After the China Initiative – Lawfare

Last month, the Justice Department ended its China Initiative. The trial that began March 21 of Franklin (Feng) Tao, an academic prosecuted under the Initiative, is the first public test of what scrapping the name means. 

Created to support the “strategic priority of countering Chinese national security threats” with a focus on protecting intellectual property, the Trump-era program also fueled bias and spread a chilling effect among researchers in the STEM fields who have ties to China based on ethnicity and national origin.

The Justice Department unflinchingly pushed back on these concerns, stressing that—despite the unprecedented grouping of cases based on having some nexus to China—decisions were driven purely by behavior, not ethnicity.

Disproportionate effects alone do not prove discrimination, but the dramatically high percentage of ethnically Chinese defendants, the lack of a clear definition of what constitutes a China Initiative case, the emphasis on an expansive threat that includes some Chinese students and professors as “non-traditional collectors of intellectual property” and  the crumbling of high-profile cases undermined the government’s assurances.

The Justice Department discarded the China Initiative name at a time when any relaxation of “China threat” rhetoric prompts accusations of being soft on China. On the contrary, the U.S. is positioned to be a tougher competitor with the Initiative in the rearview mirror.

To be clear, the Chinese government is intensifying industrial policies aimed at global leadership in science and technology. Concerns about the methods used to achieve this goal are well founded. The China Initiative was, however, the wrong response.

Freed from the problematic China Initiative framing, the U.S. government can craft an approach to protecting intellectual property and research integrity that safeguards national security, mitigates bias and promotes a pro-innovation environment.

Three things are essential in this endeavor: confidence, collaboration and cash.

Removing the China Initiative name signals the potential for deeper changes to government practices so that scientists can devote their energy to research with confidence that they will be judged based solely on their acts, not where they or their ancestors were born.

This message is also vital for reenergizing the pipeline of foreign-born talent that the U.S. has relied upon as an engine for growth, especially because the Chinese government has sought to stanch a brain drain to the U.S. by highlighting the Initiative as an example of anti-Chinese sentiment.

But building real trust requires more than a name change. The Justice Department now must show that guardrails are in place to prevent repeats of cases like that of MIT professor Gang Chen, against whom charges based on alleged lying about dealings with Chinese academic institutions were announced as demonstrating his loyalty to China. These charges were later dropped when the government acknowledged that it could not prove them at trial. Yet the two-year investigation and prosecution had already taken a tremendous toll on Chen professionally as well as personally on him and his family.

There is a role for criminal law in the U.S.’s efforts to protect innovation. Chen’s case cautions, however, that it should be a carefully circumscribed one. Improved oversight of investigations and prosecutions can help focus resources on serious criminal conduct supported by evidence beyond a reasonable doubt.

A more discerning use of the vast discretion in the FBI’s and Justice Department’s hands not only can decrease the likelihood of subjecting people to damaging allegations that turn out to be unfounded but also can bring enhanced scrutiny to the fundamental question of what conduct deserves criminal punishment, including potentially years in prison. The goal should be to refine the use of criminal law to achieve scalpel-like deterrence rather than a sledgehammer chilling effect.

The Justice Department has moved in this direction by altering its stance on research grant fraud cases in which the allegations are not based on stealing intellectual property but rather on recipients of federal funding deceiving the government, such as about relationships with certain entities in China. Going forward, Assistant Attorney General Matthew Olsen assured a more stringent review when determining “whether criminal prosecution is warranted or whether civil or administrative remedies are more appropriate.”

Tao’s criminal case falls squarely in the grant fraud category yet has proceeded unchanged since the announcement of the China Initiative’s end. His charges stem from an alleged failure to disclose participation in a Chinese-government talent program. How the Justice Department depicts the case inside and outside the courtroom will indicate if it indeed intends to scale back criminal punishments from being a frontline measure for protecting research integrity despite Olsen’s agreement with FBI Director Christopher Wray that threats connected to the Chinese government are “more brazen [and] more damaging than ever before.”

It is too early to say if the FBI and Justice Department will successfully proceed at full throttle to counter serious national security threats emanating from the Chinese government while tapping the brakes with respect to use of criminal law in the research realm. But the chances of deftly navigating this task will increase by embracing collaboration with other government agencies.

Deepening coordination among law enforcement, the Office of Science and Technology Policy and grant-making agencies is critical as the government rolls out new guidance on research security. Streamlining and clarifying research disclosure requirements will better distinguish researchers who commit inadvertent errors from those engaged in nefarious concealment.

Increased collaboration outside the government is also needed. The decision that the China Initiative is “not the right approach” shows that the government can adjust course when it listens to well-founded criticism.

Additionally, communities that pushed back on the Initiative can contribute valuable expertise on issues ranging from understanding scientific research to reducing bias to analyzing the governments of China, Russia, North Korea and other countries of concern. Threats from Russia, for instance, have become even more salient since the Justice Department’s move in February from the dominant “China” rhetoric to a country-neutral “Strategy for Countering Nation-State Threats.”

Finally, maintaining the U.S.’s innovative edge also takes cash. Congress is considering legislation that includes substantial funding for research: a crucial measure to attract and retain talent that Beijing is wooing with big paychecks and fancy labs.

China can offer hardware. What it lacks is soft power. As someone who studies human rights in China, it is striking that the forces exposing the China Initiative’s flaws in the U.S. are precisely those missing in China: academic and press freedom, the right to a zealous defense, judicial independence and vibrant civil society.

Ironically, it is the U.S.’s stated commitment to such civil and political rights that helped to attract China-born scientists, some of whom later found themselves wrongfully accused under this Initiative.

There are emerging signs of a welcome shift toward emphasizing the nature of threats rather than the source of threats. Last week the Justice Department unsealed three cases involving alleged attempts by agents of the Chinese government “to stalk, intimidate, and silence those who oppose it.” When announcing the charges as part of the Strategy for Countering Nation-State Threats, Olsen stressed that the concern is transnational repression regardless of source and listed examples connected to five other countries (Belarus, Iran, Russia, Egypt and Saudi Arabia). 

Olsen further declared, “We will defend the rights of Americans and those who come to live, work and study in the United States. We will not allow any foreign government to deny them the freedom of speech or the protection of our laws or to threaten their safety or the safety of their families.” He continued that the unsealed cases “demonstrate that the Department of Justice will protect American democracy and ensure all those within our borders have access to equal justice under the rule of law and enjoy the protection of the U.S. Constitution.”

Three years of the China Initiative deteriorated an already shaky confidence that people of Chinese descent have access to equal justice. That the Justice Department’s words convey an effort to reverse this trend is heartening. Yet only the government’s actions in the remaining cases brought under the China Initiative, such as Tao’s, and in future cases can convince the public that its new strategy is in fact ensuring the rights of all people within the U.S.’s borders.

Olsen began his remarks last month by affirming, “In everything we do at [the Justice Department], our first priority is to adhere to the Constitution and to pursue equal justice under the law. That mandate is the north star of our work.” The Justice Department strayed from that north star during the China Initiative. The government must now move back toward alignment by better protecting fundamental rights while also protecting national security.