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.
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• ·      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.
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• ·      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.
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• ·      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.

Relatively speaking, the Chinese do not become American citizens, how come?

According to official government statistics from the Department of Homeland Security, 2013 Yearbook (the latest available), for the decade from 2004 to 2013, the number granted legal permanent residence was 10,763,477 and the number that became naturalized citizens was 7,146,220.

The largest countries of origin, i.e., where these people came from, were Mexico and 5 Asian countries, namely China, India, Philippines, Vietnam and South Korea. Here is where it gets interesting as shown by the table below.

Permanent Residents and Naturalized Citizens in the U.S. from 2004 to 2013
Country of origin	% of total permanent residents	% of total naturalized citizens
Mexico	14.66	14.75
China, PR	6.92	4.74
India	6.27	6.82
Philippines	5.63	5.76
Vietnam	2.83	3.88
S. Korea	2.18	2.32
Source: 2013 Yearbook, DHS

Four of the six major sources of immigrants maintain more or less the same ratio between permanent residents and those that went on to become naturalized citizens except Vietnam and China. Around 70% go on to become naturalized citizens but over 90% for Vietnamese and around 45% for Chinese.

In the case of Vietnam, more relatively speaking became naturalized citizens than one would predict from pro rata of number of permanent residents. Since most of the Vietnamese came to the U.S. as refugees after the end of the Vietnam war and return to their homeland is not a viable option, this is understandable.

What's notable is the significantly lower number of Chinese that elected to proceed and become American citizens. There are two non-mutually exclusive explanations that could account for the apparent lack of interest in becoming citizens. 

Because of China's rapid economic development, certain portion find opportunities in their country of origin and may find keeping a green card convenient but not necessary to convert to American citizenship.

The other reason is that they feel like perpetual foreigners when they are in the U.S. and they face the threat of being racially profiled by the FBI and become another hapless victim of government harassment a la Wen Ho Lee.

The other note of interest is that judging by the relatively higher number of Indians that opt to become naturalized citizens, one may conclude the anticipated rise of India is not yet appealing enough to convince Indian nationals to go back.

Racism and Xenophobia alive and well in America

New York Times has this to say:

A National Weather Service flood forecaster in Ohio faced federal economic espionage charges, until her case was dropped as abruptly as it had upended her life.

Until friends called the NYT article to my attention, I was not aware of this particular case. I hope the victim in this case will file suit against the FBI and whoever else involved and seek redress.

We continue to experience repeated offenses by law enforcement agencies depriving loyal Americans of Chinese ancestry their civil rights, even as these Americans make outstanding contributions to the national well being of America.

The only way to put a stop to this kind of racial bias is to make noisy protest and take legal action against the perpetrators. Dr. Haiping Su did just that against NASA and won, a small victory in monetary terms but a major landmark case because he took on the U.S. government and won a verdict.

The victim in this case is Ms. Sherry Chen, originally from Beijing. Until she had her run-in with the law, she had been a recipient of commendations for her service to America. According to NYT, the person that first intimated that Ms. Chen could be spying for China was a Ms. Deborah Lee. I looked up Ms. Lee's bio and press release. For what it's worth, she is not an Asian but White.

Haiping Su took on City Hall and won

The edited version of this article first appeared in New America Media.

Dr. Haiping Su was a victim of racial profiling and he sued the United States government and NASA for smearing his reputation, invading his privacy, depriving him of realizing his full career potential and causing him emotional stress and mental anguish.  He sued to clear his name and he asked for $5.2 million in damages.

Six (6) years later, after various delays, legal maneuvers and challenges, the judge heard the arguments and ruled in favor of the plaintiff, namely Dr. Su, and against the defendant, in this rare case the US government.  As compensation for damages, Su was awarded $10,000.

The lesson of Su’s experience with American justice has implications for all Chinese Americans working in technical disciplines in the United States and is worthy of more detailed examination.

In June 2008, Su was abruptly escorted off the premises of Ames Research Center in Mountain View, California and his access badge taken from him.  The only explanation given to him was that he had somehow become a security risk to NASA.

At the time, he had been working for about 3 years as a staff member of University Affiliated Research Center operated by UC Santa Cruz under contract to NASA.  He had come to the US from China in 1986, earned his PhD in agriculture science from Kansas State five (5) years later and became an US citizen.  His work for NASA related to his technical expertise.  The work was non-classified.

Approximately a month after getting his new identification badge to Ames in January 2008, the FBI asked to interview him for a “background check.”  The FBI did not approach any other member of his work group for a similar sort of background interview.

There was a second interview in March at the end of which he was told that he needed to take a lie detector test.  Afterwards, the FBI agent told him that he “did not do well” on the polygraph test but did not otherwise explain why Su was being investigated.

Early in April, Su was grilled by four (4) people representing FBI and NASA security to “clarify issues raised by the polygraph.”  Then on June 24, Su was handed a letter signed by Robert Dolci, head of security at Ames, stating that his continued presence constituted a security risk and he was escorted off the premises.

Dolci then called a meeting of Su’s coworkers and to their surprise, informed them that Su constituted a security risk.  Some of his coworkers later testified that Dolci implied that Su was removed from NASA Ames because he took money from a foreign government.

Early in July, Su’s supervisor at UCSC issued a letter of dismissal because he had allegedly failed the lie detector test.  Fortunately for Su, his supervisor compared the flimsy accusations against Su’s exemplary work record and decided to rescind his letter of dismissal.  He simply asked Su to telecommute and continue working from his home.

Su was understandably distraught by the treatment he received.  He contacted me and his story was still fresh in my mind when I happened to attend one of those Silicon Valley dinner meetings for technical professionals.  Jim McManis, partner in charge at McManis Faulkner, a prominent law firm in San Jose, was the speaker and he spoke about fair employment practices.

I was impressed by his forthrightness and his attitude about the importance of being fair, so I related Su’s story to him.  McManis was appalled and invited Su to contact him.  His willingness to take up Su’s case without fee made the historic lawsuit possible.

McManis’ firm filed the complaint on behalf of Su against NASA and the FBI on the grounds that Su was not involved in classified work, had no criminal history, was never told of the charges against him nor given a chance to defend himself, and lastly was not told of his right to appeal.

The complaint further charged that NASA in handling this case did not follow their own internal procedure and policy and thus deprived Su of due process, ruined his reputation and caused undue hardship and mental anguish.

In the court hearing, testimony by Su and his wife indicated that he had suffered greatly from this experience.  His wife testified that Su had undergone a personality change from outgoing to reclusive, from engaging to distrustful of people, and suffered from frequent bouts of depression.

The trial judge acknowledged that Dolci invaded Su’s privacy but he was unable to accurately assess damages done to Su, because Su continued to be employed.  In the end, the judge found for Su a sum of $10,000 as compensation for damages he suffered.

After the judge rendered his verdict, I asked Su if he felt vindicated and if he had any regrets.  He said that even though it became a six-year nightmare and he had to pay a personal price suffering from insomnia and hypertension, he would do it again.

He was convinced that the only way to stop racism was to stand up and object.  He didn’t fight just for himself, he said, but also for all Chinese Americans working in the U.S.

The Wen Ho Lee case at the turn of the century was perhaps the most notorious, but racial prejudice since then against professional Chinese Americans working in technical disciplines has not subsided.

Chinese Americans have continued to be accused, harassed, and thrown out of work.  Subjected to personal ordeal, including sitting in jail without bail, the victims frequently find the government accusers lose interest and drop all charges—not before, of course, having inflicted financial devastation and character destruction on their hapless victims.

Su’s case has been one exception where the Government did not get away with arbitrary and discriminatory actions and not have to pay a penalty.

The FBI has a checkered history of investigative integrity

The affidavit filed against Leland Yee described the way the FBI skillfully led Leland Yee on with the promise of easy cash in exchange for Yee's promise to commit a crime or two. The undercover agents were most persuasive and Yee's defense would likely have grounds to plea entrapment.

Whether the court will find that FBI had over reached in Yee's case remains to be seen when his case comes to trial. We do know that the FBI has a history of over zealous and bias prosecution of Chinese Americans.

The first major cause celebre was John Huang, at the time a member of the Clinton administration. President Bill Clinton’s political enemies sought all kinds of ways to embarrass him and bring him down. They accused Huang of raising illegal campaign funds from China and elsewhere from Asia to help Clinton get elected.

Huang was eventually allowed resign his post and fade away to his home in California. He was never charged and did not spend a day in jail but paid dearly in emotional stress, drastic reduction in net worth drained by legal bills and the dismay of seeing the dirty side of American politics.

Unlike John Huang who was an enthusiastic campaign fundraiser because he thought he was participating in the exercise of democracy, American style, Norman Hsu simply ran a con by pretending to be a legitimate bundler of big donors. His ability to get closer to major political candidate, such as Hillary Clinton, gave him credibility that enabled him to operate a Ponzi scheme.  He is now in jail.

Wen Ho Lee also spent 10 months in jail based on evidence fabricated by the FBI, even though he didn’t conduct any of the activity he was accused of doing. He was clearly a victim of racial profiling and the desire of Clinton’s political opponents to use anti-China sentiments to embarrass the administration.

In the end, the presiding judge had to apologize to Lee for government misconduct, but nonetheless to justify Lee’s 10 months of solitary confinement, Lee had to plead guilty to unauthorized downloading of confidential information.

Even when the government makes a mistake, the victim pays. The usual approach is to force the victim to plead guilty to some misdemeanor in exchange for freedom and thus justify judicial abuse.

The most recent example was the Bo Jiang case in Virginia. The FBI took him off the departing plane and put him in detention After seven weeks in jail, the government had to let him go because they did not find any evidence of illegal activity except for xenophobic accusations by Congressman Frank Wolf. Jiang had to plea guilty to downloading pornography into his government computer in exchange for the jail time already served before he was allowed to go home to China.

Like Bo Jiang, Dr. Su Haiping was a subcontractor doing work for NASA in Moffett Field in Mountain View. The FBI asked him to take a lie detector test and then abruptly escorted him off the premises. NASA asked that his employment be terminated, but his employer, a NASA contractor refused, because they could not find any fault in Su’s work. Su is now suing the U.S. government for his treatment and when he wins, it will be a major historic event.

Probably the most shameful in the annals of FBI misconduct and government prosecutorial abuse was the case involving Denise Woo, at the time one of FBI’s own agents. Her superior took offense when she indicated that her undercover work could not substantiate his suspicion of the surveillance target being a spy.

Instead of dropping the investigation, he had her prosecuted for allegedly abetting the enemy agent despite failing to find any evidence that the target was an agent of any kind. Woo had to cop a misdemeanor plea in order to get on with her life, albeit no longer employed by the FBI. As for her supervisor agent, JJ Smith, he was later forced to retire after he was found sleeping with Katrina Leung, otherwise known as the central figure of the Parlor Maid affair. To this day, the FBI could not decide as to which country Leung was spying on and for.

There are other cases where the FBI action against Chinese Americans is based on the presumption of guilt until proven innocent--exactly opposite of the due process according to law. 

If you are a Chinese American and the FBI comes calling, it doesn't matter as to subject matter and whether you are the person of interest or merely a third party query, it would behoove you to have ready an attorney standing by advising you of your rights.