Intel Work, Criminal Work--Today's FBI?

Yesterday I did a lengthy analysis of Shipwreckedcrew's shortcoming's in discussing the Russia Hoax--especially the role of Carter Page and the key fact of Page's involvement with the FBI's hugely important case against Russian officials in New York. The actual nature of the charges may not have been terribly earth shaking, but in the world of counterintelligence (CI) and foreign policy the case was huge. Page's targeting by the FBI simply cannot be understood without a full understanding of Page's role in that case and his falling out with the FBI.

I followed that up a bit later with Somebody Tell SWC To Stop Digging! That post was very brief and was simply intended to show that SWC doesn't really have a clue about the FBI's "intelligence" work--more properly speaking, National Security work. Since that post was so short I'll quote it in its entirety:

I can't believe it when prosecutors say sh*t like this:

@shipwreckedcrew:

It might end up tanking the criminal case. But building a criminal case is not what intelligence division agents are focused on when they are trying to figure out if Scientist X is a spy or not a spy. The only goal for the intelligence agent is to get an answer to that question.

The FBI has an "Intelligence Division" and a "Criminal Division" -- they do separate kinds of work.  The "Intelligence Division" is not gathering evidence for purposes of a court proceeding.  They have more "leeway" for their conduct.  Their goal is to simply get information.

He was a prosecutor and doesn't understand that espionage is a criminal offense? 

Later, reader Jim pointed me to an article at the Cato Institute:

Bad Incentives Lead FBI Agent to Accuse Chinese‐​Born Canadian Researcher of Being a Spy

Cato, of course, is a pretty doctrinaire libertarian think tank, and you can read about it here. I oppose much of the policy agenda that Cato advances, and for our purposes here I'll point out that Cato advocates for very liberal immigration policies and opposed President Trump's policies. The article must therefore be read with certain filters working. On the other hand, it offers an entrance into a somewhat different world than most readers may be familiar with and may help clear up misunderstandings such as SWC demonstrates.

The thesis of the Cato article is that the FBI and prosecutors, operating under pressure to find spies, find spies. In a way it's a bit like a CI version of, when all you've got is a hammer, everything looks like a nail. Looked at from a different angle, it can lead to "bad incentives" such as framing innocent Chinese professors in order to impress your superiors and gain promotion. Cato is very much of the view that the Chinese professor is most likely innocent--and for all I know from my distance Cato may be right:

The Department of Justice (DOJ) charged Hu with engaging in espionage‐​related crimes because some of his research was funded by a grant from NASA that was similar to research projects that he was working on in China. Reading stories about Hu, the most charitable explanation for the DOJ charging him with a crime is that it’s a simple case of bureaucratic misunderstanding where University of Tennessee administrators and Hu didn’t understand disclosure requirements that prohibited him from working on projects in the United States and China while receiving government research funding.

Cato further suggests that the charges against the Chinese professor--three counts of wire fraud and three counts of making false statements--are chickensh*t substitutes for what the prosecutors can't prove: espionage. As a blanket statement I have to reject that--prosecutors who are tasked with protecting the nation against technology theft go with the tools at their disposal. Espionage is not often easy to prove, especially when the facts of the case don't fall within the parameters of traditional spying, but the threat remains real. Fraud and false statements can be very serious charges--it all depends on the facts of the case.

But Cato doesn't stop there. They go on to suggest that the FBI engaged in knowing and deliberate falsifications. In support of their "more sinister" theory of what's going on in the case, Cato quotes an article from The Hill--Federal agents admit to falsely accusing Chinese professor of being a spy:

Other than a simple misunderstanding, there is a far more sinister reason why Hu is on trial: FBI and DOJ pressure to find spies and make double‐​agents out of them. According to a report from The Hill:

An FBI agent admitted in an ongoing trial to falsely accusing a Chinese‐​born Tennessee professor of being a Chinese spy, using baseless information to get have him placed on the federal no‐​fly list and spying on him and his son for two years … FBI agent Kujtim Sadiku admitted last week to falsely accusing former University of Tennessee, Knoxville, professor Anming Hu of being a spy. Sadiku also admitted to using the false information to pressure Hu to become a spy for the U.S. … No evidence was ever discovered that suggested Hu, an internationally recognized welding technology expert, is a spy.

One gets the impression that the libertarian Cato Institute sees the FBI as the enemy of liberty. That's, admittedly, an impression recent actions of the Bureau have tended to encourage.

If I understand the context correctly, since these allegations arise during an "ongoing trial", the hearing on which the article is based must involve a motion for a directed verdict--dismissal. Professor Hu clearly has a good attorney, and it's possible that he has exposed what looks like questionable conduct by the government. 

On the other hand, The Hill is relying on an account at the Knoxville News Sentinel. The KNS article is detailed and clearly sympathetic to professor Hu--Trial reveals federal agents falsely accused a UT professor born in China of spying.

I read through the article, because it seemed unlikely to me that an agent and a prosecutor would openly admit to filing false criminal charges. That doesn't mean that false charges have never been filed--just that agents and prosecutors aren't likely to admit that.

Again, from my distance I can't make a judgment on this issue because I'd need to know a lot more. However, if we go through what the agent actually says about his investigation we may get a clearer picture of what's involved in the FBI's "intelligence" or national security work. One thing will become very clear--contrary to what you hear from seasoned former prosecutors, many of these cases are targeting prosecution from a very early stage, even from inception. Another thing that will emerge is agents and prosecutors are working in a grey area of the law. They're being asked to stop transfer of sensitive technology to China--a very real problem. On the other hand, due to the nature of American society and American immigration policies--as well as China's clear sighted determination to take advantage of those factors--the FBI faces very real difficulties.

With that lengthy preamble, here's how I see this case going down--based on the KNS article, which quotes extensively from the agent's testimony.

China has what it calls its Thousand Talents Program. The purpose of the program is to address what could be called China's "brain drain." Recognizing that much of China's top talent has gone overseas--first for educational purposes, but remaining afterwards to work--the Chinese government came up with the Thousand Talents program in an attempt to attract these scientists and researchers to return to China. That's the official version. On the other hand:

Both the United States and Canada have warned that China intends to use scientists who are involved with this plan to gain access to new technology for economic and military advantage.

And there's no lack of evidence to support the contentions of the US and Canada in this regard. All you have to do is read a bit about the now famous "bat lady," Shi Zhengli, and her adventures in Canada, the US, and Wuhan to realize the threat is real. In Wuhan the intertwined economic and military aspects of scientific research are on full display.

That's where the FBI comes in. The difficult part--one difficult part among many--is identifying sensitive technology. "Economic and military advantage" covers just about everything, and in any event separating the two would, in this age of dual use technology, be a virtually impossible task. It's not surprising, then, that the US government has constructed a web of regulations that allow prosecutors to apply easier to prove violations than espionage. Of course, the effort exerted in the enforcement of these measures varies from one administration to the next, depending on relations with China. Some administrations seek to curb tech transfers, others see it as an opportunity for personal enrichment. Further complicating matters is the fact that all relevant parts of the US government may not--at any given time--be on board with whatever happens to be official policy. Or policy statements.

Professor Hu was arrested in 2018, at a time of high tension between the US and China. It appears that the agent, Kujtim Sadiku, opened an investigation of professor Hu by following what was almost certainly a Bureau wide initiative. The question facing the FBI was simple: How to identify the people most likely to be involved in tech transfer? The strategy that was devised relied on a simple plan. Agents like Sadiku simply ran "open source" (Google) searches of Chinese scientists, researchers, and professors in their area. If those searches turned up certain results, if the fit a certain defined profile--for example, references connecting the person in question with the Thousand Talents program--a case was opened. 

When Sadiku ran his search on Hu,

Sadiku found a news release and flier written in Chinese that included Hu’s photograph. He used a feature of the Google app for a “rough translation,” of the document, the agent told jurors. 

The document revealed Hu was awarded a short-term contract in 2012 under China’s Thousand Talents Program to teach students at the Beijing University of Technology and had an upcoming speaking event in China. 

Sadiku formally launched an economic espionage probe at that point.

Sadiku then sought to recruit Hu to learn more about whoever in China might be behind any efforts to acquire sensitive technology. Here things are murky. It appears that Sadiku's recruitment efforts were initially successful. When and why did the focus turn to prosecution? Was it always part of the plan? We simply don't know, but it's an important part of judging this case.

Whatever the reality, at some point Hu was discovered to have run afoul of what is known as the "NASA Restriction." Here's how that worked:

Hu left China more than a decade ago to pursue a second doctorate in Canada. Testimony showed he moved his wife, children and relatives to Canada and became a naturalized citizen. His research and inventions in a welding technique known as “brazing” were gaining fame in academic, business and government circles. 

The University of Tennessee (UT) recruited him to teach and continue his nanotechnology research in 2013, and he took the post. 

Hu told jurors Friday he had a one-hour training session on the stacks of disclosure forms UT faculty and staff are required to file each year. That training included a Power Point about the so-called “NASA restriction” — an amendment to a military funding bill passed in 2011. 

A half dozen UT administrations have testified the Power Point was the only guidance its employees are given about how to comply with the NASA restriction. 

It said UT will provide NASA with a “China Assurance letter” for any proposal for a grant submitted by faculty. 

“The language indicates that we do not view our faculty, staff and students to be entities of China,” it read. 

Hu disclosed his ties to Beijing University of Technology in at least two required forms at UT, testimony shows, and he disclosed them again in email exchanges with both UT officials and a NASA contractor. No one, testimony revealed, told Hu that he was barred from NASA work. 

He went on to complete two NASA projects before federal agents came calling with handcuffs in February 2020.

All of those facts definitely tend to show that Hu never intended to hide his ties to Chinese institutions. The actual charges against Hu all stem from one form:

Hu is specifically accused in the case on trial of plotting to “intentionally” defraud NASA by failing to list his Beijing University teaching work on a single annual form at UT. The form doesn’t ask professors to disclose ties with China or any other country, UT officials testified. 

Instead, the form asks assistant professors such as Hu to list any work outside UT that earns them more than $10,000. Hu earned less than $2,000 annually from his work with Beijing University. 

Federal prosecutor Matthew McKenzie on Thursday argued there is plenty of proof Hu left off the Beijing work from that single form to avoid the NASA restriction. 

“The argument we’ll make is … he was involved with this Chinese university for years, and it was obvious he would have to disclose that,” McKenzie said.

Here, I caution that we don't know what evidence, if any, was offered as to Hu's intent. We only have what the article includes to go on. Taken with Hu's previous inclusion of his Chinese ties on other forms, the evidence as we know it appears rather thin.

Perhaps the most troubling aspects of the case that came out at trial involve two related matters.

First, Sadiku admitted that he believed Hu when Hu told him that he was not part of the Thousand Talents program:

Sadiku testified he never mentioned fraud or the form — a conflict of interest disclosure — when he confronted Hu in April 2018. The agent said he instead asked Hu if he was a member of the Thousand Talents Program. 

“I interviewed him,” Sadiku said. “He told me he wasn’t (a member), so I believe that he wasn’t.”

This, I believe, would tend to undermine the allegations of intent on Hu's part. Jurors--or the judge--might tend to think that, combined with Hu's known disclosures of his China ties, the fact that he was not part of the Thousand Talents program strengthens the contention that he thought he had nothing to hide. It's not a straight line proof, but it is a real impression that would tell in his failure.

Second, the article claims that Sadiku admitted that he had presented a falsehood to UT officials: the claim that Hu was a Chinese military "operative." This is somewhat unclear from the article. Sadiku appears to push back, but it's not clear what his line of defense is:

The agent ultimately admitted he presented UT officials with a Power Point that labeled Hu as an operative for the Chinese military and never followed up to say it wasn’t true. 

“Based on my summary translations, my reports and my outline, no, Hu wasn’t involved in the Chinese military,” Sadiku testified. 

Lomonaco said, “This is a false statement you put on the (presentation to UT officials), isn’t it?” 

“Can you repeat the question?” Sadiku replied before answering, “If you’re talking about the power points, I prepared those, yes."

Here's my reservation. It's difficult for me to envision in what possible context Sadiku would have offered a Power Point presentation to the UT officials that was specific to Hu. I can readily understand that he would give such a presentation that would present Chinese persons in Hu's position as often associated with the Chinese military. Did he use Hu as a direct example?

Again, this isn't a question of straight line proof. However, my guess is that any subterfuge would leave a bad taste in the judge's mouth and the mouth of the jury. Sadiku does specifically state that Hu was not "involved in the Chinese military," just as he was not part of the Thousand Talents program. That being the case, this also works against an intent to deceive in the full context of the case. 

Finally, there was testimony and documentation that Hu sought advice on completing grant forms and relied on the statements of UT grant administrators in filling out those forms. Specifically, he was told that the NASA restriction did not apply to UT faculty. An email from the grant administrator to Hu states:

"Anming, regarding the China Assurance, NASA requires you to include a signed document stating you assure you will comply with the Chinese Funding Restrictions. However, UTK always includes a special copy stating that, as we understand it, this restriction does not apply to faculty, staff, and students."

Hu then submitted a grant proposal to the National Propulsion Laboratory that assured compliance with the Chinese Funding Restrictions--but did not include any information about his Chinese ties, which he had revealed on other forms. 

The prosecutor argued that the China Assurance document was sufficient notice to Hu of his disclosure obligations, and Hu's failure to include all his China ties in the grant proposal was clear evidence of fraud--even though UT had been involved in preparing the grant proposal and Hu had specifically raised his China ties to the grant administrator, citing the China Assurance Letter. Hu's attorney naturally has argued that Hu's reliance on advice from the grant administrator is strong evidence that Hu never intended to deceive anyone.

So there we are. What we don't know are the motives behind the actions of agent Sadiku and the prosecutor. Who was the prime mover behind the decision to prosecute Hu? Ultimately the decision is up to the prosecutor, of course, and essentially out of the agent's hands. Was this prosecution driven by ignoble motives involving career enhancement, or did they sincerely believe they were doing their duty? Is it possible that their are additional facts that we're not aware of?

While I'm not eager to judge, especially without all the facts, my belief is that this was a case that probably should never have got to the point of indictment. Cato is probably right that, at a minimum, the agent and the prosecutor were responding to incentives or simply pressures in their own jobs, and Hu fell outside that world. Hu faces the possibility of 20 years in federal prison and a fine up to $250,000 on each of the wire fraud counts, and up to five years in prison on each of the false statement counts. There is no mention in anything I've read of any harm to the United States, only paperwork misdeeds.