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

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.

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“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

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 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.  

Video talk: why lawyers are not dentists!

Here is my talk for a conference in Taipei earlier this month about the plight of Chinese rights lawyers in the current severe climate: "Public Lawyers in Transitional Societies – Why Lawyers Are Not Dentists!"

China charges human rights lawyers with "subversion"

My Jan. 13 BBC interview on China's crackdown on rights lawyers (5 minutes).

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, 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.

The struggle of Chinese public interest lawyers to have their voice heard by their lawyers associations

by Jerome Cohen

According to this report, some public interest lawyers in China are now calling for abolition of the national lawyers professional group, the All China Lawyers Association, which is organized and controlled by the Ministry of Justice and has rarely lent support to lawyers attacked by the government.

In fact, there were efforts in the past to try to reform the lawyers associations in China, such as calls by some public interest lawyers in 2008 for the Beijing Lawyers Association to hold direct elections, in the hope of making the group more autonomous (see Jerome Cohen, "The Struggle for Autonomy of Beijing’s Public Interest Lawyers," April 2009). Obviously, the struggle is still ongoing today, especially given the current severe crackdown in which the local and national lawyers associations have not only remained silent but also continued to aid the government, for example, by not renewing the license to practice law of some lawyers unwelcome by the authorities. 

The ABA's statement about the crackdown on lawyers in China

The recent crackdown by the Chinese government on human rights lawyers has raised the question of what is an appropriate response by foreign organizations working on the rule of law in China. The statement released by the President of the American Bar Association on August 4 has further prompted such discussion as well as frustration of those who want to see a stronger statement of the ABA in support of China’s beleaguered lawyers, as in this op-ed by Robert Precht in the Washington Post.

Below are some thoughts of Professor Jerome Cohen about the ABA statement and the broader question of what considerations foreign organizations, including bar associations, universities and NGOs, have when they think about how to respond to the recent challenge.

Jerome A. Cohen

August 4, 2015

First of all, I am impressed by how little interest has been expressed in the ABA statement. Perhaps it’s the mid-summer doldrums and holiday schedules, perhaps many people feel what the ABA says is of little significance in influencing the PRC to cease its attack on human rights lawyers, and perhaps there is little appreciation of the importance of human rights lawyers and the Party’s attack on them.

The ABA statement does not meet my standard for what would have been appropriate. I had helped draft a stronger statement, yet one that also emphasized the ABA’s hard work over the past 17 years and the importance of continuing, indeed expanding this effort with the support of some of the other lawyers’ organizations that condemned the PRC purge. Some of the language of our draft is in the compromise final draft decided upon by the ABA president.   I think the final statement is adequate since it shows the ABA is not happy with what the PRC is doing, which is a lot more than the original draft produced by the staff of its Rule of Law Initiative did. So I think the statement is helpful, since it adds to the protest the voice – however timid – of one of the world’s greatest bar organizations. Of course, even the outpouring of protest is not likely to be helpful in the sense of persuading XJP to call off the hounds, but it surely is helpful in supporting the victims and their colleagues and families and the hundreds of thousands of Chinese legal officials, judges, prosecutors, lawyers, legislators, law professors, journalists and activists who have been coerced into suffering this abomination in guilty silence. It is also helpful in letting the American legal profession and general public know more about reality in China today.

ABA's logo on its website: americanbar.org

It would be painting too quickly and with too broad a brush to say the mild ABA response is a result of meretricious, mercenary motives on the part of law firms, universities, or NGOs.  Individual American law firms with offices in China or otherwise engaged in China practice have never shown the slightest interest in human rights problems. That surely is for business reasons. Yet bar associations have often been active regarding PRC transgressions as well as those taking place in many other countries. I am glad to say the NY City Bar has in this case, as in many others, made its condemnation loud and clear, n Chinese as well as English.  The Hong Kong Bar Association, whose opinions really carry some weight in China, is terrific in this respect.

The situation with universities has its own characteristics. Universities and their centers and institutes seldom go on record as institutions condemning Chinese human rights violations, but many individual faculty members and research scholars do express themselves even while many keep silent for their own good reasons. I do not think that the failure of universities and centers to speak out can generally be attributed to concerns over loss of money, although some might suffer financial consequences from doing so. I think there are other explanations readily available, some reflecting worthy considerations and some not (does visa denial constitute primarily a monetary concern?).

NGOS also need careful analysis. Human rights NGOs that cannot set up shop in China have no hostages to fortune. Those like the ABA that have labored long and hard in China, with some staff devoting their lives to this kind of work, have a lot to lose if their protests lead to their ouster and the closing of their office. That was the principal articulated consideration motivating those within the ABA who preferred no statement or one that would have been ludicrous in the eyes of the world. Of course, one can say that their view too is based on money since their jobs and funding could be cut off by a hostile PRC reaction, but I think that a genuine zeal for law reform and a belief that their efforts have already produced tangible progress and will in the long run bear greater fruit was their primary motivation. Concern was also expressed that a strong statement might lead the PRC to impose sanctions against the persons of their American and especially Chinese staff in Beijing, an idea that seemed to carry weight with some within the ABA who know little about China.

So ABA leaders were called on to balance conflicting considerations, essentially to balance the speculative consequences of a strong statement against the less speculative consequences of failing to meet the challenge, including the ongoing but impossible to stop attack on China’s human rights lawyers and the damage to ABA’s reputation. Hence the compromise. Many ABA lawyers were undoubtedly unhappy with the outcome, judging by their words and votes during various group discussions. I know nothing about ABA practices and procedures but what I witnessed from afar (I did my pro bono consulting by phone, skype and email from the soothing beaches of Cape Cod!) made me think a bit of law reform is overdue within the organization!

A SEPTEMBER 7 POST-SCRIPT: The ABA’s dilemma has surely not ended. Public criticism has begun to rise at summer’s end. Some within the organization are properly calling for further consideration in a special meeting. There is already an effort under way to persuade the ABA to seek to add to the agenda of its long-scheduled November conference with Communist Party-controlled Chinese lawyers a discussion of the current repression of human rights, public interest and criminal defense lawyers.