[Joint House and Senate Hearing, 109 Congress]
[From the U.S. Government Publishing Office]




 
               HUMAN RIGHTS AND THE RULE OF LAW IN CHINA

=======================================================================

                                HEARING

                               before the

              CONGRESSIONAL-EXECUTIVE COMMISSION ON CHINA

                       ONE HUNDRED NINTH CONGRESS

                             SECOND SESSION

                               __________

                           SEPTEMBER 20, 2006

                               __________

 Printed for the use of the Congressional-Executive Commission on China


         Available via the World Wide Web: http://www.cecc.gov

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              CONGRESSIONAL-EXECUTIVE COMMISSION ON CHINA

                    LEGISLATIVE BRANCH COMMISSIONERS

Senate

                                     House

CHUCK HAGEL, Nebraska, Chairman      JAMES A. LEACH, Iowa, Co-Chairman
SAM BROWNBACK, Kansas                DAVID DREIER, California
GORDON H. SMITH, Oregon              FRANK R. WOLF, Virginia
JIM DeMINT, South Carolina           JOSEPH R. PITTS, Pennsylvania
MEL MARTINEZ, Florida                ROBERT B. ADERHOLT, Alabama
MAX BAUCUS, Montana                  SANDER LEVIN, Michigan
CARL LEVIN, Michigan                 MARCY KAPTUR, Ohio
DIANNE FEINSTEIN, California         SHERROD BROWN, Ohio
BYRON DORGAN, North Dakota           MICHAEL M. HONDA, California     


                     EXECUTIVE BRANCH COMMISSIONERS

                   STEVEN J. LAW, Department of Labor
                 PAULA DOBRIANSKY, Department of State
               FRANKLIN L. LAVIN, Department of Commerce
                CHRISTOPHER R. HILL, Department of State
                BARRY F. LOWENKRON, Department of State

                David Dorman, Staff Director (Chairman)

               John Foarde, Staff Director (Co-Chairman)

                                  (ii)


                            C O N T E N T S

                              ----------                              
                                                                   Page

                               STATEMENTS

Opening statement of Hon. Chuck Hagel, a U.S. Senator from 
  Nebraska, Chairman, Congressional-Executive Commission on China     1
Leach, Hon. James A., a U.S. Representative from Iowa, Co-
  Chairman, Congressional-Executive Commission on China..........     3
Cohen, Jerome A., professor of law, New York University School of 
  Law, New York, NY..............................................     4
Kamm, John, Executive Director, the Dui Hua Foundation, San 
  Francisco, CA..................................................     8
Brownback, Hon. Sam, a U.S. Senator from the State of Kansas, 
  Member, Congressional-Executive Commission on China............    10
Pei, Minxin, Director, China Program, Carnegie Endowment for 
  International Peace, Washington, DC............................    12
Xiao, Qiang, Director, China Internet Project, the Graduate 
  School of Journalism, University of California at Berkeley, 
  Berkeley, CA...................................................    13

                                APPENDIX
                          Prepared Statements

Cohen, Jerome A..................................................    32
Kamm, John.......................................................    38
Pei, Minxin......................................................    43
Xiao, Qiang......................................................    44

Hagel, Hon. Chuck................................................    46
Leach, Hon. James A..............................................    47
Brownback, Hon. Sam..............................................    49
Law, Hon. Steven J...............................................    50
Lavin, Hon. Franklin L...........................................    51


                 HUMAN RIGHTS AND RULE OF LAW IN CHINA

                              ----------                              


                     WEDNESDAY, SEPTEMBER 20, 2006

                            Congressional-Executive
                                       Commission on China,
                                                    Washington, DC.
    The hearing was convened, pursuant to notice, at 10:09 
a.m., in room 138, Dirksen Senate Office Building, Hon. Chuck 
Hagel (Chairman of the Commission) presiding.
    Present: Senators Brownback and Martinez; Representatives 
Leach (Co-Chairman of the Commission), Pitts, Aderholt, Levin 
(Ranking Member of the Commission), and Honda; Steven J. Law, 
Deputy Secretary of Labor, and Franklin L. Lavin, Under 
Secretary of Commerce.

OPENING STATEMENT OF HON. CHUCK HAGEL, A U.S. SENATOR FROM THE 
STATE OF NEBRASKA, CHAIRMAN, CONGRESSIONAL-EXECUTIVE COMMISSION 
                            ON CHINA

    Chairman Hagel. Good morning. The Congressional-Executive 
Commission on China issues a report each year to the Congress 
and to the President on human rights conditions and the 
development of the rule of law in China.
    In connection with today's release of the 2006 Annual 
Report, the Commission has asked a distinguished group of 
witnesses to assess the current state of civil rights and 
criminal defense; freedom of expression; and efforts to adopt 
democratic institutions of governance, implement legislative 
reform, and improve the environment for domestic and 
international civil society groups in China. The Commission 
will also hear the perspective of the witnesses on how the 
United States might best engage with the Chinese Government 
through dialogue on human rights and rule of law issues.
    In its 2006 Annual Report, the Commission expresses deep 
concern that some Chinese Government policies designed to 
address growing social unrest and bolster Communist Party 
authority are resulting in a period of declining human rights 
for China's citizens.
    The Commission identified limited improvements in the 
Chinese Government's human rights practices in 2004, but 
backward-stepping government decisions in 2005 and 2006 are 
leading the Commission to reevaluate the Chinese leadership's 
commitment to additional human rights improvements in the near 
term. In its 2005 Annual Report, the Commission highlighted 
increased government restrictions on Chinese citizens who 
worship in state-controlled venues or write for state-
controlled publications. These restrictions remain in place, 
and in some cases, the government has strengthened their 
enforcement.
    The Commission notes the progress that the Chinese 
Government has made over the past 25 years in beginning to 
build a political system based on the rule of law and on 
respect for basic human rights. The twin demands of social 
stability and continued economic progress have spurred legal 
reforms that may one day be the leading edge of constraints on 
the arbitrary exercise of state power. The government's 
achievements in the economic realm are impressive, none more so 
than its success in lifting more than 400 million Chinese 
citizens out of extreme poverty since the early 1980s.
    While all of these changes are important, the gap between 
forward-looking economic freedoms and a backward-looking 
political system remains significant. There are leaders now 
within China who comprehend the need for change and who 
understand that inflexibility, secretiveness, and a lack of 
democratic oversight pose the greatest challenges to continued 
development.
    These leaders will need to gather considerable reformist 
courage to overcome obstacles and push for continued change. 
Such changes will not occur overnight, but rather in ways that 
Chinese society, culture, infrastructure, and institutions must 
be prepared for and willing to accept.
    To help us better understand human rights conditions and 
the development of the rule of law in China, we turn to our 
witnesses this morning.
    Professor Jerome A. Cohen is a Professor of Law at the New 
York University School of Law; an Adjunct Senior Fellow on Asia 
at the Council of Foreign Relations; and Of Counsel at the law 
firm of Paul, Weiss, Rifkind, Wharton & Garrison. Professor 
Cohen is a leading expert on the Chinese legal system and the 
legal aspects of the international relations of East Asia. As 
Director of East Asia Legal Studies at Harvard Law School from 
1964 to 1979, Professor Cohen pioneered the study of East Asian 
legal systems in American legal curricula. He has published 
numerous books and articles on Chinese law, including 
``Contract Laws of the People's Republic of China,'' ``The 
Criminal Process in the PRC: 1949 to 1968,'' and ``The Plight 
of China's Criminal Defense Lawyers.''
    After Professor Cohen, we will hear from Mr. John Kamm. Mr. 
Kamm is Executive Director of The Dui Hua Foundation; a member 
of the Board of Directors for the National Committee on U.S.-
China Relations; and Director of Stanford University's Project 
on Human Rights Diplomacy. Since 1990, Mr. Kamm has been an 
advocate on behalf of prisoners of conscience in China and has 
made more than 70 trips to Beijing in an effort to engage the 
Chinese Government in a dialogue on human rights. He was 
granted the Eleanor Roosevelt Human Rights Award by President 
George W. Bush in December 2001, and a MacArthur Fellowship in 
September 2004. Mr. Kamm was the Hong Kong representative of 
the National Council for U.S.-China Trade from 1976 to 1981, 
and was President of the American Chamber of Commerce in Hong 
Kong in 1990.
    Dr. Minxin Pei will provide perspectives on democratic 
governance and development of civil society. Dr. Pei is Senior 
Associate and Director of the China Program at the Carnegie 
Endowment for International Peace. He is an expert on China, 
U.S.-China relations, Taiwan, East Asia, and the development of 
democratic political systems. Dr. Pei is the author of numerous 
books and articles on China, including ``China's Governance 
Crisis;'' ``Rebalancing United States-China Relations;'' and 
``Future Shock: The WTO and Political Change in China.'' In his 
most recent book, ``China's Trapped Transition: The Limits of 
Developmental Autocracy,'' Dr. Pei examines the sustainability 
of the Chinese Communist Party's reform strategy--pursuing pro-
market policies under one-party rule.
    Mr. Xiao Qiang will share his expertise on freedom of 
expression in China. Mr. Xiao is Director of the China Internet 
Project at the University of California at Berkeley. He is a 
recipient of the MacArthur Fellowship and is currently teaching 
classes on ``new media and human rights in China'' at the 
University of California at Berkeley. Mr. Xiao was the 
Executive Director of Human Rights in China from 1991 to 2002. 
He spoke at each meeting of the U.N. Commission on Human Rights 
from 1993 to 2001, and has lectured on the promotion of human 
rights and democracy in China in over 40 countries. Mr. Xiao 
currently runs the China Digital Times Internet news portal, 
and is a weekly commentator for Radio Free Asia.
    We welcome our distinguished panel of witnesses this 
morning.
    At this point I would ask my distinguished colleague, the 
Co-Chairman of this Commission, Representative Jim Leach, for 
his comments. Then I would ask for comments from other 
colleagues on the Commission before we hear from the witnesses.
    Representative Leach.
    [The prepared statement of Senator Hagel appears in the 
Appendix.]

OPENING STATEMENT OF HON. JIM LEACH, A U.S. REPRESENTATIVE FROM 
    THE STATE OF IOWA, CO-CHAIRMAN, CONGRESSIONAL-EXECUTIVE 
                      COMMISSION ON CHINA

    Representative Leach. Well, thank you, Chairman Hagel. I 
have a long statement. I would simply ask unanimous consent to 
put it in the record, and make two very quick observations.
    Perspective is awfully difficult to bring to events of this 
nature and assessments of the nature that the Commission is 
obligated to make. From any historical viewpoint, China is 
obviously economically better off than it has ever been. From a 
freedom point of view, it is probably as well off as it has 
ever been.
    On the other hand, quite clearly there have been some steps 
back in the last several years that are of serious dimensions 
and they have to be noted, and we are obligated to note that.
    In this regard, I personally want to tip my hat to the 
staff that has been so responsible for putting together this 
report. We have a first-class professional staff, non-
ideological, Chinese language-trained, and we are very proud of 
the work product that they have produced and the efforts that 
they have undertaken.
    With that, I would yield back the balance of my time.
    [The prepared statement of Representative Leach appears in 
the Appendix.]
    Chairman Hagel. Co-Chairman Leach, thank you.
    One of our distinguished members of the Commission is the 
Under Secretary of Commerce and the former U.S. Ambassador to 
Singapore.
    Mr. Lavin, do you have any comments?
    Mr. Lavin. No opening statements, Mr. Chairman, but to 
associate myself with your opening statement and with that of 
Congressman Leach as well.
    [The prepared statement of Mr. Lavin appears in the 
Appendix.]
    Chairman Hagel. Mr. Lavin, thank you.
    Also, another distinguished member of our Commission, 
Representative Joseph Pitts of Pennsylvania, has joined us. Mr. 
Pitts has been actively engaged in this Commission.
    Congressman Pitts, do you have a statement?
    Representative Pitts. Mr. Chairman, I would just like to 
say this is an excellent report and I would like to commend the 
staff for the good work they have done here. I want to thank 
the witnesses for their expertise and for coming today. I yield 
back.
    Chairman Hagel. Representative Pitts, thank you.
    The recognition of the efforts of the staff of this 
Commission is appropriate. The staff has been under the 
leadership of Dr. David Dorman and Mr. John Foarde, who deserve 
a considerable amount of attention and appreciation, as well as 
all of the members of the Commission staff. I think our 
Commission is unanimous in its praise of the good work of our 
staff on the report that was released today.
    We have just been joined by another distinguished member of 
our Commission, Mr. Aderholt. Would you care to make a 
statement? Welcome.
    Representative Aderholt. Thank you. It is good to be here 
this morning. I do not have anything right now. I may submit 
something for the record. But I look forward to the testimony 
this morning. Thank you.
    Chairman Hagel. Representative Aderholt, thank you.
    With that, let me now ask our distinguished witnesses if 
they would proceed. I would ask them to proceed in the order in 
which I introduced each of you. We will begin with you, 
Professor Cohen. Welcome. Thank you.

   STATEMENT OF JEROME A. COHEN, PROFESSOR OF LAW, NEW YORK 
             UNIVERSITY SCHOOL OF LAW, NEW YORK, NY

    Mr. Cohen. Thank you, Senator Hagel. I am very glad to see 
good attendance today, to see your colleague, Congressman 
Leach, again, Secretary Lavin, and Congressmen Pitts and 
Aderholt.
    We are very happy, those of us in the China field, with 
what this Commission has done. I think hearings such as this, 
and reports--I have already read this report and it is a very 
able, comprehensive, balanced view that will be of inestimable 
help to people in the news media, as well as scholars of China. 
My hope is that some day this report, which I know is 
translated into Chinese at least in part, could be made 
available in China.
    Now, setting the tone for today's hearing is a challenge. 
It has been over a year since I last appeared here, and the 
last year has not been a good one for the subjects of our 
concern, the rule of law and human rights--human rights, in the 
sense of political and religious freedoms, protection against 
arbitrary criminal punishment, the development of fair and 
independent courts, and the growth of a free and vigorous legal 
profession.
    I will speak briefly about some recent developments. Many 
of us have hoped that there would be a new Criminal Procedure 
Law out in China before the Olympics in 2008. There are so many 
issues, which I list in my formal presentation, that cry out 
for amendment, revision, clarification, and improvement. It now 
looks like prospects for the new criminal procedure laws coming 
out in the near future are receding. That is too bad. The idea 
was to lay the groundwork for China's ratification of the U.N. 
Convention on Civil and Political Rights. China, as you know, 
signed onto the ICCPR in 1998. It has been eight years. The 
hope was, and many Chinese experts as recently June were still 
confident, that China would ratify that Convention by the time 
of the Olympics.
    I think there is a desire on the part of the Chinese 
leadership in principle, although they have a hard time living 
up to it in practice, that China be seen as a fully civilized 
member of the world community by 2008. A new Criminal Procedure 
Law consistent with the ICCPR would be part of that, but that 
prospect, too, seems to be fading.
    Now, I had at least hoped that the Chinese National 
People's Congress would abolish the notorious sanction called 
``Reeducation Through Labor'' that allows the police to put 
anyone away for three or four years with no review by the 
prosecutor's office, no review by the courts, and no review by 
anybody else. That has been one of the most effective and 
feared police sanctions for almost the entire history of the 
People's Republic of China. There has been a bill before the 
National People's Congress for over two years that would 
abolish, or at least substantially reform, that sanction. That, 
too, seems dead in the water, at least for now.
    So the National People's Congress cannot be looked to, for 
the next year at least, for much action on the questions at 
issue. Fortunately, the Supreme People's Court of China is 
trying to fill the gap.
    There has always been a kind of contest between the 
National People's Congress and the Supreme People's Court, how 
much terrain the Supreme Court can cover. They are not allowed 
to make constitutional decisions, but they do interpret their 
power of interpretation broadly. Right now, they are focusing 
on trying to improve procedures for death penalty cases in 
China.
    As you know, China is infamous, even more than the United 
States, for the numbers of people it puts to death. We do not 
know the figures--it is a closely guarded secret--but between 
8,000 to 10,000 people a year are executed. Now, people know 
the procedures have been abysmal for trying these people and 
reviewing their cases. The Supreme Court of China is trying on 
its own now to make important improvements. For that, they have 
to hire 300 or 400 new judges--that gives you some idea of how 
many cases there are to review--who have got to take part in 
the review process, and they have got to improve the trial 
processes. They are making some progress. It is slow. It is 
difficult. We do not know how well they will do.
    Many of us are cooperating, to the extent that they welcome 
it, in this effort. But it is the only game in town right now 
in terms of law reform of the administration of criminal 
justice in China.
    Now, there have been some disgraceful criminal cases that 
many of you know about. The Washington Post, New York Times, or 
other news media have been full of various cases. I have been 
involved in two of them in the last year.
    One is the famous blind man, who is what we would call a 
``barefoot lawyer.'' He is not a lawyer, but he is self-taught, 
and has been a social/legal activist. He has been locked up now 
and sentenced to four years and three months in prison. I 
brought along a T-shirt that shows this man. He was a State 
Department visitor--that is how I met him--in 2002. When you 
meet him, you are very much moved. He is like a Chinese version 
of, a legalistic Gandhi. This is a very sincere, very 
brilliant, very courageous, determined person, and he is paying 
the price for it today. Other T-shirts were confiscated by the 
Chinese police the day I got mine last June.
    I also have taken part in the famous case of Zhao Yan, a 
New York Times staff person in the Times' Beijing Bureau, who 
has now been sentenced to three years in prison after another 
trial that can only be regarded as a farce, and after highly 
illegal--according to Chinese law--pre-trial detention, 
interrogation, et cetera.
    These cases, it is sad to say, the Supreme Court does not 
do anything about in its supervisory powers. Wholesale, they 
are doing pretty well. Retail, they have a lot to cover and, I 
think, to make up for.
    One of the interesting phenomena is that, despite these 
actions, the Communist Party itself is showing itself 
increasingly sensitive to legal considerations. The Party plays 
a very important, but little-noticed, role in criminal justice. 
If important people in the Party are going to be interrogated, 
investigated for corruption, for example, the Party usually 
locks these people up long before they get to the police or 
formal criminal process. The Party can hold somebody for as 
long as they want, sometimes years. The Party, in principle, 
recognizes a few protections, but in practice these people are 
held incommunicado. The result is that the elite of China, 
China's 70 million Party members, often have fewer rights in 
protecting themselves against arbitrary prosecution than 
ordinary members of the public.
    But it is good that the Party is showing some interest in 
ideas of judicial due process and other protections. I think 
this tells you something about a new generation that is coming 
along. The Party has to look more legitimate to its members and 
they want to seem less arbitrary.
    Another problem I want to talk about is restraints on 
lawyers. I am not going to repeat what I have said here before 
about the many obstacles and sanctions imposed against vigorous 
defense lawyers in China. This year has been even worse. 
Lawyers have been physically beaten and abused on many 
occasions. They have been deprived of their license to practice 
law. Some have been prosecuted. Mr. Gao Zhisheng, one of the 
most outspoken, is currently under investigation and detained 
for unspecified criminal activities.
    A lot of these people and their families, lawyers as well 
as their political dissident clients, are subject to blockades 
of their home. There is no legal authority for this. In June, I 
wanted to pay my respects in Shanghai to a former lawyer who 
had been disbarred and sentenced to jail for three years and 
who had just come out of jail. I went to his home. He invited 
me for dinner. Police prevented me from going. When I said, 
``What authority have you got for interfering with my right to 
see him and his right to see me? '' the only answer I got after 
repeated questions, was ``Women shi jingcha.'' ``We are the 
police. We do not need any authority.'' More than that, they 
showed me their badge. This is what is happening. People are 
being subjected to a range of illicit measures that simply are 
not justified according to Chinese law.
    Now, what we find is that there are also other restraints 
on lawyers. Lawyers in the news media are getting too close for 
comfort from the leadership's point of view. My blind man 
friend's real offense was not using the law in court to give 
the government difficulty, but it was contacting the Washington 
Post through me. It was really going on the Internet through 
the help of Chinese lawyers in Beijing. They do not want people 
letting the foreign press know what is really going on. They 
are also sensitive because many public interest lawyers in 
China now are going out of their way to help groups that are 
subject to various forms of suppression and have collective 
grievances.
    In order to stop this, on March 20, the All China Lawyer's 
Association, under pressure from the Ministry of Justice, put 
out a new, so-called ``Guiding Opinion'' that really wants to 
turn lawyers, in cases involving 10 or more people as their 
client, into instruments of the public security forces and the 
government.
    The idea that has been gradually taking root in China since 
the 1980s that a lawyer is the representative of his client, he 
is not a state legal worker, has now been gone back on. They 
are trying to convert these lawyers into state legal workers 
again who do not have full loyalty to their client, but really 
have to have absolute loyalty to the state. This is a very 
sinister development.
    Well, what can we say about the future? Are there any 
grounds for optimism? Beneath the top leadership in China you 
have a marvelous group of able, determined, scholarly, law-
reforming people, hundreds of thousands of these people if you 
count all the members of the different professions, from staff 
of the legislature, to people working in the Ministry of 
Justice, even the Ministry of Public Security has some, and 
certainly in the law schools, among the defense bar, you have a 
lot of idealistic people trying for law reform. We hope that in 
the future these people can be heard from.
    The immediate future depends on the 17th Communist Party 
Congress that will be held a year from now. There will be 
personnel changes then. We do not know who will be added to the 
Politburo, who will be subtracted. There are rumors that one 
member recently added to the Politburo, the Minister of Public 
Security, who is the only representative of the legal community 
in the Politburo, will be promoted to the Standing Committee of 
the Politburo and placed in charge of the Party Political-Legal 
Committee that leads all legal agencies in China in a 
coordinated way. He may also become the Chairman of the Party's 
Central Discipline and Inspection Commission. If this happens, 
Minister Zhou Yongkang will have unprecedented power in the 
administration of justice.
    My hope is that the president of the Supreme Court, Xiao 
Yang, will be promoted to the Politburo. He should have been 
put in at the 16th Party Congress. The fact is that there is no 
representative who represents the importance of law among all 
these engineers who run the Politburo, and therefore the 
development of China. But we do not know. A lot depends on 
future personnel changes.
    Chairman Hagel. Professor Cohen, may I interrupt just for a 
moment? If it is acceptable to you, we can include your full 
statement in the record. I want to make sure we have adequate 
time for questions. We have a large panel today and I would 
ask, again, if it is acceptable, if I could move to the next 
witness. We will place your complete statement in the record.
    Mr. Cohen. Could I make one long sentence, and then I will 
quit?
    Chairman Hagel. Yes.
    Mr. Cohen. Because this concerns you people. What can we 
do? I think the Congress should expand its current funding for 
support for the rule of law in China. The critical thing is 
that you must make it clear to the Department of State that you 
support fundamental research on problems such as, ``how did 
other countries around China develop genuine judicial 
independence? Why did it fail in previous efforts in China? '' 
Right now, they say they cannot support research, only training 
and exchanges. My argument is that this is all very vital, but 
it helps to know what you really should be training people 
about in order to get maximum bang for the buck. So I think 
research is fundamental. We do not know enough. And just as we 
used to have arguments whether the U.S. Government should 
support basic research in the sciences that was solved long 
ago. I think we should now solve the question whether you 
should support basic research on how to promote the 
administration of justice in China. Thank you.
    [The prepared statement of Mr. Cohen appears in the 
Appendix.]
    Chairman Hagel. Professor Cohen, thank you very much.
    Mr. Kamm.

    STATEMENT OF JOHN KAMM, EXECUTIVE DIRECTOR, THE DUI HUA 
                 FOUNDATION, SAN FRANCISCO, CA

    Mr. Kamm. Chairman Hagel, distinguished Members of the 
Congressional-Executive Commission on China. It is always a 
special occasion for me to address the Congress of the United 
States.
    I began my work in the field of human rights in China in 
May 1990, the month that I made my first intervention on behalf 
of a political prisoner and the month in which I gave my first 
testimony to Congress on China's human rights record and U.S.-
China relations.
    I am especially pleased to be here for today's important 
hearing. I was one of the first advocates of establishing this 
Commission, and Dui Hua enjoys a close relationship with it. 
The Chairman and other Commissioners have been of great help to 
our work. Thank you.
    For several years, Dui Hua has been conducting a worldwide 
search for the names of individuals detained in political cases 
in China since 1980. Our database has information on more than 
11,500 such individuals, of whom about 3,100 are currently in 
prisons, labor camps, or other places of detention. Many whose 
names are in the database are not imprisoned, though they are 
hardly free. We know of but a small percentage of the 
population of those persecuted in China for political and 
religious reasons.
    We use the database to raise the names of detainees with 
Chinese officials and make lists that are submitted to 
departments of the Chinese Government. A key recipient of our 
lists has been the Ministry of Justice, which runs China's 
prisons and reeducation through labor camps.
    Through a unique relationship spanning a period of 15 
years, 
requests for information on about 1,000 individuals detained in 
political cases have been submitted. Information on hundreds of 
prisoners, many of whose names we discovered, has been 
obtained. Lives have been saved.
    The Chinese Government has now decided to close this 
channel. The Ministry of Justice has said it will not meet me 
any more unless I agree to stop raising names and submitting 
lists. This, I cannot agree to do. The Justice Ministry's 
position overturns years of cooperation in prisoner accounting, 
cooperation that has enjoyed the support of leaders, officials, 
and legislators in both countries, and especially in the 
Congress of the United States.
    It violates China's own policy of conducting human rights 
dialogues on the basis of mutual respect, and represents a 
setback to the principles of transparency and open governance. 
It directly contradicts President Hu Jintao's recent statement 
that China is prepared to enhance dialogue and exchanges with 
the United States on human rights. Eliminating a unique program 
of cooperation is not enhancement, it is a big step backward.
    Dui Hua will always find ways to put cases we uncover in 
front of the Chinese Government. We will work more closely with 
the United Nations, with the governments of countries that have 
human rights dialogues with China, with cities and states that 
have sister relationships in China, and, most importantly, with 
members of this Commission. We will find ways to contact 
Chinese NGOs working to build a civil society.
    Dui Hua looks forward to the day when Chinese NGOs will 
themselves be able to work effectively to secure information 
and better treatment for political and religious prisoners and 
deal with other human rights issues.
    Dui Hua also looks forward to the resumption of the U.S.-
China official dialogue on human rights. When and if the two 
governments resume the dialogue, we will be ready with a list.
    Various reasons have been put forward for why the Chinese 
government has clamped down on information relating to 
political dissent and public protest, both of which are growing 
at least as fast as the much-vaunted economy. I think the most 
plausible explanation has to do with the senior leadership's 
fear of a ``Color Revolution'' that would topple the rule of 
the Chinese Communist Party, just as other revolutions have 
done to regimes in the Middle East, Central Asia, and the 
former states of the Soviet Union.
    Dui Hua is an NGO monitoring political crime and public 
protest. That it should be targeted in the campaign to oppose 
the ``Color Revolution'' when so many other smokeless guns are 
being silenced is not surprising. But what makes Dui Hua's work 
seem especially threatening is that it has worked for, and then 
publicized, the release of dissidents and activists, not a mere 
handful, but hundreds.
    Our work has had the cumulative effect of helping to reduce 
the fears and inhibitions of those standing up for their 
rights. The Chinese Communist Party has a problem: the Party is 
more and more afraid of the people, but the people are less and 
less afraid of it.
    Here is how the New York Times' Nicholas Kristoff puts it:

    The basic problem for Mr. Hu is that incentives have 
changed over the last half-dozen years, encouraging more 
challenges to the system. As one dissident told me, ``In the 
past, getting in trouble would mean a 10-year term in prison, 
alone and forgotten. Now if I go to prison,'' he said, ``I will 
get out after a year and I will be a hero. True, some people 
are sent to prison longer, like my colleague Zhao Yan, but few 
people seem much intimidated.''

    Mr. Chairman, I would like to sum up. In Britain's darkest 
hour, Winston Churchill addressed a group of officers aboard a 
warship. He asked what you would get if you put the most 
gallant sailor, the most intrepid airman, and the most 
audacious soldier together at the same table.
    Today we might ask what you'd get if you put the most 
gallant rights defender, the most intrepid underground priest, 
and the most audacious journalist together at the same table in 
China. The answer would be the same: ``the sum of their 
fears.''
    Those inside and outside China who labor to bring rule of 
law and respect for human rights to that great country have 
achieved something of special value. By doggedly seeking 
justice for those imprisoned for what they believe in, we have 
helped reduce the fears of those working for change. This is 
our legacy, and it is one that your Commission can be proud of. 
Now is the time to redouble your efforts.
    Thank you.
    [The prepared statement of Mr. Kamm appears in the 
Appendix.]
    Chairman Hagel. Mr. Kamm, thank you. I would remind each of 
the witnesses again that your full statements will be placed in 
the record.
    I have been asked by one of our members, Senator Brownback, 
if he could interrupt the proceedings for a couple of minutes 
to make a statement. He is supposed to be in a Judiciary 
Committee hearing now, and I have agreed with that request. So 
at this point we will go to Senator Brownback, and then come 
back to the witnesses. Thank you.

STATEMENT OF HON. SAM BROWNBACK, A U.S. SENATOR FROM THE STATE 
 OF KANSAS, MEMBER, CONGRESSIONAL-EXECUTIVE COMMISSION ON CHINA

    Senator Brownback. Thank you, Mr. Chairman. Senator Hagel, 
thank you very much. I am sorry to do this. For other causes 
and calls that I have, I will not take too long. I do ask that 
my full statement be submitted into the record.
    Chairman Hagel. It will be.
    Senator Brownback. Mr. Chairman, I think we are at a very 
important juncture here. I think there has been a lot of 
progress that has taken place in China, and I outline that in 
my statement. But I think what you are seeing now is the 
summation of the fears of the Chinese Government. Instead of 
there being the rule of law, they are using the rule by law.
    Professor Cohen was saying that he asked why could he not 
go see his friend? Well, because ``I am the policeman.'' That 
is the rule by law, not the rule of law. I think we are seeing 
a fearful government resort to the use of rule by law to 
sustain their own power. We are seeing more and more of this 
suppression and oppression taking place.
    To me, this is the time for us to push more aggressively 
and more specifically and directly at the Communist government. 
That is the group that is doing this. That is the group that is 
using the law to sustain their own power and ignoring the law 
when it does not sustain their own power. I think we need to 
have a discussion of the regression by the Chinese Communist 
government. Mr. Kamm, who I have met with over the years--and I 
admire greatly your work, and more, even the people on the 
ground in China that you work with, and people that have gone 
to prison--who have done a great deal to try to connect the 
United States and China, and working that back and forth, are 
now being shut out by this country. I think it is important for 
us to go directly at the regime.
    One final point on this. This is a bit of a sidebar, but I 
think it is also an indicator of the problems you get when a 
regime operates the way this one does. I have worked with North 
Korean refugees for some period of time. We have had the first 
group come out from North Korea, being accepted into the United 
States as refugees. The women in this group say, 100 percent of 
the women that walk out of North Korea into China are 
trafficked. They are caught by somebody local in China, they 
are told by their Chinese captors, their hunters, that ``you do 
what I say or we are turning you in to the Chinese authorities, 
who will send you back to North Korea and you will end up in 
the gulag, and you know what happens there.'' One hundred 
percent of the women are caught, then sold to some Chinese man 
who tells them the exact same thing: ``do what I say or else I 
am turning you in to the authorities. You will be sent back to 
North Korea to the gulag, and you know what happens there.''
    This is because China is refouling and breaking an 
international human rights obligation that they have, and then 
you get this trafficking that takes place because of that. It 
is the regime that is doing this.
    I only point it out as one of a number of cases of what you 
are seeing of when a country violates its own laws, the human 
rights of its own citizens or people that are there, that you 
continue to see the deterioration taking place. That is why I 
applaud this hearing.
    I applaud the Report for its footnoting, but I think we are 
weak on our conclusions. I think we need to press the Chinese 
Government, the Communist government, much more. That is why my 
vote will be against the report, although I do appreciate the 
effort of pulling together, I think, a very strong narrative in 
this report. I think it is very good in that result, in that 
part. But I think the recommendations need to go right at what 
the government itself is doing and really press that government 
for more change.
    Mr. Chairman, I want to thank you as well, again, for 
allowing me to break in at this point to say that. I appreciate 
that, and appreciate the hearing.
    [The prepared statement of Senator Brownback appears in the 
Appendix.]
    Chairman Hagel. Senator Brownback, thank you.
    We will resume hearing from our witnesses.
    Dr. Pei.

  STATEMENT OF MINXIN PEI, DIRECTOR, CHINA PROGRAM, CARNEGIE 
       ENDOWMENT FOR INTERNATIONAL PEACE, WASHINGTON, DC

    Mr. Pei. Thank you, Mr. Chairman and members of the 
Commission. I feel very honored to be here today as a witness 
to this Commission. This Commission's work is very important 
for those who want to see a China that is not only economically 
prosperous, but politically democratic.
    Like many observers of developments in China, I have 
watched with increasing concern recent trends that indicate 
deterioration in human rights conditions and stagnant progress 
toward strengthening the rule of law. While today's China is a 
much kinder and gentler nation than it was before the reform 
period began, and we should give the Chinese people and pro-
reform forces in the Chinese Government all the credit for 
achieving such amazing progress in poverty reduction and 
expansion of personal freedoms, we must also recognize that the 
pace of improving political rights for Chinese citizens and 
strengthening the institutions of the rule of law has lagged 
significantly behind the speed of economic progress.
    In recent years, the process of political liberalization 
has stalled, even as the Chinese economy continues its rapid 
rise. In today's testimony I will briefly focus on the 
underlying causes for the deterioration of political rights and 
stalled progress in China.
    In my judgment, recent symptoms of rising social unrest may 
be only a partial explanation for the government's intensified 
efforts of social and political control. The more important 
causes for China's backslide on human rights and the rule of 
law originate from a combination of factors that, together, 
reduce the ruling elite's incentive to pursue political reform, 
while increasing their capacity for political control.
    China has fallen into a classic transition trap at the 
moment. The current stage of transition, with half-finished 
economic reform and minimal political reform, provides an ideal 
situation for the ruling elites who can maintain power with a 
mixture of economic performance, political cooptation of new 
social elites, and the increasingly effective application of 
political control.
    Economically, the strong growth record since Tiananmen has 
reduced the pressure on the Chinese Government to pursue 
democratic reforms. Indeed, it has even provided justifications 
for a hardline position on human rights.
    More importantly, because under one-party rule China's 
political elites can easily convert their political power into 
economic wealth, they have even less incentive to permit 
greater political competition. It is obvious that democratic 
reforms will threaten not only their political monopoly, but 
also their newly acquired economic wealth.
    At the same time, the Chinese Government has been adapting 
itself very skillfully to new socioeconomic changes. It has 
done so, first, by including social elites such as 
professionals and intellectuals into the ruling circle. In 
addition, it has also managed to 
co-opt new social elites, especially private entrepreneurs. 
This strategy has eliminated challenges to the Party's 
authority from the most well-endowed and capable elements in 
Chinese society.
    Over the last decade, the Chinese Government has also 
greatly improved its capacity for suppressing both political 
dissent and social unrest. It has done so by heavy investment 
in law enforcement and technology. These strong capabilities, 
unfortunately, seem to have convinced the Chinese leadership 
that a tough approach to dealing with political dissent and 
social frustrations is a more effective way than political 
negotiation, compromise, and democratic 
reforms.
    As long as this combination of factors persists, it is very 
unlikely that human rights will improve in China, nor is it 
likely that the rule of law will be strengthened.
    But the picture is not all that gloomy. Despite the Chinese 
Government's unrelenting efforts to control the mass media and 
limit the growth of democratic forces, Chinese society 
continues its amazing change. At the moment, it is not possible 
to form a broad-based democratic opposition to challenge the 
authority of the party, but the spread of personal freedom, the 
information revolution, and market forces is creating a more 
conducive environment for social pluralism in the long run.
    So, finally, I would like to strongly applaud the 
professionalism and outstanding work of the staff of the 
Commission that has produced this document. The situation in 
China is unsatisfactory at the moment. I think the only means 
available to us to pressure the Chinese Government is through 
combined efforts from Congress and the Administration, and this 
report is a great example of that kind of effort.
    Thank you very much.
    [The prepared statement of Mr. Pei appears in the 
Appendix.]
    Chairman Hagel. Dr. Pei, thank you.
    Mr. Xiao.

STATEMENT OF XIAO QIANG, DIRECTOR, CHINA INTERNET PROJECT, THE 
  GRADUATE SCHOOL OF JOURNALISM, UNIVERSITY OF CALIFORNIA AT 
                     BERKELEY, BERKELEY, CA

    Mr. Xiao. Thank you, Mr. Chairman and distinguished 
Commission members. It is a privilege for me to speak in front 
of this 
important Commission, and alongside of my distinguished fellow 
panelists.
    I particularly want to echo what my colleague Pei Minxin 
just said of his analysis of China's political situation. I 
fully support that.
    Today, my talk will focus on two things, the growing 
information flow on the Chinese Internet, and the Chinese 
Government's intensified control in this regard.
    In China, every number is huge. On the Internet, over 130 
million Chinese are online, 440 million cell phones are in use. 
Now I am talking about the blogosphere. In January 2005, China 
estimated to have around 500,000 bloggers. By the latest 
survey, it is 28 million blogs. This significant growth is 
mainly due to the fact that the main China Internet portals, 
such as Sina.com and Sohu.com, are actively promoting blog 
applications among the 130 million Chinese Internet users.
    But it is worth noting that all these Internet companies 
are funded through venture capital from the United States and 
are listed, or aiming to be listed, on the NASDAQ stock market.
    The unintended effect is that Chinese citizens now have a 
platform to create a public space to discuss political and 
public affairs, as well as creatively expressing themselves and 
form social networks online or offline.
    Mr. Chairman, online discussions are currently becoming a 
real phenomena that is starting to have real agenda-setting 
power. The Chinese Government has devoted enormous financial 
resources to set out government-sponsored Web sites at all 
levels of government. Before the blogs, about 10 percent of Web 
sites were directly set up by the government. However, the 
problem is that the Chinese netizens do not believe those 
propaganda efforts, and the blogs and BDS are far more popular 
than government Web sites.
    This leads to my second point. The Chinese Government has 
intensified control of the Internet. This effort is well-
documented. I particularly want to praise the Commission's 
report this year, which has excellent documentation of the 
control measures.
    But I want to just focus on two telling examples of this 
important component of this Internet control, as has been said 
by my co-panelist, John Kamm, and that is about fear.
    In January 2006, the Shenzhen Public Security Bureau 
created animated images of a pair of police officers name 
``Jingjing'' and ``Chacha.'' They sound like panda names, but 
they are two virtual police images, floating online on the Web 
sites. Anybody can click through to the police Web site and can 
report anybody else. According to the Chinese official e-
Governance Net Web site, it said, ``The main function of 
Jingjing and Chacha is to intimidate. . . . The Internet has 
always been monitored by the police. The significance of 
Jingjing and Chacha's appearance is to publicly remind all 
netizens to be conscious of the safe and healthy use of the 
Internet, to self-regulate their online behavior, and maintain 
harmonious Internet order together.''
    Another important method to monitor Internet activities is 
to use real-name registration. In June 2006, the Ministry of 
Information Industry ordered all weblogs and Web sites to 
register with government or face closure. This registration 
will impose a true-name system on Web site owners. After 
registration, one must display an electronic verification mark 
in a specific location on the Web site, and it must also link 
to the Ministry's supervision system for making inquiries. By 
doing so, the identity of a Web site owner will be immediately 
clear.
    These examples reveal that the Chinese Government has 
learned to turn the digital and transparent properties of 
Internet technology into a surveillance and intimidation tool 
to control citizens' behavior. The underlying mechanism works 
to instill fear among netizens that they are being watched.
    Of course, these new technology-empowered control 
mechanisms are only effective when they are used together with 
intimidation in the physical space. In the past two weeks, 
three cyber-dissidents have been arrested.
    Mr. Chairman, distinguished Commission members, let me put 
it this way. For China's one-party state, controlling the 
nature of the information available to its citizens has never 
been more difficult. Tens of millions of netizens are now 
empowered by the new publication platform, and what is 
happening in the Chinese blogosphere is a power shift, not 
directly at the level of political institutions or law, but 
around the change of communication systems and ability to shape 
information and symbolic environment. But the long-term 
survival of the Chinese Communist Party's power monopoly regime 
also critically relies on its ideological work and the control 
of this environment.
    In the near future, we will see more and more efforts by 
the Chinese Government to control the information flow, online 
or offline, under this control, using the mechanisms listed in 
the Commission's report and the examples I mentioned above. But 
a deeper problem is that the Chinese Communist Party itself is 
morally bankrupt and intellectually exhausted.
    As Professor Cohen said, there is a younger generation with 
higher ideals. What are the ideals? The ideals are democracy, 
human rights, rule of law, those that we all believe in 
together. When they gradually rise into positions, and these 
ideals and ideas are being facilitated by the new emerging 
communication platforms, we can see, in long-term, the Chinese 
censors cannot stop the rise to a freer Chinese society.
    Finally, I just want to say that the U.S. Government should 
be a more active player in the development and employment of 
anti-censorship technologies, which will not only help the 
Chinese people to gain direct access of information to the U.S. 
Government-sponsored Web sites, but also contribute to the 
greater information flow in Chinese cyberspace.
    The Great Firewall, no matter how advanced its technology 
and how much fear the government is trying to instill, will 
crumble, and much sooner than the Great Wall. Thank you.
    [The prepared statement of Mr. Xiao appears in the 
Appendix.]
    Chairman Hagel. Mr. Xiao, thank you. Thank you again to 
each of our witnesses for your helpful and enlightening 
testimony.
    We have good representation on the Commission this morning, 
so I would suggest that we take, each of us, five minutes for 
our first round of questioning. We will stay as long as the 
witnesses will stay with us to answer questions, if that is 
acceptable. Thank you.
    I will begin, Mr. Xiao, with your ending comments. I want 
to focus on the Chinese Government's blocking, in particular, 
of the Web sites of foreign news organizations and human rights 
organizations. As you probably know, in May of last year the 
Chinese Government began blocking this Commission's Web site 
from being viewed in China.
    I have a two-part question. How does the Chinese Government 
determine which foreign Web sites are to be blocked?
    Mr. Xiao. Essentially, they pay attention to the 
politically sensitive materials far more than any other Web 
sites, such as pornography, which they are only halfheartedly 
trying to block. For a 
particular Web site, the criteria is usually coming from 
Chinese language content, first. The Hong Kong news media, 
Taiwan news media, the BBC Chinese site, the Voice of America, 
Radio Free Asia, and the Chinese dissidents human rights 
organizations and other overseas publications.
    Then, the second priority is English-language news media, 
but with content that they feel is ``politically undesirable.'' 
I think the Commission Web site falls in that category. 
Particularly if you have your materials translated into 
Chinese, then it falls into the blacklist right away. The 
problem with that also is that there is no clear procedure. 
They never say which ones are blocked, and also once a Web site 
has been blocked, there is no way to get it off the blacklist 
either.
    Chairman Hagel. The second part of the question is this, 
what actions can the U.S. Government or the international 
community take to circumvent this government censorship?
    Mr. Xiao. Fortunately, the Internet, by nature, is a 
decentralized technology. Those information packets can travel 
in every direction. The later applications of pure technologies 
and proxies are relatively easy and inexpensive to get around 
the firewall, as long as those applications are being more and 
more adopted by the Chinese netizens. We need a certain amount 
of financial resources to develop those technologies to support 
a number of those kinds of activities and projects, but the 
impact with this investment is totally worth it.
    On the number, you will probably only see a small portion 
of Chinese Internet users actually using this technology to get 
around the firewall, only the tech-savvy ones, only the ones 
who use the Internet a lot. But these are the people who have a 
much larger audience in China, so you do not need 130 million 
Chinese people using this, all you need is 100,000 people 
actively using it. But these are the 100,000 people who are 
journalists, teachers, and freelance writers who have a greater 
impact on their opinion leaders in China's cyberspace.
    Chairman Hagel. Thank you.
    Dr. Pei, given the current state of freedom of expression 
in China, and each of you have discussed this issue in some 
detail in your testimony this morning, how much freedom of 
expression and freedom of the press do you expect for the 2008 
Beijing Olympics?
    Mr. Pei. I think there will most likely be a period of 
intensified control around the Olympics that is for the purpose 
of maintaining stability, because it is crucial for the Chinese 
Government to maintain social and political order. Their mind-
set is such that they believe control equals stability, so that 
is going to be expected.
    However, if you look at the Chinese press as a whole, you 
will find that in a cultural sphere, and now increasingly in 
the business sphere, there is a lot more freedom. The sphere of 
control that the government continues to monitor and control 
very tightly is just strictly the political sphere.
    Chairman Hagel. Thank you. Mr. Kamm, the same question, if 
you would care to add anything to what you heard regarding the 
2008 Beijing Olympics.
    Mr. Kamm. I would agree with Dr. Pei. I think there will be 
an attempt to increase controls in the name of stability. I am 
not very confident that the Chinese Government is going to be 
very successful. I have heard various figures that 20,000 
foreign journalists will be in the country. There will be a lot 
of reporting that those journalists do that have very little to 
do with the Olympics, per se.
    As recently as a few weeks ago, the Chinese Government has 
once again stated that it will allow journalists freedom to 
move around the country and write about whatever they want. But 
I do anticipate that, in line with the current campaign against 
the ``Color Revolutions,'' that they will, in fact, impose new 
strictures on the press and on foreign journalists.
    Chairman Hagel. Thank you.
    Professor Cohen.
    Mr. Cohen. It can be noted, however, that recently foreign 
journalists--regulations--some of them are being subjected to 
requests for strip searches and things of that nature.
    The Foreign Correspondents Club of China is very concerned 
about it and has recently put out a special bulletin because so 
many foreign journalists have actually run into new 
restrictions in practice.
    Chairman Hagel. Thank you.
    Congressman Leach.
    Representative Leach. Well, thank you, Mr. Chairman.
    I want to raise kind of a bedeviling issue for us on 
tactics. I think we are obligated to record, to the greatest 
extent possible, every abuse of the human rights circumstance 
that we can discern. But then we have the problem of advocating 
for the individual. One has the sense that in the human rights 
arena, in many countries, over many years, advocacy from this 
country has been helpful. But one also has the sense, in the 
last two or three years in China, that if one takes a specific 
individual and advocates for that individual, it is 
counterproductive for that individual.
    This raises a very interesting question of where we should 
come down on individual cases. I mean, that is, describing the 
big picture, with the reference to every individual's 
circumstance in a report is one thing. Going to an official and 
saying, ``Individual XYZ should be taken out of jail,'' it 
seems that that causes a spine-strengthening on their side.
    Do you have that sense, Mr. Kamm, Dr. Pei?
    Mr. Kamm. I would say, until very recently, I do not have 
that sense. But I do think very recently--in fact, in the last 
few weeks and months--the Chinese Government might be 
attempting to 
disabuse us of the notion that by raising cases, the fate of 
those people is improved.
    In my written testimony, you will see that I have done an 
analysis of a prisoner list that former Assistant Secretary of 
State Lorne Craner handed over five years ago exactly. If you 
look at what happened to the people on that list who were in 
prison at the time the list was handed over, you will find that 
they enjoyed a rate of early release from prison three times 
greater than other political prisoners who were not on the 
list.
    I could give you many other examples where people who are 
on lists, who are repeatedly raised with the Chinese 
Government, are better treated, and get early release.
    In addition to what I pointed out in my testimony, that 
this has had the cumulative effect of making people less 
fearful, I would point out that some of the people who, through 
advocacy, have been released, such as Rebiya Kadeer, have 
become extremely effective spokespeople for their causes in 
China.
    But I am concerned that recently it has come to my 
attention that some prisoners who are the focus of 
international attention may, in fact, not be getting better 
treatment.
    Representative Leach. Dr. Pei.
    Mr. Pei. I want to add two points. First, I think we really 
do not know. If there were not that kind of international 
attention, their plight might have been even worse.
    The second point I want to make is that in the last two 
years the United States has lost a great deal of leverage vis-
a-vis China about human rights issues. The United States, in 
fact, needs China more than before on Korea, Iran, and a bunch 
of other issues, on economic issues, and the symbiotic economic 
relationship has grown much tighter. The Europeans are also in 
a similarly weak position vis-a-vis China. So as a result, that 
kind of attention is not producing the desired outcome.
    Representative Leach. Mr. Cohen.
    Mr. Cohen. In criminal cases, the hardest judgment for 
every Chinese family of someone who has been detained is 
whether or not to go public. Chinese do not like to wash their 
laundry in public. Normally they want to try to handle things 
quietly, informally in the Chinese way.
    But for serious cases, at some stage, usually after a 
formal arrest has been announced and it is clear prosecution is 
going to go ahead, Chinese families then decide the time has 
come to go public.
    Now, just as the two previous speakers have made clear, a 
lot depends on the timing. In 2000 and 2001, when the Congress 
had to decide whether or not to grant China permanent Most-
favored-Nation [MFN] treatment, we had maximum leverage. I 
looked pretty good getting people out of jail. But now the 
Chinese Government does not have that kind of situation. They 
feel more confident. They do not want us to see that we can be 
successful by naming different people.
    A good example is Yang Jianli, the democratic organizer 
from Boston who made the mistake of going back into China after 
having been excluded for 12 years and using a friend's 
passport. He should have been sentenced to not more than one 
year, but they used the phony ID to give him five years. He is 
serving out that full five years. A lot depends also on the 
person's behavior. How compliant is the person while detained? 
How stubborn? So, there are a number of factors.
    But, generally speaking, we have less leverage. Of course, 
the 
origin of this Commission lies in the fact we recognize that in 
granting MFN permanently to China we would need new forms of 
leverage.
    Representative Leach. Fair enough.
    I apologize, on behalf of the House side. We have votes on 
the House floor at the moment, so Mr. Levin and I will have to 
leave. But thank you all very much.
    Representative Levin. Could I just add quickly, this has 
been an important hearing. I think it emphasizes, within our 
ranks, if I might put it that way, there is less question about 
the facts and more concern about what we do about them.
    Senator Brownback has said he thought the suggestions or 
the recommendations were not strong enough. We did some work 
preliminarily to try to work on that very issue, all of us. So, 
I do think it would be helpful as we proceed, and we must, that 
all of us work on the issue of how we approach the dynamics.
    I think that, while China is a huge country and it is not 
always clear what the facts are, the basic dynamics are pretty 
clear, the information revolution, the economic growth, but 
disparities. There are deep divisions within China now 
economically, so there is more turbulence. The question 
becomes, how do we most effectively affect that? The more help 
we can get, the better. Suggestions of research, development of 
new technologies to counter repression are good. But should we 
be spending more funds, for example, working with groups in 
Hong Kong or elsewhere who can affect China if we do not do it 
directly?
    All these suggestions, that is really what I think we need, 
practically, is to focus on how do we proceed from here, 
because, clearly, the whole purpose of this Commission was, as 
we engage China, as we must, we also have to confront, if I 
might use that word, China in terms of its development of 
political/religious freedoms. Thank you.
    Chairman Hagel. Gentlemen, thank you each for your active 
participation and contributions.
    Secretary Lavin.
    Mr. Lavin. Thank you, Mr. Chairman.
    Let me begin by complimenting all of the participants who 
provided testimony today. I found it a very useful overview of 
the issues we are looking at.
    I would like to begin by posing a question to Professor 
Cohen on the commercial dimension. It is an issue that we 
frequently grapple with at the Commerce Department. To what 
extent are the commercial elements of human rights part of the 
broader civil rights challenge? Do you subscribe to the view 
that improvement in commercial rights, property rights, and so 
forth can lead to broader improvement? Could you comment on 
that?
    Mr. Cohen. The growing recognition in China of rights 
consciousness, of the awareness that is growing, reaches 
property law. But you will notice the effort to enact a 
property law recently failed. I think it will succeed, but 
there is a big ideological debate going back to the remnants of 
the impact of earlier decades of Communist philosophy, as well 
as there are questions of people protecting their own economic 
interests, in some respects.
    But there is no doubt that property law, putting respect 
for property rights in the Constitution, having people trying 
to enforce commercial rights, not only foreigners but people in 
China themselves, this is important. We just had a new 
bankruptcy law after a long period of gestation. There will be 
an antitrust law soon. But the real problem is enforcement. You 
can enact all the laws you want and raise all of people's 
consciousness, but if you have not got credible legal 
institutions to enforce those rights, you only enhance people's 
sense of disappointment, frustration, and cynicism.
    So here is the common factor between commercial interests 
and those who are interested in political freedom being 
protected, et cetera. You have to have a credible court system, 
and you have to have a credible arbitration system.
    For 20 years, I represented foreign investors in China. We 
did not have anything to do with the courts because nobody 
wanted to have anything to do with them. They were not 
credible. So we used arbitration. But experience has shown that 
most--not all--of China's arbitration suffers from the same 
problems that the courts 
suffer from: incompetence, corruption, networks of 
relationships, influence, local protectionism.
    China has a crisis of legal institutions and those affect 
commercial aspects of life, as well as political freedom 
aspects of life. That is why I think it is critical to focus on 
ways of improving the functioning of the courts in China. 
Efforts to do that, whether for commercial reasons or others, I 
think, have a common benefit in all these respects.
    Mr. Lavin. Part of the discussion of human rights in China 
involves----
    Mr. Kamm. Well, in the particular work I do, I have not 
found much support from the business community over the years, 
not to say outright opposition, but certainly almost no support 
at all.
    Mr. Cohen. You used to be a leader in the business 
community.
    Mr. Kamm. Well, that is right, but those days are long 
gone, I am afraid. Recently I have seen that in the American 
Chambers of Commerce in China, they have started corporate 
social responsibility committees. I was invited to speak to a 
small group of committee members recently in Shanghai. They 
are, in fact, more and more interested in the human rights 
situation, and I think that is something we can work on.
    Mr. Lavin. But I was thinking more indirectly, Mr. Kamm, if 
I may, just in the sense of--I am not sure how realistic it is 
for the companies to formally promulgate human rights points of 
view, but is the existence of multinational corporations [MNCs] 
in China, the way they treat people, the way they train people, 
the way they conduct business, does that process lend itself 
toward a general improvement in human rights in China or is it 
not relevant?
    Mr. Kamm. I look at the human rights environment in terms 
of two spheres. One is the overall picture, the overall 
environment which you document so well in the Commission's 
report. There, I do not see much impact in the overall general 
environment by multinational corporations.
    However, in the workplace, no question about it, workers 
who are in American-owned factories and American offices 
certainly are exposed to values of openness and transparency, 
good governance. This is a very good thing.
    I am particularly interested to see how Sarbanes-Oxley is 
going to be used in China in Chinese companies. I think it is 
going to pose a tremendous challenge as time goes on. But the 
very fact that when you go into a Chinese bookstore now, you 
will find the Sarbanes-Oxley legislation translated into 
Chinese and available for people to read. That is a good thing. 
So, that is how I would address that question.
    Mr. Lavin. Thank you, sir. Thank you, Mr. Chairman.
    Chairman Hagel. Secretary Lavin, thank you.
    Since we have a vote called, I am going to recognize 
Senator Martinez, with your permission, so he can ask his 
questions and then go vote, then we will come back to you, Mr. 
Secretary. Thank you.
    Senator Martinez.
    Senator Martinez. Thank you, Mr. Chairman, very much. I 
want to thank all of the witnesses, and also praise this 
important report. I know it will make a great contribution to 
our future analysis.
    I tend to associate myself with the remarks of Senator 
Brownback in terms of ``where do we go from here? '' being the 
real important question. There are a number of things I would 
love to delve into, but I will try to organize my thoughts and 
zero in on a couple that are particularly of interest to me.
    I am concerned about this condition of prisoners. I know, 
Mr. Kamm, your foundation works in this arena, so I wonder if 
you can tell us whether there are any signs of progress or 
improvement beyond whatever the report may show, but just to 
highlight here today for me, not having read the whole report, 
as to what those conditions may be and what the prospects are.
    Are there international visitors permitted, such as the 
International Red Cross, particularly with the prisoners of 
conscience, those that are really in prison only for their 
beliefs?
    Mr. Kamm. A really ground-breaking visit took place in 
China, Senator Martinez, at the end of last year. The U.N. 
Rapporteur on Torture was allowed into the country and he 
produced quite a good report. The report basically says that 
torture in China remains widespread, but it appears to be 
declining in urban areas. He goes directly to your question 
about whether conditions are improving. I would summarize the 
report to say that, as far as the detention centers are 
concerned, and that is where people are held in detention for 
long periods before being brought to trial, we do not see 
improvement. In fact, it is probably getting worse.
    As far as the prison system is concerned, since 1994, since 
there has been a prison law, I have seen some improvements. 
There are certainly many problems. By the way, the 1994 prison 
law, I do think, was in some respects occasioned by the whole 
debate about MFN in this country.
    Now, with respect to the international community, the Red 
Cross is still not allowed into China's prisons. There have 
been discussions held on that issue for more than 12 years and 
they have so far not resulted in an agreement. That is how I 
would summarize.
    Senator Martinez. It is encouraging that one group has been 

allowed in.
    Mr. Kamm. Well, the Working Group on Arbitrary Detection 
has been in twice, and the Rapporteur on Torture has been in 
once. That is what we have so far. And the Rapporteur on 
Torture was able to interview political prisoners, and some of 
those interviews made it into the final report. So, that is a 
step in the right direction, but it really has been just one 
visit like that.
    Mr. Cohen. But he made clear that he interviewed under 
constraints and his report was so strong and so critical, I 
think it is going to be a long time before they let him back in 
again.
    Mr. Kamm. Probably right.
    Senator Martinez. The issue of organ harvesting among 
executed prisoners. I wonder if either you, Professor Cohen, or 
Mr. Kamm can comment on where we are on that and how prevalent 
is the practice? Are there any human rights standards that are 
being followed or observed as it relates to that?
    Mr. Cohen. This is, of course, one of the most 
controversial questions. The Falun Gong has made the most 
serious accusations against the government. Thus far, we have 
not found that substantiated. The lack of transparency in China 
makes it very difficult to know what is going on. They have 
passed regulations that, on the face of the regulations, forbid 
illegal harvesting. But my impression is that it is going on. I 
do not know whether you could say there is an economic 
incentive to go on executing so many people, in part, because 
obviously clear benefits are coming to certain agencies and 
people from organ harvesting. Of course, benefits also incur to 
the people who are the recipients of the organs, which are in 
scarce supply outside of China. But this is a very difficult 
problem. The Chinese Government has not allowed sufficient 
transparency. We do not know how to answer accurately some of 
the very controversial charges that are being made.
    Mr. Kamm. I would simply add here and repeat something that 
Professor Cohen said in his opening remarks. We do not know how 
many people are executed every year in China. It is a very 
closely held state secret. I tried, on my most recent trip, to 
get some idea of the number. There have been reports. One 
member of the National People's Congress said, I think two and 
a half years ago, that the number is about 10,000 per year.
    More recently, an individual said that he had been given 
the number--this is a Chinese scholar--by the president of the 
Supreme Court and the number is appalling. We simply do not 
know.
    I recently found the first-ever county-level report with 
statistics on the number of individuals executed in that county 
between 1950 and 1999. If you extrapolate from that number--and 
I am told it is not a representative county--the number would 
be closer to 20,000 executions.
    Senator Martinez. Per year?
    Mr. Kamm. Yes. If you extrapolate from that number. Now, I 
think it is not a representative county. It is in a border 
region and there is a lot of drug smuggling going on. The 
execution rate in that county is probably higher there than 
elsewhere. But I am convinced that the number for the country 
as a whole is well in excess of 10,000.
    Finally, I want to say that we are facing a particularly 
serious situation over the next few months. This is the 
execution season in China. People are typically executed toward 
the end of the year in China. Right now, the Supreme Court has 
had the power of review returned to it, but it is not 
exercising that power of review. In my opinion, if and when 
they do exercise that power of review, many people will not be 
executed. So it is extremely urgent that the Commission and 
members of the Commission press hard that this important reform 
be instituted quickly, otherwise I fear hundreds of people will 
lose their lives; innocent people who have been convicted 
without due process rights will be executed. This is a very 
urgent situation.
    Mr. Cohen. For that reason, some lawyers have suggested an 
Illinois-type moratorium until the Supreme People's Court's new 
review procedures can be set in place. It does not look like 
the Supreme People's Court is likely to accept that. I 
mentioned this issue in my written statement.
    Senator Martinez. I have to go vote. But let me just say, 
there are a number of other questions I would like to touch on, 
but am limited by having to run to the floor to vote. I think 
it is really 
important that we talk about these issues.
    I would love to know more about the development of civil 
society and the opportunities that there are for that. I think 
it is also terribly important that information and the free 
flow of information be maintained and continued. Internet 
access, I think, is a vital way in which, in our current times, 
people can, frankly, find forums of discussion and support, so 
I think it is vitally important to continue that work.
    I also would love to discuss this further with you, Mr. 
Xiao, in terms of how it might be utilized in a place very 
close to my own heart, which is Cuba, which has great 
similarity to all of the issues that we have been discussing 
here with respect to China today.
    One big difference is that we do not trade with Cuba. I am 
often asked why we do not trade with Cuba when, in fact, we 
trade with China. That question I usually answer by saying 
``Well, I wonder whether that is improving the conditions of 
the people of China by our continued business with our 
conscience.'' I think it is a real problem.
    So I think as we continue to flourish in our bilateral 
relationships in trade and commerce, and as we go to the store 
and find the ``Made in China'' label on just about every other 
thing that we purchase, we should not wonder what the 
obligation is of those of us who engage in commerce with China 
to end these heinous practices, or at least raise our 
conscience to a level to cause us to 
wonder if it is all right and everything is fine, and China is 
the prosperous country that we all know it is. The Olympics are 
going there, but yet something is very ``rotten in Denmark,'' 
to quote from William Shakespeare. Thank you very much.
    Mr. Lavin [presiding]. Thank you, Senator.
    With your permission, Representative Honda, we will ask 
Deputy Secretary Law to proceed with his questions.
    Mr. Law. Thank you, Mr. Chairman. I am pleased to see that 
we have rules for the peaceful transition of authority on this 
Commission.
    I first want to commend all of the panelists for truly 
cogent and penetrating testimonies. It has been a wonderful 
learning experience. I also want to thank each of you for your 
commitment, your personal commitment of time, treasure, and 
talent to this tremendous cause.
    I was particularly taken by a theme that was part of Dr. 
Pei's testimony, and my question will be directed at him. The 
reason I was taken by it is because it dovetails perfectly with 
the opening statement that I was going to give at the outset, 
which I would like to submit for the record. I would like to 
briefly summarize a few of the points I would make, which would 
then lead to the question.
    One of the questions we often ask ourselves is whether the 
glass is half full or half empty. Someone once wisely responded 
to that by saying that it depends entirely on how thirsty you 
are. When we try to assess progress on human rights in China, 
there are often two views. To some in the West who are eager to 
do business in China, the glass appears half full.
    But to those in China who are thirsting for freedom of 
speech, religion, and assembly, who are thirsting for the 
protection of an impartial rule of law, the glass remains half 
empty and appears at times, especially more recently, to be 
slowly evaporating.
    I want to extend my thanks to the Commission staff for 
assembling a report that gives due credence to both 
perspectives, noting the progress that China is making 
undeniably on certain human rights issues, as well as 
highlighting the disconcerting slippage that has occurred in 
recent months with respect to basic political freedoms.
    What is important to discern in all this is not individual 
anecdotes, but meaningful trends. One of the most significant 
trends, in my view is the growing intersection and overlap of 
fundamental human rights issues and larger economic interests. 
We see this vividly in the area where the Department of Labor 
is most directly engaged, and that is in labor rights.
    Increasingly, China's ability to institute basic wage 
protections, health and safety standards, and pension rights 
will be a key determinant in achieving both economic and civic 
stability. The Chinese Government knows this and has been 
fairly forward-leaning in seeking technical assistance from our 
department and in pursuing labor law reforms that can help 
quell mounting unrest over labor conditions in China. My 
written statement does list and enumerate some of the results 
of the progress we have made in that area.
    Another example of this trend is the growing nexus of 
freedom of speech, regulation of the Internet, transparency of 
economic information, which some of you have discussed, as well 
as respect for intellectual property.
    As freedom begets freedom, repression also begets 
repression. China's curbs on political dissent have slowly but 
surely metastasized to constrict the free flow of information 
on the Internet, 
access to the Internet, and unfettered economic reporting. Such 

restrictions not only impinge upon individual liberties, they 
also impede the effective functioning of China's own economy by 
discouraging the creativity, collaboration, and transparency 
that are the lifeblood of sustained economic growth.
    We raise these concerns and issues in this Report not to 
scold China or to claim moral superiority, and nor to disparage 
China's commitment to achieving continued progress on all these 
fronts. But as these issues of human rights and economic growth 
converge, China will increasingly discover that freedom is not 
divisible and the rule of law, not repression, is the best 
guarantor of prosperity and stability. Finally, those who 
currently see the glass as half full will begin to share the 
same perspective with those who see it today as half empty.
    Now my question for Dr. Pei, and anyone else who would like 
to respond. In your recent book, ``China's Trapped Transition: 
The Limits of Developmental Autocracy,'' you point out the 
strains between China's dualistic policy of pro-market economic 
growth on the one hand, and continued autocratic one-party rule 
on the other.
    In your view, is the Communist Party's dualistic strategy 
sustainable in the long term? How can we as policymakers best 
challenge that policy to promote greater, broader human rights 
and freedom in China?
    Mr. Pei. I believe this strategy is not sustainable for the 
long term, mostly because Chinese society itself is growing far 
more complex, plural, and it will require increasing 
investments in law enforcement and political control that 
simply are going to be unaffordable.
    The second part is that what has underwritten this strategy 
is continued economic growth. We cannot take for granted that 
China's economic growth will continue for the next two to three 
decades. That is because the current growth model itself is not 
only inefficient, but is producing imbalances that contribute 
to rising 
social and political strengths.
    Certainly, I think what is most important to know about 
China is the lack of values that will give both the people in 
China confidence, and also the members of the ruling elite the 
confidence that this system will work. From my own research, it 
is abundantly clear that there is not only a crisis of 
confidence on the part of ordinary citizens, but there is also 
a crisis of confidence on the part of the ruling elite.
    Mr. Law. Interesting.
    Yes?
    Mr. Xiao. If I could just add a little bit to what Dr. Pei 
just said regarding your question of whether the current ruling 
model is sustainable. I agree that in the long term it is not 
sustainable, and would add two factors.
    One is simple, but is important: the environment. China's 
economic growth has enormous environmental cost, environmental 
degradation, and that factor will get back to China's economy, 
and also its sociopolitical stability.
    The second, we have discussed a little bit less here, is 
the Chinese Communist Party, by nature, is the controlling 
force of the nation. Yes, it is ruled by law, but most 
importantly it is the rule by the gun and the rule by the pen. 
That is Mao Zedong's quote and it still works today.
    It is ruled by the violence, intimidation, and backing by a 
propaganda, ideological machine that the Party governs. That 
machine is really in crisis because of the Internet and other 
commercialization of official media. That is where the Chinese 
people cannot be fooled any more and that is where the Party is 
fighting a losing battle.
    Mr. Law. Thank you both. That is a very important point. 
That is the only question I wanted to raise. It does go, 
though, to a point that Mr. Kamm made earlier about the fact 
that, in recent years in particular, the business community has 
not been actively engaged on these issues, but slowly but 
surely as that business model becomes unsustainable, the 
business community will have to start to look more 
intentionally and be more engaged on these issues. Thanks.
    Mr. Cohen. Could I just supplement this with a reference to 
a question Secretary Lavin asked earlier that I did not chime 
in on about the impact of American cooperation with China in 
the business sphere?
    Although our hopes that this would produce more rapid 
political and legal reform have not yet been vindicated, I 
think the broader impact continues. The opportunities that 
foreign business provides through massive investment in China 
and technology transfer are a very important influence. The 
joint venture, the foreign-invested enterprise, is a mini 
university in a country that has not yet allocated sufficient 
resources to higher education.
    On the other hand, the business community in the United 
States and elsewhere seems blissfully unaware of the full 
weakness of Chinese legal institutions. I think it should be 
applying far more cooperation and pressure for improvement. 
Hundreds of thousands of contracts, literally, are made every 
year, most of which provide for arbitration of disputes in 
China. People who sign these documents often are crossing their 
fingers and closing their eyes, or are simply unaware of the 
risks involved. It is only when they do get involved that they 
see the weakness and the inadequacy. I think foreign business 
should be working harder with the Chinese to strengthen these 
institutions.
    [The prepared statement of Mr. Law appears in the 
Appendix.]
    Mr. Lavin. Thank you, Professor.
    Let me ask Representative Honda for his comments.
    Representative Honda. Thank you, Mr. Chairman. Let me, 
first, apologize for being tardy. I know that the expertise 
here is very global and it is very deep and profound, and I 
know that the witnesses have spent a lot of personal time 
getting here, so I just wanted to let you know that I apologize 
for being late.
    Having read the report that our Commission has put out, I 
am struck by its even-handedness and its objectivity. That is 
why I wanted to hear your testimony. Having heard some of the 
comments, some of the suggestions that Mr. Cohen had made, I 
guess my general question to all of you would be, given the 
kinds of directions that Congress has taken up today with 
respect to China, and Asia in general, and given our report, 
what are some of the other suggestions you would make for 
legislators to develop policies toward China in the different 
arenas, everything from the rule of law to business and the 
protection of intellectual property?
    You made one statement, that we should be engaging 
ourselves more, it sounds like, at the ground level in terms of 
us understanding what and how China does business in terms of 
contracts, contract proposals, and that sort of thing.
    Second, looking at a possibility which is highly 
improbable, by the sense that I got, to looking at the courts 
in China to suspend all death penalties until such time that 
they are all reviewed, which will have a better outcome, 
historically.
    Are there other kinds of comments and suggestions you could 
make to Members of Congress and the Senate as to what direction 
and what kinds of postures we should be taking in order to 
improve, and also to learn more?
    Mr. Cohen. There is one over-arching factor no one has 
mentioned, but we are all aware of. Robert Burns once said, 
``Oh, would the Lord, this gift He give us, to see ourselves as 
others see us.'' We are worried about human rights and law 
reform in China. The United States has generally stood for good 
things in the Chinese mind. But current events, especially the 
struggle that the Congress and the Executive Branch are in with 
respect to our government's treatment of people inside and 
outside this country--whether we will adhere to due process, 
the rule of law, the rights of suspects, the role of the court 
in independently reviewing arbitrary acts by the Executive 
Branch--people in China are very much aware of this if they 
have access to the Internet, the Voice of America, or Radio 
Free Asia.
    We cannot be hypocritical. We cannot say, ``Do as we say, 
not as we do.'' What Americans stand for in this world has been 
eroded, as many people realize. The most important thing 
Congress can do is really strengthen, once again, our soft 
power. Make the right decisions about the rule of law in this 
country.
    Representative Honda. Thank you. That sort of reminds me of 
the Scripture that says, ``How is it that you are worried about 
the splinter in my eye when you have a log in yours.''
    Any other comments? Yes?
    Mr. Xiao. I, first, want to absolutely support what 
Professor Cohen said. The U.S. Government's human rights record 
and actions themselves speak much louder than words, and that 
will only strengthen or weaken the power of the negotiations 
and dialogue with China's government.
    So the one thing the U.S. Congress must do is hold the 
highest standard of its domestic and foreign policy practices 
on the human rights standard.
    Second, regarding what I also suggest, I want to bring the 
Commission's attention to another important document, ``Race to 
the Bottom: Corporate Complicity in Chinese Internet 
Censorship,'' published by Human Rights Watch last month, which 
addressed issues of U.S. companies--actually, global Internet 
companies, but mainly U.S. companies--Google, Yahoo, Microsoft, 
and their role in reinforcing the censorship mechanism within 
China. The previous question was, ``These U.S. companies, are 
they problems or solutions for human rights? '' For those 
Internet information companies, they are both. They are a 
solution in terms of their being part of the information 
revolution in China. They provide technology applications and 
commercial incentive. But they are also part of the problem 
because, in order to get access to the Chinese market, they 
have to cooperate to some degree and be complicit with the 
Chinese censors.
    This has serious implications not only to the Chinese 
netizens, but to the world's information freedom and privacy. 
Earlier this year I was here at a different hearing, proposing 
the Code of Conduct approach for industry. I have been involved 
with multiple universities to draft the guiding principles for 
those industries and had the dialogues and working group with 
the companies, trying to push that collective action approach.
    However, if you read the Human Rights Watch report, it is 
important to stress the role of Congress, that legislation 
seems a necessary tool in order to move these things forward, 
because companies have incentives, but also disincentives to 
stand up against the Chinese Government. They need the 
protection and support from the U.S. Government. That is where 
I think the Congress can do something.
    Let me say very specifically what is going to help. We talk 
about the rule of law here. We talk about freedom of 
information. In China, the main control of information is not 
by rule of law, it is by self-censorship, by intimidation, I 
stress. So those companies, they censor something on the 
Internet not because the Chinese legal agencies gave them a 
list specifically explaining what needed to be censored. It is 
because they hired staff. They come up with a list of 
politically sensitive materials themselves under the guidance 
of the Chinese authorities. They over-censor as well, and they 
do not have a legally accountable document for this process. 
That is where the transparency and the rule of law works.
    The Yahoo buyer often says, ``Oh, we just follow Chinese 
law.'' Actually, a lot of their censorship is not following any 
real documented Chinese law. If you force them to make that 
transparent, it will protect these companies' operating 
environment, but it would also significantly actually change 
the censorship mechanism within China, which to me will be of 
great benefit to the Chinese netizens.
    Representative Honda. I appreciate your comment, Mr. Xiao. 
If what you are saying is that if the U.S. companies did not 
follow or interpret strictly what they thought might be law and 
they moved forward as you suggest, what is the impact on the 
end users if they exercise that level of flexibility from the 
central government in increasing prisoners of conscience?
    Mr. Xiao. The impact will be big. I cannot completely 
predict, because the censorship mechanisms are huge. It is not 
only about censorship of certain words or search results.
    But let us focus on the future words list. I am teaching in 
the school. In the U.S. mainstream media, there are certain 
words, seven or so, that you cannot really use. In the Chinese 
Internet, the list is as long as more than 1,000 Chinese words 
that cannot be used that are sensitive materials.
    But where does that list come from? That list is not 
necessarily directly transparently coming from any legal 
enforcement agencies in China. Do they ever make it public? No. 
Even when they order media or Internet companies to censor 
those words and contents, do they give a written record? Most 
times, no. So they themselves are afraid. Also, that is the 
mechanism of censorship, how that works. They want to also 
leave deniability for themselves.
    If we can push, just simply by the rule of law, corporate 
transparency, and social responsibility approach to force that 
as a transparent and legal process, I do not know if they can 
dare to show all the things they censor. That is like reading 
the psychological mind of what they are really afraid of.
    Representative Honda. So, if I may, what you are really 
saying is, through the pipeline, it should be agnostic and 
allow the end users to determine for themselves the shade and 
the content of their words and their terminology.
    Mr. Xiao. Right. The end users have much more creative ways 
to express themselves. But from the censor's point of view, it 
will cause incredible changes for them in how to control 
people's minds, which again, you are empowering the users and 
protecting the users, which, in the long term, is significant.
    Mr. Kamm. Congressman Honda, just two quick recommendations 
addressing your question.
    First of all, I have been coming here for many years, 
meeting with members, testifying. My impression is that in the 
past, members of the House, Senators, whenever they went to 
China they would raise cases, they would hand over lists, or 
when Chinese officials came here that would happen. My 
impression is that that is much less common now. Just reading 
from press reports of recent visits by important congressional 
delegations, I see a lot of interest in intellectual property 
rights and the situation in Korea, all of which is as it should 
be.
    But I would strongly recommend that Members of Congress 
return to the previous practice of raising cases and handing 
over lists. You have got an excellent database. You can 
generate lists very quickly and very professionally, and of 
course we can help in that respect, too.
    A second recommendation. My foundation has put together a 
list of more than 120 cities and States that have sister city 
and State relationships in China. That is a very good channel 
to raise human rights concerns with those places in China. When 
those cities host or send delegations to China, again, they 
should raise cases and concerns in those specific cities and 
provinces. In a couple of weeks I will meet with a city that 
has a relationship with a city in China, and they are willing, 
in fact, to do just that. So this is a specific recommendation 
that I hope the Commission might follow up on.
    Mr. Cohen. Could I just supplement that? Before you got 
here today, Congressman Honda, I discussed, among other things, 
the most pathetic case I know of, that of a blind, so called 
``barefoot lawyer,'' a legal activist who has been badly abused 
for over a year in China in Linyi City, a city, if you can 
believe it, of 10 million people. I had never heard of it 
before I met this man.
    Linyi City authorities have not only committed horrible 
abuses against him, but the reason he got involved was because 
of their illegal compulsory sterilization and abortion program, 
violating China's central laws for birth control, et cetera. 
Thousands of people were abused. He was protesting this.
    Now, a Linyi City delegation is coming here to D.C. next 
month to take part in a beautiful program at the National 
Arboretum. Are we going to let these people come here and 
manifest no recognition of the abuses they are committing? I 
hope not.
    Representative Honda. Thank you.
    Chairman Hagel [presiding]. Representative Honda, thank 
you.
    Any further questions?
    [No response.]
    Chairman Hagel. Gentlemen of the panel, we are most 
grateful for your helpful and insightful thoughts and analysis. 
You all have been very helpful to this Commission, and in 
particular, to our staff, over many years. We are grateful for 
that.
    As I noted earlier, your testimony and other comments, as 
well as the dialogue we have just had over the last hour and a 
half, will all be included in the record. We may have follow-up 
questions. I know we will continue our association with each of 
you, and we are grateful for that also.
    I also want to thank our staff for the good work they have 
done in producing a rather significant report, as well as all 
of my colleagues, for their personal involvement. Thank you 
very much.
    This hearing is adjourned.
    [Whereupon, at 11:15 a.m. the hearing was adjourned.]


                            A P P E N D I X

=======================================================================


                          Prepared Statements

                              ----------                              


                 Prepared Statement of Jerome A. Cohen

                           SEPTEMBER 20, 2006

    Senator Hagel and Other Distinguished Members of this Commission,
    All of us who focus on China's progress, problems and prospects 
with respect to human rights and the rule of law are grateful for this 
Commission's continuing interest and cooperation. Hearings such as 
today's and publications such as your just-released 2006 Annual Report, 
which offers a comprehensive, balanced and accurate account of recent 
developments, stimulate interest and spread knowledge about a vast, 
complex and important subject that receives too little public attention 
in both China and the United States. It would be wonderful if the 2006 
Annual Report could be published in China as well as this country.
    Striking the right tone for today's Hearing is a challenge. It has 
been over a year since my last appearance here, and this has not been a 
good time in China for either the rule of law or for human rights in 
the sense of political and religious freedoms, protection against 
arbitrary criminal punishment, the development of fair and independent 
courts and the growth of a free and vigorous legal profession.
    The picture is somewhat brighter if we focus on the role of law and 
legal institutions in promoting China's remarkable economic progress. 
The new and long-awaited Bankruptcy Law and the forthcoming Antitrust 
Law are recent examples of ongoing legislative progress, although the 
temporary failure of the draft Property Law reminds us of the 
ideological as well as practical and technical challenges confronting 
the National People's Congress in seeking to regulate bitter rural and 
urban land use disputes.
    Yet even commercial laws need credible enforcement. China's rapidly 
expanding institutions for legal education and scholarly publication 
are gradually improving the craft skills of the various branches of the 
legal profession. But the courts, the China International Economic and 
Trade Arbitration Commission and most, but not all, of the many 
municipal arbitration organizations continue to suffer from political 
interference, corruption, ``local protectionism'' and the corroding 
effects of personal ties compendiously described as ``guanxi.'' The 
impact of these serious institutional shortcomings will become more 
apparent as China's economy reaches a higher stage of development. 
Moreover, not all recent economic rulemaking has been positive in 
facilitating either foreign business cooperation with China or even 
unfettered distribution of purely commercial news.
    I am sure that my colleagues at this Hearing will analyze the 
continuing and extensive denials in practice of the freedoms to receive 
information, speak, publish, organize, assemble, demonstrate and 
worship that are enshrined, in principle, in China's Constitution. Here 
I will comment only on prospects for further legislative reform of the 
administration of criminal justice and relevant activities of Chinese 
courts and lawyers.

        PROSPECTS FOR LEGISLATIVE REFORM OF THE CRIMINAL PROCESS

    Chinese experts have long recognized that the 1996 Criminal 
Procedure Law (CPL) is in need of revision, clarification and 
elaboration. Several impressive academic drafts of a new law have been 
circulating in official circles for some time. Yet hopes that a new law 
might be enacted by the time of the Beijing Olympics in 2008 now appear 
to be receding. This new law was to accompany and implement China's 
long-awaited ratification of the International Covenant on Civil and 
Political Rights (ICCPR), which the People's Republic of China (PRC) 
signed in 1998. Ratification of the ICCPR--and implementation in 
accordance with its terms--would have a more profound effect on the 
PRC's political, legal and social systems than the PRC's entry into the 
World Trade Organization has had upon its economy. Undoubtedly for this 
reason, in what is plainly a very conservative climate for law reform, 
ICCPR ratification also seems to be retreating to the back burner of a 
leadership that has shown itself to be increasingly impervious to 
popular demands for due process in law enforcement. At least in the 
short term, the Politburo has decided to meet the spectre of social 
instability with harsh repression rather than legislative innovation.
    This is unfortunate since a large number of Chinese criminal 
justice experts from the judiciary, the procuracy, the defense bar, the 
Ministry of Justice, the Ministry of Public Security, the NPC staff and 
academic life have been making impressive efforts to develop a national 
consensus on a broad range of understandably contentious issues. Should 
suspects generally be granted bail during the investigation period 
instead of languishing in detention as at present? Should they have a 
right to keep silent and not incriminate themselves? Should a 
presumption of innocence be confirmed and its implications spelled out? 
Should defense lawyers be allowed to monitor police interrogations, 
conduct their own investigation prior to indictment and freely meet 
detained clients? What steps should be adopted to make defense lawyers 
available to accused who more often than not go unrepresented? What 
protections should be enacted to reduce the likelihood that suspects 
will be tortured and to curb widespread overtime detentions? What 
measures should be prescribed to strengthen the current insignificant 
legislative barriers to arbitrary search and seizure? Should all 
illegally-obtained evidence be excluded from trials? Should plea 
bargaining be fostered? Should prosecution witnesses be required to 
appear at trial in order to make meaningful the existing right to 
cross-examine one's accusers? What kind of appellate review should 
replace the current perfunctory procedure? None of these issues, which 
have long cried out for legislative resolution, is likely to be dealt 
with by the NPC in the near future.
    Nor does the NPC seem ready to abolish the notorious, supposedly 
``non-criminal,'' administrative punishment of ``reeducation through 
labor'' (RETL), which allows the police unilaterally to ship people off 
to three or even four years of confinement in circumstances that are 
similar to those of the conventional criminal punishment of ``reform 
through labor.'' Two or three years ago, many Chinese reformers, even 
within the Ministry of Public Security (MPS), seemed confident that the 
NPC was about to abolish or at least substantially revise RETL. There 
was widespread agreement among the experts that its continuing 
existence undermines the significance of the Criminal Procedure Law 
(CPL), since it allows the police to circumvent the protections of the 
CPL, including review by the procuracy and the courts, and nevertheless 
to send people to long periods of what is, for all intents and 
purposes, criminal punishment. But the apparent opposition of the 
Central Party Political-Legal Committee and the leadership of the MPS, 
which believes that it continues to need this weapon to help quell 
social unrest, has been sufficient to block adoption of the draft 
legislation that now lies dormant in the NPC.

   SUPREME COURT EFFORTS TO RESTRICT APPLICATION OF THE DEATH PENALTY

    Although one cannot be optimistic about immediate prospects for 
further NPC reforms of the criminal process, this does not rule out the 
efforts that can be made by other institutions, especially the Supreme 
People's Court (SPC). Within its limited political power, the SPC has 
been trying to sustain the momentum for law reform. Early this year, it 
made public its Second Five-Year Reform Program for the People's 
Courts, which sets forth an ambitious 50-goal agenda for court 
improvements of various kinds. It has more recently announced thirteen 
new research projects for implementation. Experience suggests caution 
before equating breathless pronouncements with actual accomplishments. 
Nevertheless, the most active law reform currently under way in the 
criminal justice field is the SPC's energetic effort to dramatically 
improve the present inadequate procedures for trying and reviewing 
death penalty cases.
    The SPC recently announced its determination to retrieve from the 
provincial high courts the responsibility the SPC had granted them for 
final review of all death penalty cases except for those involving 
crimes of corruption and of endangering state security, which the SPC 
has always retained. For practical rather than political reasons, 
implementation of this determination has proved to be a slow and 
painstaking task, largely because of the difficulty of recruiting the 
300 to 400 new SPC judges who are deemed to be necessary to do the job. 
This estimate offers some clue to the huge, but unconfirmed, number of 
capital prosecutions brought by the procuracy each year. The SPC has 
reportedly recruited over 100 of the newly needed contingent from the 
lower courts. In order to speed completion of the task, it has also 
begun to recruit Chinese law professors and lawyers to serve on its 
staff. Although this had occasionally been done in the past, the 
current attempt to recruit broadly outside the career judiciary bodes 
well for the future, if it proves successful.
    Because the SPC is not expected to grant final review to the 
retrieved categories of capital cases until 2007, that responsibility 
will continue to rest with the high courts until then. Although some 
lawyers have urged the SPC to declare a moratorium on final reviews 
until it is ready to conduct them, the SPC has not responded to this 
proposal and is unlikely to do so. Even the SPC, which to its credit 
frequently adopts a dynamic view of its authority, would be hard-
pressed to take such a bold step in the absence of new legislation or a 
Politburo instruction, neither of which is anticipated. This is 
especially the case since the enactment, just weeks ago, of a 
Supervision Law that strengthens the controls of the standing 
committees of the people's congresses at all levels over government, 
court and procuracy activities. When this law goes into effect on 
January 1, 2007, the SPC will be required to file with the NPC's 
Standing Committee each new interpretation it issues, knowing that the 
Standing Committee has the power to amend its interpretation.
    What the SPC has done is to move ahead to improve procedures at the 
high court level. Since July 1, all appeals of death penalty cases 
require a formal court hearing--though not necessarily a public 
hearing-rather than merely what was often only a cursory review of the 
case file and the briefs submitted by the procuracy and defense 
lawyers.
    Moreover, some SPC experts have recognized that not only are the 
appellate and final review processes in need of improvement, but also 
the trial itself. Capital trials inevitably suffer from the same 
deficiencies as other criminal trials in China, only the stakes are 
higher. In the absence of specific authorizing legislation, it is 
unclear how far the SPC can go in mandating more accurate and fairer 
procedures in capital trials. Yet if it does carry out far-reaching 
improvements, this would not be the first time it has tread upon the 
NPC's turf. Thus far, in order to guide trial courts, the SPC has 
reportedly drafted ``standards for the application of the death penalty 
in certain cases,`` namely, for crimes of murder, injury causing death, 
drug trafficking and robbery, which account for the bulk of PRC death 
sentences. These standards, which have not been made public, apparently 
call for the imposition of capital punishment only in cases in which 
the new and detailed conditions that they set forth have been met. Of 
course, law reformers will be quick to advocate that any new trial and 
appellate procedural guaranties in capital cases be extended to the 
processing of other serious crimes.

           DISGRACEFUL HANDLING OF SOME RECENT CRIMINAL CASES

    Unfortunately, the SPC's encouraging activism with respect to death 
penalty reform has not been matched by equal vigilance in supervising 
the conduct of lower courts in individual criminal cases. This past 
year has witnessed a series of outrageous criminal convictions in cases 
that have been widely publicized outside China despite being shrouded 
in secrecy within the country. I have served as an informal consultant 
in two of these cases. In one, the blind legal activist Chen Guangcheng 
was sentenced to four years and three months in prison by the Yinan 
County Basic Court in Linyi City, Shandong Province, allegedly for 
instigating a mob to block a road and for inflicting damage on public 
property. The detention procedures and trial in this case were a 
travesty of justice by any standards. In the other case, Zhao Yan, a 
Chinese staff member of the Beijing bureau of the New York Times, was 
sentenced to three years in prison allegedly for committing criminal 
fraud against a friend, again after detention and trial procedures that 
shamed a great nation, but this time not in a poor, rural Shandong 
county but in Beijing, the prosperous and impressive political and 
educational heart of the country.
    These cases are merely the tip of a criminal process iceberg that 
is largely concealed from the scrutiny of both Chinese and foreigners 
and that functions with cynical disdain for the country's criminal 
justice laws and international human rights standards. Court procedures 
are sometimes a farce, but pre-trial police misconduct is frequently 
worse. The Ministry of Public Security in practice often condones the 
misbehavior of its police, who increasingly retain thugs to carry out 
some of their most lawless acts. And the Ministry of State Security, 
China's version of the former Soviet KGB, is even more a law unto 
itself because of the even greater secrecy of its operations.
    At the national level, the Supreme People's Procuracy, the supposed 
``watchdog of legality'' in Communist systems, continues to issue rules 
designed to curb actions such as illegal extended detentions of 
suspects by investigating officials. Yet in practice, local procuracies 
are often politically helpless or uninterested in implementing such 
rules. Further, in pursuing their own responsibilities for the 
investigation of corruption cases, local procuracies themselves 
frequently disregard prescribed procedures. Thus far, efforts by the 
NPC and local people's congresses to ferret out law enforcement abuses 
have not proved effective and in some cases, have actually served as 
cover for illicit interference with law enforcement. Whether the 
recently promulgated Supervision Law, which strengthens the powers of 
the standing committees of people's congresses to review the operation 
of various government agencies including the courts, will yield better 
results remains to be seen.

     THE COMMUNIST PARTY'S PARTICIPATION IN CRIMINAL INVESTIGATION

    One of the most prominent and interesting features of recent PRC 
criminal justice is the increasing visibility of the Party's own 
investigative and coercive apparatus. To be sure, the Party, through 
its political-legal committees and through organizations within every 
law enforcement agency and court, controls the operations of official 
law enforcement at every level of government. But it also plays a major 
role itself in investigating and confining suspect Party members in 
important and complex cases before their processing by the official law 
enforcement agencies even begins. The Party's 70 million members, and 
sometimes others as well, are subject to informal, but effective and 
often long-term compulsory detention by one of the Party's ubiquitous 
discipline and inspection commissions. This process is generally 
referred to as ``shuanggui,'' which means ``double regulation'' or 
``the two stipulations,'' because investigative targets are ordered to 
report at a stipulated time and place.
    Especially in major cases of corruption, shuanggui investigation/
detention often precedes both the formal imposition of Party 
disciplinary sanctions against members who appear to have violated 
Party rules and the transfer of suspects to the law enforcement 
agencies if they appear to have violated the Criminal Law. Because 
shuanggui suspects are often relatively important Party figures, they 
are usually confined in more comfortable quarters than a regular police 
detention cell. Nevertheless, although recent Party documents purport 
to assure shuanggui detainees of humane treatment, guaranteeing them 
against abuses against their person and property and even authorizing 
contacts with their family, if their captors believe this would not 
adversely affect the investigation, they are generally held 
incommunicado and denied some of the protections to which criminal 
suspects are entitled at least in principle. Thus they may be detained 
for as long as the Party discipline and inspection commission thinks 
appropriate, have no right to the advice of counsel, and have no 
opportunity for the procuracy to review the basis for their detention. 
If the suspect is turned over for criminal investigation, these 
criminal procedure rights should come into play, but by then it is 
usually too late for them significantly to benefit the suspect even if 
they are observed in practice. Consequently, as suspects, Party 
members--the nation's elite--have even fewer due process rights than 
the masses!

                      NEW RESTRAINTS UPON LAWYERS

    My last year's testimony to the Commission emphasized the many 
restrictions imposed on China's criminal defense lawyers during both 
the investigation and trial stages and the threat of criminal 
prosecution that hangs over any lawyer who presents too vigorous a 
challenge to the facts alleged by the procuracy. The situation is no 
better this year. Indeed, in several respects it has deteriorated.
    During the past year police or their hired thugs have often beaten 
lawyers for controversial defendants in order to prevent the lawyers' 
access to their clients or to the courts. The courageous human rights 
lawyer Gao Zhisheng was deprived of his license to practice law and is 
now being detained for unspecified ``criminal activities.'' His law 
firm has been suspended from practice for one year. Police illegally 
prohibit his family from leaving their home or receiving visitors.
    Lawless police blockades, long a feature of PRC repression of 
political dissidents, seem more numerous at present than at any time I 
can recall and are now frequently imposed on lawyers and other legal 
activists as well as their clients. A large group of government 
officials and thugs have blockaded the farm house of blind ``barefoot 
lawyer'' Chen Guangcheng since August 11 of last year and have 
maintained the blockade against his wife even after Chen was illegally 
taken into custody in March of this year. In June, I was invited to 
dinner at the apartment of former Shanghai lawyer Zheng Enchong, who 
had lost his license because of his dogged defense of the real estate 
rights of Shanghai residents and who had just completed a three-year 
prison sentence for allegedly revealing ``state secrets'' about a 
public protest to an American-based human rights organization. However, 
a group of policemen, who could cite no legal authority and would give 
no reasons, barred my visit. When repeatedly asked to justify their 
interference, they merely said: ``We are police.''
    Plainly, contacts between lawyers and the media, especially the 
foreign media, have become increasingly sensitive. Defense lawyers in 
``state secrets'' cases have been warned not to inform the press, or 
even the defendant's family or legal consultants, of developments in 
the case, even though this may inhibit an effective defense. What 
triggered the persecution of ``barefoot lawyer'' Chen Guangcheng was 
his role in the Internet report on Linyi's illegal birth control 
measures posted by several Beijing legal scholars and the long 
dispatches filed by foreign journalists about the situation, including 
a front-page story in the Washington Post. Two of the scholars who 
filed the Internet report were subsequently threatened with being 
sacked by their law schools and have also suffered other sanctions. The 
prosecution of former lawyer Zheng Enchong demonstrated how easy it is 
for someone who has contacts with 
foreign reporters to be convicted of illegally transmitting ``state 
secrets'' or mere ``intelligence'' to a foreign entity. What 
constitutes a ``state secret'' or ``intelligence'' 
remains a fluid concept in the PRC and is subject to arbitrary, even 
retroactive, 
interpretation by the authorities.
    Equally sensitive to the regime are the contacts that public-
interest lawyers have been cultivating with aggrieved groups of 
citizens. Perhaps the most recent adverse development involving lawyers 
was the issuance on March 20, by the Executive Council of the All China 
Lawyers Association, of a ``Guiding Opinion on Lawyers' Handling of 
Mass Cases.'' This document, evidently the product of pressure from the 
Ministry of Justice, which controls the legal profession, is applicable 
not only to criminal cases but also to all other instances in which a 
lawyer is asked to represent ten or more people in the same case. It 
has created an uproar among activist lawyers and law professors since 
it substantially restricts the conduct of lawyers in such cases and 
vitiates the loyalty to their clients that has been developing into one 
of the hallmarks of the legal profession in China.
    The Guiding Opinion's most sinister provisions require lawyers, 
after accepting a mass case, promptly to ``discuss the case fully'' 
with ``the relevant judicial departments,'' ``honestly report the 
situation'' to them and ``actively assist the judicial 
organs to clarify the facts.'' In this context the terms ``judicial 
departments'' and 
``judicial organs'' plainly refer to the law enforcement agencies, not 
only to the procuracy and the courts but also to the police! Lawyers 
are also required to report on the situation to other government 
agencies concerned, including the ``judicial administrative organ in 
charge,'' i.e., the local justice bureau under the Ministry of Justice.
    The Guiding Opinion emphasizes that the lawyer has a duty to assist 
the government as well as his client in such cases and to mediate and 
promote solutions that are acceptable to all. The Guiding Opinion also 
prohibits lawyers from encouraging or participating in large group 
efforts peacefully to use letters and visits to petition government 
agencies to resolve problems. Yet it authorizes lawyers to take part in 
such efforts if invited to do so by relevant government agencies. The 
Guiding Opinion deserves detailed analysis, but it obviously seeks to 
convert lawyers into instruments of law enforcement and other 
government institutions to the prejudice of the interests of their 
clients in mass cases. This represents a giant step backward to the 
1980s, when China's newly revived lawyers were deemed to be merely 
``state legal workers'' rather than the independent representatives of 
their clients.

                          THE IMMEDIATE FUTURE

    This is a gloomy time in China for the administration of criminal 
justice and related legislative and judicial reform. The NPC seems to 
be frozen in this area, and the only significant systemic reform--the 
SPC's effort to improve procedures in death penalty cases--is moving 
slowly and toward an uncertain outcome. In too many cases, the police 
operate with reckless disregard for existing criminal procedures, and 
in making their decisions courts are the helpless tool of Party and 
government leaders and the objects of other distorting influences. 
Although the nation's leaders continue to use the abstract rhetoric of 
the ``rule of law,'' they increasingly emphasize that the Western-style 
laws, institutions and procedures that the Party has introduced since 
1978 are not to be applied in a Western manner. They want the legal 
system to repress the rising tide of social unrest generated by China's 
rapid success rather than effectively process the new disputes and 
grievances that are being brought to it for solution. This in itself 
has added to social instability. The failure of the highly touted 
``socialist rule of law'' to meet popular needs and its frequent use as 
an instrument of repression have fueled feelings of frustration that 
are being transformed into what has accurately been called ``rightful 
resistance.''
    Are there any grounds for optimism? Although the engineer-dominated 
Politburo Standing Committee appears to have little appreciation of a 
legal system's potential contribution to social engineering and to the 
resolution of social tensions, below the top leadership level a younger 
and more sophisticated generation of officials, legislative staff, 
scholars, judges, prosecutors and lawyers is actively engaged in field 
research and practical experiments relating to reform of the justice 
system. Moreover, ideas of due process and fair adjudication appear to 
be making inroads into the Party itself, as demonstrated by the 
continuing quiet efforts to improve the conditions of shuanggui 
detainees and to ``judicialize'' Party disciplinary tribunals.
    A year from now, after the 17th Party Congress, at which the Hu 
Jintao-Wen Jiabao leadership is expected to be firmly entrenched for 
the next five years, we will be able to form a clearer picture of the 
prospects for reform. Optimists already claim to see signs, or at least 
hear talk, of bringing officials educated in law into many higher posts 
within the Party and government, including the influential provincial 
Party discipline and inspection commissions. It would also be desirable 
to place law-trained officials in charge of all the country's law 
enforcement agencies at every level.
    The most obvious indication of the new leadership's intentions 
regarding the legal system will be personnel changes within the 
Politburo and its Standing Committee. The admission to the Politburo of 
Minister of Public Security Zhou Yongkang at the 16th Party Congress, 
making him the sole government representative of the entire legal 
system at the pinnacle of power, has not substantially benefited 
criminal justice reform. It is rumored that next year Minister Zhou 
will be promoted to membership in the Politburo Standing Committee, 
perhaps replacing Luo Gan as the head of the Central Party Political-
Legal Committee that leads the operations of the courts, the procuracy, 
the Ministry of Justice, and the law enforcement ministries. Some even 
believe that he will also become head of the Central Party Discipline 
Inspection Committee. How he would exercise such vast power is unclear, 
but it would be comforting if someone with greater knowledge and 
experience in legal affairs, and with greater zest for strengthening 
the rule of law, were appointed to the Politburo. It was disappointing 
that, at the previous Party Congress, SPC President Xiao Yang was not 
elevated. A seat in the Politburo would give him some of the political 
clout required to implement his ambitious plans. An earlier SPC 
President, Ren Jianxin, who had decades of legal experience, not only 
sat in the Politburo but also served as head of the Central Party 
Political-Legal Committee. But perhaps a leadership that wants to keep 
``politics in command'' does not regard that as a desirable precedent.
    Such personnel appointments will have a crucial impact upon whether 
the PRC decides to ratify the ICCPR prior to the 2008 Olympics, adopt a 
new Criminal Procedure Law, curb police lawlessness and remove the 
restrictions that hamstring 
defense lawyers and other legal activists.

                           WHAT SHOULD WE DO?

    Understandably, China has always gone its own way, and outsiders 
who have sought to influence its course have had much to be modest 
about. Yet China has never been more open to international cooperation 
in all fields than today, and the PRC's legal experts, in and out of 
government, genuinely welcome virtually all 
opportunities to work with counterparts from abroad. International 
organizations, foreign governments and charitable foundations, non-
governmental organizations, universities and lawyers' groups from many 
countries have already helped to launch numerous joint law reform 
projects in China. Nevertheless, this impressive effort has merely 
scratched the surface of the need and revealed the depth, breadth and 
long-term dimensions of the opportunity.
    My hope is that Congress and the executive branch will 
substantially increase existing U.S. Government funding for cooperation 
with the PRC in rule of law and human rights projects. Moreover, the 
scope of this funding should be expanded to support research into 
important problems of criminal justice and the development of legal 
institutions in China. Continuing government sponsorship of training, 
conferences and exchanges is vital. Yet, unless such activities rest 
upon an adequate research foundation, their impact will be limited. For 
example, everyone recognizes that, if China is ever to enjoy a genuine 
rule of law, the most fundamental reform required is the development of 
a fair and independent court system. China's neighbors--Japan, Taiwan 
and South Korea--have made great strides in this respect despite the 
fact that they share China's Confucian-Buddhist political-legal 
culture. How did they do it? And why did previous efforts to establish 
a fair and independent judiciary fail in China? This type of research 
deserves the highest priority. Yet it has thus far found no U.S. 
Government support.
    Finally, no assessment of prospects for law reform in China should 
overlook the work on Chinese justice published by relevant United 
Nations agencies, the reports of international human rights NGOs, the 
studies published by various governments including our own and the 
scholarship of the academic community. This vast literature not only 
enhances our knowledge of a complex and relatively non-transparent 
subject but also stimulates further progress by the PRC. The report on 
torture in China issued last spring by Professor Manfred Nowak of 
Austria, Special Rapporteur of the U.N. High Commissioner for Human 
Rights, goes far beyond a narrow focus on torture and should be 
required reading for China's leaders as well as all others concerned. 
The largely unnoticed but important decisions of the U.N. Working Group 
on Arbitrary Detention, which has repeatedly condemned PRC practices in 
a long series of sad cases, is another example of U.N. action that 
deserves greater circulation. The 2006 Annual Report released today by 
this Commission is a splendid example of how helpful a foreign 
government's report can be to China's progress.
    I strongly urge that the U.S. Government devote greater financial 
support to the dissemination of all such material in China, where, 
largely because of well-known obstacles to communication, even judges, 
prosecutors, legal officials, lawyers and scholars often do not know 
about events, incidents and developments involving the administration 
of justice in their own country. It is shocking, for example, that many 
Chinese legal experts who would be appalled at their government's 
persecution of blind ``barefoot'' lawyer Chen Guangcheng have never 
heard of this case. This suggests that agencies such as Voice of 
America and Radio Free Asia still have a long way to go. Yet it is 
possible, even in today's controlled media environment in China, for 
Chinese language versions of such helpful material to circulate.
                                 ______
                                 

                    Prepared Statement of John Kamm

                           SEPTEMBER 20, 2006

  Recent Developments in Dui Hua's Dialogue on Human Rights With the 
                           Chinese Government

    Chairman Hagel, Distinguished Members of the Congressional-
Executive Commission on China:
    In May 1990, I intervened, for the first time, on behalf of a 
political prisoner in China, raising the name of a student leader 
jailed during the spring 1989 political disturbances, at a banquet in 
Hong Kong with a Chinese minister. Later that month, I gave my first 
testimony to Congress, addressing the question of human rights and 
China's Most Favored Nation status (MFN). I have come back to Congress 
several times over the last 16 years to report on the progress of the 
dialogue with the Chinese government being conducted by me and my 
foundation, a dialogue that has seen me make approximately 100 trips to 
Chinese cities--75 to Beijing--to discuss cases, exchange information, 
visit prisons, and attend trials. Today I welcome the opportunity of 
briefing the Commission on recent developments.

           MINISTRY OF JUSTICE STOPS ACCEPTING PRISONER LISTS

    The framework for Dui Hua's dialogue with the Chinese government 
was established in November 1991 at a meeting in Beijing's Great Hall 
of the People between me and a member of the Standing Committee of the 
Political Bureau of the Chinese Communist Party, one of China's most 
senior leaders. From the outset, it was clear that an important focus 
of this dialogue would be prisoners. The senior leader stated that if a 
foreigner came to China, pounded the table, and demanded the release of 
a prisoner, the Chinese government would not respond. But if a 
foreigner came as a friend and showed respect, providing information on 
prisoners, indeed releasing them early, ``was no big deal.''
    After this meeting, I began to visit prisons. The Ministry of 
Justice, which runs China's 700 prisons and 300 re-education through 
labor camps, began accepting my requests for information on prisoners 
in the form of lists of 20-25 names.
    In April 1992 I was given an audience with a vice minister of the 
Ministry of Justice. I was advised that a decision had been made to 
accept any inquiries about prisoners that I might have, and to answer 
the inquiries to the best of the ministry's ability. I was invited to 
ask about any prisoner, and I asked about Wei Jingsheng. Then and 
thereafter I asked about many others.
    During the first half of the 1990s, my dialogue with the Chinese 
government went smoothly. Getting information on prisoners was 
commonplace, and there were many releases of high-profile prisoners. At 
the time, Beijing was worried about losing its MFN trade status. In 
1994, President Clinton de-linked China's MFN from its human rights 
record. Chinese officials had said that if the United States reduced 
its pressure, China would respond with human rights moves. I decided to 
take the Chinese government up on its offer. In December 1994, the 
Ministry of Justice for the first time sent a written reply to a 
prisoner list by fax, standard practice for the next 10 years. In 
January 1995, the State Council and the Ministry of Justice agreed to 
receive from me four lists of 25 names, one each quarter, in calendar 
year 1995.
    In May 1995, the Chinese government suspended the prisoner 
information project because the State Department had granted a visa to 
Taiwan President Lee Tenghui. The Ministry of Justice continued to 
receive my lists, but contrary to what it had promised it was not 
willing to provide information. I turned to the U.S. Congress for help, 
and beginning in 1996 more than three dozen members of the House and 
the Senate, several of whom are distinguished members of this 
Commission, wrote letters to the Chinese government asking it to honor 
the commitment that had been made. In 1997, Beijing badly wanted a 
state visit to the United States for Jiang Zemin. In October 1997, 
President Jiang made the visit, and in talks with President Clinton 
agreed to resume providing me with information about prisoners. The 
agreement was listed as an achievement of the summit in the statement 
issued by the White House, and was singled out in a Senate Resolution 
on the Jiang visit introduced by Senator Feinstein, a distinguished 
member of this Commission, and Chairman Hagel.
    By early 1999, the Ministry of Justice had, for the most part, 
finished responding to 1995's list of 100 names, many of whom had been 
obscure prisoners hardly known to the outside world. Based on 
information provided on 70 percent of the names, more than half of the 
prisoners on the list had been granted early release or sentence 
reductions after the list's submission. Based on interviews with 
released prisoners and members of their families, I have no doubt that 
``the list of 100'' played a significant role in securing early release 
and better treatment for dozens of people who would otherwise have been 
forgotten.
    In April 1999, the State Department introduced a resolution 
criticizing China at the annual meeting of the U.N. Commission on Human 
Rights in Geneva. The Ministry of Justice again suspended providing 
information about prisoners to me. The next month, NATO warplanes 
bombed the Chinese embassy in Belgrade, and Beijing suspended the 
official dialogue on human rights with the United States.
    The following year (2000), the Chinese government badly wanted to 
secure Permanent Normal Trade Relations (PNTR). It silently acquiesced 
in the establishment of this Commission as part of the effort to get 
PNTR. The Ministry of Justice began allowing me back into prisons and 
once more provided information on prisoners. By now, Dui Hua had been 
established, and we were engaged in a worldwide, open source search for 
the names of individuals detained in political cases. Our data base had 
been set up and our lists were becoming longer and more detailed. (A 
recent breakdown of our data base is appended to this testimony.) The 
information we received from the Ministry of Justice, which we shared 
with this Commission and with NGOs and governments engaged in rights 
dialogues, was increasingly valuable to an understanding of how China's 
penal system treated prisoners convicted in 
political cases.
    In late July 2001, Secretary of State Colin Powell visited Beijing 
to help repair relations badly frayed by the EP3 incident. Agreement 
was reached to resume the official rights dialogue that had been 
suspended in May 1999 in the wake of the NATO bombing of the Chinese 
embassy in Belgrade. Secretary Powell tasked the newly confirmed 
Assistant Secretary of State for Democracy, Human Rights and Labor 
Lorne Craner with preparing for a round of the dialogue to be held in 
Beijing. Mr. Craner turned to Dui Hua and other NGOs to assemble a list 
of names of individuals detained in political cases (Dui Hua 
contributed the names of 50 ``counterrevolutionaries''), and this list 
of 75 names was handed to China's Ministry of Foreign Affairs in the 
late summer of 2001.
    After the terrorist attacks of September 11, 2001, the Chinese 
government made a strategic decision to side with the United States and 
to seek ways to exploit the new international environment to improve 
relations with the United States and achieve other foreign policy 
goals. As part of this decision, detailed information would be given on 
prisoners, and those identified by the United States as important cases 
would be granted early release. In October 2001, a session of the 
official human rights dialogue was held in Washington. Detailed 
information was provided on 68 of the 75 names on the list. Early 
releases of important prisoners began in January 2002. The first to 
benefit was the Tibetan ethnomusicologist Ngawang Choephel.
    In the ensuing months, nearly all of the well-known prisoners on 
Mr. Craner's list--including Jigme Sangpo, Xu Wenli, Wang Youcai, 
Ngawang Sangdrol, and finally Rebiya Kadeer--were released from prison. 
Several were allowed to leave China for medical treatment. (I made two 
trips to Lhasa, accompanied by officials of the Ministry of Foreign 
Affairs, to verify that Tibetan prisoners wanted to leave for the 
United States.) Not only were well-known prisoners released. I recently 
looked at what had happened to the 60 people who were actually serving 
prison sentences in September 2001 when the Chinese response was being 
prepared. I am attaching a brief analysis to this testimony. Of the 
sixty, 27 have been granted early release, and four have been given 
sentence reductions. In other words, if you were on the list, you had a 
better than 50 percent chance of being released or given a sentence 
reduction in the ensuing five years. That's three times better than the 
rate of early release recorded for political prisoners that we know of 
who were serving sentences as of September 2001 but who weren't on 
Craner's list. (Unfortunately, the rate of parole and sentence 
reduction for political prisoners, even those on important lists, 
remains well below the rate for ordinary prisoners.)
    How was this result achieved? Good cooperation with our Chinese 
counterparts, coordination with allied governments, steady follow-up 
(the names appeared on several subsequent lists handed over by Dui Hua, 
the United States and other governments), linking better treatment of 
prisoners to ``rule of law'' issues, and always 
emphasizing the need for human rights improvements, as measured in 
concrete terms, if US-China relations are to improve.
    A little known example of how the Craner list was used to address a 
systemic issue is the two rounds of talks on sentence reduction and 
parole for prisoners serving sentences for counterrevolution and 
endangering state security that were organized by the State Department 
and the Ministry of Foreign Affairs in February 2004 and August 2005. 
In these talks, ably led by the State Department's Bureau of Democracy, 
Human Rights and Labor and China's Supreme People's Court, Beijing 
affirmed that individuals serving sentences for counterrevolution and 
endangering state security enjoy the same opportunities for sentence 
reduction and parole as other prisoners. National reviews of sentence 
reduction and parole cases had begun on a trial basis in 2003 and they 
were expanded in 2004 and 2005. In 2005 Dui Hua heard reports that at 
the local level a policy of non-discrimination toward those convicted 
of counterrevolution and endangering state security was being followed. 
In January 2005, the Ministry of Foreign Affairs took the extraordinary 
step of e-mailing Dui Hua information on a large group of such 
prisoners, most of whose names were unknown, who had in fact been 
granted sentence reduction or parole in recent months.
    My last meeting with the Ministry of Justice took place in April 
2005. Senior officials of the Prison Administration Bureau and the 
Department of Judicial Assistance and International Affairs received me 
in the Minister's Conference Room. It was an unusually friendly 
meeting. We discussed the possibility of Dui Hua hosting a delegation 
from the Prison Administration Bureau. I was asked to prepare a 
detailed proposal for the Ministry's consideration. I handed over a 
short prisoner list. The senior representative of the Prison 
Administration Bureau promised that he would personally look into the 
cases. I was told that I would receive the desired information through 
the usual channel, that is, by fax or e-mail to my San Francisco 
office. Weeks and then months went by without Dui Hua receiving the 
information.
    I visited Beijing in October 2005 and brought with me a detailed 
proposal on the delegation and a new prisoner list. I called the 
International Affairs Department of the Justice Ministry to schedule a 
meeting and was told that I was welcome ``as an old friend'' to visit 
the ministry but only if I agreed to three conditions: There would be 
no discussion of ``human rights dialogues,'' the names of ``criminals'' 
(i.e. prisoners) could not be raised during the meeting, and a prisoner 
list could not be handed over. I refused to agree to these conditions, 
and protested that the ministry's new position was contrary to 
longstanding practice reaffirmed as recently as April. It ran counter 
to China's policies of encouraging transparency and conducting 
dialogues based on equality and mutual respect.
    I sought the assistance of China's Ministry of Foreign Affairs. I 
discussed the situation with officials of the Departments of North 
American and Oceanian Affairs and International Organizations and 
Conferences, the U.N. missions in New York and Geneva, and the Chinese 
embassy in Washington. I am grateful for the work of several Chinese 
diplomats on this matter. I have recently been told that there is 
nothing personal in the decision to stop providing information on 
prisoners and that I am welcome to continue visiting China.
    In February 2006, a senior Ministry of Foreign Affairs official 
advised me that I would get ``good news'' from the Ministry of Justice 
soon. I received information on a few prisoners channeled through the 
Ministry of Foreign Affairs. I was further heartened when President Hu 
Jintao visited Washington on April 20 and announced that China was 
prepared to ``enhance'' its dialogues and exchanges with the U.S. side 
in the area of human rights.
    On August 24, 2006, I met with Ministry of Foreign Affairs 
officials in Beijing. I was informed that the Ministry of Justice had 
not changed its position. I was told that ``people are fed up'' with 
receiving prisoner lists from foreigners. Such lists represented 
attempts to interfere in China's internal affairs and were 
disrespectful of China's independent judiciary. Foreign countries have 
no right to submit them, and China is under no obligation to reply to 
them. When I sought an explanation for the Ministry of Justice's 
decision to stop accepting lists and discussing cases, I was told that 
the Ministry of Justice is ``unhappy and disappointed over how the 
information has been used.'' Specifically, I was told that the 
impression had been given that prisoners were released early as a 
result of foreign pressure instead of as a result of ``the normal 
workings of the Chinese legal system.''
    At the meeting I asked the Ministry of Foreign Affairs to try one 
more time to convince the Ministry of Justice to change its position. I 
requested an update on a set of nine prisoners, all of whom the 
Ministry of Justice had provided written information on, all longer 
than three years ago.
    On September 14, 2006, I received the Ministry of Foreign Affairs' 
formal response: As the bilateral dialogue between the United States 
and China has not been resumed, discussion or exchange of information 
on individual cases is not appropriate. I was also reminded that the 
basic principle for the rule of law is independence of judicial organs, 
a principle the Ministry of Foreign Affairs and, it hopes, ``our 
American friends'' will observe.

                            DUI HUA RESPONDS

    Since Dui Hua cannot accept the Ministry of Justice's new policy of 
``three no's''--no mention of human rights dialogues, no raising the 
cases of prisoners, and no prisoner lists--the foundation will no 
longer seek meetings with the Ministry of Justice in Beijing. The 
question will be revisited if and when the official human rights 
dialogue between the United States and China resumes.
    Dui Hua holds that the Ministry of Justice's ``three no's'' policy 
overturns many years of cooperation that have enjoyed the support of 
leaders and senior officials of both the United States and China. The 
Ministry's behavior toward Dui Hua does not square with the policy of 
conducting dialogues based on equality and mutual respect. It is a 
setback for the principles of transparency and open governance, and 
calls into question President Hu Jintao's April 20 promise to enhance 
dialogue and exchanges on human rights between the two sides.
    Dui Hua points out that the foundation is an international human 
rights organization that enjoys non-governmental consultative status 
with the Human Rights Council of the United Nations, a status that we 
would not enjoy had China chosen to oppose it. Although it actively 
supports dialogue on human rights between the Chinese and American 
governments (as it does the eight other official dialogues), Dui Hua's 
own dialogue is not dependent on the US-China dialogue and has never 
been viewed in such terms. On many occasions during long periods when 
the official dialogue was suspended (e.g. calendar year 2000), Dui 
Hua's own programs with the Ministry of Justice were plentiful and 
productive. If such things as prison visits and exchange of information 
on cases were appropriate then, why are they inappropriate now?
    Dui Hua agrees that the basic principle of rule of law is 
independence of the judicial organs, but we fail to see how asking 
questions about cases represents interference. Underpinning the 
principle of independence is transparency and openness of the legal 
system. ``In speaking about laws, proceed from an examination of cases 
``yi an shuo fa,'' is a favorite saying of members of China's 
judiciary, and in its attempt to understand China's security, legal, 
and prison policies and systems Dui Hua is doing just that.
    As for the question of how the information has been used, Dui Hua 
has reviewed all written communications from the Ministry of Justice 
since 1994, as well as the notes of meetings since 1991. It cannot find 
language asking that information be kept confidential, nor setting any 
other limits on how the information was to be used. On the contrary, 
there are several expressions of mutual esteem and desire for further 
cooperation. Prior to August 24, 2006, Dui Hua had never received a 
complaint from a Chinese official over how the information on prisoners 
had been used.
    It is true that the impression has been given that prisoners who 
are the focus of international concern are more likely to receive 
better treatment than those who are not the focus of concern (a 
situation hardly unique to China), but the experience of the last 16 
years tells me that interventions like my 1995 list and Mr. Craner's 
2001 list have in fact prompted better treatment for many prisoners. 
That has been the case-until now, at least. Dui Hua is concerned that 
prisoners who manage to get information on their situations to the 
outside world-and their families- may be suffering consequences, 
including delays or cancellations of sentence reductions, 
denial of family visits and the like.

                    A WINDOW CLOSES, A WINDOW OPENS?

    During the period of difficulties with the Ministry of Justice, Dui 
Hua has enjoyed good relations with Chinese courts, including the 
Supreme People's Court. The court has arranged for wide-ranging 
discussions with senior judges and staff of the court on such topics as 
sentencing and application of the death penalty. (Interestingly, 
individual cases were discussed and sometimes raised by the Chinese 
side. No judge has ever accused Dui Hua of ``interference'' for asking 
details of a case.) It made arrangements for Dui Hua to begin attending 
Chinese trials. We have been encouraged by the willingness of the 
courts to be more open and receptive to foreigners and are looking 
forward to finding more ways to cooperate with both the court system 
and with China's procurators.
    Of special interest to Dui Hua is the question of the availability 
of verdicts. Obviously, if verdicts become more widely available, the 
work of promoting transparency (and finding out about cases) would be 
greatly enhanced. At present, verdicts in many cases-including 
``sensitive ones'' like those involving capital punishment, state 
secrets and juveniles-are not made available by courts and are even 
being denied to the families of those sentenced. The determination of 
what is ``sensitive,'' especially with regard to state security cases, 
is often in the hands of the police who make the arrest. The present 
system of withholding verdicts from the public is the subject of much 
debate in China, and there have been a few local experiments at making 
the publication and dissemination of verdicts less restrictive.
    I was especially disappointed to read, therefore, that the Chinese 
government has promulgated new rules forbidding the release by courts 
of news related to ``state 
secrets, business secrets and personal information, including in cases 
related to juveniles and those that are not tried publicly.'' The 
rules, which have yet to be published, set up a new system of court 
spokesmen and stipulate punishment for court officials who leak 
information, which covers ``any document passing through upper level 
and lower level courts.'' This presumably includes verdicts, but Dui 
Hua is seeking clarification.
    These rules come on the heels of other measures to restrict the 
operations of foreign news media and punish domestic media for 
unauthorized reporting on natural disasters and mass incidents. They 
are of a piece with the decision to shut down the prisoner information 
project with Dui Hua, and other actions the Chinese government has 
taken like harassing and jailing journalists, and closing down 
publications, web sites and blogs. I will briefly discuss the reasons 
for the ongoing clampdown in my oral remarks and will be happy to 
explore it further during the discussion period following our 
testimonies.

                            RECOMMENDATIONS

    I would like to conclude this testimony with a few recommendations:

         1. When and if the official dialogue between the United States 
        and China resumes, consideration of a list of individuals 
        detained for the non-violent expression of their political and 
        religious beliefs must form a key element of it, as it has in 
        all previous sessions. The State Department should have on hand 
        a continuously updated list of prisoners that can be readily 
        handed over to Chinese officials at short notice, and it should 
        rely on the CECC's data base and Dui Hua's data base to prepare 
        it.
         2. In its dealings with the governments of countries that have 
        human rights dialogues with China, the State Department should 
        encourage the practice of asking about cases of concern in the 
        form of prisoner lists, and push for greater sharing of 
        information and other forms of cooperation. The Berne Process, 
        a five-year-old grouping of countries that have dialogues and 
        exchanges with China on human rights, has shown some modest 
        results in these areas but has recently come under attack by 
        the Chinese government. The State Department should make clear 
        its support for the Berne Process, and raise the level of its 
        participation in the group's meetings.
         3. The State Department should examine ways to better utilize 
        the United Nations system to bring cases of concern to the 
        attention of working groups and thematic mechanisms, the 
        International Labor Organization, and UNESCO. The United States 
        should join the Human Rights Council at the earliest 
        opportunity.
         4. The Chinese government appears to have come to the 
        conclusion that interest in human rights among people in 
        Washington has waned and that issues like North Korea, Iran, 
        and currency exchange rates are what occupy policymakers and 
        legislators. Reading press accounts of recent visits by 
        Congressmen and Senators to China, I have been struck by how 
        human rights is rarely if ever mentioned. I wonder if members 
        are willing to bring prisoner lists to China, as they did in 
        the past. I am confident that Senator Hagel and commissioners 
        will take steps to disabuse the Chinese government of the 
        notion that Members of Congress and the people they represent 
        no longer care about the fate of prisoners of conscience in 
        China.
         5. It is vital that funding of open-source research and the 
        data bases it feeds be maintained at least at present levels. I 
        am troubled by reports that State Department funding for Dui 
        Hua's data base might be reduced. I have brought with me two 
        representative ``finds'' made recently in libraries in China, 
        one giving the first-ever detailed statistics for executions 
        carried out in a Chinese county, the other giving details of a 
        hitherto-unknown political party with more than 2,000 members 
        operating in Henan Province. Its leaders are almost certainly 
        still in prison. They are alone, but they are no longer 
        unknown, and we will not forget them.

    Thank you again for inviting me to testify today, and for the 
important work of the Congressional-Executive Commission on China. Dui 
Hua looks forward to even more cooperation with the commission in the 
future.
                                 ______
                                 

                    Prepared Statement of Minxin Pei

                           SEPTEMBER 20, 2006

    Mr. Chairman and Members of the Commission:
    Like many observers of developments in China, I have watched with 
increasing concern recent trends that indicate deterioration in human 
rights conditions and stagnant progress in strengthening the rule of 
law in China. To list a few examples, several eminent lawyers have been 
intimidated and prevented from representing their clients. A blind 
peasant activist has been falsely charged of crimes he did not commit 
and sentenced to lengthy prison terms. The media has come under 
increasing government control as well. Many urgently needed legal 
reforms, such as changing the way judges are appointed and courts are 
financed and supervised, have been put on shelf even though these 
measures will increase judicial independence and contribute to social 
stability.
    While today's China is a much more kinder and gentler Nation than 
it was before reform, and we should give the Chinese people and the 
pro-reform forces in the government the credit for achieving such 
amazing progress in poverty reduction and expansion of personal 
freedom, we must recognize that the pace of improving political rights 
for Chinese citizens and strengthening the institutions of the rule law 
has lagged significantly behind the speed of economic progress. In 
recent years, the process of political liberalization has stalled even 
though the Chinese economy continues its rise.
    In today's testimony, I will briefly focus on the underlying 
political causes for the deterioration of human rights and stalled 
progress in building a system based on the rule of law in China.
    In my judgment, recent symptoms of rising social unrest and 
instability may be only a partial explanation for the government's 
intensified efforts of social and political control. The more important 
underlying cause for China's backslide on human rights and rule of law 
originates from a combination of factors that together reduce the 
ruling elites' incentive to pursue political reform while increasing 
their capacity for political control.
    China has fallen into a classical transition trap at the moment. 
The current stage of transition, with half-finished economic reforms 
and partial political reforms, provides an ideal situation for the 
ruling elites who can maintain power with a mixture of political 
legitimacy derived from economic performance, political co-optation of 
new social elites, and increasingly effective methods of political 
control. Economically, strong growth record since Tiananmen has reduced 
the pressure on the Chinese government to pursue democratic reforms; 
indeed, it has even provided 
justifications for a hardline position on human rights. More important, 
because under one-party rule, China's political elites can easily 
convert their political power into economic wealth, they have even less 
incentive to permit greater political competition. It is obvious that 
democratic reforms will not only threaten their political monopoly, but 
newly acquired economic wealth.
    At the same time, the Chinese government has been adapting itself 
skillfully to new social and economic changes. It has done so first by 
including social elites, such as professionals and intellectuals, into 
the ruling elites. In addition, it has also managed to co-opt new 
elites, especially private entrepreneurs. This strategy has eliminated 
challenge to the Party's authority from the most well-endowed and 
capable elements in Chinese society.
    Over the last decade, the Chinese government has also greatly 
improved its capacity of suppressing both political dissident 
activities and social unrest. It has done so by heavy investment in law 
enforcement and technology. The strong capabilities, unfortunately, 
seem to have convinced the Chinese leadership that a tough approach to 
dealing with political dissent and social frustrations is a more 
effective way than political negotiation, compromise, and democratic 
reforms.
    As long as this combination of factors persists, it is unlikely 
that human rights will improve significantly in China. Nor it is likely 
that the rule of law will be strengthened.
    But the picture is not all that gloomy. Despite the Chinese 
government's unrelenting efforts to control the media and limit the 
growth of democratic forces, Chinese society is changing. Although it 
is not possible to form broad-based democratic opposition to challenge 
the authority of the Party openly today, the spread of personal 
freedom, the information revolution, and market forces is creating a 
more conducive environment for social pluralism. Therefore, I continue 
to urge a policy of critical engagement that can both advance American 
values and promote its national interests.
                                 ______
                                 

                    Prepared Statement of Xiao Qiang

                           SEPTEMBER 20, 2006

The Rise of Chinese Blogosphere and Intensified Control Efforts on the 
                            Chinese Internet

    Chairman Senator Chuck Hagel and Distinguished Commission members,
    My name is Xiao Qiang. I am the Director of the China Internet 
Project, at the Graduate School of Journalism of UC Berkeley. It is a 
privilege for me to be speaking in front of this important commission, 
and alongside my distinguished fellow panelists. My talk today will 
focus on the growing information flow on the Chinese Internet, and the 
Chinese government's intensified control in this regard.
    Over 130 million Chinese are now online, and 440 million cell 
phones are in use in the country. Over the last 18 months, two 
significant trends related to China's Internet development deserve our 
attention. The first is the explosive growth of the Chinese blogosphere 
and related new media technologies such as podcasting and photo/video 
sharing Web sites; and the second is pervasive and sophisticated 
government censorship, through legal and administrative regulations, 
together with surveillance, intimidation, imprisonment and propaganda 
measures. Today, I will provide some context and analysis for both 
phenomena, and also make recommendations to the U.S. government on 
policy implications.
    The number of bloggers has increased so rapidly in the past two 
years that there exists no accurate count of their number. In January 
of 2005, China was estimated to have around 500,000 bloggers. According 
the latest survey from the official China Internet Network Information 
Center, there were about 28 million blogs in China by the end of July 
2006. This is more than twice the number of bloggers in the United 
States. This significant growth is mainly due to the fact that all the 
main China Internet portals, such as Sina.com and Sohu.com, and other 
portal-like blog hosting services, such as bokee,com and Blogbus, 
started actively promoting blog applications among the over 130 million 
Chinese Internet users.
    It is worth noting that all these Internet companies are funded 
through venture capital from the United States, and listed or aiming to 
be listed on the Nasdaq stock market. Development of the blogosphere is 
the result of both technology diffusion and Chinese government efforts 
to promote a knowledge-based economy in a global environment.
    The unintended result, however, is the ability of Chinese citizens 
to create a public space to discuss public and political affairs, as 
well as creatively express themselves and buildup social networks 
online. Unleashed in a personalized, accessible, and inexpensive 
medium, Chinese netizens, especially urban intellectuals, students and 
white collar workers have begun to use the Internet as the primary 
place to voice their opinions on personal or public affairs. Despite 
government efforts to 
control the information environment and mass media, in the highly 
decentralized and diversified blogosphere, bloggers communicate 
political views in such a manner as to bring many ``hidden 
transcripts,'' once suppressed, into the light of public consideration.
    Mr. Chairman, Distinguished Commission members, online discussions 
of current events, especially through Internet bulletin board systems 
(BBS) and Weblogs, or ``blogs,'' are having real agenda-setting power. 
The Chinese government has devoted enormous financial resources to set 
up government-sponsored Web sites at all levels of government, from 
national to regional and provincial. About 10 percent of all Web sites 
are directly set up and run by the government, until bloggers arrives 
in Chinese cyberspace. But these official sites have signally failed to 
gain the trust of the young, urban and educated netizens. On the 
contrary, people simply go to any number of independent BBS and blogs, 
to read what they think is interesting. Popular BBS such as Tianya 
community and Xicihutong, and individual bloggers, enjoy far more 
online popularity, and therefore real influence among netizens, than 
official Web sites such as Xinhua.com.
    This leads to my second point: the Chinese government's intensified 
control of the Internet. The Chinese government's ongoing efforts to 
control speech online and in print has been well-documented. But a 
series of new measures show that official control of expression has 
reached a new height in recent months. These measures range from the 
Public Pledge on Self-Discipline for China's Internet Industry, 
regulation of news and information, Internet cafe management, domain 
name management and Web site real name registration. The Commission's 
new report did an 
excellent job in documenting those censorship measures. Let me just 
focus on two telling examples from an important component of Internet 
control: fear.
    In January 2006, the Shenzhen Public Security Bureau created 
animated images of a pair of police officers named ``Jingjing'' and 
``Chacha,'' (from ``jingcha,'' or police.) These images, which appear 
on Web sites of Shenzhen city offices and private Shenzhen-based 
companies, provide links to the Internet police section of the Public 
Security Web site. By June, the Chinese Ministry of Public Security 
created similar online police mascots that were put into operation in 
eight major cities in China.
    According to the official Chinese E-Governance Net Web site: ``The 
main function of Jingjing and Chacha is to intimidate. . . . The 
Internet has been always monitored by police, the significance of 
Jingjing and Chacha's appearance is to publicly remind all netizens to 
be conscious of safe and healthy use of the Internet, self-regulate 
their online behavior, and maintain harmonious Internet order 
together.''
    Another important method to monitor Internet activities is the use 
of real-name registration. In June 2006, the Ministry of Information 
Industry (MII) ordered all weblogs and Web sites to register with the 
government or face closure.This registration will impose a true-name 
system on Web site owners. After registration one must display the 
electronic verification mark in a specific location on the Web site, 
and must also link to the MII supervision system for making inquiries. 
By doing this the identity of the Web site owner will be immediately 
clear.
    These examples reveal that the Chinese government has learned to 
turn the digital and transparent properties of Internet technology into 
a surveillance and intimidation tool to control its citizens' behavior. 
The underlining mechanism works to instill fear among netizens that 
they are being watched. Of course, these new technologically empowered 
control mechanisms are only effective when they are used together with 
intimidation in the physical space. In just the past two weeks, three 
cyber-dissidents--Zhang Jianhong,Yang Maodong and Chen Shuqing--have 
been arrested for their online publishing activities, according to the 
Paris-based Reporters without Borders. This combination of old-
fashioned state control and the most 
advanced communication technology has a powerful chilling effect to 
enforce self-censorship in Chinese cyberspace.
    Mr. Chairman, Distinguished Commission members, despite impressive 
economic growth over the last two decades, the Chinese Communist Party 
(CCP) faces a fundamental dilemma in that it wants to create an 
information-based economy, but lacks the political will to promote 
active political participation by Chinese citizens. The long-term 
survival of the CCP's power monopoly regime also critically relies on 
its ideological work and control of the information and symbolic 
environment.
    But for China's one-party state, controlling the nature of the 
information available to its citizens has never been more difficult. 
Tens of millions of netizens are empowered by the new publishing 
platform. What's happening in the Chinese blogosphere is a power 
shift--not directly at the level of political institutions and law, but 
around the change of communication systems and the ability to shape the 
information and symbolic environment.
    In the near future, we will see more and more efforts by the 
Chinese government to keep the information flow, online or off-line, 
under its control, using the mechanisms listed in the Commission's 
report, and mentioned in my presentation today. In the long term, 
however, I believe the Chinese censors are fighting a losing battle. 
The deeper problem here is that the Chinese Communist Party itself is 
morally bankrupt and intellectually exhausted. More regulations will 
not make official propaganda any more attractive or credible to Chinese 
netizens. Technological filtering and surveillance, real name 
registration, and even harsh police actions against political activists 
will not help the party gain legitimacy either. In my view, the rise of 
the blogosphere and other communication technologies such as cell 
phones and short text messages marks the beginning of the end of the 
CCP's ideological and propaganda control over Chinese society.
    For this reason, in addition to close monitoring, more 
comprehensive and in-depth studies on the social and political 
implications of the Internet are crucial for the U.S.-China 
policymaking process. Will this pervasive, many-to-many and emergent 
communication platform play a critical role in democratizing China?--or 
will the Chinese Communist Party's one-party authoritarian regime 
ultimately domesticate Chinese cyberspace, turning it into an Orwellian 
monster? We need a better understanding of these questions if we want 
to understand this complex, rapidly changing and globally significant 
country.
    I also want to bring the Commission's attention to another 
important document: ``Race to the Bottom: Corporate Complicity in 
Chinese Internet Censorship,'' published by Human Rights Watch last 
month. The report documents the different ways in which American 
companies such as Yahoo!, Microsoft and Google are assisting and 
reinforcing the Chinese government's censorship system. The report also 
makes policy recommendations to both the U.S. government and companies 
on how to address this serious issue.
    Finally, I encourage the U.S. government to be a more active player 
in developing and employing anti-censorship technologies, which will 
not only help Chinese people to gain direct access to information about 
U.S. government sponsored Web sites such as Radio Free Asia and VOA, 
but also can contribute to greater information flow and freedom of 
expression in Chinese cyberspace. Ultimately, it's the Chinese people 
themselves who want a freer Internet and a freer society. The Great 
Firewall, no matter how advanced its technology and how much fear the 
government tries to instill, will crumble, and much sooner than the 
Great Wall. Neither repression nor censorship will stop China from 
becoming a more open and humane society in the 21st century.
    Thank you, Mr. Chairman.
                                 ______
                                 

 Opening Statement of Hon. Chuck Hagel, a U.S. Senator From Nebraska, 
         Chairman, Congressional-Executive Commission on China

                           SEPTEMBER 20, 2006

    The Commission issues a report each year to the Congress and to the 
President on human rights conditions and the development of the rule of 
law in China. In connection with today's release of the 2006 Annual 
Report, the Commission has asked a distinguished group of witnesses to 
assess the current state of civil rights and criminal defense; freedom 
of expression; and efforts to adopt democratic institutions of 
governance, implement legislative reform, and improve the environment 
for domestic and international civil society groups in China.
    The Commission will also hear the perspective of the witnesses on 
how the United States might best engage with the Chinese government 
through dialogue on human rights and rule of law issues.
    In its 2006 Annual Report, the Commission expresses deep concern 
that some Chinese government policies designed to address growing 
social unrest and bolster Communist Party authority are resulting in a 
period of declining human rights for China's citizens. The Commission 
identified limited improvements in the Chinese government's human 
rights practices in 2004, but backward-stepping government decisions in 
2005 and 2006 are leading the Commission to reevaluate the Chinese 
leadership's commitment to additional human rights improvements in the 
near term. In its 2005 Annual Report, the Commission highlighted 
increased government restrictions on Chinese citizens who worship in 
state-controlled venues or write for state-controlled publications. 
These restrictions remain in place, and in some cases, the government 
has strengthened their enforcement.
    The Commission notes the progress that the Chinese government has 
made over the past 25 years in beginning to build a political system 
based on the rule of law and on respect for basic human rights. The 
twin demands of social stability and continued economic progress have 
spurred legal reforms that may one day be the leading edge of 
constraints on the arbitrary exercise of state power. The government's 
achievements in the economic realm are impressive, none more so than 
its success in lifting more than 400 million Chinese citizens out of 
extreme poverty since the early 1980s.
    While all of these changes are important, the gap between forward-
looking economic freedoms and a backward-looking political system 
remains significant. There are leaders now within China who comprehend 
the need for change, and who understand that inflexibility, 
secretiveness, and a lack of democratic oversight pose the greatest 
challenges to continued development. These leaders will need to gather 
considerable reformist courage to overcome obstacles and push for 
continued change. Such changes will not occur overnight, but rather in 
ways that Chinese society, culture, infrastructure, and institutions 
must be prepared for and willing to accept.
    To help us better understand human rights conditions and the 
development of the rule of law in China, we now turn to our witnesses.
    Professor Jerome A. Cohen is a Professor of Law at the New York 
University School of Law; an Adjunct Senior Fellow on Asia at the 
Council of Foreign Relations; and Of Counsel at the law firm of Paul, 
Weiss, Rifkind, Wharton & Garrison. Professor Cohen is a leading expert 
on the Chinese legal system and the international relations of East 
Asia. As an attorney, he has long represented foreign companies in 
contract negotiations and dispute resolution in China and other 
countries in East Asia. As Director of East Asian Legal Studies at 
Harvard Law School from 1964 to 1979, Professor Cohen pioneered the 
study of East Asian legal systems in American legal curricula. He has 
published numerous books and articles on Chinese law, including 
``Contract Laws of the People's Republic of China;'' ``The Criminal 
Process in the PRC: 1949-1968;'' and ``The Plight of China's Criminal 
Defense Lawyers.''
    After Professor Cohen, we will hear from Mr. John Kamm. Mr. Kamm is 
Executive Director of The Dui Hua Foundation; a Member of the Board of 
Directors for the National Committee on U.S.-China Relations; and 
Director of Stanford University's Project in Human Rights Diplomacy. 
Since 1990, Mr. Kamm has been an advocate on behalf of prisoners of 
conscience in China and has made more than 70 trips to Beijing in an 
effort to engage the Chinese government in a dialogue on human rights. 
Mr. Kamm was awarded the Best Global Practices Award by former 
President Bill Clinton in June 1997. He was also granted the Eleanor 
Roosevelt Human Rights Award by President George W. Bush in December 
2001 and a MacArthur Fellowship in September 2004. Mr. Kamm was the 
Hong Kong representative of the National Council for U.S.-China Trade 
from 1976 to 1981 and was president of the American Chamber of Commerce 
in Hong Kong in 1990.
    Dr. Minxin Pei will provide perspectives on democratic governance 
and development of civil society. Dr. Pei is Senior Associate and 
Director of the China Program at the Carnegie Endowment for 
International Peace. Dr. Pei is an expert on China, U.S.-China 
relations, Taiwan, East Asia, and the development of democratic 
political systems. Dr. Pei is the author of numerous books and articles 
on China, including ``China's Governance Crisis;'' ``Rebalancing United 
States-China Relations;'' and ``Future Shock: The WTO and Political 
Change in China.'' In his most recent book, ``China's Trapped 
Transition: The Limits of Developmental Autocracy,'' Dr. Pei examines 
the sustainability of the Chinese Communist Party's reform strategy--
pursuing pro-market policies under one-party rule.
    Mr. Xiao Qiang will share his expertise on freedom of expression in 
China. Mr. Xiao is Director of the China Internet Project at the 
University of California at Berkeley. Mr. Xiao is a recipient of the 
MacArthur Fellowship and is currently teaching classes on ``new media 
and human rights in China'' at the University of California at 
Berkeley. Mr. Xiao was the Executive Director of Human Rights in China 
from 1991 to 2002. Mr. Xiao spoke at each meeting of the U.N. 
Commission on Human Rights from 1993 to 2001, and has lectured on the 
promotion of human rights and democracy in China in over 40 countries. 
Mr. Xiao currently runs the China Digital Times Internet news portal 
and is a weekly commentator for Radio Free Asia.
    We welcome all of our witnesses today and appreciate their time and 
presentations.
                                 ______
                                 

 Prepared Statement of Hon. James A. Leach, a U.S. Representative From 
     Iowa, Co-Chairman, Congressional-Executive Commission on China

                           SEPTEMBER 20, 2006

    Senator Hagel, I am pleased to join you and the Members of the 
Congressional-Executive Commission on China today for this hearing on 
the core issues in the Commission's mandate: human rights and the rule 
of law in China. Our session this morning is timely, as we have 
completed another year's work on these issues, as directed by Public 
Law No. 106-286. The culmination of our labors is today's release of 
the CECC Annual Report for 2006, which is also required by the statute.
    I hope that our witnesses this morning can assess for us the short 
and medium-term trends on several key issues of specific concern to the 
Commission: the current state of freedom of expression and the free 
flow of information; criminal and civil rights defense; and government 
transparency in providing information about prisoners of conscience. 
Each of our witnesses has the background and experience to provide us 
with insights on efforts to implement legislative reform, and improve 
the legal and operational environment for domestic and international 
civil society institutions in China. Mr. Chairman, the United States 
has pursued a policy of engaging in discussion and dialogue with the 
Chinese government on human rights and rule of law issues, and the 
views of our witnesses on how best to achieve success in such a 
dialogue would be most welcome.
    I would also like to recognize the dedication and hard work of the 
CECC staff. These 15 professionals have excellent Chinese language 
skills, deep understanding of Chinese history and culture, great 
sympathy for the Chinese people, and a passionate dedication to human 
rights and the rule of law. From the youngest research associate to the 
most experienced senior counsels, this group has focused its energies 
on advancing our knowledge about the issues in our mandate, and have 
prepared a superb report for us again this year.
    Mr. Chairman, China's growing role in regional and international 
affairs is a 
result and a recognition of the impressive economic and social 
development in China since the ``reform and opening up to the outside 
world'' period began in the late 1970s. When this period of remarkable 
change began, the People's Republic of China had a minuscule national 
economy, negligible international trade, no system of laws, and by most 
objective measures was among the least developed countries in the world 
in economic, political, and social terms. The achievements of the 
Chinese people are such that, to quote a December 2005 report by the 
Dui Hua Foundation headed by John Kamm, one of our witnesses today, ``. 
. . China is, in most respects, a more well-off, open, and free place 
than it has been in modern history.''
    Yet China has far to go to complete its reforms, and has yet to 
address in a 
comprehensive way the need for a model of democracy that can ensure 
that these achievements will continue and take that nation's 
development to the next level and beyond. Significant problems loom 
ahead that may undo some or all of China's great progress. Chinese 
citizens who challenge government and Communist Party controls on 
religion, speech, or assembly continue to face severe official 
repression, with the government frequently using methods that violate 
not only China's own Constitution and laws, but also internationally 
recognized human rights standards. The Chinese Communist Party 
continues to dominate political life in China, with Party 
organizations formulating all major state policies. Most often these 
policies are 
designed to protect the Party's rule.
    Many of the new laws adopted by the National People's Congress have 
proven difficult or impossible to implement in practice at the 
provincial and local levels. In the area of international trade, the 
government tolerates very high rates of infringement of intellectual 
property rights. In commercial and civil law, court judgments are often 
difficult to enforce. Labor laws related to workplace health and 
safety, overtime, and payment of overdue wages are most often honored 
in the breach, 
resulting in widespread worker protests.
    Chinese leaders seem deeply worried about growing social unrest, 
which often is the result of official corruption, development projects 
that pollute the environment, government eviction of urban and rural 
residents from their land for new building projects, poor workplace 
conditions in many Chinese mines and factories, and unpaid wages and 
pensions. In addition, an underfunded public health system cannot offer 
ordinary care to most citizens, and is dangerously incapable of coping 
with the sudden health crises of a globalized world, such as HIV/AIDS, 
SARS, and avian influenza. As a result, many Chinese citizens have lost 
confidence in the Communist Party and the government. As the 21st 
century advances, the impact of these and other problems could 
precipitate the worst nightmare for China's leaders: widespread unrest, 
possibly social and political chaos.
    For basic democracy to work anywhere, citizens need freedom of 
expression and a free flow of information, so that, for example, public 
health crises such as HIV/AIDS or SARS can come to light without delay; 
so those injured by state officials or policies can safely speak out 
and organize to oppose them; and so that those harmed by corrupt or 
incompetent officials can blow the whistle and begin legal procedures 
to remove them without fear of retribution. In this connection, the 
trend lines are troubling: over the past year or more, the Chinese 
government has become less tolerant of public discussion of central 
government policies. Restrictions have tightened on journalists, 
editors, and Internet Web sites, and officials frequently harass, 
intimidate, and imprison journalists, editors, and writers.
    Mr. Chairman, I believe that whether the 21st Century is peaceful 
and prosperous will depend on whether the world's most populous country 
can live with itself and become open to the world in a fair and 
respectful manner. In a globalized world in which peoples everywhere 
are seeking a sense of community to serve as a buttress against 
political and economic forces beyond the control of individuals and 
their families, mutual respect for differences is the key to peace and 
prosperity.
    From an American perspective, the assumption is that China's 
economic and social system cannot develop to its fullest unless the 
rule of law and its associated rights--including freedom of religion, 
speech, and of the press, due process for disputes over private rights 
and also contractual obligations, and a judiciary that efficiently and 
fairly adjudicates disputes--are made central tenets of Chinese life 
and the normal experience of the Chinese people.
    I look forward to learning from our witnesses whether or not they 
believe China is closer to that goal today.
    Thank you.
                                 ______
                                 

 Prepared Statement of Hon. Sam Brownback, a U.S. Senator From Kansas, 
          Member, Congressional-Executive Commission on China

                           SEPTEMBER 20, 2006

    Thank you for holding this hearing, Mr. Chairman, and for 
assembling a distinguished panel of witnesses. Today the Commission is 
releasing its annual report and yesterday, the members of the 
Commission, including myself, had the opportunity to cast our votes. I 
did not approve this year's report and I would like to take just a few 
minutes to explain why.
    Back in 2000, almost exactly six years ago today, the Congress 
granted permanent normal trade relations with China. PNTR was 
considered not only the best economic deal for the United States, but 
also was seen as one of the best ways to support reform in China. One 
of the key provisions of the PNTR bill was the creation of this 
Commission to act as the watchdog on China human rights. By statute, 
the Commission is charged with monitoring the broad human right's 
situation in China and it does this by holding hearings, conducting 
research, and management of a critical data base on prisoners. The 
Commission also is required to publish an annual report that is 
designed to guide U.S. policy toward China based on its human rights 
record.
    In my opinion, this report does not meet that goal. The Commission 
staff has done an incredible job pulling together a strong and 
compelling narrative with over a thousand footnotes on what has 
happened over the past year in the specific areas of concern in China. 
And the continuing human rights abuses they have reported are very 
troubling.
    The report is weak however, in the conclusions it draws and the 
recommendations to the executive and legislative branches. What 
troubles me is the scorecard mentality we take toward human rights in 
China--one activist released but two arrested. One new law passed, 
three more laws completely ignored. It's not clear to me if such an 
approach gives us a broad view of the state of human rights in China 
today.
    I believe that any discussion of regression or progress in China 
has to address the fundamental issue of China's one-party dictatorship. 
Without recognition of the centrality of this fact, we are left 
treating the symptoms but not the disease.
    We should not hesitate to call a spade a spade. We should not 
hesitate to say 
explicitly that the fundamental obstacle to true reform in China is the 
Chinese Communist Party because the Communist Party continues to 
control all facets of Chinese political and social life. This type of 
one-party dictatorship prohibits the functioning of an independent 
judiciary, freedom of expression and the development of other freedoms 
enjoyed by citizens in a liberal democracy. Absent reforms in the 
political and civic spheres in China, incremental legal, social and 
economic reforms detailed in this report will never lead to true human 
rights or rule of law in China.
    And what does this mean for U.S. policy? It means we can't be 
fooled into believing that years of rule of law training will in and of 
themselves lead to the development of rule of law in China. External 
aid cannot substitute for internal will to reform. What China has now 
is the Communist Party's ``rule by law'' and this will not be 
supplanted with ``rule of law'' without fundamental change in the one-
party structure of control by the Communist Party.
    Recently China has started rounding up and jailing lawyers who are 
simply trying to use China's own system of laws to fight for the rights 
of ordinary citizens. These are not protestors throwing Molotov 
cocktails hoping to overthrow the government. These are principled men 
and women who simply want to use the tools supposedly given to every 
Chinese citizen to exercise their rights under the Chinese legal 
system. Apparently even that goes too far for the Party and these 
rights defense lawyers are being harassed, beaten, arrested and 
sentenced to lengthy prison terms. One of these brave activists, Wang 
Yi, summed it up succinctly: ``If even the rights defense movement 
cannot succeed, then there is really no hope for China.''
    The relationship between rule of law and human rights is 
inviolable. We will not see an improvement in human rights without the 
rule of law in China. If we truly want to see change in China, we need 
to engage the Chinese on the most fundamental issue--their one-party 
dictatorship and the need for true political reform that will bring 
about a representative democracy. This is what the Commission should be 
advocating and where recommendations to drive U.S. policy toward this 
end would be most effective. This is what is missing in this year's 
report and what I hope to see in next year's report.
    I would like to ask that my full statement be made a part of the 
record. Again, thank you Mr. Chairman for convening this hearing and I 
look forward to hearing from the witnesses.
                                 ______
                                 

 Prepared Statement of Hon. Steven J. Law, Deputy Secretary of Labor, 
          Member, Congressional-Executive Commission on China

                           SEPTEMBER 20, 2006

    Thank you, Mr. Chairman.
    I would like to commend the staff of the Commission for their 
diligent work in producing the 2006 Commission Annual Report on human 
rights conditions in China. It is important to note both the progress 
China has made over the last year--as a result of both advocacy and 
engagement by the United States and by members of this Commission--and 
acknowledge the challenges we still face in the areas of human rights 
and political freedom in China.
    In its 2005 Annual Report, the Commission identified several 
problematic areas relating to labor conditions in China. Among them:

         Wage and pension arrears are among the most important 
        problems that Chinese workers face, and
         Workplace health and safety conditions are poor for 
        millions of Chinese workers.

    As the 2006 Annual Report notes, over the course of the past year, 
the U.S. 
Department of Labor continued to engage China to implement bilateral 
cooperative activities to address these challenges. During the year, we 
provided training to Chinese officials who are responsible for 
enforcing the Chinese labor code. We educated company managers on 
worker rights and work safety. We also provided education and legal aid 
to migrant and women workers who are among the most vulnerable 
population in the workforce.
    I would like to highlight a few indicators of the achievements 
resulted from such bilateral cooperation:

         As of April 2006, the Rule of Law project trained 
        8,522 participants (migrant workers, management 
        representatives, and government inspectors) and produced 
        153,000 worker awareness publications to publicize wage and 
        hour laws and other labor regulations.
         1,150 workers received counseling services.
         Among the migrant workers participating in the 
        project, the percentage of workers able to list three or more 
        workplace rights increased to 96 percent in the first quarter 
        of 2006, up from 23 percent in 2005.
         The Rule of Law project is assisting in the drafting 
        of China's first Employment Contract Law, which is expected to 
        improve worker protection and reduce the conflicts and 
        inconsistencies between laws that impede the enforcement of 
        exiting labor regulations.
         At the coal mines participating in a DOL project, the 
        number of injuries per 1,000 miners decreased from 7.7 in 2003 
        to 1.86 in the first half of 2005.

    While acknowledging these positive developments, we still face 
several challenges in our engagement with China on worker rights and 
labor standards. Some of these challenges arc daunting. We call on the 
government of China to hilly respect international labor standards and 
the principles embodied in the [LO 1998 Declaration on Fundamental 
Principles and Rights at Work. These principles include:

         The elimination of all forms of forced or compulsory 
        labor;
         The effective abolition of child labor; and
         The elimination of discrimination in respect of 
        employment and occupation.

    The 2006 Annual Report that we are releasing today finds that there 
is ``an increase in the number of labor disputes'' in China.
    Today, China is at a critical juncture with a significant rise in 
strikes, marches, demonstrations and mass petitions. The Department of 
Labor is currently working with China to address the challenges in 
employee-employer relations:

         Through the Rule of Law project and working with 
        Chinese government, researchers and enterprises, China 
        completed the first comprehensive baseline survey on labor 
        dispute resolution in April of this year;
         The survey report, along with a list of 
        recommendations, serves as a much needed reference in drafting 
        China's Labor Dispute Resolution Law, which is reportedly to be 
        ready for consideration this year;
         Over the last year, the project set up labor-
        management committees at 15 selected enterprises in China and 
        provided training to committee members on ways to handle 
        workplace disputes; and
         The project is testing training materials for 
        government mediators on labor dispute resolution techniques. 
        Training is expected to begin in November.

    Thank you, Mr. Chairman, for the opportunity to note the positive 
development in the labor areas in China and the continued work that 
needs to be done in these areas.

 Prepared Statement of Franklin L. Lavin, Under Secretary of Commerce, 
          Member, Congressional-Executive Commission on China

                           SEPTEMBER 20, 2006

    Thank you, Chairman Hagel, Co-Chairman Leach, Senators, Congressmen 
and fellow members of the Commission. I commend the staff for its 
excellent work on the 2006 Annual Report on human rights conditions and 
the development of the rule of law in China. I also thank the 
distinguished group of witnesses gathered today to discuss the current 
state of freedom of expression, criminal and civil rights defense, and 
government transparency in providing information about prisoners of 
conscience in China.
    For more than 25 years, the United States has pursued a policy of 
open commercial exchange with China. We have encouraged Chinese leaders 
to embrace market principles and welcomed China into the global 
economy. We supported China's accession to the World Trade 
Organization. We have an optimistic goal of a stable and prosperous 
partnership between America and China that will be better achieved with 
China fully participating in the international trading system.
    Economic cooperation between the United States and China has 
greatly benefited both countries and we believe that the dynamic growth 
that China has realized through free trade and will work for our mutual 
benefit in the future. With this in mind, we also believe that there is 
a relationship between open economies and open societies and expect 
that economic progress is likely to be accompanied by progress in human 
rights and the rule of law.
    Indeed, we approach this Commission with a fundamental belief that 
progress in human rights and the rule of law are essential for China to 
maintain its economic progress. We also have a fundamental concern 
about the relationship between commercial rights of U.S. companies and 
individual rights. Further, we want U.S. companies to be good corporate 
citizens in their overseas activities, respectful of the rights of 
workers and other stakeholders. We must measure how well and how 
transparently China treats both companies and individuals under the 
law. We are also concerned about the role of U.S. companies doing 
business in China as well as how China treats these companies. How 
these companies perform in their dealings with the Chinese government 
and in the Chinese commercial environment has a bearing on future 
progress in human rights for Chinese citizens.

                                 
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