Canada's pawn in the Xi-Trump cyber game

News that China has detained a third Canadian over the arrest of (Sabrina) Meng Wanzhou has turned up the heat on Canada to find some way out of the current legal impasse. As of this writing, Canadians Michael Kovrig, Michael Spavor, and Sarah McIver are all detained, although McIver’s status is yet to be clarified.

Faced with a simple extradition warrant for Meng from the United States, Canada seems stuck with no leverage, and no good options but to let the legal proceedings take their course and tough this out. China is clearly set on a path of intensifying pressure, probably at least as much to make an example of Canada as to break our resolve.

As it happens, we probably do have a way out of this, but not through conventional diplomatic channels. This mess needs to get back in front of a judge.

More on that in a minute, but first some context.

Using a tiny fraction of the U.S. defense budget, Russia and China, and to a lesser extent North Korea and Iran, have been wildly successful in breaching our incredibly weak cyber-security fences.

Out of sheer hubris and naiveté, we handed them the most deadly weaponry ever conceived — the ability to turn our own infrastructure and arms against us — for free. Suddenly, the world's democracies are in a race against time, playing catch-up in a deadly game.

Domestically, the U.S. government, largely out of view of the media spotlight, has committed huge resources toward assembling inter-departmental coordination to establish and enforce international norms of behavior for cyberspace.

Had it not been for the chaos radiating outward from the Oval Office on a daily basis, the world's media might have heard the cyber-sabres rattling ever louder all autumn from the Departments of Defense, Homeland Security, and Justice.

Had we known more, Donald Trump’s seemingly offhand musing that he might be willing to barter Sabrina Meng’s custody for Chinese trade concessions would not have been treated as just another of his erratic but empty pronouncements. In reality, he (probably inadvertently) gave away the game.

In so doing, he opened an exit path for Canada from a game we cannot win.

Because when it comes to Meng’s arrest and the Trump-Xi trade talks, I don’t believe in coincidences.

No accident that Meng arrested two hours before U.S.-China trade dinner

In the context of wider efforts across the U.S. government, the arrest of a senior executive of a Chinese telecom giant just two hours before Trump and Xi Jinping's trade meeting at the G20 in Buenos Aires looks wholly orchestrated to ruthlessly put the screws to China.

In a city as connected to Beijing as Vancouver, the news of Meng's arrest would travel at the speed of light, and the Americans knew it (her home is basically around the corner from China's consular residence).

Just look at the faces and body language of Xi’s team. They knew.

U.S. National Security Advisor John Bolton had advance notice of the planned arrest as he sat almost directly opposite China’s lead trade negotiator, Liu He, who is charged with negotiating China’s tech policy.

Trump says he didn’t know, which might be a casual lie or another accidental truth.

Yet consider this: There was no need to charge Meng personally. The U.S. DoJ has a well-established practice of charging corporate entities rather than senior executives. This was a deliberate escalation. And the warrant didn't need to be executed in Vancouver. Meng could have been arrested earlier in Hong Kong, or later in Mexico, Argentina, or France. All of them were on her travel itinerary, all have extradition treaties with the U.S, and any would have modulated the G20 fallout.

But the U.S. DoJ made its request of Canada on November 29, the day before the start of the G20. There's no mistaking the significance.

Set up for a diplomatic hit job, Canada takes the fall

This thing looks like a setup for a diplomatic hit job. And Canada got hosed into doing the dirty work and taking the fall.

Although it’s not as if China wasn’t asking for it, after years of state-sponsored cyber-espionage and lawlessness.

Nor were they quiet about it. When The New York Times published a humiliating report last October that China and Russia were routinely bugging the president’s cellphone (and Trump tweeted from his iPhone that he doesn’t use a cell-phone), China openly mocked the situation and suggested he switch to a Huawei phone.

In retrospect, maybe not the best idea.

Indeed, one of the most intriguing elements of this whole story is evidence of the struggle within the Trump administration to manage the president himself, and prevent him from triangulating negotiations for his own personal benefit.

There is, as they say, some history here.

It was in the innocent days of May, when we were all so much younger, that Trump kneecapped his entire national security apparatus by abruptly reversing U.S. policy on ZTE, another massive Chinese telecom. A month earlier ZTE, charged with virtually the identical Iran sanctions violations as Sabrina Meng Wanzhou faces, was subjected to such harsh retaliatory measures from the Commerce Department as to put them out of business.

Donald Trump to the rescue.

Trump cuts deal with China over ZTE prosecution

By mid-May, some 72 hours after China committed $500 million to an Indonesian project linked to a Trump-branded hotel, the president abruptly expressed concern for Chinese jobs, tweeting that “President Xi of China, and I, are working together to give massive Chinese phone company, ZTE, a way to get back into business, fast. Too many jobs in China lost. Commerce Department has been instructed to get it done!”

And so it came to pass that the kindly U.S. president breathed new life into a Chinese company that violated Iran sanctions and operated as a threat to American national security.

Indeed, with the exception of the president, who evinces only passing interest in anything cyber beyond Twitter, the whole U.S. government is seized of a critical need to address the hyper-exponential growth in risk associated with 5G, the Internet of Things (IoT), and Artificial Intelligence.

With the coming new tech advances, the millions of daily attacks on American infrastructure—on everything from the electrical grid, telecommunications, financial sector, even nuclear stockpiles—is expected to increase to trillions, unless hostile state actors are deterred.

This urgency is expressed in equal measure on both sides of the aisle in Congress, in the Defense Department, the Department of Homeland Security, the Department of Justice, from the Director of National Intelligence, and across government departments. The primary objective is to deter state-level adversaries—primarily China and Russia, but also Iran and North Korea—from gaining sufficient cyber-weaponry to pose a serious threat to the safety, democratic institutions, and prosperity of modern democracies.

It has not escaped U.S. attention that the whole world witnessed the power of Russia’s operations as it exposed America’s soft underbelly in 2016. Preventing and deterring similar attacks have become an existential imperative, not just in the U.S., but in all democracies.

Aggressive new strategy to end cyber's Wild West

As the U.S. Department of Defense put it in announcing its new cyber-strategy in September:

“Competitors deterred from engaging the United States… in an armed conflict are using cyberspace operations to steal our technology, disrupt our government and commerce, challenge our democratic processes, and threaten our critical infrastructure. China is… persistently exfiltrating sensitive information from U.S. public and private sector institutions.”

Democrat Senator Mark Warner, vice-chair of the Senate intelligence committee, outlined a new doctrine for cyberwarfare in a December 7 speech to the Center for New American Security (CNAS):

U.S. policy makers with allies should pre-determine responses for potential targets, perpetrators and severity of attack… This may mean sanctions, export controls or indictments (emphasis added). It could even include military action or other responses.”

The new "Code War"

John Carlin, assistant attorney general for the Justice Department’s National Security Division in the Obama administration, in an interview with the Brookings Institute’s Lawfareblog, described what he calls the new “Code War” in cyber-space, where diplomacy dovetails with the criminal justice system in an “all tools of government” approach.

Pointing to the case of ZTE, where criminal prosecution led to sanctions from the Commerce Department, Carlin said: “(Criminal prosecution) has to be calibrated with a diplomatic strategy where it is clear that we have the will and the capability to keep raising the costs proportionately and we are going to do that until the behaviour changes."

In other words, despite the best efforts of an erratic and mercurial president, career civil servants are attempting to exercise some control over the levers of power, and develop and execute a badly-needed coordinated strategy to protect cyber-space.

Importantly, as a bold new initiative, the United States government is including criminal prosecutions as a diplomatic tool to pressure adversaries in cyber-space.

Which brings us back to Canada, and where we stand in this grand global game.

Canada's justice system cannot become a weapon of diplomacy

Given the scale of state-sponsored espionage with mushrooming risk to our global infrastructure, it is clearly in our interest to join the global effort to establish and enforce international standards for the cyber super-highway.

Yet there is a fine but important line between enforcing the law in pursuit of legitimate policy objectives, and allowing our allies to use it as a cudgel against their adversaries.

Canada has its own national interest at stake here. We have no more important democratic principle than the rule of law and protecting the independence and integrity of our justice system.

We cannot allow our justice system to become weaponized to serve the international trade interests of our allies.

That's where Sabrina Meng comes in.

Charter protections against arbitrary detention

Under Section 7 of the Charter of Rights and Freedoms, every person in Canada “has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.”

Under Section 9, every person in Canada “has the right not to be arbitrarily detained or imprisoned.”

Meng has a very strong argument that, in all the circumstances, her extradition warrant and strict bail conditions constitute an abuse of process. It’s not difficult to construe that its true purpose was never to prosecute Meng individually for the charged offences, but to use her as a political hostage to extract trade concessions from China.

The president of the United States said so himself.

Those concessions might have a proper purpose—for example, agreements on commercial espionage—or they could be to help Trump with soybean farmers in the 2020 election.

Significantly, in the ZTE case, which is directly on point — involving a Chinese telecom accused of violating U.S. sanctions on Iran — Donald Trump himself intervened in circumstances that strongly suggest some quid pro quo was involved. Perhaps even a corrupt purpose.

Of further interest is that in the ZTE case, only the corporation itself was charged. No individual from ZTE was ever arrested or charged, and the company paid a fine and submitted to commercial sanctions. Notably, the warrant for Ms. Meng was only issued in August this year—just weeks after the U.S. national security apparatus was forced by Trump to make concessions to ZTE.

By charging and detaining a senior executive—forcing her into a week of jail followed by indefinite house arrest with a GPS monitor, the U.S. Department of Justice has significantly upped the ante. Could this also be a punitive measure against China for playing Trump on the ZTE case?

None of this seems like an appropriate use of our criminal justice system, to be perfectly frank.

Canada must not let our justice system be used to hold a hostage

There should be a firewall between our justice system and political maneuvering of this kind, especially as it concerns a president as profoundly transactional as Donald Trump. Canada should not use our police powers to help world leaders shove each other around in front of cameras at the G20.

There’s a great argument for defence counsel to bring this case back before Justice Ehrcke (or whoever could hear it) and ask him to vacate the extradition warrant on the grounds that in all the circumstances it constitutes an abuse of process.

Alternatively, he could find that it would be appropriate to release Ms. Meng on her own recognizance—or promise to appear—at her next court date. Let the chips fall where they may.

The U.S. made its point, and we can make ours. If they want to employ the full toolkit of government powers to bring rogue states to heel, more power to them. But Canada should not allow itself be used in an underhanded political subterfuge like this one. It was a dirty trick and we shouldn’t have signed our name to it.

The U.S. frankly doesn’t give a hoot about our Canadians in custody in China, or how China will retaliate against us. They aren’t out there shoulder to shoulder trying to help us obtain their freedom.

One for all and all that.

Trump is trying to score a deal for Iowa’s soybean farmers, given that the Democrats took three out of four Iowa Congressional seats in the midterms. He’ll sell out his own national security apparatus for personal gain, just like he did with ZTE.

Canada's way out of this mess is the way we entered it: through our independent courts.

If a Charter application succeeded, we’d have the same defence against American ire as we have against the Chinese. Our judges are independent and our hands are tied. We can’t intervene. Better luck next time!

The outcome of a successful Charter challenge is that Meng is released and the U.S. must choose other tools and channels, which are all still available to them. Canada has no jurisdiction to stay the U.S. DoJ proceedings, so she could still be prosecuted, or the DoJ could calm down and prosecute Huawei as a corporate entity and seek sanctions. They have a lot of tools in that toolkit of theirs.

But Canada has only one pawn in this global game.

We should use it to exit the board.