The first trial of a researcher under the US Department of Justice’s China Initiative, a comprehensive program that began nearly three years ago to fight Chinese industrial espionage in the United States, ended in June with a deadlocked jury. The department prosecuted academic Anming Hu for fraud and false testimony after the FBI’s investigation into possible espionage collapsed. As in several other cases involving ethnically Chinese researchers under the China Initiative, the authorities appear to have gone way beyond any reasonable mandate.
While we await a retrial by the Department of Justice by July 30, three members of the House Judiciary Committee have called for an investigation into reports of alleged wrongdoing by the FBI.
Instead of continuing to press charges, the Justice Department should drop the case against Hu, a Chinese-born naturalized Canadian who joined the faculty at the University of Tennessee in 2013. It was also supposed to end the broader China initiative, which would reduce the scrutiny of Chinese researchers and, in turn, increase the United States’ economic competitiveness.
The Trump administration launched the China Initiative in 2018 to disrupt and deter national security threats from China. Naming a large-scale Justice Department initiative after a specific country was unprecedented.
The initiative is also unusual in that it emphasizes “non-traditional collectors”: professors, academics and students who do not fit the classic espionage profile, but through intellectual property theft (IP) or by having relationships with China-based companies do not disclose, drive innovation in China at the expense of the US.
To be clear, there are real national security concerns. The Justice Department charged five cases of industrial espionage related to China, as well as cases of misrepresentation and fraud, in the first two years of the initiative. In May, Song Guo Zheng – a “researcher with strong ties to China” according to the department – was sentenced to 37 months in prison after he was arrested with multiple USB sticks and two laptops while boarding a charter flight to China and then pleaded guilty to lie on federal grant applications.
Nonetheless, the thousands of FBI investigations conducted through the initiative have not uncovered widespread intellectual property theft among researchers. Rory Truex, assistant professor at Princeton University, explains that 20-month investigations in 2019 and 2020 under the initiative resulted in formal charges at 10 U.S. universities or research institutes, only three of which were evidence of espionage, theft, or transmission of intellectual property included: “Given that there are approximately 107,000 Chinese citizens in science, technology, engineering, and mathematics (STEM) degrees or higher in US universities at present [Justice Department] Charges imply a crime rate in this population of 0.0000934, less than 1 / 10,000. “
When charges are brought against academics, they are generally based on false information or fraud, as alleged in the Hu case. Even without particular aggravating factors, the possible prison sentences for these crimes are harsh: a maximum of 20 years for transfer fraud, five years for false information and 10 years for aid fraud.
A serious concern is that these penalties are often, if not always, grossly disproportionate to the alleged conduct. For example, that Zheng “admitted lying on requests to use about $ 4.1 million in grants from [the U.S. National Institutes of Health] Developing China’s rheumatology and immunology expertise ”coupled with his arrest while fleeing to China suggests that the government could likely have made allegations beyond“ false information ”had the case not been resolved through a settlement agreement .
In contrast, Hu continued to live and work in Knoxville, Tennessee, between his first interview with FBI agents in April 2018 and his arrest in February 2020 on charges of two NASA grants. According to the Wall Street Journal, “the testimony showed that university staff fiddled with unclear disclosure policies and had difficulty explaining what was required and what was a conflict of interest to Mr. Hu.” Even US President Joe Biden’s academic advisor, Eric Lander, acknowledged that with a maze of requirements “it is very difficult to figure out what to reveal”.
Last week the Justice Department closed a case against Cleveland Clinic researcher Qing Wang, a naturalized U.S. citizen who came from his work on federal grants. The government has not explained why it changed its position after the FBI previously claimed, “Dr. Wang has deliberately failed to disclose his Chinese scholarships and overseas positions, and has even practiced a widespread fraud pattern to avoid criminal liability. “
In addition to the question of whether severe criminal penalties are appropriate for the disclosure-based cases under the initiative, there are concerns about the common characteristics of many of the individuals being investigated and prosecuted. The FBI has not identified or released any record in response to requests made under the Freedom of Information Act by the American Civil Liberties Union and Asian Americans Advancing Justice. And the Justice Department insists that they only investigate criminal activity – that so many of the targets of investigation are of Chinese descent and / or nationality because of their activities, not because of their identity.
This assurance, as well as the government’s declarations that most Chinese students and scholars pose no threat, do not solve the problem. To intensify the investigation under the name “China Initiative” while telling people of Chinese nationality and / or ethnicity that the effort is not really directed at them goes against their experience in the United States today. In Hu’s case, it also resulted in pressure being placed on him to act as an FBI informant – a stressful form of coercion, especially for those still facing the American immigration system.
US Attorney General Merrick Garland recognized that “racism is an American problem,” and Biden reiterated that the government “has a responsibility to prevent racism, xenophobia and intolerance.” But lumping cases as part of a so-called China threat with the language of what “China stole” reveals a xenophobic, existential threat rather than a focus on individualized judgments about possible criminal liability.
For example, when then Deputy Attorney General John Demers announced charges against a “national of the People’s Republic of China” in January, he declared: “What China cannot develop itself, it is illegally acquiring from others. This is another example of a proxy promoting China’s malevolent interests. ”A federal attorney alleged when bringing fraud charges against Gang Chen, a US naturalized citizen and professor at the Massachusetts Institute of Technology,“ The lawsuit allegations imply that that it wasn’t just about greed, but loyalty to China. “
Such negative portrayals under the umbrella of the China Initiative at least undermine the spirit of the judicial manual, which states that prosecutors “should not be influenced by a person’s race or national origin.” Even taking into account government assurances that certain groups are not intentionally the focus of attention, the phrase “influenced by” goes beyond explicit bias to include implicit bias that affects law enforcement because, as Garland explained, ” everyone has prejudices ”. The initiative’s predominant concept of national security has downplayed how unconscious bias can affect decision-making. For example, the American Bar Association has created resources showing how attorneys’ innate attitudes can influence behavior and distort the judiciary.
The fight against prejudice is important not only for upholding civil rights, but also for stimulating the economy. Hu’s misconduct followed the Senate, which sent the House of Representatives its massive US innovation and competition law that would have authorized more than $ 50 billion to strengthen science and innovation and improve research security. The House of Representatives decided to break the beast into separate bills, with two passed in late June to top up funding for the National Science Foundation and the Department of Energy’s Office of Science.
Regardless of the final form of the legislation, the overall goal is to address the challenges posed by China’s economic rise. But the China initiative threatens the very innovation that US lawmakers want to protect. A legitimate desire to raise awareness of security concerns has been overcorrected to have a deterrent effect on the United States’ ability to retain and attract the researcher talent it needs for its own economic competitiveness. On June 30th, a congressional round table entitled “Researching While Chinese American” examined ethnic profiling and the possibility of a new American brain drain.
The Biden government should be aware of the challenge of dealing with a large and genuine espionage operation by an equal competitor. But it should do so in a way that both upholds the American value of non-discrimination and best positions the United States to be a science and technology leader in the decades to come.
To achieve these dual goals, a country-neutral framework must be adopted that does not emphasize people with ties to China (in part because people with ties to countries other than China also steal technology) and step up efforts to connect with the scientific community to revise grant reporting procedures and other security measures for research.
It takes more than billions of dollars to power innovation. By containing the excesses of the current 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 undermined.