The US government has ended its controversial China initiative, amid growing criticism that it constitutes racial profiling of scientists and harms US scientific enterprise.
The cancellation comes after many of the Ministry of Justice’s (DOJ) criminal cases brought against academic researchers under this program have been rejected. It is unclear how the decision will affect pending lawsuits.
The initiative was created by the Trump administration in 2018 to crack down on Chinese state-sponsored espionage and efforts to steal U.S. intellectual property and trade secrets from universities and industry. However, after a month-long review, the DOJ has concluded that it ‘is not the right approach’, Matthew Olsen, Assistant Minister of Justice for the DOJ’s National Security Department, said on February 23rd.
Olsen acknowledged the significant civil rights concerns that the China initiative has “placed a narrative of intolerance and bias” against Asian Americans. ‘I am aware that some of the work in this area has given rise to the perception that we have a different standard, a lower standard for [prosecuting] people who are ethnic Chinese or have a connection to China, and that is absolutely unacceptable, ”he added.
Going forward, the investigation and prosecution of cases of academic integrity and research security will be led by the National Security Division (NSD). NSD will work with the Federal Bureau of Investigation (FBI) and other agencies to assess the evidence of intent and materiality, as well as any impact on national security, Olsen explained. “These considerations will guide our decisions – including whether prosecution is justified or whether civil or administrative remedies are more appropriate.”
In addition, new Guidance in the White House to federal funding agencies, which include procedures to address inaccurate or incomplete previous disclosures, will also help resolve such cases. “Where individuals voluntarily correct previously significant omissions and resolve related administrative inquiries, this would discourage criminal prosecution under long-standing departmental principles of discretion,” Olsen said.
Attempts must move on
In December 2021, Charles Lieber, former chairman of Harvard University, became the first and only person convicted under the China Initiative, related to millions of dollars in research funding he received from China. Lieber was found guilty of six charges after admitting misleading FBI agents and failing to pay tax on money in an undisclosed Chinese bank account. Lieber is awaiting sentencing, but faces up to 26 years in prison and $ 1.2 million (£ 900,000) in fines.
Being accused of a crime is of course catastrophic, but losing your job or scholarships can be career-ending
The DOJ has lost or abandoned several other high-profile cases in recent months. In January 2022, the board has waived his case against Gang Chen, a naturalized U.S. citizen who headed the Massachusetts Institute of Technology’s nanoengineering laboratory. He was arrested in early 2021 for fails to report ties to and funding from the Chinese governmentbut the DOJ’s case against him could not be substantiated and eventually collapsed.
University of Tennessee, Knoxville nanotechnologist Anming Hu – the first academic tested under the China Initiative – was acquitted in September 2021. Hu, a Chinese-born naturalized U.S. citizen, was accused of spying and lying to Nasa about his affiliation with a Chinese university. He lost his visa and was suspended without pay and then fired by the university. After his release, he is now back on UT’s payroll.
Xiaoxing Xi, the former chairman of Temple University’s physics department, was arrested in 2015 (before the China initiative existed) and charged with sharing sensitive technology plans with China. Also he got right when the government waived his case against him in April 2021.
It is difficult to say whether this change will affect pending cases
Experts estimate that a handful of criminal cases under the China initiative are still pending in U.S. courts, including the former chemical engineer from the University of Kansas Feng ‘Franklin’ Tao. Accused of working secretly on behalf of China and deceiving the US government, Tao is scheduled to appear in court in March.
Many legal experts wonder if the DOJ’s change of weighting could affect the outcome of these cases or Lieber’s legal team’s attempts to request a new trial or acquittal.
‘This does not erase the four years’
‘Perhaps the DOJ waited until after the Lieber trial to cancel the China initiative, just as they waited until after his conviction to announce the dismissal of Gang Chen’s case. “The annulment of the program will not have a role in relation to the sentencing of the cases currently pending or the judge’s review of Lieber’s acquittal,” he said. Derek Adamsa partner with the Potomac Law Group in Washington, DC, who used to work in the DOJ’s civil and fraud department.
“This does not erase the four years of movement in this space, and there is certainly more control in place on the researchers’ revelations,” says Adams Chemistry world. “We may see fewer criminal acts and more civil or administrative acts,” he continues. ‘Being charged with criminal offenses is, of course, catastrophic, but losing your job or having your scholarship withdrawn, or no longer being able to apply for scholarships, can be career-ending for researchers.’
Xi agrees that there will be little or no impact on existing lawsuits, referring to Olsen’s own comments on 23 February. To the question, Olsen replied: ‘I am confident in the cases as they stand and their continued persecution.’
While Xi agrees that the DOJ’s move to pursue more civil and administrative approaches to tackling grant fraud is a step in the right direction, he remains concerned that there may be an excessive effort by federal law enforcement for scientific research.
“Their job is to go after criminals and crime, whether it’s stealing IP or something like that, but they should not play the role of deciding what the funding agencies or universities should do in terms of conducting science,” Xi claims .
The American Civil Liberties Union (ACLU) represents Xi in his civil case with demands for unfair prosecution of the government. “It’s hard to say whether this change will affect pending cases,” said Patrick Toomey, a senior lawyer at ACLUs National security project.
“They have these new standards now – which include whether the violation is significant, what the person’s state of mind was, whether a technology transfer took place,” Toomey says. “So it’s going to be interesting to see how these factors play into cases that may not justify prosecution today, as they did in the past.”