To discuss the Department of Justice’s new proposed rule on data security, we interviewed two brilliant guests from the ChinaTalk Hall of Fame — DOJ National Security Division attorneys Lee Licata and Devin DeBacker.

Before DOJ, Lee was an attorney at DHS and then CBP, while Devin was a partner at Kirkland & Ellis and then worked with the Office of White House Counsel. Today we’ll be discussing the DOJ’s new proposed rule on data security. 

Have a listen on Spotify and Apple Podcasts.

We get into…

• DOJ’s plan to protect your data from foreign adversaries,

• How public comments have shaped the proposed rule since the last time we interviewed Lee and Devin,

• DOJ’s tools for enforcing corporate compliance,

• The differences between data security regulations, privacy laws, and export controls,

• Why some public comments get accepted and some get rejected,

• The DOJ playbook for assembling a dream team of talented bureaucrats.

Shutting the Front Door

Nicholas Welch: Lee and Devin, welcome back to ChinaTalk.

Devin DeBacker: Happy to be back. As repeat guests on ChinaTalk, are we eligible for a plaque or some kind of award? 

Nicholas Welch: You know, I’m not in charge of funding — you’ll have to ask the dictator of ChinaTalk once he’s back from paternity leave. But your request — like the many requests you likely receive in the notice and comment period — is duly noted. 

For those who missed the show back in April, here’s the context — back in February, there was an executive order focused on preventing foreign access to Americans’ bulk sensitive personal data and US Government-related data by countries of concern. This was followed by an advance notice of proposed rulemaking (ANPRM). Now, we are in a period of notice of proposed rulemaking (NPRM), one step closer to the final rule.

Can you give us a 40,000-foot view of this executive order and the proposed rule? What national security risks are they aiming to address?

Devin DeBacker:  The audience might be wondering, “What are these 422 pages of regulatory detritus all about?” 

The primary risk we’re addressing here is the national security threat posed when foreign adversaries or their intelligence agencies access Americans’ sensitive personal data. Such data can be exploited, weaponized, and turned against our national interests in various ways. For instance, adversaries can use geolocation data to track and monitor Americans, or health and financial data to identify vices and vulnerabilities in individuals’ lives, such as behavioral patterns and daily routines. This data can be weaponized to surveil, blackmail, intimidate, or otherwise influence those individuals — whether targeting specific people or analyzing broader population insights. This rule aims to address and mitigate these kinds of threats.

Nicholas Welch: This rule isn’t addressing, say, an intelligence agency hacking in through the back door to steal information. You’re talking about data on the open market that could be purchased by anyone, right?

Devin DeBacker: Exactly. The “front door, back door, and side door” analogy works well here. We’ve got a “barn full of data” on Americans, and we’re trying to close the front door with this rule.

Other mechanisms and tools (especially from DOJ and other agencies) are in place to close the back door.

But we can’t leave any doors open, and the front door has been wide open for a long time. It’s been advertised almost as a free-for-all.

This rule aims to close that front door. Legally speaking, this covers legitimate or lawful commercial transactions where foreign adversaries can access data — either by buying it on the open market or through vendors, employees, or investors who can leverage it through their country’s political or legal systems.

Nicholas Welch: Where does this rule fit in the broader sanctions and export control framework? How does it contribute to the ongoing discussion about the intersection of national security and economic security? Is it similar or different from semiconductor export controls?

Lee Licata: Good question. There are aspects of this rule that resemble the Office of Foreign Assets Control (OFAC) and our export controls regime. This rule seeks to move beyond a case-by-case approach as we see with CFIUS, Team Telecom, or even some of the Commerce ICTS Authority actions, which often look at specific transactions or entities. Instead, it takes a more systemic or holistic approach across holders of this kind of data. The idea is to implement prohibitions and restrictions similar to an OFAC regime. It includes features like advisory opinions and licensing options, which are standard in such regimes. We see this as a foundational step toward a more comprehensive framework.

Devin DeBacker: Zooming out a bit, there are key assets in the US that we want to protect from falling into the wrong hands. Sometimes it’s technology, sometimes capital — we don’t want money flowing to terrorists, for instance. In certain cases, we want to prevent not just capital, but also the know-how that accompanies it from reaching critical sectors of emerging technology. Likewise, we want to protect sensitive American data from misuse. Each of these regimes — export controls, sanctions, outbound investment, and now this data security program — addresses a distinct part of that problem, forming a suite of tools in our national security toolbox.

Restricted Transactions and Covered Persons

Nicholas Welch: Let’s dig into the specifics. The rule says a “US Person” cannot engage in a “restricted transaction” with a “covered person.” What do these terms mean exactly?

Devin DeBacker: The program outlines certain covered data transactions that US Persons either cannot engage in or must engage with restrictions, particularly with countries of concern or covered persons. I’ll let Lee explain the specifics since he’s the architect of this framework.

Lee Licata: Let’s start with the prohibitions. Two types of commercial transactions between a US Person and a “country of concern” or “covered person” are outright prohibited. The first type is data brokerage, and the second type is transfers of genomic data or biospecimens, which is the raw material from which genomic data is derived.

We also impose restrictions in three categories — vendor agreements, employment agreements, and investment agreements that aren’t passive.

For these restricted agreements, we aim to put a box around these transactions to control how they’re conducted. Essentially, certain security measures must be in place to prevent countries of concern or covered persons from accessing sensitive data. These security measures, issued by the Cybersecurity and Infrastructure Security Agency (CISA) at the Department of Homeland Security, were published alongside our proposed rule. They include organizational security requirements, such as having a security officer, system-level security measures, and data-level protections like encryption and anonymization techniques.

Regarding who qualifies as a covered person and countries of concern, we’ve designated six countries — China, Russia, North Korea, Cuba, Venezuela, and Iran. Covered persons fall into four main categories — entities headquartered in or owned by a country of concern, entities owned by other covered persons, entities or individuals working for covered persons, and those predominantly residing in a country of concern. There’s also a fifth catch-all category for those acting on behalf of a country of concern — think proxies, cutouts, or shell entities. Essentially, we’re structuring this like an OFAC regime.

Nicholas Welch: Lawyers sure do love catch-all categories at the end of statutes!

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Tools of Enforcement and the Impact of Public Comments

Nicholas Welch: What does this rule’s compliance and enforcement regime look like? I see due diligence obligations, a licensing regime, annual reports, and even requirements to disclose when a US Person rejects a solicitation to transfer restricted data to a covered person. What should companies anticipate as DOJ finalizes this rule?

Lee Licata: First, we encourage companies to consider submitting comments on the docket during this finalization phase. Their input is vital for us to understand how this will be implemented and what impacts might arise.

Devin DeBacker: The more specific, the better. It helps us to understand the exact types of transactions companies engage in and whether their interpretation of the rule aligns with ours so we can clarify as needed.

Lee Licata: The comment period is 30 days and ends on November 29, 2024. Beyond comments, we want companies to start evaluating their risk profiles concerning these rules. Companies need to understand what data they hold, especially sensitive data regulated here, and the nature of commercial relationships that could involve a covered person or country of concern. They should also identify who has access to that data and what security measures they have in place to protect it.

The compliance and enforcement regime includes features common in export controls or OFAC frameworks — recordkeeping requirements, annual reporting, and reporting rejected transactions, similar to OFAC sanctions. We also require audits for restricted transactions to ensure security measures are in place. Entities must have policies governing compliance with these rules. Lastly, this is an IEEPA-based executive order, so DOJ can leverage IEEPA’s enforcement tools, including criminal prosecution and civil penalties. The rule outlines thresholds for civil penalties and allows us to notify entities of violations without financial penalties, though we’ll make sure they’re aware of their transgressions. This entire framework is about orienting entities to understand their risks and ensuring they take action.

Devin DeBacker: To take a broader view, our compliance approach is similar to that of sanctions programs. Most companies will need an in-house compliance program tailored to their specific risk profile — who they do business with, where, and in what sectors. While some restricted transactions can proceed with terms and conditions, generally, we focus on compliance first. DOJ sees corporate compliance, especially in national security, as a priority. Companies are on the front lines — they hold the data, technology, or capital we’re concerned about. We need them as partners to understand and uphold their obligations. But DOJ is also prepared to use its enforcement tools when necessary. At the end of the day, what matters isn’t the 422 pages of the proposed rule but how it works in practice to protect against these risks.

Nicholas Welch: Let’s say I’m Company X. I read this rule and think, “Wow, this will be massively expensive. I don’t want another compliance regime.” How will the DOJ know if I violate the rule? Will the DOJ really find out?

Devin DeBacker: Oh, we’ll find out. Corporate compliance is our bread and butter, especially in the Foreign Investment Review Section, where this program resides.

My team focuses solely on compliance and enforcement every day, around the clock. We also have the FBI, which excels at investigating violations — whether it’s sanctions, export controls, or this program. Additionally, we have public tips, recordkeeping requirements, and reports that help us follow up and investigate. For companies with higher risk profiles, we can inspect their records and ensure compliance interpretations align. The other key point is that one person can’t engage in a transaction alone — there’s always another party, so if one doesn’t report, the other often does.

Nicholas Welch: Industry, you’ve been warned! From what I’ve read, you engaged in a lot of public feedback. I noticed in the notice of proposed rulemaking that the department even discussed the order with stakeholders at public events, including China Talk. So, if other podcasters want good press, they should invite DOJ lawyers on their shows! There were 114 questions in DOJ’s ANPRM. What were the biggest changes to the rule based on comments and engagements?

Lee Licata: As you mentioned, we received about 70 comments during the ANPRM period, along with feedback from over 100 organizations, companies, trade associations, civil society members, academics — the whole spectrum of regulated communities. We didn’t receive any catastrophic warnings about breaking the internet or collapsing the economy, but we did get a lot of valuable, acute policy input to ensure the rule is implementable without unintended economic consequences.

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Some new elements include an analysis of the six countries of concern, bulk data thresholds, and a detailed assessment of data characteristics. We’ve also conducted an economic impact assessment, estimating compliance costs based on studies like GDPR and other due diligence activities. There are specific exemptions for telecommunications, FDA-regulated clinical trials, and data transfers for post-market approval in regulated sectors. We also clarified financial services exemptions to avoid hidden economic decoupling and specified back-office intra-corporate transfers.

Nicholas Welch: How does the industry feel about this rule? Is DOJ expecting millions in lobbying against it, or does industry seem more receptive?

Lee Licata: It’s early, but the industry seems to understand the issue we’re addressing. No one disputes that adversarial nations are actively seeking American data, and this is a legitimate national security threat. Industry representatives are trying to understand compliance obligations and what this means for their transactions. They provided helpful feedback on policy specifics, though we haven’t seen anyone suggesting it would dramatically impact the economy. Stakeholders seem to be grasping that compliance will be necessary and are evaluating their risk exposure. They’ll advocate for their industries, but the input we’ve received has been useful.

Devin DeBacker: We’ve continued public engagements during this comment period, similar to the ANPRM in spring. We’re open to feedback about specific transactions or scenarios where this rule might have unique implications. We’ve already met with over 200 groups in this short comment period, so it’s a broad, cross-sector engagement. We’re here to listen.

Nicholas Welch: Maybe this is a bit technical, but the rule mentions that several commenters suggested incorporating aspects of international or state privacy laws. DOJ decided against that, stating privacy protections and national security measures have different objectives. Can you clarify why?

Lee Licata: Sure, two examples come to mind. First, most state privacy laws define “precise geolocation data” using an 1850-foot distance from the device — a standard not actually supported by device technology. Major operating systems generally use either 1,000 or 10,000 meters to measure precise geolocation data. We chose 1,000 meters to align with how data is collected and to ensure consistency with real technology practices.

Second, state privacy laws cover all “PII” (personally identifiable information), including basic, public information like names and addresses. Our goal isn’t to regulate the phone book but rather to focus on information that adversaries could exploit. We created a narrower category called “covered personal identifiers,” targeting data combinations like a name and Social Security number or IP address and device identifier, as these combinations could uniquely identify someone. This approach focuses on specific national security risks, departing from broader privacy law constructs.

Devin DeBacker: Another example relates to a consent-based exception. Some commentators suggested we allow cross-border data transfers if individuals consent. From a privacy perspective, which emphasizes individual control over data, this makes sense. But in national security, we’re more concerned about the broader externalities created by individual and company choices.

We don’t have a consent-based exception for export controls. We don’t say that sensitive technology can go to Iran or North Korea with a company’s permission.

Privacy and national security laws serve different objectives, so they complement each other but don’t always align.

Nicholas Welch: Data, unlike semiconductors, moves easily and can be routed through various entities. If US Company A sells data to Company B, which eventually passes it to an adversary, how does the rule address the risk of onward data transfers?

Devin DeBacker: There are two parts to this. As Lee said, we designed the program to balance obligations on US companies. We don’t impose “pass-through liability” — US Company A isn’t responsible for tracking data through every layer, down to whether the data eventually reaches a covered person. However, we’ve addressed the resale and re-export risk by requiring US companies to include a contractual restriction with third-party buyers, preventing them from reselling to a country of concern or covered person. This “trusted data flows” concept allows third parties within the trusted framework.

If a third party violates the restriction, US companies must report it to us. If necessary, we can publicly designate those violating entities as “covered persons.” This approach strengthens trust-based data flows by identifying who falls within or outside the trusted framework.

Nicholas Welch:  Before this rule, did any executive branch mechanism address these specific national security risks?

Devin DeBacker: Yes, sort of — this concept emerged from our experience with transaction-specific authorities, like CFIUS and Team Telecom, which assess individual foreign investment risks. However, as data security threats evolved, we noticed we were addressing similar data security risks repeatedly in foreign investment cases, each time creating tailored compliance solutions. Seeing this pattern, we decided to create a comprehensive, systematic program to address these recurring risks. We still have case-specific authorities, and this program complements them by reducing regulatory duplication.

Why DOJ?

Nicholas Welch: On the last show, you mentioned that the DOJ is a natural fit for this role because you’re highly experienced in corporate compliance. You also said you’re expanding the Foreign Investment Review section, hiring more attorneys and non-attorneys. How is that team expansion going? More broadly, what did interagency collaboration look like for this rule? I assume you had extensive interagency support from Team Telecom, Commerce, DOD, and FTC — but ultimately, the DOJ took the byline for this rule. This is hosted on justice.gov, not another agency’s website. Does that impact the rule’s effect or corporate compliance overall?

Lee Licata: Yes, absolutely. First, stepping back, it took us two and a half years to develop this concept for the executive order and then to draft the proposed rule. Throughout that time, we coordinated with around two dozen federal departments and agencies, as well as White House offices, to build this framework and ensure that all relevant interests within the executive branch were represented.

The interagency coordination was extensive, involving entities like CPS, Team Telecom, the ICTS team at Commerce, CFPB, FTC, and SEC — essentially, every regulator overseeing commercial transactions involving the regulated data. We also engaged continuously with OFAC, BIS, and FARA to incorporate similar concepts and ensure compatibility within our program.

The DOJ byline is indeed significant. As Devin mentioned, corporate compliance and enforcement are central to our work — it’s right there in our name, the Department of Justice. So it’s natural for this rule to land here, combining DOJ’s expertise in this risk area with the department’s enforcement mission. In the interim, as we establish this program, we’re building a team within FIERCE to finalize the rulemaking and begin implementation. We’ve assembled a team of mostly interagency detailees to bring together the necessary expertise. As of now, we have 11 attorneys plus paralegals, targeters, and other support, and we’re leveraging insights from across the interagency. We have team members from OFAC, FinCEN, BIS, and the Department of Defense, among others, all working under our roof. By the end of the year, we expect to have about 17 people forming the foundation of a full-fledged team.

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Nicholas Welch: Where do you see this rule going in the future? Financial industries, for instance, face multibillion-dollar fines and have strong compliance frameworks, but with newer regulations like chip export controls, we’re only starting to see big penalties, like Seagate’s $300 million fine from BIS [and a $500m fine on GlobalFoundries]. Recently, a TSMC chip was found in Huawei, which journalists quickly identified as a supply chain weak link. Chris Miller suggests chip companies need to spend more on compliance, and governments should impose stricter penalties. So where do you see data security compliance going?

Devin DeBacker: As my boss, Assistant Attorney General Matt Olsen, said back in March, this program needs to have “real teeth.” Our primary approach is through compliance. We want companies to fully understand their obligations, have strong programs in place, protect data, and follow the rule, especially with security requirements for restricted transactions. Our main goal is to educate US companies and individuals on these obligations.

If enforcement becomes necessary, however, penalties need to be meaningful — they must impact a business enough to reinforce compliance obligations. More than the size of the penalties, though, what's critical is for companies to understand that compliance can’t be an afterthought — it has to be integrated into the business itself. Compliance teams need to be part of business decision-making, not separate from it. For example, if a company is considering opening an office in Shanghai, storing geolocation data on servers there, and hiring covered persons, that decision-making process must include compliance with US government rules. This needs to be part of the broader business risk assessment.

As Lee mentioned, companies need to ask questions like: Where are our offices? What data do we hold? Where is it accessible? What safeguards are in place? Who has access, and what kind of system-level access do they have? Compliance isn’t about merely ticking a box — it has to be woven into the business itself.

Nicholas Welch: Sounds comprehensive! You’ve done an extensive job of justifying this rule based on statutory authority, like Article II in the Constitution, Section 301, IEEPA. Do you think Congress would be better suited to address this risk legislatively rather than through an IEEPA-based executive order?

Devin DeBacker: IEEPA is intentionally broad, and this rulemaking is consistent with typical IEEPA-based rulemakings, which regulate commercial transactions and cross-border activities. This program can and should stand independently, without Congressional involvement. That said, we’ve worked well with Congress, discussing ways to clarify aspects of IEEPA, like the Berman Amendment, and ensuring long-term resources for this program. 

What’s promising is that this area — protecting sensitive US data from foreign adversaries — has broad bipartisan recognition across parties, administrations, and Congress. I believe this will remain a priority across the government, and I’m optimistic this program will become a lasting element of our national security framework in the US.

Submit comments here, and enjoy this mood music from Lee and Devin:

不久前我们发起了「顿悟时刻」征稿活动，一共收到68份回复，感谢姐妹们的热情参与！我们从所有来稿中精选了24个闪闪发光的Dear Moment，并将在接下来的三封信中分享给大家。本次推送包含第1～8则来稿，默认匿名，排名不分先后😊

1、

亲戚家请吃饭，算妈妈那边比较私人的聚会。我印象最深的是只有一张桌子，但没有一个女性。不管是女儿也好、媳妇也罢，都只能站在旁边吃。比较小的孩子也站在旁边吃。我看着桌子上人的脸，突然意识到，即使是“男外来人”，即女婿，也是可以上桌吃饭的；年龄较小的男性，长大后也是可以上桌吃饭的。而女性、唯有女性，不管是辈分很高的姥姥、姨妈还是舅妈，都只能站在旁边吃饭。

当时刚好有一名堂姐结婚了，她老公在桌上吃饭，她在旁边。我看着她的脸，再看看姨妈的脸，恍然发觉，姨妈就是以后的她。而如果我不逃离，我也会变成她。

2、

大概是从我被送人未遂，弟弟出生时全家欢欣鼓舞堪比过年的氛围给刺激到吧。从那时开始，重男轻女的概念就深深烙印在我心里。

3、

初中时期我遭受了校园冷暴力，从此我学会绝不在人前软弱。上高中后我成了“不太好惹”的女生。一次大课间我正准备进淋浴间洗澡，舍友抱怨几个男生很烦、老是惹她，我掀开浴帘说：你不要老是顺着他们，骂他们一顿就好了。此时我已经站在淋浴间，窸窸窣窣脱下衣服，外面传来回复：不是每个人都像你那样的。

站在温热水流下，这句话在我脑中盘旋许久，直至今日依旧清晰。

为什么大家不能都像我这样？

4、

初中一次大考考砸了，我妈指着我说，“你爸已经烂了，我唯一的安慰就是你的成绩还比较好，你要是再烂了我要怎么活下去？！”我第一反应是疑惑：我和我爸怎么样跟我妈有什么关系？难道除了丈夫和孩子，一个女人就什么也不是了吗？甚至，当时的我已经隐隐约约感受到一种可悲的命运程序——女人们被所谓的爱情欺骗着走进婚姻，却发现男人是不合格的伴侣。她们无法从男人身上得到任何价值。这时她们转而寻求生育、期望通过孩子获得自我满足，然而从历经苦难怀孕生产到耗尽精力抚养孩子也是女人燃烧自我的过程。当女人发现生育的回报和付出根本不成正比时，她们会彻底绝望，或者又寄希望于子女的婚姻。因此婚姻中的女人永远无法真正得到幸福，只能在空虚中被不断拉扯。

听到妈妈的那句话以后，我的人生好像没有什么改变，又好像有些微小的改变。我依然想让妈妈开心，依然为了妈妈努力学习、渴望取得好成绩。但当妈妈再劝我“擦亮眼睛找个好男人”时，我会闭上耳朵。后面的故事或许大家都熟悉，我开始了解女权主义，为自己的人生寻找解法。我回看当年的自己，那个为妈妈的话感到愤慨但依然试图拯救妈妈、让妈妈满足的女生，才发现她一直扛着妈妈的命运走到现在。在父权制的压迫下，她的妈妈把自己想要的、匮乏的、被许诺会得到却从不曾得到的、因对未来恐惧而强加于人的所有，都放在了她身上。出于对妈妈本能的爱，她选择把妈妈的问题都当成自己的问题，从而时时愧疚、常觉亏欠。

而如今，她终于敢看见这一切。

妈妈，我依然很爱很爱你，可是我要过自己的生活了。我不能再为你解决连你自己都没有勇气去解决的问题。你无法接受我爱女人、无法接受我不生育、无法接受我不愿复刻身边任何一位女性长辈的人生，那我只能剪断我们之间的脐带，去做我自己的母版。如果前方没有路，那就开路，这正是每一代女性在做的事情。

——by除却巫山俱是云

5、

第一次意识到这个世界不对劲是在复杂的家庭关系中。当时的我只是一个小孩子，但我能看见姥姥对不担负赡养责任的儿子看似失望仍百般让利。家产是他们的，还要付赡养费勉强让他们接纳她。然而对精心照料自己的女儿她说着体己话，却没有给予她们一丝一毫利益。我从小就很精明，我觉得那些男人占了属于我的利益。我明明是她最有出息的孙女、她口中“最宠爱”的孩子，为什么我仍能感受到比起我她更偏爱顽劣又蠢笨的表弟呢？为什么我得到的远比那个家伙少呢？

然而当我向妈妈提出我的疑问，问她辛辛苦苦讨不到好处有什么用，她却说着她很乐意，她孝顺。我忽然就感觉，孝道是一座沉重的大山，是父权制的魔咒。

6、

小时候上语文课，老师介绍“他”可以代指男人和所有人，“她”只能代指女人和一群女人，甚至一群女人也可以用“他们”。那是我第一次质疑老师的正确性。

7、

我的家乡是一个不算落后的小村庄，我在家很少感受到重男轻女的思想。可是前段时间跟妈妈在集市买瓜，问好了价格，结账时却突然涨价。摊主见我犹豫，声色俱厉地呵斥：“你不买可以走人，小女孩家家的这么事多。”诸如此类。然而我身旁还有一个买瓜的男人正在挑选，摊主却转头温声细语对他说：“我说的是她，您慢慢挑。”

二十多年来，第一次感受到性别上的区别对待。我脑海中蹦出第一个念头：倘若我是个男生，摊主应该不会这么肆无忌惮地试图用高喊吓退我。

我们总被教育要待人温和有礼，可没人教我们面对基于性别的不礼貌、胡搅蛮缠时该怎么做。在我浅薄的经验中，第一步要敢于对不合理的事说不，哪怕是微乎其微的声音，起码告诉自己要在不公平中力挺自己；其次我们应该有强健的体魄，不必被“好女不过百”、“筷子腿、直角肩、蚂蚁腰”左右。只有怕你好的人才盼你弱。

有人说：千百年来都是这么过来的，你一个人的力量能改变什么？我不认可。正因为反对声音多、沉默者众，我们就更应该坚持自我。女性一直在被选择、被支配、被漠视，这个“被”令我万分讨厌。我即是我，不是他物，不是任由珠网外衣缚束的复制品，我应正视我、更应成为真正的我。

——by执萌萌

8、

生活在这个世界，愤怒和质询根本讲不过来，所以想分享一个生命早期的温暖时刻。

上计算机课，一个女生肚子疼，冲出去找班任请假。下课回班的时候有男生在队伍里乱窜，跟同学说她是装病，但完全没有女生附和他，都是让他闭嘴或滚。大家平时未必玩得到一起去，但到了这一点上是一致的，不能接受那个男同学的污蔑和打压。

就是那时候突然觉得 “哦，我们是一伙的”，都是女人。

We’ve got a guest column by the great . His personal blog is The Scholar’s Stage and he also runs the excellent Center for Strategic Translation. This article was originally published by the Foreign Policy Research Institute on October 29, 2024.

Last week, the Wall Street Journal editorial board asked Donald Trump why China would not invade Taiwan on his watch. Trump told the Journal that the Chinese would not dare to invade. As Trump put it: “[Xi Jinping] knows that I am f—ing crazy.”

One must pity the Chinese analyst asked to predict what a second Trump administration will mean for U.S.-Chinese relations. Like Richard Nixon before him, Trump is ready to play the lunatic; he clearly believes that the less predictable he is to the Chinese, the better off America will be. Though China occupies a central place in Trump’s campaign rhetoric, his campaign has not published or endorsed any detailed China policy proposals. The actions of the last Trump administration do not provide a better guide. Divided by infighting, its China policy was not consistent. At times, Trump’s foreign policy swung wildly as specific individuals rose or fell from his favor. Things do not get much easier if one looks at the views of the politicians and policy wonks that Trump would call on in a second administration. Their views are varied. Among Trump’s closest allies, we find fundamental disagreements on the proper ends and proper means of American strategy toward China.

Given these hurdles. I will not try to predict the path a second Trump administration might tread. It seems more useful to lay out a few observations on the different schools of thought now contending for leadership of that policy. My observations are shaped by the dozens of interviews I have conducted over the last two months with Republican staffers, think tankers, and former officials. A longer and more thorough report of my findings will be published by FPRI later this year. This is a pre-election preview.

The questions that divided Republicans in 2017 are not the questions that will divide them in 2025. Trump’s election shattered a policy consensus shared by the leaders of both parties for the better part of four decades. Many of the architects of this consensus were still influential during Trump’s first years in office. On the other hand, many who rejected “engagement” with China had spent years exiled from power. Others were completely new to service in the executive branch. This was a diverse group who did not all reject engagement for the same reasons. These differences were not initially apparent, as their objections were too marginal to the pre-Trump policy debates for much scrutiny to be given to them. Nor was it immediately apparent to these officials where the new bounds of public opinion or presidential approval lay. Thrust into power quite suddenly, they were forced to improvise as they went—and improvise again as the Chinese reaction to Trump’s trade war changed the context in which they worked. All of these factors gave China policy under Trump 1.0 an unusually chaotic flavor.

None of these conditions hold this election season. The architects of engagement are no longer relevant. A tough line on China is now taken as a starting point for all factions involved. Over the last eight years, a new ecosystem of conservative think tanks, policy journals, and Congressional offices has sprouted up to provide Trumpism with the intellectual coherence it lacked in 2017. Policy proposals are now numerous and detailed. Out of power, former Trump officials have had the time to carefully lay out their vision for American strategy in Asia. They have done this in speeches, policy reports, and full-length books. Disagreements between their different schools of thought are formally debated on both panels and podcasts.

Points of Consensus and Conflict in Trump World

Amid these debates, one finds several points of consensus. The disputing intellectuals, wonks, and politicians all agree that China is the most significant foreign policy problem the United States now faces. They describe China as a challenge that must be met in many dimensions: military, economic, and technological (some would add “ideological” to this list, but that is a point of debate, not consensus). Republicans agree that the U.S. armed forces are poorly structured and lack the resources needed to counter the military challenge posed by the People’s Liberation Army (PLA). They agree that America’s commercial and financial relationship with China underwrote the rise of a powerful rival while undermining America’s own industrial base. They believe that China has taken advantage of the traditional American commitment to globalization and free markets, and that doubling down on this commitment is foolish. To level the playing field, some mix of tariffs, export controls, capital controls, and industrial policy is necessary. They agree that the Biden administration’s China policy—while an improvement on that of the Obama administration—has nonetheless been feckless. They believe that the Biden administration articulates geopolitical goals that it has not resourced, cares too much about perceptions of amity, cares too little about perceptions of strength, and has not sold the American people on its foreign policy priorities.   

But behind this consensus lie many fundamental disagreements.

The debates about China policy can be largely sifted into two buckets: economics and geopolitics. It is common for individuals to be closely allied in the economic sphere but not in the geopolitical sphere, or vice versa. For example, senators Marco Rubio and J.D. Vance are close allies on the economic front; there are few meaningful distinctions between the economic strategy each endorses. Their respective takes on the geopolitical problem posed by China are much harder to reconcile. 

In theory, one’s position on the CHIPS Act or tariff rates might influence one’s position on military commitments to Taiwan or military aid to Ukraine. In practice, this is rarely so. The economic and geopolitical debates occur on different planes.

One way to represent the core principles at play in the geopolitical debate is with a classic two-by-two matrix (popularized on the internet as a “political compass”).

Optimism vs. Pessimism

 On the x axis I place the single most important difference between the various schools of thought: assessments of American power and state capacity. Where one falls in many of the most prominent debates—such as “Can the United States can afford to support both Ukraine and Taiwan?” or “Should the ultimate goal of our China policy be victory over the Communist Party of China, or should it be détente?”—has less to do with one’s assessment of China and more to do with one’s assessment of the United States. What resources can we muster for competition with China? Just how large are our stores of money, talent, and political will?

Those on the right quadrants of my diagram provide pessimistic answers to these questions. They buttress their case with measurables: steel produced, ships at sea, interest paid on the federal deficit, or the percentage of an ally’s gross domestic product spent on defense. Against these numbers are placed fearsome statistics of Chinese industrial capacity and PLA power. Changes in technology, which favor shore-based precision munitions at the expense of more costly planes and ships, further erode the American position. This is a new and uncomfortable circumstance. The last time the United States waged war without overwhelming material superiority was in 1812.

To those who see American power through this frame, there is only one logical response: the United States must limit its ambitions. This means either radically reprioritizing defense commitments to focus on China or retreating from conflict with China altogether.

Those on the left two quadrants see things differently. Where the pessimists see settled facts, the optimists see possibilities. The optimists recognize many of the same trends as the pessimists, but view them as self-inflicted mistakes that can, and should, be reversed. An inadequate defense budget is not a law of the universe but a political choice. If Trump wins, he will choose otherwise. Implicit in the optimist view is a longer time horizon—there is still time to turn things around. But this window will not be open forever. Optimists fear that pessimistic assessments erode the political will needed to make changes while change is still possible.

The arguments between pessimists and optimists could be reframed as a matter of risk. The pessimists are most worried about the downside risks of a crisis with China in the near future (c. 2025–28). The optimists balance that possibility against the longer-term risks America will face as it withdraws from other regions of the world or abandons defense capabilities that are not needed in the Pacific theater. Optimists believe this second class of risks is large, and that the United States should not court them. Even an America in desperate need of defense reform has some capacity to “walk and chew gum at the same time.” This issue is at the crux of their arguments on Ukraine: in material terms, aid to Ukraine is not coming at Taiwan’s expense. It is relatively cheap. What stops America from helping both beleaguered nations?

 The pessimists do not view that question purely in material terms. In their debates, the pessimists are quick to highlight the few weapons systems being shipped across the Atlantic that might be used in the Pacific, but their critique reaches higher than this. The costs of the war in Ukraine (and the Middle East) are measured not just in bullets, but in attention and effort: There are only so many minutes the National Security Council may meet. Washington can only have a few items on its agenda at any given time. The executive branch is stodgy, slow, and captive to bureaucratic interests; the legislative branch is rancorous, partisan, and captive to public opinion; the American public does not care a whit about the world abroad. Accomplishing anything meaningful in the United States—much less the drastic defense reforms both sides of the debate agree are necessary—requires singular attention and will. 

If this seems like a pessimistic take on the American system—well, it is one. It is common for people in the optimistic quadrants to argue that the People’s Republic of China is riddled with internal contradictions. In a long-term competition between the two systems, they are confident that these contradictions will eat China from the inside out, and that America’s free and democratic order will eventually emerge victorious. None of the pessimists I interview make similar predictions. If they have anything to say about internal contradictions, it is American contradictions they focus on.  

Power-Based vs. Values-Based Perspectives

So much for the optimist-pessimist divide. What of the y axis?

I think of this as a pole, with “power-based” perspectives on one hand and “values-based” perspectives on the other.

Republicans in the top two quadrants ground their arguments in cold calculations of realpolitik. From this perspective, international politics is first and foremost a competition for power. States seek power. The prosperity, freedom, and happiness of any nation depend on how much power its government can wield on the world stage. While states might compete for power in many domains, military power is the most important. A state frustrated by a trade war might escalate to a real war, but a state locked in deadly combat has no outside recourse. The buck stops with the bullet.

From the power-based perspective, then, the goal of American strategy must be the maximization of American power, with military force as the ultimate arbiter of that power. This force does not need to be realized in combat—ideally, its deterrent power will be strong enough that it is never actively used. The ideal means of American strategy is a military posture and alliance system strong enough to deter the Chinese from resorting to war.

The left and right quadrants of this perspective disagree on the best way to build that sort of power. The upper right quadrant—the prioritizers—do not believe America will ever possess power sufficient to compel China into submission; a stable détente between the two countries is the best outcome that America can attain. Even this modest aim will only be possible if the United States prioritizes the threat posed by China above all others.

Those who argue from the upper left quadrant—the primacists—also speak the language of realpolitik. They maintain, however, that the sacrifices the prioritizers propose will weaken American power. They believe that the existing American alliance system contributes to America’s strength today and will contribute to America’s potential strength in the future. Instead of limiting American aims, the primacists are more concerned with expanding American means. They are confident this can be done if the American people have the confidence to do so.

The lower two quadrants, whose arguments I label “values-based,” operate under a different frame. The people in these quadrants believe that American foreign policy should not be evaluated by a single variable. They see connections between what America does abroad and what America is like at home. They have strong values-based commitments to specific ways of life that are expressed in their vision for American strategy.

I have labelled those in the bottom left quadrant “internationalists” because of how often they invoke the phrase “liberal international order.” This group believes that America and its allies are knit together not only by shared security interests, but also by shared values. In fact, the values shared by the liberal bloc explain why these countries share security interests in the first place. China is an authoritarian power whose influence operations threaten the integrity of democracies across the world. Many internationalists view this political-ideological threat as the most dangerous that China poses. Those in this quadrant are especially skeptical of détente; they do not believe permanent compromise with China is possible. They attribute Chinese belligerence to the communist political system that governs the country. For them, tensions in U.S.-Chinese relations are less the expected clashes between a rising power and the ruling hegemon than a battle between two incompatible social systems. Pointing to the close cooperation that ties Iran, North Korea, Russia, and China together, the internationalists argue (contra the prioritizers) that the world is gripped in a general contest between liberal order and resurgent authoritarianism whose different parts cannot be disentangled from each other.

Those in the bottom right quadrant—the restrainers—also think about foreign affairs through a regime lens, but the belligerent regime in question is their own. Republican restrainers link the liberal international order to the free trade agreements all Trumpists despise and the administrative “deep state” all Trumpists distrust. They see the liberal international order as an international extension of the progressive order they are trying to tear down at home.

There are echoes of the 1960s New Left in the restrainer argument. Both the new left of yesterday and the new right of today are rebellions against “the establishment.” Both reject the pieties of their day; both see a bloated national security state as a symbol of the dehumanizing values they reject. Both groups correctly point out that there is no natural limit to the quest for primacy. Both argue that a totalizing foreign policy will lead to the bureaucratization of American life.   

Only the most radical restrainers are ready for a 21^st-century march on the Pentagon. Most aim for an easier target: a relatively modest foreign policy. Instead of defending an entire international order, it is enough to defend America. Instead of deterring authoritarianism, it is enough to deter China. China does not need to be defeated—it is enough to convince the Chinese to accept some sort of détente.

This is all pretty similar to the ends sought by the prioritizers. Little wonder so many of the primacists and internationalists I interviewed believed the prioritizers were restrainers in disguise! Again and again I heard this accusation made: prioritizer arguments are just an attempt to make isolationism sexy. The prioritizers do not actually believe in realpolitik—realpolitik is just a respectable way to attack the existing international order they despise.

There is an irony to this critique. Just as primacists and internationalists condemn the false face of the prioritizers, so the prioritizers and the restrainers condemn the false face of the primacists! Many of those I interviewed insisted that their primacist opponents made such-and-such argument not for the realpolitik reasons they professed, but because of their (hidden) commitment to liberal ideals. Ideals that cannot be defended on their own merits had to be prettied up with talk of hard power.

All of these suspicions of subterfuge are overblown. Both primacists and prioritizers believe the arguments they make. Yet their suspicions are revealing! All sides clearly believe there is political advantage in couching one’s arguments in realpolitik logic. That fact alone tells us something about the likely contours of a Trump presidency—and perhaps the beliefs of Trump himself.

写在前面：

本期放学以后信号塔由金钟罩轮值。

很多人从欧洲回来之后都产生了戒断反应，我反而没有。相比较而言，国内的工作也没有显得更不堪，反而在我心中变得更无所谓了一些，很多事情没那么烦心了，也没有对欧洲产生更多的思念，因为我知道我终将会再次抵达那里。在回来的一周内，我三次梦到欧洲，两次在大海上漂流，一次在天空中滑翔，每次醒来都带着满满的满足，觉得自己赚翻了。之前上线的做梦那一期播客，片尾我许的愿多次实现，梦里壮阔的欧洲，斑斓的欧洲，自由的欧洲都是那么真实，我将多次穿过那个世界，有时候在梦里，有时候在脚下。

正文：

2024年10月去了法国，那是我第一次抵达欧洲。写下这句话的时候，嘴角不禁流出笑意，我好像去的太晚了，但又不晚，毕竟早两年的话，我也不会有今天的感受。世界没有改变，但我一直在改变。我想先写尼斯，再写巴黎。巴黎对我来说太严肃了，写得不好会感觉在亵渎巴黎；尼斯不一样，尼斯一定会原谅我所有的唐突和逻辑混乱。

尼斯，你的天性是什么就该是什么

我从来没有如此的解放天性过，细数在尼斯的种种失常行为，那都是我内心压抑了很久的渴望，是真实的我、浪漫的我。

今年5月，我们仨和粽子一起去了夏威夷，她们仨多次在直播中唱歌，甚至反复cue我一起，我绝大多数时间都拒绝了，我开不了口。其实我是一个喜欢唱歌的人，我经常自己唱歌，有时候在家里，还自己一个人去过ktv。但是在别人面前唱歌，我开不了口。甚至不是身边真实存在的人，光想到直播的另一端有人听到我在唱歌，每一个细胞都在拒绝。

到尼斯的第一天晚上，喷泉广场上远远听到有人在唱ed sheeran的《perfect》，我简直是一整个大步流星小跑过去，边走边跟着一起唱，围观的观众一起打开手机手电筒，一群欧洲人摇摇晃晃的看着一个亚洲面孔唱英文歌。至今找不到任何缘由，就是那一个瞬间，所有的包袱都不见了，这首歌的歌词从我的血液直接流淌到嘴巴中。唱完歌脚步都轻松了，从广场上颠颠跳跳地回酒店，感觉自己像个精灵，拥有快乐的魔法。

尼斯的人给我的冲击太大了，大家是真的是活在这个世界上，不是活在别人的眼光中。海边桥洞下有一个裹着被子的流浪汗，他把一只手手放在小狗的嘴巴里，让小狗咬着玩，另一手放在另一只狗的背上摩挲。下午路过他的时候，他在对我微笑，晚上路过他的时候他已沉沉睡去，耳边就是地中海摇荡的声音。

海岸边有人靠着行李包读书、有人睡去，有年轻的小伙子裹着紧实的身体划向大海，也有岸边还未消散的大麻气味。老城里台阶一侧是裹着小包裹睡去的妇人，另一侧是正在吃披萨的情侣。16:50分的时候我进入一家手工品商店，店员告诉我们还有10分钟下班。外面下着雨，教堂里有免费的吉他演出，教堂门口的流浪汗问我的朋友要了一根烟。

在尼斯几乎每晚都淋雨，雨打在我的身上，不冷，我们像欧洲人那样在雨中走路，雨水渗过头发流过脸颊。一开始我会觉得淋雨是一种文化认同，后来从巴黎淋到尼斯，雨水甚至穿透了我的灵魂，我像是一个透明人在雨中行走，没有身份，也没有被人看见。

昂蒂布的海让我激动，带着一点恐惧的兴奋越靠近越慌张。我看过有人从昂蒂布海边的一个将近3米的石头上一跃而下，无尽的潇洒和自由，落进琥珀般闪耀的清澈的海面。我也想跳一下试试，想证明一下自己也配拥有这种潇洒和自由。但其实我不是善于游泳的人，只能在游泳池里带着泳镜游泳，而且只会蛙泳，踩水的技术也很一般。但我就是想跳。

我没敢直接站在那个石头上，于是先站在水边，想着直接从水边跳下去先试试，只有20厘米的高度却犹豫了20分钟迟迟不敢往下跳。我的勇气没有想象的那么充沛，大海晃晃悠悠的把我的勇气抹了个干净，每提起一口气，就化为叹气。朋友跟我在一起互相打气，但是两个人却都在不停的摇摆，一个人不跳，另一个人是不会跳的。直到牙一咬，下去吧！海水很快把我托起，我划回岸边。朋友在我跳完后，不到一分钟也立马跳下去了，她甚至跳了两次。我们两个都备受鼓舞，我决定挑战那个两米多高的石头。

光脚爬上去，站在边缘我腿都软了，那块石头2米多高，我178的身高，从上往下看，累计4米多的高度，无异于从二层楼跳下来，这对恐高患者太不友好了。但是，你已经站上去了，四周都是大家期待的眼神，几个朋友和中国游客甚至拿起手机帮我记录，这时候比起退回去，跳下去好像更简单。我跳了，好疼，皮肤被砸得生疼，而且跳下去的瞬间耳朵的角度没找对，轰隆一声巨响，耳朵里疼到恶心，上岸后缓了好久，我的内心也激荡了好久。

现在，如果给我一次机会穿越到站在石头上的那一刻，对自己的耳边说句话，我会说“Go for it, and you will get it!”

关于尼斯的更多图片，已经分享在小红书“游荡者的日常”，分为尼斯的人、尼斯的海、尼斯的城3篇，感兴趣的朋友可以去小红书浏览。

巴黎，平等地对待每一个行人

一定是因为巴黎有太多古老的建筑，丰厚的藏品，这些历史的痕迹把我封印住了，在这里根本不敢造次。我在这个城市有很强的不配得感。博物馆的震慑无需多言，可甚至是走在路上的人，他们的时尚穿搭都把我击个粉碎。颜色、材质、叠穿、首饰搭配，非常有个人特点和创造力，这才是搭配，这才是时尚，大家有着独特的美和个性，张扬又不招摇。相比较起来，我从巴黎世家店里买来的那些，简直像是站在天安门前穿着一个身上印着“北京”大字的T恤。

博物馆的画作和展品像菜市场一样就这样水灵灵的摆在面前，就这样在你脸跟前，或许用一望无际形容博物馆不太合适，但我感觉巴黎的博物馆就是一望无际。我根本看不到尽头，无论是往远处看，还是往深处看。在卢浮宫租了一个导览，一眨眼，四个小时过去了，甚至感觉只看了5%，可能3%？

好几次在巴黎都产生深深的怨恨，为什么有的人可以出生在这里。这里的人给我一种孤独的感觉，是那种珍惜自己时间的孤独，是每个人都有个性的孤独，是一种不顺从的卓尔不群的孤独。孤独是对个人时间更高自由度的支配，在巴黎从早到晚每个时间段都能看到跑步的人，在公园里、塞纳河边、城市街边，可我一直以为跑步只有晨跑或者夜跑，怎么大家什么时候都可以跑步？孤独的人在公园里抬着头晒太阳，双手插兜，双脚跷在喷泉水池边；孤独的人骑着自行车在街上飞速穿梭，一旦你在自行车道骑得慢，一定能听到身后铃铃的催促声，或者下一秒他就从你耳边呼啸而过。

但巴黎的咖啡馆稀释了这种孤独，路边咖啡馆，小小的圆桌上两两相坐，吵吵闹闹，抽烟喝酒喝咖啡。我很喜欢《巴黎记》中的一句话，“人需要孤独，也需要群。巴黎为什么有那么多的咖啡馆，这是对孤独的缓解，人们在这里获得群的温暖。”

比起博物馆和时尚，这次收获的最意外的震撼是巴黎的路，城市的道路。

刻板印象中，越大的城市、越发达的城市，道路肯定越宽敞，飞驰的汽车和地铁。巴黎不是这样的。假如说一个街道有10米宽，只给机动车道留了4米（往返两个方向各2米），自从车车道2米（往返两个方向各1米），人行道4米。我只是举例形容感受，不是真实的街道宽度。有的地方甚至人行道更宽，比如香榭丽舍大道，狭窄的汽车道两边是人行道，人行道的两边是树荫下的人行道，树荫下的人行道的另一边又是公园；塞纳河岸边是人行道，塞纳河上的两遍也是人行道，再往边缘拓展才是可怜的狭窄的机动车道。我在巴黎骑自行车，感觉有的时候自行车比打车还快，自行车道非常清晰便捷，有明确的方向规划，有的时候自行车道和公交车道还是共用的，遇到红灯自行车停车线也在机动车前面。在这个城市，没有钱买汽车的人，也可以散漫自在地行走。这个城市欢迎走路的人，欢迎骑车的人。我感觉被尊重了。“今天，巴黎是所有大城市中唯一可以让人惬意地走完全城的地方。在城市的活力上，它比其他任何城市都更依赖于大街上走过的人们，其他城市似乎只是勉强允许游荡、懒散、闲逛的社会废物存在，而在巴黎，实际上它的街道邀请人人都这样做。”

写在后面：

在43期的心愿清单中有提到本次巴黎的旅行清单，回溯这段实际经历和那期播客只能说几乎毫无关系。我没能如约探索巴黎，但是我真的抵达了那里。想到开头写到的，回国后并没有对欧洲产生更多的思念，是因为我知道我终将会再次抵达那里。那在再次抵达之前，我一定要好好活着。

【放学以后文章&书籍&其它】

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