By Nigel Inkster, Director of Future Conflict and Cyber Security
On 16 May, with a minimum of fanfare, China’s National People’s Congress released a draft Intelligence Law, on which it invited public comments before 14 June. There had been no previous public discussion on this topic, but the new law is of a piece with a series of others on national security and cyber security introduced within the past year, which have led some foreign commentators to talk of China becoming a garrison state – one organised to serve its own need for military security.
As with all Chinese legislation, the draft Intelligence Law is couched in terms so general as to be potentially all-encompassing, and nowhere are the country’s intelligence agencies identified by name or function. But an analysis of the text, taken together with what is known about the nature and organisation of China’s intelligence community, offers useful insights into the law’s implications. It defines the purposes for which national intelligence can be collected. These include the preservation of state power, sovereignty, unity, independence and territorial integrity, national prosperity, sustainable economic and social development and ’other major national interests’. This broad remit reflects the fact that China’s concept of national security is more extensive than that of many other countries, and that social stability and social control are a central preoccupation of the leadership.
The draft states that ‘Central State security leadership bodies’ will exercise leadership over national intelligence work, determine overall principles and policies, develop coordination mechanisms and decide on major intelligence issues. There is no attempt to identify these bodies and this raises the question of whether existing leadership bodies will assume these responsibilities or additional bodies will be established specifically for this purpose. There is little evidence that China’s intelligence agencies are currently subject to any kind of systematic political oversight or coordination and in practice these agencies tend to compete rather than collaborate. Nor is there any kind of central intelligence assessment and priority-setting mechanism comparable to the US National Intelligence Council or the British Joint Intelligence Committee. But at a time when China’s global interests are expanding and its intelligence agencies becoming more active overseas, the case for greater top-level political oversight is compelling.
All must collaborate
The draft legislation emphasises that China’s intelligence agencies must operate within the law. The draft act stipulates that national intelligence agencies shall establish ‘supervision and security inspection structures’. It further stipulates that individuals and organisations have the right to report unlawful behaviour by the intelligence agencies to ’higher-level organs or relevant departments’. But no detail is provided as to who ultimately determines what is lawful, whether there will be any external scrutiny of the conduct of the intelligence agencies and what remedies exist for those who have a grievance.
Article six does however emphasise the legal requirement for ’all national bodies, military forces, political parties, social groups, enterprises and institutions and ordinary citizens’ to cooperate with and collaborate with national intelligence work. The same essential point is reiterated in article 13, which states that ’relevant departments at all levels of the People’s Government, enterprises and institutions and ordinary citizens shall provide the intelligence agencies with the necessary assistance’. The interpretation of necessary assistance set out in the act is wide-ranging. China’s intelligence agencies are to be given sweeping powers to commandeer facilities and equipment in pursuit of their lawful duties and to use technical means to gather intelligence.
Article 22 further states that government departments and state-owned enterprises shall ’cooperate with national intelligence agencies to arrange for persons in need of placements’ – in other words, provide China’s intelligence agencies with cover posts, including some outside China. When China’s civilian intelligence agency the Ministry of State Security (MSS) was first established in 1984 China’s de facto leader Deng Xiaoping forbade it from establishing cover positions in Chinese diplomatic missions. Deng had been deeply scarred by his experiences in the Cultural Revolution when the predecessor organisation of the MSS, the Investigation Department of the Central Committee of the Chinese Communist Party (ID/CCP), had become an instrument of intra-Party repression under its then head Kang Sheng. As a result, Deng sought to limit the scope and capacity of the new organisation. His ban on the use of diplomatic cover held until the middle of the past decade but has now been superseded. MSS legal residencies are now commonplace. China’s military intelligence service has by contrast always enjoyed a presence in Chinese diplomatic missions in the form of Defence Attaches who until recently have confined their activities to open-source collection and intelligence diplomacy. It is widely supposed that Chinese intelligence personnel are present in the offices of state-owned corporations and other official and quasi-official bodies represented overseas.
Ministries may be given new responsibilities
As with most of China’s institutions China’s intelligence agencies are undergoing a period of significant change and evolution. The MSS is both a domestic and foreign service but has as its primary purpose the preservation of Communist Party rule. Much of its overseas focus has been on monitoring and combating the ’Three Evil Forces’ of separatism, terrorism and religious extremism. It is possible that the MSS pioneered the covert use of information and communications technologies to monitor groups such as Falungong and the Dalai Lama, activity that has evolved into a major broad-spectrum collection capability.
For the past two to three years the MSS, never a power ministry, has been viewed with some suspicion by the Chinese leadership as a result of activities undertaken under the direction of disgraced former intelligence services overlord Zhou Yongkang. These involved the covert monitoring of leadership communications including those of President Xi Jinping. Hence, the ministry has ground to make up. Some of MSS’s internal responsibilities appear to have been assumed by the Ministry of Public Security, which is responsible for law and order.
Organisational reforms announced in 2015 directed China’s military intelligence services, 2/PLA and 3/PLA, to concentrate on the collection of military technology from the USA and other developed Western economies. These collection programmes have been particularly successful and have harvested technology from the F-35 aircraft (now incorporated into China’s J-20 stealth fighter); the B1 and B2 bombers; the Quiet Electric Drive submarine propulsion system; and the W-88 miniaturised nuclear warhead.
With military intelligence services adopting this new focus, the MSS seems likely to assume greater responsibilities for foreign intelligence collection. In this context it is worth considering Operation Cloud Hopper, a major cyber intrusion targeting Western IT service providers which appears to violate agreements between China and the United States and United Kingdom limiting commercial cyber espionage. The operation is believed by Western intelligence agencies to have been undertaken by the MSS rather than 3/PLA.
In recent years China’s intelligence services have become more self-confident in their conduct, including overseas activities. In November the US–China Economic and Security Commission noted ’the Chinese intelligence threat is increasing as China reforms and centralizes its intelligence apparatus and gains experience conducting spying operations … In particular, Chinese human spying, or HUMINT, activities, already appear to be growing more aggressive and extensive … China’s intelligence processing and communication to decision makers is likely to become more effective and efficient.’ For the US a particular worry is that Chinese pressure on the intelligence agencies of hitherto cooperative US liaison partners will render them less cooperative in the future. This is particularly true for the services of states on China’s periphery.
Historically China’s intelligence community rarely if ever sought to recruit non-Chinese agents, but such recruitments are now becoming more widespread, involving a combination of positive inducements and coercive techniques such as the use of honey-traps. Within the past year the country’s intelligence agencies appear to have been responsible for the kidnap of Chinese dissidents and absconding officials in Thailand, Hong Kong and elsewhere. Ministry of Public Security undercover operatives have been discovered in the US, Australia and Canada seeking to pressure absconding corrupt officials to return to China as part of the Operation Foxhunt campaign.
Beyond the worst days of the Cold War
Within China itself, the past two years have brought a series of public awareness campaigns designed to alert people to the threat from foreign intelligence agencies. These include a cartoon entitled Dangerous Love detailing the fate of a naïve young Chinese girl who is prevailed upon by her foreign boyfriend to divulge state secrets. The cartoon ends with her arrest by the guardians of China’s national security. In April 2017 the Peking Daily newspaper reported that citizens could receive rewards of up to RMB 500,000 (US $77,000) for information leading to the identification of a foreign spy.
There are yet more worrying signs of China’s intelligence agencies engaging in behaviours not even seen in the worst days of the Cold War. These include pressurising and sanctioning the families of individuals who are the targets of the intelligence agencies. Even more shocking are reports–contested by Chinese media–of the extra-judicial killing of individuals thought to have worked as American agents from 2010 to 2012, a time in which the CIA reportedly lost over a dozen high-grade sources in China for reasons not yet established. In the Soviet Union captured spies were at least subject to due process – even if the outcome of that process was never in doubt.
Draft law at odds with global trend for greater transparency
It makes sense for China to develop overarching legislation in relation to its intelligence community at a time when the role and capabilities of this community are evolving so rapidly. The draft is couched in general terms, and in practice much will depend on the resulting administrative measures created by relevant ministries and organisations. But so far it appears that the new legislation does not offer the prospect of much greater transparency regarding the role and functions of China’s intelligence community. Since the end of the Cold War the prevailing international trend has been towards greater transparency by states in relation to the work of their intelligence agencies, many of which now have their own websites and report publicly on their activities. The Chinese legislation appears to be heading in the opposite direction. This sits ill with China’s growing role as a global security actor and rather reflects the chronic insecurities characteristic of a Leninist state.
Much will depend on what top-level institutional mechanisms China develops to monitor and regulate the activities of its intelligence agencies. This, perhaps more than anywhere else, is where greater transparency might resolve concerns about the future evolution of Chinese intelligence without obviously compromising operational capabilities that justifiably need to remain secret. Such high-level activity might also provide some guidance on whether China’s intelligence community can be expected to operate by some of the unwritten norms of behaviour that characterise the top end of the intelligence community, rather than defaulting to the unconstrained behaviour characteristic of the lower-end players. As such it would tell the world a great deal about the sort of power China aspires to become.