Peter Liang is Unlucky to be an Asian New York Cop

This piece was first posted on Asia Times.

The American scale of justice is tilted not only against black Americans but also against Asian Americans. The conviction of NYPD officer Peter Liang once again demonstrates that a white officer could shoot a black man in the back and not pay a price, but if an Asian officer’s ricochet bullet accidentally kills a black bystander, he faces a potential prison stay of 15 years.

Peter Liang arriving at Brooklyn Supreme Court on day of conviction.

Unfortunately for Liang, the presiding judge, Danny K. Chun, who will be pronouncing his sentence in April is also an Asian American. Whereas a white judge or a black judge might enjoy the independence to rule, based on the merits and circumstances, the Asian judge may feel compelled to levy a harsh sentence so that he can’t be accused of being soft on another Asian; in other words not being guilty of reverse racial prejudice.

Photo of Akai Gurley and Brooklyn housing project where he was shot.

According to the reports in the ethnic press, the basis for Liang’s conviction was that he should not have had his finger on the trigger. Without the finger on the trigger, his gun would not have discharged. He and his partner officer were in the dark stairwell of a notorious housing project and they did not know that Akai Gurley, an unarmed African American man, was on the stairs.

Thanks to a compilation by the New York Times (fatal police encounters), there is a history of police shootings of unarmed black men in New York City and how these cases were disposed of could serve as a guide for Judge Chun as he weighs the circumstances in arriving at an appropriate sentence in Liang’s case.

Teenager Nicholas Heyward, only 13, was holding a toy rifle when Officer Brian George fatally shot him. The Brooklyn district attorney did not even present the case to a grand jury because the toy gun was at fault for appearing overly authentic.

Akai Gurley’s aunt speaks to a crowd outside the NYPD’s headquarters on Friday after the conviction of officer Peter Liang.

Amadou Diallo was a 22-year old immigrant from Guinea, who was shot by four officers at his apartment building in Bronx. The officers thought he had a gun and fired 41 times at him. The four white officers were acquitted of 2^nd degree murder and other charges.

Patrick Dorismond then 26 was an unarmed black security guard shot dead by an undercover narcotics detective, Anthony Vasquez. The grand jury decided not to file criminal charges against the detective because the shooting was not intentional.

Ousmane Zongo then 43 had the misfortune of looking very black and in the Chelsea warehouse when the police staged a raid trying to catch CD counterfeiters. He was shot and killed by a white officer who was convicted at the second trial and the judge sentenced him to probation on the grounds that he was poorly trained and supervised by the Police Department.

Another teenager Timothy Stansbury, then 19, was in a hurry to attend a party and took a rooftop short cut. The white officer patrolling the roof shot him dead and the grand jury declined to indict the officer. He was suspended without pay for 30 days by the NYPD.

Sean Bell then 23 sat in a car on his wedding day with two others. Five detectives fired 50 times into the car killing Bell. After a nonjury trial, the judge found the detectives not guilty of all charges.

The most recent case that caught national attention was Eric Garner, then 43, who died in custody due to the chokehold the white officer used on him, a hold banned by the NYPD for more than 20 years. The grand jury declined to bring criminal charges against the officer. Garner’s death happened just four months before Gurley’s shooting.

Killer cop protest poster focusing on Liang

In every case, the victim was black and the officer was white. Even though the officers involved did not go to jail, the City of New York must have felt some responsibility and paid monetary compensation to all the victims’ family in the order of millions of dollars.

If Judge Chun needs any precedents to guide his sentencing, the above-mentioned cases should offer plenty. Liang was inexperienced and poorly trained. He was scared and his gun went off by accident. Hitting Gurley was strictly unintentional. Action in the line of duty has never been a cause for criminal conviction — at least that has been the case for cops that weren’t of Asian ancestry. The judge has ample justification for sentencing Liang to probation, but will he?

Unfortunately for Liang, tipping the other side of the scale of justice is the “Black Lives Matter” movement. This is a nationwide movement born out of an accumulation of white police brutality against young black men. The anger is directed against the white police forces in this country.

As Frank Wu, former dean of Hastings Law School, pointed out in the Huffington Post, Asians along with Latinos and Blacks are on the same side of the racial divide not on opposite sides. The injustice is white vs. all the colored minorities. Liang is unlucky to become a cause celebre just when the emotional cauldron is at full boil.

The smoke and mirrors of the wizards of Washington

This piece was first posted on Asia Times.

A recent CBS 60 Minutes installment called their segment the ‘Great Brain Robbery of America.’ Their website reads:

“The Justice Department says that the scale of China’s corporate espionage is so vast it constitutes a national security emergency, with China targeting virtually every sector of the U.S. economy, and costing American companies hundreds of billions of dollars in losses — and more than two million jobs.”

According to John Carlin, who is the assistant attorney general for National Security with responsibility for counter-terrorism, cyber attacks and increasingly economic espionage, “Thousands of companies are being victimized.”

Hmm. Hundreds of billions of dollars, millions of American jobs and thousands of companies victimized by theft of trade secrets. Really? If 60 Minutes had hard evidence to back up the extravagant claims by the government, they weren’t sharing with the public.

Thus it’s appropriate to take a tour behind the curtains and see what these wizards of Washington are using as smoke and mirrors to conjure up the unimaginable destruction being wreaked on America. Or maybe it’s not smoke and mirrors but all real.

Congress enacted the Economic Espionage Act (EEA) in 1996 to prosecute two kinds of related criminal offenses18 U.S.C. § 1831 applies to economic espionage with knowledge or intent to benefit a foreign power

• 18 U.S.C. § 1832 applies to theft of trade secrets with knowledge or intent that will injure the owner of trade secret

The trade secrets and economic espionage statutes were further toughened in 2012. There were other federal statutes that regulate export and arms sales. Many of these statutes were in the books long before the EEA.

Altogether there are 17 federal agencies, among them FBI and Homeland Security, with jurisdiction over these statutes and making sure exports don’t end up in wrong countries and trade secrets are not illegally sold to unsavory bidders. How many criminals have they caught in the interim 19+ years since 1996?

Official government compilation of criminal activity is difficult to come by, especially any with some modicum of precision. Infractions on export regulations are especially challenging because the regulations kept changing depending where the export destination sit on the Cold War hostility meter. Export regulations also contains a “dual” use provision, whereby a product being shipped to a civilian destination is approved but becomes a violation if it was going to a military destination next door. One go-to source for a compendium of criminal export activity could not be found.

The Department of Justice (DOJ) with its vigorous public relations efforts would have us believe that this country is suffering from rampant economic crimes committed especially by agents from China. Fortunately, I did find compilations of EEA-related violations committed since the enactment of the statutes in 1996, and therefore it was possible to see if data on actual criminal activity match the intensity as suggested on the 60 Minutes webpage.

According to Thomas J. Nolan, Palo Alto-based defendant’s attorney, who wrote a review on ‘Trends in Trade Secret Prosecution[1],’ there were, up to July 1, 2015, a total of 137 EEA-related cases involving 197 individuals since 1997 after EEA were enacted. Of the total, 39 cases involved China in some way, by far the most among the foreign countries, but nonetheless amounted to less than 30% of the total recorded cases and well under 3 cases per year.

Nolan noted that the average length of jail sentence for those with Chinese surnames average more than twice as long as those with non-Chinese surnames (32 months vs. 15 months). And, they were much less likely to be given probation without any jail time than the general group. You can say we have prima facie evidence that the government has a bias against Chinese Americans.

Nolan pointed out that in 2012, the United States Department of Defense released a report asserting, “Chinese actors are the world’s most active and persistent perpetrators of economic espionage.” In February 2013, the White House issued a memorandum entitled “Administration Strategy on Mitigating the Theft of U.S. Trade Secrets” which, although a broad description of the Administration’s strategy, repeatedly refers to cases involving allegations of theft by the Chinese government and Chinese companies. These government documents contributed to the demonizing bias against defendants with Chinese surnames.

According to his survey, the government dismissed charges against about 10% of the defendants before their cases came to trial. This estimate was likely on the low side since retroactive tracking of government cases will find convictions but may miss cases that were dismissed. The federal agencies not wanting their mistakes exposed publicly for too long were more likely to remove these from their website. Of course certain cases of wrongful arrests may have never reached the stage of being reported on the website and were not included in such tabulations.

My colleague and fellow member of the Committee of 100, Jeremy Wu, has been consolidating and maintaining an independent compilation of economic espionage cases[2].  He found other cases relate to China and Chinese nationals and Chinese Americans that were missed in Nolan’s compilation or having taken place since Nolan stopped monitoring.

By Wu’s count, there have been a total of 50 cases involving China or Chinese surnames, about three quarter of the cases involved trade secret charges (i.e., 18 U.S.C. § 1832) and did not rise to the level of actual economic espionage on behalf of China (18 U.S.C. § 1831).

What are we to take away from this?

Of the 50 cases in Wu’s tabulation, 35 are closed. Contrary to DOJ’s jubilant claims of over 90% conviction rate, 9 of the cases were dismissed or found not guilty and 3 other cases were settled with pleas to lesser misdemeanor charges. The latter resolution was most likely so that the government can claim victory and the defendant can go on with their lives. Altogether, more than one third of the cases did not lead to conviction by the government.

Even with Wu’s higher total, it’s still well under 3 cases of EEA violations every year with more than 25% chance that the charges were groundless. Even if the guilty spend twice as long in jail as the non-Chinese, the sentence of thirty some months does not seem consistent with the gravity of the government charges that these crimes are costing us “billions of dollars and millions of jobs.”

In short, the findings cannot support the hyperbole from DOJ aimed at demonizing the bilateral relations between the U.S. and China.

As we know from recent cases related to Sherry Chen and Professor Xi Xiaoxing, it’s relatively easy for an innocent Chinese American to become a victim of prosecutorial overreach. The predisposed bias against individuals with Chinese surnames is built in by our government’s attitude and method of operation[3].

The government magnified the seriousness of their charges while dispensing any need for due process by failing to conduct any investigation that would establish the findings beyond reasonable doubt. Having identified someone with a Chinese surname seems sufficient evidence to go ahead with prosecution.

Even if the government can successfully convict 3 cases of EEA violation every year, surely such a record cannot justify the human cost of the case where a mistake was made. Unfortunately there is no way to systematically compile cases of prosecution abuse so that we cannot measure the magnitude of damage being done to the Chinese Americans.

In the case of Sherry Chen, her legal defense bills amounted to hundreds of thousand dollars. Her reputation will take years to recover and she is still expected to battle to get her old job back. Let’s not forget that before her misfortune, she was a contributing American citizen punching above her weight for society.

Congress must quickly enact a new legislation to allow victims of wrongful prosecution to fully recover their legal fees and return to their original employment. Can an alleged world leading democracy do any less?

[1] This document not known to be published were shared by the author with Jeremy Wu and is posted in Wu’s website.

[2] I could not have written this commentary without Jeremy’s insight drawn for his careful and tireless collection of the data found in http://bit.ly/FedCasesLI.

[3] A national petition drive led by eminent scientists and Nobel Prize winners are demanding an open investigation on whether racial profiling was applied to Chen and Xi.

Norman Hsu, the ghost of US elections past

First appeared in Asia Times. 

The resurfacing of Norman Hsu reminds us that he was a well-known bundler for Hillary Clinton just two election cycles ago. Today he is ensconced in prison making $40 per month as a high school tutor for his fellow prisoners.

By giving his first interview since he was convicted and sent to prison (WSJ, 8/12/15), we are reminded that he once lived the American dream. He took money for the gullible promising handsome returns. He then gave some to the politicians. The photo-ops with politicians gave him credibility, which enabled him to take more money from more gullible people.

Instead of merely taking money from the later investors to pay off the early ones, his cutting politicians in on the take gave his Ponzi scheme an extra twist. OK, according to the Journal article, he didn’t siphon from funds he raised so much as he badgered his investors into making political contributions directly to the candidate. After all, he was making so much money for the suckers that they should be happy to donate just to stay on the good side of Hsu.

Norman Hsu and Hillary Clinton at 2005 fund raiser

As anyone running a Ponzi scheme can tell you, you have to bait your scheme by giving away money to early investors in order to establish credibility. Hsu gave money to politicians and gained even greater credibility and faster.

At the time of Hsu’s arrest, the mainstream media made a big deal out of his being a Chinese from Hong Kong. Rush Limbaugh among others suspected conspiracy from the sinister Mainland China. The anti-China hysteria raised during the Wen Ho Lee scandal and alleged campaign finance irregularity had not yet gone away. If some white guy had tried the con, the case would have been nowhere near as sensational.

Being Chinese had nothing to do with Hsu’s con. He was simply taking advantage of the flaw in the American political process. He understood that politicians gravitate towards the rich and famous, because the rich and famous can write big checks and can influence others to do the same.

If the campaign fundraisers are really good at it, they are called bundlers. If they step over a fine line and violate the law, they become launderers. Successful bundlers get recognition and status. If the candidates they support get elected, they get appointed to positions in the government. At the very least, they get access and can claim to have influence in high places.

This is the American democracy in action. It’s all about money. To get elected, the candidate has to raise lots of money. Once elected, the successful candidate has to raise more money so as to scare potential rivals into not running against him or her again. The strength of any candidacy is measured by the amount money in his/her war chest.

Today only money talks. Hsu simply used the system to create a new persona for himself. Others have done the same before him and others will follow. If they are not ethnic Asians, they will not be noticed.

Media’s attention has focused on the scoundrel but not the system that makes such scoundrels possible. Yet it is the system that is corrupt. In America, democracy is no longer one person, one vote. It is $1 million (or some amount depending on the office but increasing with every election) one vote. It is not possible to even run for local city council without raising a lot of money. Small wonder, public interest and voter participation is declining.

It’s laughable to go around the world telling others to be more democratic and be more like us when our system is badly broken and not one any other country would wish to emulate.

Rules of Conduct for Chinese Working in America

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.

One Asian American View of Affirmative Action

This piece first appeared in Asia Times.

Elite Ivy League schools belong to the elites, right? Turns out the answer is complicated. The lawsuit filed by a consortium of Asian American organizations against Harvard’s admission policy last Friday is attempting to address one facet of this question.

The suit contends that Asian American applicants for admission with same noteworthy academic achievement and evidence of leadership as applicants of other races are more likely to be rejected. If admission criteria were race neutral and based merely on merit, this situation would not exist, so claims the suit.

Asian Americans make up about 5.6% of the U.S. population and 21% of Harvard’s incoming freshman class, but the suit contends that without a quota restriction, the rate of admission for Asian Americans would be even higher. In the case of the University of California where race based quotas are not legal; the presence of Asian American is far higher. At UC Irvine, Asian makes up the majority of the student body.

Aside from not wanting a venerable institution of higher learning that dates back to the 17^th century, like Harvard, overrun by Asians, the admissions office of Harvard and fellow Ivy Leaguers face a real conundrum.  

Some of the seats have to be reserved for the so-called legacy candidates. “Legacy” usually means offsprings of alumni who have been important financial donors to the school. Any student arriving for first day of school in a Ferrari could be presumed to be a legacy admission.

Others in the name of diversity and affirmative action are set aside for ethnic groups that are otherwise under represented, meaning the blacks, Hispanics and native Americans. These applicants would not qualify for admission if based purely on their academic and school activity records.

Unfortunately lowering the bar to admit students without the necessary grounding and academic preparation may not be doing these students any favors. Getting overwhelmed by the rigors of academic demands, they risk dropping out disillusioned and disappointed and never recover from the loss of self-esteem.

It’s fundamentally counter intuitive that under privileged kids subject to 12 years of under preparation and poor academic training can be expected to suddenly catch up and do well when plunged into an elite university. 

Just as not all kids driving a Ferrari got in the back door with a lower bar, not all blacks and Hispanics got in because of special dispensation. Unfortunately for them, others will always wonder if they got on campus on their own merit.

Admittedly questioning that sort of ambiguity is far less consequential than having an affirmative action policy in college admissions—If admitting some under qualified students can give the American society the cover to stop feeling guilty over the social injustice of depriving the kids in the ghetto a chance for a quality K-12 education and a better life.

The real solution, of course, is not at the college admission level. The real solution has to begin at early levels of education. We have to be willing to invest in quality schools at every neighborhood and for every child and give everyone an equal opportunity from the beginning.

If that goal is not realistic and realizable, a compromise solution is to establish a special preparatory school for under privileged students with real potential and desire to succeed. Let these students study intensively for one or two years and be properly primed to succeed in college.

The mission of an elite school is to attract exceptional students and generate outstanding graduates. That’s how they will maintain their reputation as a top school.

Ultimately, whether it’s a Barack Obama or a Jeremy Lin walking on campus, it’s being American to presume that they walked in the front door and belong there.

Full disclosure, my daughter, Denise, attended Harvard and majored in premed biochemistry. However, I don’t think she faced any reverse discrimination because there weren’t as many Asians applying then (about 35 years ago). After Harvard she did go on to medical school but then took on a successful career in public health.

My response to Carly Fiorina

Bloomberg Politics reported part of the speech aspiring presidential candidate, Carly Fiorina, gave in Iowa. My friends and blog readers are quite upset over this and urge me to come up with a response.

Here is what she said, "I've been doing business with the Chinese for decades and I will tell you that yeah the Chinese can take a test, but what they can't do is innovate. They're not terribly imaginative. They're not entrepreneurial. They don't innovate—that's why they're stealing our intellectual property."

Every American politician worth twenty-five cents or more knows full well that trash talking about China is a way to achieve a dollop of notoriety. Carly is not being innovative nor imaginative when she copies that approach to show her credentials as a nascent politician. On the other hand, there isn't much intellect in the property she commandeered. 

Carly's last real job as CEO of H-P was to transform heretofore the most admired iconic company in Silicon Valley into a steady decline towards mediocrity. She definitely left the company in much worse shape than she found it. Even so, she surely should have noticed that H-P and for that matter all the companies in Silicon Valley would be mere shadows of their robust selves if all the Chinese staff were to disappear.

It's a bit startling that for all her education that she had not heard of the Chinese inventions such as paper, gunpowder, compass, iron plough, movable type and many others that were hundreds if not thousands of years ahead of the West. I suspect she was pandering to the farmers of Iowa; it will be interesting to hear what she will have to say when she comes stumping in Silicon Valley. Then again, her campaign may not last that long.