Potential indicators for cooperation and competition in U.S.-China relations: how Washington uses national security laws|Chi-Ting Tsai

Published (HKT): 2021.03.29 09:28

Earlier this month, the White House made an unprecedented move, releasing Interim National Security Strategy Guidance. Normally, such document is released about a year after a new president takes office. But President Joe Biden ‘s act (less than two months into his term) indicates his administration is eager to revise the national security and foreign policy legacy left by Trump administration.

Biden has set the tone for U.S.-China ties, from foreign policy statements, the release of Interim National Security Strategy Guidance, recent travel to Asia by State Secretary Antony Blinken and Defense Secretary Lloyd Austin, to U.S.-China high-level meeting in Anchorage, Alaska. The U.S. reiterates its emphasis on democracy and human rights, continuum of the Indo-Pacific strategy, strategic competition with China (comprising elements of cooperation, competition, and systemic rivalry), one-China policy, strategic ambiguity, multilateral diplomacy, technology-based military deterrence, and a trade policy focusing on middle class, laying out the U.S. national security strategy in Biden’s presidency.

Trump’s ban considered to be unconstitutional

Despite the strategies and foreign policies in place, Taiwan has paid less attention to the U.S. national security law and its impact on the U.S.-China strategic competition. The impacts do not need to be viewed from a positive/negative perspective. Rather, they should be taken into account by Biden in his decision-making when seeking strategic competition with China.

First, when it comes to technology war between the two powers, the legal battles following Trump’s ban on WeChat and TikTok will pose at least two constraints on Biden. Trump invoked the International Emergency Economic Powers Act (IEEPA) to prohibit the two apps, but the law explicitly states the President is not authorized to use the law as the basis for a ban if it impedes a flow of information. And if it threatens free speech protections, the ban is also considered unconstitutional.

The U.S. courts have been highly deferential to the president’s exercise of authority under IEEPA. But whether the lawsuits against Trump’s use of the law will lead to the increase in the hearings of the IEEPA cases is an issue that should concern Biden administration when making strategic decisions.

EU’s will to block China is unclear

Second, in response to strategic competition and technological races, the U.S. has an increasing need to protect against economic and scientific spies. The China Initiative led by the Department of Justice since 2018 filed a series of lawsuits against Chinese economic espionage cases. While China Initiative is certainly a need in response to these economic espionage threats and strategic competition, it is raising concerns among Asian Americans and academia.

The U.S. government accused Taiwanese-American scientist Wen Ho Lee (李文和) of leaking key nuclear weapons secrets to China. Given no solid evidence, charges were dropped. But his trial was seen as a scapegoat of racism. Recent arrest of Gang Chen(陳剛), a scientist at MIT, has also been seen as nothing but racism. Moreover, it has raised concerns in American academic community over the laws governing the disclosure of funds from foreign academic institutions and over the potential infringement of academic freedom. Therefore, the call from the Asian American community and the academic world, two main supporter groups for Democratic Party, will likely push Biden administration to develop clear, fair procedures and limits of prosecution.

As stated in the INSSG, the U.S. will review antiquated platforms and aged weapons and use new technologies to preserve deterrence. This will inevitably lead to the restrictions on both military and civilian technologies, including the recent control over export of high-end chips. While Committee on Foreign Investment in the United States (CFIUS) can block the acquisition of cutting-edge technologies by foreign investors, the EU countries lack CFIUS’ rigor and authority.

The EU’s framework for screening of foreign direct investment (FDI) has been in place since last year, but the European Commission itself has no authority to block foreign investment. Each member state has the final say according to its national law. The high-tech members in the block have yet to show unwavering determination to rigorously restrict China from acquiring advanced technologies, undermining the U.S. restrictions. Therefore, Biden administration may have to convince the EU countries to tighten the control through diplomatic negotiations or via the Wassenaar Arrangement on Export Controls for Conventional Arms.

Protection of human rights is mere lip service

Furthermore, with regards to protecting democracy and human rights, national laws should be taken into consideration, too. For example, the U.S. ban on imported goods made from forced labor in China’s Xinjiang region is associated with the Tariff Act of 1930. The law prohibits importing any product that was produced or manufactured wholly or in part by forced labor. However, the imports banned from Xinjiang (e.g., cotton, tomato) are often at the very bottom of the supply chain, making it very difficult for the U.S. officials to secure specific evidence to prove the case. As such, the U.S. Customs and Border Protection (CBP) issued a Withhold Release Order (WRO, different from bans) to detain the imported products based on reasonable suspicion of forced labor practices. Importers are responsible for ensuring the products they are attempting to import do not exploit forced labor. Shifting the burden of proof could compel companies to reorganize their multinational supply chains, impeding the flow of trade. Considering the flow of trade, whether Biden administration’s attempt to address “Xinjiang-made goods” ends up as lip service remains to be seen.

To protect democracy, the spread of fake news and misleading content on social media during election campaigns should also be addressed. The U.S. Communications Decency Act (CDA) shields websites (interactive service providers) from liability for content created by their users, making it hard for the government to intervene and control fake news.

Focus on effects of foreign policy at home

Of course, the CDA can be amended and at least require ISPs to remove illegal content. But it is still a long shot to ask social media platforms to raise their duty of diligence and implement Biden’s campaign promises. In fact, the amendment could contradict with U.S.-Mexico-Canada Free Trade Agreement signed by President Trump, which includes CDA to preserve free speech. If the U.S. modifies CDA in the future, it could awkwardly violate the new trade agreement.

As the Biden administration is reviewing the diplomatic legacy left by Trump, it will also confront the restrictions and impacts from the national security laws. Unlike Trump, Biden is believed to take a more cautious approach to these laws. Today, an increasing need for the change of laws and for international coordination may in turn lead to a slower response. It is expected that Biden’s foreign policy will focus more on its effects at home. The U.S. national security-related laws must be included in the analysis of the escalating U.S.-China strategic competition.

Chi-Ting Tsai / Associate Professor, Department of Political Science at National Taiwan University

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