Espionage charges against Chinese-American scientist Dr. Xiaoxing Xi dropped, confirming recent pattern of baseless prosecutions

By Dan Cho
Associate Editor, Vol. 21

On an early May morning this past spring, armed FBI agents raided the suburban Pennsylvania home of Dr. Xiaoxing Xi, a Temple University physics professor and naturalized U.S. citizen, placing him under arrest for four counts of wire fraud. Dr. Xi was led out in handcuffs in front of his wife and daughters while agents searched the house. The Department of Justice alleged in a grand jury indictment that Dr. Xi had shared sensitive American-made technology, specifically schematics of a device called a pocket heater, used in superconductor research, with China. Dr. Xi faced up to eighty years in prison.

Last month, the Department of Justice dropped all charges against Dr. Xi, citing “the interests of justice” after “additional information came to the attention of the government.” It turned out that the schematics in question were not of pocket heaters at all but of an unrelated non-sensitive or restricted technology. Several experts confirmed in sworn affidavits that the government was mistaken. One of those experts was the co-inventor of the pocket heater.[1]

Though Dr. Xi was vindicated, the cost was high. Temple University placed him on administrative leave, and removed his title as chairman of the physics department. Legal costs had drained the Xi family’s financing, forcing them to borrow money from relatives and take out loans. Media attention to the case obliterated any semblance of privacy or normalcy in their lives.[2]

Unfortunately, Dr. Xi’s ordeal was not an isolated incident. In February 2013, President Obama announced a renewed governmental focus on combating economic espionage and hacking. Subsequently, Justice Department prosecutions under the Economic Espionage Act over 30 percent from the year before, and would increase another 33 percent in 2014. More than half of the indictments for economic espionage since 2013 involved allegations of a Chinese connection. [3]

It was under this prosecutorial climate that the Justice Department pursued these aggressive and unfounded charges against Dr. Xi. The previous year, the Justice Department had arrested Sherry Chen, a Chinese-American hydrologist working for the National Weather Service, only to drop the charges right around the time the FBI stormed the Xi household.[4] Even after the dismissal of those charges, the government still fired Ms. Chen from her job. [5]

Dr. Xi and Ms. Chen’s stories are reminiscent of the case of Wen Ho Lee, a former Los Alamos scientist who was arrested and charged in 1999 of numerous espionage-related offenses. He was denied bail, publicly accused of being a spy, and thrown into solitary confinement. The government would eventually drop 58 of the 59 charges in exchange for a guilty plea for a single felony count for mishandling classified information. Upon entry of plea, Mr. Lee was released for time served. Mr. Lee would later recover $1.6 million dollars in a civil suit against the federal government and several media organization who had publicized his name before any charges were filed against him. [6][7]

National security has historically been used as an excuse for governmental mistreatment of Asian Americans. In the 1944, when the imminent foreign threat came from Japan instead of China, the Supreme Court held that the forced wartime internment of Japanese-Americans was constitutional in United States v. Korematsu. The Korematsu decision is notable for being the first instance in which the Court applied strict scrutiny to a race-based classification, and for being one of the rare times the Court found that a race-based classification met that standard. The forced relocation of American citizens based on their race to concentration camps was evidently “narrowly tailored” enough to meet the pressing government interest in national security. [8] “Pressing public necessity may sometimes justify the existence of such restrictions; racial antagonism never can,” declared Justice Black in his majority opinion.[9]

In Korematsu, the Court found no racial antagonism in policies that singled out an entire ethnic group, and treated them as potential spies and traitors, citing an overriding national security interest in the wake of Pearl Harbor. In light of this history, the federal government should be wary when using those same interests to justify the expansion of their contemporary anti-espionage measures. As political and economic tensions between the United States and China continue to ratchet up and national security interests appear more urgent than ever, in the absence of prosecutorial discretion and diligence, Chinese-Americans risk bearing the brunt of continued baseless prosecutions.

[1] http://www.nytimes.com/2015/09/12/us/politics/us-drops-charges-that-professor-shared-technology-with-china.html?_r=0

[2] http://www.usatoday.com/story/opinion/2015/09/18/xiaoxing-xi-china-spy-fbi-state-visit-column/32560009/

[3] http://www.nytimes.com/2013/02/25/world/asia/us-confronts-cyber-cold-war-with-china.html; http://www.nytimes.com/2015/05/10/business/accused-of-spying-for-china-until-she-wasnt.html

[4] Id.

[5] http://www.nytimes.com/2015/09/16/technology/chinese-american-cleared-of-spying-charges-now-faces-firing.html

[6] http://www.washingtonpost.com/wp-dyn/content/article/2006/06/02/AR2006060201060.html

[7] http://abcnews.go.com/US/story?id=95771&page=1

[8] Korematsu v. United States, 323 U.S. 214 (1944).

[9] Id. at 216.