or “Office of Lawfare,” there is a specially trained cadre of attorneys ready to staff it, whose very job is both the law and national security: JAGs.

Revisionist China poses the existential, civilizational challenge of our lifetimes.  Mastering lawfare is an inescapable part of confronting and winning that challenge.

Notes

[1] Alex Joske, The Party Speaks for You:  Foreign Interference and the Chinse Communist Party’s United Front System (Australian Strategic Policy Institute, Policy Brief Report No. 32) (2020), 1-5.

[2] Id. at 5.

[3] Id. at 8.

[4] Alexander Bowe, China’s Overseas United Front Work:  Background and Implications for the United States (U.S.-China Economic and Security Review Commission) (2018), 6.

[5] Joske at 19.

[6] Joske at 14-15.

[7] Bowe at 8-12.

[8] Clive Hamilton & Mareike Ohlberg, “Hidden Hand: Exposing How the Chinese Communist Party is Reshaping the World,” (Oneworld Publications: 2020), 28-50.

[9] Id.

[10] Id.

[11] Id.

[12] Joske at 19.

[13] Id. at 24.

[14] Bowe at 16.

[15] Joske at 26-27.

[16] Hamilton at 83-84.

[17] 22 U.S.C. § 611, et seq.

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.

Remember what we like to say on Lawfire®: gather the facts, examine the law, evaluate the arguments – and then decide for yourself!

 

 

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