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Analysis

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.