After the China Initiative: Seeking Accountability

The Department of Justice discontinued its controversial China Initiative in February, amid accusations that the program was criminalizing China-linked workers’ paperwork errors and spreading anti-Asian sentiments instead of uncovering actual state-sanctioned economic espionage.

The initiative, launched in 2018, did lead to multiple pleas and convictions: a hospital researcher and her husband pleaded guilty in 2020 to conspiring to steal trade secrets to sell them to the Chinese government, for instance. Song Guo Zheng, former professor of internal medicine at Ohio State University, pleaded guilty and was sentenced last year to 37 months in prison for lying on federal funding applications in order to hide his participation in a Chinese talent program and extensive collaboration with Chinese researchers. Yet numerous academics who were charged under the China Initiative but never tried or convicted say the DOJ knowingly pursued flimsy cases against them, upending their lives, with nary an apology.

Two of those professors are now seeking to hold federal investigators accountable, in their own ways. Xiaoxing Xi, Laura H. Carnell Professor of Physics at Temple University, is suing the lead federal agent on his case, among other government entities. Anming Hu, associate professor of mechanical engineering at the University of Tennessee at Knoxville, is leading international opposition to the nomination of the lead prosecutor in his case for U.S. attorney for the Eastern District of Tennessee.

Suing the FBI

Xi’s case actually predates the China Initiative, but he and his supporters say it was part of a clear and long-standing DOJ pattern of singling out Chinese American scientists for undue scrutiny. Xi was charged with wire fraud in 2015, with the government alleging that he shared superconductivity technology from a private U.S. company, about something called a pocket heater, with Chinese agents. He was arrested at gunpoint in his home in front of his family members and then interrogated and subjected to a body-cavity search while in federal custody. Several months later, the government dropped all charges. In the interim, Xi had been put on administrative leave, banned from his lab and suspended as the interim chair of physics at Temple.

Xi’s lawsuit against the lead Federal Bureau of Investigation agent on his case alleges that agents made knowingly or recklessly false statements about Xi to advance the inquiry. Xi also alleges that his arrest was at least in part racially motivated. The lawsuit, originally filed in 2017, was mostly dismissed last year. Xi and his legal team are now appealing that lower court’s decision to the U.S. Court of Appeals for the Third Circuit.

Prior to a court appearance last week, Xi said in a news conference that “one of the questions people ask me often, for example, is, ‘Has the government apologized to you?’ And my answer is no. And it’s something that people feel very unfair about. Because as individuals, if we do something, we bear the consequences. And when the FBI agents or government officials do something, they have no consequences. And so they will do anything, everything, and that is a traumatizing factor to the whole community. So I hope we can prevail.”

The American Civil Liberties Union is helping Xi with his case. David Rudovsky, one of Xi’s lawyers and a senior fellow in law at the University of Pennsylvania, said during the news conference that Xi “has been instrumental in research on superconductive technology. He’s been doing that for years, all fully legal, and he’s had communications with his colleagues in China about that research, all fully legal. Nothing confidential was provided to his colleagues there.”

The FBI “erroneously” determined that Xi had been discussing pocket heater technology with colleagues in China via email, when he’d really been discussing another technology entirely, Rudovsky said. And the inventor of the pocket heater told the FBI prior to Xi’s indictment that none of the emails in question were about the heater—but investigators pushed forward anyway, Rudovsky said, adding, “This is the key fact in the case.”

Temple declined comment on Xi’s case. Xi, a naturalized U.S. citizen, returned to teaching at Temple shortly after the federal case against him collapsed.

Opposing a Promotion for His Prosecutor

Hu’s case at UT Knoxville started in 2018, when an FBI agent accused him of being a spy based on an alleged tip of unknown origin and a Chinese news item about Hu’s part-time faculty appointment at Beijing University of Technology, which the agent translated via Google. Hu denied any wrongdoing, and the agent pressured him to become a spy for the U.S. during his work in China. Hu refused, and the agent then surveilled both Hu and his son, a student at UT Knoxville, for close to two years. Eventually, agents accused Hu, a National Aeronautics and Space Administration grantee and a naturalized Canadian citizen, of violating a 2011 law that prohibits NASA funding from benefiting China or Chinese-owned companies. Hu was charged with three counts each of wire fraud and making false statements, even though he’d previously disclosed his connection to Beijing University of Technology to UT Knoxville and sought clarification about the NASA grant restriction as it pertains to faculty members.

Hu’s first trial, in 2021, ended in a hung jury and a mistrial. His second trial later that year ended in his acquittal, with U.S. District Judge Tom Varlan writing his 52-page opinion that “even 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.”

Casey Arrowood, assistant U.S. attorney for the Eastern District of Tennessee office, oversaw the case against Hu. This summer, President Biden nominated Arrowood for promotion to U.S. attorney for the Eastern District of Tennessee. That nomination is now before the U.S. Senate Judiciary Committee—and Hu and his supporters hope it dies there.

“Based on the facts from my case, we believe that Mr. Arrowood does not satisfy the qualification of a U.S. attorney’s role of being just and fair under the law, and we ask you to rescind your nomination,” Hu wrote in a letter to Biden last month. Among other arguments, Hu said that Arrowood never should have validated the FBI’s poor case with a prosecution, that Arrowood himself didn’t understand the NASA funding law in question and that the wrongful prosecution harmed both Chinese Americans and the U.S. government’s reputation.

“The U.S. has attained international leadership in science and technology largely because this nation attracts the most talented people from across the world,” Hu wrote. “The nomination of Mr. Casey Arrowood conveys the opposite message.”

Groups such as United Chinese Americans, APA Justice, Asian American Scholar Forum and the Tennessee Chinese American Alliance all have spoken out against the Arrowood nomination as well.

Arrowood referred a request for comment to his office’s press officer, who did not respond to questions.

Members of the judiciary committee, including Tennessee Republican Marsha Blackburn, did not respond to requests for comment.

UT Knoxville said in a statement, “We are pleased and grateful to welcome Dr. Hu back to the UT faculty. To assist Dr. Hu with his immigration status, the university offered to reimburse Dr. Hu for legal fees for an immigration attorney of his choice, provided a letter of support from Chancellor Plowman, and was responsive to his needs throughout the process. All steps needed to resolve his immigration status were completed on Jan. 27. Dr. Hu was immediately reinstated to his tenured faculty position with an effective date of Feb. 1, and the campus is providing him with $300,000 in startup funds to help him re-establish his research.”

Hu said in an interview that both his case and Xi’s were “driven by racial targeting” and demonstrate a deep misunderstanding of how professors collaborate and work together across international borders.

“Professors, we use our holidays and other free time to go to other universities and lecture and have academic exchange. We present our ideas and our research to peers and other universities, and we learn from each other. None of it relates to national security. Most of our results will be published anyway.”

Hu estimated that he’d lost years of work defending himself, and he said that while he can’t get the time back, he can keep speaking out against the person in charge of his case.

Accountability ‘Starts With Transparency’

Jeremy S. Wu, co-organizer of the advocacy group APA Justice—which is part of a coalition calling for a thorough investigation of Hu’s prosecution—said that Arrowood’s “misconduct should certainly not be rewarded.” Regarding Xi’s case, Wu said he and colleagues hope that the appeal will lead to “discovery of the FBI agent misconduct in his case, a judicial review of federal immunity [for public officials] and possibly new legislation restricting immunity.”

On the idea of accountability, Wu said it “starts with transparency.” The FBI, DOJ and federal funding agencies involved in China Initiative cases “have not been transparent in disclosing the status, progress and outcome of their investigations … There are no facts except rhetoric associated with the claim of threat or what happened to the thousands of investigations. Hundreds if not thousands of researchers and scientists of Chinese and Asian descent are subject to these unaccounted and endless investigations for years.”

At one point last year, when the China Initiative was still active, the FBI said that it was opening a new Chinese counterintelligence case every 12 hours. But a precise accounting of these cases is not available. Organizations such as APA Justice can only track what has been made public, and this doesn’t necessarily include cases in which professors have been investigated and suspended from work but not charged. According to the group’s unofficial database, 24 academics and government scientists have been targeted. Of those, nine cases have been dismissed or the researchers acquitted. Some cases are pending, and the rest have resulted in guilty pleas or convictions, including for research integrity or failure-to-disclose issues that don’t clearly relate to national security or theft of trade secrets. An MIT Technology Review tracking project from late last year counted 77 total China Initiative cases with some 150 defendants, but researchers noted that the DOJ removed 39 defendants previously connected to the initiative from its own website after the Review started an inquiry.

Although the China Initiative has officially ended, Wu said he and his colleagues are concerned that the DOJ and FBI continue to pursue existing prosecutions and investigations. The APA Justice task force has requested that the DOJ release a copy of its review of the China Initiative, but it has not received a reply.

In sum, Wu said, “we seek accountability through existing and new policies, practices and laws.”

On a single positive note, Wu said that the DOJ updated its indictment announcement for Hu with the following statement, something Wu said he hadn’t seen before: “The defendant in this case, Anming Hu, was acquitted by the court of the charges alleged in the indictment described in the press release below.”

Mae Ngai, Lung Family Professor of Asian American Studies and professor of history at Columbia University, said the China Initiative was a “despicable and blatant case of racial profiling by the Trump DOJ, intended to inflame anti-China sentiment, both protectionist and nativist.” And with few exceptions, she said, “too many universities—afraid of losing their funding—threw their Chinese scholars and faculty under the bus.”

Ngai said the Biden administration also was “extremely slow in shutting down the program. It has unfortunately embraced the view, initially promulgated by Trump, that China is a strategic adversary. This will only lead to more racism against ethnic Chinese in the U.S. There’s already self-censoring and avoidance of the U.S. by international scientists. The impact on science, which depends on international collaboration, is potentially devastating.”

To Hu’s point about China Initiative cases still being active, Mingqing Xiao, a professor of math at Southern Illinois University at Carbondale, was sentenced this week to one year of probation after being found guilty of filing incorrect tax returns and failing to report a foreign bank account.

According to Science, prosecutors asked District Judge Staci Yandle to impose a one-year prison sentence, but Yandle said that served no purpose.

Ryan Poscablo, Xiao’s lawyer, said following the sentencing, “These tax charges were more worthy of civil remedies, if they were worthy of any enforcement action, and would never have been brought but for the charging of grant fraud for which Dr. Xiao was ultimately acquitted.”