China Initiative

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The China Initiative was launched by the United States Department of Justice, the FBI, and other United States federal agencies in November 2018. It is led by the United States Department of Justice National Security Division,[1] and has been described as a "sweeping effort" to counter Chinese espionage in American businesses and research by eliminating spies and halting the transfer of information and technology to China.[2] In addition, the China Initiative focuses on safeguarding "critical infrastructure against external threats through foreign direct investment and supply chain compromises, as well as combatting covert efforts to influence the American public and policymakers without proper transparency."[1] There is no definition of what a China Initiative case is.[2] It has been criticized as being ineffective, racially biased, and disproportionate.[3] Some of the cases under the initiative were based on false evidence by the FBI. The China Initiative's end was announced on 23 February 2022, citing perceptions of unfair treatment of Chinese Americans and residents of Chinese origin.[4]

Origin[]

According to the U.S. DOJ, the China Initiative "reflects the strategic priority of countering Chinese national security threats and reinforces the President’s overall national security strategy."[1] It was launched against the background of findings concerning China's practices and in March 2018, the Office of the United States Trade Representative announced the results of an investigation into China's trade practices under Section 301 of the Trade Act of 1974. The investigation concluded, "among other things, that a combination of China’s practices are unreasonable, including its outbound investment policies and sponsorship of unauthorized computer intrusions."[1] It proposed that "[a] range of tools may be appropriate to address these serious matters."[1]

A report by the Office of Trade and Manufacturing Policy was published in June 2018, reporting on "How China’s Economic Aggression Threatens the Technologies and Intellectual Property of the United States and the World." It documented "the two major strategies and various acts, policies, and practices Chinese industrial policy uses in seeking to acquire the intellectual property and technologies of the world and to capture the emerging high- technology industries that will drive future economic growth."[1]

End[]

On 23 February 2022, the DOJ announced that it was ending the China Initiative, largely due to "perceptions that it unfairly painted Chinese Americans and U.S. residents of Chinese origin as disloyal."[4] Assistant Attorney General for National Security Matthew Olsen stated that the decision was not the abandonment of law enforcement response to the threat posed by China but a reframing and recalibration. According to Olsen, the DOJ will continue to combat threats posed by the Chinese government. China Initiative cases typically involved lying or omitting information on disclosure forms. Some cases resulted in convictions such as with Charles Lieber, who was found guilty of making false statements to federal officials and filing false tax returns. However other cases have been reined in or abandoned, such as with Gang Chen, or defeated in trial in the case of Anming Hu.[5] A review of existing cases was conducted and the DOJ is "comfortable with where those cases are."[4]

Components[]

According to the DOJ website, the China Initiative contains the following components:[1]

  • Identify priority trade secret theft cases, ensure that investigations are adequately resourced, and work to bring them to fruition in a timely manner and according to the facts and applicable law;
  • Develop an enforcement strategy concerning non-traditional collectors (e.g., researchers in labs, universities and the defense industrial base) that are being coopted into transferring technology contrary to U.S. interests;
  • Educate colleges and universities about potential threats to academic freedom and open discourse from influence efforts on campus;
  • Apply the Foreign Agents Registration Act to unregistered agents seeking to advance China's political agenda, bringing enforcement actions when appropriate;
  • Equip the nation's U.S. Attorneys with intelligence and materials they can use to raise awareness of these threats within their Districts and support their outreach efforts;
  • Implement the Foreign Investment Risk Review Modernization Act (FIRRMA) for DOJ (including by working with Treasury to develop regulations under the statute and prepare for increased workflow);
  • Identify opportunities to better address supply chain threats, especially those impacting the telecommunications sector, prior to the transition to 5G networks;
  • Identify Foreign Corrupt Practices Act (FCPA) cases involving Chinese companies that compete with American businesses;
  • Increase efforts to improve Chinese responses to requests under the Mutual Legal Assistance Agreement (MLAA) with the United States; and
  • Evaluate whether additional legislative and administrative authorities are required to protect our national assets from foreign economic aggression.

Criticism[]

The FBI has opened thousands of investigations since the launch of the China Initiative. However setbacks in July and September 2021 have resulted in criticisms of the Initiative. In July six cases were dropped, and in September the case of Anming Hu was directly acquitted, revealing "law enforcement errors and prosecutorial overzealousness."[2]

Ineffectiveness[]

According to a Bloomberg News analysis of the 50 indictments displayed on the China Initiative web page, the Initiative "hasn't been very successful at catching spies."[2] Most of the cases listed involve individual profiteering or career advancement rather than state-directed spying. Despite this, many of these indictments portray the alleged thefts as for the benefit of China. Seton Hall University law professor Margaret Lewis described this as "a conflation of individual motives with a country’s policy goals" that has led to the criminalization of "China-ness."[2]

Of the indictments, the largest group, representing 38% of the cases, charged academic researchers and professors with fraud such as failure to disclose relationships with Chinese educational institutions. None of them have been found to have spied for China. Nearly half of these cases have been dropped. Around 20% of the cases involve violations of U.S. sanctions or illegal exports. An even smaller percentage concern cyber intrusions attributed to China. Only one fifth of the indictments are about economic espionage and most of them remain unresolved. Only three cases allege that secrets were transferred to Chinese agents.[2] Andrew Lelling, a former U.S. attorney in Boston, explained that the large number of cases regarding disclosure is because espionage cases take longer to investigate.[2] Among those accused of failing to disclose ties with Chinese institutions is Franklin Tao, a former University of Kansas chemical engineering professor. In 2019, Tao was the victim of an attempted blackmail by the co-author of a research paper who believed she was not given sufficient credit. She allegedly demanded $310,000 due to "spiritual hurts" and when Tao refused, she threatened to counterattack and report him to the FBI as a "tech spy."[2] The co-author "used fake email accounts to levy the accusations and hacked into Tao’s email, even during a meeting with FBI agents."[2] With that information, the FBI obtained a search-warrant. Although the spying accusations did not stick, according to the prosecution, Tao's emails contained a contract to teach in China. Tao's defense says he was only in job discussions and did not sign the contract or take the job which did not constitute a violation of disclosure rules.[2]

Out of 77 known China Initiative cases, 19 involve scientists suspected to have participated in the Thousand Talents Plan, and out of that group, 14 are accused of research integrity issues due to failure to disclose all affiliations to Chinese entities on grant documentation. None of the 14 are accused of transferring US intellectual property to China.[6] Of the 28 prosecutions brought forth under the China Initiative, only eight have resulted in convictions or guilty pleas. Only four were professors of Chinese descent and none were convicted for espionage or theft.[7] According to Mark Cohen, a law school fellow at the University of California, Berkeley, "The government is settling for charges that have little to do with technology."[8]

Inconsistencies[]

Civil rights groups have pointed to inconsistencies in the DOJ's messaging on the China Initiative. The DOJ has not provided a clear definition of a China Initiative case or disclosed how many cases are included. The lack of transparency makes it impossible to understand what exactly the China Initiative is, what its achievements are, and what the costs have been for those affected. According to Jeremy Wu of the APA Justice Task Force, without a precise definition of the boundaries and scope of the China Initiative, information can be presented in a certain fashion to fit the government's narrative.[9]

Some cases that have been publicly described as China Initiative cases are absent from the China Initiative web page, including the case of Massachusetts Institute of Technology (MIT) professor Gang Chen. Gang is accused of failure to disclose contracts, appointments, and awards from Chinese entities while taking federal grants from the Department of Energy. A letter to MIT president Leo Rafael Reif from 170 MIT faculty members claimed that this was not true and presented several refutations of the allegations against Gang.[10] The MIT president asserts that the contract in question was between MIT and the Chinese university, China's Southern University of Science and Technology (SUSTech), to provide MIT with $25 million over five years.[11] MIT is paying for Gang's legal defense.[11]

Other cases, such as Cleveland Clinic researcher Qing Wang, were removed after their charges were dismissed. MIT Technology Review found that only 13 of 23 research integrity cases were listed on the webpage. Seven of those ended in dismissals and acquittals and were removed. Of the 12 cases involving theft of trade secrets or economic espionage, only 10 were listed, and seven were charged with only theft of trade secrets but not espionage. Only one case charged both theft and espionage. MIT analysis showed that 17 cases and 39 defendants were removed from the China Initiative webpage while two cases and five defendants were added.[9] Prosecutors have recommended dismissing Gang's case.[12]

In one of the cases dropped in July involving a researcher accused of visa fraud, the FBI failed to disclose a disagreement in the bureau over whether or not researchers should be held accountable due to a lack of clarity in the disclosure requirement.[2]

On 19 November, two days after MIT Technology Review approached the DOJ with questions about the Initiative, significant revisions were made to the China Initiative webpage. Some items were deleted while other items were added.[9]

A former DOJ official suggests the webpage's organization may have been less clear than warranted for an initiative of this scale and impact. Some cases, such as one involving a turtle-smuggling ring, may have been added to it by mistake. The case was later removed. According to the official, a new staff member may have been too zealous in looking for cases with a "nexus to China."[9] It's uncertain what a "nexus to China" means and it is not clearly defined.[9]

FBI misconduct[]

See also: Trial of Anming Hu

The first prosecution of the China Initiative, the Trial of Anming Hu, resulted in a hung jury and mistrial in June 2021 and an acquittal for Hu in September 2021. Anming Hu was an associate professor in the Department of Mechanical, Aerospace and Biomedical Engineering at the University of Tennessee, Knoxville (UTK) from 2013 to February 2020. He was charged with three counts of fraud and three counts of making false statements after 21 months of FBI surveillance failed to find any evidence of espionage.[13] Even though there were no espionage charges, one of the prosecutors stated during the trial that part of the reason for prosecuting scientists and professors was "to teach these Chinese spies a lesson."[14]

In the first trial it was revealed that the FBI knowingly built a case based on false evidence, obtained Hu's university documents without warrant, spied on Hu and his family, and attempted to coerce Hu to spy on China for the United States.[15] The FBI agent in charge of the case, Kujtim Sadiku, did not believe that Hu was guilty of being involved with the Chinese military but presented a Powerpoint presentation to UTK administration designed to make them think he was. UTK suspended him without pay. According to Hu's defense lawyer, the FBI agent wanted a case badly enough that he went forward with questionable evidence.[7] UTK aided the FBI in their investigation by providing Hu's university documents without a warrant, concealing the investigation from him, misleading NASA, and suspending him without pay the moment he was arrested. Meetings were conducted between Hu's bosses and the FBI but it is unclear who authorized these meetings. The FBI did not have any proof of wrongdoing by Hu when they entered UT and did not have the legal authority to take records from his personnel files.[16][17] Moreover, the FBI agent admitted that he was not familiar with many of the policies regarding grants which Hu was accused of abusing.[7] One of the jurors described it as "the most ridiculous case" and the charges against Hu as "a series of plausible errors, a lack of support from UT, and ruthless ambition on behalf of the FBI."[18] Afterwards, Democratic Representatives Ted Lieu, Mondaire Jones, and Pramila Jayapal voiced concerns about Hu's prosecution and called on Justice Department Inspector General Michael E. Horowitz to investigate allegations of FBI misconduct.[19]

Following the mistrial, the federal government announced that it would pursue a retrial, which resulted in Hu's acquittal in September. U.S. District Judge Thomas A. Varlan dismissed the case, saying: "[E]ven viewing all the evidence in the light most favorable to the government, no rational jury could conclude that defendant acted with a scheme to defraud NASA."[20][7]

In the trial of Franklin Feng Tao, evidence used by the Department of Justice was obtained using a search warrant given based on manufactured evidence. This was provided to the FBI by an ex-colleague who wanted to sabotage Tao's career.[21][22]

Allegations of racial bias[]

According to advocacy groups, the prosecutions contributed to worsening US-China tensions and "a 71% rise in incidents of violence against Asian Americans from 2019 to 2020."[2] Asian American advocacy groups described the China Initiative as a new chapter in Asian American history stretching back to Chinese Exclusion Act, the internment of Japanese Americans, and the failed prosecution of Wen Ho Lee in the 1990s. The Committee of 100, a Chinese American advocacy group, characterized the term "non-traditional actors" used to describe researchers with links to China as the newest way to label Asian Americans as perpetual foreigners. The Committee published a report in September 2021 analyzing 190 economic espionage cases since 1996 which showed that defendants with Asian names faced double the likelihood of false accusations as well as harsher punishments should they be convicted. The report showed that over 50% of Chinese as well as Chinese American scientists have become increasingly fearful of working in the United States.[2][23] According to Eileen Guo from MIT Technology Review, 130 of 148 individuals caught up in the China Initiative are of Chinese descent.[24]

In January 2021, APA Justice, the Brennan Center for Justice and Asian Americans Advancing Justice, called for the end of the China Initiative. Their letter to Joe Biden notes that John Charles Demers, assistant attorney general of the National Security Division, called on each of the 94 US attorney's districts to bring forth cases of Chinese espionage or theft without any apparent reason to believe that such cases existed. As a consequence of the China Initiative's "pressure on grant makers, universities and research institutions to participate in racial, ethnic and national origin profiling,"[7] discriminatory and stigmatizing investigations have been conducted on people of Chinese descent. The FBI has also implemented threat awareness sessions at universities, circulating information singling out China as a threat and labelling students, faculty and researchers as 'non-traditional collectors'.[7]

More than 1,600 scholars and administrators from over 200 universities petitioned for the end of the China Initiative, which they claim disproportionately targets researchers of Chinese origin.[2] In September, American Physical Society President Sylvester James Gates called for a move away from disclosure issues and renaming the China Initiative to prevent concerns of spurring racial profiling. He also called for the review of past cases for violations of due process and for the victims to be compensated for damage to their careers, as well as a timespan during which researchers can correct previous oversights in disclosure. At the same time, 177 Stanford University faculty members sent a letter listing similar grievances. The letter states that "these actions do not just affect the prosecuted faculty but affect the many more university researchers who are targeted, investigated and feel threatened by inquiries initiated without prior evidence of significant wrongdoing."[25] The Stanford letter called for an end to the China Initiative and an alternative response to the China challenge.[25]

Judy Chu, the U.S. representative for California's 27th congressional district since 2013, says "They have turned the China Initiative into an instrument for racial profiling"[2] and that "They have turned it into a means to terrorize Chinese scientists and engineers. Something has gone dramatically wrong."[2] Thu Nguyen, the executive director of OCA-Asian Pacific American Advocates, said fears of racial profiling have driven some talented scientists to look for work back in China.[26] Merrick Brian Garland, the United States attorney general, pledged to review the program. In October, Garland said that there was no place for discrimination, but confirmed that new investigations were being opened on a daily basis.[2]

Government spokesman Wyn Hornbuckle said in an email that cases were based on conduct and not ethnicity. The FBI claims that there is nothing racially motivated about its China Initiative investigations.[2]

Legal commentary[]

The prosecutor of the first announced China Initiative case, John Hemann, says the China Initiative has "gone off the rails."[2] "It's morphed into something that's completely away from what the point of what this exercise was in the first place."[2] Hemann characterized the problem as political and economic in nature, not one which could be resolved with criminal prosectuions. He later defended a medical researcher, Chen Song, who was charged with visa fraud. Chen was accused of misrepresenting whether she still served the People's Liberation Army. Her case was among the ones dropped in July 2021.[2]

Peter Toren, another former federal prosecutor, suggested that charging scientists with failing to report contracts or income from other sources when they may be unaware of their obligations might not be the best approach. He urged scientists to learn the dangers of theft but also that they should understand and advocate for their rights. He recommended seeking professional help before getting caught up in an investigation and to not automatically assume an FBI agent is acting in their best interests.[27]

Andrew Lelling, a former U.S. attorney in Boston, questioned whether or not the China Initiative was too much and disproportional. He said that a response to China cannot just be prosecuting people and that nuanced foreign policy cannot happen by just using the Justice Department. Lelling called for the elimination of certain parts of the China Initiative.[2]

References[]

  1. ^ a b c d e f g "Information About the Department of Justice's China Initiative and a Compilation of China-Related Prosecutions Since 2018". 31 July 2020.
  2. ^ a b c d e f g h i j k l m n o p q r s t u v Prasso, Sheridan (2021-12-14). "China Initiative Set Out to Catch Spies. It Didn't Find Many". www.bloomberg.com. Archived from the original on 2021-12-14. Retrieved 2022-01-22.
  3. ^ DOJ's China Initiative under scrutiny as cases fall apart
  4. ^ a b c Gerstein, Josh (February 23, 2022). "DOJ shuts down China-focused anti-espionage program". Politico. Retrieved March 18, 2022.
  5. ^ https://www.scientificamerican.com/article/the-controversial-china-initiative-is-ending-and-researchers-are-relieved/
  6. ^ "The China Initiative's first academic guilty verdict raises more questions than it answers".
  7. ^ a b c d e f "Professor acquittal – is China Initiative out of control?".
  8. ^ "In federal 'China Initiative' case, Harvard might also be put on trial". 15 December 2021.
  9. ^ a b c d e "We built a database to understand the China Initiative. Then the government changed its records".
  10. ^ "Faculty Letter to President Reif in Support of Professor Gang Chen". 27 February 2021.
  11. ^ a b "Harvard professor's conviction brings scrutiny of China Initiative - the Boston Globe". The Boston Globe.
  12. ^ https://www.technologyreview.com/2022/01/15/1043319/china-initative-gang-chen-mit/
  13. ^ Satterfield, Jamie (2021-06-16). "Trump administration's first 'China Initiative' prosecution sputters as jurors deadlock". Knoxville News Sentinel. Retrieved 2021-07-01.
  14. ^ Klein, Jodi Xu (August 21, 2021). "Calls grow for US to dismiss 'Nasa lies' case of Hu Anming, as critics cite 'racial bias' in accusation that he hid ties to Chinese university". South China Morning Post. Retrieved 2021-08-29.
  15. ^ Choi, Joseph (2021-06-14). "Federal agents admit to falsely accusing Chinese professor of being a spy". The Hill. Retrieved 2021-06-15.
  16. ^ "Anming Hu". APA Justice. Retrieved 2021-08-15.
  17. ^ "CAPAC Chair Statement on Retrial of Dr. Anming Hu After Mistrial Based on False Evidence" (Press release). Congressional Asian Pacific American Caucus. July 30, 2021. Retrieved 2021-08-15.
  18. ^ Hvistendahl, Mara (2021-06-23). ""RIDICULOUS CASE": JUROR CRITICIZES DOJ FOR CHARGING SCIENTIST WITH HIDING TIES TO CHINA". The Intercept. Retrieved 2021-07-01.
  19. ^ Nakamura, David (2021-06-17). "Mistrial in Justice Dept. fraud case against college professor prompts renewed scrutiny of agency's 'China Initiative'". The Washington Post. Retrieved 2021-07-01.
  20. ^ Chen, Shawna (September 10, 2021). "Chinese researcher accused of spying under DOJ initiative acquitted of all charges". Axios. Retrieved 2021-09-21.
  21. ^ Prasso, Sheridan (2021-12-14). "China Initiative Set Out to Catch Spies. It Didn't Find Many". www.bloomberg.com. Archived from the original on 2021-12-14. Retrieved 2022-01-22.
  22. ^ Nakashima, Ellen (2021-08-24). "Kansas professor says FBI misled court in alleging hidden ties to Chinese government". The Washington Post. Archived from the original on 2021-08-25.
  23. ^ "Why Ending the Justice Department's "China Initiative" is Vital to U.S. Security". 3 January 2022.
  24. ^ "Inside the DOJ's China Initiative with the MIT Technology Review". 23 December 2021.
  25. ^ a b "Judge Acquits Nanotechnologist as Pressure Mounts on DOJ China Initiative". 16 September 2021.
  26. ^ "Asian American groups call on Biden to end controversial China Initiative". NBC News.
  27. ^ "Two years of the DOJ's China Initiative".
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