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Why Ending the Justice Department’s ‘China Initiative’ is Vital to U.S. Security

The misguided strategy threatens to undermine the primacy of U.S. science and technology.

Last Updated: January 5, 2022
Published: January 4, 2022

This article first appeared at Just Security

Chinese and Chinese-American scientists are increasingly fearful about working in the United States, according to a recent survey. The study, conducted by the Committee of 100 and the University of Arizona, revealed that over 50 percent of scientists of Chinese ancestry working in the United States, regardless of citizenship, fear they are under surveillance by the U.S. government. Many are reconsidering their plans to stay in the United States. This trepidation results from a cramped and distorted vision of national security on the part of the U.S. government, and it could not come at a worse time. The reverberating effects within the scientific community threaten to undermine the primacy of U.S. science and technology at a time when the pandemic and climate change have become predominant threats to Americans’ health and prosperity.

Background and Official Framing

In 2018, the U.S. Justice Department unveiled the “China Initiative,” a project designed to crack down on trade secret theft, hacking, and economic espionage conducted by – or for the benefit of – the Chinese government. FBI Director Christopher Wray described Chinese espionage in hyperbolic language, calling it a “whole-of-society threat” requiring a “whole-of-society response.” Wray decried “naivete” in the academic sector in particular. He claimed almost every FBI field office saw cases in which China relied on “non-traditional collectors” rather than intelligence agents, “whether it’s professors, scientists, [or] students.” This logic allowed FBI agents to target not just Chinese government agents, but a far larger category of individuals with a “nexus to China.”

In 2018, in conjunction with the FBI, the National Institutes of Health (NIH) sent 18,000 letters to academic institutions to be “vigilant” about intellectual property theft by China. By design, the message sent a chill through the scientific community. One of the Justice Department’s China Initiative Steering Committee members, then- U.S. Attorney for the District of Massachusetts Andrew Lelling, said, “I think those letters have had an in terrorem effect. And that’s good, because you want a little bit of fear out there to sensitize people to the magnitude of the problem.”

Effects on Research Environments

Scaring researchers is antithetical to the open and collaborative nature of fundamental research at academic institutions, which has historically made the U.S. an attractive place for cutting-edge science and scientists to flourish. Since 1901, 148 of the 432 American Nobel Prize winners were immigrants to the U.S. Yet a former China Initiative prosecutor, George Varghese, openly pondered, that given the increased economic threat China posed today, “Should we allow for foreign academic collaboration?” Many academic leaders say we should. And even more pointedly, more than 2,400 faculty members at more than 200 universities across the country have now called on Attorney General Merrick Garland to end the China Initiative.

President Ronald Reagan would most likely agree with the position expressed within today’s academic community. In 1985, during the height of the Cold War with the Soviet Union, he issued National Security Decision Directive (NSDD) 189, which stated: “It is the policy of this Administration that, to the maximum extent possible, the products of fundamental research remain unrestricted.” While acknowledging that science and engineering research programs at U.S. universities were a “small but significant” target of Eastern Bloc intelligence gathering efforts, the administration concluded that maintaining U.S. leadership position in science and technology was essential to security and prosperity. “The strength of American science,” the directive stated, “requires a research environment conducive to creativity, an environment in which the free exchange of ideas is a vital component.”

The China Initiative’s Goals and Actual Track Record

To be clear, China poses a legitimate threat of espionage that the Justice Department and FBI must take seriously. But too often, the Justice Department has brought cases under the China Initiative that have not targeted espionage or intellectual property theft by Chinese spies but minor administrative violations by scientists of Chinese ancestry who are not suspected of affiliation with the Chinese government. And a disquieting number of these prosecutions are failing, resulting in acquittals or dismissals before trials begin. One Asian American professor quoted in the Committee of 100 survey summed up the impact of the FBI’s targeting of Chinese academics: “My peers and I are wondering who is next?” The tax evasion conviction of Harvard chemistry professor Charles Lieber for failing to report income from work at Chinese universities is just the latest example of the China Initiative’s selective investigation and prosecution of academics not accused of economic espionage or trade secret theft, but apparently targeted instead for their association with Chinese academic institutions.

Our intelligence and law enforcement communities must have a more nuanced and strategic way of countering Chinese theft and espionage. The current approach leans much too far in the direction of painting all those with a “nexus to China” with the broad stroke of suspicion. Inhibiting fundamental scientific research and dissuading foreign collaboration with U.S. scientists harms our security on balance. The Justice Department and FBI need to repair the damage they have done with their anti-Chinese rhetoric and apparent racial profiling of Chinese Americans. Lelling, the former China Initiative prosecutor now in private practice, concedes that the China Initiative has “lost its focus” and further explained that the problem is “principally on the academia side.” He argues it should be revamped “to avoid needlessly chilling scientific and business collaborations with Chinese partners.”

Root Causes and Rebalancing

Ending the Trump administration’s China Initiative would be a good first step for recently-confirmed Assistant Attorney General for National Security, Matt Olsen, but it is not enough. We need to address the roots of the problem. We need to confront the persistent racial, ethnic, and religious bias in national security programs and policies, whether targeting Japanese Americans during World War II, Muslim Americans during the war on terror, or Chinese Americans through the China Initiative.

There are paths to reform that the executive branch can take but hasn’t. Section 5712 of the National Defense Authorization Act of 2020 required the Director of National Intelligence to produce a report about how the intelligence agencies assure the protection of Chinese American civil rights when the agencies conduct counter-intelligence operations against the Chinese government. The report was due in June 2020, yet 18 months later it has not been produced.

Our nation’s security does not rest solely on defending from threats by hostile foreign nations. It also rests on America’s ability to attract the best and the brightest from around the world to collaborate and benefit from the free exchange of ideas. During the Cold War, what set us apart from the Soviet Union was our openness and support for innovation. It was that belief that people can live free here in the United States without the fear of unwarranted government scrutiny. If our law enforcement and intelligence agencies do their job properly, our scientists can return to the real questions they want to answer. They can go from thinking “who is next” for government targeting to “what is next” for scientific discovery.