DOJ’s Crackdown on Chinese Espionage Comes Under Fire, But Some Argue Program is Necessary to Counter CCP Infiltration

U.S. Attorney General Merrick Garland speaks at the Department of Justice in Washington, on Jan. 5, 2022. Carolyn Kaster/Pool/Getty Images

News Analysis

The Department of Justice (DOJ) is completing a review of its anti-espionage “China Initiative,” which critics of the program hope will result in a shift away from its controversial targeting of academic researchers.

The news follows numerous allegations of racial discrimination and misconduct leveled by academics and civil rights advocacy groups. It is now believed that the Biden administration will pull back its efforts to target academic researchers as part of the program and reorient to focus more clearly on espionage-related cases.

Though some groups have called for the wholesale abolition of the program, defense and security experts believe that the initiative is necessary to stem the tide of technology theft being perpetrated by the Chinese Communist Party (CCP). Thus reforming the program is preferable to repealing it, they say.

“The China Initiative, I do think it’s necessary,” said Timothy Heath, a senior defense researcher for the Rand Corporation, a defense-focused think tank.

“I think that what we’re already finding is that this competition with China is going to be tough. Current policies are headed in the right way, but additional measures are necessary in order to keep pace with how much China is stealing and carrying out influence activities in the U.S,” Heath said.

“What [the  DOJ] could do better is to message that what the Justice Department is trying to do is stand up and protect ethnic Chinese Americans from the Communist Party and it wants to be an ally of, and work with the ethnic Chinese American community to guard against illegal CCP efforts to carry out espionage, recruit, subvert, and carry out political influence activities.”

Attorney General William Barr participates in a press conference at the Department of Justice along with DOJ officials in Washington, on Feb. 10, 2020. Sarah Silbiger/Getty Images

What is the China Initiative?

The China Initiative was launched by the Trump administration in 2018. Its purpose was broadly to counter national security threats stemming from the CCP’s use of espionage, fraud, and cybercrime against the United States.

The effort tended to be associated at first with the trade war between former president Donald Trump and CCP leader Xi Jinping, though experts had long warned of CCP efforts to use legitimate institutions as cover for its espionage efforts.

Former attorney general William Barr called the CCP’s efforts to steal from and infiltrate the United States a “technological blitzkrieg.” The technologies targeted for stealing, Barr said in 2020, could be found in Beijing’s “Made in China 2025” plan, which lays out core technologies the regime aspires to dominate in the future—including artificial intelligence, pharmaceuticals, and aerospace.

U.S. officials have also warned that by partnering with private enterprises and academic research institutions in the United States, the CCP could adroitly exploit research and technology being developed in the United States to the benefit of its own military, the People’s Liberation Army (PLA).

Likewise, FBI director Christopher Wray said in 2020 that almost half of the FBI’s nearly 5,000 counterintelligence investigations were connected to China. In February, he said that over 2,000 cases were directly tied to CCP efforts to steal information or technology.

According to a November statement by the DOJ, roughly 80 percent of all its economic espionage charges concern cases that would benefit the CCP in some way.

“The [CCP] have made no secret of their desire to dominate the most cutting-edge technologies and industries, and they have directed their bureaucracies and officials to acquire those technologies through whatever means necessary,” Heath said.

The China Initiative was thus founded to root out hidden threats and prevent the CCP from gaining competitive advantage by stealing technology and trade secrets from U.S. firms, technology startups and research institutions.

Who is Targeted and Why?

The China Initiative has leveled charges against at least 162 individuals to date and most of the associated legal battles are still ongoing.

Among the Initiative’s successes are the arrest and conviction of ex-CIA operative Jerry Chun Shing Lee for leaking information regarding CIA activities to the CCP; Xu Yanjun, a Chinese intelligence officer who attempted to recruit spies in America and steal aviation technologies; Zheng Yan, who led a group that attempted to export military boats to China; and Xuehua Peng, who provided U.S. intelligence information to Chinese officials.

Such victories have made the program a valued tool for legislators concerned about malign CCP influence in the United States.

“As a former federal prosecutor who worked on counterintelligence threats from the CCP, I appreciated the prior administration’s establishment of the DOJ’s China Initiative to bring focus to this very real threat,” said Rep. Michael McCaul (R-Texas) in an email.

McCaul pointed to statements made by Wray in January, when he said that a China-related investigation counterintelligence was opened every 12 hours.

“Weakening our response to this threat would be a failure of law enforcement and another sign that this administration is retreating from those who wish us harm,” McCaul said.

Part of Beijing’s “whole-of-society” effort to obtain foreign technology involves the use of “non-traditional collectors,” such as academics and company employees, according to the FBI. Such individuals have also been targeted by the initiative.

Such cases include those of Candace Claiborne, a public servant who traded State Department documents for gifts from the CCP; You Xiaorong, who stole trade secrets from her employer, Coca-Cola, for a Chinese business; and Li Chen and Yu Zhou, researchers who secretly established a company in China where they marketed products and services based on trade secrets they stole from their employer, the National Children’s Hospital.

Charles Lieber leaves federal court after he and two Chinese nationals were charged with lying about their alleged links to the Chinese government, in Boston, Mass., on Jan. 30, 2020. Katherine Taylor/Reuters

Further, a large number of researchers caught in the crosshairs of the DOJ were charged with procedural offenses, namely with lying about or failing to disclose their ties and funding arrangements with Chinese institutions. The most notable case was the December conviction of former chemistry chair Charles Lieber, who was found guilty of charges relating to lying about his links to the Chinese state-backed recruitment program “Thousand Talents Plan.” While participation in the program is in itself legal, U.S. officials have described the plan as a conduit through which American technology and know-how are transferred to China.

In all, 24 China Initiative cases are based on charges related to making false statements, visa fraud, or wire fraud.

This cohort of cases concerning researchers has become a lightning rod of criticism, with some arguing that such targeting has been heavy handed, as well as unwarranted given the DOJ has apparently struggled to demonstrate that harm was done.

Many of the initiative’s big-ticket cases have been marred by a series of apparently mishandled cases against researchers in the United States.

Most recently, the DOJ brought charges of fraud and lying on official documents against a Massachusetts Institute of Technology professor, Chen Gang, only to have them dismissed after prosecutors admitted they could not prove that Chen had hidden ties to China when seeking federal grant funding for his research.

Tang Juan

In a separate incident, Tang Juan, a biology researcher at the University of California Davis, was arrested in July 2020 for allegedly lying on a visa application about her service with the PLA.

The FBI did not inform Tang of her rights during the arrest, however, including the right to refuse to answer questions, and her case was dismissed in July 2021 after she spent had 10 months between jail and house arrest.

Likewise, the DOJ dropped its charges against five visiting Chinese scientists who were accused of lying about the extent of their ties to the Chinese military. It offered no explanation as to why the charges were dropped.

Lawmakers demanded to know what the cause was, but were told only that there were “recent developments.” Others, meanwhile, expressed concerns that the program was being dismantled due to pressure from above by the Biden administration.

The DOJ’s decision to abruptly drop several of its cases has also increased fears of racial discrimination and an intelligence community run amok, as critics of the program take the hastily put together cases as evidence of an anti-Chinese bias. As such, the initiative’s targeting of academic researchers, the overwhelming majority of which have been ethnic Chinese, has come under intense fire.

There are yet efforts to maintain the program, however, amid a prevalent belief that it does in fact improve national security.

Sen. Marco Rubio (R-Fla.) on Capitol Hill in Washington on Feb. 23, 2021. Drew Angerer/Pool/AFP via Getty Images

“The long reach of the Chinese Communist Party is a real and present danger to the United States,” said Sen. Marco Rubio (R-Fla.) in an email. “Beijing is rabidly pursuing American secrets and seeking to gain influence.”

“The China Initiative is a step in the right direction to confronting this problem. While there is more work to be done, canceling the initiative altogether would leave us without a plan to confront Chinese espionage and sends a dangerous signal that the U.S. is not seriously focused on combating the Chinese Communist Party.”

Problems Both Real and Imagined

As the Initiative has drawn on, it has increasingly been accused of mishandling cases, fueling racism, and stifling innovation. Some criticisms appear warranted, others less so.

For instance, several publications attacked the program for a perceived lack of results. Perhaps the most widely cited of which was a study by the MIT Technology Review, which cast the initiative as a simultaneously bumbling, shadowy, and failed attempt to improve national security.

That study drew fury towards the program by implying that it was failing to find wrongdoing. Its authors stressed that “less than a third” of the initiative’s cases resulted in a conviction.

Those findings are misleading, however. Indeed, the assertion obfuscates the fact that some 48 percent of the cases documented by the MIT Technology Review have not been concluded at all, meaning that they still could result in conviction.

The results of concluded China Initiative cases as of Feb. 22 2022. Source: MIT Technology Review

Indeed, of the 59 cases listed by MIT as having been concluded, 45 resulted in either a guilty plea or a guilty verdict—meaning that over three-quarters of those cases have concluded in a DOJ victory.

Of those cases that have concluded, one resulted in a pardon, one in a mistrial, one in a settlement, two reached a deferred prosecution agreement, nine were dismissed by the government, and 45 resulted in a guilty plea or verdict.

The status of unconcluded China Initiative cases as of Feb. 22 2022. Source: MIT Technology Review

Another problem is the 70 cases that MIT labeled simply as “pending with little activity.” These charges are unlikely to be resolved any time soon, but not for lack of evidence.

In most such cases the accused is currently considered a fugitive, and has fled back to mainland China, or was in China the entire time, like the spate of Chinese state-sponsored hackers charged in the past few years. Perhaps as a point of credit to the program, many alleged CCP military-linked researchers fled the country after the U.S. government ramped up investigations of PLA-tied students and imposed visa restrictions targeting such individuals.

Concern over how the program is being handled, fueled in no small part by the claims of studies like that in the MIT review, have created something of a culture of fear in the academy, and particularly among ethnically Chinese researchers and scholars.

To this end, Brown University President Christina Paxson expressed concern that tighter federal government scrutiny of links with China among U.S. universities would hinder research and ultimately undermine the American economy.

Concerns About Race and Association

There are growing signs that public impression of the program and its failed cases against researchers has chilled the amount of international research being done between China and the United States, and that it has frightened ethnic Chinese researchers in America.

A joint survey conducted by the University of Arizona and the Committee of 100, a nonprofit group focused on improving Sino-American relations, found that over 42 percent of scientists of Chinese heritage felt racially profiled by the U.S. government, compared to just eight percent of non-Chinese surveyed. More than half of Chinese scientists felt fear or anxiety about being surveilled by the U.S. government.

Among Chinese scientists in America who conducted research that involved China in the last three years, over 40 percent actively worked to limit their collaboration with counterparts in China. Out of that number, 61 percent said they did so specifically because of the China Initiative.

Further, 42 percent of Chinese scientists said that they were now considering ending their time in the United States because of the initiative.

Thus, regardless of its positive effects on national security in the immediate term, the China Initiative does risk a negative effect on the amount of international scientific research being done in American universities, which could hurt the nation both economically and in terms of security in the future.

This is due to two interrelated factors. The first being that, by losing the talent of Chinese researchers who would otherwise come to the United States, the United States is preventing itself from drawing all the best talent that it can.

The second is that, by remaining in China, whatever research those Chinese researchers conduct will invariably fall into the hands of the CCP, which maintains a policy of military-civil fusion which explicitly states that civilian technology and research must be to the benefit of the Chinese military.

A commentary published by the CATO Institute, a libertarian think tank, expounded on this idea by defining the problem of the China Initiative in terms of freedom of association.

It argued that, because the initiative apparently sought to charge researchers for their association to entities that may present a threat to national security, rather than actually being a threat themselves, the program was undermining the right to freedom of association, which has long been recognized as a covered under the first amendment.

To be sure, the lines do blur. Because of the CCP’s military-civil fusion, it is impossible to tell what is military and what is civilian because everything is both simultaneously.

This makes the process of defining appropriate and inappropriate associations very difficult, as is well documented in the case of MIT’s Chen Gang. Even though the DOJ dropped all charges against Chen, the Commerce Department’s Bureau of Industry and Security put the Chinese department that Chen had been working with on its “unverified list,” making it more difficult for anyone in the United States to continue working with it.

The incident raises questions at the crux of the concept of free association: If a department in China is working to steal from the United States, ought a U.S.-based researcher be held accountable for working with them, even if they had no knowledge of such motive?

Moreover, if the CCP is primarily associating with ethnically Chinese researchers, how can the DOJ prevent racial bias in its efforts?

Attorney General William Barr participates in a press conference at the Department of Justice along with DOJ officials on Feb. 10, 2020 in Washington, DC. Barr announced the indictment of four members of China's military on charges of hacking into Equifax Inc. and stealing data from millions of Americans. Sarah Silbiger/Getty Images

The CCP Intentionally Targets Ethnic Chinese

In addition to whom the Initiative is targeting is the less spoken of but equally important issue if why they are being targeted.

The vast majority of those charged under the initiative are ethnically Chinese. It is a simple fact that, according to Heath, would be immensely difficult to get around precisely because the CCP makes a concerted effort to pressure, implicate, and control people of Chinese descent.

“Certainly, I agree with critics that you have to manage the program in a responsible way and avoid as much as possible unnecessarily discriminatory and provocative accusations,” Heath said.

“It’s tough, you know. It gets to an issue with the Chinese approach to espionage, and that is to target ethnic Chinese people, and it’s hard to get around that fact. That is who the PLA targets. That is who the Chinese government targets.”

Indeed, ten of the DOJ’s ongoing China Initiative cases are against individuals alleged to be part of Operation Fox Hunt, a covert CCP program launched in 2014 that aims to harass, surveil, and intimidate Chinese citizens living overseas.

In these cases, the accused are alleged to have been recruited by the CCP to harass or intimidate ethnic Chinese abroad. In one such case, Chinese agent Xu Yanjun is alleged to have downloaded 200 family photos of a GE employee, whose family is in China, in an effort to coerce the employee into becoming a spy.

“They try to play on a sense of ethnic kinship, and they exploit any cultural background that’s related to China to recruit and influence people,” Heath said. “Therefore, you just can’t avoid that that is going to be an issue when you try to counter those types of efforts, because the same people will be the subject of scrutiny.”

Heath said that, despite the current difficulties, there were paths forward to both ease tensions and increase inclusion of ethnic Chinese in America while still combatting malicious foreign influence.

“One helpful thing is that the Initiative has drawn attention to a problem that I don’t think previously got a lot of attention, and that was the efforts of the Chinese government to coopt, subvert, and recruit Americans of ethnic Chinese heritage,” Heath said.

“I think a way to try to counter… unfair suspicion, discrimination and prejudice, is to publicize what we know about the [CCP] strategies and efforts to target ethnic Chinese people,” Heath added.

But he also stressed that agents for the CCP were never restricted to any one race.

“Just bringing to attention to the public that the threat is the Chinese government, and not ethnic Chinese people, and that anybody can be an agent [would help],” Heath said. “It’s not just Chinese people. It can be white people, it can be black people, it can be anybody.”

A Necessary Effort, but Reform is Needed

No hard evidence has been brought forward to suggest that the DOJ has engaged in racial discrimination during the conducting of its China Initiative. The program has, indeed, highlighted numerous vital threats to national security in the form of CCP infiltration into civilian sectors.

The China Initiative does appear, however, to fail to meet basic standards of transparency expected by any free society, and its method of charging individuals without clear evidence and dismissing some charges without clearly stating its reasons gives critics reason enough to question its competency in pursuing the matter.

Until such transparency is achieved, ethnic Chinese in America may feel caught between two hunts.

On one side is the CCP’s effort to coerce and intimidate them into working against the United States and to subvert their will to that of the CCP. On the other is a fear of being wrongfully caught up in the United States’ frantic efforts to prevent anyone and everyone from association with CCP-sponsored individuals and institutions.

At the end of the day, Heath believed that the initiative could continue its successes, mitigate its failings, and further improve the security of the nation. To achieve that, the DOJ merely needed to clearly and unambiguously state how its efforts were designed, not to question Chinese in America, but to protect them.

“[By] messaging the importance of standing up with Chinese Americans, political leadership can clarify… to Chinese Americans and send the message that Chinese Americans are an asset to America, not a suspicious group,” Heath said.

“The more the U.S. government and Justice Department puts out that message, I think the better it helps clarify what they’re trying to do and clarifies the message that it’s the CCP that is the issue.”

“Chinese Americans are our people,” Heath added. “They are no different than anybody else… They’re Americans and the government has an interest in helping to protect them from foreign influence and that’s what it’s trying to do.”