The Justice Department is defending the authority of Congress to ban the government and its contractors from purchasing tech products by China-based companies including Huawei, in urging a federal court to dismiss the company's lawsuit claiming the prohibition to be unconstitutional.
"Congress enacted Section 889 of the 2019 National Defense Authorization Act ('NDAA') to protect U.S. telecommunications networks from the products of five companies required to comply with Chinese law and thus subject to the influence of a foreign government well-known for exploiting any access to our networks," says DOJ in a filing with the U.S. district court for eastern Texas on Tuesday.
"Congress's recognition of this undisputed legal reality does not 'mark Huawei as an untrustworthy and disloyal tool of the Chinese government.' Rather, it makes Huawei a concern to the security of U.S. telecommunications networks," writes DOJ in support of its motion for the court to dismiss the case.
At issue is a lawsuit filed by Huawei in March that sets up a legal showdown that could define the federal government's authority to address cybersecurity risks from China. The dispute centers on Section 889 of the Fiscal Year 2019 NDAA, which Huawei says violates the Constitution's prohibition of a "bill of attainder," or a legislative declaration of guilt by a company or individual.
DOJ filed a motion to dismiss in July, citing the government's ban of Kaspersky Lab products based on national security concerns as justification for the action against Huawei, while rejecting the company's claims about the unconstitutionality of Section 889 by arguing the Supreme Court has already resolved the issue in past related rulings.
This week's filing sets the stage for the federal court to rule on DOJ's request to throw out the case.
"Section 889 was enacted against the backdrop of (i) years of briefings, reports, and testimony, warning that Huawei's (and ZTE's) access to U.S. networks could pose significant threats to U.S. critical infrastructure and domestic communications; (ii) recommendations by the House intelligence committee and senior executive branch officials against using Huawei products on U.S. networks; and (iii) Congress's repeated references to these warnings and recommendations in the precursors to Section 889, in congressional reports, and on the House and Senate floors," according to DOJ.
"To conclude that Section 889 is a bill of attainder, Huawei would have this Court find that Congress enacted it, not to heed those warnings, adopt those recommendations, and protect the Nation's critical infrastructure and communications, but to punish Huawei. Such a conclusion is untenable," DOJ tells the court.
For its part, Huawei says the NDAA "marks Huawei and its employees as disloyal tools of the Chinese government and Communist Party, thereby also chilling purchases of Huawei equipment and services not covered by the law; it is not tailored to the non-penal purposes of national defense or government network security; and its legislative history reveals the declared intent to impose the 'death penalty' on Huawei for alleged past misdeeds and associations and to drive it out of the country."
DOJ counters that claim as over-reaching, while asserting market exclusions would not rise to the level of an unconstitutional proscription as defined by the Supreme Court.
"But Section 889 does not amount to an 'exclusion,' and even if it did, the Supreme Court has never recognized an 'exclusion' as among the severe deprivations proscribed as attainders," the DOJ filling states. "Huawei's reliance on such a heretofore unrecognized punishment underscores that Section 889 does not impose historical punishment, where Huawei does not even argue that Section 889 prohibits it from operating or actually banishes it from the country."
Also, DOJ cites the federal government's legal victory over Kaspersky Lab, whose products were banned from federal systems because of the company's links to Russia, in defending the ban on Huawei.
"Indeed, the D.C. Circuit held last year that a statute based on similar concerns and with a similar preventative purpose was entirely consistent with the limited reach of the Bill of Attainder Clause," says DOJ in citing Kaspersky Lab Inc. v. Department of Homeland Security.
The lawsuit by Huawei could be seen as part of a broader campaign by the company to counter the U.S. government's approach to addressing cybersecurity threats from China.
The government issued an interim rule in August that implements NDAA Section 889 as it relates to federal agencies, including the Defense Department. That purchasing ban will be extended next year to private companies that wish to do business with the government.
At a recent public meeting on the phase-two rules of the purchasing ban, Huawei lawyers argued the government should adopt a risk-management approach to foreign cyber threats, citing use of the National Institute of Standards and Technology's cybersecurity framework.
"Virtually all equipment manufacturers rely on a global supply chain and face security risks from a wide range of sources," said James Gauch, a lawyer at Jones Day who represents Huawei. "Excluding one or two vendors based on their national origin will not address these risks. Indeed, consolidating the number of equipment suppliers hinders rather than helps cybersecurity," Gauch said at a July 19 meeting hosted by DOD, the General Services Administration and NASA.