Ineffectiveness

According to a Bloomberg News analysis of the 50 indictments displayed on the China Initiative webpage, the program had not "been very successful at catching spies."^[7] Most of the cases listed by December 17, 2021, involved individual profiteering or career advancement by the accused, rather than state-directed spying. Despite this, many of these indictments portray the alleged crimes as for the benefit of China. Seton Hall University law professor Margaret Lewis described this as "a conflation of individual motives with a country’s policy goals" that has led to the criminalization of "China-ness."^[7]

A plurality of the indictments, representing 38% of the cases, charged academic researchers and professors with fraud for failure to disclose relationships with Chinese educational institutions. None of those accused of fraud had been found to have spied for China, and nearly half of those cases had been dropped. Around 20% of the cases involved violations of US sanctions or illegal exports. A smaller percentage concern cyber intrusions attributed to China. Only one fifth of the indictments are about economic espionage and most of them remain unresolved. Only three cases allege that secrets were transferred to Chinese agents.^[7] Andrew Lelling, a former US attorney in Boston, Massachusetts, explained that the number of cases regarding disclosure is large because espionage cases take longer to investigate.^[7]

Out of 77 known China Initiative cases, 19 involved scientists suspected of having participated in the Thousand Talents Plan, and within that group, 14 were accused of violation of research integrity standards due to failure to disclose all affiliations to Chinese entities on grant documentation. None of the 14 were accused of transferring American intellectual property to China.^[11] Of the 28 prosecutions brought forth under the China Initiative, only eight have resulted in convictions or guilty pleas. Only four were professors of Chinese descent and none were convicted for espionage or theft.^[12] According to Mark Cohen, a law school fellow at the University of California, Berkeley, "The government is settling for charges that have little to do with technology."^[13]

Zhengdong Cheng was imprisoned for 13 months after being arrested in August 2020. In September 2022, he was convicted for two charges of making false statements. Despite his conviction, Science characterized Cheng as "the latest case to crumble under the Department of Justice’s (DOJ’s) China Initiative"^[14] because the majority of the nine counts of defrauding the government and making false statements charged against him were overturned. Cheng admitted to failure to disclose his work for Guangdong University of Technology and Southern University of Science and Technology during the NASA grant application process. He was sentenced to the 13 months of imprisonment he had already served since August 2020, a fine of $20,000, and a repayment of $86,876 to NASA.^[14]

Inconsistencies

Civil rights groups have pointed to inconsistencies in the DOJ's messaging on the China Initiative. An MIT Technology Review investigation found that the DOJ did not provide a clear definition of a China Initiative case or disclose how many cases it included. The lack of transparency, the investigation claims, makes it impossible to understand what exactly the program was, what its achievements were, and what the costs have been for those affected. According to Jeremy Wu of the APA Justice Task Force, without a precise definition of the boundaries and scope of the China Initiative, information could be manipulated and presented so as to fit the government's narrative.^[15]

Some cases that were publicly described as China Initiative cases were absent from the program's webpage, including that of MIT professor Gang Chen. Chen was accused of failure to disclose contracts, appointments, and awards from Chinese entities while taking federal grants from the Department of Energy. A letter to MIT president Leo Rafael Reif from 170 MIT faculty members claimed that this was not true and presented several refutations of the allegations against Chen.^[16] The MIT president asserted that the contract in question was between MIT and a Chinese university, the Southern University of Science and Technology (SUSTech), to provide MIT with $25 million over five years.^[17] MIT paid for Chen's legal defense.^[17] Prosecutors recommended dropping charges against Chen and the US District Court dismissed the case in January 2022.^[18][19]

Other cases, including that of Cleveland Clinic researcher Qing Wang, were removed from the webpage after charges were dismissed. MIT Technology Review found that only 13 of 23 research integrity cases were listed on the webpage. Seven of those ended in dismissals and acquittals, and were removed. Of the 12 cases involving theft of trade secrets or economic espionage, only 10 were listed, and seven were charged with only theft of trade secrets but not espionage. Only one case charged both theft and espionage. MIT analysis showed that 17 cases and 39 defendants were removed from the China Initiative webpage while two cases and five defendants were added.^[15]

On 19 November, two days after MIT Technology Review approached the DOJ with questions about the China Initiative, significant revisions were made to the China Initiative webpage. Some items were deleted while other items were added. A former DOJ official suggested the webpage may have been organized less clearly than warranted given the scale and impact of the program. Some cases, such as one involving a turtle-smuggling ring (which was later removed), may have been added to it by mistake. According to the official, such errors may have been due to a new staff member's zeal in looking for cases with a "nexus to China."^[15]

FBI misconduct

The first prosecution of the China Initiative, the Trial of Anming Hu, resulted in a hung jury and mistrial in June 2021, and Hu's acquittal in September 2021. Anming Hu is an associate professor in the Department of Mechanical, Aerospace and Biomedical Engineering at the University of Tennessee, Knoxville (UTK). Hu was fired in 2020 pursuant to the case against him, and reinstated in 2022.^[20] He was charged with three counts of fraud and three counts of making false statements after 21 months of FBI surveillance failed to find any evidence of espionage.^[21]

In Hu's first trial it was revealed that the FBI knowingly built a case based on false evidence, obtained Hu's university documents without warrant, spied on Hu and his family, and attempted to coerce Hu to spy on China for the United States.^[2] The FBI agent in charge of the case, Kujtim Sadiku, did not believe that Hu was guilty of being involved with the Chinese military but gave a PowerPoint presentation to UTK administration designed to make them think he was. According to Hu's defense lawyer, Sadiku wanted a case badly enough that he went forward with questionable evidence.^[12] UTK aided the FBI in their investigation by providing Hu's university documents without a warrant, concealing the investigation from him, misleading NASA, and suspending him without pay as soon as he was arrested. Meetings were conducted between Hu's bosses and the FBI, but it is unclear who authorized them; the FBI did not have any proof of wrongdoing by Hu when they entered UTK and did not have the legal authority to take records from his personnel files.^[22][23] Sadiku admitted that he was not familiar with many of the policies regarding grants which Hu was accused of abusing.^[12] One of the jurors described it as "the most ridiculous case" and said the charges against Hu were the result of "a series of plausible errors" on Hu's part, "a lack of support from [UTK], and ruthless ambition on behalf of the FBI."^[24] Afterwards, Democratic Representatives Ted Lieu, Mondaire Jones, and Pramila Jayapal voiced concerns about Hu's prosecution and called on Justice Department Inspector General Michael E. Horowitz to investigate allegations of FBI misconduct.^[25]

Following the mistrial, the federal government announced that it would pursue a retrial, which ended with Hu's acquittal in September 2021. US District Judge Thomas A. Varlan dismissed the case, saying: "[E]ven viewing all the evidence in the light most favorable to the government, no rational jury could conclude that defendant acted with a scheme to defraud NASA."^[26][12] Casey Arrowood, who lead the failed prosecution of Anming Hu, has been nominated by President Biden for U.S. Attorney General of the Eastern District of Tennessee. Asian American civil rights groups called on supporters to oppose the nomination, which has been described as an "affront to the Asian American, immigrant, and scientific communities."^[27] Hu said that instead of being punished, Arrowood is being rewarded, encouraging future cases such as his to happen again.^[27]

In the trial of Franklin Feng Tao, evidence used by the Department of Justice was obtained using a search warrant that was given on the basis of manufactured allegations against Tao. These allegations were provided to the FBI in 2019 by an ex-colleague who wanted to sabotage Tao's career. She believed she was not given sufficient credit as a co-author of a paper he worked on, and allegedly demanded $310,000 from him due to "spiritual hurts"; when Tao refused, she threatened to counterattack and report him to the FBI as a "tech spy."^[7] The co-author "used fake email accounts to levy the accusations and hacked into Tao’s email, even during a meeting with FBI agents."^[7] With that information, the FBI obtained a search warrant. Although the spying accusations did not stick, according to the prosecution, Tao's emails contained a contract to teach in China. Tao's defense said he was only in job discussions and did not sign the contract or take the job which did not constitute a violation of disclosure rules.^[7][28] On September 20, 2022, a federal judge threw out the three convictions of wire fraud against Tao but upheld one count of making a false statement.^[29]

The FBI also implemented threat awareness sessions at universities, circulating information singling out China as a threat and labeling students, faculty, and researchers as 'non-traditional collectors'.^[12]

National Institutes of Health involvement

Aside from public criminal prosecutions, there have also been university investigations prompted by the National Institutes of Health (NIH), which are considered a personnel matter and occur behind closed doors away from reporters. The targeted scientists have been reluctant to talk about their experiences. Of the 246 targeted scientists, 103 (42%) have lost their jobs since 2018, and a fifth of the targeted scientists have been banned from applying for NIH funding for up to four years, constituting a career ending restriction for many of them. Only in 14 of the 246 cases did the investigations fail to find any evidence for the allegations, which has been cited as proof of NIH effectiveness.^[30]

However some criticism has been levelled at the way NIH has conducted these investigation prompts. According to David Brenner of the University of California, San Diego (UCSD), when NIH told them there was a problem, it was assumed that they were always right and the problem needed to be fixed. According to Robin Cyr at the University of North Carolina, Chapel Hill (UNC), when a letter arrived from Michael Lauer, head of NIH's extramural research, it meant that "NIH thinks your faculty has wrongfully and willfully divulged intellectual property."^[30] Some of the targeted scientists commented that they had little idea that their job would be at risk or what the investigations were specifically about. After the initial contact and reply, most of them were told that they had two options: resign or be fired.^[30]

In 2018, Wuyuan Lu, a professor at the University of Maryland's Institute of Human Virology (IHV), was contacted by a senior university research administrator regarding his failure to "disclose outside research support, relevant affiliations and foreign components,"^[30] as well as alleged use of his NIH grant to support work in China. Lu assumed this had to do with his acknowledgement of Chinese co-author contributions and the Chinese institutions that had funded them in sections of papers even though NIH grants were not used in any of their efforts. Lu stated that the opposite was true and that the Chinese funds and contributions, which not only did IHV approve but also promoted in its newsletters, had benefited IHV work. Lu said that he did not believe there was any conflict of interest and that even if he had, he "wouldn’t have known where, how, and what to disclose due to lack of clear guidelines."^[30] After submitting this information, Lu was not contacted for another 15 months, after which he was told NIH required more information. NIH requested English and Mandarin copies of contracts Lu had signed with Chinese institutions, such as Shanghai Medical College, Fudan University. However Lu responded that he could not provide what did not exist. Lu resigned in August 2020 and now works at Fudan.^[30]

NIH alleged that Yue Xiong, who worked on protein degradation at UNC, had comingled his NIH grant with Chinese institutions and that he had a contract with Fudan containing language regarding intellectual property rights. Xiong denied the allegations, which were never specifically listed, and said he did not remember signing a contract. Cyr stated that NIH would not accept an inconclusive investigation report and kept pushing to dig deeper to support their narrative. According to Brian Strahl, chair of the medical school's department of biochemistry and biophysics, he was repeatedly told that UNC's NIH grants worth almost $1 billion were jeopardized if Xiong was not immediately removed. On 27 May 2020, Xiong was told that he had two days to resign or be fired. He was told that if he fought the allegations, "things won’t end well for you."^[30] Several of Xiong's colleagues sent letters to the chancellor to reverse the decision but received no answer.^[30]

Kun-Liang Guan, a biochemist professor then at the University of Michigan, Ann Arbor (UM), worked with Xiong. He recalled that when he joined UCSD in 2007, his superiors "were fully aware and very supportive of the collaboration"^[30] and had even offered to set up a video conference link to facilitate communication with Fudan. In 2019, he was banned from applying for NIH funding for 2 years after UCSD decided he had violated its code of conduct by not disclosing researching support from foreign sources. Guan's lab shrunk substantially as a result.^[30]

Li Wang, a tenured professor at University of Connecticut, Storrs (UConn), was removed and restricted from access to her research materials within a week of UConn receiving an email from NIH on 6 November 2018. Senior administrators then decided that the allegations of affiliations with Wenzhou Medical University and receiving a grant from another Chinese institution did not corroborate with the evidence. On 21 November, Radenka Maric, then vice president for research, contacted NIH and said that the grant had been awarded to a different Li Wang. The result of the investigation was not accepted. After further communications between NIH and UConn, a forensic image of Wang's laptop was obtained that appeared to contradict her statements. UConn decided to fire her and Wang resigned on 19 September 2019. Wang filed a grievance, which was rejected, and then took up her case with the American Arbitration Association (AAA). AAA ruled in favor of Wang in November 2021 and ordered UConn to compensate Wang with $1.4 million for suspension and termination "without just cause."^[30] The ruling criticized UConn for its unfair investigation, relying on false evidence, and closed mindedness. AAA's Peter Adomeit found that Wang "did not falsify any record or provide false information"^[31] and that the instances in which Wang's name appeared in applications were for research she was not directly involved in. Adomeit noted that the misuse of results from auditing Wang's laptop, which was conducted via visual inspection without metadata analysis, was particularly egregious.^[30]

In some cases, university investigations have been more zealous than even NIH required, such as was the case for UCSD's Xiang-Dong Fu. Fu was hired in 1992 and received tenure in 1998. In 2005 he became a visiting professor at Wuhan and was paid $1000 per month for the next three years. From 2012 to 2016, Fu also received monthly income from the Thousand Talents program. According to Fu, his superior knew about these activities, but NIH banned him from applying for NIH grants for 4 years. Although NIH considered the penalty to be sufficient, UCSD continued the investigation and concluded in May 2021 that Fu had violated repeatedly the code of conduct for conflicts of commitment. Fu did not learn of the second investigation until July or receive documents for it until December, prior to which he was invited to reply but was not allowed to dispute the findings. In January 2022, Fu was told to resign or accept a 4-year unpaid suspension. More than 100 UCSD faculty members requested a lighter penalty and described the prosecution as "rigged to assure the University lawyers would win their case rather than have justice be served."^[30] UCSD did not respond and on 5 December 2022, Fu resigned.^[30]

Both Xiang-Dong Fu and Kun-Liang Guan eventually left for China. By the time Guan's suspension ended in 2021, his lab had shrunk considerably and he had stopped taking on new students because he could not support them. Guan expressed skepticism that any of NIH's targets were able to start their work again. After working in the US for over 30 years, Guan took on a full-time position at Westlake University in Hangzhou for research on the Hippo signaling pathway. Fu joined Westlake University in March 2023 to continue his research on degenerative diseases such as Parkinson's disease.^[32]

Allegations of racial bias

According to advocacy groups, the prosecutions contributed to worsening US-China tensions and "a 71% rise in incidents of violence against Asian Americans from 2019 to 2020."^[7] Asian American advocacy groups described the China Initiative as a new chapter in Asian American history stretching back to Chinese Exclusion Act, the internment of Japanese Americans, and the failed prosecution of Wen Ho Lee in the 1990s. The Committee of 100, a Chinese American advocacy group, characterized the term "non-traditional actors" used to describe researchers with links to China as a way to label Asian Americans as perpetual foreigners. The Committee published a report in September 2021 analyzing 190 economic espionage cases since 1996, which showed that defendants with Asian names faced double the likelihood of false accusations and harsher punishments if convicted. The report showed that over 50% of Chinese scientists and over 50% of Chinese American scientists have become increasingly fearful of working in the United States.^[7][33] An investigation by MIT Technology Review found that 90% of the individuals caught up in the China Initiative by December 2021 were of Chinese descent.^[15]

A poll by the Committee of 100 and the University of Arizona in summer 2021 found that four out of ten scientists of Chinese descent had recently considered leaving the U.S. out of fear of government surveillance. According to data gathered by Princeton University, Harvard University and the Massachusetts Institute of Technology, the number of U.S.-trained scientists of Chinese descent who dropped their U.S. based affiliation for a Chinese one increased by 22 percent over the previous year to more than 1,400 in 2021, coinciding with the COVID-19 pandemic as well as the China Initiative. One Chinese mechanical-engineering professor from a top American university said he left for Hong Kong after more than two decades in the U.S. due to aging parents, the tense political environment in America, and his Chineseness putting other collaborating scientists at risk of scrutiny. Fields Medal winner Shing-Tung Yau, one of the highest profile departees, left for Tsinghua University in April 2022. Although he did not respond to a request for comment, he compared the academic environment in the U.S. to the Soviet Union in a speech to Harvard freshmen in September 2021.^[34] According to OECD data, China surpassed the US in net inflow of scientific authors in 2021, which OECD attributed to returning Chinese scientists.^[35] According to an online survey conducted between December 2021 and March 2022 by the Asian American Scholar Forum (AASF), based on a sample size of 1,229 Chinese American faculty members, 61% had intentions to relocate to another country, 35% felt unwelcome as a researcher in the US, 42% felt fearful of conducting research in the US, and 72% did not feel safe as a researcher in the US.^[36]

In January 2021, APA Justice, the Brennan Center for Justice and Asian Americans Advancing Justice, called for the end of the China Initiative. Their letter to Joe Biden notes that John Charles Demers, assistant attorney general of the National Security Division, directed each of the 94 US attorney's districts to bring forth cases of Chinese espionage or theft without any apparent reason to believe that such crimes were being committed. As a consequence of the program's "pressure on grant makers, universities and research institutions to participate in racial, ethnic and national origin profiling," they claimed, discriminatory and stigmatizing investigations were conducted on people of Chinese descent.^[12]

More than 1,600 scholars and administrators from over 200 universities petitioned for the end of the program, which they claimed disproportionately targets researchers of Chinese origin.^[7] In September 2021, American Physical Society President Sylvester James Gates said the DOJ should move away from disclosure issues and rename the China Initiative in order to allay concerns over racial profiling. He called for the review of past cases for violations of due process and for the victims to be compensated for damage to their careers, and suggested the government give researchers a timespan in which to correct previous oversights in disclosure. At the same time, 177 Stanford University faculty members sent a letter to the DOJ making similar complaints. They wrote that the program does "not just affect the prosecuted faculty but affect the many more university researchers who are targeted, investigated and feel threatened by inquiries initiated without prior evidence of significant wrongdoing."^[37]

Judy Chu, the US representative for California's 27th congressional district since 2013, said "They have turned the China Initiative into an instrument for racial profiling"^[7] and that "They have turned it into a means to terrorize Chinese scientists and engineers. Something has gone dramatically wrong."^[7] Thu Nguyen, the executive director of OCA-Asian Pacific American Advocates, said fears of racial profiling drove some talented scientists to look for work back in China.^[38]

Merrick Brian Garland, the new United States attorney general under the Biden administration since March 2021, pledged to review the program. In October, Garland said that there was no place for discrimination, but confirmed that new investigations were being opened on a daily basis.^[7] Government spokesman Wyn Hornbuckle wrote in an email that cases were based on conduct and not ethnicity. The FBI claims that there is nothing racially motivated about its China Initiative investigations.^[7]

Legal commentary

The prosecutor in the first announced China Initiative case, John Hemann, said the program had "gone off the rails" and "morphed into something that's completely away from what the point of what this exercise was in the first place."^[7] Hemann characterized the problem the China Initiative addressed as political and economic in nature, not one which could be resolved with criminal prosecutions. He later defended a medical researcher, Chen Song, who was charged with visa fraud. Chen was accused of misrepresenting whether she still served the People's Liberation Army. Her case was dropped in July 2021.^[7]

Peter Toren, another former federal prosecutor, suggested that charging scientists with failing to report contracts or income from other sources, when they may be unaware of their obligations, might not be the best approach. He urged scientists to learn the dangers of theft but also said that they should understand and advocate for their rights. He recommended seeking professional help before getting caught up in an investigation and to not automatically assume an FBI agent is acting in their best interests.^[39]

Andrew Lelling, a former US attorney in Boston, questioned whether the China Initiative was proportional to the amount of espionage actually occurring. He said that an appropriate response to China would not be "just prosecuting people," and that "nuanced foreign policy" would not utilize only the Justice Department. Lelling called for the elimination of certain parts of the program.^[7]