Excerpted From: Leo Yu, From Criminalizing China to Criminalizing the Chinese, 55 Columbia Human Rights Law Review 45 (Fall, 2023) (358 Footnotes) (Full Document)

LeoYu“[I]n the end, you're treated like a spy. That just breaks your heart. It breaks your confidence.” Prof. Gang Chen

On January 20, 2022, the U.S. District Court for the District of Massachusetts dismissed all criminal charges against defendant Gang Chen, a professor at the Massachusetts Institute of Technology (MIT). Chen was accused of failing to sufficiently disclose his ties to China in his research grant applications, leading to an indictment for wire fraud, failure to report a foreign bank account, and making a false statement to a federal agent.

Chen was one of the 148 individual defendants charged under the China Initiative, launched by the United States Department of Justice (DOJ). Established by former Attorney General Jeff Sessions in 2018, the China Initiative was DOJ's first country-specific initiative meant to deter economic espionage. Margaret Lewis observed that the use of “China” in this initiative is not just a branding to heighten awareness; instead, it characterizes China as a perpetrator in the criminal justice context. China as a country is not a defendant in any of the China Initiative cases, but the concept of China, or “China-ness,” is the subject that has been criminalized.

The process of criminalizing China was not a home run for DOJ. From November 2018 to December 2021, at least 77 cases were pursued under the China Initiative. Contrary to Sessions' pledge to combat Chinese espionage, only 19 cases--about 25 percent--included charges of violating the Economic Espionage Act (EEA). Moreover, only about 25 percent of defendants have been convicted, which is drastically lower than DOJ's 91 percent overall conviction rate. The China Initiative's ineffectiveness is not its only flaw. Civil rights advocates, the Asian American community, and the science community all pointed out that this initiative had an undeniable racial profiling trait. Of the 148 defendants across the 77 cases collected in the database, 130--approximately 90 percent--were of Chinese heritage. Few of them received a conviction relating to espionage. A closer look at high-profile China Initiative cases provides a clearer picture of DOJ's racial profiling actions. A disproportionate number of the Chinese defendants were accused of lacking “research integrity,” meaning that they failed to sufficiently disclose their “nexus to China” in their academic careers. From 2018 until 2022, DOJ vigorously prosecuted defendants like Chen, whose “'nexus to China’ ... often consisted of no more than ancestry or association with Chinese students and universities.” The result is revealing: as of February 2023, only two research integrity defendants were found guilty after a trial (one Chinese and one white), eight cases have been dismissed in full before or during trial, and one case ended with full acquittal. Criminalizing China has transcended into criminalizing “China-ness.” The Chinese became a target simply because of their ties to China or the failure to fully disclose such connections to the U.S. government. The process of criminalizing China has evolved into an effort to criminalize the Chinese.

There has never been a clear line separating a foreign country and immigrants to the United States from that country. Critical Race Theory (CRT) scholars have long observed the correlations between geopolitical tensions and the ascriptive identities imposed on racially diverse immigrants. Robert Chang, Eric Yamamoto, Lorraine Bannai, and Margaret Chon produced rich literature regarding how the geopolitical tension between Japan and the United States during World War II impacted the racial understanding of the Japanese, eventually leading to the mass incarceration of the entire Japanese community. In analyzing Muslims' racialization process in the United States, Sahar Aziz concluded that global geopolitics plays a vital part in shaping domestic racial-religious hierarchies. In sum, when a foreign country generates a geopolitical crisis that threatens America, immigrants from that country frequently become collateral damage in this conflict, resulting in massive violations of their civil rights and liberties.

China has always played a part in the racial identity of the Chinese in the United States. The initial racial understanding of the Chinese, developed in the nineteenth century, broadly resonated with the United States' political view of China during the same period. China was a far away, mysterious, and poor oriental country, which produced the Chinese: “a race of people whom nature has marked as inferior, and who are incapable of progress or intellectual development beyond a certain point, as their history has shown ...” The “inferior” Chinese culture made the Chinese inassimilable, incompetent, and perhaps disloyal. As Robert Chang summarized, “[f]oreignness and the associated traits of mendacity, inscrutability, disloyalty, and unassimilability permanently marked the Chinese body. Foreignness, ascribed onto the racializedChinese body, rendered legal all manner of different treatment.”

But China in the 21st century is different from China in the 1800s and 1900s. In the past two decades, China has lifted 800 million people out of poverty, and become the second-largest economy in the world. China has become a world power and is widely expected to overtake the United States' economic preeminence in the near future. American policymakers responded accordingly, establishing a bipartisan consensus that China is the United States' most significant geopolitical challenger. The Obama Administration's “Pivot to Asia” agenda marked the shift in United States foreign policy, shifting away from the “War on Terror” and towards Asia and China's dominance. The Biden Administration reinforces this agenda through unprecedented actions, such as withdrawing from Afghanistan and restricting U.S. investment in China's semiconductor industry. This geopolitical tension fosters a widely shared, bipartisan anti-China sentiment. The highly polarized American political parties finally have a common ground: being anti-China. The so-called “China Threat” has become an indispensable part of campaign speeches for Republicans and Democrats, both promising to be tough on China.

The United States' cultural understanding of China has changed. China is no longer viewed as the origin of an inferior culture. Today's China equals danger, unfair competition, and communism. Many view China as the American empire's biggest threat and as a source for destroying the American dream. In short, China is a perpetrator who must be brought to justice. Therefore, the foreignness ascribed to the Chinese mutates. Politicians aggressively cultivate the anti-China sentiment, and portray the Chinese as dangerous, calculating, and callous figures--a similar picture to that painted of Muslims post 9/11 consistently plan to defeat America by stealing its secrets. Their foreignness today is no longer blankly associated with overt orientalism and white supremacy as it was in the 1800s. Instead, it is enmeshed within and inseparable from a substantive geopolitical crisis. While the Chinese might still seem foreign in an abstract, cultural way, mainstream America's core concern over the Chinese today is their linkage to China: a competent, dangerous perpetrator. This new racial understanding of the Chinese has made them a suspect race, whose loyalty to America must continually be checked to ensure they are not possible agents of the government of China. This new racial identity of the Chinese functions to justify the United States' criminal legal response, and the China Initiative is a natural product of this process.

The “differential racialization” theory provides a critical lens through which to analyze how the ascribed racial identity of the Chinese has evolved. As Richard Delgado and Jean Stefancic have explained, “the dominant society racializes different minority groups at different times, in response to shifting needs” and economic and political interests. Muslims and those perceived to be Muslim, for example, were long stereotyped in American media and film--but particularly after 9/11, the U.S. government and many non-Muslim, non-Arab Americans came to view Muslims and Arabs as a national security threat writ-large. The shift overtime in the Chinese's ascriptive identity demonstrates this process, as well.

China's geopolitical position in relation to the United States thus looms over the racial identity of Chinese people in the United States. The Chinese in America have found themselves unable to escape this new racial identity by assimilating through citizenship, education, professional jobs, or, as Mr. Andrew suggested, “wear[ing] red, white, and blue.” After all, race is a social construct, and racialization of minorities has never been a fact-based process; instead, it is “the process by which social and political meanings are attributed to particular biological features.” More significantly, this new racial understanding of the Chinese, which closely associates the Chinese with a geopolitical crisis, makes it much harder for the Chinese to combat racial profiling. Geopolitics closely overlaps a national security apparatus that has expanded greatly since 9/11. The national security tone in this new racial identity of the Chinese makes their racial profiling more acceptable than that of many other races. Just as anti-China sentiment is bipartisan, profiling of the Chinese has also been sustained within Republican and Democratic administrations alike.

China is widely expected to remain the main competitor of the United States, both economically and in geopolitical influence, for the foreseeable future. For the Chinese living in the United States, this reality likely means they will be attached to the foreign perpetrator identity for a long time, regardless of the administration's party affiliation. Failed cases like Gang Chen's did not lead the Biden Administration to terminate the China Initiative. Instead, the Initiative has simply evolved into the “Strategy for Countering Nation-State Threats.”

This Article predicts that, in the 2024 presidential election cycle, more China Initiative-like policies will emerge on both the federal and state levels.

This Article has three parts. Part I provides a brief overview of Asian American Jurisprudence and reviews how the perpetual foreign racial identity of the Chinese was forged in the 1800s. Part II investigates the historical dynamic between geopolitics and the Chinese community's racial identity in America. Specifically, this Part studies how the Chinese community's identity changes from perpetual foreigners to foreign perpetrators, an evolution that triggers policies like the China Initiative. Part III provides a prediction and a conclusion: Including because the Biden Administration has not terminated the China Initiative in a meaningful way, the Chinese will be attached to China as a foreign perpetrator for as long as China remains a major geopolitical challenge to the United States.

[. . .]

How the United States views China has a significant impact on how Americans views the Chinese. China, a country that has one of the worst public images in America, has become Chinese Americans' dilemma. Unsurprisingly, Chinese Americans are the only Asian American group in which the majority views its ancestral homeland unfavorable.

The last part of this Article is dedicated to the Chinese Americans who are struggling with, or even ashamed of their Chinese heritage. You are not responsible for the CCP's action. Be proud of your heritage. China is first a civilization that has thousands of years of history. None of the governments, rulers, or colonizers in China's long history can represent this civilization on their own. Thus, identifying with China does not mean pro-dictatorship, pro-restraining personal liberties; just as identifying with the United States does not necessarily mean condoning racism and colonialism. It is natural for Asian Americans to have emotional attachments with an Asian country that holds their cultural heritage. As Anupam Chander, an Asian American law scholar, put it: “Whether by choice or not, we live in one country, even though our hearts might belong to two.”

And that's ok.

Assistant Clinical Professor of Legal Writing, Research and Advocacy (ORCID: 0000-0001-8181-269X), Southern Methodist University, Dedman School of Law.