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Analysis

End of Justice Department’s ‘China Initiative’ Brings Little Relief to U.S. Academics

The program sought to fight economic espionage but was criticized for excessive and misguided prosecutions.

March 25, 2022

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 Congressacademiacivil 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.