Argument

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Time to End the U.S. Justice Department’s China Initiative

A misguided effort at countering espionage needs a serious rethink.

By , a professor of law at Seton Hall University.
John Demers (left), the U.S. assistant attorney general for national security, and FBI Director Christopher Wray participate in a virtual news conference at the U.S. Justice Department in Washington on Oct. 28, 2020.
John Demers (left), the U.S. assistant attorney general for national security, and FBI Director Christopher Wray participate in a virtual news conference at the U.S. Justice Department in Washington on Oct. 28, 2020. Sarah Silbiger/Pool/AFP via Getty Images

The first trial of a researcher under the U.S. Justice Department’s China Initiative, a sweeping program that began nearly three years ago aimed at countering Chinese economic espionage in the United States, ended in June with a deadlocked jury. The department prosecuted the academic Anming Hu for fraud and false statements after the FBI’s investigation into potential spying crumbled. Like several other cases involving ethnically Chinese researchers under the China Initiative, the authorities appear to have gone far beyond any reasonable remit.

As we await the Justice Department’s decision by July 30 whether to pursue a retrial, three members of the House Judiciary Committee have urged an investigation into reports of alleged FBI misconduct.

The first trial of a researcher under the U.S. Justice Department’s China Initiative, a sweeping program that began nearly three years ago aimed at countering Chinese economic espionage in the United States, ended in June with a deadlocked jury. The department prosecuted the academic Anming Hu for fraud and false statements after the FBI’s investigation into potential spying crumbled. Like several other cases involving ethnically Chinese researchers under the China Initiative, the authorities appear to have gone far beyond any reasonable remit.

As we await the Justice Department’s decision by July 30 whether to pursue a retrial, three members of the House Judiciary Committee have urged an investigation into reports of alleged FBI misconduct.

Instead of continuing to pursue charges, the Justice Department should drop the case against Hu, a China-born naturalized Canadian who joined the University of Tennessee faculty in 2013. It should also end the broader China Initiative, which would reduce scrutiny of researchers of Chinese descent and, in turn, boost the United States’ economic competitiveness.

The Trump administration created the China Initiative in 2018 to disrupt and deter national security threats coming from China. To name a large-scale Justice Department initiative after a specific country was unprecedented.

The initiative is also unusual by emphasizing “nontraditional collectors”: professors, scientists, and students who do not fit the classic spy profile but who might through intellectual property (IP) theft, or by not disclosing relationships with China-based entities, spur innovation in China at America’s expense.

To be clear, there are real national security concerns. The Justice Department charged five China-related economic espionage cases in the initiative’s first two years, plus cases involving false statements and fraud. In May, Song Guo Zheng—a “researcher with strong ties to China,” according to the department—was sentenced to 37 months in prison after being arrested when boarding a chartered flight to China with several USB drives and two laptops and then pleading guilty to lying on federal grant applications.

Nonetheless, the FBI’s thousands of investigations under the initiative have not unearthed widespread IP theft among researchers. Rory Truex, an assistant professor at Princeton University, explains that 20 months of investigations in 2019 and 2020 under the initiative resulted in formal charges at 10 U.S. universities or research institutions, only three of which involved evidence of espionage, theft, or transfer of IP: “Given that there are about 107,000 Chinese citizens in science, technology, engineering, and mathematics (STEM) at U.S. universities at the graduate level or above, current [Justice Department] charges imply a criminality rate in this population of .0000934, less than 1/10,000.”

When charges are brought against academics, they are generally rooted in false statements or fraud, as alleged in Hu’s case. Even without special aggravating factors, the possible prison sentences for these crimes are harsh: a maximum of 20 years for wire fraud, five for false statements, and 10 for grant fraud.

A serious concern is that these penalties are often, though not always, grossly disproportionate to the alleged conduct. For instance, that Zheng “admitted he lied on applications in order to use approximately $4.1 million in grants from [the U.S. National Institutes of Health] to develop China’s expertise in the areas of rheumatology and immunology” combined with his arrest while fleeing to China indicates that the government likely could have substantiated charges beyond “false statements” had the case not been resolved via a plea bargain.

In contrast, Hu continued to live and work in Knoxville, Tennessee, between the time FBI agents first interviewed him in April 2018 and his February 2020 arrest for charges based on two NASA grants. As reported by the Wall Street Journal, “testimony showed university employees fumbling with unclear disclosure policies and struggling to explain to Mr. Hu the required paperwork and what constituted a conflict of interest.” Even U.S. President Joe Biden’s science advisor, Eric Lander, admitted that a maze of requirements means that it’s “very hard to figure out what you’re supposed to be disclosing.”

Last week, the Justice Department dropped a case against the Cleveland Clinic researcher Qing Wang, a naturalized U.S. citizen, stemming from his work on federal grants. The government has not explained why it changed its position after the FBI previously alleged, “Dr. Wang deliberately failed to disclose his Chinese grants and foreign positions and even engaged in a pervasive pattern of fraud to avoid criminal culpability.”

In addition to questions whether severe criminal penalties are appropriate for the disclosure-based cases under the initiative, there are concerns about the shared characteristics of many people who are investigated and charged. The FBI has not identified or released any records in response to Freedom of Information Act requests by the American Civil Liberties Union and Asian Americans Advancing Justice. And the Justice Department insists that it is only investigating criminal activity—that so many targets of investigation are of Chinese ethnicity and/or nationality because of what they do, not because of who they are.

This assurance, plus government statements that most Chinese students and scholars do not pose a threat, does not remedy the problem. Ramping up investigations under the name “China Initiative” while intermittently telling people of Chinese nationality and/or ethnicity that the effort is not really aimed at them contradicts their experience in the United States today. In Hu’s case, it also led him to be put under pressure to act as an FBI informant—a stressful form of coercion, especially for those still facing America’s immigration system.

U.S. Attorney General Merrick Garland recognized that “racism is an American problem,” and Biden affirmed that the government “has a responsibility to prevent racism, xenophobia, and intolerance.” But lumping together cases as part of a so-called China threat with language about what “China has stolen” depicts a xenophobic, existential threat rather than a focus on individualized judgments about potential criminal liability.

For example, when announcing charges against a “national of the People’s Republic of China” in January, then-Assistant Attorney General John Demers stated, “What China cannot develop itself, it acquires illegally through others. This is yet another example of a proxy acting to further China’s malign interests.” A federal prosecutor asserted when bringing fraud charges against Gang Chen, a naturalized U.S. citizen and professor at the Massachusetts Institute of Technology, “The allegations of the complaint imply that this was not just about greed but about loyalty to China.”

Such negative depictions under the China Initiative umbrella at a minimum undermine the spirit of the Justice Manual, which provides that prosecutors “should not be influenced by” a person’s race or national origin. Even taking as true government assurances that there is no intentional focus on certain groups, the phrase “influenced by” goes beyond explicit bias to include implicit bias, which affects law enforcement because, as Garland explained, “every human being has biases.” The initiative’s dominant national security framing has downplayed how unconscious bias can impact decision-making. The American Bar Association, for instance, has created resources on how prosecutors’ innate attitudes shape behavior and can distort justice.

Addressing bias is important not only for upholding civil rights but also for fueling the economy. Hu’s mistrial came on the heels of the Senate sending to the House of Representatives its massive U.S. Innovation and Competition Act that would have authorized more than $50 billion to strengthen science and innovation along with enhancing research security. The House opted to break the behemoth into individual bills, with two passing at the end of June to increase funding for the National Science Foundation and the Energy Department’s Office of Science.

Regardless of the legislation’s final form, the overarching goal is to meet challenges stemming from China’s economic rise. Yet the China Initiative threatens the very innovation that U.S. lawmakers seek to protect. A legitimate desire to raise awareness of security concerns has overcorrected to create a chilling effect on the United States’ ability to retain and attract the research talent needed for its own economic competitiveness. On June 30, a congressional roundtable titled “Researching While Chinese American” examined ethnic profiling and the possibility of a new American brain drain.

The Biden administration should be clear-eyed about the challenge of dealing with a large and genuine espionage effort from a near-peer competitor. But it should do so in a way that both upholds the American value of nondiscrimination and that best positions the United States to be a leader in science and technology in the decades ahead.

Achieving these twin aims requires adopting a country-neutral framework that does not accentuate people with connections to China (in part because people with connections to countries other than China also steal technology) as well as deepening outreach efforts with the scientific community to revise grant reporting procedures and other research security measures.

It takes more than billions of dollars to strengthen innovation. By reining in the excesses of the present approach and renewing America’s commitment to welcoming the best and brightest minds, the United States can regain an innovative edge that the China Initiative has eroded.

Margaret K. Lewis is a professor of law at Seton Hall University. Her research focuses on law in China and Taiwan with an emphasis on criminal justice and human rights.

Tag: China

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