For more than two decades, China has engaged in a systematic campaign of counterintelligence, economic espionage, and information and intellectual property theft directed at the US. According to the Center for Strategic and International Studies, there have been at least 160 publicly reported instances of Chinese espionage directed at the US since 2000. Indeed, in 2020 FBI Director Christopher Wray declared China’s campaign “the greatest long-term threat to our nation’s information and intellectual property, and to our economic vitality.”
Even though the US Department of Justice had been prosecuting individuals for China-related economic espionage and trade secret theft since at least the early 2000s, in 2018 the department announced the creation of the so-called “China Initiative.” The department stated that the Initiative “reflects the strategic priority of countering Chinese national security threats and reinforces [President Donald Trump’s] overall national security strategy.”
Any law enforcement initiative that fails to define its goals and objectives clearly and is unable to serve US foreign policy and national interests is destined to fail.
At its creation, then-Attorney General Jeff Sessions set 10 ambitious goals for the Initiative. They included: identifying priority trade secret theft cases; ensuring adequate resources for all investigations; working to bring the cases to fruition in a timely manner and according to the facts and applicable law; and developing an enforcement strategy concerning non-traditional collectors (e.g., researchers in labs, universities and the defense industrial base, etc.) that may be co opted into transferring technology contrary to US interests.
While the Initiative’s broad goals were sound, from the outset it had four fundamental flaws. It did not define what types of cases would be considered “priority,” what the enforcement strategy would be regarding laboratory and academic researchers, or how the Initiative would reinforce the president’s National Security Strategy. It did not even define the criteria for what would constitute a “China Initiative” case.
The question, then, is: How did the Initiative survive for as long as it did?
THE INITIATIVE’S LIFE SPAN
The China Initiative’s lack of clarity proved to be a critical weakness of its implementation. While the Justice Department did bring some successful prosecutions of individuals indisputably engaged in economic espionage (including a senior Chinese intelligence officer and a former CIA officer), it also veered into bringing cases of dubious prosecutive merit. For example, the department publicly announced indictments in two cases — one against four members of the Chinese People’s Liberation Army, the other against four officers in an arm of the Chinese Ministry of State Security — that charged the defendants with computer hacking directed at economic espionage, even though the department lacked personal jurisdiction over the defendants and had no hope of their immediate or future extradition from China. In addition, the department reportedly brought a number of cases against academics (many, but not all, of Chinese heritage) for so-called “research integrity” issues (e.g., allegedly hiding affiliations with Chinese universities) and disproportionately targeted individuals of Chinese heritage. Moreover, in 2021 the department found it necessary to dismiss five of its Initiative cases against academics without explanation, and was confronted with a mistrial and later acquittal in a sixth case.
In the face of mounting public criticism of the Initiative, Assistant Attorney General Matthew Olsen of the Department’s National Security Division announced on Feb. 23, 2022 that the Department was ending it. Olsen minced no words in stating that the Chinese government “stands apart” as a nation-state actor engaging in “concerted use of espionage, theft of trade secrets, malicious cyber activity, transnational repression, and other tactics to advance its interests.” At the same time, he said that after an intradepartmental review of the Initiative to determine whether it “still best serves the strategic needs and priorities of the department,” he concluded that it “is not the right approach.” He acknowledged that:
“[B]y grouping cases under the China Initiative rubric, we helped give rise to a harmful perception that the department applies a lower standard to investigate and prosecute criminal conduct related to that country or that we in some way view people with racial, ethnic or familial ties to China differently.”
With regard to cases involving academic integrity and research security, Olsen made clear that the Justice Department will exercise much closer control over the pursuit of such cases. He stated that his division will take on an “active supervisory role” in such investigations and prosecutions, and would work with the FBI and other investigative agencies to assess evidence of intent and materiality, as well as the nexus to US national or economic security.” Olsen also noted that those considerations would guide the department’s decisions, including whether civil or administrative remedies or criminal prosecution would be more appropriate.
That latter statement strongly indicates that the Initiative, by apparently pursuing all research-integrity cases only as criminal cases, was conducted in contravention of the department’s own Principles of Federal Prosecution. Those principles state that a federal prosecutor should commence or recommend federal prosecution unless, among other factors, “there exists an adequate non-criminal alternative to prosecution.” In making that decision, the prosecutor should consider “all relevant factors,” including “[t]he effect of non-criminal disposition on federal law enforcement interests.”
Certainly some research-integrity cases involving aggravating factors may warrant criminal prosecution, such as a researcher’s efforts to flee the US with research he had acquired for China’s benefit. But the full force of the criminal law should not fall on simple cases that involve only alleged failures to disclose ties to foreign interests, and not misappropriation or theft of trade secrets or other sensitive data.
A REFLECTION
In any event, Olsen’s speech reflects the department’s continued commitment to vigorous pursuit of economic espionage and trade-secret theft, but with a broader approach, as Olsen put it, to “tackle the most severe threats from a range of hostile nation-states.” China, Russia, North Korea, and Iran are all in the front rank of those nation-states, and all four will require sustained attention and appropriate responses from the US law enforcement and intelligence communities.
Ultimately, the China Initiative proved the wisdom of the Chinese proverb “A bad beginning makes a bad ending.” Any law enforcement initiative that fails to: Define its goals and objectives clearly; set key performance indicators by which its leaders and independent observers can monitor its progress and judge its success; and is unable to serve US foreign policy and national security interests, is almost certain to fail. As Thomas Gray might have written, the paths of poorly conceived and implemented policies lead but to the grave.
Jonathan J. Rusch is adjunct professor at Georgetown University Law Center and American University Washington College of Law, and a former Deputy Chief with the US Department of Justice’s Fraud Section. He teaches courses on anti-corruption law and anti-money laundering law.
