The Fine Line Between Countering Security Threats And Racial Profiling

Aug 16, 2016
Originally published on August 16, 2016 2:12 pm

In a courtroom in Knoxville, Tenn., the latest legal twist is unfolding in a case involving China — and alleged nuclear espionage.

Szuhsiung "Allen" Ho has been jailed since April. He's a nuclear engineer and consultant, born in Taiwan and educated in the U.S.

Ho's case is one of a number involving scientists the U.S. government suspects may also be spies. The scientists in question are all American citizens; they were all born in mainland China or Taiwan.

That set of facts has raised questions about whether the Justice Department is targeting people because of their ethnicity.

In Ho's case, he came to the U.S. in 1973 to attend the University of California, Berkeley. This past April, he was charged with violating the Atomic Energy Act — specifically, by using U.S.-based nuclear experts to help China's largest nuclear power company develop and produce "special nuclear material." If convicted, the charge carries a maximum sentence of life in prison and a $250,000 fine.

Ho is also accused of conspiring to act as an agent of a foreign government. The government alleges that his actions put U.S. national security at risk.

The case is scheduled to go to trial Jan. 24, 2017. In court Tuesday, Ho's lawyer, Peter Zeidenberg of the law firm Arent Fox, argued that Ho should in the meantime be freed on bail.

The judge ordered government prosecutors to identify by Friday any cases in which Chinese-Americans were released on bail and then fled the country, Zeidenberg says.

Zeidenberg declined to discuss other details of Ho's case, because the litigation is ongoing. But in an interview with NPR, he argues that broadly speaking, it fits a pattern of racial discrimination.

Zeidenberg has defended several Asian-American scientists facing espionage-related charges, and he says his clients have been targeted because of their ties to China.

"If their ties were to France or their ties were to Italy or Scandinavia, their conduct would never come under the radar of the [Justice] Department. It's a bright red flag," he says.

A former federal prosecutor, Zeidenberg adds that he understands the challenge presented by Chinese economic espionage. But he believes his former colleagues are overreacting. "They have been way too quick to pull the trigger on these cases and others," he says. "They see conspiracies and patterns and malevolent conduct, when there isn't any."

The Justice Department and FBI deny this, and point to the many successful prosecutions of scientists. They say they will go after anyone who breaks the law — including one of their own.

Just this month, Kun Shan "Joey" Chun pleaded guilty to espionage-related charges brought by federal prosecutors. Chun, a naturalized U.S. citizen born in China, worked for the FBI until his arrest on March 16. An electronics technician, he held a top secret security clearance and had access to classified information. In a statement, the Justice Department said Chun "violated our nation's trust by exploiting his official U.S. government position to provide restricted and sensitive FBI information to the Chinese government." Chun has yet to be sentenced.

The FBI declined NPR's request for an interview. But asked to respond to allegations that in their zeal to uncover Chinese spies, investigators are unfairly targeting Chinese-Americans, the FBI provided this statement:

"While we cannot comment on specific cases, the FBI follows the facts wherever they lead. Consistent with Department of Justice guidance on the use of race in law enforcement activities, we investigate individuals based on known or suspected criminal activities or threats to national security. It is our duty to safeguard the civil rights and liberties of all Americans. The FBI does not initiate investigations based on an individual's race, ethnicity, national origin or religion."

What is not in dispute is that nuclear and economic espionage by China costs the U.S. economy billions of dollars each year. Nor is there any doubt that China is interested in intellectual property and classified data that belong to the U.S. government or to American companies. The FBI's task is to counter data theft — and a key plank of the FBI strategy to do that has become aggressive investigations.

Xiaoxing Xi became the target of such an investigation last year. Xi was born in China and came to the United States in 1989, eventually becoming a naturalized U.S. citizen. A physics professor at Temple University, he told NPR that he was at home in Philadelphia on May 21, 2015, when he heard a knock at the front door.

"So I run to the door to open it and saw a lot of people outside," Xi says. "Some were armed. And some had a battering ram, ready to take down the door. An FBI agent showed his badge and asked me, 'Are you Xiaoxing Xi?' I said yes, and then he announced that I was arrested. Another agent just put the handcuffs on me."

Xi says his wife and daughters — one of whom was 12 years old at the time — were at home and witnessed the scene. They were marched out of their bedrooms at gunpoint, Xi says, while he was taken away for questions and fingerprinting.

Xi was charged with four counts of wire fraud. A widely respected expert in superconductor technology, he was accused of trying to help "Chinese entities in becoming world leaders of the superconductivity field," a field with military applications. The Justice Department also alleged that Xi, in exchange for his efforts, "repeatedly sought lucrative and prestigious appointments in China."

The charges were eventually dropped against Xi, who denies that he ever sought to enrich himself through improper means or that he ever spied for China.

"No, never," he told NPR. "Of course I collaborate with people in China, but that's what the government and the universities encourage us to do — academic collaboration, in particular in today's global environment for scientific research."

"I wish they [would] catch more people who are actually doing the spying," Xi adds. "But cases like mine — they undermine people's confidence in America's legal system. These kind of cases literally terrorize the Asian-American community, and scientific community."

Xi's case carries echoes of the accusations against Wen Ho Lee, a Taiwanese-born scientist at Los Alamos National Laboratory. Lee was indicted back in 1999 for stealing nuclear weapons designs and sharing them with China. He spent nine months in solitary confinement.

All charges against Lee were later dropped, except one — improper handling of restricted data. Some details in the case remain murky to this day, but the presiding judge eventually apologized to Lee for his harsh treatment — and Lee was awarded a $1.6 million settlement.

Copyright 2018 NPR. To see more, visit http://www.npr.org/.

RENEE MONTAGNE, HOST:

In a Tennessee courtroom today, a high-stakes bail hearing will take place. It's a case involving China and alleged nuclear espionage. Allen Ho has been jailed since April. He's charged with violating the Atomic Energy Act. His case is one of a number involving scientists who the U.S. government suspects may also be spies. The scientists in question are all U.S. citizens, though they were all born in mainland China or Taiwan.

NPR's Mary Louise Kelly is with us here now. Good morning.

MARY LOUISE KELLY, BYLINE: Good morning, Renee.

MONTAGNE: And what exactly is Allen Ho charged with?

KELLY: So Ho is a nuclear engineer and consultant. And the charges against him, in essence, are that he helped China's biggest nuclear power company to develop sensitive nuclear technology. He's also charged with conspiracy to act as an agent of a foreign government, in this case China. And the allegation is that in doing these things, he put U.S. national security at risk.

These are serious charges, Renee. They carry a maximum of a possible life sentence.

MONTAGNE: And Allen Ho, he's denied these charges?

KELLY: He does. Again, he's been in jail, so I wasn't able to speak to him. But I did interview his attorney, a man named Peter Zeidenberg, who has defended a number of these Asian-American scientists, many of whose cases have eventually been dismissed. And so Zeidenberg would not comment on the details of Ho's case, but he would say across the cases he's been involved with, he sees a pattern of people targeted because of their ties to China.

Here's what he said.

PETER ZEIDENBERG: If their ties were to France or their ties were to Italy or to Scandinavia, their conduct would never come under the radar of the department. It's a bright red flag.

KELLY: You heard him talking there under the radar of the department, and what he means is, of course, the Justice Department, which is prosecuting these cases. And that's worth noting. Zeidenberg, who's now with a big D.C. law firm Arent Fox, but he was a longtime federal prosecutor. And he told me he thinks his former colleagues are overreaching.

ZEIDENBERG: They have been way too quick to pull the trigger on these cases and others. And they see conspiracies and patterns and malevolent conduct when there isn't any.

MONTAGNE: Talk to us, Mary Louise, about some of these cases involving scientists accused of spying. Several have made the news in the last few months.

KELLY: There certainly have. There's the case people may remember of Sherry Chen, a Chinese-American. She was accused of illegally accessing federal dam databases. She was cleared of all charges, but she lost her job with the National Weather Service. She's still fighting to get it back. Another case that I want to bring to your attention, this is the case of Xiaoxing Xi.

Professor Xi has quite a story. He is Chinese-American, again. He is a U.S. citizen, again. He's a physics professor at Temple University. And last year, one morning in May, he was at his home, which is in Philadelphia. And he told me he heard a knock at the door.

XIAOXING XI: So I run to the door to open it and saw a lot of people outside of the house. And some were armed and some had the battering ram ready to take down the door.

KELLY: A battering ram ready to take down your door.

XI: Yeah, and so an FBI agent showed his badge and asked me are you Xiaoxing Xi? I said, yes. And then he announced that I was arrested. And another agent just put the handcuffs on me.

KELLY: What did they say you were being arrested for?

XI: I asked them, but they wouldn't tell me. They said, we'll tell you after you answer some questions at the headquarters.

KELLY: And, Renee, Professor Xi says his wife and daughters were home, one of whom was just 12 at the time. They were marched out of their bedrooms at gunpoint. And Professor Xi was taken in for questions, as you heard there. He was fingerprinted, had his mug shot taken.

MONTAGNE: And in the end, what was Professor Xi charged with?

KELLY: Well, what he was formally charged with was wire fraud. When you read through the indictment, what becomes clear is that the FBI became convinced he was passing high tech secrets, secrets with a military application, to China. Now, Professor Xi denies that. And four months later, all charges were dropped. But I asked him about it point blank. Here's our exchange.

Were you spying for China?

XI: No, no, never. Of course, I collaborate with people in China. But that's what the government and the universities encourage us to do.

KELLY: You understand, I assume, that economic espionage by China is a big national security threat and that the FBI's job is to counter it.

XI: Absolutely. I wish they catch more people who are actually doing the spying. These kind of cases literally terrorize the Asian-American community and scientific community.

MONTAGNE: And, Mary Louise, those are strong words. Those are pretty tough accusations.

KELLY: They are.

MONTAGNE: What is the backdrop? Why are we seeing a rise in cases like the ones you've been telling us about?

KELLY: Well, I think the backdrop is that economic espionage by China does cost the U.S. economy billions every year. There's no question, no dispute that China is interested in acquiring intellectual property, classified data that belongs to the U.S. government and to American companies. And we should note, there have been many successful prosecutions.

The FBI in order to raise awareness about this whole problem actually launched a big campaign last summer. Part of it was a movie that they made. Let me let you listen to this one part of it.

(SOUNDBITE OF VIDEO)

UNIDENTIFIED ACTOR: (As character) Special Agent Carpenter (ph).

KELLY: So that's a dramatization, but it's based on a true story. And it's about a Chinese company that was trying to steal trade secrets from a U.S. competitor.

MONTAGNE: Now, the FBI and the Justice Department, how do they respond to concerns that in their zeal to uncover Chinese spies, Chinese-Americans are being unfairly targeted?

KELLY: They say absolutely not the case. The FBI declined our request for an interview. But they did give us a statement. Let me read part of that to you now. It says (reading) while we cannot comment on specific cases, the FBI follows the facts wherever they lead. It goes on, quote, "we investigate individuals based on known or suspected criminal activities or threats to national security. The FBI does not initiate investigations based on an individual's race, ethnicity, national origin or religion."

To circle back to where we began, this hearing that's unfolding today in a courtroom in Knoxville. And I expect, Renee, we have not seen the last of these high-profile prosecutions because the FBI and the DOJ are still trying to figure out how do you counter a legitimate national security threat without discriminating on racial grounds?

MONTAGNE: That's NPR's national security correspondent Mary Louise Kelly. Thanks very much.

KELLY: You're welcome. Transcript provided by NPR, Copyright NPR.