This piece first ran in online Asia Times.
Hard on the heel of dropping espionage charges against
Sherry Chen, the Department of Justice announced two more headline grabbing
cases of economic espionage.
One case involved 6 Chinese nationals living and working in
China and the other involved a naturalized Chinese American who was head of the
physics department at Temple University.
Even though much of the facts pertaining to these cases
remain as yet undisclosed to the public, there is much we can learn and
speculate from what is known. The lessons to be derived will be especially relevant
to all ethnic Chinese working in the U.S.
Dr. Hao Zhang was arrested on May 16, 2015 upon his entry
into the U.S. via L. A. International airport. His original plan was to attend
an international conference in Phoenix. Now he will face arraignment in a
federal court in San Jose California. His five co-conspirators are all part of the
same semiconductor company in Tianjin.
According to the DOJ
press release, Zhang and Wei Pang met as graduate students at USC around 10
years ago. They then went separate ways by joining two American companies
developing integrated circuits for the mobile phone.
Subsequently, Zhang and Pang rejoined with faculty positions
at Tianjin University and co-founded a company to design and make ICs for the
mobile phone. The press release alleged that the two founders stole proprietary
technology from their respective U.S. employers prior to returning to China.
Zhang will face a 32-count indictment.
In the New York Times article
that broke the initial story, Zhang’s arrest was accompanied by the indictment
of five others, presently residing in China.
The article goes further to point out that this was the second
indictment of the accused in absentia, the first being the indictment of 5 PLA
soldiers accused
of cyber hacking.
The intent of these high profile announcements was,
obviously, copied from the classic book of Chinese stratagems, i.e., “kill the
chicken to scare the monkey.” And, all ethnic Chinese whether they are U.S.
citizens or not better heed this warning—namely that the American law
enforcement authorities are watching and monitoring your every activity.
How did the FBI know to spy on Zhang and Pang when they were
students at USC? Because they are Chinese? The feds were certainly patient
waiting for the opportunity to pounce.
Should you experience the misfortune of actually getting
arrested, as is the case of Dr. Zhang, you are in trouble. Contrary to popular
notion that the legal system in the U.S. is fair, the scale of justice is
heavily weighed in favor of the government.
As many predecessor cases have shown, if you are Chinese,
you are guilty until proven innocent.
The institutionalized racial bias against the Chinese dates
back to J. Edgar Hoover, when he opined that the Chinese in America couldn’t be
trusted. His minions have since expanded his opinion into a carefully
structured theory to justify his bigotry. One of the more popular variant is
called the “grains of sand” theory of espionage.
According to these acolytes, China conducts spying far
differently from the more traditional means. Instead of money and sex, China
fans the sense of loyalty to the motherland and then encourages any Chinese
living in America to send any useful information back to Beijing.
Apparently there is a massive super computer sitting in some
ministry basement crunching away the collected information, and voila, out
comes the intricate design of a missile warhead or design of an integrated
circuit or even the latest organization chart of the CIA.
This may sound patently absurd to the person on the street
but the FBI finds this rationale useful for seeing
all Chinese as potential spies.
Even if you are innocent of any wrongdoing, once FBI or
other law enforcement agencies rush to arrest and prosecute, you are doomed. As
attorneys who have defended Chinese victims will tell you, the government when
facing a case falling apart for lack of proof will offer the defendant a plea
bargain deal on lesser charges for the jail time he/she may have already
served. Even a democracy like ours does not like to admit a mistake was
committed.
You say you want to demand justice and sue the government?
They can delay and delay and it could take years
for your day in court.
In Sherry Chen’s case, she was fortunate. The federal
prosecutor in this case elected to simply drop the charges and not add to her
trauma by proposing a plea bargain. We can speculate, perhaps it’s because this
prosecutor is an African American and is sensitive to the weaknesses of our judiciary.
In response to Chen’s case, Congressman Ted Lieu and 21
other members of Congress called a press
conference and sent an open
letter to Attorney General Loretta Lynch asking her to investigate as to
whether there is any policy in the federal government that targets government
employees on the basis of race.
While Congressman Lieu made it clear that he was concerned
with Chinese American citizens being treated fairly in America, there is no
reason his concern should not apply to protection from prosecutorial abuse for
non-citizens. The idea that aliens do not deserve proper due process would be a
step in the direction of Abu Ghraib all over again.
Maybe Zhang will get a break. He will appear before U.S. District Judge Edward
J. Davila of the Northern District of California. Judge Davila presided over
the civil suit Haiping Su filed against the federal
government for racial discrimination and the judge ruled in his favor. At least
he would be aware that the fed is not above prosecutorial abuse.
Carly Fiorina apparently did make the distinction
between Chinese in China and Chinese Americans. She said in Iowa, “They're not terribly
imaginative. They're not entrepreneurial. They don't innovate—that's why
they're stealing our intellectual property." And, she is running for
president?
The case against Professor Xi Xiaoxing, former head of
Temple’s physics department, is curiously different from the Zhang Hao case.
After his arrest and release on bail, there is virtually no additional media
coverage.
We do know that he is a naturalized U.S. citizen and came to
the U.S. after having attained his PhD degree from Peking University.
Apparently his expertise in superconductivity was already established
internationally before he left China.
It would appear that contrary to Fiorina’s view, he was
bringing intellectual goods to America rather than the reverse. Apparently some
of his email messages sent to China formed a basis for accusing him of
fraudulent conduct.
In light of these recent cases, it’s crystal clear that
whether you are an American citizen or not, there are certain rules of conduct
that you must heed to stay out of legal trouble:
- · If you are ethnic Chinese--or even ethnic Asian because sometimes the fed does not make any distinction--you should assume that you are under surveillance.
- · Be mindful of what you say on the phone or via the Internet. If what you say can be misinterpreted or misunderstood by the monitoring feds, you need to change the way you express your thoughts.
- · The above rules are especially relevant if you work in the technology space. Remember that the presumption is that you are predisposed to sending intelligence to Beijing.
- · Do not assume you won’t get in trouble if you send publicly available information to China for the most innocuous reasons. The U.S. is a country of laws and regulations. If the authorities decide that they want you in jail, they can find laws that you have not heard of to justify putting the handcuffs on you.
- If the FBI comes to see you, ostensibly to talk about the weather, before you agree to the conversation, do the American thing. Get a lawyer. You have that right.
The Committee of 100
has available a 3-hour workshop on “Unique Challenges and Risks for Chinese
Americans in Science and Technology.” In the interest of public service, the
Committee will present this workshop anywhere in the U.S. by cooperating with local
Asian organizations. The latter will organize and provide the venue. For more
information, contact Ms. Holly Chang, (212) 371-6565 or hchang@committee100.org.
