The Department of Justice is setting a higher bar for criminal prosecutions of academic scientists as part of a pivot away from its controversial “China Initiative,” while maintaining a high priority on countering malign activity by the Chinese government.
The head of the Department of Justice’s National Security Division, Matt Olsen, announced on Feb. 23 that DOJ is retiring its “China Initiative” label for efforts to counter economic espionage and malign influence by the Chinese government. He also said the division is changing its strategy on academic research security cases, exerting more oversight of investigations and criminal prosecutions and considering civil or administrative penalties for cases that lack clear national or economic security implications.
Olsen explained that the changes follow a review of the China Initiative he began late last year and respond to concerns that prosecutions of university scientists have created a “chilling atmosphere” that is damaging the U.S. research system. He said he also found the exclusive focus on China had fueled a “harmful perception that the department applies a lower standard to investigate and prosecute criminal conduct related to that country or that we in some way view people with racial, ethnic, or familial ties to China differently.”
While avowing he detected no racial bias in DOJ’s work, he said he concluded that the China Initiative framework was “not the right approach” in part because it had alienated parts of the community the department was aiming to safeguard. DOJ will now pursue a broader framework that addresses threats presented by a range of countries, though Olsen stressed that the department continues to regard the Chinese government as posing unique challenges beyond those presented by other rivals such as Russia or Iran.
DOJ to delegate enforcement in less serious cases
DOJ launched the China Initiative in 2018 to focus resources on cases involving either overt or “non-traditional” espionage by the Chinese government, and many cases pursued through the initiative have been uncontroversial. However, cases involving academics have sparked outcry because few of them alleged theft or espionage, resting instead on allegations that researchers’ nondisclosure of ties with institutions in China were tantamount to criminal schemes to exploit federal funding agencies.
Pressure on the initiative has mounted as some cases have fallen apart, with Asian American advocacy groups and some scientific societies arguing it has created widespread fear among ethnically Chinese researchers and discouraged international research collaborations.
After noting he met with some of these critics during his review, Olsen remarked, “Safeguarding the integrity and transparency of research institutions is a matter of national security. But so is ensuring that we continue to attract the best and the brightest researchers and scholars to our country from all around the world — and that we all continue to honor our tradition of academic openness and collaboration.”
Describing how the National Security Division will handle research security cases going forward, he said it will assess “the evidence of intent and materiality, as well as the nexus to our national or economic security.” Such considerations will inform decisions on “whether criminal prosecution is warranted or whether civil or administrative remedies are more appropriate,” he explained.
Olsen also highlighted recent disclosure policy guidance from the White House that encourages science agencies to consider researchers’ forthrightness in coming into compliance with disclosure policy when weighing potential punitive actions.
Although the guidance is not directed at DOJ, Olsen indicated the department will similarly weigh such considerations, remarking, “Where individuals voluntarily correct prior material omissions and resolve related administrative inquiries, this will counsel against a criminal prosecution under longstanding department principles of prosecutorial discretion.”
Exonerated scientists seeking accountability
In his remarks, Olsen did not address allegations that DOJ's cases against academics have been ill-founded and, at least in some cases, have violated the defendants' legal rights.
One leading critic of the initiative is MIT professor Gang Chen, who was exonerated last month after DOJ charged him a year ago with crimes related to not disclosing ties to Chinese institutions on a Department of Energy grant application in 2017. He has argued prosecutors failed to obtain and turn over evidence that DOE did not expect him to disclose the activities DOJ accused him of concealing.
“While I am relieved that my case has been dropped ‘in the interests of justice,’ I respectfully request a thorough review of this matter by Congress and the Department of Justice to hold individuals accountable for their glaring misconducts,” he wrote in a statement posted to MIT’s website.
In an op-ed published in Science magazine after Olsen’s announcement, Chen called for stronger actions to “end the China Initiative, however it is repositioned by the DOJ.” He also blamed DOE for not coming to his defense sooner, writing, “The DOE should have spoken up when it counted. That is a lesson for all federal agencies.”
Another scientist seeking redress is Temple University physicist Xiaoxing Xi, who was charged by DOJ in 2015 with illegally sharing technology with China and exonerated months later. Xi filed a lawsuit in 2017 charging that DOJ violated his civil rights. Although last year a judge dismissed most of the charges, Xi has appealed that decision.
On Feb. 14, the American Physical Society led a group of five scientific societies in filing an amicus brief in support of Xi. “The federal government has not yet been held accountable for its wrongful arrests and prosecutions of scientists. If this lack of accountability continues, the international perception that the federal government is unconcerned by its damaging errors will continue to grow,” the brief states. (APS is an AIP Member Society.)
Some scientists accused of not disclosing ties with Chinese entities are still awaiting trial, including University of Kansas chemistry professor Franklin Tao, Texas A&M University chemical engineering professor Zhengdong Cheng, and Southern Illinois University mathematician Mingqing Xiao.
Tao’s trial is scheduled to begin March 21. His lawyers have asserted that prosecutors have overstated his relationship with a Chinese university and that his case came to the FBI’s attention because of a tip from a disgruntled visiting scholar who was attempting to extort him.
DOJ prosecutors are expected to call DOE and National Science Foundation officials as witnesses in making a case that Tao knowingly violated their agencies’ disclosure policies in grant applications in 2018. However, Tao’s lawyers have sought to force DOJ to seek additional information from the agencies on whether he violated their policies as they were construed at the time. They argue remarks by other agency officials about the scope of the policies at the time indicate there is reasonable doubt as to whether Tao knowingly concealed information, citing in part statements by a DOE official that led to the dismissal of the Gang Chen case.
When asked this week about the overall status of China Initiative prosecutions that are still pending, Olsen replied he is “comfortable with those cases as they stand and their continued pursuit.”
Reactions to sunset split along party lines
DOJ’s decision to discontinue the China Initiative under its current name and to change its approach in prosecuting academics has elicited a wide range of reactions.
Advocacy groups such as Asian Americans Advancing Justice and the Committee of 100 have praised the move as an important first step toward rebuilding trust with the research community. Members of the Congressional Asian Pacific American Caucus, all Democrats, also welcomed the move, as did House Science Committee Chair Eddie Bernice Johnson (D-TX).
In a statement, Johnson called the China Initiative the “wrong solution to a real problem” and a “harmful distraction that has stoked hostility against and suspicion of Asian American and Asian immigrant scientists.”
Meanwhile, several Republicans in Congress blasted the decision. Senate Intelligence Committee Ranking Member Marco Rubio (R-FL) said in a statement it shows the Biden administration “just doesn’t understand the nature or severity of the Chinese Communist Party's threat.” On Jan. 25, Rubio also objected to DOJ’s decision to drop its charges against Gang Chen, arguing the move amounted to the administration telling universities “not to worry about Chinese espionage.”
In announcing this week's changes to DOJ’s prosecutorial approach, Olsen prefaced the discussion by outlining malicious activities the department attributes to the Chinese government, including espionage, theft of trade secrets, malicious cyber activity, and coercing Chinese nationals residing in the U.S. to return to China. He stressed that countering such activities remain a top priority.
“Make no mistake, we will be relentless in defending our country from China. The department will continue to prioritize and aggressively counter the actions of the [Chinese] government that harm our people and our institutions,” he said.
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