Is racial bias to blame for the high number of Asian Americans charged with espionage?

This co-authored piece first appeared in the Los Angeles Times.

In recent years, federal prosecutors have brought a number of high-profile criminal cases against Asian Americans accused of economic espionage or theft of trade secrets. Announced with great fanfare, many of these cases later collapsed.

Is it possible that these prosecutions were driven — at least in part — by racial profiling rather than solid evidence? Last year, more than 40 members of Congress sent a letter to Atty. Gen. Loretta Lynch asking that question. The Justice Department has not yet responded, but last month it adopted a new policy requiring experienced national security prosecutors in Washington, instead of local U.S. attorneys, to oversee all espionage-related cases. It's of course too early to know whether this change will reduce the number of problematic cases brought against Asian Americans.

Although theft of trade secrets by foreign countries certainly occurs, the government has focused overwhelmingly on China. Of the 55 trade secret and economic espionage cases involving a foreign country brought since 1997, more than 70% targeted China. The government, however, seems to have a hard time bringing these cases to a successful conclusion, suggesting that such disproportionate attention is misplaced.

From 1997 to 2015, federal prosecutors had an average conviction rate of about 91% for all criminal cases. In federal white-collar cases, the conviction rate was more than 90%. But of the 39 trade secret and economic espionage cases involving China since 1997, federal prosecutors won convictions in only 66.7% of cases. In contrast, for cases involving other countries, prosecutors had a conviction rate much closer to its other cases — about 87%.

Is it possible that these prosecutions were driven — at least in part — by racial profiling, rather than solid evidence?

Under pressure to stop Chinese spying, prosecutors seem to file espionage-related charges without fully understanding the facts.

Last May, Xiaoxing Xi, former head of the physics department at Temple University, was arrested by FBI agents, who burst into his suburban Philadelphia home with guns drawn. Xi was handcuffed in front of his family and charged with sharing schematics for a piece of “secret” laboratory equipment, which it later turned out was not secret at all. Four months later, prosecutors dropped the case, saying “additional information came to the attention of the government.”

In the very first economic espionage case to go to trial, in San Jose in 2009, prosecutors accused two Chinese American engineers of seeking to “benefit” the Chinese government, simply because the engineers had applied for research funding from Chinese agencies to help their startup. The jury rejected the prosecutors' argument and concluded that this was just normal business activity. One recurring issue in Chinese trade secret cases is that local U.S. attorneys, many of whom know little about the major role that state institutions play in the Chinese economy, misinterpret normal contacts with government banks or research institutes as evidence of spying.

To many observers, the government's unjustified suspicion of Asian Americans became apparent in 1999, when Wen Ho Lee, a Taiwanese American nuclear physicist employed at the Los Alamos National Laboratory, was accused of sharing nuclear secrets with China.

Lee, who was included on a shortlist of suspects because of his frequent trips to Asia and his access to classified information — and, critics claim, his ethnicity — consistently denied he had given sensitive information to China. The case fell apart, and seven years later, Lee won a civil judgment against the prosecutors and media organizations that had tarnished his reputation.

In case after case, the government's allegations of improper motives — perhaps fed by suspicions of China — have failed to withstand scrutiny. In 2014, a jury found former Texas Instruments engineer Ellen Chen Yeh not guilty of all charges in a trade secret case. Yeh, who had left Texas Instruments to work at a company in China, was accused of wrongfully downloading computer chip designs and taking them to China with the intent to steal them. Yeh explained that she kept the designs — which she had developed herself — because she hoped to resume working with Texas Instruments someday. The jury believed her.

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The way prosecutors bring China-related trade secret cases causes immense damage to those accused. By publicizing these cases before they can prove them, prosecutors destroy reputations. In October 2014, Sherry Chen, a 60-year-old Chinese American water scientist, was arrested by FBI agents at a National Weather Service office in Ohio. Chen, who had been a U.S. citizen for more than 15 years, was accused of downloading data on U.S. dams and passing it to a Chinese government official. The charges against her carried 25 years in prison and a $1-million fine. Prosecutors dropped the charges against Chen shortly before her trial was set to start because they realized they had misinterpreted the evidence, but that did not undo damage to her good name. Undeterred by the collapse of its case, the government says it still intends to bar Chen from her job, a decision she is fighting.

There is also growing evidence that prejudice may affect the sentencing process for those found guilty of trade secret theft. An analysis of cases over the last two decades shows that, for individuals convicted of trade secret theft, the average sentence for people with Chinese surnames is more than twice that for those with non-Chinese surnames. This translates to an average of an extra 17 months in prison for Chinese Americans.

The strength of the U.S. economy is based largely on innovation and competition. A more careful approach to these prosecutions can protect the rights of Asian Americans, minimize wrongful prosecutions and help ensure an economic environment that continues to foster innovation.

George Koo is a global business advisor. Daniel Olmos is a criminal defense attorney who has successfully defended several trade secret cases at trial.

Sherry Chen's Dismissal is an Indictment of Racist Federal Government

An edited version of this blog was posted on Asia Times.

Last May, New York Times identified Sherry Chen as the person accused of spying for China and then wasn’t, as the federal prosecutor dropped the charges just one week before her case was to come to trial. Sherry’s friends and supporters thought that being free of criminal charges meant that she could go back to her job as a hydrologist for the National Weather Service (NWS).

Lo and behold, on September 4, 2015, Sherry received a letter from Laura Furgione, Deputy Director of NWS, informing her that she was being removed as an employee of NWS. In the document formally known as “Notice of Proposed Disciplinary Action (hereafter PDA), Furgione proposed removing her for “(1) Conduct demonstrating untrustworthiness; (2) Misrepresentation; (3) Misuse of Federal Government Database; and (4) Lack of Candor.” The document ran 20 pages in length.

Peter Zeidenberg, attorney with Arent Fox LLP based in Washington, was the defense counsel for Sherry; he submitted a memorandum dated October 2, 2015 addressed to Louis Uccellini, Director of NWS in response to the PDA. The memo ran 31 pages and provided a comprehensive rebuttal to all the points raised in the PDA.

Then in a half page memo with a date stamp of December 9, 2015, Director Uccellini wrote to Vice Admiral Michael Devany, stating that he cannot serve as an impartial “deciding official” on the PDA and asked to be relieved from this role. Devany is Deputy Under Secretary for Operations of National Oceanic and Atmospheric Administration (NOAA) and is Uccellini’s boss.

Uccellini’s short memo said he was provided with Furgione’s PDA and back-up material in the capacity of being the “deciding official.” He also heard an oral reply from Sherry and her attorney Zeidenberg along with the written material on October 9, 2015.

Then Uccellini made a curious statement in his memo, “Specifically, in 2014, I received a series of classified briefings from DOC’s Office of Security regarding this employee and matters related to this Notice of Proposed Removal. While I have tried to compartmentalize the additional information I learned during these briefings, I am unable to focus solely on the information and the charges in the Notice of Proposed Removal, the materials relied upon, and the employee’s response.”

Next, Furgione sent Sherry a second PDA, dated December 18, 2015 rescinding the first because Uccellini would not serve as an impartial deciding official. Other than stating that Vice Admiral Devany was now the deciding official, the second PDA was word for word identical to the first version. In response, Zeidenberg submitted the same rebuttal since the second version of the PDA added nothing and changed nothing from the original.

Devany’s decision on the PDA in the form of a letter dated March 10, 2016 addressed to Xiafen Chen was to remove her (Sherry) from Federal service. The reasons given in support of his decision basically followed the accusations as outlined in the PDA virtually uninfluenced by any of the arguments submitted by Zeidenberg. Devany’s letter did contain one curious statement: “much of your reply went to the now-dismissed criminal charges against you, which have no bearing on this matter.”

Devany’s statement is hard to fathom. Either Zeidenberg missed reading the PDA and failed to respond accurately, or the PDA repeated some of the “now-dismissed criminal charges” as part of its case against Sherry, or Devany had made up his mind to dismiss Sherry and his general note was a way to sweep away the carefully crafted rebuttals by Sherry’s counsel and avoid having to deal in any degree of specificity.

Dr. Uccellini has a PhD in Meteorology from University of Wisconsin and is a self-confessed “weather geek.” He has authored more than 60 peer-reviewed articles, books and chapters on weather related topics. Among many awards and recognition, he was at one time the president of the American Meteorology Society.

When Uccellini assumed the leadership of NWS in 2013, outside observers praised the appointment as a welcome change from the usual practice of filling the post with retired military officers. He took over an organization riven with scandal, was accused of misappropriation of funds and marked by the abrupt retirement of his predecessor.

Ironically, he co-authored an acclaimed book titled “Northeast Snowstorms.” This January, the NWS forecasted a killer storm of historic proportions for the New York City area, which prompted the mayor Bill de Blasio to order the closing of roads and subways along with schools. One minor detail was amiss, the storm never happened. To his credit, Uccellini took responsibility for the “historic screw up” and admitted that the weather service needs to improve the way weather forecast is communicated to the public.

The National Weather Service is part of NOAA and its mission is to “provide weather, water and climate data, forecasts and warnings for the protection of life and property and enhancement of the national economy.” In other words, NWS keeps its eye on Mother Nature. The meteorologists in this organization watch the sky while the hydrologists monitor the rivers.

Sherry Chen was employed as a Hydrologist in the Ohio River Forecast Center. This office monitors the Ohio River basin including its many rivers and tributaries that flow into the 900-mile long river. This river system affects approximately 25 million lives. A major part of Sherry’s duty is to construct and continually improve a computer model of the river to facilitate making accurate forecasts of the water flow on the river.

Sherry’s modeling work is based on a software package provided by the Hydrologic Engineering Center – River Analysis System (HEC-RAS). The Center belongs to the Army Corp of Engineers (ACE) and is well known world wide for its technical expertise on all things related to water, and HEC-RAS is just one of a large family of software programs the Center has constructed and made available for general use.

In fact the river forecasting centers belonging to NWS work closely with the ACE. The centers perform the forecasting while the Corp of Engineers control the dams and levees that can prevent or at least mitigate the impact of the river overflow. One instance where the collaboration did not pan out so happily was the Nashville flood of 2010 when the Cumberland River overflowed its banks, and 31 lives were lost along with approximately $2.3 billion in damages. It was a natural disaster that rivaled Katrina of New Orleans in severity.

The Cumberland is a tributary of the Ohio and Tom Adams, the senior hydrologist of the Ohio River Forecasting Office, led the forecasting effort and Sherry was his lead modeler. Adams and his group could see that the torrential downpour was leading to the threat of serious flooding. He tried to warn the ACE office in charge of this region. Finally on May 2, a Sunday morning, he was able to hold a conference call including Deborah Lee who was in charge of ACE office. He warned Lee of the impending threat but he felt that Lee was distracted and did not sensed the urgency of the situation.

The river crested in the evening of May 3 and all hell broke loose on May 4. The press severely criticized the ACE for poor handling of this matter including mismanagement of the dams in the affected area and should have done more to prevent flooding. Lee telephoned Adams to scream at him alleging that everyone in his office was incompetent. Adams explained to me, “Debbie Lee was really upset and worried about losing her job. She really got me mad. If she had been standing in front of me, I would have punched her.”

Since that incident, the working relationship between the forecasting center and Lee’s group in ACE turned sour. Adams speculated that the success of Sherry’s modeling most likely became an added source of embarrassment to Lee. Earlier in her career, Lee had also worked as a hydrologist at the same river forecasting center. Lee was the person that originated the accusation of Sherry being a spy for China.

Adams having seen all the discovery material related to the original criminal charges volunteered to me that emails from Debbie Lee showed clear indications of racial profiling as alleged by Zeidenberg in his memo in defense of Sherry. “All the charges leveled at Sherry were all bullsh*t,” Adams said.

In Zeidenberg’s memo, one the sections had a heading that read: “Deborah Lee’s suspicions of Ms. Chen were based on ignorance and racial profiling.” The concluding sentence of this section was, “These two concerns—one based on Ms. Chen’s national origin, one based on a erroneous factual understanding—are what triggered this entire investigation and a nightmare for Ms. Chen that is still ongoing.”

In his letter of dismissal, Devany’s response was curt: “That you are of Chinese descent is irrelevant. That you reached out to her (Deborah Lee) at the behest of an official in the Chinese government is not irrelevant.” The official was a vice minister who asked Sherry how the U.S. finance the repair of old dams. Sherry, not sensing Lee’s hostility towards her, asked her about where such publicly available information could be found. Her query gave Lee cause to report her to the DOC Office of Security.

Sherry learned of the National Inventory of Dams (NID) from a colleague at her center. According to Adams, everything in the NID was public information and no disclosure could possibly represent a threat to national security. However, the fact that Sherry did borrow a password to download some data from the NID, even though there was no evidence that she shared the information with anyone served as a major justification to dismiss her. Adams said that it would have been natural for Sherry to assume that the NID data would be relevant to her modeling work and only upon examination of the actual data would she discover that the data was “garbage.” (Ironically, since April 2015, most of the NID data is freely available to the public without any password.)

Tom Adams worked with Sherry Chen for more than five years before leaving the Ohio River Forecasting Center in February 2013--before Sherry Chen was arrested. Having left the service, he did not feel the constraint of a current employee and spoke to me freely. He maintained contact with Sherry and was working on a paper with her. In her letter of dismissal, Devany, who had a prior career in the U.S. Navy, treated the sharing of public information with Adams as if Sherry was consorting with an enemy. The weather service has a mandate to communicate and share freely the results of their findings with the public but apparently that does not include a former employee.

Adams wanted me to know that there is life after the river forecasting center. He has been consulting for the World Bank along with other gigs around the world including Beijing. He is the author of a basic textbook on flood forecasting to be published next month.

As for Sherry Chen, she has indicated that she is not willing to quietly go away. She said, “Why do I have to accept the unfair and unjust treatment my government has given me?” She goes on to say, “I am not just fighting for myself but for all victims of racial profiling so that it won’t happen again.”

It would seem that someone powerful is out to get Sherry Chen but that person is not likely to be in NWS. The leadership of NWS does not seem to be much invested in the process to dismiss Sherry. Other than drafting the PDA, Deputy Director Furgione has not shown any further engagement. She did not attend any of the meetings when Sherry and Zeidenberg presented their arguments against the proposal to dismiss. The second version of the PDA was an obvious cut and paste of the first version and would suggest that Furgione didn’t bother to read Zeidenberg’s response to her PDA. A logical question might be to ask her if she personally wrote the PDA and if not who did.

Uccellini declined to act as the deciding official on the PDA originally submitted by his deputy. Why? Did he find wielding the hatchet on Sherry distasteful? On the other hand, did the powers that be that insisted on terminating Sherry’s employment far exceeded his authority to countermand? If so, who is pushing to dismiss Sherry? (I contacted the offices of Furgione and Uccellini hoping for some answers and clarifications. Both referred me to the public affairs office of the Department of Commerce. Someone from the public affairs office promised to get back to me but has not so far.)

Vice Admiral Devany’s letter to remove Sherry also struck me as perfunctory and lacking in substance. His letter basically read like a re-written version of Furgione’s PDA. His reasons to dismiss read like re-statements and displayed no understanding or attempt to respond to the rebuttal presented by Zeidenberg. Again, if Devany did not write the letter, then who did and why?

Other than claiming that Sherry’s national origin is “irrelevant,” Devany did not address why he does not consider Deborah Lee guilty of racism. This question needs further investigation. Why was Lee not reprimanded for her obvious racist remarks? Who is protecting her and why? Lee has recently returned to NOAA as a director of a research laboratory. Surely she could not have been promoted as some kind of reward for her bigotry, could she?

Frank Wu, former Dean of Hastings Law School and incoming chairman of the Committee of 100, is personally advising Sherry on arriving at an appropriate response. “Notwithstanding the prosecution having dropped all charges against Sherry Chen and members of both houses of Congress have demanded from Justice Department a full investigation on whether racial bias have been involved,” Wu said, “How is it possible for NOAA and NWS to thumb their collective noses at that?”

“The highest priority right now,” he said, “Is to generate support from the communities that should be outraged by the government conduct in this case and others.” Readers are encouraged to contribute to Sherry Chen’s legal war chest to help her paid her bills and as she ponders her next move. Please visit http://www.sherrychendefensefund.com/donate.html.

Readers interested in reviewing the developments leading to the case up to the latest are encourage to visit the website being maintained by Jeremy Wu at http://bit.ly/AAProfiling.

Oscars postscript — All-white Hollywood is missing out

First posted in Asia Times.

Whether by design or coincidence, Hollywood’s response to rising criticism of white dominance and lack of diversity was to have Chris Rock, an African American, host the Academy Awards. Rock, a well-known actor and standup comic, is arguably nearly as handsome as OJ Simpson and much better looking than Bill Cosby.

Al Jolson cartoon

In his opening monologue, amid barbs and one-liners, Rock lamented the lack of opportunities for black people. So far, so good. Then Rock trots out three young Asian children, one with an alleged Jewish surname, and introduces them as the employees of the major accounting firm that audits award ballots for the Academy. To accentuate the point, the young girl wore dark horn rimmed glasses.

Accountants are supposed to be good at math and otherwise bland and without personality. That was a joke on Asian Americans.

Jeremy Lin

Prominent Asian Americans such as NBA star, Jeremy Lin, objected to the stereotyping of Asian Americans that made them the butt of Rock’s joke. Lin, of course, graduated from Harvard and could easily be cast as the Asian stereotype, except he ignited a few weeks of “Linsanity” on the basketball court in Madison Square Garden that shattered that image.

First, Rock objected to the unfair treatment of the blacks by the whites, and then he stepped across the racial divide to share a joke at the expense of Asian Americans with whites. I suppose two tokens (Rock and the Asian kids) make one white.

Oscar night came shortly after the conviction of New York police officer, Peter Liang. He had accidentally shot Akai Gurley, an unarmed black man, while on patrol. Unluckily for Liang, his trial was held as the “Black Lives Matter” movement protesting police killings of innocent black men swept the US.

Old ‘Fu Manchu’ movie poster

A New York Times review of the history of shooting of unarmed African Americans by New York police officers showed that in all prior cases, the officers were either not charged or not convicted on the grounds that the shooting was unintentional, occurred while in line of duty or because the officer wasn’t properly trained for the task he was assigned. Officer Liang’s case bore all these circumstances. Yet he was charged, tried and convicted.

Mickey Rooney in ‘Breakfast at Tiffany’s’

This was clearly a case of finding an Asian American as the scapegoat. The only way to make a national statement that Asian Americans are no longer convenient stereotypes or scapegoats is to overturn Liang’s conviction. Let him be tried under an environment of equal justice and not by overwhelming public opinion against all cops.

Basketball fans can’t help but notice a recent NBA TV spot celebrating the Chinese New Year with a table of a traditional Chinese family gathering that included James Harden, NBA star for Houston, Jeremy Lin of Charlotte, and Steph Curry of Golden State. Curry even hoisted a cup and rendered a nice “kan bei” toast to the audience for the New Year. The NBA obviously had a huge and growing fan base in China in mind.

Hollywood should learn from the NBA. China is also becoming a major cinema market for Hollywood. Rock noted the other night that many established African American stars didn’t even get nominated for Oscars. That’s a problem. But while they’re attending to that problem they should address another by beginning to invite Asians to the table.

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.

Racial profiling of Chinese American scientists never ends

This piece originally appeared in Asia Times and reposted on New America Media. (See also Congressman Ted Lieu's letter to Attorney General Lynch demanding a full investigation.)

It simply boggles the mind that with an African American in the White House and an African American as the Attorney General, persecution of Chinese American scientists based on racial profiling not only has not abated but actually intensified.

Professor Xiaoxing Xi, former head of the physics department at Temple University, was the latest of a bumper crop of Chinese Americans that became victims of racial profiling.

Joyce Xi reminded us of this development recently when she gave a series of presentations at Stanford, UC Berkeley and Hastings Law School describing how her father and family were brutalized by the FBI.

Early dawn in May, the agents broke into their home with guns drawn, manhandled Professor Xi, handcuffed him behind his back and took him away without any explanation on reasons for his arrest. The agents insisted on keeping Mrs. Xi in another room and interrogated her for hours. Joyce happened to be home from college and could see that her 12-year old sister was traumatized.

According to Peter Zeidenberg, legal counsel for Xi and the family, the government accused Xi of wire fraud based on his having borrowed a piece of test equipment, a so-called pocket heater, in 2006. Zeidenberg went to the inventor of the heater who confirmed that none of the “evidence” Xi was accused of sending to China was related to the design of his invention.

Furthermore, the invention was patented but never commercialized so that even if Xi had sent the drawings to China, the government would not have a case that economic damage was done.

The government investigators could have just as easily verified the findings as Ziedenberg did, but the Obama Administration has been so obsessed by the idea that China is out to steal everything, hysteria and paranoia have replaced rational thinking.

In lieu of a professional investigation, the government leaps to prosecution. If the suspect is a Chinese American, he is ipso facto guilty.

Xi’s case harkens back to the celebrated case of Dr. Wen Ho Lee, then a scientist working at Los Alamos National Laboratory. Lee was accused of leaking the design of multi-head missile to China and incarcerated in solitary confinement for 10 months.

Eventually, the presiding judge apologized to Lee for gross government misconduct before releasing him, but even then Lee had to plead guilty to one charge in exchange for time already served.

Preserving the reputation of the American judiciary system that the government is never wrong is far more important than any damage done to the civil rights of its citizens.

If the government couldn’t get Lee to accept one guilt plea, the government would have no justification for having kept him in jail and that meant the government made a mistake.

No different from the governments under Nazi Germany or Stalin’s Soviet Union, our government does not make mistakes—none that they could admit. For the U.S. government to apologize is out of the question.

Professor Ling-chi Wang, then head of Asian American studies at UC Berkeley, was outraged by the injustice Lee suffered in the hands of the government. He organized a national boycott of the national laboratories and urge Asian American scientists to stop applying for jobs at the laboratories.

Whether it was because of the sobering effect of Lee’s treatment or the subsequent boycott, new applicants to the national labs did drop off significantly and senior staff were leaving for non-government sector or taking early retirement.

Because Asian Americans make up 5% of the U.S. population but 25% of PhDs in the technical disciplines, the management of the national laboratories was rightly alarmed and concerned.

What to do with unfilled vacancies in the labs? Fill them with the best-trained lawyers and politicians and let them conduct weaponry development?

A typical response attributed to a Nobel laureate and scientific advisor to Congress: "Every physics, engineering and life sciences department has brilliant young scientists born in Asia and the Pacific Rim, and we'd be in deep trouble if we didn't have them here."

It was true fifteen years ago and even more so today.  When Professor Xi came to the U.S., he was already a recognized world authority in his field of superconductive thin film. How he has been treated will surely give pause to others considering their career options.

In recent years there were other cases of Chinese Americans that were targeted and arrested. They were charged with espionage or committing economic crimes against American interest on behalf of China.

Unlike Xi’s case, some of the victims spent years in mental suspension, not to mention the constant financial drain in legal bills, before the government abruptly dropped the charges. Invariably there would be no explanation and, of course, no apology. Not all the victims would want to relive their agony by going public with their taste of American justice.

The Sherry Chen case became public because of reports by New York Times. She was also arrested, handcuffed and taken away in front of her co-workers. She was accused of unauthorized access to certain data about dams. Zeidenberg was also her attorney and he pointed out that the person that gave her the password for computer access was not Chinese and was recently promoted.

After federal prosecutor dropped all charges, her employer the Department of Commerce, apparently suffering from the embarrassment of bringing the charges against her, is not going to re-hire her--again, inconceivable that the government erred.

In Xi’s case, to add insult to injury, Joyce explained that the government’s case against her father was dropped “without prejudice,” meaning that the case is technically live and the government has the right to re-open the case in the future—consistent with the government’s inability to face up to admitting a mistake.

Thus in addition to the legal expense Xi incurred to prove his innocence, the cloud of suspicion will continue to dog him for the rest of his life in the U.S.

One of the advantages of working in academia as opposed to a national lab is the freedom to collaborate with anyone in the world. Such collaboration can take the form of joint research, sharing of ideas and papers and in Xi’s case sharing of samples. Other experts consider Xi’s sample films wonderfully pure and excellent for testing their ideas and experiments.

Academic collaboration and exchanges benefit all parties that participate in them. It is a principle fundamental to the advancement of science and knowledge. Putting Xi under surveillance and suspicion is equivalent to restricting his ability to do unfettered research.

To ultimate loser in this xenophobia will be the United States.

At Hastings Law School, the San Francisco based Asian Law Caucus handed out a 6 point advice under “Know Your Rights,” as briefly summarized below.

Rule 1 – If FBI or law enforcement come calling, you have the right to say, “I want to speak to a lawyer before speaking with you.”

Rule 2 – It’s a crime to lie. An honest mistake such as mixed up on dates could be held against you. That’s why you need a lawyer by your side.

Rule 3 – Asking for a lawyer won’t make you more suspicious and talking to lawman without one could get you in trouble.

Rule 4 – Just because FBI contacts you do not mean you’ve done anything wrong or that you are under investigation.

Rule 5 – FBI has no right to ask you about your political or religious beliefs, such as how you feel about U.S. China relations.

Rule 6 – If you think you are being discriminated by your employer, consult an attorney immediately

The contact at Asian Law Caucus is Yaman Salahi, yamans@advancingjustice-alc.org for a copy of the handout.