May 20, 2020 - World

The DOJ's China Initiative could be problematic for civil rights

Illustration of an FBI agent looking through blinds on binoculars with the chinese flag overlaid on them

Illustration: Sarah Grillo/Axios

A legal scholar is raising concerns about the Department of Justice's China Initiative, which is aimed at countering economic espionage, theft of intellectual property and other national security concerns related to China, and its possible implications for civil rights.

Why it matters: Amid the U.S. government's new emphasis on countering threats from China, there is growing concern about the potential for over-zealous or discriminatory investigations.

What's new: Maggie Lewis, a law professor at Seton Hall University School of Law who focuses on criminal justice law in China and Taiwan, argues in a new draft paper in the Journal of Criminal Law and Criminology that the use of "China" as a frame doesn't sit well with the Department of Justice's own principles.

  • "[U]sing 'China' as the glue connecting cases under the Initiative’s umbrella creates an over-inclusive conception of the threat, and attaches a criminal taint to entities that have an even tangential nexus to 'China.'"
  • A clear threat does exist, writes Lewis. But lumping investigations together under a "China" label suggests "threat by association," which goes against the spirit of the department's commitment to pursuing cases individually.

The solution: Lewis said the U.S. government should explore measures such as enhanced audits and tightened regulation before resorting to a criminal law response.

  • Lewis also suggests "adopting a country-neutral framing and only connecting cases when there is a compelling reason to do so, not because they have been categorized as part of a larger China threat."

The bottom line: "You don’t want to be a Pollyanna and deny that there is a threat," Lewis told Axios in an interview. "But you don’t also want to have over-deterrence. You want to find the sweet spot. I’m not convinced that the China Initiative is currently doing that."

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