The People’s Republic of China has built a Legal Great Wall to hold in Americans’ data, to justify human rights abuses against nationals and foreigners, and to legitimize violating its neighbors’ sovereignty. In response, Congress has requested the Department of Defense to build a PowerPoint.

In their first recognition of the threat of legal warfare by the PRC and other adversaries, the House and Senate Armed Services Committees has requested a briefing from DoD regarding the threat of adversary legal warfare, also known as lawfare. While this briefing is an important step by the Armed Services Committees to combat adversary lawfare, it is woefully insufficient given the nature of the threat. The PRC considers legal warfare to be a pillar of its overall civil-military fusion strategy, and is actively working to remake the rules-based international order to favor its interests. Meanwhile, the U.S. has no office and not a single full-time employee devoted to countering adversary lawfare. Congress must take additional action to safeguard the rights of Americans, U.S. businesses, and the rules-based international order itself.

The Department of Defense Recognizes the Threat of China’s Lawfare

DoD has shown an increasing interest in the threat of legal warfare by U.S. adversaries. Several Combatant Commands have developed counter-lawfare programs or projects, led by their Staff Judge Advocates, or top military lawyers. This past week, DoD released a report noting the PRC’s use of lawfare to bolster its illegal maritime and territorial claims in the South China Sea and Taiwan Strait and place restrictions on foreign businesses. Congress has required the DoD to produce an annual report on Military and Security Developments involving the PRC since 2000. The China Military Power Report, as it is commonly known, is devoted largely to analyzing the military and technological strategy and capabilities of the PRC. Unusually, this year the report includes a section entitled “Legal Framework,” detailing a number of PRC laws passed in recent years that are part of what the PRC calls its “Legal Great Wall.” The report notes that these laws are integrated into the PRC’s Military-Civil Fusion strategy, which leverages all civilian elements of national power in support of the military and state’s strategic objectives. According to the PRC, the purpose of the Legal Great Wall is to protect its national security. However, the PRC has used laws like the Coast Guard Law and Anti-Secession Law to bolster its illegal and coercive actions in the South and East China Seas and the Taiwan Strait.


The Chinese Communist Party has also used the Legal Great Wall as justification to surveil and raid foreign businesses, and to crack down on dissent, and potentially to stall litigation in U.S. courts. The report identifies twelve laws of particular relevance to the PRC’s military power, plus various export controls. Several laws, including the National Security Law, Intelligence Law, and Anti-Espionage Law, provide justification for state surveillance of foreign individuals and businesses, especially those in the ICT sector. The Counterterrorism Law requires telecommunications and internet companies to provide information and technical support to public organizations investigating terrorism. The Cyber Security Law and Data Security Law together require companies to submit ICT to the government for review, store certain data in the PRC, and request government permission before transferring some data outside the PRC.

Congress’s Request for a Briefing On Lawfare Is Insufficient—And Flawed

Congress has finally become concerned about the threat of adversary lawfare. In September, I had the honor of testifying before the House China Committee in a hearing on “How the Chinese Communist Party Uses the Law to Silence Critics and Enforce its Rule.” The hearing discussed the long reach of China’s legal warfare—including the PRC’s attempts to suppress the First Amendment rights of U.S. citizens, impede American businesses, surveil foreign firms, and engage in deceptive business practices and vexatious litigation in national security-sensitive cases. Perhaps taking note of these trends, the Joint House-Senate Conference report accompanying the NDAA expresses concern about “foreign interpretations or applications of law that deliberately challenge the rules-based international order,” including those by the PRC, Iran, Russia, and North Korea. The report requests DoD to provide a briefing on the issue within 180 days of the enactment of the NDAA.

Read More: Philippines-China Legal Warfare Escalates At Scarborough Shoal


This request is an important step, but does not go far enough. I helped draft legislation on the Role of the Department of Defense in Supporting International Legal Operations that made it into the Senate draft of the NDAA, but was not adopted into the final text. The legislation would have required the Secretary of Defense to conduct a more detailed report, in conjunction with other relevant agencies, on how DoD could support a whole-of-government strategy to counter adversary international legal operations. The draft legislation clearly stated that the DoD would be in a supporting role in a whole-of-government strategy to counter adversary lawfare.


A request for a briefing is insufficient given the nature of the threat. The Armed Services committee report requests a simple briefing, not the comprehensive report needed to assess the threat. There is no guarantee that DoD will comply with the request with 180 days, since it is not a legislative requirement. There is also no guarantee that DoD will devote sufficient resources to a simple briefing. Most problematic, Congress is not guaranteed to act on any material briefed.


The Public and Private Sector Must Fight China’s Lawfare Together

The Committees’ report is also flawed because DoD’s briefing will not require whole-of-government consultation. A strategy involving the whole-of-government and the private sector is crucial to countering adversary lawfare. As a nation of laws, law is at the foundation of everything the United States does. The rules-based international order enables free trade and American businesses to thrive. Separation of powers is part of the strength of American democracy, and the American free-market economy is a hallmark of what makes America great. However, the PRC can seamlessly leverage civilian capabilities and entire markets in support of its military, along with innumerable data on foreign governments and entities—with full legal authority to do so. The U.S. can only match this with a whole-of-government strategy and cooperation from the private sector.


As the 2022 National Security Strategy notes, the People’s Republic of China is the only U.S. competitor with the intent and capacity to reshape the international order. The Philippines and China’s other neighbors in the South China Sea are watching the PRC remake the rules in its image every single day. Americans’ rights, and American business are smashing into the PRC’s Legal Great Wall. Congress needs more than a Powerpoint. It must act to create a research center to study lawfare, a whole-of-government counter-lawfare strategy, and an office to lead it.