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#189: Registrations Open! Xiaoxing Xi; Hoover: A Fresh Start From What? Alien Land Bills; More

In This Issue #189

  • Register Now: June 26 Webinar on Stop Warrantless Surveillance

  • Register Now: July 6 President's Advisory Commission on AAPI Public Meeting

  • Eight Years After False Accusation, Xiaoxing Xi Can Sue FBI

  • Hoover Institution Webinar:  A Fresh Start from What?

  • Latest on Discriminatory Alien Land Bills

  • News and Activities for the Communities


Register Now: June 26 Webinar on Stop Warrantless Surveillance


The Asian American Scholar Forum (AASF), the American Civil Liberties Union (ACLU), APA Justice, the Brennan Center for Justice, and the Committee of 100 will co-host a webinar on "Stop Warrantless Surveillance: The Danger of Reauthorizing Section 702 of FISA".


WHEN: June 26, 2023, 4:00 pm ET/1:00 pm PT  

WHAT:  The U.S. Constitution protects its people against unreasonable searches and seizures.  However, under Section 702 of the Foreign Intelligence Surveillance Act (FISA), the U.S. government engages in mass, warrantless surveillance of phone calls, text messages, emails, and other electronic communications between Americans and foreigners. Information collected under this law without a warrant can be used to prosecute and imprison people, even for crimes that have nothing to do with national security.  Asian Americans, especially Chinese Americans and the immigrant and scientific communities, have been targeted for warrantless surveillance that led to wrongful and unjust prosecutions.  They include Temple University Professor Xiaoxing Xi 郗小星 and possibly New York Police Department Officer Baimadajie Angwang 昂旺.  The current authorization of Section 702 will expire on December 31, 2023.  What should the Asian American and immigrant communities know about Section 702?  If it is not sunset, what reforms will be needed?  What are the next steps for the communities?

WHO:

  • Keynote speaker.  Rep. Pramila Jayapal, the first South Asian American woman elected to the U.S. House of Representatives; a member of the House Judiciary Committee; Ranking Member of House Subcommittee on Immigration, Integrity, Security and Enforcement

  • Panelist.  Gang Chen 陈刚. Soderberg Professor of Power Engineering, MIT; Member, National Academy of Sciences; prosecuted under "China Initiative" with case dismissed; "We Are All Gang Chen"

  • Panelist.  Elizabeth Goitein. Senior Director, Liberty and National Security Program, Brennan Center for Justice

  • Panelist.  Ashley Gorski. Senior Staff Attorney, National Security Project, American Civil Liberties Union

  • Panelist.  Brian A. Sun 孙自华.  Partner, Norton Rose Fulbright; Board Member, Committee of 100

  • Moderator.  Lillian Sing 郭丽莲.  Judge (retired), California Superior Court; first Asian American woman judge in Northern California

REGISTRATION:  https://bit.ly/42AbNIF  


1.   Cato Institute Policy Forum on Section 702 of FISA

According to a Cato Institute online policy forum on June 6, 2023, Section 702 of the Foreign Intelligence Surveillance Act (FISA) will expire on New Year’s Eve 2023 absent congressional action to renew it. This controversial surveillance power was enacted in 2008 following over two years of debate in Congress after its secret, illegal predecessor—the National Security Agency’s Stellar Wind mass electronic surveillance program—was exposed by the New York Times in December 2005. Since that time, Section 702 has been renewed twice—once under President Obama and again under President Trump. And it has been renewed despite repeated, serious violations of the law by the FBI via so‐​called “back door” searches—literally millions of Section 702 database queries by FBI personnel for information on U.S. persons not necessarily wanted for a crime.


2.  Washington Post Report on Section 702 of FISA

According to the Washington Post on June 13, 2023, Congress will not renew powerful, expiring surveillance authorities without substantial changes to shield Americans from warrantless eavesdropping, senators in both parties warned Biden administration officials in a Senate Judiciary Committee on June 13, 2023.  “I will only support the reauthorization of Section 702 if there are significant, significant reforms,” said Senate Judiciary Chairman Richard J. Durbin (D-Ill.). “And that means first and foremost, addressing the warrantless surveillance of Americans in violation of the Fourth Amendment. Moreover, the reforms must also include safeguards to prevent future abuses and ensure effective oversight by Congress and the courts.”  The top Republican on the committee, Lindsey O. Graham (S.C.), said that in the United States broadly, “there’s a warrant requirement to investigate an American citizen for wrongdoing. And we don’t want this to be used to get around that requirement. So bottom line is, let’s reauthorize this program and build in some safeguards.”  “Why should we ever trust the FBI and DOJ again to police themselves under FISA when they’ve shown us repeatedly over more than a decade that they cannot be trusted to do so?” Sen. Mike Lee (R-Utah) said. 



Register Now: July 6 President's Advisory Commission on AANHPI Public Meeting


The President's Advisory Commission on Asian American, Native Hawaiian and Pacific Islanders (AANHPI) will hold its next meeting, the sixth of a series, on July 6, 2023 in Honolulu, Hawaii.  The meeting serves to continue the development of recommendations to promote equity, justice, and opportunity for the AANHPI communities.  It is open to the public and will be live streamed.  The Commission seeks written comments that may be emailed to AANHPICommission@hhs.gov at any time.  Individuals may also submit a request to provide oral public comments.For details, directions, and registration, visit: https://bit.ly/3NqpQMBDrRobert Underwood, a Commissioner, Former Chair of the Congressional Asian Pacific American Caucus (CAPAC), and President Emeritus of the University of Guam, described the role and purpose of the Commission and his experiences with racial profiling as CAPAC Chair and President of University of Guam at the April APA Justice monthly meeting.  Robert reminded us that the Commission is the vehicle through which all of us can participate and make our input known to the President.  The Commission has committees to address various topics, but social justice issues such as racial profiling, discriminatory alien land laws, warrantless surveillance, and open science are not on the radar screen of the Commission.  


APA Justice encourages organizations and individuals to write to the Commission and speak at the public hearing on July 6.  Robert also urges all of us to feel free to communicate with him directly at anacletus2010@gmail.com.The current Commission will expire later this year.  An executive order will be needed to continue the work of the Commission, which unlike other similar commissions, does not have a permanent staff.Read Robert's remarks: https://bit.ly/3qogBU1. Watch his remarks at: https://www.youtube.com/watch?v=YnIrq1hfl4A (video 11:48 to 25:21)



Eight Years After False Accusation, Xiaoxing Xi Can Sue FBI


According to the Washington Post on June 6, 2023, Xiaoxing Xi 郗小星 earned his PhD in Beijing, but he built his career in the United States. He arrived in the country in 1989 and worked at several colleges in New Jersey, Maryland and Pennsylvania before arriving at Temple University.  By 2015, the physics professor was a respected expert in a cutting-edge field and, as interim head of the physics department, was on the cusp of a big promotion.So he was stunned to find a team of FBI agents at his Philadelphia home on an early morning in May that year. They arrested him in his pajamas at gunpoint as his family looked on in alarm.  “I opened my door,” Xi recalled in an interview. “I realized all my life, everything I have done, is gone.”


The Justice Department alleged Xi, a physicist and a naturalized U.S. citizen, had delivered confidential technology to China “to assist Chinese entities in becoming world leaders” in the field — an accusation that essentially cast him as a “technological spy.”  He was interrogated and strip-searched. But the case ended in farce four months later after experts asserted that the government had misunderstood the science behind Xi’s work.Xi’s case was dismissed in September of that year, but he said the accusations cost him a senior position in Temple University’s physics department and cast a pall over his research and his family’s life.In 2017, Xi sued the U.S. government and leaders of the FBI, Justice Department and National Security Agency for what he alleged to be a willfully negligent prosecution clouded by bias over his Chinese ethnicity. But it languished for years and was later dismissed in federal court. Xi appealed the ruling in 2021.His lawsuit can now proceed, an appeals court ruled late last month, allowing Xi to continue his longtime quest to tell of his experience in court and join several other researchers of Chinese descent who have faced similar accusations.Xi’s lawsuit also alleged that investigators used powerful surveillance techniques to tap the professor’s phone and email communications without a proper warrant under Section 702 of FISA.


As Xi’s appeal was pending, several other scientists of Chinese descent across the United States navigated parallel challenges.  MIT Professor Gang Chen 陈刚 had similar charges against him dropped in January 2022 — and later that year made a major discovery in semiconductor research.  Sherry Chen 陈霞芬, a former hydrologist at the National Weather Service, won over $1.5 million from the government in November after challenging a 2014 Commerce Department investigation that accused her of espionage.On May 24, 2023, the 3rd Circuit Court of Appeals ruled that Xi’s case had been wrongly dismissed. The case will return to district court around August.“Now we’ll put the government under oath to explain what they did,” Xi said.Read the Washington Post report: https://wapo.st/42r0sdPProfessor Xi was interviewed by Sharyl Attkisson in Full Measure on June 4, 2023.  Read the transcript and watch the video at https://bit.ly/3P6hCdJ (video 5:13).



Hoover Institution Webinar:  A Fresh Start from What?


According to the Stanford Daily on June 8, 2023, the Hoover Institution hosted a discussion on the importance of promoting a sense of belonging for Chinese-Americans. The panel, titled “A Fresh Start: Safeguarding People, Rights, and Research Amid US-China Competition” brought attention to the worries Chinese academics have over being profiled for espionage or fraud-related charges regarding possible affiliations with China’s government. Larry Diamond, a senior fellow at the Hoover Institution, moderated the panel with Gisela Perez Kusukawa, founding executive director of the Asian American Scholar Forum, Ambassador Gary Locke, former U.S. Ambassador to China (2011-2014), and Glenn Tiffert, research fellow at the Hoover Institution. 

Locke, who is also the chair of the non-profit Committee of 100 (C100), opened the event by acknowledging the rivalry between the two nations across various industries. He highlighted the “need to understand that our dispute and contention with Beijing is with the government of China and not the people of China, and certainly not Chinese Americans.” Locke said [they] believe the contributions of Chinese Americans often go unnoticed, a further reflection of the invisibilizing of Asian Americans.Kusukawa added that the treatment of Chinese-American academics is part of a broader historical pattern of anti-Asian rhetoric in America, resulting in the scapegoating of Asian Americans when the U.S. experiences tensions with an Asian country. “Since 1985, it has been U.S. policy that basic and applied research in science and engineering is basically unrestricted by the government,” Locke said. Much of the racial profiling Locke referred to can be seen in the "China Initiative" that was launched by the Department of Justice, according to Kusakawa. The initiative was intended to “protect US laboratories and businesses from espionage,” but many academics and civil liberties groups claimed that the program was biased against researchers of Chinese descent. Chinese-American scholars and scientists were falsely implicated during the Trump-era initiative, reporting disastrous effects on their personal livelihoods because of the profiling. The initiative was terminated in February of last year after outcry was raised over how the initiative’s rhetoric further encouraged Sinophobic sentiment. 


If we are to recognize the existing anti-Asian bias in America, “we need to start thinking [about] what are the due processes in place to protect Asian-Americans” Kusakawa said.Kusakawa acknowledged the difficulties a university or faculty member faces when critiquing or challenging policies that reflect a power imbalance between federal agencies and those in academia. She encouraged making the process of filing a complaint or reporting racial bias a less intimidating experience and focusing on creating a better environment for foreign scholars. “If we change how we approach research, are we genuinely going to become more competitive?” Kusakawa said. “We don’t think that Asian-Americans and Chinese-Americans and immigrants should continue to be collateral damage as we try to fix our policies in our country in addressing U.S. China relationships.” The webinar neglected to mention a Hoover Institution report that was issued alongside the launch of the "China Initiative" in November 2018.  After appeals and protests by many Asian Americans organizations and individuals including C100 members, one noticeable change was made to replace the word "Chinese" by "China's" in the original title of the report "Chinese Influence and American Interests." Chapter 3 of the 2018 report (pages 39-50) covered "The Chinese American Community."  On C100, the 2018 report (page 226) said "The Chinese embassy also targets prominent Chinese Americans through the Committee of 100, an organization of the most elite Chinese Americans in the United States. Committee members report significant pressure from the Chinese consulate on committee members to toe the Party line. Some prominent committee members are openly sympathetic to the goals of the Chinese Communist Party. One of them is ..."


The following question was raised online during the June 6 webinar but not addressed by the moderator and speakers: "Does the Hoover Institution have any regret in publishing its report titled China's Influence and American Interest, which coincide[d] with the launch of the "China Initiative" in 2018, promoting the report heavily with Congress and media, and causing irreparable damage to many Chinese Americans and Asian Americans and eroding the civil rights and civil liberties for the communities?  Otherwise, what are we restarting from?"On June 14, 2023, Larry Diamond replied: "We are not going to apologize for producing the report. It was a necessary and valid call to action in countering PRC malign influence activities in the United States and other democracies. We called for a balanced approach of 'constructive vigilance.' "We believe that as a democracy, we can and must defend both the integrity of our institutions and the rights and dignity of an important segment of American society.


"We have always agreed that it is unacceptable to make unsubstantiated charges against people of Chinese ethnicity or fan generalized suspicions about a vital part of the American national mosaic.  You may recall that the 2018 report you reference declared: 'we must guard against having this report used unfairly to cast aspersions on Chinese, whether Chinese American immigrants who have become (or are becoming) United States citizens, Chinese students, Chinese businesspeople, or other kinds of Chinese visitors, whose contributions to America’s progress over the past century have been enormous.' (p. 219) "We are not government officials and are not responsible for excesses or lack of balance and care in US government conduct. Likewise, we are not responsible for excesses or lack of balance and care in the wider public discussion and are disheartened by it. Our June 6th event with the Committee of 100 and the Asian American Scholar Forum aimed to model a more responsible approach. "Dialogue with the AAPI community is integral to the work that we do, and we remain committed to it."When fuel is put on fire, it cannot be just the responsibility of those who started the fire.


There was one dissenter among the group of "China policy specialists" in the 2018 Hoover report.  University of California San Diego Professor Susan Shirk wrote (page 217) at that time:"Although I have no problem with the factual research that has gone into specific chapters of the report, I respectfully dissent from what I see as the report’s overall inflated assessment of the current threat of Chinese influence seeking on the United States. The report discusses a very broad range of Chinese activities, only some of which constitute coercive, covert, or corrupt interference in American society and none of which actually undermines our democratic political institutions. Not distinguishing the legitimate from the illegitimate activities detracts from the credibility of the report. The cumulative effect of this expansive inventory that blurs together legitimate with illegitimate activities is to overstate the threat that China today poses to the American way of life. Especially during this moment in American political history, overstating the threat of subversion from China risks causing overreactions reminiscent of the Cold War with the Soviet Union, including an anti-Chinese version of the Red Scare that would put all ethnic Chinese under a cloud of suspicion. Right now, I believe the harm we could cause our society by our own overreactions actually is greater than that caused by Chinese influence seeking. That is why I feel I must dissent from the overall threat assessment of the report."



Latest on Discriminatory Alien Land Bills 


1.  APA Justice Updates Its Tracking of State Alien Land Bills and Laws

APA Justice updated its tracking map and table on June 8, 2023:  https://bit.ly/43oJ0YI.According to LegiScan, Governor Kevin Stitt signed Oklahoma Senate Bill 212 into state law on June 6, 2023.  This was also reported by KFOR-News4 on June 7, 2023.  The bill will stop non-U.S. citizens including legal residents from buying land in Oklahoma.  It becomes effective on November 1, 2023.


2.  Louisiana House Bill 537 and Tulane University Statement

According to LegiScan, the Louisiana House passed House Bill 537 by a vote of 73-26 on June 6, 2023.  The bill was sent to Governor John Bel Edwards for approval on June 7.Tulane University President Michael A. Fitts and Provost Robin Forman issued the following statement:"We are deeply concerned by the potential impacts on the Tulane community of several bills under consideration in the Louisiana Legislature targeting land ownership by non-US citizens.  We continue to share our concerns with legislators.  These bills have made many of our faculty and students uncertain and anxious about their futures in our state, and we share those concerns.  Universities thrive on their ability to foster a welcoming and safe community where we can recruit and retain the best and the brightest faculty, staff, and students from around the world to learn, research, and work together to solve our most pressing challenges.


"Our international community plays a crucial role in the research and innovation ecosystem of our city and state.  These international scholars and students have contributed greatly to the extraordinary success Tulane has experienced in research and in helping to increase economic growth in our region.  It is essential that we recognize and appreciate their contributions to our state, our universities, and our neighborhoods."On June 7, 2023, NOLA.com also reported on "Bill targeting foreign land ownership approved by Legislature after tweaks."   


3.  Florida’s Ban on Chinese Landownership Is a Racist Throwback

According to an opinion by Shan Wu published by the Daily Beast on June 6, 2023, the reality of the Florida land law—and other laws like it in states including Texas, Louisiana, South Carolina, and Alabama—are throwbacks to the racist “Alien Land Laws” from the 19th and early 20th century that barred Asians from owning land.Lesser-known than the redlining and racist zoning laws that kept Blacks and other minorities from buying homes in predominantly white neighborhoods, these laws sought to stop Chinese and Japanese people from purchasing and even leasing land primarily in the American West. For example, the 1859 Oregon constitution barred any “Chinaman” from buying property, and the 1879 California constitution was amended to specifically target Asians by only allowing aliens to buy land if they were of “the white race or African descent.”


Like today’s politicians, the leaders of that era stoked racist fears in order to eliminate perceived economic competition from Asians by outright banning them from immigration—the 1882 Chinese Exclusion Act—and through Alien Land laws. The Chinese Exclusion Act was not repealed until 1943 against the backdrop of the United States allying with China in World War II. It was not until 1948 that the U.S. Supreme Court struck down an Alien Land law as unconstitutional in Oyama v. California. Even after that decision, however, many states did not repeal the laws until decades later. Florida finally got around to repealing its Alien Land law in 2021, only to have [Governor RonDeSantis replace it with a new one.The federal government already scrutinizes foreign transactions, including real estate purchases, that may jeopardize national security through the interagency Committee on Foreign Investment in the United States (CFIUS). The interagency coordination includes the Department of Defense as well as the intelligence community.  The federal government—not Florida—is tasked with our national security, the Supremacy Clause of the United States Constitution likely preempts Florida’s ability to play in this arena. The Florida law also would appear to violate the Equal Protection Clause and Due Process clauses of the Constitution.  And there is also the federal Fair Housing Act, which prohibits making housing unavailable on the basis of among other things: national origin.Then there’s the economic and financial detriment DeSantis would be causing to his own state if the law is successfully implemented. 


The history of scapegoating Asian competition in America is intrinsically intertwined with racist violence. In the 19th century such fears led to lynchings of Chinese workers like the 1885 massacres of Chinese miners at Rock Springs, Wyoming, and the 1982 murder of Vincent Chin, who was beaten to death with a baseball bat in Detroit by white men who saw him as the embodiment of Japanese auto-industry competition—never mind that Chin happened to be Chinese not Japanese.May was Asian American and Pacific Islander Heritage Month, during which the contributions of Asians in America were celebrated. Now is a great time to ask ourselves what does the future hold, when so many of our political leaders long for a return to a racially violent past.Read the Daily Beast opinion: https://bit.ly/43OO60g



News and Activities for the Communities


1. US Supreme Court Backs Alabama Black Voters, Bolsters Civil Rights LawAccording to Reuters on June 8, 2023, the U.S. Supreme Court handed a major victory to Black voters who challenged a Republican-drawn electoral map in Alabama, finding the state violated a landmark law prohibiting racial discrimination in voting and paving the way for a second congressional district with a Black majority or close to it.Chair of the Congressional Asian Pacific American Caucus Rep. Judy Chu (CA-28) issued the following statement:


“Today’s decision is a victory for the communities of color and advocates that challenged discriminatory political maps in Alabama, but it’s also a victory for the American people because the Voting Rights Act remains alive despite recent Supreme Court assaults on it. It’s a relief that this far-right Supreme Court—contrary to many recent decisions—respected the Constitution, laws passed by Congress, and its own precedent to come to the correct conclusion today. Our democracy is at its best when all of us can be represented in Congress, and today’s decision ensures that Black voters’ power in Alabama and across the South is not diluted and erased. CAPAC will continue to work with our Tri-Caucus partners to protect and strengthen the voting rights of all communities of color.”2.  Congressional Research Service Director Resigns According to Roll Call and Bloomberg Government, Congressional Research Service Director Mary B. Mazanec is stepping down effective June 30 amid persistent complaints about leadership within Congress’ public policy research institute.   Librarian of Congress Carla Hayden announced Mazanec’s planned departure internally, and the House Administration Committee confirmed her resignation. The news comes after reports of high turnover, low morale and lagging diversity within the legislative support agency.  On May 3, 2023, the International Federation of Professional & Technical Engineers sent the results of the Congressional Research Service 2022 Federal Employee Viewpoint Survey to Hayden.


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June 15, 2023

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