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.

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.

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!

Disappearance of Chinese human rights lawyer: what it means to be placed under “residential surveillance” in China

It’s been reported that (ex) human rights lawyer Jiang Tianyong, who disappeared on November 21, has been placed under “residential surveillance” (RS) by Chinese police. This sad experience shows how the new provision in the 2012 Criminal Procedure Law (CPL) – Article 73 – regarding RS has been abused by the police and the Party.

Lawyer Jiang Tianyong

Lawyer Jiang Tianyong

My hope, rather vain in the current political climate, is that Jiang’s case will ventilate the problem of “residential surveillance” so thoroughly that it will create pressure for reform, as did Ai Weiwei’s case in 2011. At that time, if the government’s target maintained a residence in the jurisdiction of the police, the police were forbidden by Ministry of Public Security (MPS) rules to detain him in any residence but his own, i.e., to restrict him to genuine house arrest. What the police often did, however, as in Ai’s case, was to detain suspects they deemed undesirable in places designated by the police that were neither suspects’ homes nor regular police detention houses that, whatever their failings, were at least regulated by normal criminal procedures and protections. This was a plain violation of MPS regulations if the suspect maintained a local residence.

As a result of the Ai case and others that resulted in protests, when the CPL was revised in 2012 a specific provision was inserted into the new code authorizing RS “at a designated location”, i.e., in police custody, even in cases where the suspect maintained a local residence, but limiting this new authorization to three circumstances, i.e., cases involving national security, terrorism or serious bribery. As is so often the case, the relevant legislative language is vague, especially the provision that permits police to impose this six-months incommunicado sanction whenever they decide that the suspect may have committed a crime related to “national security”, an exercise of discretion that, unlike their desire to formally “arrest” someone, which must be approved by the procuracy within a 37-day period, the PRC system does not permit any other agency to review. Thus, as in Jiang’s case, all they need to do to inflict RS is assert a suspicion that the case might involve some aspect of national security.

Without even meeting any standard such as “probable cause” to believe the crime was committed by the suspect, the police detained Jiang ostensibly because he might have “incited subversion of State power”. This gives the police six months, without interference from any lawyer, family, friends or media, to subject the suspect to a whole range of pressures and punishments including torture in a highly coercive, sealed-off environment.

At the end of that very long period the police decide, based on the suspect’s degree of “cooperation” as well as other factors, whether the evidence elicited via their techniques warrants criminal prosecution in accordance with prescribed procedures leading to “arrest”, indictment, trial, conviction and sentencing. The final formal charge may indeed claim a violation of “national security” such as “subversion of State power” or merely “incitement” to such subversion. But the charge may turn out to be for a lighter offense the long incommunicado investigation of which would not have been authorized by the RS legislation.

So was the 2012 revision a reform? On the one hand, it prohibits police from giving RS in a “designated location” to a local person suspected of tax irregularities, for example, as Ai Weiwei supposedly was. On the other, it now for the first time authorizes incommunicado RS for local people any time the police choose to investigate conduct they wish to claim might constitute a type of “national security” violation (or a serious bribery or terrorism-related case). The result is that police, and the Party, now enjoy virtually unlimited freedom to arbitrarily detain and punish for six months anyone they think may be a dissident. This needs to be kept in mind when considering the progress made by the formal abolition of the police administrative punishment of “reeducation through labor”.

It should also be pointed out that Party members, who are subject to the feared Party “discipline inspection” procedures of “shuanggui”, which can extend incommunicado detention for longer periods than RS, are not immune from RS either, although it would take unpermitted empirical research to determine how often this type of RS is used against them.

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.