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Commentary

Indicting Chinese Military Officers Is A Huge Mistake

Blaming soldiers following lawful orders only deflects from the government's responsibility to impose trade sanctions and take more useful measures.

When I read that the Department of Justice was charging five Chinese military officers with cyber espionage related crimes, I knew it was a bad idea from the start.

Looking at the rationale for the charges, I have no doubt that the intelligence that identified these five individuals is solid. It is also very likely that the Chinese soldiers are breaking into the corporations named in the indictment. While the Department of Justice might acknowledge that military officers will commit espionage to further their national interests, the DoJ might believe it is wrong to hack companies for industrial purposes.

The reality though is that at best the indictment is an attempt to deflect fallout from Snowden's treason. It is very true that while NSA has demonstrated itself to be more effective at gathering intelligence and infiltrating networks, China's hacking efforts are much more damaging to the US and world economy. NSA data has not been provided to private companies to make them more competitive, while China uses its cyber espionage to commit a form of technology transfer to Chinese companies. So calling attention to the economic impact of Chinese hacking is a reasonable goal.

Unfortunately, indicting military officers is a horrible way to do this. While the US might believe that committing espionage for the benefit of private companies is wrong, that is a moral judgment that is a relatively rare position to take. Israel, France, Germany, Russia, Japan, South Korea, and just about every other country with an intelligence capability believes that supporting their businesses supports their economy, and is their national interest. While China might be the most egregious in their actions, they are not alone.

Then there is the issue of charging military officers, who are sitting in their home country, following what are lawful orders (at least for them) from their superiors. Unless the Department of Justice is claiming that these five military officers are going rogue and committing these actions for their own personal benefit, there is no doubt that the issue is with the Chinese government. These military officers are just doing what they are told to do, and will be severely punished for refusing to do so.

Industrial versus government espionage
Before I continue, I want to very clearly state that I am against what China and other foreign governments are doing with regard to industrial espionage. I am not condoning their behavior. I am however against making soldiers criminally liable for following lawful orders within their own borders. Again, this is a nation-state issue.

When a nation is assigning their military and civilian employees to commit an act that the US considers criminal, the charge should be against the country that is providing the resources to commit the criminal acts, including paying and directing those people to commit the acts. The actions a government can legitimately take include trade sanctions, eliminating foreign aid, and taking military action. If anyone thinks charging Chinese military officers with crimes is demonstrating support for US businesses, they are fools, as the US is actually refusing to take any tangible actions against China. 

China has responded by frankly doing what I would expect; setting cyber security relations back years. The indictments created no benefit to the US except to call temporary attention to Chinese government hacking efforts.

While I hate the expression "slippery slope," what the US government has done is a very slippery slope. Lets consider what happens should China and other nations choose to want to prosecute any member of the US military or employee of an intelligence agency. As I mentioned before, there is no difference for most foreign governments between the collection of military and economic information. Can China or any other country choose random NSA employees and prosecute them for potentially spying on them? In even more extreme cases, can drone operators be charged with murder?

Regardless of whether or not you believe a country should be spying on another country, to specifically charge soldiers of crimes where they are just the random operators in the case is flat out wrong. The US is shirking the much more difficult political responsibility of imposing trade sanctions on the companies that receive and market the stolen technologies, as well as their governments. 

The fact of the matter is that charging what amounts to soldiers, whom there is no chance in hell of ever prosecuting, is a damaging act that might make some people happy, but only has a negative impact on the large picture. The only tangible impact to come out of this is that the five Chinese people charged will probably not attend the Black Hat conference this year.

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