By Mike Pompeo and David B. Rivkin Jr.

Aug. 26, 2021, in the Wall Street Journal

Will we ever know where Covid-19 came from? Not if the last word comes from the U.S. intelligence community, which reported to the White House this week that China’s fault is plausible but unprovable. Beijing has refused to cooperate with inquiries, which it has characterized as “origin tracing terrorism.” The Chinese Foreign Ministry even denounced the equivocal intelligence report: “If they want to baselessly accuse China, so they better be prepared to accept the counterattack from China.”

For the rest of the world, getting to the bottom of the question is essential to assigning blame and preventing pandemics. Fortunately, we have an institution dedicated to getting to the bottom of thorny factual disputes: the U.S. judicial system. Our judiciary is respected globally for its impartiality and scrupulous adherence to due process. Civil discovery gives litigants the tools to compel production of evidence, backed by the threat of sanctions or even default judgment, so Beijing would be unable to stonewall. With so many losses caused by the pandemic, U.S. litigants have a powerful incentive to bring cases, prosecute them aggressively, and test liability through adversarial presentation. Several such cases have already been filed.

But those suits and others like them face a high hurdle: the Foreign Sovereign Immunities Act. The FSIA is the reason at least eight lawsuits were dismissed or withdrawn on grounds that foreign states are generally shielded from litigation in U.S. courts. Yet that immunity isn’t a constitutional mandate, only a matter of congressional discretion. Congress can legislate exceptions, and has done so.

Lawmakers should enact a new FSIA exception denying sovereign immunity to nations that fail to inform, or deliberately misinform, the global community of the nature and scope of a local epidemic that becomes a global pandemic. Beijing’s failure in December 2019 to comply with the 24-hour notification requirement of the 2005 International Health Regulations, which China joined, should be a sufficient trigger. This would permit lawsuits to proceed so China’s culpability for the Covid-19 outbreak can be openly adjudicated.

Congress should also withdraw immunity from international organizations that aided and abetted China’s efforts to play down the virus’s transmission and health risks. Western intelligence services have suggested that Beijing instructed the World Health Organization early in the pandemic on what it should say about Covid-19. Plaintiffs could use discovery to identify other governmental and private entities that collaborated with Beijing and hold them accountable. This litigation would have an added benefit of unmasking much of the pro-China infrastructure within international organizations and Western companies, think tanks and other institutions.

To ensure that China can’t delay proceedings, the FSIA amendment should also either create a new federal tort action or give federal courts jurisdiction over Covid-related claims under state law.

Some may object that these measures could interfere with U.S. diplomacy. But Congress can address that concern. The Justice Against Sponsors of Terrorism Act of 2016—which withdrew sovereign immunity from nations that provided material support to terrorist attacks on American soil—authorized the federal government to intervene in litigation to secure a diplomatic resolution that compensates plaintiffs and mitigates future harm. It makes sense to follow that model here. That would provide the Biden administration with the impetus to declassify and make available to Covid-19 litigants intelligence relating to the virus’s origin. Here, too, there is precedent, stemming from civil cases over the Iran-contra affair and the 9/11 terrorist attacks.

Defendants in U.S. legal proceedings are ordinarily entitled to bring counterclaims and spread liability to other potential defendants. Beijing has accused the U.S. military of creating the Covid-19 virus at the Army’s Fort Detrick, Md., lab and introducing it during the 2019 Military World Games in Wuhan, in which a U.S. team participated. To ensure that Beijing is accorded every opportunity to defend itself, including bringing counterclaims against the U.S., the Biden administration should waive governmental immunity, a step it can take unilaterally without statutory changes. Let Beijing test its implausible theory in court.

China wouldn’t be able to ignore lawsuits in American courts, given its close commercial ties with the U.S. If it refused to participate, courts would enter enforceable default judgments. China would be hard-pressed to avoid complying with any court-ordered damages and injunctions. Successful plaintiffs could pursue collection actions against Chinese government-owned commercial property around the world. Corporations are not normally liable for their owners’ debts, but there is an exception when the owner is involved on a day-to-day basis in running the company. Given the Chinese Communist Party’s pervasive control over formally private Chinese companies, this shouldn’t be difficult to prove.

It should be possible to secure broad bipartisan support for these measures. Republicans and Democrats have expressed a keen desire to hold Beijing accountable, and the Biden administration has made a priority of defending and strengthening the rules-based international order. The president has repeatedly said he wants to make sure China plays by the rules.

Chinese military publications have run articles expressing interest in developing biological weapons. China understands that bioweapons are particularly effective against open societies, where stringent isolation and quarantine measures spur resistance, and could be used to incapacitate aircraft carriers and military bases, which are crucial to the U.S. ability to project power in the Indo-Pacific. Pandemics aside, upholding international norms is essential to deterring China from other malevolent acts, including against Taiwan.

Permitting Covid-19 suits would have additional strategic benefits. In its propaganda, Beijing has sought to capitalize on its supposedly superior handling of Covid-19, claiming it demonstrates the superiority of its totalitarian political system over open, democratic society. Legal discovery could unearth information puncturing these claims.

Holding Beijing accountable would also do much to dispel its assertions that the U.S. is a declining power. While Beijing still respects U.S. military power, it routinely talks down U.S. political will and economic strength. It would face a formidable foe in an army of lawyers on an honest judicial battlefield.

Mr. Pompeo is a distinguished fellow at the Hudson Institute. He served as director of the Central Intelligence Agency (2017-18) and secretary of state (2018-21). Mr. Rivkin practices appellate and constitutional law in Washington. He served at the Justice Department and the White House Counsel’s Office in the Reagan and George H.W. Bush administrations.

Source: https://www.wsj.com/articles/covid-19-coronavirus-origin-fsia-foreign-sovereign-immunities-act-china-lab-leak-wet-market-11629990917

By David B. Rivkin Jr. and Anastasia Lin

July 13, 2020, in the Wall Street Journal

Facebook, Google and Twitter announced this month that they will refuse to comply with customer-information requests from Hong Kong authorities until the companies review the implications of a new Chinese security law designed to suppress dissent in the territory. If the tech companies don’t cave in, it will be a rare instance of Western businesses standing firm against Beijing’s intimidation.

Corporations typically kowtow, fearful of losing access to China’s massive market. International airlines, including American, Delta and United, changed their websites so that Taipei isn’t listed as being in Taiwan. The general manager of the National Basketball Association’s Houston Rockets apologized for tweeting an image that read “Fight for Freedom. Stand with Hong Kong.” Mercedes-Benz apologized for an English-language Instagram post that included an innocuous quote from the Dalai Lama. The Big Four accounting firms issued statements criticizing Hong Kong protests after some of their employees took out an ad supporting them.

Using its economic power to pressure Western corporations is a key element of Chinese statecraft. The Communist Party keenly appreciates that Western entities are far more credible than Chinese government or media. China scrutinizes statements by Western companies, focuses on those that are even mildly critical of its behavior, and threatens them on social media with economic retaliation and blacklisting.

Such threats often appear to emanate from private Chinese citizens. But given the government’s heavy censorship of Chinese social-media platforms, they inevitably bear the party’s imprimatur. Moreover, the Chinese government almost always backs up the statements attributed to its citizens, waging a joint campaign, so that the language of these “private” complaints tracks Communist Party propaganda.

Beijing also attempts to suppress authentic Chinese voices critical of its human-rights abuses. One of us (Ms. Lin) represented Canada in the Miss World 2016 finals in Washington. The London-based Miss World Organization—most of whose sponsors are Chinese companies—isolated her from the media during the pageant and threatened to disqualify her after she was seen speaking informally to a Boston Globe columnist. The ban on her contact with journalists was ameliorated only after intense public pressure.

It’s too much to expect corporations, whose objective is to make money for shareholders, to take a lonely stand against a government that controls access to a major market. But U.S. lawmakers could stiffen corporate spines. In response to the Arab League boycott of Israel, Congress in 1977 made it illegal for U.S. companies to cooperate with any unsanctioned foreign boycott and imposed civil and criminal penalties against violators. That legislation and the implementing regulations “have the effect of preventing U.S. firms from being used to implement foreign policies of other nations which run counter to U.S. policy,” according to the Commerce Department.

Antiboycott regulations forbid U.S. companies to “agree” to eschew doing business in Israel or with a company already blacklisted by the Arab League, or to cooperate with the boycott’s enforcement by providing information about business relationships with Israel or blacklisted companies. All requests for such cooperation must be reported to the Commerce Department. The regulations presume that any action taken in response to boycott-related requests violates the law. It isn’t sufficient to claim that one’s boycott-related speech or activity is based on one’s own views.

These regulations survived legal challenges from companies that claimed violations of their First Amendment right to free speech. Federal courts upheld the rules as narrowly tailored restrictions on commercial speech driven by a compelling government interest. American companies eventually grasped that the rules protected them from foreign pressure. In time, antiboycott compliance became part of American corporate culture and didn’t require much enforcement.

Beijing’s efforts to force American companies to support and comply with its propaganda and deception campaigns and furnish information on Chinese dissidents are similarly inimical to vital American interests. Preventing Western companies from participating in Chinese propaganda campaigns would diminish China’s soft power and impair its ability to use economic blackmail as a tool of statecraft.

Congress should enact legislation prohibiting American companies, as well as foreign entities doing business in the U.S., from cooperating with any Chinese effort to enlist them for propaganda or furnish information on dissidents. In particular, they would be barred from changing their public statements and social-media presence in response to Chinese pressure or from taking other steps to placate Beijing, whether its demands are communicated directly or indirectly. Any such Chinese demands would have to be reported to the U.S. government.

With most Americans—91%, according to a March Pew Research Center report—agreeing that Beijing threatens American interests, such legislation should be able to win bipartisan support. It would also be constitutionally defensible as a narrowly tailored regulation of commercial speech supported by a compelling government interest—countering Beijing’s push for global dominance.

The goal would not be to prevent companies from speaking, or to compel their speech, on China-related issues. They could not, however, legally comply with Chinese government attempts to direct their speech. Like the antiboycott laws, such a statute would protect Western companies, enabling them to tell Beijing that they are unable to comply with its demands. The U.S. can’t stop Chinese state institutions from spreading propaganda, but it can use the law to shield Western companies from the Communist Party’s intimidation.

Mr. Rivkin practices appellate and constitutional law in Washington. He served in the White House Counsel’s Office and Justice Department under Presidents Reagan and George H.W. Bush. Ms. Lin, an actress, was Miss World Canada 2015 and 2016. She is the Macdonald-Laurier Institute’s ambassador for China policy and a senior fellow at the Raoul Wallenberg Centre for Human Rights. She is the wife of James Taranto, the Journal’s editorial features editor.

Source: https://www.wsj.com/articles/a-way-to-curb-chinese-intimidation-11594680594

The coronavirus has cost the US thousands of lives and trillions of dollars. As it becomes increasingly apparent that the Chinese government’s negligence exacerbated the virus’ spread, legal scholars, politicians, and citizens alike have questioned whether America should hold Beijing financially liable.

David Rivkin joined Dany and Marc to outline the legal case for suing China for coronavirus damages. The three debate the merits of the case, whether it’s realistic to expect China to pay, and the legal precedent.

David Rivkin, a partner at Baker Hostetler LLP, is a member of the firm’s litigation, international and environmental groups and he co-chairs the firm’s appellate and major motions team. He served at the Justice Department and the White House Counsel’s Office during the Reagan and George H.W. Bush Administrations.

By David B. Rivkin, Jr., and George Beebe

31 March 2020 in The Hill

Few people regard the novel coronavirus pandemic as an intelligence failure. And, judging by conventional standards, it is not one. The U.S. Intelligence Community (IC) was created to collect and analyze secret information about our adversaries’ capabilities and intentions that pose strategic threats to American national security. Despite allegations by some foreign propagandists and domestic conspiracy-mongers, COVID-19 was not dreamed up in some biological weapons laboratory and unleashed diabolically on the world. Its origins in Chinese “wet markets” were far more prosaic. Today’s rapidly emerging global dangers could not have been uncovered by intercepting secret Chinese communications or capturing their plans for biological warfare.

In such situations, traditional approaches to gathering and analyzing intelligence can only make limited contributions. They can help to determine what secretive governments, such as those in China and Iran, actually know about the spread of COVID-19 and its lethality, and to what degree they may be hiding the truth. And some spinmeisters, evidently intent on both polishing the IC’s image and tarnishing that of President Trump, already have been portraying classified briefings in January and February as an intelligence success because they did just that.

But the notion that Trump is guilty of failing to heed these briefings — or that Sens. Richard Burr (R-N.C.), Diane Feinstein (D-Calif.), and other U.S. senators are legally and ethically culpable for allegedly dumping stocks in response to them — overstates how actionable they were. Anyone who doubts this should ask whether the CIA itself took early action to protect its own personnel and facilities from the coming wave of danger that it supposedly forecast.

Rendering the entirely unsurprising judgment that Beijing was failing to level with its people or the world is not the same as sounding urgent alarms about a global health crisis that could lead to world economic depression. And making a marginal contribution to scaling a deadly threat after it has emerged is not why American taxpayers devote tens of billions of dollars annually to our intelligence cadre. The fundamental purpose of intelligence is to warn effectively about incipient dangers before they become urgent realities, not to help measure their dimensions — or advance partisan political agendas — afterward.

In the context of this larger purpose, the emergence of the novel coronavirus crisis highlights some unacceptable weaknesses in American intelligence. Since its inception in 1947, the IC’s primary mission has been to warn of deliberate, secretly planned attacks by our adversaries, whether they are powerful state actors or non-state terrorists. This challenge endures, as great power competition intensifies, and terrorism persists. While the IC’s record on this is mixed, it is at least a task well-suited to high-technology intelligence collection and to analysis, breaking down a problem and studying its component parts individually.

Unfortunately, our globalized 21st century-world also produces national security threats of a different kind, those that arise when small, non-secret factors combine to produce a devastating cascade of knock-on effects that no one has planned or anticipated. Novel coronavirus turned into a crisis not because it is deadlier than the SARS virus that emerged in China in 2002 (its fatality rate is lower, though it has claimed more lives), but because it debuted in a more entangled but less trusting world, whose weaker physical and psychological antibodies were not up to the challenge. This is the type of a problem that requires synthetic rather than analytic thinking: examining interconnections and feedback loops that can cause small developments to mutate into big dangers.

As it stands today, the IC is ill-staffed and poorly organized for warning about such emerging “complex systems” threats, unfolding in a chaotic world, before they become unmanageable crises. The IC’s enormous cadre of narrowly focused analysts and collectors is ideal for handling traditional intelligence tasks, where uncovering hidden technical details can spell the difference between success and failure in dealing with foreign adversaries.

But large organizational size and narrow specializations can be real handicaps when the task is to bring together a wide range of disciplines and understand the interconnections among factors that could produce “perfect storms” of danger. And old cultural and regulatory barriers between foreign intelligence and domestic American affairs impede understanding the feedback effects between factors internal to the United States and those beyond our borders.

To meet this type of challenge, intelligence must operate on a smaller and smarter scale. It must rely less on secret information, and more on interdisciplinary teams of experts tasked with understanding the larger context of events. In cases such as the novel coronavirus crisis, it must assemble diverse groups of doctors, epidemiologists, economists, business leaders, data scientists, psychologists and other experts who are not typically central players in intelligence assessments.

And it needs to be much better informed about what American entities are doing at home and abroad, because these entities are often important parts of complex international systems. Intelligence experts cannot understand how perfect storms of danger develop beyond our borders — nor can American policymakers know how to deal with them effectively — unless they also understand the ways U.S. factors and capabilities affect them.

Rising to this challenge also requires a much more cooperative and trusting relationship among the IC, White House and Congress. To provide meaningful assessments, intelligence organizations must engage policymakers in their discussion of systemic variables and feedback loops early in the process. They must view their role as helping policymakers to identify variables they can influence, directly and indirectly, and to anticipate the possible impacts on the system of various policy options. They must help U.S. leaders strike an effective balance between punishing Beijing for hiding the true extent of COVID-19’s early spread — a necessary deterrent to future misconduct — and pushing it too far, particularly in an environment where the Communist Party’s reputation and Chinese President Xi Jinping’s own sagacity have taken a beating, and adopting measures that might boomerang against our own national security.

None of that can happen when the IC is an active player in domestic political warfare. In this regard, press leaks about the IC’s supposedly perspicacious warnings about the novel coronavirus threat are actually indications of collective failure. Such internecine strife destroys the trust necessary for frank dialogue among those attempting to understand the dynamics of problems such as the novel coronavirus crisis, and those attempting to manage them.

Reckoning with these problems should be an urgent matter for the acting Director of National Intelligence, a position created to bring together diverse entities and foster collaboration across the IC. The cascade of developments flowing from the outbreak of COVID-19 is far from over. To one degree or another, the United States, Europe, Russia and China all will be wounded — physically, economically and psychologically. These wounds could very well contribute to a dangerous new phase of great power competition. Understanding the dynamics that could send it spiraling beyond manageable bounds into deadly warfare is a vital task for American intelligence.

David B. Rivkin, Jr., is a constitutional lawyer who has served in the Justice and Energy departments and the White House Counsel’s Office in the Reagan and George H.W. Bush administrations. He also worked for a number of years for the Defense Department as a defense and foreign policy analyst.

George S. Beebe is vice president and director of studies at the Center for the National Interest, former head of Russia analysis at the CIA, and author of “The Russia Trap: How Our Shadow War with Russia Could Spiral into Nuclear Catastrophe.”

Source: https://thehill.com/opinion/national-security/490160-before-this-pandemic-ends-intel-agencies-should-prepare-for-a-world-of-threats

Whiplash is an occupational risk for those keeping track of President Barack Obama’s muscular exertions of executive power. In just the few weeks since his party’s shellacking in the midterm elections, the president has made major moves on immigration, Internet regulation, and air pollution, just to name a few.

One problem with activist government is that too many actions that merit serious concern and skepticism fall by the wayside. Among them is the president’s announced climate deal with China, which hit front pages a week after the election before sliding into obscurity, overtaken by so many other events. But like the president’s immigration actions, this actually is something new, and more than a little sinister.

A Method to His Double-Dealing Madness

Taken at face value, the deal doesn’t make any sense—at least, not from the United States national-interest perspective. The United States agrees to costly massive cuts in greenhouse gas emissions: 26 to 28 percent below 2005 levels by 2025, far more than the 17-percent cut the president previously targeted. In return, China agrees to…do nothing for 16 years, until 2030. Its emissions won’t increase beyond their level that year, according to the agreement. While this might appear to be a concession, it really isn’t: although emissions are growing at a rapid clip in China today, most projections see them leveling off right around—you guessed it—2030. In other words, this may be the most one-sided deal since the Dutch purchased Manhattan.

But there is a method to what would otherwise seem to be pure madness. As the numbers suggest, the deal has just about nothing to do with China, which will go on its merry way building coal-fired plants to slake its thirst for cheap and secure energy. But it has everything to do with Americans’ continued reliance on coal-generated electricity.

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