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July 22, 2021

Table of Contents

Overview

Non-Armed Uniformed Services in the US

“Startling” Claim by Assistant Attorney General John Demers

What the Juan Tang Case Revealed

What the Lei Guan Case Revealed

Links and References


Overview


In court filings on July 22 and 23, 2021, the Department of Justice (DOJ) abruptly moved to drop visa fraud and other charges against five scientists from China in five separate "China Initiative" cases, including four biomedical and cancer researchers in California and a doctoral candidate studying artificial intelligence in Indiana.  U.S. District judges have granted dismissal in three of the five cases. 


The five Chinese nationals are:


  • Lei Guan (关磊), Visiting researcher (mathematics), University of California at Los Angeles 

  • Dr. Chen Song (宋琛), Visiting researcher (neurology), Stanford University​​

  • Dr. Juan Tang (唐娟), Visiting researcher (cancer), University of California at Davis 

  • Xin Wang (王欣), Visiting researcher (neurology), University of California at San Francisco 

  • Kaikai Zhao (赵凯凯), Doctoral candidate (machine learning and artificial intelligence), Indiana University


Prosecutors did not provide explanations in their motions to dismiss.  According to multiple media reports, Wyn Hornbuckle, a Justice Department spokesman issued a statement that said "[r]ecent developments in a handful of cases involving defendants with alleged, undisclosed ties to the People’s Liberation Army of the People’s Republic of China have prompted the department to re-evaluate these prosecutions...  We have determined that it is now in the interest of justice to dismiss them.”


​DOJ announced the visa fraud charges against four of the five scientists exactly a year ago on July 23, 2020.  Just a day earlier, the U.S. ordered China to close its consulate in Houston, accusing it of being a "spy center" to conduct spying activities with local medical centers or universities. 


The fifth scientist, Lei Guan, was first charged in August 2020 for Destruction and Alteration of Records in a Federal Investigation with visa fraud charges added in September 2020.


Although the DOJ did not provide an explanation for the dismissals, Reuters reported that there was "recently disclosed evidence of a report by FBI analysts that questioned if the visa application question on 'military service' was clear enough for Chinese medical scientists at military universities and hospitals." 


In another report by the Washington Post, an unnamed official was quoted to say that "the punishment for visa fraud typically does not exceed a year. That fact, combined with the prospect of prolonged litigation in several instances, led officials to assess that the interests of justice were best served by dropping the cases."



Non-Armed Uniformed Services in the US


Some of these five prosecutions were based on photos of the individuals in uniform.  However, wearing a uniform does not always imply military service.  


Out of the eight branches of uniformed services of the United States, two are non-armed:


  • The United States Public Health Service Commissioned Corps is the uniformed personnel system of the United States Public Health Service, which is under the Department of Health and Human Services.

  • The National Oceanic and Atmospheric Administration Commissioned Officer Corps is a uniformed branch of the National Oceanic and Atmospheric Administration, which is under the Department of Commerce.



“Startling” Claim by Assistant Attorney General John Demers 



On December 2, 2020, The Washington Post reported that John Demers, Assistant Attorney General John Demers claimed that more than 1,000 researchers who had hidden their affiliation with the Chinese military fled the United States.  


The exodus came in the wake of the arrests of six Chinese researchers accused of lying on their visa applications about their ties to the People’s Liberation Army.  The arrests, coupled with the closure of the Chinese Consulate in Houston, which U.S. officials said served as a ­command-and-control node to direct spying operations, were intended to send a signal to Beijing.


The figure was described as “startling” and has not been supported by any factual evidence.



What the Juan Tong Case Revealed



On July 19, 2021, defense attorneys for Dr. Juan Tang filed a Defendant's Trial Brief and Memorandum Supporting Dismissal at Trial.  It included a section on "The FBI’s Deliberate Failure to Disclose Critical Exculpatory Evidence to the Court and to the Defense Warrants a Dismissal of this Ill-Conceived Indictment."  "There is dissension in the FBI’s own ranks," the trial brief started.  It cited that the government intentionally did not comply with the discovery order for the trial and highlighted that "... just days ago, a heavily redacted report dated for release four months ago, on April 1, 2021, which the government did not disclose to this Court when it ruled on Dr. Tang’s Motion to Dismiss." 


Exhibit A shows a FBI Background Note dated April 1, which includes a statement that investigations and expert interviews "suggest that the visa application form (DS-160) potentially lacks clarity when it comes to declaring one's military service or affiliation."


Specifically, the highlighted response to the question “Is this obfuscation indicative of nefarious intent?” says:


Investigations associated with these individuals as well as PLA experts interviewed in the cases cited above suggest that the visa application form (DS-160) potentially lacks clarity when it comes to declaring one’s military service or affiliation.  China’s PLA is not a direct analog to how the US military services are set up, especially regarding the PLA’s Civilian Cadre.  CTTAU assesses that while some intentional obfuscation is almost certainly being used by the PLA to gain entry into the US, there are grey areas where it is difficult for the FBI and DOS to determine whether obfuscation is intentional or for nefarious tech transfer purposes.  Among the Civilian Cadre are a significant number of doctors and nurses and other professionals that at times are required to wear a military type uniform, but who would not necessarily consider themselves soldiers despite being considered as active duty.  There are also contract civilians who work for the PLA, but are not considered active duty military.  Within investigations it may also appear as if students and scholars from particular MCF-designated and PLA-affiliated universities and institutions are obfuscating their respective affiliations by not declaring military service despite having academic advisors who are PLA officers, but the FBI has an incomplete understanding of the full nature of this student/scholar to academic advisor relationship. 



What the Lei Guan Case Revealed




A partially redacted draft FBI report appeared as part of an exhibit in a non-motion response filed in the case of Lei Guan on July 12, 2021.  It is titled Fourth Military Medical University Interviews and Arrests Likely Had Minimal Impact in Mitigating Technology Transfer Threats from PRC Students dated March 19, 2021.  


 The 28-page exhibit includes a draft white paper that provides assessments on seven cases under the "China Initiative," including the five that were dismissed.  The draft paper states that targeting of the researcher and students "likely had minimal, short-term positive impact on the technology transfer threat from PRC students, scholars, and researchers."  In addition, "[o]nly two of the arrests had a nexus to technology transfer violations, ... and none included charges related to other counterintelligence concerns." 


The operation "likely contributed to the deterioration of the FBI's delicate yet valuable relationship with some US universities by not exercising more caution before approaching PRC students."  Although there was strong advice against investigating and arresting students and researchers with the operation, "several FBI field offices proceeded with visa fraud charges for individuals who met the criteria but did not meet the threshold for a high-priority technology transfer threat."


"It is in the best national security interest of the FBI to strategically identify, target, and mitigate PRC technology transfer threats while also preserving educational opportunities in the United States for PRC students who do not pose a threat," said an unredacted portion of the FBI report.  A footnote also stated that "the FBI does not consider clinical medicine an area of concern for PRC technology transfer."


According to the exhibit, a FBI Supervisory Intelligence Analyst drafted the report as a response to a February 2021 award nomination.  She was originally included as part of the award nomination but disagreed about the "high impact" the award's nomination claimed to have made.  She did not think the arrest of the PLA students met the threshold for high impact at that time, as she assessed at an early stage the impact was minimal.  The draft was a way for her to dispute the information contained in the awards packet.  She removed herself from the award nomination.


Jump to:

Overview

Non-Armed Uniformed Services in the US

“Startling” Claim by Assistant Attorney General John Demers

What the Juan Tang Case Revealed

What the Lei Guan Case Revealed

The abrupt dismissal of visa fraud and other charges against five scientists from China in five separate “China Initiative” cases and the FBI reports from the discovery process exposed the weaknesses of the prosecutions, dissension in the FBI’s own ranks, and exaggerated claims of national security risks by the government.

8. Five Visa Fraud Cases Dismissed

8. Five Visa Fraud Cases Dismissed
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