U.S. should impose Magnitsky Act sanctions against China’s human rights violators

Jerome A. Cohen

Amnesty has just issued a plea for urgent action on behalf of what remains of lawyer Jiang Tianyong. Amnesty’s announcement seems understated despite the large cap title. Jiang is exposed to more than the “imminent risk of torture and other ill-treatments”. He has in actuality long been suffering from such abuse that is designed to break him as a person, to destroy him both mentally and physically. And, as we know from many cases including those of Gao Zhisheng and Wang Quanzhangthis calculated campaign to end China’s human rights lawyering seems to be gradually thinning the ranks of human rights lawyers. The many, sometimes bizarre, procedural violations in Jiang’s case are a reminder of the realities of Chinese justice when it comes to those who challenge the regime. His captors should be investigated on charges of what may well amount to “attempted murder”.

I know Jiang but have never cooperated with Wang Quanzhang, whose case appears to be even more outrageous. After three years of absolute silence about Wang’s fate the Party has reportedly decided to finally bring him to “trial” in the near future but his mental and physical condition are both in doubt, and he has not been allowed to retain his own lawyer but must accept a government-selected one.

Despite Chinese Government maneuvers to gain control over the international human rights institutions and the current relative indifference of the U.S. Government to human rights issues, greater efforts must be made to try to stop the PRC campaign against human rights lawyers. One important, if largely symbolic, response would be for the U.S. to impose Magnitsky Act sanctions against those Chinese officials who are directly responsible for executing this notorious campaign, starting at the top of the Communist Party.

Carl Minzner’s new book: End of an Era: How China's Authoritarian Revival is Undermining Its Rise (Oxford 2018)

By Jerome A. Cohen

Fordham Law School’s prestigious Leitner Center for Human Rights gave Professor Carl Minzner’s book—End of an Era: How China's Authoritarian Revival is Undermining Its Rise—a splendid launch in an all-day program on Monday that focused on its implications for the future of  “rights lawyers”.  At lunch Carl gave an eloquent overview of the book, which is learned, analytical and stimulating while maintaining a highly readable style throughout. It is plainly directed at a broad and influential audience and likely to have a significant impact on the current reevaluation of the PRC’s power. Teng Biao and I made subsequent comments.

Teng emphasized the totalitarian aspects of the Xi Jinping era and maintained that the U.S. has a special duty to promote democracy in China and that the political costs of transition to democracy have been exaggerated. Among a number of other points he also urged Western nations to defend against PRC efforts to undermine their own democracies.

I focused on the implications for rights lawyers, urging them to recognize that the current era of extreme repression will pass, just as the Cultural Revolution did, and that they should in the interim try to avoid martyrdom by pursuing their craft within the unfair restrictions imposed by the regime in order to survive and recruit others to prepare for the better days to come. Too many brave and able lawyers have already been eliminated as functioning professionals as a result of torture and other punishments including “medication” designed to destroy their mind as well as their will, with corresponding harm to their families. 

My final point branded Xi Jinping’s efforts to justify his repression by invoking China’s authoritarian “Confucian” past as ineffective and hollow, as demonstrated by today’s Taiwan and South Korea in addition to Japan and by the prominent roles that rights lawyers are playing in those societies. China’s present leader seeks “soft power” as well as military and economic power but does not seem to realize that his repression of rights lawyers is increasingly earning the world’s ridicule and scorn.

Teng Biao made the proper point that it is very difficult for even cautious rights lawyers to always know where the regime is drawing the line at any given time, and thus some have become unwilling martyrs to the rule of law.

(In)justice with Chinese characteristics: the twinned stories of two human rights activists, Wu Gan and Xie Yang

By Jerome A. Cohen

 Wu Gan; source:  China Change .

Wu Gan; source: China Change.

 Xie Yang; source:  Changsha Intermediate Court .

Xie Yang; source: Changsha Intermediate Court.

The two Christmas cases of Wu Gan and Xie Yang—victims of China’s 709 Crackdown on human rights activists and lawyers in 2015—demonstrate the continuing importance and benefits of pleading guilty. “Leniency for those who confess, Severity for those who resist.” (坦白从宽,抗拒从严) has been the fundamental maxim of criminal justice in the People’s Republic of China. The Chinese Communist Party (CCP) erected into high public principle what has long quietly been the practice of many legal systems. The insistence on confession characterized Chinese justice centuries before the rise of the CCP and for many reasons.

Confession admits the correctness of the government’s charge and helps to relieve those who administer the system of doubts or feelings of guilt they might harbor. Confession reinforces prevailing ideology. It also avoids the embarrassment and risks to administrators that appeals can cause and the delay and administrative costs involved. In China refusal to confess and insistence on appeal are seen to constitute an attack on the prosecution and the government. Confession encourages others to follow suit, and it is viewed as the first step toward the reform of the accused.

Yet how persuasive can any of these factors be when torture is so often the stimulus for confession and everyone knows this? Moreover, at least in non-political cases, the CCP is increasingly concerned about the frequency of wrongful convictions caused by coerced confessions.

The Christmas timing of the two cases is worth noting. There is no doubt the PRC government wants to be thought well of abroad as well as at home, which is why it spends so much on a worldwide system of propaganda and seeks to control the UN and other organizations regarding the PRC’s suppression of human rights. Of course, it prefers not to reveal many abominable acts, which is often possible because of its domination of the media and even social media.

The timing of its repressive human rights acts depends on many factors. Certainly, when it’s possible to manipulate the timing of acts of repression that are likely to be condemned by the world, the PRC is eager to do so in order to reduce publicity and minimize harm to its quest for soft power. The dates of trial hearings and sentencings are one example among many others.

The twinned stories of Wu Gan and Xie Yang may be destined to continue and provide more grist for the mills of those who study the PRC’s expansive and imaginative detention policies. It will be important to see, of course, how long Wu Gan can remain alive and resistant in captivity. It will also be important to see to what extent Xie Yang, having reversed his previous stand under torture, “confessed” on demand and thereby won exemption from further formal imprisonment, will be allowed to resume his former human rights advocacy or, like most of his comrades, remain in what I call “non-release ‘release’”.

The misleading term “house arrest” no longer does justice to the varieties of informal, unauthorized, suffocating restrictions on their freedom that most “released” human rights advocates are suffering. Indeed, many human rights activists suffer such restrictions even before they are formally detained! The PRC has blurred the line between “detention” and “freedom”, giving new meaning to these words.

The sentencing of Chinese human rights lawyer Jiang Tianyong: a tragic farce

Jiang Tianyong was sentenced to two years on the charge of “inciting subversion of state power.” His prosecution/persecution has been a tragic farce from the day he was detained a year ago. 

Jiang was a primary school teacher who decided that he could do more for his country if he studied law and learned how to defend human rights. After doing so he became a partner of the dynamic human rights lawyer Li Heping, and I met them both at a lunch meeting with their client, the blind “barefoot lawyer” Chen Guangcheng, just, a couple of hours before Chen was literally seized by Shandong police who came to Beijing without notifying their local counterparts. Chen was about to meet with the then Washington Post reporter Phil Pan.

Li Heping was prosecuted earlier than Jiang, was convicted and served terrible prison time before being “released” in a now typical NRR (“non-release release”) and is now inaccessible while recovering at home.

Li’s younger brother, Li Chunfu, also became a human rights lawyer and met the same fate as the older brother on whom he had modeled his career. Li Chun-fu was “released” from prison before his brother and returned home a virtual vegetable suffering from severe mental illness induced by his prison experience, where he had been forced to take debilitating drugs in the guise of (un)necessary medicine for non-existent illness.

Jiang Tianyong, despite disbarment, was able to elude formal detention for a longer period than the other lawyers and still be helpful to detained human rights advocates and their oppressed families. Jiang knew how to work within the limits for a long time. I recall inviting him to dinner one night in Beijing before the 709 campaign began. He said “I’ll have to call you back to confirm in half an hour, since I have to go outside and ask my security police minder for permission”. He later called back and said that the minder told him “If you want to go to the office tomorrow, you should not go to the dinner.” So instead he sent an assistant. This was an illustration of the restrictions on many human rights activists that might be termed PDD (“pre-detention detention”)!

Another, more ordinary pre-detention restriction of Jiang’s freedom was earlier illustrated when Chen Guangcheng, after his forced return to his rural home, was subjected to severe house arrest. Chen telephoned me in Beijing and asked me to persuade a lawyer to travel to his Shandong village that night in an effort to break his illegal confinement. I telephoned Jiang Tianyong, who agreed to book a train ticket. He later called me and said that the police, having listened to our phone conversation, had forbidden him from making the trip. At least that spared Jiang the beating by village thugs who, under police guidance, always used violence to prevent outside contact with Chen.

The reality of attempting to defend human rights in China

 Zhu Shengwu. Credit: China Change

Zhu Shengwu. Credit: China Change

This sad tale reported by China Change (link here) offers vivid insight into the reality of attempting to defend human rights in China. The story of young lawyer Zhu Shengwu, who started as a commercial lawyer but whose exposure to injustice led him to professional suicide, is really the story of two other lawyers as well. It is good to know that the famous defender Pu Zhiqiang, despite disbarment and living under the coercion of a three-year suspended prison sentence, still manages to be heard from on occasion in his own clever way. And his recollection of Su Bo, the idealistic human rights firebrand of Peking University law students in the heady days before June 4 who is now an instrument of oppression as head of the local Lawyers Association, makes one want to cry and cry out. 

Second Anniversary of the 709 Crackdown on Chinese Lawyers and Activists

Today is the second anniversary of China’s “709 crackdown” on human rights lawyers and activists. ChinaChange published a statement by the The China Human Rights Lawyers Group here.

This statement is sad but important (I almost mistyped “impotent”). It is noteworthy in many respects but two stand out to me. The first is an extensive note of bitterness not only, as usual, against the Party and government responsible for this obscenity but also against the legal scholars, professors and lawyers in and out of government who have lent their cooperation or blessings to the repression.

The second is the absence of any optimistic prediction that, at least in the near future, the numbers of human rights lawyers will be expanding in response to the effort to suppress them.  This is a grim, realistic assessment of the situation. Those of us lucky enough to be on the outside can only hope that the programs being held today to commemorate 709 will stimulate greater support for this gallant, besieged group and their families, inside as well as outside China. I share the statement’s confidence that, in the long run, the Chinese pendulum will again swing in the direction of freedom and that the historic role of the human rights lawyers will be vindicated. 

China’s state compensation for illegal detention

 Photo: 中國維權律師關注組  China Human Rights Lawyers Concern Group

Photo: 中國維權律師關注組 China Human Rights Lawyers Concern Group

Last week we had news that the courageous lawyer Jiang Tianyong has been formally “arrested” after being held incommunicado since last November. It is sadly ironic that, on the same day, the Supreme People’s Court and the Supreme People’s Procuracy announced a new standard for compensating citizens who have been illegally deprived of their personal freedom (see HRIC Daily Brief here). At 258.89 RMB (USD38) per day my friend Jiang may someday receive more compensation than he earned as a great human rights lawyer!

Collective Family Punishment - Challenge and Response

 Greg Baker/Agence France-Presse — Getty Images

Greg Baker/Agence France-Presse — Getty Images

New York Times’ Chris Buckley and Didi Kirsten Tatlow wrote a good story a few days ago about the resistance and resilience of the wives of Chinese human rights lawyers who have been detained.

These recent spousal responses do represent something new because they are frequently collective or joint rather than individual actions as occasionally occurred in the past and also because the Internet and social media offer opportunities for protest that were not previously available.

Moreover, each such spousal protest stimulates others, even in Taiwan. The Mainland protests of Xie Yang’s wife and Li Heping’s wife, for example, seem to have inspired the feisty wife of Li Ming-che, the Taiwan activist who has been detained in China since March 19.

Another new aspect of current protests is a greater willingness of the spouses to go to Washington in an effort to light fires under the Congress and the Executive Branch. Families of jailed dissidents and their jailed lawyers have long fled to the U.S. for refuge, as some oppressed lawyers have also, but, prior to the 2015 crackdown, they did not generally stir up protests here. And recent protests here have not been limited to Washington but have also taken place in New York and other cities, with college-age children often joining mothers whose English is not fluent.

So one might say that Xi Jinping’s resort to collective family punishments, which were formally abolished at the end of the Manchu dynasty, has evoked a collective family response.

The Courageous Spouses of Human Rights Lawyers and Activists

Prominent rights lawyer Li Heping, who has been held in detention since the “709 crackdown” in July 2015, received a sentence of three years in prison but with a four-year suspended sentence, and deprivation of his political rights for four years, for subverting state power in a secret trial followed by a public sentencing on April 28.

Video statement by Wang Qiaoling and Li Wenzu, April 28, 2017

Li’s wife, Wang Qiaoling, and Li Wenzu, the wife of detained lawyer Wang Quanzhang, issued a powerful and revealing video in response (watch here; see here for the translation by China Change). Both women have been outspoken throughout their husbands’ detention.

Beijing is facing a new phenomenon – the effective outrage of the brilliant and courageous wives of tortured human rights lawyers. One can only admire the bold stand of these long-suffering women.

Moreover, their statement of today lays bare a relatively unknown punishment for “released” activists and their families – “house arrest” for the entire family but not in their house but in that of the police. And without even the formal fig-leaf of the Criminal Procedure Law’s “residential surveillance”, which the police have been using more and more to lock up human rights lawyers in incommunicado detention for initial periods of six months.

Perhaps the righteous collective opposition of these and other spouses of detained human rights lawyers and activists has inspired the continuing public protests in Taiwan by the able wife of Lee Ming-che against her activist Taiwan husband’s detention on the Mainland since he was “disappeared” on March 19. This has given Beijing another well-deserved headache, one that is having a big negative impact on cross-strait relations.

International Human Rights Day

Reports about human rights advocates in China suffering in detention and abuse such as this one on Hada, an Inner Mongolian dissident and this one on rights lawyer Wang Quanzhang certainly inspire feelings of sadness and even hopelessness. Yet the odd thing is that many Chinese human rights lawyers and other advocates continue to enter the fray, even though now fully aware of the potential consequences. Efforts are gradually being made to learn what makes them tick. Infectious Western political ideology? Religion, Eastern or Western? The psychology of martyrdom?

Some even now maintain that the numbers of human rights activists are growing, a claim that is plainly difficult to verify. It all reminds me of the situation in South Korea in the ‘70s under General Park while China was still in Cultural Revolution. The late Kim Dae-jung seemed to be motivated by Jeffersonian democracy, indeed believed that the tree of liberty has to be periodically nourished by the blood of patriots, and was prepared to die for the cause, as he almost did on at least three occasions. He was also a devout Roman Catholic and strongly supported by his highly religious wife. South Korea, well over a decade later, experienced a stressful but largely peaceful revolution, and Dae-jung was liberated, vindicated and empowered.

Prospects for his Chinese heirs seem very gloomy at present. Yet, as we mark International Human Rights Day today, we should admire them, wish them well and hope that the UN Declaration on Human Rights, which was adopted with considerable pre-1949 Chinese input, will soon prevail in China too.

Human rights lawyer Jiang Tianyong has disappeared for nine days after visiting 709 family in Changsha

 Photo: China Human Rights Lawyers Concern Group

Photo: China Human Rights Lawyers Concern Group

Jiang Tianyong, a prominent Chinese human rights lawyer, was apparently abducted on November 21 after visiting the family of another human rights lawyer who has fallen victim to China’s crackdown starting from July 9 last year (709 crackdown). Jiang’s wife as well as family members of the rights lawyers who have been detained since the crackdown and fellow lawyers have issued a statement demanding the Chinese government to launch an investigation and reveal Jiang’s whereabouts.

Let us hope that Jiang will soon be released. He is a hardy veteran of such intimidations but this time he may be held for much longer than before. The police may have secretly detained him in the guise of “residential surveillance”, which would give them the power to hold him incommunicado for six months if they claim that he falls into one of the three categories of supposedly exceptional circumstances that allow detention apart from the conventional criminal process. Or he may be detained in the guise of the regular criminal process, according to which the police, again because of their very broad interpretation of another narrow legislative exception, allow themselves 30 days to hold a suspect before being required to charge the suspect before the prosecutor’s office or release him. Or, as often happens, the police or their hired thugs may have simply detained Jiang with no legal authority, in effect kidnapping him as they have so many others including one of his early clients, the blind “barefoot lawyer” Chen Guangcheng.

I first met the courageous Jiang in Beijing in 2005 when he and his law partner Li Heping, who has long since been confined as a result of criminal prosecution, were representing Chen, and we all lunched together. Jiang told me at that time how, as a young public school teacher, he had decided to become a lawyer in order to try to improve China’s human rights situation.  Shortly after lunch, Chen was abducted by Shandong police who had come to Beijing without seeking permission of their local counterparts.

For more than a decade since that meeting Jiang himself has had to play “cat and mouse” games with the security police in an effort to avoid the long-term detention that would stop his human rights work. For example, a few weeks after Chen’s abduction I telephoned Jiang to tell him that Chen, in a quick, furtive call to me, had asked that Jiang take the night train from Beijing to Shandong to try to visit Chen. Jiang agreed to try, despite the serious risk that he would be beaten by police thugs who were guarding Chen’s village. An hour later, however, Jiang called me back to report that he had received a call from the local judicial bureau ordering him not to travel to Shandong. The judicial bureau had evidently been contacted by whoever had been listening to my first call with Jiang. As a result, he did not make the trip but did manage to send an assistant, who was indeed abused by the local Shandong thugs.

Similarly, some years later, shortly after arriving in Beijing, I called Jiang to invite him to dinner that night. He said he would have to call me back in half an hour because he needed to ask for permission from the police “minder” stationed outside his law office. When he did call me back, he declined my invitation because the “minder”, whom Jiang evidently knew quite well, said that if Jiang wanted to return to the office the next day he had better not see me that night. Jiang, however, told me that his assistant would be permitted to join me for dinner, as he did, undoubtedly under surveillance.

Yet, despite such commendable caution, police have on some occasions detained and abused Jiang, but not for the long term that he might now confront.

More on rights lawyer Wang Yu’s “confession and release” and China’s revival of “brainwashing” practice

There is no doubt whatever that Wang Yu will not be free to resume her practice of human rights law or her previous professional or even personal friendships. Her hope must be to obtain her husband’s release from jail, to be able to see her son and to procure for him the right to study abroad, as was originally planned. The elements of the deal struck will gradually emerge.

To say that her statement was “probably” the product of coercion is silly since she has been held in an immensely coercive environment for over a year. These “confessions” are reminiscent of the “brainwashing” era of the 1950s for which the new China became infamous. Brainwashing was based on long-run confinement in a coercive environment combined with heavy doses of thought reform and the realization that release depended on adopting, at least temporarily, the “new truth”.

The regime obviously altered Wang Yu’s restrictions (it did not “let her go”) because of the enormous international pressures brought to bear. The American Bar Association’s annual meeting at which the award is to be granted is about to be held. Her alleged repudiation of the award, which was a brilliant decision by the ABA to recover its loss of prestige from earlier inadequate criticism of the PRC, is the PRC’s attempt to discourage all foreign legal organizations from further attacks on the PRC’s human rights violations.

Of course, some lawyers and their legal assistants have been released during the past year while other lawyers are still detained and awaiting criminal conviction and prison punishment as well as the loss of their right to practice law, unless they too succumb to the brainwashing and other coercion to which they are being subjected. Even legal assistants such as Zhao Wei have not been spared the “confession and release” farce.

Non-release “release” of human rights activists and their confessions

 Photo: Wang Yu and her son Bao Zhuoxuan, Photo courtesy of Bao Zhuoxuan

Photo: Wang Yu and her son Bao Zhuoxuan, Photo courtesy of Bao Zhuoxuan

Chinese human rights lawyer Wang Yu has been “released” on bail, as reported in today’s Wall Street Journal. Wang Yu was seen in a video making a confession. “I also wrote inappropriate things online and accepted interviews with foreign media. For this, I feel ashamed and express remorse,” She said. As to the inaugural American Bar Association (ABA) International Human Rights Award given to her, she was quoted as saying she did not “acknowledge, recognize or accept” the award.

It’s obviously too soon to analyze with confidence but it sounds like another of the curious deals that are being struck between PRC oppressors and courageous but hapless human rights victims, deals involving the welfare of spouses, children, parents, lovers etc as well as the target whose captivity and torture are at stake.

This is all so sad, not only for the oppressed, broken victims but also for China and its standing in the world. These pathetic, ludicrous “confessions” and charges are obviously designed for a Chinese audience, but tens of millions of Chinese are not foolish enough to believe these farces.

Yet the damage to China that these torture-inspired fairy tales inflict abroad is incalculable. Does the Chinese leadership not see this? Xi Jinping is holding himself and the country up to increasing worldwide ridicule. This is the Chinese Communist Party’s distinctive contribution to the playbook of international Communist abuse of the legal system and promises to rank in notoriety with Stalin’s infamous purge trials, although so far no Chinese victims have been formally executed!

I’d like to think that if the ABA, in its new vision, could honor every detained human rights lawyer in China, it could guarantee them some minimal concession from their oppressors, but we know that international prizes can only be helpful in a few cases and certainly cannot free even Nobel Prize winners!

I don’t know what this foretells re the ABA’s work in China. Certainly it adds fuel to the fire of the continuing debate over what the appropriate ABA response to the vicious repression of human rights lawyers should be. If this case results in the termination of the ABA’s praiseworthy activities in China, it would be another classic instance of what Beijing propagandists like to call “dropping a rock on your own foot”.

Support silent supporters of the rule of law in China

 Human Rights lawyer Teng Biao, Photo credit: May Tse/South China Morning Post

Human Rights lawyer Teng Biao, Photo credit: May Tse/South China Morning Post

Here is a stimulating op-ed by Chinese law scholar and activist Teng Biao. I hope US funders, public and private, will take it into account. I believe, after giving due regard to Teng Biao’s admonition against funding the oppressors, funders should continue to support those non-Chinese institutions that do not pull their punches in studying and reporting on legal developments in China while also continuing to conduct legal and human rights education of not only Chinese lawyers but also Chinese judges, prosecutors, justice officials and even police.

The point that needs greater recognition here is that hundreds of thousands of legal specialists in China are extremely unhappy with Xi Jinping’s oppressive policies, policies that they feel forced to live with and practice while awaiting a less repressive regime and the renewal of true legal reforms. At a time when they are being ordered to reject universal human rights values, we should not abandon these silent supporters of the rule of law, but should keep up contacts and professional nourishment that will sustain them until a better day dawns.

Years ago, the late Senator Arlen Specter asked me to emphasize this point in a letter to then House Majority Leader Nancy Pelosi, recalling the importance of foreign funded legal education and training given to officials of the Chiang Kaishek dictatorship in Taiwan and the Park Choon-Hee dictatorship in South Korea. Those efforts paid rich dividends when political circumstances permitted legal liberalization. Indeed, they helped fuel legal officials’ opposition to dictatorship, as occurred when Taiwan prosecutors and judges rebelled against their masters and successfully established their independence of political interference.

The U.S. Congress, other countries and private foundations should also fund basic research on the many complex aspects of the evolving Chinese legal system, not only education and training in China but also efforts to enhance foreign understanding of both contemporary events and the country’s political-legal culture.

In addition, there is a great need to fund the support and activities of the increasing number of Chinese refugee lawyers, law professors and human rights activists who, like Professor Teng, are turning up outside China as a result of the terrible situation they confront in China.

Finally, in fairness to the America Bar Association, we should note that, after long internal debate spawned by external criticisms, it has decided to establish an international human rights award and next week at its annual meeting in San Francisco this new award will be bestowed, in absentia, on another of China’s courageous human rights lawyers, Ms. WANG Yu, who, sadly, is jailed in China and awaiting criminal conviction and a long prison sentence. 

More Questions on the American Bar Association Story: Who in Washington Ordered the ABA’s Book Publishing Unit to Rescind the Offer to Teng Biao?

By Jerome A. Cohen

The report by Isaac Stone Fish in Foreign Policy, “Leaked Email: ABA Cancels Book for Fear of ‘Upsetting the Chinese Government’,” which I wrote about earlier this week here, has finally stimulated the beginnings of an ABA response.

An email from Jen Leung, the Country Director of the American Bar Association Rule of Law Initiative China Program, on the China Law Listserv makes it clear that the Beijing office of the ABA’s Rule of Law Initiative (ROLI) had no knowledge that some people in Washington headquarters, where ROLI’s central office is located, reportedly influenced the ABA’s book arm to rescind its offer to Teng Biao. The email implies that ROLI’s central office in Washington, which directs its Beijing office and has fought vigorously and successfully to maintain the valuable work its Beijing staff is doing, also was unaware of the ABA’s book offer to Teng.

Presumably this will be confirmed by either the ABA’s internal investigation or further journalistic efforts. Whatever the outcome of that specific inquiry, however, it is clear that, despite the ABA’s belated and pathetic attempt to deny the reason its employee originally gave for its embarrassing change of mind, there is nothing fictional about the Foreign Policy story. What we don’t yet know is who in Washington ordered the book publishing unit to rescind the offer.

To its credit, another wing of the ABA, the ABA Journal, has published three articles reporting on the Chinese Government’s current repression of lawyers, and, under the leadership of the highly respected sociologist of law Terry Halliday, the American Bar Foundation has done important research on the plight of those Chinese lawyers courageous enough to try to defend human rights. So perhaps there are advantages as well as disadvantages to the ABA’s lack of efficiency regarding its China policy!

It will be interesting to see whether this important fuss leads to a debate during the annual meeting of the ABA House of Delegates this summer. Surely some outstanding ABA members would like to take part.

China and the American Bar Association – Another Sad Story

By Jerome A, Cohen

 Human Rights lawyer Teng Biao, Photo credit: May Tse/South China Morning Post

Human Rights lawyer Teng Biao, Photo credit: May Tse/South China Morning Post

The report by Isaac Stone Fish in Foreign Policy, “Leaked Email: ABA Cancels Book for Fear of ‘Upsetting the Chinese Government’,” stirred up a lot of discussion over the weekend. The American Bar Association’s 2015 reversal of its initial decision to publish a book by the famous Chinese rights scholar/activist Teng Biao was allegedly market-driven, the ABA belatedly claimed, and not based on fear of China as originally explained by the ABA employee in charge of book negotiations.

Did the ABA tell the truth in seeking to explain its reversal of the original decision to publish? The fable from the ABA reminds me of the stories the PRC has recently put out to try to explain China’s kidnappings of certain Hong Kong publishers. Reasonable people could argue about the ABA’s discouragingly timid statement last August about the oppression of China’s human rights lawyers, which I wrote about here, but what can one say about the Teng Biao incident other than that it is a pathetic chapter in the history of the world’s leading bar association?

Commissioning a book by ex-professor and lawyer Teng – a genuine hero of the legal profession now unable to return to China, accepting his outline for the book’s publication and then changing its mind out of fear of offending Beijing was surely bad enough. But then to belatedly seek to retract an apparently truthful explanation of its bad judgment by spinning a yarn that is an insult to our intelligence is contrary to the ethics and integrity for which the ABA purports to stand. Heads should roll over this incident, but not the head of the whistle-blower! 

As to the real reason – fear that China might terminate the ABA’s valuable law reform work in Beijing, we heard it given last August in defense of the initial insistence of ABA’s Rule of Law Initiative (ROLI) that there be no protest whatever and, under fire, that any protest be a timid one. This was months after the reversal over Teng’s book. I don’t think any of us who opposed ROLI’s view last August knew about the book reversal and the ABA did not disclose it. If it had done so, this would have added significant fuel to the fire against its position.

Within the ABA, ROLI impressed me as a tough, no-holds-barred bureaucratic infighter against other ABA units that challenged its view, such as the Human Rights committee. For example, I was told that, when, as the internal debate within ABA over whether to make a statement raged, ROLI scheduled a meeting with the State Department on behalf of the ABA, it did not notify the ABA human rights people, thereby precluding them from being included in the ABA delegation to the meeting.

The ABA is a huge, unwieldy organization that desperately needs – at a minimum – better coordination regarding China so that its various entities know what each other is up to and can develop a coherent, respected policy toward a major country that will continue to present many challenges. We have not heard the last of this story and perhaps the ABA head office will issue a clarification in the next few days. Surely the incoming president should give this matter a high priority.

Since we have been discussing disclosure, I should mention what many know – that Teng, since last summer, is no longer at Harvard but has been a Visiting Scholar at our NYU US-Asia Law Institute.  I suppose I should also disclose that in 1966, I think it was, I published a letter in the NY Times, taking the ABA House of Delegates to task for uncritically endorsing American military actions in Vietnam as consistent with international law.

Lawyer-client meeting in “national security” cases in China

My colleague Yu-Jie Chen has just sent around her comments below on the police’s written decision to reject the lawyer-client meeting (“不准予会见犯罪嫌疑人决定书”) in recent cases related to the oppression of lawyers and other human rights advocates since July 9 last year (“709”). With her permission, I’m pasting her comment below, followed by my response.


“This kind of decision to reject the lawyer’s request to meet with the criminal suspect seems to have been standardized into a form and used in several cases of the 709 activists and lawyers, including lawyer Wang Yu (here), Li Heping’s 24-year-old assistant Zhao Wei (here), law scholar Liu Sishin (here), and activist Wu Gan (the latest 不准予会见 decision in his case was issued on Feb. 6). All these decisions have been issued by Tianjin City public security authorities (including its Hexi branch), which has been in charge of the 709 crackdown as far as I know. In addition, the case of lawyer Zhang Kai, who has been detained in Wenzhou, also saw such a document issued by the Wenzhou police (here). I’m sure there are many others that I haven’t seen.

The basis invoked by the police is Article 37 (3) of the Criminal Procedure Law, which, in cases involving crimes endangering State security, terrorist activities or significant amount of bribes, asks defense lawyers to obtain the approval of investigating agencies before meeting with their clients.

However, we should note that in the September 2015 regulation issued by the Supreme People’s Court, Supreme People’s Procuratorate, Ministry of Public Security, Ministry of State Security and Ministry of Justice to protect lawyer’s rights to practice (“关于依法保障律师执业权利的规定”), the police are required to provide reasons (说明理由) in rejecting the lawyer-client meeting. I don’t think simply producing a form as a formality meets this standard. But in reality, I wonder if there is any remedy for such a violation.” 

  Written notice rejecting the request of ZHAO Wei's defense lawyer to meet with Zhao

Written notice rejecting the request of ZHAO Wei's defense lawyer to meet with Zhao


   Written notice in WANG Yu's case

 Written notice in WANG Yu's case

The use of such a form reveals the cavalier manner in which the police violate their nation’s Criminal Procedure Law by arbitrarily denying the right to counsel in their attack on rights lawyers and other human rights advocates whom they have detained. Indeed, the police are doing exactly what Article 9 of the major September 2015 Five-Institution Regulation interpreting the 2012 Criminal Procedure Law explicitly forbids. They are failing to give lawyers requesting a meeting with their detained clients the reasons for rejecting the meeting.

They simply fill in the bare details identifying the case on a printed police form that claims the requested meeting would interfere with their “national security” investigation OR reveal state secrets, without giving any facts or justification of such alternative claims. This flies in the face of Article 9’s stern admonition that investigating agencies may not interpret “as they wish” the “national security” and other exceptional provisions authorizing them to deny counsel their right to meet detained clients in certain circumstances. This admonition, based on decades of experience demonstrating how in practice the police always turn narrow legislative exceptions into broad arbitrary rules, is specifically designed to prevent the police from arbitrarily restricting the right of lawyers to meet their detained clients.

According to the law, lawyers should be able to vindicate their rights by seeking administrative review of the police refusal at the next higher police level and by asking the local procuracy to investigate the arbitrary police refusal. Such efforts are apparently being made but no one is holding his breath in the expectation that this will bring relief. For example, over 15 years later I am still waiting for the office of the Supreme People’s Procuracy in Beijing to send me its promised report reviewing the lawless detention of a Sino-American joint venture’s Chinese CFO by the city of Jining in Shandong Province.

In most cases, initially and repeatedly, police denial of lawyer access to detained clients seems to be orally communicated. Issuance of a written form seems to be done belatedly and reluctantly as part of a customary effort to block or at least delay any review of the decision.

The Hexi District Sub-Bureau of the Tianjin Public Security Bureau seems to have attracted a very large number of detention cases related to the 709 crackdown. I note that the September 18, 2015 Decision denying her lawyer’s access to young Ms. ZHAO Wei is numbered 1,082 for the year!!! That does not mean that the huge number of such cases that preceded it last year were all 709 cases but it seems likely that many of them were such supposed “national security” cases. And we do not yet know how many more such cases occurred last year after September 18. Moreover, there may be some double counting since defense counsel sometimes try a second time later in their client’s detention. The Five-Institution Regulation authorizes the meeting of lawyer with client in alleged “national security” cases once the meeting will no longer prove an obstacle to investigation or the risk of revealing state secrets is gone.  

Who gets punished?: Sons and daughters of rights lawyers - Collective punishment in China

by Jerome Cohen

 Wang Yu and her son Bao Zhuoxuan, Photo courtesy of Bao Zhuoxuan

Wang Yu and her son Bao Zhuoxuan, Photo courtesy of Bao Zhuoxuan

Wang Yu, a leading rights lawyer detained in July during a large-scale crackdown on lawyers, must be under greater pressures than ever. Not only is she detained, but also her teenage son Bao Zhuoxuan has been prevented from leaving China to study abroad. When the boy tried to escape China days ago, he was caught in Myanmar and brought back to the country. Chinese media now claim that this is “a plot by external forces, who forcibly drew a minor into the vortex of politics and used the case to vilify China's rule of law.” Wang Yu, detained for more than three months now, appeared on state TV to condemn the supposed smuggling of her son (See Verna Yu’s report here). Meanwhile a son of another prominent rights lawyer, Liu Xiaoyuan, has also been denied permission to leave China to pursue an overseas education.

There is no doubt that in fact, not in formal law, the Chinese Government has been resorting to collective punishment of the family members of those it regards as political offenders. Indeed, the People’s Republic has been doing this for a long time in order to punish people it deems to be dissidents and to force them to “confess” to alleged crimes they have not committed.

Such formal collective punishment was abolished over a century ago in China as part of reformers’ efforts to bring Qing dynasty justice up to the standards of the Western imperial powers and end the incubus of “extraterritorial” foreign jurisdiction. Yet it persisted in practice under China’s post-imperial, pre-Communist regimes. Chiang Kai-shek’s government continued to secretly mete out collective family punishment on Taiwan. Many still recall how Kuomintang (Nationalist Party) police even killed the children and mother of a distinguished Taiwan independence advocate while he was in prison.

Is collective punishment happening more often in the PRC today than in the past? It’s impossible for outside observers to know. Surely the Internet and social media keep us better informed than in the past.

The authorities evidently think it is an effective tool, since it can transform even the most courageous dissident into the Communist Party’s compliant victim.

This vicious practice may soon backfire, however, since knowledge of its use is increasingly widespread and leaves in tatters any further attempt by the Xi Jinping regime to resort to “soft power”. I am glad Xi’s daughter had the opportunity for a Harvard education. It is a disgrace that he so often denies this opportunity to the children of so many worthy citizens.