China / Diplomacy
China-born US scientist Xi Xiaoxing chases damages from FBI over collapsed case
- Appeal court filing says judge erred in dismissing original claim by Xi and his wife against the US government and an FBI agent
- The Temple University professor was charged with giving trade secrets to China but prosecutors withdrew the case before trial
Topic |
US-China relations
Associated Press
Published: 1:29pm, 8 Feb, 2022
A US physicist is continuing his quest for damages after accusations that he gave trade secrets to China collapsed before they could be tested in court.
Lawyers for Temple University professor Xi Xiaoxing and his wife filed a brief on Monday with a federal appeal court in Philadelphia. The brief says a judge erred
last year when he dismissed most of the claims in their lawsuit against the US government and an FBI agent.
Xi’s legal team, which includes lawyers from the American Civil Liberties Union (ACLU), assert the agent who led the investigation “intentionally, knowingly or recklessly” made false statements and misrepresented evidence so that prosecutors could get an indictment.
“When law enforcement agents abuse the legal process by obtaining indictments and search warrants based on misrepresentations or by fabricating evidence, it undermines the legitimacy of the courts,” they wrote in the brief.
“The judiciary has a stake in ensuring that malicious prosecutions and illegal searches do not go unchecked, and the courts have well-established standards for assessing such claims,” they said.
“Moreover, the harm to Professor Xi, his family, and society at large, as well as the need to deter further misconduct, strongly weigh in favour of allowing these claims to proceed.”
In a statement provided by the ACLU, Xi said there was “clear evidence that the FBI violated our constitutional rights that day, and years later we are still dealing with the trauma of this ordeal”.
“If we can’t hold the government accountable now, there will be little to stop the government from profiling other Asian-American scientists and ruining more innocent people’s lives in the future.”
The bungled case against Xi was brought in 2015, three years before the Justice Department launched its “China Initiative”, an effort to counter trade secret theft and economic espionage by Beijing which is now under review.
Despite some convictions, the effort has endured notable setbacks, with prosecutors forced to dismiss several cases over the past year – including one last month, when officials said they could not meet their burden of proof against a Massachusetts Institute of Technology professor charged with fraud.
Patrick Toomey, a senior staff lawyer with the ACLU’s National Security Project, called on Monday for the Joe Biden administration to abandon the China Initiative.
The legal brief traces the history of the case, recounting how Xi – a naturalised US citizen from China with expertise in thin film superconducting technology – was arrested at his home early one morning in May 2015.
His wife and daughters were held at gunpoint in the living room while Xi was taken into custody to be interrogated, fingerprinted and strip-searched. He was placed on administrative leave, suspended from his job as interim chair of Temple’s physics department, and was unable to participate in research.
Xi was indicted on charges that he had shared information about a device called a “pocket heater” with academic counterparts in China.
But the criminal charges were “false and fabricated”, Monday’s filing said, and the email communications at the centre of the indictment were about an entirely different device and described a process that Xi and his colleagues had invented.
The Justice Department, which declined to comment on Monday, dismissed the case before trial in 2015. Xi sued in 2017.
In the lawsuit, Xi singled out the FBI agent who investigated him, accusing him of knowingly making false statements to prosecutors, of misunderstanding the science at the centre of the case, and of ignoring prior information that established Xi’s innocence.
The lawsuit also alleges Xi was targeted based on his Chinese ethnicity, with lawyers on Monday calling the prosecution discriminatory.
In seeking to dismiss the lawsuit, Justice Department lawyers representing FBI agent Andrew Haugen said probable cause had existed to indict Xi even if the case was later dismissed, and that the agent had made “reasonable efforts” to understand the professor’s work.
Last year, a federal judge in Philadelphia R. Barclay Surrick, dismissed nine of the couple’s 10 claims, ruling they were unable to recover damages from the US government and that judgments and decisions about the investigation and prosecution were matters of discretion.
A 10th claim, related to the surveillance of Xi and his family, is still pending.
“What happened to Xi and his family is very unfortunate,” Surrick wrote. “Nevertheless, it is the obligation of this court to simply apply the law as it presently exists to the facts.”
But that ruling was erroneous, according to lawyers for Xi and his wife. In the filing, they say their lawsuit plausibly alleged “the fabrication of evidence to secure an indictment of Professor Xi, the falsification of reports and affidavits to obtain a warrant for the search of the Xi family’s home and belongings, and the discriminatory prosecution of Professor Xi on the basis of his race and ethnicity”.
