The views expressed are the authors own, and do not necessarily reflect the official policy of Defending Rights & Dissent.

In the nearly two-and-a-half centuries the American Republic has existed, a nearly countless number of individuals and groups have been the targets of federal domestic surveillance, political repression, or both. In many cases, the victims were non-white–Blacks, Native Americans, Arab or Muslim Americans, or different segments of the Asian American community. And in the post-World War II era, Chinese Americans have all too often been the targets of not only the U.S. government, but of the agents of the People’s Republic of China (PRC) as well. Just over 25 years ago, I witnessed exactly how PRC operatives attempt to silence those opposed to its policies, even on American soil.

The event was a Holocaust remembrance conference at Purdue University in early April 1997, the theme of which was individual guilt and collective responsibility. I’d been invited to speak because of my recent CIA whistleblowing activities, and to my amazement I was privileged to share the stage with one of the bravest men I’ve ever met: Chinese dissident Harry Wu. 

Wu’s life story was an amazing one: escaping a PRC political prison after 19 years of brutal treatment, coming to the United States, founding a nonprofit in 1992 to expose the PRC political prison-industrial system, and returning undercover to the PRC periodically at enormous personal risk to smuggle out other prisoners and dissidents. His speech at the Purdue event quickly turned ugly when a number of Chinese students in the audience began heckling him and trying to shout him down. I asked the event organizer if I could be recognized to address the audience, and he agreed.

“I’d like to thank the members of the Chinese intelligence service for joining us here today,” I began. That silenced Wu’s hecklers. I then explained to the audience the kinds of tactics the PRC uses to intimidate dissidents living abroad and made it clear to the ones who’d harassed Wu that this was not the PRC, and that Wu was going to be heard. 

I’ll never forget two things about that event: shaking Wu’s hand when it was over and the kind words he offered for my intervention, and the reminder about the long arm of PRC repression that had been allowed to reach directly into an American university in the heartland. 

The PRC dissident intimidation program I described above is known alternatively as “Operation Fox Hunt” and “Operation Skynet” according to an October 28, 2020, Justice Department announcement regarding indictments and arrests of a number of PRC nationals who attempted to do far worse than heckle their targets. A superseding indictment in the same case on July 22, 2021, noted that PRC Hanyang People’s Procuratorate prosecutor, Tu Lan, “traveled to the United States, directed the harassment campaign and ordered a coconspirator to destroy evidence to obstruct the criminal investigation.”

I am absolutely delighted the Justice Department is pursuing these and related “Operation Fox Hunt” cases. It’s exactly the kind of legal approach needed to protect Chinese dissidents and asylum seekers in the U.S. Unfortunately, the federal government itself has been wrongfully targeting Chinese Americans researchers and scientists accused of acting as spies or otherwise working on behalf of the PRC in ways that are almost as bad as the PRC’s “Operation Fox Hunt.”

Prior to the fall of 2018, the most infamous case of the federal government improperly indicting a Chinese American scientist was that of Department of Energy employee Wen Ho Lee in the late 1990s. Lee’s life and career have never really recovered from that episode. But instead of learning from the mistakes in the Lee case, the Trump administration in November 2018 launched the so-called “China Initiative“–an investigation and prosecution campaign focused on alleged (and in some cases actual) PRC espionage and technology thefts targeting both the U.S. government and American companies. 

Asian American and civil liberties organizations condemned the Justice Department’s actions as government sponsored racial profiling and targeting. By the late winter of 2021, a study showing how rarely Chinese Americans actually engaged in espionage lent credence to “China Initiative” critics complaints, and by late 2021 the number of acquittals or dismissed cases carried out under the “China Initiative” had reached the point of embarrassment for DoJ. On February 23, 2022, DoJ announced the alleged end of the “China Initiative.” 

In the months since, many in the Chinese American community continue to wonder if the targeting of Chinese American scientists and researchers by the federal government will really end. There is reason to believe the answer is no.

On April 20, 2022, less than two months after the Biden administration claimed the “China Initiative” was dead, the FBI responded to a Cato Institute Freedom of Information Act (FOIA) on the topic, stating “The material you requested is located in an investigative file which is exempt from disclosure pursuant to 5 U.S.C. §§ 552(b)(1), 5 U.S.C. § 552(b)(3), and 5 U.S.C. § 522(b)(7)(E).” 

The statutory citation is to the FOIA itself and three specific “exemptions” or carve outs that allow the federal government to withhold information from public release. The first two reference national security and “intelligence sources and methods” data, the latter to a law enforcement exemption regarding records “which would disclose techniques and procedures for law enforcement investigations or prosecutions or would disclose guidelines for law enforcement investigations or prosecutions if such disclosure could reasonably be expected to risk circumvention of the law.” 

The FBI response is all the more remarkable in light of a March 15, 2022, FOIA compliance directive from Attorney General Merrick Garland to all federal agencies and departments. Garland’s memo states that with respect to the implementation of the 2016 statutory updates to the FOIA, “Information that might technically fall within an exemption should not be withheld from a FOIA requester unless the agency can identify a foreseeable harm or legal bar to disclosure. In case of doubt, openness should prevail. Moreover, agencies are strongly encouraged to make discretionary disclosures of information where appropriate.” Cato has appealed the FBI’s denial. 

Late last month, the Office of the Director of National Intelligence (ODNI) issued a Congressionally mandated report that claimed, with respect to U.S. government intelligence activities that may implicate the constitutional rights of Chinese Americans, “The privacy, civil liberties, and civil rights protections embedded in these intelligence programs protect all Americans.” In May 2021, in response to another Cato FOIA on the “China Initiative,” the ODNI denied the request on virtually identical grounds as the FBI. That Cato request is likewise on appeal.

These events are significant in light of a key admission on page 7 of the ODNI report regarding the Intelligence Community’s (IC’s) assessment of PRC espionage recruitment methods:

“While some of these factors may in individual cases be correlated with having personal, financial, or professional connections with individuals or groups located within the PRC, it is the IC’s assessment that PRC intelligence services do not rely merely on race or ethnicity in assessing the recruitment potential of intelligence assets.”

That conclusion was not included in the public version of the annual ODNI Worldwide Threat Assessment released just two weeks after DoJ allegedly killed the “China Initiative.” 

If that IC conclusion was issued prior to or during the “China Initiative,” it would mean the Justice Department, under Trump and/or Biden, deliberately ignored a finding suggesting a focus on race by the FBI in such China-related investigations was bound to lead to innocent Chinese Americans being targeted for surveillance and prosecution. 

When that particular IC conclusion on PRC espionage tactics was issued, who received it, and what actions if any were taken because of it should be the focus of further Congressional and civil society investigation. The victims of the “China Initiative,” their families, friends, and the public at large deserve the truth in the matter. Finally, Congress should revisit the question of whether or not agency-issued civil liberties guidelines and procedures are remotely capable of preventing similar episodes in the future, and if not, what legislative and oversight remedies are needed to fix the problem.