By Sam Cleveland, contributor
Is the United States Department of Justice targeting ethnic Chinese in economic espionage cases? If so, is such targeting justified, or does it represent yet another noxious instance of American authorities using racial or ethnic profiling? Is the government targeting Chinese people at all, or are ethnic Chinese just more likely to be caught up in economic espionage?
These were just some of the many thorny and difficult-to-answer questions addressed on the evening of April 4 at the event titled “Pitfalls for All STEM Professionals in a New Era of US-China Relations” at the McNamara Alumni Center on the University of Minnesota campus. This program was co-sponsored by the United States District Court for the District of Minnesota, the Federal Bar Association’s Minnesota Chapter, University of Minnesota China Center, and Kingsfield Law Office.
The evening began with a reception of approximately 200 attendees, half of whom appeared to be of Asian descent, including many recognizable leaders of Minnesota’s Chinese community. Guests mingled with the panelists, speakers and moderator in the McNamara Center’s foyer over drinks and hors d’oeuvres. One could hear many tongues, proof of the diversity of the attendees.
The event started exactly at 6:45 p.m. a hint of the tight time constraints on an ambitious program aimed at introducing to STEM professionals in Minnesota the challenges and traps to avoid when working within 21st century Sino-American relational realities. Joan Brzezinski, executive director of the University of Minnesota’s China Center, kicked off the introductions. After her, Meredith McQuaid, associate vice president and dean of International Programs at the University of Minnesota discussed the long history between the University and China. She noted that interchange between the United States and China runs both ways, establishing a strong connection — the University has long sent students to study in China and more than 2,500 Chinese students are currently enrolled here. McQuaid noted that although there has sometimes been skepticism of China, it’s important for China and the United States to understand each other and work toward common goals, and she highlighted the unique role the University plays in this.
The moderator for the night, the Honorable Tony N. Leung, spoke next. Judge Leung is Minnesota’s first judge of Asian descent, having started in 1994 as a state district court judge and now serving as a U.S. Magistrate Judge chambered in Minneapolis. Leung is a leading voice on diversity, inclusion and community outreach, and only a few days earlier had been the featured speaker at a panel on judicial diversity at the University of Minnesota Law School. The judge, born in Cantonese-speaking Hong Kong, began with a few deliberately read sentences in Mandarin, and then humorously explained his worry that program attendee Margaret Wong, the unofficial dean of Mandarin-language teachers in Minnesota, would correct his tones.
Leung then introduced the Honorable Michael J. Davis, who spoke on behalf of the United States District Court for the District of Minnesota. Judge Davis, who had served on the little known but very powerful Foreign Intelligence Surveillance Act Court when Dr. Wen Ho Lee’s case broke, noted the importance of community outreach to the Courts, and explained that such outreach helps achieve the Court’s goal to be open, transparent, viable, and to further the understanding of the rule of law to all communities.
Finally, First Assistant U.S. Attorney for the District of Minnesota W. Anders Folk spoke, highlighting how the issues at play in this discussion lie at the intersection of national security and law. Professor Chang Wang and attorney Benjamin Kwan then introduced the panelists. Overall, the introductions provided helpful context, but also took time away from the more interesting discussion that followed.
The first member of the panel to speak was Jay Bratt, chief of the Counterintelligence and Export Control Section of the National Security Division of the Department of Justice. Bratt first gave an overview of his duties at the DOJ before explaining his department’s “China Initiative” which, as he explained, is designed to address the “China threat.” He explained that China is currently the most aggressive country in terms of trying to convince people to commit espionage, citing recent cases like Kevin Mallory, Ron Rockwell Hansen, and Jerry Chun Shing Lee.
One begins to wonder whether Bratt intentionally cited two cases of Caucasians committing espionage to head off prophylactically criticism that this China Initiative is engaged in the targeting of ethnic Chinese. Contrary to this supposition, however, Bratt stated that the goal of the China Initiative is not to target Chinese people. After citing examples of people prosecuted for theft of trade secrets, he insisted that even though the people in the examples were of Chinese ethnicity, they were not targeted because of their ethnicity. To the contrary, he argued, anyone doing what they were doing would have been investigated and prosecuted.
The next panelist to speak, Brian A. Sun of Jones Day’s Los Angeles office and who was on the criminal defense team of Lee and lawyer on his subsequently successful civil lawsuit, was highly doubtful of Bratt’s argument. “If this were France instead of China, there is no question that the Department of Justice wouldn’t have a ‘France initiative,’” Sun stated early in his speech. Further explaining his skepticism of the claimed innocence of the China Initiative, Sun said, “In this country, national security trumps racial profiling every day of the week.”
Sun’s presentation had a distinct historical flavor. He noted that Asian Americans have long been viewed suspiciously in the United States and have been singled out in being questioned about their loyalty to this country. To support this claim, Sun cited the Red Scare, the 1996 campaign finance controversy alleging that China tried to influence the 1996 presidential election, the Cox Report, and the case against Lee. Although these cases reflect the United States’ broader skepticism and fear of China, Sun went further and specifically implicated the Department of Justice for perpetuating and reinforcing these fears. He referenced Judge James A. Parker’s statements to Lee at the end of the criminal trial, in which the judge apologized for imposing harsh pre-trial confinement and voiced he felt he had been “led astray” by the government.
Sun ended with some advice for the STEM majors and professionals in the audience: “Don’t be stupid.” This phrase, which Sun repeated numerous times, emphasized STEM professionals should be open and transparent about their affiliations and activities, especially since they will “have a big target on [their] backs” due to alleged ethnic profiling.
While it is unknown what Bratt, whose employer was directly implicated by Sun’s presentation, may have thought of Sun’s remarks, when Sun sat down after his comments, the two, despite sitting right next to each other, didn’t make eye contact or exchange pleasantries. The three panelists know and respect each other, but that moment in the program suggested the competing interests of this thorny topic.
The final panelist was Peter R. Zeidenberg, of Arent Fox in Washington, D.C., who has defended many ethnic Chinese and others against government criminal accusations. He shared his experience working on the case of Dr. Xiaoxing Xi, the former chairperson of Temple University’s Physics Department. Zeidenberg led off by showing the “60 Minutes” segment dedicated to the investigation and prosecution of Xi. Zeidenberg explained that while there may be a real “China threat,” overreaction to it is just as real and can cause grave consequences, such as a “brain drain” from the United States.
Following the three panelists’ presentations, it was already 8:30 p.m. — the stated ending time for the event. After noting this, Leung asked the panelists what progress, if any, has been made in racial profiling. Sun, answering first, sounded a pessimistic note, stating that history repeats itself and Asian Americans are likely to continue being subjected to profiling in the future. Bratt followed, and perhaps more so attempting to rebut Sun’s and Zeidenberg’s presentations, spoke of the fact that the DOJ has a “grave responsibility” to avoid repeating the mistakes that led to “real life horror stories” such as those experienced by Lee and Xi. Supporting Bratt and the government’s perspective, Jason Vanthomme, supervisory special agent of FBI Headquarters Counterintelligence Division, spoke of the work by federal law enforcement agents in this field.
Although time had already run out, Leung quipped, “Let’s get one audience question so we can say we did the Q and A.” Dr. Kin Lun asked Bratt whether there are any safeguards in place to make sure the DOJ doesn’t act discriminatorily, to which Bratt responded in part by citing the 14th Amendment of the Constitution.
Ultimately, although the discussion was interesting, one got the sense that the panelists were often talking past each other. Bratt focused on the comparatively mundane and unobjectionable cases that his department investigates and prosecutes regularly. Sun and Zeidenberg focused on the extreme cases that spark outrage. The manner in which the material was presented (and surely the shortage of time contributed to this) may have led some to infer that these extreme cases of profiling and violation of rights are more common than they are. In this sense the discussion was unfulfilling.
Relatedly, the panelists did not discuss a core issue implicated by this topic — what can be called the “chicken and egg problem.” What came first, the alleged profiling or the crimes? The program for the event notes that “China was involved in 90 percent of all economic espionage cases handled by the Department of Justice over the last seven years.” A core question that seems to follow from this is whether this percent of cases is proportional to the amount of economic espionage committed by various countries. One could imagine a scenario where China really commits this much economic espionage compared to other countries and that they’re being prosecuted for their fair share of economic espionage. This would seem a rather inoffensive state of things. But if China commits, say, 40 percent of all economic espionage against the United States, but the prosecutions of cases involving China account for 90 percent, it would seem inequitable, unfair, and odious. This core question was left largely unanswered.
The time constraints on a Thursday evening program taking on such a complex topic also impacted the “panel discussion” aspect of the event. True interactive discussion between the panelists was extremely limited. Rather, each gave his discrete presentation, and there was little repartee among the panelists or the moderator. This event would have been enhanced by more time to engage in more discussion and interaction.
Overall, the program succeeded in bringing to the attention of STEM professionals and students, and the broader Asian community in Minnesota that the pitfalls of engagement with China in the context of 21st century Sino-American relations are as real as the tremendous opportunities. Many recognized leaders of Minnesota’s Asian Pacific community attended and were encouraged to spread the word about being vigilant about racial profiling. Minnesota’s Asian Pacific community should be encouraged that speakers of the highest levels literally from across the nation cared enough about this topic to spend an evening with them. No doubt attendees walked out of the McNamara Center Thursday night with a lot to think about and digest. The University of Minnesota was lucky to have such an event on its campus to highlight and address this contemporary problem with global ramifications.
Sam Cleveland is a student at the University of Minnesota Law School. Realizing he had a year to fill between graduating from the University of Wisconsin-Madison and starting law school, Sam chose to spend a year teaching English in China. Not only was the experience a fantastic adventure, but it also sparked Sam’s deep interest in China. He hopes to pursue a career in litigation following his graduation from law school in May 2020.