Almost since its creation, the Department of Justice's (DOJ) China Initiative, which targets law enforcement actions against threats from China, has been subject to criticism.
Critics' primary complaints stem from what they see as the potential for racial profiling. How can the U.S. government target an authoritarian government—which is actively looking to exploit openness with multiple agencies targeting overseas Chinese and sending hidden state agents—while avoiding racial profiling?
A poorly done rudimentary analysis of the data concluded there was likely racial bias, as 90 percent of the targets in the China Initiative were ethnically Chinese. What the study failed to discuss or account for in poor analysis of the data is that virtually all subjects in their data were employees of the Chinese state—from the People’s Liberation Army (PLA) to professors in China. The data, therefore, does not show racial bias—it merely shows that employees of the Chinese regime are the primary target.
This does not mean, however, the China Initiative has been without missteps. A case against a naturalized American professor from China, Anming Hu, ended with the judge scolding the prosecution and law enforcement for their handling of the case and dismissing all the charges. At least in this case, however, there is a clear understanding of what the government did wrong. In too many other examples, the government is providing no answers or transparency on information to support its decisions.
In the middle of 2021, multiple DOJ offices dropped charges against individuals accused of lying on their U.S. visa applications by withholding information about their affiliation to the PLA. The simultaneous and unexplained nature of the dropping of the charges raises valid questions about what prompted it. Given the DOJ's refusal to provide any explanation or evidence, questions are being asked whether the charges were dropped based upon the evidence or a political decision above the heads of the prosecutor. The lack of transparency is harming trust and decisions are being made in an impartial manner.
More recently, the case of Massachusetts Institute of Technology (MIT) professor Gang Chen has raised similar questions. Originally charged in January 2021 with wire fraud, tax fraud, and failure to declare foreign assets, the DOJ dropped all charges in January 2022. The only statement from the prosecutor was that based upon “recently obtained additional information pertaining to the materiality of Professor Chen’s alleged omissions ... we can no longer meet our burden of proof at trial.” Despite the dropping of charges, the lack of transparency by the DOJ raises more questions about whether cases are being handled appropriately.
Despite proclamations of innocence, even the DOJ press release only says charges were dropped based upon the “materiality” of the information that was omitted by Chen. It did not say that he did not omit key information. The department's lack of transparency compounds the questions by then not disclosing what information came to light during the investigation about the materiality of information. Understanding why the DOJ charged and then dropped the charges, and what information it had, are vital in determining whether good decisions or bias are motivating behavior.
Complicating matters is that the DOJ dropped all charges against Chen. Even if information did come to light that would impact the materiality of his omission on federal funding documents, this provides no justification for why charges on tax evasion and failure to disclose foreign assets were dropped. New information around omissions on his federal funding application should have no bearing on his charges over his personal finances. The government has said nothing about why those charges were dropped.
What makes this specific case so interesting is what the government did a few weeks after it dropped the case against Chen. On Feb. 7, two and half weeks after the DOJ dropped charges against Chen, the Bureau of Industry and Security (BIS) put the Department of Mechanical Engineering at the Southern University of Science and Technology on its "unverified list," making it very hard for any U.S. institutions or individuals to work with them. This matters because this is the department and university that Chen was accused of working with while allegedly omitting information of his collaboration.
Put another way, the DOJ dropped charges on Chen but the BIS under the Commerce Department declared his collaborators in China guilty. This case demands increased transparency to better understand any mistakes that might have been made and what the threats to the United States are. The government actions to drop charges against Chen while putting his partner in China on the "unverified list" are entirely inconsistent and demand transparency so the public at large and interested individuals or institutions understand the risks or mistakes by either the government or Chen. Concealing information leaving people to guess is in no one's best interest.
Because media outlets that covered the Chen case have so failed to put material information into the public domain, non-media outlets have filed Freedom of Information Act requests to obtain the funding documents submitted by Chen to try and better understand what omissions were made, and potentially uncover what information led to the dropping of charges if mistakes were made.
Americans need to have trust in the judicial and legal system. Even if mistakes were made in bringing cases, it will instill confidence to know that lessons have been learned and processes improved. The failure to provide answers over the use of taxpayer funds and public documents, such as visas given to foreign military personnel, does not engender trust that the legal system is being run in a transparent and non-political manner. The China Initiative needs greater transparency.