More Thoughts on the DOJ China Indictment
Jack has already offered a number of thoughts on the indictment yesterday of 5 Chinese PLA members for cyber espionage. Let me offer a few additional thoughts that pick up on some of those threads:
- If the NYT article by Sanger is to be credited, this indictment was part of a strategy
Published by The Lawfare Institute
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Jack has already offered a number of thoughts on the indictment yesterday of 5 Chinese PLA members for cyber espionage. Let me offer a few additional thoughts that pick up on some of those threads:
- If the NYT article by Sanger is to be credited, this indictment was part of a strategy adopted more than two years ago. This suggests two things to me: First, that the timetable for this calculated increase in pressure on China was appreciably disrupted by the Snowden disclosures; and Second, that contrary to Jack's worries, I think that the USG is likely to be willing to take some next steps in its diplomatic campaign against Chinese theft. Having had the opportunity to reset course after the Snowden revelations, DOJ chose to continue forward -- which indicates to me a fairly high level of commitment to whatever course lies ahead.
- The indictment is, to my eye, remarkably transparent in its disclosures, reflecting, I think, a conscious decision to risk the disclosure of sources and methods. See, for example, the tradecraft disclosures in paragraphs 16-18 of the indictment and the details of specific intrusions such as those in paragraph 30. And the listing of overt acts in paragraph 44 of the indictment is especially detailed and particular. I suspect almost every word of this indictment was negotiated with IC representatives.
- Clearly, the United States is doubling down on the economic espionage distinction that it seeks to draw between national security level snooping and spying for corporate gain.
- This indictment is, of course, a perfect example of Lawfare (writ large). It is an effort to use legal means for quasi-national security/military purposes. But it is a strange form of "law" that has no enforcement effect. In this instance, since the defendants are assuredly never going to be presented for trial in a US court, the indictment is a signalling event. I think the audience is broader that Jack suggests in his post. It signals resolve to China (though, it remains to be seen how strong that resolve is); it signals concern to corporate America (we will help); and, I think it signals the rest of the West as well that we intend to defend our economic interests.
- One notable point is the absence of an indictment of any higher-level PLA officials. From all appearances the indictees are low-level players in the military unit. One could easily have imagined a broader charge (using, perhaps, a RICO charge) to include higher level unindicted co-conspirators. The gap might be a lack of evidence. It might also, however, be a calculated act holding back additional information for another step (maybe a special grand jury report).
- Finally, there is the meta-point, that I find quite positive: The US is coming out of its self-inflicted Snowden defensive crouch. Another message being sent here is the even broader one that whatever the world may think, the USG is putting Snowden behind it and resuming its efforts in the cyber domain.
Paul Rosenzweig is the founder of Red Branch Consulting PLLC, a homeland security consulting company and a Senior Advisor to The Chertoff Group. Mr. Rosenzweig formerly served as Deputy Assistant Secretary for Policy in the Department of Homeland Security. He is a Professorial Lecturer in Law at George Washington University, a Senior Fellow in the Tech, Law & Security program at American University, and a Board Member of the Journal of National Security Law and Policy.
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