By Jane Lanhee Lee
SAN FRANCISCO (Reuters) - For Chinese brain researcher Song Chen, a visiting scholar at Stanford University when she was arrested last July on a visa fraud charge, a court hearing last month in San Francisco brought some hope.
U.S. District Judge William Alsup expressed skepticism about the FBI's failure to inform Song of her rights when she was first interrogated, calling its tactics a "gimmick." He'd previously rejected requests from the prosecution that evidence in her case be kept secret on national security grounds, a decision the U.S. government is appealing.
But Song, who sat tense and teary-eyed through the proceedings, is still a long way from a trial date as the case winds through the courts. She also has been charged with lying to investigators and destroying evidence as part of an alleged effort to conceal ties to the Chinese military.
Song, who works for the Xi Diaoyutai Hospital in Beijing, a military facility, pleaded not guilty to the charges and denies being an active-duty member of China's military. She is currently free on bail.
Her case is one of at least five visa fraud prosecutions of university researchers launched last year as part of the U.S. Department of Justice's "China Initiative," a three-year-old effort aimed at preventing the transfer of U.S. technology to China. All the Chinese scientists have pleaded not guilty to falsifying visa applications to conceal military ties as well as other charges.
Two of those arrested - Wang Xin, a visiting medical researcher at the University of California San Francisco, and Zhao Kaikai, a PhD student in artificial intelligence at Indiana University Bloomington - are still in jail awaiting trial.
If convicted, the scientists could face a lengthy prison sentence, though lawyers for two of them say it is more likely they would spend a short time in jail, if any time at all, before being sent back to China.
Civil liberties groups including the American Civil Liberties Union and the Asian Law Caucus are increasingly concerned about the visa fraud cases, which they say reflect anti-China bias. Defense lawyers say their clients' real crime is running afoul of U.S.-China politics.
"The government's 'China Initiative' has been framed in dangerous, over-broad terms since its inception, casting widespread suspicion on people of Chinese descent," said Patrick Toomey, a senior staff attorney at the ACLU. "The initiative was supposed to combat the theft of trade secrets, but this case, like so many others, contains no such allegations."
A senior DOJ official said the prosecutions were based on "conduct," not race. When academics are charged with visa fraud, the DOJ isn't necessarily expecting to later find evidence of espionage or theft, the official said on condition of anonymity.
Rather, the official said, the goal is to prevent actions that are "pernicious and ultimately could lead to theft."
China's foreign ministry told Reuters in a statement that the visa fraud cases amounted to "political persecution." A total of nearly 300 Chinese students were stopped at U.S. airports for interrogations as they were leaving the country between May and September of last year, the statement added.
The China Initiative was launched under former President Donald Trump, and all five arrests occurred a year ago when U.S.-China relations were at a nadir. President Joe Biden's administration currently has no plans to pull back, the DOJ official said.
'WHY HIM? WHY NOW?'
The Association of American Universities, a lobbying group, says its members understand the need for protection of technology developed at U.S. universities. But they say the government should set clearer vetting policies and standards.
U.S. visa applications specifically ask applicants to state whether they have served in the military and to provide the dates of service. In Song's case, she acknowledged that she had served in the military for about 11 years and she correctly listed the address of the hospital where she was working in the employment field.
Emily Weinstein, a Georgetown University researcher with a focus on China's strategy of merging certain military and civilian functions, said not all workers at a military hospital would be on "active duty."
The National Security Commission on Artificial Intelligence, a government panel convened to advise Congress on high-tech competitiveness, recommended earlier this year more disclosure on research funding and partnerships at universities, and proposed creating a database of individuals and entities to flag risks in advance. Congress is considering the recommendations.
Critics of the "China Initiative" say such measures would assure that better screening takes place during the visa process, rather than after the fact.
Guan Lei, another of the five visa fraud defendants and a computer science student and visiting scholar at the University of California, Los Angeles, was charged with lying about his military affiliations.
Guan's university in China, the National University of Defense Technology in Changsha, has been since 2015 on a U.S. Commerce Department trade black list that includes military-affiliated entities, and his supporters say the U.S. government should have brought up that affiliation as a red flag before issuing the visa. Guan told the FBI his school in China has "normal" students and soldiers, and that he is not part of the military.
Guan's former lawyer, Bin Li, who took the unusual step of stepping down from the case to help Guan personally, including posting his bail bond, said at least two students from Guan’s school came to UCLA to study with the same professor in prior years and never had any problems.
"Why him? Why now," Li asked.
In some of the cases, apparent efforts at evading federal agents or hiding evidence have added to prosecutors' suspicions. Tang Juan, a researcher at the University of California, Davis who is one of the five accused Chinese scientists, initially took refuge at the Chinese consulate in San Francisco after being interrogated by FBI agents and was arrested nearly a month later.
A federal judge last week ruled that statements that Tang made to federal agents in their initial interrogation could not be used in court because she was not informed of her right to remain silent. The government has filed a motion contesting that ruling.