Tuesday, May 15, 2007

The Third Bird Must be The Chinese Spy, Or Not?

A third person was accused of spying for the Chinese government last year when he was arrested. However, the case fell apart when the prosecutors presented zero evident to the court. Still the person was found guilty (on a lesser charge).

The name is Chi Mak, who was the chief engineer of Power Paragon Inc, a Department of Defense contractor. He was under continuous surveillance for 18 months before his arrest last year.

Before we call a person a spy, we would do a test:
1) Does Mak have intent to spy?
2) Has any classified information been passed?

Chi Mak, a naturalized US citizen, repeatedly vowed his loyalty to the States. There's no evidents whatsoever on his intention.

The focus of the trail was 3 CD-Rom that Mak burned and asked his brother to take back to Hong Kong. He asked his brother to give the CDs to three persons, a Hong Kong professor, a Hong Kong engineer, and a family friend Mr. Pu in Guang Zhou. The prosecution said Mr. Pu was Mr. Mak's up-link in Chinese spy agency.

What on the CD was a selection of Mr. Mak's papers published in earlier conferences. The paper could be purchased for a fee by anyone with a credit card from a public website. The paper was also presented in conferences attended by scholars from all over the world, particularly including scholars and students from mainland China. Mr Mak's colleagues and boss all testified that they believed the paper were not confidential and harmless to the national interest of the US. They all testified that Mr. Mak were allowed to take these papers home or show them to anyone.

The catch was a little know rarely practiced restriction to the passing of information to China. There's a list of less than 20 countries and areas where the US sees as threats. Information passing to these areas is subject to strict constraints. China was added to the list after the Tiananmen Square Massacre in June 4th, 1989, partially as a political gesture. In reality, due to the connections between the two countries, the policy was never really executed. In other words, Mr. Mak was allowed to publish his paper to the world, and publishers were acting legally when posting the paper on the web where everyone can browse, but when Mr. Mak personally taking the files cross the border of the US, he was accused of spying for China.

After 18 months of close monitoring, including video, audio and wiretapping, all the evidents FBI could produce were the 3 CD-ROMs with same contents of public available research papers to three research collaborators. For Mr. Mak, it's a 35 years prison time, but does that matter to an overzealous prosecution?

The alleged classified materials never surface. Not even one bit of classified information passing had been found in the 18 months close surveillance. Now the government dropped the espionage charge, but instead charged the Maks for transferring public domain knowledge to China. As one reader Michael Deal posted on the New York Sun's website: "I'm no fan of the Chinese Communist Party or their American puppets, the Republican Party, but this is a question of what the law is, rather than what the law should be. Information, even about military affairs, that is available to the public at large, is protected by the First Amendment."

The trail goes like a comedy, if for a moment we can forget the a real persona, a real family's sufferings. The classified materials turned out to be public domain knowledge. Nothing is more drama when the court played the telephone conversation that sealed Chi Mak's fate. It was between Chi Mak and his 'Chinese military uplink' Mr. Pu Peiliang, a Sun Yet-sen University researcher, in which Mr. Mak said 'This is Hong Fa'. Hong Fa is the name of Mr. Mak's family business. The FBI agent, apparently not good in Chinese but nonetheless good in imagination, heard of it as 'Hong Hua (red flower)'. If you associate yourself of anything of red color, then you must be a red spy. Days later, Mr, Mak was arrested. It's this simple.

If we review our test, it's clear that answers to both questions are solid No.

Mr. Mak was not the first Chinese American fell in the trap of overzealous prosecutors. Mr. Wen-ho Lee of the Las Alamos National Lab was charged for spying. Ms. Katrina Leung was also charged for spying. Both cases were proven to be nothing but bogus.

All rising assistant attorneys, such as assistant U.S. Attorney Craig Missakian in this case, needs convictions to pave their career path. Unfortunately, some found Chinese to be the easy shortcut.

Sources: ExportLaw Blog, The New York Sun

No comments: