Tuesday, November 29, 2022

Chinese-American completes ‘long journey’ to justice - But does Sherry Chen’s legal victory signal the end of racial profiling by US authorities?

First posted in Asia Times. Sherry Chen threw a party last weekend to celebrate her legal victory over her former employer, the US Department of Commerce (DOC). The purpose of the party, Chen said, was to thank her many loyal supporters for standing with her throughout her “long journey seeking justice.” The celebration took place at a home in Palo Alto, California, belonging to Adrian and Monica Yeung Arima, where Chen was staying as their houseguest. Silicon Valley was where many of her supporters reside who donated to her legal defense fund and gave abiding moral support. Around a hundred attended the party. Long ordeal begins In October 2014, after a two-year investigation, the Federal Bureau of Investigation came to her workplace and took her away in handcuffs, to the shock and surprise of her colleagues. In March 2015, federal prosecutors dropped all charges without any explanation. That should have been the end of the Sherry Chen story, but it wasn’t. Amazingly, in March 2016, Chen, a hydrologist, was fired from her job with the National Weather Service (NWS) based on the same charges that had been discarded by the prosecutors. NWS is under the National Oceanic and Atmospheric Administration (NOAA). Asia Times described the twisted shenanigan that took place between the NWS and NOAA in order to formalize the paperwork for Chen’s dismissal – hint, the head of NWS wriggled and managed to stay out of the fray. Shocked by the development, she said to Asia Times, “Why do I have to accept the unfair and unjust treatment my government has given me? I am not just fighting for myself but for all victims of racial profiling so that it won’t happen again.” MSPB rules in her favor Chen then filed a complaint for wrongful termination with the Merit System Protection Board. The MSPB was established to protect federal workers against abuses by their employers. To the surprise of many, the chief administrative judge, Michele Schroeder, ruled in her favor as the victim of gross injustice. From the time she filed with the MSPB to reaching the verdict took one and a half years. Judge Schroeder order reinstatement with back pay and benefits. Historically, the odds of winning a ruling from the MSPB against the federal government had been less than one in a hundred. So, in April 2018, the verdict should have been the end of Chen’s journey and a cause for celebration. But it wasn’t, because the DOC filed an appeal, which needed to be heard by a quorum of two or more judges. At the time the MSPB had only one working judge, and therefore the appeal was sent into limbo. Was the DOC aware of the delay due to a technicality? Of course. On January 2019, Chen filed a civil lawsuit against the DOC alleging malicious prosecution and false arrest and sought $5 million for damages and compensation. In October 2021, the American Civil Liberties Union along with Cooley LLP, a major law firm headquartered in Palo Alto, joined her legal team in pursuing the suit. Finally, early this month, Chen along with ACLU announced a settlement that would pay her $550,000 and an annuity of $125,000 per year over the next 10 years. Thus she can claim a happy ending after a decade-long journey. “It’s an enormous victory for Ms Chen personally,” said Ashley Gorski, a senior staff lawyer with the ACLU National Security Project, “and for the Chinese-American community as well. The settlement makes clear that when the government discriminates, it’s going to be held accountable.” ACLU proclaims Chen’s win historic The ACLU called her settlement historic, unprecedented and the largest ever paid by the DOC. All true, but Chen’s win, in my view, just recovers her legal fees and back wages. And her case is just a beginning of possible rectification and does not signify the end of systemic racial profiling against Chinese-Americans by the US government. As I observed in 2015, “Rather than compiling evidence beyond a reasonable doubt, the FBI and fellow practitioners will jump at any flimsy thread of possible wrong doing, make a public arrest, send out a press release on their accusation and put the hapless Chinese American in detention. “When their findings are then subject to scrutiny and fail to pass muster, the charges are quietly dropped. By then, of course, the reputation of the person is in tatters and the victim’s life and finances are in ruin.” Since the celebrated Wen Ho Lee case and even earlier, to this day, Chinese-American scientists are considered guilty until proven innocent. The burden of proof is on the accused. In Sherry Chen’s case, even when proven innocent, the burden was still on her to fight for the justice that was her due. According to an article published last December by the MIT Technology Review, analyzing the so-called China Initiative launched by former US president Donald Trump, “To date, only about a quarter of defendants charged under the initiative have been convicted, and about half of those defendants with open charges have yet to see the inside of an American courtroom.” The remaining 25%, I surmise, had their charges quietly dismissed. Xiaoxing Xi also seeking justice In 2015, Xiaoxing Xi, professor of physics at Temple University in Philadelphia, Pennsylvania, was arrested at gunpoint at his home in front of his wife and daughters by the FBI in a “daring” dawn raid. The DOJ subsequently dropped the charges, which could be considered a win for Xi because the department did not ask him to plead guilty to some minor misdemeanor in exchange. The government just hates to admit making an error, and will normally ask for a plea to some minor offense so the arrest can be scored in the win column. Wen Ho Lee, for example, had to plead guilty to downloading computer files in violation of regulations at the Los Alamos National Laboratory before obtaining release from nine months of solitary confinement and set free by the presiding judge. The judge expressed regret that Lee had to cop a plea and apologized to him for government’s gross misconduct. Many other Chinese-Americans victimized by the FBI and DOJ have had to plea-bargain so that they can go on with their lives and cut the financial bleeding from the legal fees. It’s always a challenge to take on the US government in a legal dispute. Compared with the individual, the government has infinite resources and time on their side. Like Sherry Chen did, Professor Xi is also suing the US government and FBI agents for knowingly misrepresenting evidence as the basis for his arrest and the consequent trauma he suffered. The ACLU is also part of his legal team and he is hoping for an eventually favorable ruling. Gang Chen, a professor at the Massachusetts Institute of Technology (MIT), appeared in a panel discussion along with Sherry Chen and Dr Xi at a conference in San Francisco, held a day after Chen’s legal victory was announced. The subject was racial profiling and discrimination against Chinese-American scientists. The fourth speaker was Jeremy Wu, founder of APA Justice, responsible for diligently tracking the government’s judiciary abuses. Gang Chen has similar FBI encounter Professor Chen was more fortunate than his fellow panelists. According to The New York Times, as soon as he found that he was under investigation, his employer, MIT, hired outside legal counsel to advise him along the way. One early morning in January 2021, a gang of more than 10 FBI agents came to his home to handcuff him and take him away for interrogation. He was released that afternoon, but he had to stay away from the campus and make no contact with any MIT employees. That September, Professor Chen’s lawyer reported good news from the prosecutor’s office. If Chen would admit to having certain contacts in China, the charges would be dismissed and the case dropped. While his lawyer thought the offer was a safe, risk-free deal to get off, Chen refused. Since he had done nothing wrong, he did not think he had to make the deal. A full year later, in January 2022, all charges against Professor Chen were dropped and he resumed his work at MIT. He was more fortunate than most because Rafael Reif, then president of MIT, supported him from the inception of the government investigation and the school pick up his legal bill. His fellow faculty vigorously rallied to his defense and protested his innocence. Others in similar debacles have been much worse off. Their university employers quickly cut them loose and hung them out to dry. By the time the charges are dropped, they may or may not be reinstated, their reputations have been tainted and their bank accounts greatly depleted by the fees for legal defense. At least 1,400 US-based ethnic Chinese scientists switched their affiliation last year from American to Chinese institutions, according to a joint report by academics from Harvard, Princeton and MIT. The trend is increasing thanks to the China Initiative established by Donald Trump and only recently canceled by President Joe Biden. The original intent of the initiative was to curb exchange of scientific informative between the US and China. It turned into a witch-hunt that ran amok. For ethnic Chinese, working in science and technology in the US has become hazardous, risking out-of-the-blue arrests and third-degree grilling about one’s loyalty. The way to stop the brain drain from the US is to enact regulations and laws that will punish prosecutions based on lies, falsified evidence, and hiding exculpable evidence. Anti-Chinese hate crimes must not be tolerated, especially when the perpetrator is the government. Provisions need to be in place for victims of wrongful prosecution to be promptly compensated for damages and legal fees. Only then can a brain drain of Chinese scientists and researchers slow – and perhaps reverse.

Wednesday, November 23, 2022

Biden’s next two years look bleak - The Democratic Party has survived, but the White House remains mired in a failed foreign policy

First posted on Asia Times. Despite going into the midterm elections with under 40% popular approval, US President Joe Biden appears to have survived the outcome, avoiding the mortal wound historically associated with a lame duck in the White House. Bill Clinton, a rare US president who presided over a budget surplus, once embraced an adviser’s mantra “It’s the economy, stupid.” Biden does not seem be graded by his grasp of the economy. Fortunately for Biden, foreign policy does not normally figure in American voters’ thinking. The Biden team has run around the world busily trying to shore up the American position as the hegemon of the world. Drawing from the lessons of the ignominious retreat from Afghanistan after a 20-year debacle, Biden’s new strategy was to assert authority by initiating proxy wars – in other words, getting somebody else to do the fighting. He was successful in provoking Russia into invading Ukraine and supplying more than $40 billion worth of arms to Kiev to fight to the last Ukrainian standing. Uncle Sam’s EU allies dutifully supported Washington and castigated Russian President Vladimir Putin for his aggression. EU suffers as Russia sanctions backfired Initially, the European Union supported the sanctions imposed by the Biden administration. Then Putin changed the rules of the game by demanding payment in rubles for Russia’s oil and natural gas. The net effect was a ruble that strengthened against the euro and dollar. And the EU countries got to pay through the nose for their energy. Then the Nord Stream 1 and 2 pipelines from Russia were “mysteriously” blown up by a blatant act of sabotage. Severing the pipelines supplying Russian gas to Germany and others in Europe erases any basis of reconciliation with Russia, so Washington thought. Rather than letting European allies face a freezing winter, the US rushed to the rescue by selling Texas crude and liquefied natural gas (LNG) at high prices. Yes, very profitable for the US but not so good for the Europeans, feeding their mounting resentment toward Uncle Sam. Leaders of Germany and France are beginning to question the wisdom of blindly following Washington. They are beginning to see that the so-called “rule-based international order” is nothing more than rules for placing orders for American oil. German Chancellor Olaf Scholz quickly led a delegation to Beijing shortly after the adjournment of the 20th People’s Congress. One significant outcome of his one-day visit was a joint declaration with President Xi Jinping that the two countries will promote a multipolar world and disavow any attempt at decoupling – a clear rejection of Biden’s foreign policy. Scholz was also handed a $17 billion order for Airbus passenger jets and acceptance of BioNTech Covid vaccines for use in China. The business leaders in the German delegation also announced intentions to increase their investments in China. These are clear indications that both countries recognize the importance of their economic partnership. Germany is just the latest American ally to realize that dutifully lining up behind Uncle Sam merely exposes them to a full dose of flatulence and not much else. Saudi Arabia says get lost To help tamp down inflation, Biden asked Saudi Arabia to increase oil output so as to reduce the prices at America’s gasoline pumps and lessen the pain of taxpayers. Saudi promptly did the opposite by cutting oil production. In less polite circles, we would call that a middle-finger salute. In fact, Saudi Arabia shows no fealty to the US but is applying to join BRICS and the Shanghai Cooperation Organization (SCO), in both of which China plays a leading role. Riyadh is also finalizing arrangements to sell oil to China for yuan instead of petrodollars. Iran along with India and Pakistan are already members of the SCO. Others including Turkey, Belarus and Egypt are waiting to join. The organization promotes cooperation and collaboration for mutual benefit and geopolitical tension and rivalry is left outside the door. Military alliances and confrontations are specifically excluded in the charter of the organization. That India and Pakistan can belong in the same organization is proof. That Saudi Arabia would join with Iran perhaps presages a more amicable future between those two states. Unlike being aligned with the US, collaborating with China has no downside. No need to host bases for the American troops, and the resultant indignities that, for example, civilians in South Korea and Okinawa have to endure. Turning his attention to China, Biden has his double-talk down pat. According to the one-China principle, Taiwan is part of China, and the US stands by that. On the other hand, it will train the Taiwanese people how to fight, give them more and better weapons and a promise to send American troops to defend Taiwan. For now, let us defer the ramifications of this issue for another day. Biden turns to China In the meantime, despite protestations that the US and China can collaborate in important issues, Biden has gone all-in to wage a full-blown chips war against China. His edicts are intended to effect a total shutdown of trade, exchanges and any sort of transactions involving semiconductor products and technology between the West and China. The desired outcome is to kneecap China’s semiconductor development. However, the Silicon Valley giants such as Applied Materials and Lam Research are among the first companies to be kneecapped. More than 30% their sales go to China only 8% in the US. Their American employees in China are put on hold and layoffs are beginning in the US. Nvidia and Advanced Micro Devices (AMD) can no longer sell their most advanced chips to China for artificial-intelligence development. These advanced chips represent these companies’ most important comparative advantage and will mean lost sales in the hundreds of millions. Lost sales are opportunity costs that do not return. The total drop in market cap for the entire industry worldwide is around US$1.5 trillion. ASML of the Netherlands has virtually a world monopoly on lithographic machines necessary to transfer chip design into actual chips. The company is struggling with not being able to sell not only the most advanced generation but even the older-generation machines to China. These machines go for hundreds of million dollars, and the Biden White House is asking the Dutch company to sit on its hands. Taiwan Semiconductor Manufacturing Company (TSMC), Korean companies and Japanese companies are similarly requested by Biden to kneecap themselves for the greater good of keeping China’s chip industry stunted. Apparently, American companies are forced to comply by law, but the non-American companies are stalling in their compliance. As Asia Times has pointed out, “the [US] Commerce Department’s specifications show ignorance about the technologies involved and confusion – if not duplicity – about the ban’s implications for China’s military. The experts’ group concluded that the new policy was rushed into effect in panic mode, without weighing its civilian or military implications.” In other words, the embargo order was hastily and sloppily written and leaves plenty of holes and ambiguity for further arguments and negotiations for exceptions. The chips clampdown is supposedly based on security grounds, but American commercial interests will take a major hit as a consequence. The semiconductor embargo has forced China to work around the American chokeholds. Contrary to Washington’s perception, the Chinese won’t catch up by just copying and replicating silicon-based American technology. For example, they have been working on gallium arsenide as the substrate for photonic chips that will operate 1,000 times as fast at 1% of the power consumption – which is important for military uses and does not rely on economies of scale essential in commercial applications. What will be the eventual outcome? Companies in the West will be crippled by the decoupling and play in a market smaller than the formerly globalized market. New companies in China will dominate in a market centered on China. The sum of both markets is likely to be less than the total market today. This is a classic lose-lose outcome. The joke is on Washington It is hard for us Americans to know if our political leaders are just joshing or are seriously misinformed about China. Washington seems to see China as a mere copycat that depends on intellectual-property (IP) theft to compete with America. In certain technologies, China has at least caught up to the US, if not already surpassing it. To name a few: fifth generation to 6G in telecommunications, superior accuracy of Beidou over America’s Global Positioning System (GPS), exploration missions to Mars and the dark side of the moon, Tiangong soon to be the only space station circling Earth, quantum computing and hypersonic glide missiles. And oh yes, China has a network of thousands of kilometers of high-speed rail. The US? Zero. Readers might be amused to know that former US congressman Frank Wolf, who had control of annual funding for the National Aeronautics and Space Administration (NASA), specifically demanded the exclusion of China from participating in the International Space Station that was jointly operated with the Soviet Union. Now the US is complaining that all the writing in Tiangong is in Chinese, even though NASA has yet to be invited to visit. According a recent joint report from Harvard, Princeton and the Massachusetts Institute of Technology (MIT), at least 1,400 US-based ethnic Chinese scientists and academicians have left the US in direct response to the notorious “China Initiative,” and the departures continue to increase. They have been intimidated and terrorized by random arrests and prosecution that leaves them traumatized, reputation destroyed and financially ruined. Our Department of (in)Justice does not apologize for wrongful prosecution nor offer compensation for damages. This self-inflicted injury will be America’s loss and China’s gain. The good news is that some Chinese are coming to the US. According to Bloomberg News, Tesla is sending production personnel, automation and control engineers from China to its plant in Fremont, California, in order to “reproduce the success of the Tesla factory in Shanghai.” Another way of saying “be careful of what you wish for” is to quote Rafael Reif, outgoing president of MIT: “If all we do in response to China’s ambition is to try to double-lock all our doors, I believe we will lock ourselves into mediocrity.”