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Huawei is using the words of the Founding Fathers in its lawsuit against the U.S. government

“The Framers of the United States Constitution were deeply concerned about the potential abuse of legislative power,” the lawsuit says.
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Huawei is suing the U.S. government for banning the use of the company’s telecoms equipment, marking a dramatic escalation in its ongoing battle with Washington.

The Chinese electronics giant, which has long been portrayed by the U.S. government as a national security threat, filed a lawsuit in Texas Wednesday that says lawmakers on Capitol Hill acted unlawfully when they barred federal agencies from purchasing hardware built by what is the world’s biggest telecoms company.

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“Congress acted unconstitutionally as judge, jury and executioner,” Guo Ping, one of Huawei’s rotating chairmen, said at a press conference in Shenzhen on Thursday.

The 54-page lawsuit cites the Founding Fathers in an attempt to highlight the hypocrisy of the U.S. government’s ban, noting that the constitution explicitly includes a separation of powers to prevent this type of action being taken by the government.

“The Framers of the United States Constitution were deeply concerned about the potential abuse of legislative power,” the lawsuit says, before quoting former U.S. President James Madison: “The legislative department is everywhere extending the sphere of its activity, and drawing all power into its impetuous vortex.”

In recent months, the U.S. government has been on a crusade to convince allies to prevent Huawei from developing their next-generation 5G networks — with varying levels of success. The escalating spat with the company also comes at a time when the U.S. and China are engaged in fractious trade negotiations.

While many have dismissed the lawsuit as nothing more than a PR stunt, some legal experts believe Huawei has a chance of winning.

“It's quite a compelling writ, reading it as a lawyer,” Emily Taylor, CEO of Oxford Information Labs, told VICE News. “For me, the arguments are pretty convincing on the constitutional grounds and to take legal action is a very bold move, projecting a lot of confidence.”

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The lawsuit focuses on a provision in Section 889 of the National Defense Authorization Act, which specifically blocks government agencies from procuring hardware from Huawei and its compatriot ZTE.

The company says the legislation effectively pronounces Huawei guilty of some offense without affording them due process.

To highlight its point, the company quotes several U.S. lawmakers making derogatory statements about Huawei unsupported by evidence: “[Huawei has] proven themselves to be untrustworthy, and at this point, I think the only fitting punishment would be to give them the death penalty,” Sen. Tom Cotton (R-AR) told the Senate in June last year.

“[These quotes] speak to extreme prejudice and Huawei are fairly reasonably saying these committees looked at evidence [but] couldn't find specific evidence of Chinese influence or security risks, and they went ahead and did it anyway,” Taylor said.

Beyond legal arguments about constitutionality, Huawei also claims that the ban will hurt the U.S. economy and U.S. consumers.

“Without Huawei equipment and services, consumers in the United States — particularly in rural and poor areas — will be deprived of access to the most advanced technologies, and will face higher prices and a significantly less competitive market,” Huawei says.

This claim was given some credence on Thursday when an executive for British carrier Vodafone said banning Huawei would be catastrophic for the company and its customers.

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“The cost of [removing Huawei equipment] would be hundreds of millions and dramatically affect our 5G business case,” Scott Pelly, CTO of Vodafone UK, said during an announcement of the company’s 5G rollout. “We would have to slow down the deployment of 5G very significantly to go and refresh our 4G network first.”

But others are not convinced by this argument, and instead see the subsidies provided by the Chinese company to carriers like Vodafone to be the greater motivation behind blocking a ban on Huawei equipment.

“If we were willing to take Beijing’s subsidies, as so many of those currently operating or planning to build 5G networks are, we’d be at a short term advantage but we won’t do that because we are well aware of the risks that would be passed onto those that would be relying on that network service,” Declan Ganley, CEO of Rivada Networks, a telecoms company that makes mobile networks operate more efficiently and counts Peter Thiel as an investor, told VICE News.

Tensions between the U.S. and Huawei has been strained for years but ratcheted up dramatically in December when Canada arrested Huawei CFO Meng Wanzhou on Washington’s direction in connection with allegations that Huawei violated U.S. export sanctions against Iran. The U.S. has also accused Huawei of stealing trade secrets.

Earlier this week, Huawei opened a cybersecurity transparency center in Brussels as part of its charm offensive in the region, where it is already an established player and where it wants to convince governments to break from the U.S. and back its technology.

Cover image: The logo for Huawei is seen at the company's headquarters in Shenzhen, China's Guangdong province on March 6, 2019. (Photo: WANG ZHAO/AFP/Getty Images)