Preet Bharara:

From Cafe in the Vox Media Podcast Network. This is Stay Tuned in Brief, I’m Preet Bharara. Over the past few months, there’s been a flurry of news reporting bringing to light a troubling story that could threaten to further erode US-China relations. All over the world, Chinese officials have set up outposts often in the form of unlisted offices that are being used to collect information on Chinese nationals living abroad. The offices have been dubbed overseas police stations and may have not escaped the attention of the Department of Justice.

According to new reporting, the FBI searched the Manhattan office of a Chinese outpost last fall to discuss the threat and what the government is doing about it. I’m pleased to welcome back an old member of the Cafe family and my friend John Carlin. John is a former federal prosecutor, was the head of the National Security division at the DOJ, but who also and more importantly in 2020, hosted the cyberspace podcast here at cafe. Then he left us to go back into public service assuming the role of Principal Associate Deputy Attorney General. Now he’s back in private practice. John is an expert in, among other things, cybersecurity, national security and corporate criminal enforcement. Mr. John Carlin, welcome back my friend.

John Carlin:

Thanks Preet. It’s great to be back.

Preet Bharara:

So can I ask the most basic question, what the hell is going on here? Why do we have Chinese outposts in various countries around the world, including in the United States of America?

John Carlin:

It’s pretty extraordinary the sense that no matter where you are in the world, if you’re part of the Chinese diaspora, that the Chinese state is taking the position that it can police you with or without the permission of the host country. And it’s not just as you talked about the number of them. I mean there’s over 100 overseas police stations, almost none of them noticed, in over 50 countries according to one report. It’s what they’re doing when they’re in country.

Preet Bharara:

Yeah. So what are they doing in the United States and is any of it illegal?

John Carlin:

So according to charges, and there hasn’t been a conviction yet. It is illegal, although there’s not a statute exactly on point that contemplates what they’re doing.

Preet Bharara:

You need a statute to charge no?

John Carlin:

Well, there is a proposed new statute, we can get into that, on transnational repression and saying that in it of itself is a crime. But there are some statutes already on the books that are applicable to the type of behavior that we’re seeing, which includes both being an unregistered agent of a foreign country, so a spy, but also interstate harassment laws. Were they designed with the idea that a foreign national government would try to set up its own police stations inside the US? No, but they fit the conduct when you have things like, and the details matter when they’re using these police stations to try to track down people that they think are enemies of the state. And those are people that we might often think of as those voicing human rights opinions. It’s not always like-

Preet Bharara:

Dissidents.

John Carlin:

…around here. Dissidents.

Preet Bharara:

Like old-fashioned dissidents, right?

John Carlin:

Yeah, exactly. But they do things like they brought the elderly father of someone here in the US to say essentially this is what’s going to happen to your family if you don’t come back and surprised them with the father. They hired private investigators to park outside their house and let the car be visible so they would know that they were under surveillance. They sent pictures of people’s daughter and videoed the daughter as part of a campaign to say, we’re watching you. And it’s explicit. They say things like, according to the allegation, putting a threatening note on the door of the residence. If you’re willing to go back to China and spend 10 years in prison, your wife and children will be all right.

Preet Bharara:

Yeah. So is this a matter for criminal authorities in the US especially given the inexact nature of our statutes? Or is this something that should be taken up on diplomatic terms between our governments?

John Carlin:

I’m not sure it’s an either/or and I think what you’re seeing is a both approach by justice and a real pivot at the Justice Department where there was something called the China Initiative, and it was named that under the prior administration, and it got associated with focusing on things like the prosecution of intellectual property and economic espionage theft. And you saw the new Assistant Attorney General for national security meddles and unwind that name and switch the focus to make it clear, according to Matt, we’re not going after Chinese people because they’re Chinese. Were going after the actions of the state. And some of those actions are directed against the dissidents living here in the United States. That’s the transnational repression. And in that sense, it’s very consistent with the broader pivot of the Justice Department under Attorney General Garland to really focus on rule of law issues around protecting civil rights and free speech.

Preet Bharara:

Can you answer a basic question that some people might be asking? We in America have federal and local law enforcement agencies, the DEA, the FBI, we have agents stationed throughout the world. I worked with three police commissioners at NYPD who are very proud of the fact that they deploy NYPD officers in other countries as well. Just quickly explain to us why this is very different from that.

John Carlin:

Yeah, no, it’s a great point. And there could be a totally legitimate basis to work cooperatively with foreign police officers, including Chinese police officers. But when that occurs, it’s declared. So there’s a process and in fact, noticed every embassy now there’s someone from the F B I serving as a legal at attache. The host country knows they’re there and they’re not permitted to take unilateral law enforcement operations on another country’s soil without the permission of that government. So you work out an arrangement. In fact, at least in Italy, and I think there’s a third party report still studying this, but in Italy it looks like with the cooperation of the Italian government, there are Chinese police officers and they’re doing things like providing police protection because there are a lot of Chinese tourists and others that travel to Italy, so-

Preet Bharara:

Right, but that’s different from being in country to crack down on dissidents.

John Carlin:

Exactly. And one way you can guard against that, again, it would be having the conversation where you’re open and transparent about who’s here and what they’re doing, and then you can make sure that it aligns to activity. That is also that there’s a parallel statute, so it’s illegal in both countries and being a dissident inside the United States, we have our first amendment that’s not illegal.

Preet Bharara:

So you mentioned Italy. The reporting is that Chinese officials tried to develop and enter into a memorandum of understanding with the New York City Police Department. What would that even look like?

John Carlin:

Well, you could imagine, and you always got to love the names of these operations are, it’s called Operation Fox Hunt to track down fugitives and then even more troubling to a US ears, Operation Sky Net, which sounds a bit creepy and surveillance oriented, but Sky Net was not good. They could be a, let’s pick some, an area where we’ve traditionally had good cooperation, even with countries about whom we disagree on many, many issues like the exploitation of children and child sexual trafficking. Now that’s an area where you do join police operations, you pass information about a fugitive. I could see a circumstance where they’d permit some activity on your soil. The detectives work together here, but to apply that to someone who’s pro Uyghur or has a different view on Taiwan, to your point, is totally different, number one. And then number two, taking unilateral action. So acting, you can’t even operate without permission if you’re out of your county when you’re a police officer. So to have that done and it’s someone from a foreign country, that’s just not something we’ve even seen other countries try to do.

Preet Bharara:

You’ve spent a lot of time thinking about intelligence gathering and national security issues, as I mentioned in the intro. How does this practice of having these outposts in the US and in other countries fit into the larger practice and context of Chinese intelligence gathering?

John Carlin:

I think there are, particularly around hacking and the use of computer exploitation, some similarities in this brazenness of the activity. So if you compare and contrast, it used to be Cold War mentality, and maybe we were entering a new era with the Russian aggression Ukraine of a Cold War mentality. But there were enormous efforts and you prosecuted one of the cases. It’s where I think we worked together at Justice that became the show the Americans, the incredible expense to have the illegal people living here for 10, 20 years to be operated later.

Great extremes, to keep them from being caught. The counterintelligence posture of the US would be if you spotted such an operation, maybe you don’t disrupt it for a period of time. You use it to feed false information because they were so hard to spot. You didn’t want to disrupt it. You wanted instead to observe it and turn it to your country’s advantage. And then you compare that to China who for a period of time, I think a former director of the FBI referred to it as a drunken gorilla. They were so noisy breaking into people’s computers and stealing intellectual property that you just couldn’t miss the activity. This seems similar. It’s almost a poke in the eye. It’s so brazen that just set up a police station with its own 911 number in a foreign country without telling them.

Preet Bharara:

I believe they call them administrative hubs, not police stations. Is administrative hub fair? I guess not.

John Carlin:

I think when you lay out the facts of what they were doing, some of which we went through in terms of coercing people to come back to country, it doesn’t sound like an administrative hub.

Preet Bharara:

So I want to go back to Italy for a second where-

John Carlin:

I’d like to go back to Italy too.

Preet Bharara:

For more than a second. We talked about how there have been multiple joint patrols with the Chinese police in Rome and in Milan, not to disparage our friends in Italy, but are they being naive here?

John Carlin:

Look, I think there is a lot of concern. So I think, but the US and other foreign countries are talking to the Italians. I think the Italians are taking a look at what’s happening, and it may be they approved it for one purpose and they’re finding out now it was used for other purposes to give you a sense that the Chinese government, according to one report, has said they used Operation Sky Net to return something like over 1,100 people from January to November of 2021. But of that, over a thousand cases, only 13 involved making a request to international law enforcement for cooperation or assistance.

Preet Bharara:

So we’re talking about diplomatic efforts in criminal justice efforts. Does the US government have the ability to just throw these people out of the country who man these outposts and just be done with it?

John Carlin:

It’s one of those, it depends, but in many circumstances they would and they definitely would. If they’re undeclared agents, they can both be prosecuted and they’re not here legally. If they’re here legally, it can be more complicated.

Preet Bharara:

Is it your understanding that most of them are here legally so that they don’t risk being thrown out?

John Carlin:

Well, if you look at the charges, they’re being charged in part as acting as an agent of a foreign government, which means that they’re here without diplomatic or consular protections, and they didn’t notify the Attorney General. So that same basis would be one to remove someone from the country.

Preet Bharara:

Some people might ask the question, what took so long? Is there an answer to that?

John Carlin:

It was always hard to tell from the outside whether it took a while to uncover the conduct or whether they spent part of that time developing the richness of evidence that we’re seeing and deciding for counterintelligence purposes to track it and see what they could develop before making it public and disrupting and letting the adversary know that you know what they’re up to.

Preet Bharara:

Is there any evidence that these criminal actions are having any kind of deterrent effect on the Chinese or not?

John Carlin:

It’s not just in the US. It’s a worldwide problem. And you’re seeing similar actions in Spain, in Ireland, in the Netherlands by governments around the world. And so you’re seeing some defensiveness, I think you saw in the response where they’re being called administrative stations and despite what the fact show by China. I don’t know, whether it will deter, if it does not deter, it’s not helping in the battle for hearts and minds, right? That’s occurring right now. So in that sense, it’s still probably advantageous to rule of law countries that they’re exposing this conduct and penalizing it where they find it.

Preet Bharara:

One reason I ask is you and I have had this conversation over many years as friends and as colleagues and as people who comment on these things in a different context in the cyber context. And the debate has always been, do you name and shame and charge people even if you’re never going to get them in custody in the United States? And there, my recollection is there’s been a reason to believe that there’s evidence that when the states does things like that, the Chinese do less and it has an effect. Has that debate on naming and shaming or taking action to deter the Chinese, has that shifted at all in your experience?

John Carlin:

Look, I think time has told that it is not just a name and shame approach, and that’s certainly true here where it involves people taking contact on the soil of the other country, so they’re subject to arrest. And you’ve seen in other instances now that the name and shame approach involved actual people in actual jail cells facing actual charges. I also think it shifted where you’ve started to see by having the public discussion. If you look at where we are now in the use of other tools, like the analysis that takes place before you allow foreign investment and the screening that takes place, the new export control tools, the nationwide investment in things like semiconductors, that making public the conduct that you’re seeing has led to other actions to prevent it, and has also built stronger alliances among countries throughout the world that are opposed to this type of intrusion on their sovereignty.

Preet Bharara:

Last question, and you answered some of it in your prior answer. They’re a host of fronts on which the United States is antagonistic towards China. I said recently on the podcast that if you ask members of either party in Washington, they will say, it is impossible to be too tough on China. Where do you put this on the spectrum of importance, given that there are all sorts of other things like theft of intellectual property, cybersecurity, other matters of national security and everything else. Is this a small bore thing or because it deals in human rights and the protection and safety of dissidents, is it more important than it seems?

John Carlin:

I think it is. It make ways in part because it unifies, as you say, there are too many issues right now. We’re in a partisan time in our country that unify Democrats and Republicans. And similarly, there’s a lot of always churn and healthy competition, even among the friendliest of states. This is such a upfront intrusion on sovereignty, and it’s so aggressive and brazen that it’s unifying and helping to build partnerships and relationships among countries throughout the world about why it’s important to have a rule of law. So in that sense, you kind of wonder why they don’t change the behavior. It seems penny wise and pound foolish.

Preet Bharara:

Penny wise and pound foolish. You’re the first person to use that expression on this podcast.

John Carlin:

Maybe because my daughter was asking why we still have pennies, so I don’t know. It’s archaic.

Preet Bharara:

John, thank you for your prior service. Thank you for continuing to focus on these issues. It’s good to have you back. Come back soon.

John Carlin:

Thanks Preet. Welcome the chance to discuss this with you.

Preet Bharara:

For more analysis of legal and political issues, making the headlines become a member of the Cafe Insider. Members get access to exclusive content including the weekly podcast I co-host with former US attorney, Joyce Vance. Head to cafe.com/insider to sign up for a trial. That’s cafe.com/insider.

If you like what we do, rate and review the show on Apple Podcasts or wherever you listen. Every positive review helps new listeners find the show. Send me your questions about news, politics and justice. Tweet them to me @preetbharara with the #askpreet or you can call and leave me a message at 669-247-7338. That’s 669-24-PREET, or you can send an email to letters@cafe.com. Stay Tuned, is presented by Cafe and the Vox Media Podcast network. The executive producer is Tamara Sepper. The technical director is Tatasciore. The senior producer is Adam Waller. The editorial producers are Sam Ozer-Staton and Noa Azulai. The audio producer is Nat Wiener, and the Cafe team is Matthew Billy, David Kurlander, Jake Kaplan, Namita Shah and Claudia Hernandez. Our music is by Andrew Dost. I’m your host Preet Bharara. Stay tuned.