This article first appeared in Just Security.
The tide has turned on the U.S. Justice Department’s “China Initiative,” which we criticized in an earlier Just Security article as a blunt instrument that has undermined American scientific and technological advancement. While the program has officially ended, many important issues remain unresolved, not least being how the Justice Department justifies going forward with pending China Initiative cases like the grant-fraud prosecution of University of Kansas chemistry professor Franklin Tao, who is on trial beginning this week.
The China Initiative was a Trump-era national security program designed to focus resources on prosecuting economic espionage and trade secret theft by Chinese government agents. The program, initiated in 2018, quickly gained infamy for dubious investigations and abusive prosecutions. In July of 2020, FBI Director Christopher Wray said that “almost half” of the Bureau’s counter-intelligence investigations “are related to China.” By the end of 2021, one of the original China Initiative prosecutors argued the program “drifted” from its original goal. It increasingly targeted fundamental research scientists of Chinese ancestry like Tao for relatively minor errors and omissions in grant applications, rather than spies stealing national security secrets or proprietary technology at the direction of the Chinese government. An inordinate number of these so-called “research integrity” prosecutions were dismissed before trial or ended in acquittal. As former U.S. Attorney Carol Lam argued, the China Initiative created “perverse incentives” where agents and prosecutors, “pressured to meet higher prosecution expectations,” may have been “stretching the facts and jumping to unwarranted conclusions.”
In late February, Assistant Attorney General Matt Olsen finally announced a formal end to the China Initiative after a months-long strategic review. Olsen and the Justice Department deserve credit for listening to the criticism coming from Congress, academia, civil rights groups, and the Asian American community, and for publicly acknowledging the national security harms created by the China Initiative. Olsen made clear that the Justice Department and FBI will continue investigating economic espionage by China and other nation-states, but without a program specifically focused on one nation, and with more oversight by the Justice Department’s National Security Division. He referenced the academic integrity cases and indicated that the Justice Department in the future may defer criminal prosecution in favor of administrative or civil remedies.
Notably, while Olsen acknowledged the China Initiative created a “harmful perception” of bias against people with “racial, ethnic, or familial ties to China,” he said his review found the investigations and prosecutions were driven by “genuine national security concerns.” The evidence that bias did play a role is overwhelming, however, and documented in the public record. An analysis of China Initiative cases by MIT Technology Review indicated that 88 percent of the 148 defendants charged during the three years it operated were of Chinese ancestry. Most, despite the original goals of the initiative, were not charged with economic espionage and were not alleged to be agents of the Chinese government. What linked them instead is what Justice Department officials called a “nexus to China,” which often consisted of no more than ancestry or association with Chinese students and universities.
Anti-Asian bias in U.S. national security initiatives is, unfortunately, nothing new. The failed prosecutions of Chinese-American scientists Wen Ho Lee in 1999, Sherry Chen in 2014, and Xiaoxing Xi in 2015 demonstrated that the FBI and Justice Department tendency to stretch facts and jump to conclusions in Chinese espionage cases pre-dated the China Initiative. The FBI has even viewed its own Chinese-American agents with unjustified suspicion. The “othering” of Asians was clearly articulated in FBI counter-intelligence training materials obtained by the American Civil Liberties Union in 2011, which included a slide that warned agents to “Never attempt to shake hands with an Asian” and “Never stare at an Asian.”
This history of bias is important because FBI Director Wray gave a speech just two weeks prior to Olsen’s decision to end the China Initiative, again using sensationalized language to describe the scope of the threat — a scope that isn’t evidenced by the relatively small number of economic espionage charges his Bureau has brought during the China Initiative. Wray said the FBI had more than 2,000 active investigations targeting technology theft by the Chinese government and was still opening new China-related counter-intelligence cases every 12 hours.
Being subjected to an FBI investigation can inflict lasting harms even if no criminal charge results. A professor may have their reputation ruined and their professional opportunities curtailed just by having FBI agents visit their institution to ask about them based on an innuendo of misconduct. There were only 77 China Initiative cases prosecuted over 3 years, according to MIT Technology Review’s analysis, meaning that only a tiny percentage of the thousands of investigations Wray has referenced over the three years it operated appear to result in criminal charges, and a still-smaller percentage involve alleged Chinese government agents. The disparity between investigations and prosecutions creates a challenge for Justice Department officials at the National Security Division to conduct sufficient oversight to identify abuse, particularly given current FBI guidelines that allow agents to open investigations without evidence of wrongdoing.
Members of Congress have begun to take action to address racial bias in national security programs. Committees have hosted roundtables and launched investigations into racial profiling by the Justice Department, FBI, and the National Institutes of Health (NIH). An investigation by Senate Commerce Committee Republicans uncovered a rogue security unit at the Department of Commerce improperly monitoring communications of Asian American employees. Section 5712 of the National Defense Authorization Act (NDAA) for Fiscal Year 2020, mandated that the Director of National Intelligence (DNI) submit a report to the congressional intelligence committees within 180 days of enactment about how intelligence activities targeting the People’s Republic of China affect the civil liberties of Chinese Americans and sought recommendations to protect these civil liberties. Then-President Donald Trump signed the bill into law on December 20, 2019, meaning the report is now more than two years overdue.
For those already caught in the dragnet, like Professor Tao, the end of the China Initiative has brought no relief. The government’s investigation, based on admittedly fabricated allegations of economic espionage, did not uncover spying or intellectual property theft. The violations alleged in the indictment — lying to university administrators and failing to report a potential conflict of interest to federal grantors — are the type that would have been handled as an administrative matter before the China Initiative, and would be today, according to Olsen’s statement ending the program. The facts remain in dispute, but whatever the outcome of the trial, Tao’s research career and his family’s financial stability are ruined. His continued prosecution serves as a warning to other Asian and Asian American researchers and technologists who have increasingly come to view U.S. universities as a hostile place to work.
The diversity of the United States is its greatest asset. Maintaining the ability to attract foreign talent to work and study at U.S. universities is essential to scientific and technological advancements that strengthen national security. Law enforcement and intelligence agencies need to take protecting civil liberties as seriously as protecting against other threats to national security. Of course, the Justice Department must address economic espionage conducted by foreign intelligence agents. But it can only be effective if it focuses its investigations on those hostile foreign agents rather than academics conducting fundamental research, and it must temper the hyperbolic rhetoric that can inflame anti-Asian bias and hate crimes.