WASHINGTON -- Two weeks ago, Attorney General Eric Holder vowed to bring to a U.S. courtroom five members of the Chinese military who the U.S. accused of hacking computers for economic espionage purposes. The FBI even published "Wanted" posters with pictures of all five.
But nothing has publicly happened since then. The men have yet to be placed on a public, international list of wanted criminals. And there is no evidence that China would even entertain a formal request by the U.S. to extradite them.
Short of the five men flying to the U.S. for a vacation, there’s no practical way they could be arrested outside China without help from foreign governments. It’s also unclear whether the charges levied by the U.S. are recognized internationally as crimes.
"Our intention is for the defendants to have due process in an American court of law," Holder said on May 19.
Now, weeks later, those prospects look less likely than ever, illustrating the complex legal and diplomatic issues posed by the unprecedented indictment. There may be no viable options for Holder to make good on his word.
"The next step needs to be us, here in the U.S., saying this is not just a U.S.-China issue," said Shawn Henry, former cyber director at the FBI and now president of CrowdStrike Services, a security technology company. "This is a China-versus-the-world issue."
So far, the U.S. does not appear to have the world on its side.
Neither officials in China nor the United States said they would comment on any efforts by American prosecutors to arrest the Chinese military officers. The White House and State Department directed inquiries to the Justice Department, where spokesman Marc Raimondi said, "Our investigation is active, and we are not going to comment on specific actions to locate the individuals charged in the indictment."
A federal grand jury charged the five Chinese officials with hacking into five U.S. nuclear and technology companies’ computer systems and a major steel workers union’s system, conducting economic espionage and stealing confidential business information, sensitive trade secrets and internal communications for competitive advantage.
The U.S. and China have no extradition treaty. And China’s laws preclude extraditing its own citizens to countries where there is no treaty.
China has denied the hacking allegations and wants the U.S. to revoke the indictment.
"The Chinese are obviously not going to extradite their officials to the U.S.," said John Bellinger, the former legal adviser to the State Department. For this reason, Bellinger, now a partner at the law firm Arnold and Porter, said he does not expect the U.S. to make the request. "To ask them to do something that they’re obviously going to then deny makes (the U.S.) look ineffectual."
The U.S. can ask Interpol, the international criminal police organization, to place defendants on its "red notice" list of wanted fugitives, which would alert the 190 member countries if the men were to travel outside of China. But the five Chinese military officers weren’t added to Interpol’s public list as recently as Tuesday, although there were 24 other Chinese citizens on that list wanted by the U.S. on charges that included fraud, sexual assault, arson and smuggling.
Raimondi, the Justice Department spokesman, would not say whether the U.S. had asked Interpol to assign red notices to the men. Interpol does not allow red notices in cases it considers political in nature, but a spokeswoman, Rachael Billington, declined to say whether Interpol considers economic espionage to be political.
A former Interpol official said especially sensitive international cases are far more complex.
"In this kind of case, where it has a lot of attention around the world and involves superpowers, it’s going to be more under a microscope about what they have," said Timothy Williams, former director of Interpol’s national central bureau in Washington, and now the general manager of G4S Secure Solutions, a security consulting company.
Interpol sometimes circulates secret red notices, such as cases involving sealed indictments or arrest warrants. But listing the five Chinese men secretly on Interpol’s list would not be effective in this case, since China is a member of Interpol and would see that the U.S. wants them detained if they were to travel outside China.
The Chinese defendants could argue they are immune from prosecution in the U.S. under international law. Such claims are so often contested that the issue is currently under review by a United Nations commission, said Tim Meyer, a law professor at the University of Georgia. Meyer expects the indictment of the five Chinese military officials to come up during the U.N. discussions.