Were They Lost Students or Inept Spies for China?

Toward the end of their winter break in January, a pair of 24-year-old roommates from China studying at the University of Michigan—on a road trip that included Disney World, museums, and national parks—pulled up to a guard station in their blue Hyundai rental car. The guard post was the entrance to a half-mile bridge leading to Dredgers Key, an island belonging to the Naval Air Station Key West.

Half an hour later, they were in police custody. Within hours, they were being interrogated by the FBI, and five months later, in the face of charges that could have yielded more than six years’ imprisonment, Wang Yuhao and Zhang Jielun took a plea deal. They now sit in a Florida federal penitentiary, waiting to be deported back to China after their release.

After their arrest, media reports painted them as spies. To some, they embody a theory of Chinese espionage where multiple small bits of sensitive information are collected by everyone from students to tourists. But the men’s lawyers argue they are the victims of an innocent misunderstanding of a type that’s becoming more common as U.S. authorities’ suspicion of Chinese nationals grows.

The two men had previously taken road trips together and told friends they were planning to fly to Orlando and drive down the southern tip of Florida over their winter break. Key West is a popular vacation destination for Chinese tourists, including students at the University of Michigan during Ann Arbor’s frigid winters.

But the area is also home to a major U.S. military facility—the Naval Air Station Key West. The base comprises seven disconnected annexes scattered amid civilian communities across Key West—some of them directly adjacent to tourist sites. This mixture of military and civilian activities in the area routinely creates problems. “We occasionally catch trespassers on each of our seven annexes,” said Trice Denny, a spokesperson for the air station. “Sometimes it’s simply a matter of boat or personal watercraft trouble, sometimes it’s because of people not paying attention to signage or maps.”

Dredgers Key, where Wang and Zhang were arrested, is primarily a residential and recreational community for military personnel, civilian staff working at nearby facilities, and their families. A military ID is needed to access the island, though anyone in the company of someone possessing one is allowed.

On the day of their arrest, according to a later sentencing memorandum submitted by Wang’s attorney, the men ate breakfast at a nearby McDonald’s and spotted Dredgers Key across the water. Thinking it might make for good photos, they decided to head there briefly before visiting the nearby Ernest Hemingway museum.

With Wang behind the wheel, they drove onto the land bridge. On the way in, there is at least one sign with a list of regulations, one of them being “U.S. Government Property—No Trespassing” and “Authorized Personnel Only.” At the bottom, it warns that violators “shall be fined not more than $50 or imprisoned not more than thirty days, or both.”

Zhang and Wang reportedly initially thought the island was a national park and, because they were in a sleepy state, having awoken at 4 a.m. that day to make the drive, they weren’t particularly observant. The land bridge entrance had only a small booth with a stop sign and retractable arm—often left in the open position—surrounded by trees on either side of the road.

As the men pulled up to the booth, a uniformed guard asked for a military ID and Zhang handed over his ordinary ID. The guard instructed Wang to make a U-turn and said she would hold onto the ID until they exited. According to a memorandum submitted for sentencing by Wang’s attorney, Juan Michelen, Wang, like many Chinese students studying scientific topics in the United States, has limited spoken English ability, and was unclear on the instructions.

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According to U.S. assistant attorney Jonathan Kobrinski, the prosecutor in the case, Wang and Zhang later gave conflicting statements as to what happened at this point. “Mr. Wang’s account is that he did have a little bit of a discussion and argument with his friend, that he told Zhang he was uncomfortable but that Zhang told him to proceed anyway,” Kobrinski said at a pre-trial detention hearing. “Zhang’s account is they never even discussed it.”

This was the only substantial discrepancy of facts alleged in the case that was apparent from court documents.

In his memorandum, Michelen said that as the men continued to drive down the land bridge, they briefly discussed what had just happened, and concluded that if they were not supposed to be there, they would not have been let in. “After all, they had provided a legitimate Chinese identification card, and the guard opened the gate and let them through. Surely, they thought; if this were a sensitive military installation, they would not let two Chinese students, with limited English and foreign IDs, simply drive right in. Unfortunately, that is exactly what happened.”

They drove past the end of the land bridge, through a small residential community, and to the beachside recreational-vehicle park and campground that sits between a baseball field and wooded area. Now one mile from the guard station, they got out and took several photos from the beach—Wang with his phone and Zhang with a Nikon camera. The photos reportedly captured the shoreline, ocean, and an adjacent island in the background nearly a mile away.

Altogether, about 15 to 20 minutes had elapsed since they had first entered. But on their way out, a naval security officer was waiting for them. Soon after, they were indicted for trespassing on military property and photographing military installations.

At a Senate Intelligence Committee hearing in 2018, Sen. Marco Rubio asked FBI Director Christopher Wray about the counterintelligence risk posed to U.S. national security from Chinese students. Wray responded that China’s use of “nontraditional collectors” such as professors, scientists, and students was being seen in almost every FBI field office, adding that China presented “not just the whole-of-government threat, but a whole-of-society threat on their end, and I think it’s going to take a whole-of-society response by us.”

But some advocacy groups say racial profiling and overzealous prosecutions are putting Chinese and Chinese Americans at greater risk of false accusations and unjust punishments. At a Senate Judiciary Committee hearing in February, the group Asian Americans Advancing Justice testified that messaging such as Wray’s encourages bias among law enforcement and government officials “to view students and scholars of Asian descent as suspect, increasing surveillance and the likelihood of false reporting and arrests without proper evidence and errors in investigations.”

There have been several high-profile instances of people of Chinese ethnicity being falsely accused in espionage investigations in recent years. In separate cases, physicist Xiaoxing Xi, hydrologist Sherry Chen, and biologists Guoqing Cao and Shuyu Li were accused of illegally passing secrets to China, only to have the charges dropped with little explanation in the face of mounting exculpatory evidence.

In its testimony, Asian Americans Advancing Justice pointed to a study examining 136 cases involving 187 individuals charged under the Economic Espionage Act from 1997 to 2015. It found that from 1997 to 2009, 17 percent of defendants charged under the act were of Chinese descent, but after 2009, that rate tripled to 52 percent. Furthermore, the average sentence for defendants with Chinese names convicted of espionage was 25 months, compared with 11 months for those with Western names. Similarly, 48 percent of defendants with Western names escaped imprisonment and received only probation—more than double the 21 percent rate of those with Chinese names.

Liao’s case was also similar to that of 20-year-old Qianli Zhao, a university student in China who was in the United States on a J-1 exchange visitor visa for a three-month summer work-study program. Zhao was arrested in late 2018 at the same antenna field after allegedly wading through water to circumvent the fence and take photos. It was alleged that Zhao lied on his visa application and to investigators about his background, and that a search of his belongings turned up paraphernalia and images suggesting police or military ties. He was charged with six counts of photographing defense installations and took a plea deal, copping to one count in exchange for having the rest dismissed.

At his sentencing hearing, Zhao’s lawyer argued that he had “committed a stupid mistake” and compared his case to that of Otto Warmbier in North Korea. According to the Miami Herald, this comparison “clearly offended” the U.S. district judge who presided over Zhao’s case. Moore went beyond the recommended guidelines of zero to six months, and even beyond the nine months requested by the prosecutor, giving Zhao the one-year statutory maximum. And with that, a precedent was set.

The vantage point from the RV Park on Dredgers Key near Naval Station Key West. Google Earth

What led the case to escalate at this point isn’t clear. As Denny, the air station spokesperson, said, there are regular trespassing incidents on the base, and “each situation is evaluated by our Security Forces before actions are taken, if any.” That same day, two other men had illegally come onto Dredgers Key by boat. When police were called, they were simply escorted off the island. Boats also routinely trespass into restricted waters in the area; 37 people were given federal citations for doing so in a single sweep last year, and they were  at most given a $250 fine.

After they were stopped by naval security, Wang and Zhang were taken into custody by Key West police and the FBI was called. The men consented to allowing their hotel room and home in Ann Arbor to be searched, and provided passwords to their emails and electronic devices. According to their attorneys, nothing suspicious or suggestive of espionage was ever found in those searches, and nothing of the sort was ever publicly alleged by the FBI or prosecutor.

After their arrest, the State Department revoked Wang and Zhang’s student visas and the indictments came down. While there are no apparent military installations on Dredgers Key, where the men were arrested, there are on Fleming Key—the island nearly a mile away across the bay, which houses facilities that include small arms bunkers and the Army Special Forces Underwater Operations School.

According to testimony by an FBI agent who investigated Wang and Zhang, some of their photographs depicted water, sky, and Fleming Key in the background. From their vantage point, the images could not have contained more than a vague outline of some structures on Fleming Key, many of them obscured by trees, and an antenna nearly a mile and a half away.

The men were each charged with six counts of photographing defense installations and one count of illegally entering military property. Although the charges were all misdemeanors, they potentially faced six-and-a-half years in prison—up to one year for each photograph taken and six months on the trespassing charge. Three of the six photos in question did not depict Fleming Key at all, only images of Dredgers Key, according to the indictments.

The men were denied bail at a pretrial hearing. “It is not my belief that either of these two defendants is an undercover agent or a master spy or anything of that nature,” said Judge Lurana Snow at the hearing. “Alas, there is also no question in my mind that the purpose of going onto the military base and defying orders and not doing what was told and taking the pictures was for purposes of obtaining information that was valuable to someone other than these two defendants.”

What that value might be, Snow didn’t say. In fact, if someone had wanted images of the installations Wang and Zhang were charged with photographing, they likely could have gotten far better results through completely legal means, or simply by logging on the Internet.

Any authorized visitors to Dredgers Key and their civilian guests are allowed to freely take photographs—many of which can be found on online blogs. Boats are also permitted to roam the waters around Dredgers and Fleming Keys so long as they stay at least 100 yards from shore, and photography of the keys from these boats is not regulated, according to the base spokesperson. If getting photos of Fleming Key military installations was the men’s goal, they could have gotten much closer by renting kayaks or jet skis, without violating any regulations. Or they simply could have stayed home and obtained crisp 3D images of the entire island on Google Earth.

All the circumstances surrounding Wang and Zhang were consistent with two students on vacation, and their explanation of misunderstanding the situation at the guard station was well within the realm of possibility. An FBI agent who investigated them conceded in court that there was no evidence they had ever traveled to other locations with restricted military areas during their years in the United States. There was no evidence presented that they had any connections or contact with Chinese authorities.

A Navy aerial photo of Naval Air Station Key West’s Fleming Key, left, Sigsbee Park, top, and Trumbo Point Annexes, right. Mass Communication Specialist 3rd Class Cody R. Babin/U.S. Navy

Quartz asserted that the men’s actions were a “Chinese surveillance operation.” The online magazine Breaking Defense wrongly reported that they had led military police on “a 30-minute chase,” and speculated as to why “the Chinese” might be interested in the area by mentioning several military activities conducted miles away from where any of the four Chinese students were arrested. NBC quoted analysts positing that perhaps the case was part of “a distraction from some greater targeting or an attempt to tie up federal security resources.” Or perhaps China was attempting to “test the Trump administration’s ability to react.” Few outlets or analysts entertained the possibility that Wang and Zhang might simply have been confused tourists.

Then there was the issue of the charges being applied to the men. The seldom invoked charge of “photographing and sketching defense installations,” part of the “Espionage and Censorship” section of the U.S Code of Laws, pertains only to “vital” military installations, which have a specific definition under a 1950 executive order. It’s not clear what, if anything, on Dredgers or Fleming Key would qualify—particularly since anyone can freely photograph those facilities under most circumstances without explicit permission. It’s even been argued in the past that the statute itself—which on its face makes it unlawful to take photos even from public areas without criminal intent—is likely unconstitutional. There doesn’t appear to be any case of the charge ever making it to trial to be tested.

After initially pleading not guilty, Wang and Zhang’s odds of acquittal became more daunting. The assigned judge in their trial would be K. Michael Moore, the same who had presided over Qianli Zhao’s case. And according to Will Thomson, who was one of Zhang’s professors at the University of Michigan, unfamiliarity with the U.S.  justice system further complicated matters for the men. Wang and Zhang were largely deferential to their parents throughout the ordeal, and coming from China, where the conviction rate of defendants who go to trial is higher than 99 percent, they felt fighting the charges was hopeless.

In the face of a possible six-and-a-half-year prison sentence, Wang and Zhang took a deal, pleading guilty to one count of photographing military installations. But they would still be at Moore’s mercy as to what their sentence on that guilty charge would be, which could range from immediate release to up to a year in prison and a $100,000 fine. Based on the offense and the men’s lack of criminal history, the recommended sentencing guideline was zero to six months’ imprisonment. But Kobrinski, the prosecutor, submitted a motion for a tougher penalty. In the first sentence of the motion, he noted that Wang and Zhang were “nationals of China.”

“This offense involves the intrusion by foreign nationals onto a secure military facility for the purpose of taking photographs,” he wrote, requesting that “to reflect their respective culpability,” Zhang be given 12 months’ imprisonment and Wang nine months’. He cited the earlier case, saying “it should be noted” that Zhao was sentenced to the statutory maximum following a similar plea agreement.

In his only remarks at the sentencing hearing that deviated from routine procedure, Moore referred to the men’s nationality and the separate cases of Zhao and Liao. “What do you make of the frequency of these cases in this relatively short period of time?” he asked Michelen. “Of individuals all attempting to engage in the same kind of conduct, all of the same nationality? Do you think it’s just a coincidence?”

Michelen responded that the idea of Wang and Zhang being spies just didn’t make sense. “Let’s say the Chinese government is sending young Chinese students to America to spy,” he said. “They’re going to give him a University of Michigan education, have him be one credit shy of graduating, then say: Go potentially blow your cover driving up to a guardhouse and showing your Chinese ID? And there goes the entire People’s Republic of China’s investment into this spy.”

“I mean, this was an RV park,” Zhang’s attorney, Hector Flores, later noted, adding that the government had also reviewed “hundreds of thousands” of emails, texts, and social media posts, “and there’s nothing that they can point to that would support the conclusion that they’re spies.”

Without giving any rationale, Moore handed down the sentences: the nine months for Wang and 12 months for Zhang that Kobrinski had requested. When they’re released from federal prison, they’ll be turned over to Immigration and Customs Enforcement until their deportation to China can be facilitated. Prior to their sentencing, Wang and Zhang signed agreements waiving their right to challenge deportation orders, and they will be permanently barred from the United States. In August, Trump announced that he was nominating Moore to be chairman of the United States Sentencing Commission—an agency that develops sentencing guidelines and policies for the federal court system.

Wang and Zhang could not be reached for comment for this story, and their defense attorneys did not respond to requests for comment. The FBI declined a Freedom of Information Act request for investigation documents, saying in a standard response that it would constitute an “unwarranted invasion of personal privacy.” The Naval Criminal Investigative Service also denied a request for investigation documents, citing matters “established by an executive order to be kept secret in the interest of national defense or foreign policy.”

In a statement, a spokesperson for the U.S. Attorney’s Office for the Southern District of Florida said: “The facts are that Zhang and Wang drove to a sensitive national defense facility, illegally accessed that facility against a security guard’s orders, and proceeded to photograph very specific parts of the facility. Based on their actions, we recommended 12 months of imprisonment for Zhang and nine months for Wang. The Court agreed that this was appropriate. The Department of Justice will aggressively seek deterrence through prosecutions and enhanced sentences in order to protect our national security and public safety.”

The spokesperson declined to comment on references to the men’s nationality in Kobrinski’s motion for longer sentences and the applicability of statute’s “vital” definition to the facilities in question, directing further questions to public filings and court records.

Nicholas Eftimiades, author of the 1994 book Chinese Intelligence Operations and a former U.S. government official who held positions in the CIA, State Department, and Department of Defense, said authorities and the justice system have certainly made mistakes in the past when it comes to Chinese espionage, and that “the system is kind of overwhelmed and backlogged” right now. But he remains skeptical that Wang and Zhang are wholly innocent, pointing to a separate case last year wherein a pair of Chinese Embassy officials were expelled from the United States after driving onto a Virginia military base. They similarly claimed they had misunderstood the entrance guard’s English instructions to turn around.

Cedric Leighton, a military analyst and former intelligence officer in the U.S. Air Force, said that there is an ongoing pattern of Chinese espionage that includes using temporary, nonprofessional actors such as students to carry out relatively unsophisticated operations, and that the Naval Air Station Key West is a likely target for Chinese espionage. But he also notes that it’s certainly possible Wang and Zhang “took a proverbial wrong turn.”

“A careless kid is a careless kid, whether they’re Chinese or American,” he said. “We have a tendency, especially in the counterintelligence world, to look at everyone as a potential threat.”