Protecting Civil Rights Amid U.S.- China Competition

THE CHINA INITIATIVE

As President Trump takes office, politicians—primarily but not only Republicans—are all but certain to urge the Department of Justice (DOJ) to revive its now-abandoned China Initiative. Doing so would be a grave mistake. That program, launched during the first Trump administration, didn’t work and did great damage to Asian American communities in the process.

Under the China Initiative, the U.S. government aggressively prosecuted scientists and academics at U.S. universities and research institutions, scrutinizing Asian American researchers and others with perceived connections to China. Officials have argued that the idea of the initiative was to develop “a coherent approach to the challenges posed” by the Chinese government.

In practice, the China Initiative incentivized FBI agents and DOJ prosecutors to profile people of Asian descent as ‘spies’ and to pursue weak and flawed criminal investigations. The consequences were devastating for the people affected and for scientific research in the United States (see the Huang and Kusakawa memos elsewhere in this collection).

The China Initiative was cast as an effort to address economic espionage and the theft of trade secrets—legitimate law enforcement concerns. But many of the resulting prosecutions had no connection to espionage, instead citing alleged false statements, visa fraud, or tax avoidance. Most disturbingly, many China Initiative prosecutions were based on scientists’ alleged failures to adequately disclose their work history or international collaborations—conduct that, just a few years earlier, would have been addressed through civil or administrative processes. Under the China Initiative, these failures-to-disclose formed the basis for extraordinarily harsh criminal charges and penalties.

As part of this effort, high-ranking officials cast broad suspicion on scientists, technologists, and academics of Chinese heritage, encouraging FBI agents and prosecutors around the country to find and bring China Initiative cases. For example, FBI Director Christopher Wray described the “China threat” as “not just a whole of government threat, but a whole of society threat,” requiring “a whole of society response.” Agents and prosecutors heeded the call, subjecting individuals with academic or other scientific ties to China to disproportionate scrutiny and novel prosecution theories.

Unsurprisingly, many of the government’s prosecutions of scientists of Asian descent turned out to be irretrievably flawed. The list of failed cases is long. It includes Gang Chen, a decorated professor of mechanical engineering at MIT who was wrongly accused of failing to disclose Chinese academic affiliations in grant applications; Anming Hu, a scientist at the University of Tennessee, Knoxville, falsely accused by the FBI of having ties to the Chinese military and placed on the No Fly List; Feng Tao, a professor of chemical engineering at the University of Kansas who was acquitted of baseless charges of wire fraud and giving false statements; and Chen Song, a Stanford neurologist who was wrongly accused of visa fraud with four other scientists. That is just the start.

DOJ’s framing and focus on the “China threat”—as opposed to discrete evidence of wrongdoing—encouraged agents and prosecutors to look for people and alleged crimes that ‘fit’ the initiative. Discriminatory profiling like this produces weak cases because it is especially prone to confirmation bias. Investigators interpret findings to support a belief or suspicion, rather than examining the evidence objectively for flaws or alternative explanations.

As Republicans in Congress seek to reinstate the China Initiative, the DOJ would be wise to resist. Far better is to focus FBI agents and prosecutors on specific types of serious misconduct—whatever its origin—and to follow the evidence (see the Hung memo in this report). If economic espionage and theft of trade secrets are urgent priorities, the focus must be on investigating those specific offenses based on credible information—not on broadly scrutinizing scientists with connections to China in search of something to charge.

Further reforms would also help guard against bias and its effects. DOJ must overhaul other long-standing policies that permit racial, ethnic, and national origin profiling in the name of national security. That means closing the loopholes and gaps in DOJ guidance, and it means tightening the FBI rules that allow agents to open and pursue investigations without evidence of wrongdoing.