By Jeremy S. Wu, Ph.D.
The recent civil suit filed by Temple University Professor Xiaoxing Xi has strong implications and lasting meaning for every U.S. person, especially those of Chinese origin. Here a “U.S. person” has legal meaning that covers any U.S. citizen or alien admitted for permanent residence in the U.S., and any entity organized under U.S. laws.
Professor Xi’s suit is a reminder that a U.S. person has rights under the Constitution and he is protected by laws. Few can dispute the need for national security and the freedom we enjoy from a strong nation. However, targeting innocent people by race or national origin and abusing authority in the guise of national security ruin lives and violate our constitutional rights. A U.S. person may sue the government as a result of these violations.
Relevance to U.S. Persons of Chinese Origin
The Economic Espionage Act (EEA) was enacted in 1996, making the theft of trade secrets to benefit a foreign power or to injure the owner of trade secrets a federal crime. EEA differs from the Espionage Act of 1917 by covering commercial information instead of classified or national defense information.
The Department of Justice (DOJ) and the Federal Bureau of Investigations (FBI) began publicity campaigns identifying economic espionage as the second highest national security threat to the U.S. after terrorism with China as primary culprit. The FBI reported that China was responsible for a 53% jump in its economic espionage investigations in 2015, which numbered in the hundreds.
Within a short period of about two years, at least four naturalized Chinese American scientists including Professor Xi, were indicted, arrested, and accused of being economic spies for China, only to have their separate cases dropped by the government without explanation. However, substantial damages have already been inflicted on these innocent individuals and their families.
Despite numerous inquiries and petitions from Congress, the U.S. Civil Rights Commission, media, community and professional organizations, and concerned individuals in the past two years, DOJ has refused to conduct an independent investigation or provide a full explanation or an apology to the apparent pattern of wrongful prosecutions against these Chinese American scientists.
Based on empirical evidence from 136 cases involving 187 individual defendants charged under the Economic Espionage Act (EEA) from 1997 to 2015, a recent white paper released by the Committee of 100 found that:
- The percentage of person of Chinese heritage charged under EEA tripled since 2009
- In about half of the cases, the alleged beneficiary of espionage was an American entity while about a third of the cases involved a Chinese beneficiary
- Defendants of Asian heritage convicted of espionage received sentences over twice as severe as those of other ethnicities
- As many as 1 in 5 Asian people prosecuted as spies may be innocent, a rate twice as large as for other races
RELATED: Study Questions Whether Asians Are Being Targeted in Corporate Spy Cases
In his 21-page complaint against the lead FBI agent and other unnamed agents, Professor Xi made five counts of violation of his Fourth and Fifth Amendment rights:
- Malicious Prosecution
- Equal Protection and Due Process Violation
- Unlawful Search and Seizure – FISA Orders
- Unlawful Search and Seizure – Warrantless Surveillance
- Unlawful Search and Seizure of Property and Belongings.
Additional FBI agents may be named later in the suit. According to media report , it is also likely that claims under the Federal Tort Claims Act will also be brought against the government.
Within the legal circle, Professor Xi’s case is known as a “Bivens action”, which generally refers to “actions for damages when there has been a violation of the U.S. Constitution by federal officers” acting under invalid federal authority. In particular, the Supreme Court held in 1972 that “violation of one’s Fourth Amendment rights by federal officers can give rise to a federal cause of action for damages for unlawful searches and seizures.”
Concerns about Fourth Amendment rights are broad-based, especially as society is undergoing rapid changes with the advancement of modern technology.
A bipartisan Congressional Fourth Amendment Caucus, chaired by Congresspersons Ted Poe (R-Texas) and Zoe Lofgren (D-California), was launched in July 2016 to protect the privacy and security of Americans in the digital age.
The Fourth Amendment Advisory Committee, composed of a diverse and bipartisan alliance of civil liberty experts, was formed to support the work of the Congressional Fourth Amendment Caucus. It has already organized a series of panels on Capitol Hill to educate congressional staffers, engage the public, and discuss how to protect our rights to privacy. Professor Xi was the featured speaker in the “The Usual Suspects: Bias in Government Surveillance” panel on December 1, 2016.
Among the specific actions the Fourth Amendment Caucus will undertake in 2017 is the reauthorization of the FISA Amendment Act, especially Section 702, which is scheduled to expire on December 31. While politics and the need for national security may not allow the law to lapse, additional transparency and accountability should certainly be demanded in its reauthorization.
The Foreign Intelligence Surveillance Act (FISA) was created to “provide judicial and congressional oversight of the government’s covert surveillance activities of foreign entities and individuals in the United States.”
There are now mounting reports that Chinese Americans are being targeted in the National Insider Threat Program. Federal agencies such as the Department of Homeland Security and the FBI have already started the rulemaking process to exempt themselves from the Privacy Act , such as denying individuals who are under investigation the chance to access and review their own files. These secret practices, if implemented, will bypass individual constitutional rights and increase the likelihood of wrongful accusations against innocent individuals without recourse.
How We Can Help Professor Xi and Ourselves
The United States was founded on a Constitution of core principles and rule of law. It has not been a perfect nation, but it has improved itself over time because of the wisdom and participation of its people, including Asian Americans.
Asian Americans have faced a long history of explicit prejudice in exclusion laws and internment. It is unacceptable to scapegoat and stereotype Asian Americans, or any American for that matter, through malicious treatment, implicit bias, or gross negligence in the conduct and behavior of government actions. And yet, targeting and profiling continue to ruin lives and violate our constitutional rights.
The U.S. government and the American justice system are obligated not only to punish the guilty, but also to protect the innocent.
Professor Xi and his family, as well as Sherry Chen and other innocent individuals subjected to wrongful prosecutions and investigations, are the latest victims to suffer the long ordeals of injustice in the guise of national security.
To many, Professor Xi’s suit symbolizes a ground-breaking step to regain our constitutional rights instead of just reacting defensively to false accusations. Innocent, law-abiding Americans should be able to talk on the phone, send an email, participate in scientific exchange, and conduct normal social and professional activities without being constantly surveilled by the government and fearful of persecution as in a police state.
In this regard, we can help Professor Xi and ourselves in at least four ways:
- Educate ourselves and the community about the issues and publicize broadly our support for Professor Xi
- Donate to Professor Xi’s legal defense fund at http://www.xiaoxingxi.org/
- Engage your elected representatives and participate in the process to support legislative changes and our rights by enhancing transparency and accountability, such as in the upcoming reauthorization of the FISA Amendment Act
- File amicus briefs [40] in court to support Professor Xi when they are appropriate
Jeremy Wu
About the Author: Dr. Jeremy Wu is a Board Director for the Committee of 100 and the Trustee for the Sherry Chen Legal Defense Fund. He
retired from the federal government after serving in a number of leadership positions in the U.S. departments of Agriculture, Energy, Transportation and Commerce for more than 30 years.
Dr. Wu’s blog is an edited version of one that appeared on his own Linked In profile.
You can read the longer version here.
Traditional Chinese
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