China Constructed a Legallybinding Great Wall. Congress' PowerPoint Methods Fail to Crack It.
China Constructed a Legallybinding Great Wall. Congress' PowerPoint Methods Fail to Crack It.
In response to the threat of legal warfare by the People's Republic of China (PRC) and other adversaries, the House and Senate Armed Services Committees have for the first time recognized the need for a response. They have requested a briefing from the Department of Defense (DoD) on the threat of adversary legal warfare, also known as lawfare. While this briefing is a positive step, it is not enough given the seriousness of the threat.
The PRC considers legal warfare to be a key component of its overall civil-military fusion strategy, and is actively working to remake the rules-based international order to its advantage. Meanwhile, the U.S. has no dedicated office or staff devoted to countering adversary lawfare. Congress must take further action to protect the rights of Americans, U.S. businesses, and the rules-based international order itself.
DoD has taken steps to address the threat of legal warfare, with several Combatant Commands developing counter-lawfare programs led by their top military lawyers. The DoD has also released a report detailing the PRC's use of lawfare to bolster its illegal claims in the South China Sea and Taiwan Strait, as well as to place restrictions on foreign businesses.
However, the request for a briefing from DoD is not enough to fully address the threat. A more comprehensive report is needed to fully assess the threat and develop a comprehensive response. Without Congress taking further action, the U.S. may be at a disadvantage in the face of adversary legal warfare.
The public and private sectors must work together to counter adversary lawfare. The PRC has used laws to surveil and raid foreign businesses, suppress dissent, and potentially stall litigation in U.S. courts. U.S. businesses and individuals must be aware of these threats and take steps to protect themselves.
Furthermore, the U.S. government must take a whole-of-government approach to countering adversary lawfare. This includes not only DoD, but also other agencies such as the Department of State and the Federal Bureau of Investigation. Only by working together can the U.S. effectively counter the threat of adversary legal warfare.
The PRC Uses Lawfare to Bolster Illegal Claims and Place Restrictions on Foreign Businesses
The report released by DoD highlights the PRC's use of lawfare to bolster its illegal claims in the South China Sea and Taiwan Strait. The PRC has passed a number of laws, including the Coast Guard Law and Anti-Session Law, to bolster its illegal and coercive actions in these areas.
The report also notes that the PRC has used laws to place restrictions on foreign businesses. These restrictions include requiring companies to submit information and technical support to public organizations investigating terrorism, as well as storing certain data in the PRC and obtaining government permission before transferring data outside the country.
The report identifies a number of laws of particular relevance to the PRC's military power, including the National Security Law, Intelligence Law, and Anti-Espionage Law. These laws provide justification for state surveillance of foreign individuals and businesses, especially in the ICT sector.
The U.S. Must Take a Whole-of-Government Approach to Countering Adversary Lawfare
The threat of adversary lawfare is too serious to be addressed by a single agency or sector. The public and private sectors must work together to counter this threat.
The DoD has taken steps to address the threat, including developing counter-lawfare programs and releasing a report on the PRC's use of lawfare. However, the request for a briefing from DoD is not enough to fully address the threat.
Congress must take further action to protect the rights of Americans, U.S. businesses, and the rules-based international order. This includes requiring a more comprehensive report from DoD, in conjunction with other relevant agencies, on how the U.S. can support a whole-of-government strategy to counter adversary lawfare.
The U.S. government must take a whole-of-government approach to countering adversary lawfare. This includes not only DoD, but also other agencies such as the Department of State and the Federal Bureau of Investigation. Only by working together can the U.S. effectively counter the threat of adversary lawfare.
The Public and Private Sectors Must Work Together to Counter Adversary Lawfare
The threat of adversary lawfare is not just an issue for the U.S. government. U.S. businesses and individuals must also be aware of this threat and take steps to protect themselves.
This includes not only complying with applicable laws and regulations, but also being aware of potential threats and taking steps to protect sensitive information and intellectual property. U.S. businesses must also be proactive in advocating for a rules-based international order and challenging actions that violate this order.
The public and private sectors must also work together to counter adversary lawfare. This includes sharing information and best practices, as well as collaborating on efforts to advocate for a rules-based international order.
In conclusion, the threat of adversary lawfare is a serious and growing concern. The PRC is using lawfare to bolster its illegal claims and restrict foreign businesses. The U.S. must take a whole-of-government approach to countering this threat, including developing a comprehensive response and working with the public and private sectors. Only by working together can the U.S. effectively counter the threat of adversary lawfare.
The Committee's report is flawed due to the DoD's briefing not encompassing a comprehensive whole-of-government consultation. A strategic approach that incorporates the entire government and private sector is essential in countering adversary lawfare. Being a nation governed by law, law forms the basis of every action taken by the United States. The rule-based international order fosters free trade and allows American businesses to flourish. The principle of separation of powers amplifies the power of American democracy, and America's free-market economy is a key attribute that highlights its greatness. However, China can effortlessly utilize civil capabilities and entire markets to bolster its military, as well as possessing vast amounts of data on foreign governments and entities, all legally permissible. For the U.S. to counter this, a whole-of-government strategy and collaboration from the private sector is necessary.
According to the 2022 National Security Strategy, the People's Republic of China is the sole competitor of the U.S., possessing both the intent and capability to alter the global order. The Philippines and other neighboring countries in the South China Sea witness the PRC rewriting the rules in its own image daily. American rights and American businesses are colliding with the PRC's Legal Great Wall. Congress requires more than merely Powerpoint presentations. It needs to take action, establishing a research center to focus on lawfare, formulating a whole-of-government counter-lawfare strategy, and appointing a team to spearhead its implementation.
- The report by DoD reveals that China uses lawfare to bolster its illegal claims in the South China Sea and Taiwan Strait, placing restrictions on foreign businesses through laws like the Coast Guard Law and Anti-Session Law.
- The PRC's National Security Law, Intelligence Law, and Anti-Espionage Law provide justification for state surveillance of foreign individuals and businesses, particularly in the ICT sector.
- To effectively counter adversary lawfare, the U.S. needs a whole-of-government approach, involving not just the Department of Defense but also agencies like the Department of State and Federal Bureau of Investigation.
- To protect American rights and businesses from China's legal warfare, Congress should take further action, such as establishing a research center, formulating a comprehensive counter-lawfare strategy, and appointing a dedicated team to implement it.