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Has the ‘China Initiative’ Run Its Course?

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Has the ‘China Initiative’ Run Its Course?

After a resounding legal defeat, will the Justice Department change stance on the controversial program?

Has the ‘China Initiative’ Run Its Course?
Credit: Depositphotos

In 2018 the Trump administration announced a new program at the Department of Justice. Dubbed the China Initiative, the program was meant to crack down on economic espionage and covert influence operations. From the outset, however, the initiative has faced accusation of embedded prejudice against Chinese Americans, as well as more basic concerns about sloppy legal work.

Despite the rising criticism, the China Initiative continued into the Biden administration.

“The more we learn about the China Initiative, the more problematic it looks,” Margaret Lewis, a professor of law at Seton Hall University, told The Diplomat in a phone interview.

“I’m not feeling better about this now, three years in.”

What Is the China Initiative?

According to the Justice Department’s official description, “In addition to identifying and prosecuting those engaged in trade secret theft, hacking, and economic espionage, the Initiative focuses on protecting our critical infrastructure against external threats through foreign direct investment and supply chain compromises, as well as combatting covert efforts to influence the American public and policymakers without proper transparency.”

The initiative, in other words, potentially covers a lot of ground, making it hard at times to know what officially counts as part of the China Initiative. “No one has been able to explain to me how a case gets labeled a China Initiative case,” Lewis said. “…By nature, it’s a bit of an amorphous creature.”

We can get some idea of the DOJ’s understanding from the press releases related to the China Initiative. These have headlines like “University Researcher Sentenced to Prison for Lying on Grant Applications to Develop Scientific Expertise for China”; “Hospital Researcher Sentenced to Prison for Conspiring to Steal Trade Secrets and Sell to China”; “Mathematics Professor and University Researcher Indicted for Grant Fraud.” Most of the press releases are about cases against researchers, often professors, of Chinese origins.

While the China Initiative lumps these cases together, there are two separate issues involved: first, the theft of trade secrets, and second, false information about or non-disclosure of China ties.

Those two different focus areas match the top two goals of the China Initiative, according to the DOJ: “Identify priority trade secret theft cases” and “Develop an enforcement strategy concerning non-traditional collectors (e.g., researchers in labs, universities and the defense industrial base) that are being coopted into transferring technology.”

In practice, the China Initiative seems to be focusing more on the second point – and even then, many of the cases do not involve allegations of actual technology transfers.  According to an analysis by former federal prosecutor Peter Toren, as of January 2021 the China Initiative had resulted in charges in 61 cases, of which only five involved allegations of actual economic espionage. In the vast majority, suspects are being indicted on charge like making false statements or wire fraud, which can be used as a catch-all charge to prosecute researchers who receive grant money on supposedly false pretenses.

Such allegations, however, can lead to murky waters. Prosecutors have framed offenses like making fraudulent statements on a grant application as “enabling the Chinese government’s efforts to corruptly benefit from U.S. research funding by lying about … obligations to, and support from, an arm of the Chinese government.” But sometimes there is no evidence that any harm actually occurred, in terms of illegally sharing the results of U.S. government-funded research with Chinese entities (which, presumably, is what such disclosures are designed to prevent). And then there is the tricky legal point of whether the omission was intentional or accidental.

Lewis said that the wave of non-disclosure cases is noteworthy because of the notion of “harm” involved. The more obvious harm is the theory that, if proper disclosure had been made, the grant would have gone to someone else without potential conflicts of interest. However, Lewis also sees in some of these cases “the sense that if you’re not disclosing, you’re heading down a path where you’re sort of being primed” to commit economic espionage. There may be a whiff of preventative prosecution about these cases, in other words.

That’s a problem, according to China Initiative critics. The American Physical Society, a nonprofit membership organization devoted to advancing the study of physics, called such charges “a ‘hardball’ prosecutorial tactic.” In an open letter, APS argued that “such failures to disclose are generally not considered a crime prosecutable by the DOJ but instead result in sanctions by the individual’s institution or agencies such as the NSF who fund the individual. “

“There are real threats to national security posed by unauthorized transfer of knowledge and technical expertise,” the society wrote. “But a response that chokes off legitimate scientific contacts only compounds the problem it seeks to solve.”

Given its focus, the China Initiative has also focused on investigating researchers of Chinese descent (although there are some high-profile exceptions). That, combined with the relatively minor nature of the infractions being pursued, has given the initiative the air of a witch hunt, critics say. Chinese American researchers – who, until a few years ago, were being actively encouraged by their employers to build relationships in China – are being targeted for extensive investigations. In some cases, researchers are having decades-long careers pulled down on scanty evidence.

As one researcher told Karin Fischer for the Chronicle of Higher Education, “It seems that you don’t even need to have bad intentions [to be targeted under the China Initiative] …As long as you are connected with China, that is a bad intention.”

The Anming Hu Case

The case of Anming Hu saw some of these issues play out in the open court for the first time. As Lewis pointed out, most cases – both in the China Initiative and more broadly – are resolved via a plea deal. “To have a case go to trial shows the defendant really feels strongly about putting the government to task,” Lewis said.

In February 2020, Anming Hu, an associate professor in the Department of Mechanical, Aerospace and Biomedical Engineering at the University of Tennessee, Knoxville, was arrested. According to a press release from the Department of Justice, Hu was accused of committing fraud “by hiding his relationship with a Chinese university while receiving funding from NASA.” Specifically, Hu allegedly sought to defraud NASA “by concealing his affiliation with Beijing University of Technology (BJUT), a university in China.”

Over a year and a half later, on September 9, 2021, Hu was acquitted of all charges by a judge who found there was no intent to harm NASA. The judge also agreed with Hu’s lawyers that NASA’s funding restrictions were unclear, making it hard to argue that Hu actively sought to cover up his association with BJUT – which was well-known to his colleagues at the University of Tennessee – versus having made an oversight when filling out the grant application.

A NASA agent testified in the trial that “NASA got what they thought they had bargained for” and had no evidence that Hu collaborated with Chinese researchers on the NASA project at all. Thus, the judge found that “no rational jury could have concluded that defendant had a scheme to defraud NASA in this case.”

“[T]he government has failed to provide sufficient evidence from which any rational jury could find, beyond a reasonable doubt, that defendant had specific intent to defraud NASA by hiding his affiliation with BJUT,” the judge wrote.

Part of the problem is that the grant application process is incredibly specialized – and complicated – and the FBI agents involved had little to no experience in that field. That lack of familiarity with academia can result in huge mistakes.

Earlier this year, prosecutors implied that Gang Chen, an MIT professor and researcher in nanotechnology, had personally profited, to the tune of tens of millions of dollars, from his affiliation with a Chinese research institute. Chen’s colleagues swiftly made clear, however, that the money had actually gone to MIT, not Chen himself.

In Hu’s case, the judge noted that the lead FBI agent in the case “did not have substantial experience or knowledge of the grant processes of government agencies or university conflict of interest policies.” And as in Chen’s case, the grant Hu received went to his institution, the University of Tennessee, not into Hu’s pocket.

The main takeaway of the acquittal is that Hu had his career derailed and his life upended essentially for no reason at all.

What Next for the China Initiative?

Notably, Hu’s first trial ended with a deadlocked jury. Legal experts were surprised that prosecutors chose to retry Hu at all, especially after an FBI agent admitted to lying about the extent of Hu’s involvement with China. There are also worrying indications that Hu was originally being investigated for economic espionage, but the FBI continued to pursue the case against him even when the evidence didn’t bear out those initial suspicions.

I think they’re being generous by saying ‘the lead FBI agent was in over his head,’” Lewis said of the judge’s ruling in the Hu case. “There are indications that he wasn’t just in over his head, he was going fishing. He got this notion in his head that Anming Hu was a spy.”

Now, after a resounding defeat, the DOJ may step back and adjust its approach – hopefully by taking into consideration the long-standing criticisms from legal analysts and researchers themselves. “A searching case by case review is what should happen, as well as broader reframing” of the narrative behind the China Initiative, Lewis said.

An open letter to U.S. Attorney General Merrick Garland signed by 177 members of Stanford University’s faculty went even further. The letter argued that “the China Initiative has deviated significantly from its claimed mission: it is harming the United States’ research and technology competitiveness and it is fueling biases that, in turn, raise concerns about racial profiling.”

“We strongly urge you to terminate the China Initiative and develop an alternative response to the challenges posed by our relations with the People’s Republic of China, one that avoids racial profiling and discouraging beneficial and important collaborations and influx of talented personnel,” the letter concluded.

Even before Hu’s second trial, prosecutors simultaneously dropped charges in other cases, leading some to believe the China Initiative was quietly shutting down.

For now, though, cases similar to Hu’s will continue to wind their way through the justice system. Cases to watch include Chen’s, which Lewis expects to go to trial, as well as the case of Feng Tao (also known as Franklin Tao), a chemical engineering professor at the University of Kansas.