The Scientist and the Spy

by Mara Hvistendahl

  Many of them were Chinese. As people in China ate more like Americans, with diets heavy in corn-fed meat, rates of cancer had skyrocketed. MD Anderson had become the preferred destination for care—so much so that agencies had cropped up to offer all-inclusive packages that comprised airfare, hotel, interpreters, and even personal shoppers while in Houston. Just next to 1 Mid Campus, MD Anderson’s corporate headquarters, a Chinese developer was at work on a $94.7 million hotel, with sixteen stories of rooms aimed at mainland patients. MD Anderson also brokered research and clinical care partnerships with Chinese universities and hospitals, some of them led by the many Chinese-born researchers on staff. The institution was emblematic of just how deeply the United States and China were entangled in both commerce and science.

  Robert became a patient of Dejka Araujo, the only doctor in the country who specializes in synovial sarcoma. On Christmas Day, he started treatment: six cycles of chemo, followed by five weeks of daily doses of radiation, with only Sundays off. Dr. Araujo explained that even if his cancer was to go into remission, he would face significant risk of it recurring within two years. As with his legal case, the prognosis seemed dim.

  THIRTY-THREE

  2017

  From outside the U.S. Courthouse Annex, I could see a bridge leading across the river to the heart of downtown Des Moines, where men and women clad in business casual bought their morning coffee and hustled into office towers. Where I stood, police cars outnumbered people. The windows of the building before me were tinted green, obscuring the view of what was inside.

  I walked through the door and passed through a metal detector, taking the elevator up three floors to the U.S. attorney’s office for the Southern District of Iowa. The ceilings in the space were low, and the walls were decorated with airbrushed paintings of bland nature vistas. In the one that hung in the conference room where I met Jason Griess, a seagull swooped into a puff of turquoise sea foam.

  Next to Mark Betten, Griess was the man who knew the most about the corn theft investigation. It was his first economic espionage case, and it had dominated his life for two and a half years. “These are just tremendously valuable secrets, and it’s a national security issue that we not allow those to leak out,” he told me.

  He explained to me the process of poring over reams of documents. As Robert’s case moved toward trial, the sheer resources expended in the investigation had become clear. Over the course of two years, dozens of agents had worked on catching him. Griess’s team had at their disposal four gigabytes of surveillance video, seventeen thousand intercepted emails, detailed GPS logs, boxes of documents taken from Robert’s home, hundreds of hours of audio recordings and intercepted telephone calls, and numerous FBI 302s—the bureau’s official accounts of interviews with sources. When the results from BioDiagnostics came back, a portion of the samples appeared to match Pioneer and Monsanto seeds that the companies considered trade secrets, so that evidence, too, had to be carefully considered. Early on, an attorney was sent from the Justice Department’s National Security Division to help. Even so, combing through all this entailed an immense amount of work, and the case came to consume his life.

  Griess was amiable and open. He spoke freely until, in a follow-up call, I asked him about the Foreign Intelligence Surveillance Act warrant—the secret, expansive permit that was used to collect some of the evidence in Robert Mo’s case. “I don’t want to get into the whole FISA thing,” he said.

  * * *

  • • •

  FISA WARRANTS ARE the product of a 1978 law enacted in the wake of Watergate and other intelligence scandals. The law was among a suite of reforms intended to prevent such abuses from happening again. The idea was that a secret body—the Foreign Intelligence Surveillance Court—would be put in charge of issuing the warrants needed to combat the most extreme national security threats, allowing intelligence officials to obtain permission quickly and discreetly while also reining in spurious surveillance. FISA was never meant to be used solely to monitor domestic communications.

  Over time, though, the court fell prey to a powerful case of mission creep. As international calls became cheaper and people began sending dozens of emails a day, the volume of data available exploded. In their investigations of people overseas, intelligence agencies ended up intercepting increasing amounts of information on Americans. FISA court judges operate in secret, with only the numbers of warrants applied for and approved made public, and the judges sign off on the vast majority of requests. Between 1979 and 2013, the year Robert was arrested, the FISA court granted 35,434 warrants and rejected only 12 requests. The law might have been designed to target international terrorists, but in practice the warrants were also used to spy on Americans who had any communication, however slight, with people deemed suspicious. By the 2000s, the court had become a rubber-stamp body, used to justify the very same sort of surveillance that it was designed to prevent.

  Shortly before Robert’s arrest, a document leaked to the press by Edward Snowden showed that the NSA had used FISA to collect bulk data on many Americans’ phone calls and emails. That leak revealed a disturbingly wide range of surveillance activity. But even by those standards, it was unusual for FISA to be used in an economic espionage case like Robert’s where no weapons secrets were at stake. As far as Robert’s lawyers could tell, his case marked the first time in U.S. history where such warrants had been used to investigate a trade dispute between privately owned companies.

  Typically, the warrants and evidence from an investigation are made available to a defendant when a case goes to court, but the very issuance of a FISA warrant is classified. In Robert’s case, the government was required to tell his lawyers only that the collected evidence would be used, not to specify what that evidence was. Robert’s lawyers guessed that the warrant was used to eavesdrop on his cell phone calls with Lily Cheng and others, perhaps with assistance from the NSA. But there was no way to know for sure.

  FISA was by then so expansive that it’s possible that Robert’s name did not appear on any FISA warrant applications, and that he was simply collateral in an investigation of some other target. Another agency might have looked into someone he had contacted once, and after he came under investigation, the mere fact of that contact would have allowed the FBI to go digging.

  “We don’t know what we’re fighting about,” Robert’s attorney Mark Weinhardt complained in a pretrial hearing. “Imagine a garden-variety drug case in which the prosecutor tells the defense, ‘I have a glassine packet, a plastic bag containing crack cocaine, and your client’s thumbprint is unmistakably on that bag.’ And the government says, ‘I’m not going to tell you where I got it, but it’s really, really good evidence. Can’t tell you where I got it. National security. You just can’t know.’” That was the situation they were in with FISA, he said.

  Robert’s lawyers tried to push for more information, but the matter was settled with an affidavit from U.S. Attorney General Lynch asserting that it would harm U.S. national security interests to hold a hearing on the matter.

  In the months leading up to Robert’s arrest, the FISA court had quietly issued a series of rulings that vastly expanded the definition of foreign intelligence, making targets on U.S. soil fair game. Nonetheless, civil rights activists and legal scholars were appalled by the use of FISA in a trade secrets theft case. An attack on corn was not an attack on the nation, they felt. As Weinhardt put it in a filing, quoting from one of the statutes governing FISA, “The government has no ‘significant need’ for information about the alleged theft of corn germplasm to protect the United States against ‘clandestine intelligence activities’ by ‘an agent of a foreign power.’”

  If Robert’s case became precedent, it would mean that the government could use FISA warrants to bring charges against people who were involved in purely commercial activities. “If this becomes an accepted practice, the implications for civil liberties are huge,” Kening Li, an intel
lectual property attorney with the law firm Duane Morris who submitted an affidavit in Robert Mo’s case, told me. “If you are on the wrong side, you’re screwed.” For some people I interviewed, FISA was the defining issue in the case. But the details surrounding its use were, like the seeds at the heart of the court proceedings, a secret.

  * * *

  • • •

  AS THE CASE MOVED TOWARD TRIAL, the U.S. government proposed calling as witnesses experts on corn seed, including one professor from Iowa State who held the title of Pioneer Chair in Agribusiness. Robert’s attorneys, meanwhile, subpoenaed Pioneer and Monsanto, demanding that the companies provide evidence that the seed lines he and his colleagues had targeted were actually trade secrets. They sought documents connected to every field that the men were alleged to have visited, including the plot in Bondurant where Robert, Wang Lei, and Dr. Li were stopped by a sheriff’s deputy and the fields that Ye Jian and Lin Yong visited on their road trip through Iowa and Illinois. They asked for copies of the contracts that the companies brokered with the farmers who planted the fields and details on the results of lab testing, including which seed lines had matched products that the companies claimed as trade secrets. The hope was to prove that the targeted corn was patented. If described in detail in a public filing, it could not be a trade secret.

  But Pioneer and Monsanto had no intention of sending any more information about their seeds to Robert’s defense team, let alone to each other. The companies fought back in filings filled with bold italics: “confidential and sensitive information . . . irrelevant to the charges . . . not subject to disclosure.” The government did not actually need to prove that the corn varieties in the targeted fields were trade secrets, a lawyer for Monsanto argued—only that Robert thought they were.

  “Since this is a conspiracy to steal trade secrets case, it may not matter at all whether it was a regular cornfield,” an attorney who represented Monsanto told a magistrate judge. “The fact that the defendant was illegally in that field and stealing seed is evidence of intent.”

  This statement struck me as surreal. It was technically true that the U.S. government needed only to prove that Robert Mo intended to steal trade secrets, and not that he actually did. But if the Economic Espionage Act existed to protect innovation, and there was no need to prove that the technology under assault actually was highly coveted intellectual property, it raised questions about the law’s utility. Robert called it a case of “the emperor’s new clothes”—everyone was pretending to see a trade secret that was not there—and for once one of his overwrought metaphors seemed apt.

  “Monsanto is a victim in this proceeding,” a lawyer for Monsanto said one day in court.

  “Let me be straight,” a lawyer for Pioneer added. “We’re a victim.”

  THIRTY-FOUR

  SPRING 2015

  All rise,” said the clerk. Feet shuffled and papers rustled as everyone stood up, and then a hush fell over the small courtroom. In walked a woman of medium height and build, with prominent cheekbones and long brown hair.

  “Good morning,” said U.S. District Court Judge Stephanie Rose. “You can be seated. We are here today in the matter of United States v. Mo Hailong and Mo Yun.”

  Judge Rose’s career had been marked by both spectacular rise and persistent controversy. In 2008, as a young U.S. assistant attorney in the Northern District of Iowa, she was criticized for her role in charging hundreds of undocumented immigrants following a raid at a kosher meatpacking plant. Rose prosecuted the workers in fast-track hearings held on a cattle fairground. Despite the opposition of immigration lawyers around the country, the next year she was confirmed as U.S. attorney for the district. She went on to charge the slaughterhouse manager with bank fraud, asking the judge for a life sentence. That extreme request invited a public rebuke from six former U.S. attorneys general and more than a dozen former U.S. attorneys.

  In 2012, when she was appointed to the federal bench by President Obama, Judge Rose became the youngest federal judge in the country and the first woman to serve in Iowa’s southern district. Then, just nine months into the job, she handed down a sentence in a drug case that was a full two years longer than what the plea agreement called for and sent an email to a prosecutor comparing herself with the Hulk. “You know how Bruce Banner says, ‘You won’t like me when I’m angry’? There’s a lesson in there for all attorneys.” The lesson for all judges came when the U.S. attorney’s office made the exchange part of the public record, and Rose’s email was splashed across the pages of The Des Moines Register.

  As she presided over the courtroom, calling the pretrial hearing to order, Judge Rose looked decidedly un-Hulk-like. The interior of the courtroom was windowless and filled with dark tones: mahogany wood, gray suits, the long black robe hanging stiffly off Judge Rose’s shoulders. Mo Yun sat to the judge’s right, wearing a white blouse and black trousers. Since the hearing mainly concerned her, Robert called in from Houston instead of traveling to Des Moines for the occasion.

  Mo Yun had hired a high-powered legal team from Los Angeles, independent of Robert’s, a move that was fairly common in cases involving multiple defendants. Her lawyers had flown in to argue that Mark Betten’s airport questioning of her was illegal, because it happened before the agent had read her Miranda rights. Officers are allowed to be duplicitous—they can gather information undercover—but they can’t threaten a person, or back her into a corner, in order to get answers. Her lawyers aimed to prove that her airport encounter with Mark was effectively coerced. In the exchange, Mo Yun had conceded that she might recognize her MSN chats with Robert and that she and her brother might have chatted in English. Those weren’t grave admissions, but getting them thrown out would nonetheless severely weaken the case against her.

  Jason Griess was off preparing for another hearing, so prosecutor Marc Krickbaum called a series of witnesses to the stand in an effort to prove that Mo Yun freely consented to questioning. When Mark took the stand, he explained that the gate area was crowded and that he had worried about others overhearing the conversation, so he stood closer to Mo Yun than he might have otherwise. At no point leading up to the arrest did he take her phone, or handcuff her, or direct her to do anything, he said. Then Krickbaum sat down and Mo Yun’s attorney Gary Lincenberg rose for cross-examination. He asked Mark to draw a diagram of the gate area, marking out the locations of the window and the boarding gate, along with where he and Mo Yun had stood.

  “Now, Agent Betten,” the defense attorney probed, “during the interrogation Ms. Mo also had a five-year-old daughter for large parts of it hanging on her, correct?”

  “I would say probably the entire part of it.”

  “And it’s still your testimony that you believe that there was a risk that she could leave that area and run away from the questioning; is that your testimony?” Lincenberg asked.

  “No, that’s not my testimony,” Mark said. “I’d consider it highly unlikely that she would try to run away, so because of that we didn’t position ourselves in any strategic location to try to prevent that. We positioned ourselves in a manner that was conducive to conducting a consensual interview.”

  In his closing statement, Lincenberg alluded to the diagram that Mark had drawn. He argued that Mo Yun was backed against a window in a crowded boarding area and questioned in a foreign language while her children watched: “Three much larger male agents in deep voices with a gun showing and the baton showing then stood in front of her,” he said with a flourish. “She was physically constrained. And Agent Betten even testified that they were probably even closer in Ms. Mo’s face than they would have ordinarily been because of the background noise. She, faced with walls in front of her, posts to the left, agents in front of her, a daughter hanging around her neck and seats behind her, had no place to go.”

  Judge Rose agreed. Few of the travelers picked out by CBP agents for questioning have the impression that they can
just walk away, she noted. “We’ve got at least four officers with this one woman—one of whom is in uniform wearing a gun and baton—approaching this woman, who is a citizen not of any country but of China, that has some of the worst human rights violations out there, and in which you, as a citizen, do not challenge the government,” the judge said. “If the government says to you, ‘You’ll answer our questions,’ you’ll answer their questions.” Mo Yun, she ruled, was entitled to have her Miranda rights read.

  It was a remarkable development, and not only because Judge Rose, whose involvement in the slaughterhouse raids had earned her the eternal wrath of immigrant advocates, had ruled in favor of a noncitizen. The decision meant that all of Mo Yun’s statements in the airport were inadmissible as evidence. Two months later, the judge threw out the MSN chats as well.

  On July 28, 2015, the U.S. attorney’s office dropped charges against Mo Yun and removed her name from the indictment. Investigators didn’t have much else on her, and Griess and colleagues no doubt knew that in the absence of highly incriminating evidence, a jury was not likely to look kindly on the government’s forcibly separating a mother from her children. Almost as quickly as the case against Mo Yun was built, it was dismantled. After a four-year investigation involving offices around the country, the government was back to one defendant: Robert.

  THIRTY-FIVE