ABOVE: Dr. Xiaoxing Xi

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In May of this year, federal agents raided the home of a Chinese-American physics professor, Dr. Xiaoxing Xi,  and dragged him from his home in handcuffs before his young daughters on charges that he emailed to a colleague in China design schematics for a pocket heater, a device used in superconductor research, despite a written agreement not to share such information. Temple University, where Dr. Xi taught, unceremoniously stripped him of his title of Chairman of the Physics Department, put him on administrative leave and restricted his communications with others at the university.

The DOJ shortly afterwards sent out an overheated press release, noting, for some reason, that Professor Xi, who is a naturalized U.S. citizen, was a “native of the People’s Republic of China,” apparently based on the heretofore unknown jurisprudential principal in criminal trials that defendants are innocent until proven Chinese.

Last Friday the government dropped all charges against Professor Xi, alluding obliquely in the court papers that, after the indictment, unspecified “additional information came to the attention of the government.” According to this New York Times article, the unspecified information was that the design schematics were not for the device that the government thought they were. More bluntly, the government was too stupid to understand what the designs were for, got the designs for another device confused with the one Professor Xi had agreed not to share, and then tried to wreck his life. Oh, and did the DOJ promptly issue a press release admitting its mistake? Of course not. Are you crazy? They apparently did not even tell Professor Xi they were sorry.

Dr. Xi said this to the New York Times:

I don’t expect them to understand everything I do. … But the fact that they don’t consult with experts and then charge me? Put my family through all this? Damage my reputation? They shouldn’t do this. This is not a joke. This is not a game.

Dr. Xi’s lawyer, according to the Times, went further and suggested that the prosecution targeted Dr. Xi because he was Chinese.

If he was Canadian-American or French-American, or he was from the U.K., would this have ever even got on the government’s radar? I don’t think so

Of course not. The DOJ press release which notes that Xi was born in China makes that clear. Apparently the folks at DOJ don’t think that they are bound either by actual science or by federal laws prohibiting discrimination based on national origin.

ABOVE: Alexander Fishenko

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Almost two years ago, this blog reported on the charges against Alexander Fishenko who, among other things, was accused of shipping various USML and CCL items to the Russian government without a license. Yesterday, according to this DOJ press release, Fishenko pleaded guilty to all the charges against him.

These charges included charges that Fishenko failed to register under the Foreign Agents Registration Act, a charge calculated to elicit a frenzy of headlines about the charges against a “Russian Spy.” And the press predictably took the bait then and took the bait again in reporting the plea agreement. The nominally respectable Bloomberg News headlined the plea deal as “Military Technology Exporter Admits to Spying for Moscow.” Even the previously mentioned DOJ press release only called Fishenko a “Russian Agent.”

The statute involved is the Foreign Agents Registration Act, which requires that any person in the United States acting on behalf of any foreign person, not just foreign governments or spymasters, must register with the Department of Justice. Section 1(c)(1) of the Act, 22 U.S.C. § 611(c)(1), defines the precise activities that trigger the registration requirement, including political activities for a foreign person or government, acting as a publicity agent for a foreign government or person, dispenses money on behalf of the foreign government or person, or representation of the foreign government or person before a government agency.

Under this definition, Fishenko might, I suppose, be said to have dispensed money on behalf of his Russian buyers in buying the items that were exported to them. The problem with this theory of liability under the act is section 3(d) of the Act which exempts from the registration requirements “private and nonpolitical activities in furtherance of the bona fide trade or commerce of such foreign principal.” Because the act covers acting on behalf of foreign governments and private foreign entities, every exporter would be a “foreign agent” or “spy” without this exemption.

As this blog noted in the original post, the only activity that Fishenko was accused of in engaging in for the Russian government was buying stuff. The fact that it was exported without a license does not prevent it from being bona fide trade. The bona fide requirement is designed to prevent foreign persons or governments from spreading influence simply by buying things that they don’t actually need. And again, because the act covers not just foreign governments but all foreign entities, if lacking a license for the export prevented the purchase for the foreign person from being bona fide trade, then all persons guilty of illegal exports are also necessarily “spies” unless they register under FARA.

Of course, since Fishenko pleaded guilty, we will never know how a court would come out on these arguments. If, as I suspect, the FARA charges were simply designed to poison the well with spy charges, the government might not have even bothered to press those charges had it ultimately been forced to go to trial.