By Song Liuping, Chief Legal Officer of Huawei Technologies.
Huawei cameras at a security exhibition in Shanghai, May 24. Photo: Aly Song/Reuters
The British Parliament once levied sentences against purported conspirators seeking to overthrow the crown. As a result, the U.S. Constitution prohibits Congress from passing any “bill of attainder”—a law punishing a person or group without a trial.
Lawmakers last summer enacted a bill of attainder targeting Huawei, a successful, privately owned and operated Chinese technology company. The 2019 National Defense Authorization Act places a broad ban on certain Huawei equipment: Federal agencies may not procure it, federal contractors may not use it, and federal loan and grant recipients may not use government funds to buy it.
The law applies to other companies if the defense secretary “reasonably believes”—subject to judicial review—that they are “owned or controlled” by, or “otherwise connected to,” the Chinese government. But it directly and permanently applies to Huawei without opportunity for rebuttal or escape.
Huawei has sued and on Tuesday will file a motion for summary judgment asking the court to declare the law unconstitutional. The ban is a quintessential bill of attainder and a violation of due process. Its congressional sponsors promoted it as a punishment both for alleged prior misdeeds and unsubstantiated allegations that the company is associated with the Chinese government—all of which Huawei vigorously denies.
Moreover, the law provides Huawei with no opportunity to rebut the accusations, to present evidence in its defense, or to avail itself of other procedures that impartial adjudicators provide to ensure a fair search for the truth. Rather, the law simply pronounces Huawei’s guilt and imposes vast restrictions with the express purpose of driving Huawei out of the U.S. market. This is the tyranny of “trial by legislature” that the U.S. Constitution prohibits.
Even if it were constitutional, the law would do little to advance national security or strengthen the security of government information networks. It does not address the alleged global-supply chain risks from equipment that uses Chinese components or software; it merely targets Huawei. It doesn’t even prevent federal agencies from continuing to use Huawei equipment; it merely prohibits new purchases. And it imposes no restriction on the use of equipment manufactured by the Chinese government’s joint ventures with other major telecommunications companies.
At the same time, the 2019 NDAA perversely undermines the technological and economic interests of the United States. Huawei is the world’s leading innovator in network switching equipment, including 5G. Impeding Huawei’s ability to sell equipment in the U.S. reduces competition, thereby raising prices and constraining access to internet services, particularly in rural and remote parts of the U.S., where Huawei’s competitors have chosen not to do business.
Other governments around the world understand that Huawei is not a tool of the Chinese government, and that the company wants to work to improve cybersecurity and provide the best technologies at affordable prices. These other governments are moving forward with Huawei, while the U.S. is not. The American people’s best hope may lie in the rule of law—that U.S. courts, as they have done with prior bills of attainder and violations of due process, will declare the Huawei ban unconstitutional and prohibit its enforcement.