*This writing is a Blog Post. It is not a published IPTF Journal Article.
Joshua Nacht
One week before Jeff Sessions was fired as Attorney General, he announced the November 2018 creation of the Justice Department’s “China Initiative”.[1] The China Initiative emerged to counter myriad economic and national security threats, including intellectual property (IP) theft, forced technology transfer, cyberespionage of trade secrets and national security information, and efforts to obtain and/or penetrate critical military technology.[2] By some estimates, these PRC-linked efforts cost the United States up to $30 billion a year, and have totaled $600 billion cumulatively.[3]
Under Attorney General William Barr, the DOJ began thousands of new investigations and prosecuted 148 defendants in at least 77 separate China Initiative cases.[4] Only 20% of those defendants have pleaded guilty, and a mere 5% have been found guilty by a jury and 90% of defendants have Chinese ethnic ties.[5]
While there have been several high-profile guilty verdicts reached, almost none of them have been for cases in which the charges themselves alleged economic espionage, IP theft, conspiracy, treason, or any other charge requiring a malevolent intent to collude with a foreign adversary.[6] Instead, many of the indictments and convictions have focused on paperwork and disclosure issues relating to a failure by professors and researchers to disclose ties to China, Chinese institutions, or China-based programs like the Thousand Talents Plan on federal grant applications or in internal forms to American university administrators.[7] While the underlying effort is motivated by overarching national security concerns, the reality is that academics like Gang Chen (a U.S. citizen), Anming Hu (a U.S. resident and Canadian citizen), and Franklin Feng Tao (a permanent resident and spouse & parent of U.S. citizens), have been prosecuted for what amounted to mistakes or oversights on forms that are hundreds of pages long.[8] Even where disclosure of foreign ties is required, with the exception of NASA and certain DOD grants, the majority of federal grant issuers, such as the Department of Energy, the National Institutes of Health (NIH), and the National Science Foundation (NSF) did not bar the ties in question.[9] The prosecutions are largely for the failure to disclose even though such disclosure may not have affected the disbursement of the grants.[10]
Opposition to the China Initiative emerged immediately and increased as numerous professors, most of whom were ethnically Chinese, were prosecuted despite a lack of clear evidence that they had intended to commit a crime or collude with the Chinese government.[11] Civil rights concerns abounded, as researchers began to raise alarms about the “chilling effect” on academic freedom.[12] It’s increasingly clear that the targeting of ethnically Chinese scientists has made American universities less attractive to scholars of Chinese origins.[13] A study from 2022 indicated that as many as 61% of ethnically Chinese scientists in the US have considered leaving the country, with 67% of those citing fear of prosecution for collaboration with or ties to China as their primary motivator in departing the U.S.[14] A further 86% also said these prosecutions were making it harder to recruit top international students.[15] While 65% of Chinese-American scientists in this study expressed fears of collaborating with institutions in China (in what was perhaps an unofficial goal of the Initiative), 45% also said that they would seek to avoid applying for federal grants in general out of fear that a mistake on a grant application could lead to prosecution.[16]
Academics, advocacy groups, and civil liberty organizations are thus not without merit in their claims that the Initiative has left scientists in the United States afraid of performing research.[17] While there might be some national security justifications for making academics more cautious about entering into collaborative ventures with any China-linked entity, discouraging academics from applying for grants to fund cutting-edge research is stifling American scientific and technological progress.[18] Furthermore, the Initiative is jeopardizing American universities’ reputation as the premier scientific research destinations for scholars from all over the world.[19]
In addition to the civil rights and academic freedom concerns, the effectiveness of the China Initiative has also been called into question.[20] The Initiative has certainly made academics more wary of collaborating with China, which conceivably decreases the potential for exposure to PRC-linked economic espionage over time.[21] However, it remains unclear if the China Initiative has in the short term stemmed the regular flow of intellectual property, trade secrets, and hacked information to China.[22] The handful of convictions obtained against academics have largely been for paperwork and disclosure issues, not for trade secrets and IP theft, espionage, or conspiracy, despite thousands of investigations.[23] It is questionable whether prosecution is the best tool for handling this issue, since when Americans assist China’s espionage, they often do so unwittingly.[24] Stronger guidance from administrative agencies and enhanced public-private partnerships might do far more to keep companies and universities in a secure position to protect their data, technology, and research from PRC efforts to gain access.[25]
Today, even some former officials who helped create and prosecute the China Initiative have stated that it has strayed from its original mission and become overly broad in the number of academics it targeted.[26] In a December 2021 post, Andrew Lelling, former U.S. Attorney for the District of Massachusetts, called for the prosecution of academics for grant fraud under the auspices of the China Initiative to come to an end.[27] In an interview, Lelling admitted that deterring academics from blindly participating in Chinese government-linked programs as well as pushing university administrators and federal grant-awarding agencies to take these matters seriously was the goal motivating the prosecution of academics.[28] Now that deterrence has been achieved, such prosecutions no longer serve the interests of justice.[29] As important as this deterrence may have been for national security purposes, prosecuting a few scapegoats to drive home the government’s political priorities is antithetical to the fair administration of justice.[30]
While the Justice Department is part of the Executive Branch and can pursue policy goals through legal avenues by means of affirmative litigation and amicus briefs, it is a fundamental tenet of our justice system that no one should be criminally prosecuted for political purposes.[31] Action was needed to reduce U.S. vulnerability to PRC-linked espionage, including in the academic sphere, but prosecutorial measures were not necessarily the best approach.[32] Legislative or regulatory action, such as the provision of the 2022 CHIPS Act banning federal grants from going to individuals who belong to “malign foreign talent recruitment programs” and requiring grant applicants to disclose this information, puts professors and administrators on notice without selectively targeting a few academics to scare the rest into compliance.[33] Even as most professors charged under the Initiative were eventually cleared, dozens of careers were destroyed and many US-based scholars were financially, professionally, and personally ruined.[34] Much like the Chinese Exclusion Act, Japanese Internment and the Korematsu decision, the China Initiative is another chapter in the long line of abuses of Asian-Americans at the hands of the federal government.[35]
[1] Peter Baker, Katie Benner & Michael D Shear, Jeff Sessions is forced out as attorney general as Trump installs loyalist,The New York Times (2018), https://www.nytimes.com/2018/11/07/us/politics/sessions-resigns.html (last visited Apr 3, 2023); Gideon Lewis-Kraus, Have Chinese spies infiltrated American campuses?, The New Yorker (2022), https://www.newyorker.com/magazine/2022/03/21/have-chinese-spies-infiltrated-american-campuses (last visited Apr 3, 2023).
[2] Information about the Department of Justice’s china initiative and a compilation of China-related prosecutions since 2018, The United States Department of Justice (2022), https://www.justice.gov/archives/nsd/information-about-department-justice-s-china-initiative-and-compilation-china-related (last visited Apr 3, 2023).
[3] Eileen Guo, Karen Hao & Jess Aloe, The US crackdown on Chinese Economic Espionage is a Mess. We Have the Data to Show It, MIT Technology Review (2022), https://www.technologyreview.com/2021/12/02/1040656/china-initative-us-justice-department/ (last visited Apr 3, 2023); James Andrew Lewis, How much have the Chinese actually taken?, CSIS (2018), https://www.csis.org/analysis/how-much-have-chinese-actually-taken (last visited Apr 3, 2023).
[4] Id.
[5] Id.
[6] George P Varghese et al., DOJ’s “China initiative” falters, WilmerHale (2021), https://www.wilmerhale.com/en/insights/client-alerts/20210805-dojs-china-initiative-falters (last visited Apr 4, 2023).
[7] Jess Aloe & Eileen Guo, The US Government is ending the China Initiative. Now what?, MIT Technology Review (2022), https://www.technologyreview.com/2022/02/23/1046460/us-government-china-initiative-over/ (last visited Apr 3, 2023).
[8] Ellen Barry, ‘In the end, you’re treated like a spy,’ says M.I.T. scientist, The New York Times (2022), https://www.nytimes.com/2022/01/24/science/gang-chen-mit-china.html (last visited Apr 3, 2023); Mara Hvistendahl, “Ridiculous case”: Juror criticizes DOJ for charging scientist with hiding ties to China, The Intercept (2021), https://theintercept.com/2021/06/23/anming-hu-trial-fbi-china/ (last visited Apr 3, 2023); Joseph Choi, Federal agents admit to falsely accusing Chinese professor of being a spy, The Hill (2021), https://thehill.com/regulation/court-battles/558345-federal-agents-admit-to-falsely-accusing-chinese-professor-of-being/ (last visited Apr 3, 2023); Nate Raymond, Kansas researcher avoids prison in blow to trump-era China-related probe, Reuters (2023), https://www.reuters.com/legal/kansas-professor-avoids-prison-blow-trump-era-china-related-probe-2023-01-18/ (last visited Apr 3, 2023).
[9] Requirements for disclosure of other support, foreign components and conflicts of interest, National Institutes of Health, https://grants.nih.gov/policy/foreign-interference/requirements-for-disclosure (last visited Apr 3, 2023).
[10] Gisela Perez Kusakawa, From Japanese American incarceration to the China initiative, discrimination against AAPI communities must end: ACLU, American Civil Liberties Union (2023), https://www.aclu.org/news/racial-justice/from-japanese-american-incarceration-to-the-china-initiative-discrimination-against-aapi-communities-must-end (last visited Apr 3, 2023).
[11] John Ruwitch, Arrested Under a Trump-era China Initiative, Franklin Tao Heads to Trial, NPR (2022), https://www.npr.org/2022/03/21/1087806556/arrested-under-a-trump-era-china-initiative-franklin-tao-heads-to-trial (last visited Apr 3, 2023).
[12] Id.
[13] Gisela Perez Kusakawa, From Japanese American incarceration to the China initiative, discrimination against AAPI communities must end: ACLU, American Civil Liberties Union (2023), https://www.aclu.org/news/racial-justice/from-japanese-american-incarceration-to-the-china-initiative-discrimination-against-aapi-communities-must-end (last visited Apr 3, 2023); Vincent Ni, Abolish trump-era ‘China initiative’, academics urge, amid racial profiling criticism, The Guardian (2021), https://www.theguardian.com/us-news/2021/sep/15/abolish-trump-era-china-initiative-academics-urge-amid-racial-profiling-criticism (last visited Apr 3, 2023).
[14] Junming Huang et al., Caught in the Crossfire: Fears of Chinese-American Scientists (2022).
[15] Id.
[16] Id.
[17] Natasha Gilbert, China Initiative’s shadow looms large for US scientists, Nature (2023), https://www.nature.com/articles/d41586-023-00543-x (last visited Apr 12, 2023).
[18] Matt Schiavenza, How the China Initiative Went Wrong, Foreign Policy (2022), https://foreignpolicy.com/2022/02/13/china-fbi-initiative-spying-racism/ (last visited Apr 3, 2023).
[19] Elizabeth Redden, Survey finds ‘chilling effect’ of China initiative, Inside Higher Ed (2021), https://www.insidehighered.com/news/2021/10/29/survey-finds-chilling-effect-china-initiative (last visited Apr 3, 2023).
[20] Karman Lucero, Beyond the China Initiative, Lawfare (2021), https://www.lawfareblog.com/beyond-china-initiative (last visited Apr 12, 2023).
[21] Redden supra note 19; Henry Ren, Restricting China ties a ‘huge mistake’ warns U.S. scholar, Time (2022), https://time.com/6145059/us-china-academic-ties/ (last visited Apr 3, 2023).
[22] Federal Bureau of Investigation, China: The Risk to Academia (2019), https://www.fbi.gov/file-repository/china-risk-to-academia-2019.pdf/view (last visited Apr 4, 2023); Karman Lucero, Beyond the China Initiative, Lawfare (2021), https://www.lawfareblog.com/beyond-china-initiative (last visited Apr 12, 2023).
[23] Eileen Guo, Karen Hao & Jess Aloe, The US crackdown on Chinese Economic Espionage is a Mess. We Have the Data to Show It, MIT Technology Review (2022), https://www.technologyreview.com/2021/12/02/1040656/china-initative-us-justice-department/ (last visited Apr 3, 2023).
[24] Ailsa Chang, How Americans – Some Knowingly, Some Unwittingly – Helped China’s Surveillance Grow, NPR (2019), https://www.npr.org/2019/07/18/743211959/how-americans-some-knowingly-some-unwittingly-helped-chinas-surveillance-grow (last visited Apr 4, 2023).
[25] Elizabeth Peloso, et al., Federal Focus on Inappropriate Foreign Influence on Research: Practical Considerations in Developing an Institutional Response, Council On Government Relations (COGR) (2021), https://www.cogr.edu/sites/default/files/COGR%20Foreign%20Influence%20Practical%20Considerations%20-%20Aug%202021%20%281%29.pdf (last visited Apr 12, 2023).
[26] Michael German & Alex Liang, Why Ending the Justice Department’s “China Initiative” is Vital to U.S. Security, Brennan Center for Justice (2022), https://www.brennancenter.org/our-work/analysis-opinion/why-ending-justice-departments-china-initiative-vital-us-security (last visited Apr 4, 2023).
[27] Ava Sasani, Justice Department Ends Controversial China Initiative, GBH News (2022), https://www.wgbh.org/news/national-news/2022/02/25/justice-department-ends-controversial-china-initiative (last visited Apr 3, 2023).
[28] Scott Tong, China Initiative Trial: Former U.S. Attorney says Strategy has “Drifted,” Parts Should be Shut Down, Here & Now (2021), https://www.wbur.org/hereandnow/2021/12/16/china-initiative-lieber-trial (last visited Apr 3, 2023).
[29] Pola Lem, Universities “Afraid to Get Blacklisted” by Funders Avoid China Collaborations, Times Higher Education (THE) (2023), https://www.timeshighereducation.com/news/universities-afraid-get-blacklisted-funders-avoid-china-collaborations (last visited Apr 4, 2023).
[30] Margaret K. Lewis, Criminalizing China, 111 J. Crim. L. & Criminology 145 (2021) Available at: https://scholarlycommons.law.northwestern.edu/jclc/vol111/iss1/3
[31] Erica Newland & Kristy Parker, Politically-Motivated Prosecutions Part I: Legal Obligations and Ethical Duties of Prosecutors, Just Security (2020), https://www.justsecurity.org/71631/politically-motivated-prosecutions-part-i-legal-obligations-and-ethical-duties-of-prosecutors/
[32] Anton Louthan, The China Initiative and its Implications for American Universities, Foreign Policy Research Institute (2022), https://www.fpri.org/article/2022/04/the-china-initiative-and-its-implications-for-american-universities/ (last visited Apr 12, 2023).
[33] The CHIPS and Science Act of 2022 (H.R. 4346) Research Security Provisions, (2022). https://www.aau.edu/sites/default/files/AAU-Files/Key-Issues/Science-Security/CHIPSandScienceFinalResearchSecurityProvisions.pdf
[34] Gang Chen, I was Arrested Under the DOJ’s China Initiative. Congress Must Investigate the Program, The Boston Globe (2022), https://www.bostonglobe.com/2022/01/21/opinion/i-was-arrested-under-dojs-china-initiative-congress-must-investigate-program/ (last visited Apr 3, 2023).
[35] Robert S. Chang, Whitewashing Precedent: From the Chinese Exclusion Case to Korematsu to the Muslim Travel Ban Cases, 68 Case W. Rsrv. L. Rev. 1183 (2018) Available at: https://scholarlycommons.law.case.edu/caselrev/vol68/iss4/8.