The Biden Administration Should Review and Rebuild the Trump Administration’s China Initiative From the Ground Up

With the mid-January arrest of Massachusetts Institute of Technology engineering professor Gang Chen, the outgoing Trump administration’s Department of Justice handed its successors a firestorm of controversy to reckon with, including relentless criticism from academic institutions and Asian American advocacy groups. Chen’s case, part of a Trump-era Department of Justice program known as the “China Initiative,” centers on allegations that the celebrated professor, a Chinese-born American citizen, solicited millions in research funding from the U.S. government without properly disclosing that he was simultaneously working as a talent scout and subject matter expert for the Chinese government. As the Biden administration undertakes a review of Trump’s policies on China, the initiative’s approach is overdue for rethinking and recalibration.

The China Initiative was launched in November 2018 as a prosecutorial response to China’s persistent, pervasive, and well-documented campaign of economic espionage and illicit knowledge transfer. The core mission is both justified and necessary. Many of its prosecutions clearly serve the public good, including bringing charges against state-sponsored hackers for targeting American biomedical companies working on treatments for COVID-19, the respiratory disease caused by the novel coronavirus. However, outright economic espionage is only one component of China’s overall innovation strategy. The Chinese government also relies heavily on modes of knowledge transfer that don’t align with traditional definitions of espionage, such as targeted start-up acquisitions and talent recruitment. Such activities are often challenging to prosecute but nevertheless can damage the U.S. national interest. In response to these expansive knowledge transfer efforts, the China Initiative has moved beyond prosecuting straightforward cases of intellectual property theft and into “gray areas,” such as Chen’s case.

The charges against Chen stem from his alleged activities as a talent scout for the Chinese government—an activity that on its face is perfectly legal, albeit highly irksome to anyone concerned with the U.S.-China strategic balance. Beijing seeks to poach America’s top talent in cutting-edge research and development as part of its broader national strategy for competing with the United States as a global power, and talent scouting by scientists within the U.S. innovation system has played a key role in advancing Beijing’s agenda. However, scientists who receive U.S. government funding (which, in practice, is the majority of scientists outside the private sector) are legally held to a much higher standard of transparency and disclosure where their dealings with foreign governments are concerned. This has opened the door to cases under the China Initiative in which the allegation is not necessarily the theft of secrets but, rather, the academic equivalent of a lobbyist failing to register as an agent of a foreign power.

Pursuing such cases is a legitimate endeavor, but their handling under the China Initiative has gone awry, provoking strong pushback from the academic and Asian American communities. A string of questionable cases has undercut the government’s broader effort to counter espionage by the People’s Republic of China (PRC) by alienating the very communities that the Department of Justice must collaborate with to effectively identify malign actors. Righting the ship will require more than minor tweaks or the mere promise of better discretion under new leadership. Instead, the incoming Biden administration should reform and rebuild the effort from the ground up to better reflect the highest values of the American justice system. Biden’s new team at the Department of Justice should conduct a full review of the initiative’s Trump-era cases to identify any instances of bias or overreach, reconstitute the program as a well-resourced effort against illicit knowledge transfer to any nation-state, offer a one-time amnesty for innocent past failures by scientists and academics to declare foreign funding, and rebuild public trust by introducing new safeguards against racial bias in investigations and prosecutions.

Some of the underlying tensions here are outgrowths of a distinct shift over the past two decades in America’s national security strategy toward China. The optimistic, economics-first engagement of those years has given way to resignation that the two countries will be strategic competitors for the foreseeable future. This sea change has been keenly felt in the sciences, where bilateral cooperation and academic engagement are both broad and deep. The United States’s top research institutions have long welcomed China’s most talented students and professors, and scientific exchanges with China receive considerable financial support from the U.S. government. Many of these scientists decide to build a new, permanent life in America; others return home to continue their scientific careers.

The U.S. scientific community thus lives between two truths in tension with one another. On the one hand, China is regarded as a “pacing threat” that is rapidly eroding American advantages in science and technology in ways that may one day upend the military balance in the Indo-Pacific. At the same time, the degree of entanglement between the two countries’ respective innovation ecosystems is unparalleled when compared to any other set of geopolitical rivals in modern history. It is hardly surprising, then, that the United States’s investigation and prosecution of cases of scientific espionage linked to or directed by Beijing has been mired in controversy for decades.

An inability to agree on the facts of past prosecutions is also a factor in the China Initiative’s current tensions. Many Asian American activists cite Taiwanese American scientist Wen Ho Lee’s 1999 prosecution for the theft of nuclear-related documents as the start of a legacy of “yellow peril” racism by the U.S. government aimed at Chinese American scientists—a legacy that stretches to contemporary controversies over more recent cases. By contrast, many FBI agents genuinely believe that Lee was caught red-handed and escaped conviction only because the Department of Justice botched the case. Even before Lee’s case, the FBI is now known to have targeted and surveilled Chinese-born American scientists during the 1960s and 1970s. When justifiable legal and geopolitical imperatives rub up against the festering wounds of American systemic racism, and the publicly known facts of a case are ambiguous and open to interpretation, every action must be taken with the utmost care—a standard that the U.S. government has often failed to meet.

Against this backdrop, the handling of Chen’s case has provoked intense concerns at MIT and beyond about possible racial profiling and threats to academic freedom. One reason the charges have provoked such an impassioned response is that, as previously noted, Chen is being prosecuted for failing to disclose work on behalf of foreign government entities rather than for personally engaging in illicit knowledge transfer. The distinction matters a great deal to the academic community. The United States’s globally connected research institutions host hundreds of thousands of scientists who receive some form of financial backing from abroad, most of which is entirely benign or even beneficial. At the same time, however, disclosure requirements for foreign funding have often been poorly communicated to the academic community, and until recently enforcement was nearly nonexistent, leaving many academics in violation of the relevant laws even when they have had nothing to hide.

The Department of Justice’s choice to leverage this widespread noncompliance for its prosecutorial advantage is to some extent understandable. An aggressive approach to enforcement can secure open-and-shut convictions on lesser charges against individuals who law enforcement believes to be guilty of greater offenses, analogous to Al Capone’s famous conviction for tax evasion. However, this tactic provokes equally understandable fears from many quarters of the scientific community, particularly from those who might find themselves at the mercy of prosecutorial discretion.

Looking to the future, the Biden administration should streamline, clarify and better publicize these disclosure requirements. There have been numerous proposals from within and beyond government, including the recent “Presidential Memorandum on United States Government-Supported Research and Development National Security Policy,” that offer feasible options for the Office of Science and Technology Policy to tackle this issue. The Justice Department is reportedly considering a one-time amnesty for those who have innocently failed to disclose foreign funding or affiliations in the past, and Biden would be wise to grant it. Such an amnesty would both allay fears of selective or arbitrary prosecution and give the U.S. government better information about the scale and scope of the problem through improved compliance with reporting requirements.

As the Biden administration reviews Trump’s policies on China, one positive step would be to begin a broader reckoning with this history by carrying out an independent and forthright assessment of past failures, offering formal apologies where appropriate to those who have been wronged. Such a review should consider not only the China Initiative’s cases themselves but also the Department of Justice’s public engagement and organizational culture, including serious engagement with critical perspectives from outside the department. This course of action would be in keeping with the Biden administration’s recent “Memorandum Condemning and Combating Racism, Xenophobia, and Intolerance Against Asian Americans and Pacific Islanders in the United States,” which calls for agencies to “take all appropriate steps to ensure that official actions, documents, and statements ... do not exhibit or contribute to racism, xenophobia, and intolerance against Asian Americans and Pacific Islanders.” The results of a thorough assessment can serve as a basis for formulating more robust safeguards against profiling and discrimination.

Re-scoping the initiative would also be for the best. While dedicating an initiative solely to China may have seemed an obvious choice to the Trump-era Justice Department, given the seriousness of China’s knowledge transfer campaign, structuring a major initiative to target only those with ties to one particular country inherently elevates the risk of ethnic profiling. Even a program designed to counter a legitimate threat can be harmful when “framing that threat in a problematic way,” as the scholar Margaret Lewis has warned. These concerns are reinforced by broad-brush generalizations from senior U.S. officials, such as FBI Director Christopher Wray’s description of China as a “whole-of-society threat.” At a time when Asian Americans continue to confront serious discrimination on many fronts, often actively stoked by the former president himself, it is little wonder that prosecutions carried out under a banner labeled the “China Initiative” could lead Chinese American scientists to be concerned about the fairness of their treatment relative to a “John Smith” down the hall.

Going forward, the China Initiative should thus be renamed, reframed and restructured as a broader campaign to counter illicit knowledge transfer by any nation-state perpetrator, concentrating on tactics, techniques and procedures rather than a “nexus” to “China” per se. As a letter to then-President-elect Biden on Jan. 5 organized by Asian Americans Advancing Justice noted: “It is appropriate for the Justice Department to take measures to address the harms caused by agents of the PRC who have engaged in economic espionage and trade secrets thefts. However, naming only China in a [Justice Department] initiative ignores threats of economic espionage by other nations.” The lion’s share of its cases are still likely to involve the Chinese government’s industrial espionage, but explicitly limiting the program’s scope to one country serves little purpose and needlessly fuels public mistrust. What’s more, widening the aperture can help the Justice Department avoid being caught on the back foot by intellectual property theft linked to other countries.

In the China Initiative, questions of geopolitics and national security have collided with concerns over civil rights and academic freedom. Given the history and severity of current concerns, the onus is on U.S. federal agencies to demonstrate that they are proactively countering historic inequities, reversing systematic racism in the nation’s institutions, and ensuring that enforcement of the laws will be fair and unbiased. The Biden administration has an important mandate to guarantee that the geopolitical threats America confronts today are tackled in a manner consistent with the nation’s highest values. Doing so will not sacrifice national security—if anything, it will strengthen it.