Talking Point

Catch me if you can

Has US lost the moral high ground in cyber spying row with China?

USA-SECURITY/

Edward Snowden: branded a “traitor” by Dick Cheney and accused of treason by Senator Bill Nelson

It was described by Thomas Jefferson as being “one of the most flagitious of which history will ever furnish an example”. For those without a dictionary handy (WiC had to look it up, we admit) flagitious means criminal or villainous. Jefferson was using the term to attack his former vice-president, Aaron Burr, who was facing trial for treason in 1807 in one of the first cases of its kind to be heard in the American courts.

Burr was accused of raising a force to occupy New Orleans and trying to persuade America’s western states to secede from the Union and then kick the Spanish out of Mexico.

Burr, it was claimed, talked grandly of a new empire in which he promised his confederates duchys and dukedoms in reward.

Jefferson found out about the conspiracy, and nipped it in the bud. But he was determined to have his revenge on the flagitious Burr. In The Treason Trial of Aaron Burr, the author R Kent Newmyer notes that it was the president who personally decided to charge Burr with treason and that he did so in an address to Congress.

But although Jefferson threw his weight behind the case, Burr got off. The jury’s verdict was that he was ‘not proved to be guilty under this indictment by any evidence submitted to us’.

One lesson? The difficulty of defining treason, even if the accused has raised an army. American legalists have been fascinated by the Burr ‘conspiracy’ ever since, although as Newmyer observes, “one is left to wonder if Burr himself really knew for sure what it was he planned to do, since so much depended on unpredictable events.”

In fact, Burr lived long enough to see war between Mexico and American colonists in 1835 in what became known as the Texas Revolution. As he then memorably quipped to his biographer: “What was treason in me 30 years ago is patriotism now.”

In fact, treason is back on the agenda again in Washington, although this time it centres on the 29 year-old American Edward Snowden who has fled to Hong Kong.

Why did he flee?

In late May Snowden quietly arrived in Hong Kong. But his presence in the territory wouldn’t stay secret for long, after he went public as the whistleblower source for a series of scoops in the Washington Post and the UK’s Guardian newspaper about the activities of America’s National Security Agency (NSA).

The central revelation was that the agency was systematically analysing emails and other internet data belonging to foreign citizens via an intelligence programme called PRISM. Libertarians and defenders of data privacy were stunned, especially when it emerged that the NSA was running its activities with the cooperation of companies like Google, Facebook and Apple.

In another revelation, Snowden – who worked as a $200,000-a-year contractor for the US intelligence services – gave an interview to the South China Morning Post suggesting that US cyber spies had systematically hacked servers in China and Hong Kong for years.

The revelations soon earned Snowden condemnation from Capitol Hill. According to website Politico, the Republican senator for Florida Bill Nelson – who served for six years on the Senate Intelligence Committee – came out and branded it “an act of treason”.

He added: “I think he [Snowden] ought to be prosecuted under the law. Extradited and prosecuted. We cannot have national security if our secrets can’t be kept on our methods of gathering information.”

The leading Republican on the Intelligence Committee, Saxby Chambliss didn’t go quite so far as Nelson. Asked by Politico whether Snowden had committed an act of treason he said “If it’s not, it’s pretty damn close”. However, Saxby also said the American needed to be extradited from Hong Kong and must explain to an American jury why he put US intelligence methods at risk.

When asked if Snowden’s act was treasonous, Republican Pat Toomey also hedged, knowing that as Jefferson discovered with Burr, the term was legally and constitutionally contentious: “It may well be. That’s a very precise term. I’d want to take a close look before I came to that conclusion.”

Former vice-president Dick Cheney was much more direct, telling Fox News that Snowden was a “traitor” and even implying that he was a Chinese spy.

“I’m suspicious because he went to China. That’s not a place where you would ordinarily want to go if you are interested in freedom, liberty and so forth,” Cheney said. “It raises questions whether or not he had that kind of connection before he did this.”

Of course, Cheney knows that arriving in Hong Kong – a territory with a legal system distinct from China’s – is not the same thing as turning up in Beijing. But he probably figured Fox viewers would be oblivious to this distinction, and know little of the intricacies of Hong Kong’s autonomous status. This ‘defection to China’ line seemed to have a domestic audience in mind too: by accusing Snowden, Cheney was taking some of the heat out of the data privacy debate and trying to refocus the news agenda on the more familiar narrative of China-as-culprit.

How did China react?

Initially the Chinese government stayed silent on the Snowden affair, although Cheney’s remarks drew a disdainful response.

Foreign ministry spokeswoman Hua Chunying rejected any suggestion that Snowden was spying on China’s behalf. “This is sheer nonsense,” she said, before calling for Washington to “pay attention to the international community’s concerns and demands and give the international community the necessary explanation.”

One of the most important outcomes of the affair is the way it resets the terms of debate between Washington and Beijing over cyber hacking. As we detailed in WiC183, the US administration went on the attack earlier this year, citing a report by Mandiant, a security firm, that accused the Chinese military of using hackers to steal American secrets and intellectual property.

Snowden’s admission that the NSA also has an army of cyber warriors that have been attacking Chinese government servers undermines Washington’s accusatory tone.

As Kathryn Hille wrote in the Financial Times: “In a matter of days, the Snowden leaks have turned the dynamics between China and the US over the hot button issue of cybersecurity upside down. If Beijing plays it right, it could look like the victim of a US smear campaign.”

In a radio interview with RTHK, a city radio station, the Hong Kong legislator Charles Mok concurred. “The censors in China must be laughing right now,” Mok observed. “The US has lost the moral high ground.”

How did China’s media react?

Many Chinese newspapers stuck to reporting the basic facts in the days after the story initially broke, suggesting that Beijing’s propaganda department wasn’t quite sure how to react to the PR windfall. However, as the noise increased in Washington some of the usual suspects in the state media were then let off the leash.

No surprise that the Global Times was among the first to offer an editorial on what the leaks meant. “Snowden is a political offender against the US but what he is doing benefits the world,” the newspaper suggested, before moving on to bash Washington for cyber spying. “Snowden’s exposure has upgraded our understanding of cyberspace, especially cyber attacks from the US, which is probably a much sharper weapon than its traditional military force,” the editorial continued. “This weapon has demonstrated US hypocrisy and arrogance. Besides Snowden’s disclosure, it is still unknown what else the US, a country which once condemned China for cyber attacks, has done to China.”

The China Daily then offered this opinion: “People both inside and outside the United States owe the 29-year-old a thank-you for telling them that they are being closely watched by a government that likes to portray itself as a protector of privacy and civil liberties, and a role model for other countries.”

The People’s Liberation Army Daily also hit out at Washington for implying that spying on citizens from other countries was justified. “The US intelligence agencies are habitual offenders with regards to network monitoring and espionage,” continued the article, which was attributed to the PLA’s Foreign Languages Institute. “There is reason to believe US intelligence agencies, while collecting antiterrorism information online have also ‘incidentally’ collected a lot of information in other fields.”

It went on: “The US government says that PRISM is an antiterrorism programme, and does not involve any other matters. But anyone with intelligence expertise can tell this is admitting one’s guilt by protesting innocence.”

Air Force Colonel Dai Xu, known for the hawkish opinions he expresses on his Sina Weibo microblog, also wrote: “I have always said, the United States’ accusations about Chinese hacking attacks have been a case of a thief crying out that another thief should be caught.”

What were the other reactions on weibo?

Mostly there was admiration for Snowden himself, with netizens offering a series of tributes.

“He is an impressive IT worker with the courage to uphold his own ideas, pursue justice and morality, and truly put democracy and freedom in first place! Even as a negligible and weak individual, he is still not afraid of a variety of unknown threats from the world’s most powerful nation, which requires so much courage and admiration for justice and democracy! Whatever the outcome, he is amazing!” gushed one admirer.

Others took on a more nationalistic line. One sought to draw on history, referring to a pro-Mao American journalist: “In the past there was Edgar Snow and today there is Edward Snowden. They are good friends of the Chinese people.”

And there were anti-American comments too. “He has revealed the evil side of the United States to the world,” was another verdict.

But the heartening thing about China’s weibo community – which now numbers over 500 million – is that many of its reactions are unpredictable. Take the view that Snowden’s act vindicates the superiority of the American system: “Why does an ordinary American have such a conscience that he has the courage to risk the condemnation of the US government? I believe that there is neither inducement nor resentment at an unhappy life, but that he has a conscience and worships integrity and impartiality. We have to say that this is the outcome of American-style education, while China has poor education concerning morality and conscience.”

Is there a business angle?

Possibly, and it would involve one of China’s most successful companies Huawei, which Washington has blocked from doing business in America on security grounds.

Snowden’s disclosures about internet surveillance in the United States provided an “I told you so” moment for China’s telecommunications equipment makers, the South China Morning Post agreed, and a senior spokesman for Shenzhen-based Huawei, China’s largest telecommunications equipment manufacturer, was quick to point out that not a single company in its industry was named as cooperating with the PRISM programme.

“Why? Because equipment vendors build the ‘pipes’ that form the network, but they do not manage the information that flows through the network or that is stored in data reservoirs, like internet company servers,” William Plummer, vice-president of external affairs at Huawei, told the newspaper.

Plummer and his Chinese bosses will hope that the revelations might help to reframe the terms of the debate. At the very least, they will say that barring Huawei (and its Chinese rival ZTE) from working with US telcos is not a national security issue, but a protectionist move.

How long could it take for Snowden to be extradited to the US?

Hong Kong’s government has said it will follow due legal process. It will also be mindful of the case of a Libyan dissident sent home to the Gaddafi regime in 2004. He is currently suing Hong Kong for wrongful extradition (and has already been compensated by the UK government for its own role in the affair).

Sending Snowden home doesn’t look like being a popular move among Hong Kongers, either. A weekend poll by the Centre for Communication and Public Opinion Survey at Chinese University found that half thought Snowden shouldn’t be sent back to the US, while a third were undecided.

The Global Times was also adamant that Snowden shouldn’t be handed over: “It would be a face-losing outcome for both the Hong Kong SAR government and the Chinese central government if Snowden is extradited to the US. Unlike a common criminal, Snowden did not hurt anybody. His ‘crime’ is that he blew the whistle on the US government’s violation of civil rights.”

But the newspaper also reckoned the American government would do its utmost to see Snowden returned: “Washington must be grinding its teeth because Snowden’s revelations have almost overturned the image of the US as the defender of a free internet,” it warned. “After losing this image, which has been abused by the US government to boss others around, there is no way it won’t want Snowden to be extradited.”

Moral and political issues aside, the legal complexity of the extradition process should not be underestimated. The South China Morning Post ran an excellent graphic showing that the process could take at least three years, as Washington’s request wends it way through Hong Kong’s courts.

Indeed, Snowden may have made a savvy choice in choosing Hong Kong to seek protection. This comes back to the issue of treason. Why? Hong Kong has no law against treason, so it makes it harder to extradite him on those grounds. (Hong Kong’s government did try to impose an anti-treason law – called Article 23 – in 2003 but it was defeated by mass protests when Hong Kongers took to the streets.)

In a web chat earlier this week Snowden said he had confidence in Hong Kong’s rule of law and pointed out that American officials had destroyed any possibility of a fair trial by labelling him a traitor.

He also denied suggestions that he was a Chinese agent and repeated his claim that US intelligence analysts could wiretap any phone call or email that they wanted.

The Snowden effect…

Perhaps the most surprising thing about his revelations, wrote David Pilling in the FT, is how they turn topsy-turvy our perceptions. We have long known that China’s government exerts strong control over its internet and the firms that operate within it. Now, it turns outs, “America’s most powerful technology companies are routinely obliged to act as if they were a branch of the government [too].”

The superpower and the emerging superpower are not so different in this crucial respect.


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