After Missteps, U.S. Tightens Rules for Espionage Cases
By MATT APUZZO

WASHINGTON — The Justice Department has issued new rules that give prosecutors in Washington greater oversight and control over national security cases after the collapse of several high-profile prosecutions led to allegations that Chinese-Americans were being singled out as spies.

The new rules are intended to prevent such missteps, but without undermining a counterespionage mission that is a top priority for the Obama administration.

In December 2014, the Justice Department dropped charges against two former Eli Lilly scientists, Guoqing Cao and Shuyu Li, who had been accused of leaking proprietary information to a Chinese drugmaker. Three months later, prosecutors dropped a case against Sherry Chen, a government hydrologist in Ohio who had been charged with secretly downloading information about dams.

Then in September, the Justice Department dismissed all charges against a Temple University professor, Xiaoxing Xi, after leading physicists testified that prosecutors had entirely misunderstood the science underpinning their case.

“We cannot tolerate another case of Asian-Americans being wrongfully suspected of espionage,” Representative Judy Chu, Democrat of California, said last fall. “The profiling must end.”

While those cases raised the specter of Chinese espionage, none explicitly charged the scientists as spies. The cases involved routine criminal laws such as wire fraud, so national security prosecutors in Washington did not oversee the cases.

In a letter last month to federal prosecutors nationwide, Deputy Attorney General Sally Q. Yates said that would change. All cases affecting national security, even tangentially, now require coordination and oversight in Washington. That had always been the intention of the rule, but Ms. Yates made it explicit.

“The term ‘national security issue’ is meant to be a broad one,” she wrote.

Ms. Yates told federal prosecutors that consulting with experienced national security prosecutors in Washington would help “ensure prompt, consistent and effective responses” to national security cases.

The letter, which was not made public, was provided to The New York Times by a government official.

John P. Carlin, the Justice Department’s top national security prosecutor, reorganized his staff in Washington in recent years to focus more aggressively on preventing theft of America’s trade secrets. The new rules mean that espionage experts will review cases like Dr. Xi’s. Such cases “shall be instituted and conducted under the supervision” of Mr. Carlin or other top officials, the rules say.

Peter R. Zeidenberg, a lawyer for the firm Arent Fox, who represented Dr. Xi and Ms. Chen, called the new rules “a very positive step.”

“It’s welcome, and it’s overdue,” he said. “A bad reaction would be ‘We’re not going to do anything. Everything is fine.’ ”

Several of the cases fell apart when defense lawyers confronted prosecutors with new evidence or previewed the arguments they planned to make in court. In traditional white-collar criminal investigations, those conversations between prosecutors and defense lawyers often happen before charges are filed. In cases involving even a whiff of espionage, however, such conversations rarely happen. Authorities worry that suspects, tipped off to the investigation, will run or destroy evidence.

The absence of those conversations makes it important, then, that such cases receive an extra layer of review, defense lawyers said.

Ms. Yates did not mention the botched cases in her letter. But at the Justice Department, they were regarded as unfortunate — and perhaps preventable — black eyes that detracted from a string of successful espionage prosecutions. The United States faces an onslaught of economic espionage and other spying from China. Last year, Chinese hackers stole a trove of government data — including Social Security numbers and fingerprints — on more than 21 million people.

Last month, Su Bin, a Chinese businessman, pleaded guilty to trying to hack into American defense contractors to steal information on the F-22 and F-35 fighter jets and Boeing’s C-17 military cargo plane. In January, a Chinese citizen pleaded guilty to trying to steal corn seeds from American companies and ship them to China to replicate their genetic properties.

In the Obama administration’s most direct confrontation with China, the Justice Department in 2014 charged five members of the Chinese People’s Liberation Army with hacking into prominent American companies.

Mr. Zeidenberg and others have argued that rushed cases create suspicion and unfairly tarnish reputations. In the case against the Eli Lilly scientists, prosecutors were unsparing in their description.

“If the superseding indictment in this case could be wrapped up in one word, that word would be ‘traitor,’” Cynthia Ridgeway, an assistant United States attorney, told a federal court in Indiana last year, according to the Indianapolis Business Journal.

The Justice Department gave no explanation for later dropping the case, saying only that it was done “in the interests of justice.”

Prosecutors made a similar statement last year when dropping charges against Dr. Xi. The dismissal suggested investigators did not understand and did not do enough to learn the science before they brought charges. Prosecutors had accused Dr. Xi, chairman of Temple’s physics department, with sharing schematics for a piece of American-made laboratory equipment, a pocket heater, with China. After leading scientists — including the inventor of the pocket heater — testified that the schematics showed an entirely different type of heater, the Justice Department dropped the case.

Though prosecutors dropped charges against Ms. Chen, the government has said it intends to fire her. She is fighting that decision.

華裔間諜冤案太多 美終於檢討

近年來華裔美籍科學家遭指控為中國間諜，鬧得沸沸揚揚後，檢方突然撤回起訴的案件頻傳。為了亡羊補牢，美國司法部通令聯邦檢察官，即日起凡涉及國家安全的案件，縱然只有些微間接的關聯，都必須接受司法部負責國家安全案件的檢察官督導。

紐約時報報導，司法部從二○一四年十二月到去年九月，先後撤回對四名華裔科學家的間諜指控。檢方先是撤回對禮來藥廠科學家曹國慶和李書玉的指控，三個月後，又撤回對聯邦水文學家陳霞芬的指控，去年九月撤回對天普大學教授郗小星的間諜指控。

新規實行後，反間諜專家今後碰到類似郗小星的間諜案時，要按照規定，在司法部專業檢方高層的監督下審議。代理郗小星和陳霞芬案件的Arent Fox律師事務所律師蔡登博格稱這些新規是「非常積極的舉措……這是好事，早就該實施。」

加州國會眾議員趙美心表示：「我們不能再容忍另一宗亞裔被誤認為間諜的案件，種族偵防必須終止」。

美國司法部副部長葉慈上個月致函全國聯邦檢察官，表示所有涉及國家安全的案件，都需與司法部協調，接受司法部專業部門的監督。與華府國安檢察官諮商，以確保對國安案件做出迅速和有效的回應。葉慈表示，國安案件接受司法部監督，一直是立法意旨，她只是把話給講清楚。

司法部主管國家安全事務的檢察長卡林表示，以後檢方把查處間諜的重點放在預防美國的商業機密被竊取上。在信中提到上述那些搞砸的案件。不過司法部將其看作令人尷尬的，而且或許是可以避免的挫敗。美國面臨來自中國的大量經濟間諜活動和其他刺探行動。去年，中國駭客竊取了一大批美國政府數據，其中包括逾二千一百萬人的社會安全號碼和指紋。

上個月，中國商人蘇斌(音譯)承認自己入侵美國防務承包商的電腦網路，試圖竊取有關F-22和F-35戰機，以及波音C-17軍用運輸機的資訊。

今年一月，一名中國公民承認自己試圖從幾家美國公司竊取玉米種子，以便運回中國後複製其遺傳特性。

原文參照：
http://www.nytimes.com/2016/04/27/us/after-missteps-us-tightens-rules-for-national-security-cases.html

紐約時報中文版翻譯：
http://cn.nytimes.com/usa/20160427/c27espionage/zh-hant/

2016-04-29．聯合報．A15．國際．編譯張佑生