Espionage prosecutions in the US have punished Chinese and Asian defendants more severely, and may have falsely accused them more often than Western defendants, according to a new report.
Sponsored by the Committee of 100 (C100), a non-profit organisation promoting US-China relations, the study examined court filings of 190 Economic Espionage Act (EEA) cases involving 276 defendants between 1996 and 2020, and found disparities in the way that defendants with Asian or Chinese names versus more Western names have been arrested and sentenced.
“All of us law-abiding citizens who care about America, its strength and its vitality have to be concerned about the way the Justice Department, the FBI and law enforcement have been pursuing these Economic Espionage Act cases,” Gary Locke, chairman of the C100 and a former US ambassador to China, said on Tuesday.
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“The unfair and unequal discriminatory treatment of Chinese-Americans and Asian-Americans in contrast to people with non-Asian names is absolutely shocking and unacceptable.”
Targeting suspected commercial espionage by China started under the Obama administration. The proportion of defendants of Chinese descent accused of EEA offences grew from 16 per cent before 2009 to more than half between 2009 and 2016, a proportion that continued into the Trump administration, according to the report.
The China Initiative, launched in 2018 during the Trump administration, has focused on finding Chinese spies working in American universities. However, many of the investigations ended in charges that were not for espionage, but for crimes such as fraud or making false statements.
For cases that led to EEA charges, more than 20 per cent of Chinese-descent defendants were never convicted of any crime in these prosecutions, higher than the 11 per cent for people of Western descent, suggesting that people of Chinese descent were more likely to be falsely accused of spying, according to the report.
“There’s no judgment of innocence in our justice system, but these people were never proven guilty of any crimes,” said lawyer Andrew Chongseh Kim, the lead researcher. “They may have been innocent the entire time.”
And if the trials ended in convictions, prosecutors punished defendants of Chinese descent more harshly, sending 80 per cent of them to prison. This figure is about half for Western defendants, with the rest receiving probation, according to the research.
The average prison term for defendants of Chinese descent, at 27 months, was also more than twice as long as the average for defendants of Western descent, at 12 months, the study found. More defendants of Chinese descent also faced arrests, were denied bail, and or had their case publicised by the Department of Justice than Western defendants.
Carol Lam, a former US lawyer for the Southern District of California, said she was deeply disappointed in the Department of Justice, and described the China Initiative as a misstep.
“What happens with these initiatives is two things. You get cases that are brought that perhaps should not have been brought, based on the merits,” Lam said. “You also get cases that are smaller and smaller, and disingenuously put into the bucket of fulfilling the initiative for purposes of statistics … This has been a terrible failure.”
The Department of Justice did not immediately respond to a request for comment.
The first case under the China Initiative to go to trial involved former University of Tennessee professor Hu Anming, who was accused by prosecutors of wire fraud and making false statements, even though the FBI first investigated him for spying.
Hu was acquitted of all charges earlier this month after a judge ruled the government failed to provide sufficient evidence.
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