[House Hearing, 112 Congress]
[From the U.S. Government Publishing Office]
CURRENT CONDITIONS FOR HUMAN RIGHTS
DEFENDERS AND LAWYERS IN CHINA, AND IMPLICATIONS FOR U.S. POLICY
CONGRESSIONAL-EXECUTIVE COMMISSION ON CHINA
ONE HUNDRED TWELFTH CONGRESS
JUNE 23, 2011
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CONGRESSIONAL-EXECUTIVE COMMISSION ON CHINA
LEGISLATIVE BRANCH COMMISSIONERS
To Be Appointed
SHERROD BROWN, Ohio, Cochairman
MAX BAUCUS, Montana
CARL LEVIN, Michigan
DIANNE FEINSTEIN, California
JEFF MERKLEY, Oregon
SUSAN COLLINS, Maine
JAMES RISCH, Idaho
EXECUTIVE BRANCH COMMISSIONERS
SETH DAVID HARRIS, Department of Labor
MARIA OTERO, Department of State
FRANCISCO J. SANCHEZ, Department of Commerce
KURT M. CAMPBELL, Department of State
NISHA DESAI BISWAL, U.S. Agency for International Development
Douglas Grob, Staff Director (Cochairman)
C O N T E N T S
Opening statement of Hon. Sherrod Brown, a U.S. Senator from
Ohio, Cochairman, Congressional-Executive Commission on China.. 1
Wickeri, Elisabeth, Executive Director and Adjunct Professor of
Law, Leitner Center for International Law and Justice, Fordham
Law School; and Executive Director, Committee To Support
Chinese Lawyers................................................ 3
Li, Xiaorong, Independent Scholar................................ 6
Cook, Sarah, Asia Research Analyst and Assistant Editor, Freedom
on the Net, Freedom House...................................... 7
Lewis, Margaret K., Associate Professor of Law, Seton Hall Law
Wickeri, Elisabeth............................................... 28
Li, Xiaorong..................................................... 29
Cook, Sarah...................................................... 41
Lewis, Margaret K................................................ 44
CURRENT CONDITIONS FOR HUMAN RIGHTS DEFENDERS AND LAWYERS IN CHINA, AND
IMPLICATIONS FOR U.S. POLICY
THURSDAY, JUNE 23, 2011
Commission on China,
The roundtable was convened, pursuant to notice, at 2:13
p.m., in room 328A, Russell Senate Office Building, Senator
Sherrod Brown, Cochairman, presiding.
Also present: Senator Jeff Merkley and Nisha Desai Biswal.
OPENING STATEMENT OF HON. SHERROD BROWN, A U.S. SENATOR FROM
OHIO, COCHAIRMAN, CONGRESSIONAL-EXECUTIVE COMMISSION ON CHINA
Senator Brown. Thank you for joining us today. We really
appreciate the attendance of all of you. It's my pleasure to
welcome everyone to this important roundtable on ``Current
Conditions for Human Rights Defenders and Lawyers in China, and
Implications for U.S. Policy.''
Commissioner Merkley will be here shortly, I believe. I'm
not sure that Nisha Desai Biswal is here yet. She is the
Assistant Administrator for Asia at the U.S. Agency for
International Development [USAID]. I believe she will join us,
I've been a member of the Congressional-Executive
Commission on China since 2002 after the House and Senate
passed permanent normal trade relations [PNTR] with China. The
Commission has done excellent work in raising awareness about
human rights and the rule of law in the People's Republic of
China. I was honored to be appointed cochair of this Commission
in early May.
The Commission monitors developments in China closely and
creates records of cases of political imprisonment in China.
This year alone the Commission has created over 400 records for
the Commission's Political Prisoner Database.
In addition, in 2011, the Commission has already published
39 reports on human rights and the rule of law in China, and is
now preparing its annual report due out in October.
As cochair, I am privileged to host this roundtable on such
an important and timely issue. There are a number of Commission
vacancies. I hope that they will be filled soon. In the
meantime, I want to ensure anyone that is interested in the
Commission's work, that it will continue and that the
outstanding staff has continued this important mission. When
all the Commissioner slots are filled, we will begin the robust
agenda of hearings and roundtables.
Before we get started, I'd like to thank Doug Grob behind
me, the Staff Director, who will be leaving the Commission, for
his tremendous service to our country. I look forward to
working with him in his new role. Thank you for all that you've
done with this Commission.
I'd also like to thank Lawrence Liu who, when I have to
leave in about 30 or 40 minutes, will chair this roundtable.
Many of you know him very well, having served as Acting Staff
Director for the foreseeable future.
Also, I wanted to introduce Wei Jingsheng, who walked the
halls of Congress with me and others in 1999 and 2000 in
opposition to the congressional vote that took place, and I
appreciate his courage, two decades of courage, that he showed
in China and his activism since in Canada and in our country,
and I'm so appreciative that he has joined us.
Our work continues. This roundtable is not only timely, but
critical to the U.S.-China relationship. In February of this
year the Chinese Government launched one of the harshest
political crackdowns in years. Just in the last four months,
hundreds of citizens have been interrogated, placed under
illegal house arrest, sent to labor camps, or detained. More
disturbing has been the so-called disappearance of more than 20
Chinese citizens. Officials have simply taken them away without
saying why or where they're being held. Detained outside of the
legal process, they obviously face the risk of torture.
Those targeted include many of China's most prominent
rights advocates, lawyers, whistleblowers. They include the
well-known artist, Ai Weiwei. Ai has advocated on behalf of
schoolchildren killed in a devastating earthquake. Chinese
police detained Ai in April. He was just released on bail this
week. We know that's not really real release and we still are
concerned about him and still not happy with what has happened
to him, even with being released on bail.
The government has also detained people like the human
rights lawyer Teng Biao. Teng is a well-known law professor at
one of China's top universities. When not teaching, he is a
tireless advocate for some of China's most vulnerable. He has
helped defend poor, indigent, criminal suspects and has
advocated for enslaved child workers. In February, Teng
disappeared for months and only resurfaced recently.
In any modern society, brave and noble citizens such as Ai
and Teng would be celebrated. Why does the Chinese Government,
we ask, consider them enemies? What does this crackdown mean
for human rights lawyers and for activists who follow in their
footsteps? What role has the Internet and social media played
in the crackdown? What does the Chinese Government's disregard
of its own laws in these cases, a disregard well-documented by
this Commission, mean for legal reform and the rule of law in
China, and how should the United States respond?
As we begin, I'd like to introduce the other participants
in the roundtable and ask each of them for their comments, and
then we'll begin to do questions and discussion. Let me start
with USAID's Nisha Biswal. If you would be willing to start,
Nisha, with your comments. Are you ready or do you want to wait
a minute? Okay. Okay. Fair enough. Thanks. Welcome. Good to see
To my right is Elisabeth Wickeri, who is Executive Director
and Adjunct Professor of Law at the Leitner Center for
International Law at Fordham Law School. Professor Wickeri is
also a member of the Committee to Support Chinese Lawyers, and
has published numerous articles on human rights and civil
Elisabeth, why don't you begin. Then I'll go around the
table this way and end with you, Nisha.
STATEMENT OF ELISABETH WICKERI, EXECUTIVE DIRECTOR AND ADJUNCT
PROFESSOR OF LAW, LEITNER CENTER FOR INTERNATIONAL LAW AND
JUSTICE, FORDHAM LAW SCHOOL; AND EXECUTIVE DIRECTOR, COMMITTEE
TO SUPPORT CHINESE LAWYERS
Ms. Wickeri. Thank you. Thank you, Mr. Chairman. I am
really grateful for the opportunity to participate in today's
roundtable and for your leadership on this important topic. I'd
like to thank you, your fellow Commissioners, and the CECC
staff for inviting me here.
I'm here today representing the Leitner Center for
International Law and Justice at Fordham, and specifically the
Committee to Support Chinese Lawyers, which is an independent
nongovernmental organization [NGO] housed at the center.
The Committee is a group of lawyers from outside of China
whose mission is to support lawyers in China in their quest to
support the rule of law there. We do this through public
education, research, advocacy, and outreach.
Today's roundtable is extremely timely and important
because the conditions for rights defenders and human rights
lawyers in China are in flux. Since February 2011, following
online calls for a ``Jasmine Revolution,'' rights defenders and
lawyers have been increasingly detained, disappeared, abused,
and subject to a range of strict methods of surveillance and
control--and this even after their release.
In my comments today I would like to, in particular,
highlight the especially pronounced chilling effect that this
suppression has caused. I will suggest that individuals that
have been most seriously impacted are still in need of public
calls for support, and attention to their cases by governments,
as well as other actors.
Concern for human rights defenders and lawyers in China is
not something we come to anew today. Indeed, on many occasions
over the past several years we have had cause to voice our
concerns about the difficult position for these actors in
China. For example, in the run-up to the Beijing Olympic Games,
during important visits to Beijing by dignitaries on sensitive
historical dates such as June 4, and of course in the wake of
the announcement that Liu Xiaobo would receive the Nobel Peace
Prize, activists would be confined to their homes, brought in
for questioning, and barred from leaving the country. But these
conditions were generally loosened following the completion of
the sensitive moment. Seasoned rights defenders and human
rights lawyers, used to these modes of harassment, would
generally return to their work upon release.
However, in the four months since February of this year,
the situation has deteriorated significantly, in particular for
the human rights lawyers who have, among other things, taken on
the most unpopular criminal defense cases. This deterioration
represents a marked shift in at least two ways, I think. First,
the breadth of the crackdown that led to the detention and
disappearance of so many individuals--as you mentioned, at
least 20 disappearances and detentions, many more people
harassed and people put under surveillance.
Second, in the wake of the eventual releases of these
individuals, there is an eerie silence among lawyers and other
defenders who had previously remained vocal and outspoken in
carrying out their work that was admittedly already unpopular
with the authorities. Even casual meetings for lunch or coffee
have become difficult to arrange because of the fear of
associating with others working in the field. This is
especially true, of course, for meetings with foreigners.
The result of these two differences has been a substantial
chilling effect and a reduction in the space available and
people willing to carry out human rights and legal advocacy in
The fact that lawyers and rights defenders have come out of
detention less willing to return to work tells us a little
something about their experiences before, during, and after
detention. Many were simply disappeared as opposed to being
formally detained. Reports emerged about serious mistreatment,
abuse and torture while they were held.
On release, people have had to sign statements admitting
guilt or promising to behave. In the aftermath of their
detention, they and family members have lived under very strict
conditions, ranging from constant surveillance to family
members being arrested with the defender, to young children not
being permitted to leave home to attend school.
And as troubling as these stories are, it is the silence
among formerly outspoken and energetic lawyers that is
especially troubling to me and suggests that in the immediate
aftermath of this crackdown, legal advocacy and human rights
work in China is stalled. It has become more difficult in
particular to find lawyers who are willing to take on sensitive
cases, including where lawyers themselves are accused of a
Shanghai-based lawyer Li Tiantian, who was disappeared on
February 19 and reemerged on May 24, is one of the few
individuals who has spoken out about her experience. She noted
on Twitter that ``the kind of fear that you can describe is
small, while the kind of fear that you can't speak of is the
Lawyers are important, not because they are lawyers, per
se, but rather because they have a multiplier effect with
respect to human rights promotion and protection. They play a
fundamental role within the system, protecting the rights of
other civic actors, vulnerable citizens, and activists. Their
special role, however, also makes them the target of attacks by
Well before February this year, human rights lawyers in
China faced serious challenges to fulfilling their professional
responsibilities through legal and procedural obstacles,
intimidation and abuse, and extralegal attacks. This treatment
of lawyers gives us a vital window into what is happening in
The significance of the fear that Li Tiantian speaks of
cannot be understated. The role of human rights lawyers does
not rest solely on whether or not their cases are successful.
Indeed, these successes may be few and far between. The
importance, rather, is based on the possibility of their
success when they are able to try.
So what policy implications emerge from this? I have four
preliminary thoughts. First, that more voices, including those
from the U.S. Government, are needed to call attention to the
many individuals that have been targeted in this recent wave of
attacks. Through this attention they may be supported and
provided some more space to work. This includes public calls,
as well as sustained private dialogue with Chinese actors,
official and unofficial.
Second, that international standards promoting the rights
and freedoms of human rights defenders and lawyers should be
promoted and used to demonstrate how lawyers' rights and
others' rights are being curtailed. Specifically, the U.N.
Basic Principles on the Role of Lawyers, which members of the
U.N. General Assembly, including China, adopted without
dissent, are useful and can also support existing Chinese
Third, expanding opportunities for the training and
exchanges of Chinese lawyers with colleagues abroad remains an
important avenue and provides space for much-needed dialogue,
but these must also include Chinese lawyers doing rights
defense and other public interest work.
Fourth, as Professor Jerome Cohen, a member and Senior
Advisor to our Committee to Support Chinese Lawyers has
increasingly emphasized, there is a need for foreign lawyers,
many of whom benefit from doing business in China, to stand up
and speak out for their Chinese colleagues.
Finally, I'll end on what I hope are two somewhat positive
notes. First, there are some well-connected lawyers and legal
scholars who have begun to express concern for their
marginalized colleagues. These can only benefit from being
supported by other expressions of support inside and outside of
Second, I was also happy to see, somewhat hesitantly, that
Ai Weiwei was released yesterday. An advocate for change, it is
troubling that he was detained for so long with so little
information about his condition. But it is a case that perhaps
demonstrates how sustained media attention and public calls can
have positive results.
Again, I'd like to thank you for this opportunity and I'm
happy to answer any questions you and others may have.
[The prepared statement of Ms. Wickeri appears in the
Senator Brown. Thank you, Ms. Wickeri.
Xiaorong Li is an independent scholar who has published
numerous articles on topics including human rights and
democracy. Since 1989, she has served as an executive director
on the boards of human rights organizations which she has co-
Thank you for joining us.
STATEMENT OF LI XIAORONG, INDEPENDENT SCHOLAR
Ms. Li. Thank you. Thank you all.
The serious backsliding of the Chinese Government's human
rights records started before the 2008 Summer Olympics,
highlighted with the jailing of activists Hu Jia, Huang Qi, and
many others; torture and disappearance of lawyers Gao Zhisheng;
imprisonment of Nobel Peace Prize Laureate Liu Xiaobo, and the
house arrest of his wife, both incommunicado; and the house
arrest of Chen Guangcheng after his release.
Yesterday's release of the artist Ai Weiwei on bail,
waiting for trial, was in the same fashion as his arrest, with
total disregard of the Chinese law. All this took place in the
larger context of
increasingly severe restrictions on freedom of expression and
association, repression against religious and ethnic
minorities, and significant roll-back on the rule of law
Since February, according to the information documented by
the group Chinese Human Rights Defenders, the Chinese
Government has criminally detained a total of 49 individuals
outside of the Tibet and Xinjiang regions. As of today, 9 of
them have been formally arrested, 3 sent to reeducation through
labor camps, 32 have been released, but most of them are not
free, out of which 22 have been released on bail to wait for
trial, while 4 remain in criminal detention.
In addition, one individual is being held in a psychiatric
hospital and one lawyer remains under residential surveillance
in an unknown location. At least 24 individuals are confirmed
as having been subjected to enforced disappearance, some for as
long as 70 days, and at least 10 of them remain unaccounted for
as of today.
Given the difficulties in collecting and verifying
information, these numbers are far from being complete. There
are unconfirmed reports that extremely nervous authorities at
the top approved a list of thousands of individuals as the
targets of the ``Jasmine Revolution'' crackdown.
I particularly want to draw your attention to the fact that
the Chinese Government extensively and ostentatiously used
extrajudicial tactics, such as enforced disappearance, secret
detention, and torture in the current crackdown, in clear
violation of the International Convention Against Torture,
which the Chinese Government signed and ratified in 1988.
The abuses included beating, use of electric batons on
genitals, sleep and food deprivation, repeated interrogations
on locations for up to 20 hours at a time, forcible injections,
including injection of unknown substances, and forced
distressed positions, such as sitting motionless on small
stools for many hours at a time, and intimidation on the safety
of their families, and so on and so forth. These are
documented, but we cannot make public who provided the
information, who specifically underwent which torture treatment
because the victims were threatened with severe consequences if
they talked about what they went through.
What impact does this have on U.S. policy toward China? The
Chinese Government has fought back at criticisms, has
threatened with economic sanctions of its own. That should be
expected, but that is not a reason for the U.S. Government to
give up public pressure and replace it with closed-door
dialogue and strategic partnership with China. We see very
little as to what, if any, concrete
outcome is achieved through the U.S.-China human rights
Though the Obama Administration has been unusually
outspoken about China's rights abuses since its second year in
office, the dialogue seems to do more to appease critics of
complacency than to secure any real change. It is a diversion
from the fact that nothing of consequence is being accomplished
because the Chinese Government knows there is nothing to fear
from delivering no concrete results. The government even
welcomes closed-door dialogues because they remove the
spotlight from exposing China's human rights abuses.
The Chinese Government loves to cite the existence or
resumption of dialogues as signs of progress on human rights.
The Chinese Government clearly lacks any political will in this
to curtail its violations. Any quiet diplomacy and behind-the-
door engagement must be coupled with public pressure. Dialogue
and cooperation can be useful, but only when the partner
government shows political willingness to improve. The U.S.-
China human rights dialogues must be tied to concrete and
publicly articulated benchmarks if it is going to continue.
These benchmarks should not be ignored when they prove
inconvenient, or get in the way of U.S. economic and strategic
interests. Substantive international pressure can make a big
difference, as we see in the release of Ai Weiwei, by exposing
or condemning abuses, conditioning access to military aid,
imposing targeted sanctions on abusive individual officials,
and calling for prosecution of those responsible, the U.S.
Government can increase the cost to the Chinese Government for
harassing activists and lawyers.
International pressure can help create space for local
activists to push the government to reform, and we have been
told over and over again by those prisoners of conscience
released from prison that when they knew there was such help
from outside and international pressure on their cases, they
did feel encouraged to fight on and knew that they were not
[The prepared statement of Ms. Li appears in the appendix.]
Senator Brown. Thank you, Ms. Li.
Sarah Cook is the Asia Research Analyst and Assistant
Editor for Freedom on the Net at Freedom House. She has
extensively researched the human rights situation in China and
co-edited the English translation of a memoir by Gao Zhisheng,
the prominent rights attorney who remains missing.
Thanks, Ms. Cook.
STATEMENT OF SARAH COOK, ASIA RESEARCH ANALYST AND ASSISTANT
EDITOR, FREEDOM ON THE NET, FREEDOM HOUSE
Ms. Cook. Thank you very much, Mr. Chairman, and thank you
very much to the CECC for inviting me here today.
One of the topics I have been asked to speak about today is
the Internet dimension of the work of Chinese human rights
lawyers and the repression that they've faced, as well as to
reflect on some of the underlying dynamics that have
contributed to the latest crackdown.
I thought I would focus in my remarks on three points: (1)
how human rights lawyers and activists have used the Internet
and social media in China; (2) the Internet controls these
individuals have faced and how these are actually a microcosm
of a broader and very robust system of Internet control; and
(3) how the long-term practice of the Chinese Communist Party
using arbitrary, extralegal measures to suppress freedom of
expression has actually laid the foundation for this recent
As in many countries, when you go down the list of China's
leading human rights lawyers and activists, almost every single
one of them has used the Internet in very creative ways to
expose human rights abuses, educate fellow citizens about their
legal rights, and advocate for rule of law reforms.
For example, Gao Zhisheng published open letters
documenting the torture and killing of Falun Gong
practitioners. Xu Zhiyong blogged about the inhumane treatment
meted out to petitioners, particularly in ``black jails.'' Teng
Biao used Twitter to be able to alert fellow netizens when he
was being arbitrarily detained, and Ai Weiwei produced a video
of people reading the names of children who had died in the
Sichuan earthquake, and then circulated it online.
But what is different from the dynamics in democratic
settings, and what makes these efforts even more impressive, is
the fact that these people are engaging in such activities in
the context of the most robust, sophisticated, and multi-
faceted Internet censorship apparatus in the world, an
apparatus that, according to a study that Freedom House
released in April, has actually tightened and been enhanced
over the past two years.
When one looks at these particular individuals, and even
the examples I just noted, one finds that they have encountered
the gamut of Internet controls that play out in China today,
from blocked Web sites to disabled blogging accounts, from
``invitations'' to tea, to more lengthy enforced disappearances
and torture. Many of them keep multiple blogs because they have
to play a hide-and-seek game with censors, hoping that even if
commentary on one blog happens to be deleted, perhaps another
blog hosting company will be a bit more lenient.
So, for instance, for Gao Zhisheng to be able to post an
open letter or for Teng Biao to use Twitter, the first thing
they have to do is safely get to the other side of the so-
called Great Firewall. Ai Weiwei and Xu Zhiyong both had their
blogs shut down in 2009 and 2010. And in late 2010, dozens of
lawyers and activists had their personal Internet and mobile
phone communication ability completely shut off in an apparent
effort to stop them from spreading the news about Liu Xiaobo's
Nobel Peace Prize. Then there are the offline tactics, as we've
Although the latest detentions have been the longest, over
the past five years, most of the individuals that we've been
speaking about have at one point or another encountered some
form of abduction, beating, or torture, including being shocked
with electric batons.
One particularly insidious dynamic that I thought would be
worth noting is that as these real-world measures against them
have escalated, in some instances we've seen a corresponding
implementation of censorship related to these individuals'
names, essentially an attempt to make them disappear in the
virtual world as well as in the real world.
So, following Ai Weiwei's abduction in April, censorship
was not only applied to his name, but there are leaked
censorship directives that indicate there were orders to delete
within 10 minutes an editorial that made a veiled reference to
Ai Weiwei's work and advocacy on the Sichuan earthquake.
Gao Zhisheng, who has been disappeared for over a year, had
his name specifically listed as a sensitive key word on the
list of such words leaked by an employee of Baidu, the largest
search engine in China, in 2009. A quick test that we at
Freedom House had
conducted shows that a search of Gao Zhisheng's name on Baidu,
produces mostly state-run news sources referring to him as a
``criminal.'' There are no links to his own writings.
What is striking in the case of both of these men is that
in an earlier era they were actually the subject of quite a bit
of official support and media attention. So, Gao Zhisheng, in
2001, was named one of the top 10 lawyers in China in a
televised legal debate competition hosted by the Ministry of
Ai Weiwei, as many of you may know, was invited to design
the Bird's Nest for the 2008 Beijing Olympics. But a few years
later, as their advocacy increased and they started touching on
some of the human rights abuses that the Chinese Government
wants most hidden, the state is now hoping that people will
forget that they exist as well.
So why is this happening? As other panelists have noted, we
at Freedom House have also observed in our various assessments
of political rights and civil liberties a backsliding in the
Chinese Government's commitment to the rule of law since 2006,
and even more so since 2008.
But what is worth noting is that even during the earlier
part of the decade when limited legal reforms appeared to be
moving forward, in parallel there still existed a very
extensive extralegal world, a world of makeshift detention
centers, forced labor camps, and plainclothes police forces
torturing with impunity. In fact, that is the world that tens
of thousands of petitioners and Falun Gong practitioners have
been experiencing for years.
Many of the lawyers that we're talking about today actually
encountered that world and they talk about it in their
writings, voicing concern that the tactics and strategies
developed to suppress one group can be quickly and easily
applied to others, putting every Chinese citizen at risk.
So, looking at the current series of abductions, they
cannot be viewed in a vacuum. Rather, what we're seeing
manifest in recent months is an expansion of suppression. It is
a reflection of a decision taken somewhere at the top of the
Party that a group of individuals whose work and activism had
previously been tolerated are now persona non grata, and that
the Party is willing to apply the full force of a preexisting,
extralegal, repressive apparatus to silence them. Of course,
such a decision is made possible by the fact that Party leaders
are unconstrained by institutional mechanisms, like an
From that perspective, I think if Gao Zhisheng and some of
the other lawyers were here today, one thing that they would
recommend is for U.S. policy to go beyond focusing only on
them, despite the urgency of their plight. When you read their
writings, you see that they urge serious action to address the
full range of clients and causes they have defended.
Taken together, the victims of Communist Party repression
go far beyond dozens of activists, amounting to tens of
millions of people. As Ms. Wickeri noted, the lawyers
themselves have encountered many of these abuses and represent
a microcosm of what is happening much more broadly in China.
The lawyers would say that when the day comes that these
people have their rights protected, that is when lawyers will
no longer need to worry about being abducted or disbarred
either. So, one of the main recommendations we would offer is
to really give serious thought to what are some of the longer
term strategies the United States can adopt to more effectively
address the broader range of human rights abuses in China,
particularly those suffered by the most vulnerable and abused
groups, such as petitioners, Falun Gong practitioners, Uyghurs,
Tibetans, and others who are often caught up in this extralegal
I have some other recommendations I have thought of, but I
think my time is up so I will stop there. I would be happy to
expand on any of the above during Q&A.
[The prepared statement of Ms. Cook appears in the
Senator Brown. Thank you, Ms. Cook. And we'd like to have
your recommendations for sure in writing, if not spoken also.
We are joined by Senator Merkley from Oregon. Thank you,
Jeff, for joining us.
Margaret Lewis, Associate Professor of Law at Seton Hall.
Her research focuses on the intersection of Chinese legal
studies with criminal procedure, criminal law, and
international law. She is a Public Intellectuals Program Fellow
with the National Committee on U.S.-China Relations.
Thank you for joining us, Ms. Lewis.
STATEMENT OF MARGARET K. LEWIS, ASSOCIATE PROFESSOR OF LAW,
SETON HALL LAW SCHOOL
Ms. Lewis. Thank you, Mr. Chairman and distinguished
members of the Commission for inviting me to join this
roundtable, and for all of the work of the Commission on
helping Americans to understand China better, including these
specific issues at hand.
In my brief opening remarks, I've been asked to place the
recent crackdown in the broader context of what this means for
overall legal reform and rule of law developments in China,
specifically with regard to criminal justice reforms.
The path of legal reform in China never did run smoothly,
but I think that it is fair to say that now is a particularly
challenging time for legal reform in China. In part, this
reflects the over-arching political climate that emphasizes
stability and is wary of anyone who is seen as rocking the
A week from tomorrow, July 1, marks the 90th anniversary of
the founding of the Chinese Communist Party. The Party has
demonstrated, I think, impressive adaptability over its six
decades of uninterrupted rule. Now, despite reports about some
disagreements among the high leaders of the Communist Party,
what the public face has been is orderly transition on a
periodic basis. This was seen in the early 2000s when we went
from the third generation to the fourth generation leaders, and
is currently playing out to the fifth generation leaders.
As the composition of the Politburo Standing Committee and
the top leadership is taking shape, I think it is not
surprising that candidates for the next generation of
leadership are going to take a risk-averse stance when it comes
to advocating for significant reforms, especially if those
reforms might be unpopular with the current leaders. Looking
beyond the immediate term, the current and rising members of
the Party leadership have openly applauded the harsh law and
order tactics used by Bo Xilai, who is the Chongqing Party
secretary and a rising star on the national scene.
This praise for Bo's tactics raises serious questions,
whether even after the leadership transition takes place will
we see a more pro-reform climate. Exacerbating this cautious
climate is the leadership's awareness about the popular unrest
in the Middle East and the concern that fermenting discontent
at home could blossom into China's own ``Jasmine Revolution.''
It is difficult to qualify and figure out exactly how much
public discontent is out there. We know that there are
thousands and thousands of mass incidents. But at a minimum,
what we're seeing out of Beijing is a change in rhetoric; they
are not just talking about harmonious society, which is even on
the front of trains now, but emphasizing social management and
stability. Social management means keeping a lid on things.
From a legal reform perspective, my concern is that the
government fundamentally views lawyers as undermining stability
rather than improving it. When I was in China last month, I
personally was struck by the hesitancy--and Ms. Wickeri
mentioned this too--of people to speak candidly about legal
reforms in a variety of meetings. This is even markedly worse
than when I was there last year. There has been a shift in
attitude and people are seeing a chilling effect about what
kind of conversations we're able to have, even in unofficial
Turning particularly to how this climate impacts criminal
justice reforms, there is no shortage of formal laws and
regulations on the books. In fact, this past year we saw some
ostensibly promising reforms. With respect to the criminal law,
there was an amendment to the large criminal law this spring
that reduced the number of death-eligible crimes by 13,
limiting it now to 55 offenses as opposed to the prior 68.
In reality this decrease is unlikely to have a real effect
on the number of executions because the crimes they removed
were seldom used anyways, so it looks much better than it
probably will be in practice.
As a further example of legal reforms in the criminal
justice realm, this past year we also saw two new sets of rules
dealing with evidentiary issues, and in particular an ability
to suppress illegally obtained evidence and, most
conspicuously, coerced confessions.
The problem is, the lawyers that are actually trying to
seek to implement these rules are running into political road
blocks. At most, we've heard of maybe one or two examples of a
lawyer actually being able to suppress illegal evidence, and
even in that case I guess the evidence got in through another
route so it had little practical impact.
In addition to the substantive challenges of the lawyers
trying to be zealous advocates for their clients, what also is
happening is the lawyers themselves are ending up being the
criminal defendants. We saw this in 2010, most notably with
lawyer Li Zhuang, who was actually convicted for encouraging
people to give false testimony.
Considering such perils and also the general lack of social
prestige for defense work, I think it's a wonder that people
pursue careers as criminal defense lawyers in China at all,
especially outside of the world of relatively financially
lucrative white-collar crime.
But in speaking about the role of lawyers, it bears
emphasizing that the topic of today's roundtable is the current
conditions of both lawyers and rights defenders. As a member of
the legal profession myself, I hope that all lawyers seek to
defend people's rights. But in China, so-called rights
defenders go beyond licensed lawyers. There is a separate
population of non-lawyers who are nonetheless seeking to use
the legal system to effectuate change in China.
Of course, exemplifying this is the blind activist Chen
Guangcheng, who taught himself enough law that he could help
out his fellow villagers with their grievances against the
government. But since completing his four-year sentence for
disturbing traffic and damaging property, Chen and his family
have been held under informal house arrest and reports of
government-sanctioned physical abuse underscore that the term
``soft detention'' utterly fails to capture the harsh reality
that is Chen's post-prison life.
Going forward, a key question is how can the PRC government
manage expectations of the populace in the face of a greying
population, growing environmental pressures, and other
destabilizing effects. The incorrigible long-term optimist in
me wants to believe that the government will eventually view
lawyers as a positive force to help express citizens'
grievances and effectively channel those grievances through a
formal process instead of leaving people to go to the streets
with their frustrations. However, at present the emphasis is on
the rhetoric of the rule of law with a reluctance to allow
people to actually make use of the laws in a meaningful way.
So finally, what are the implications for U.S. policy in
light of this challenging landscape? The official U.S.-China
human rights dialogue and the slightly less official legal
experts dialogue are valuable, I think, for maintaining high-
level bilateral discussions, though I think we must keep our
expectations very modest when it comes to how these forums
might actually spur legal reform in China.
Though we cannot expect instant gratification from more
informal legal cooperation, I remain convinced that sustained
interpersonal contacts will serve as a positive force for legal
reform. For example, China's efforts to reduce wrongful
convictions opens up possibilities for collaboration on
projects regarding evidence techniques, including use of DNA
evidence. Indeed, the new rules addressing the exclusion of
illegally obtained evidence followed years of comparative legal
work and many projects involving foreign assistance.
The scope of substantial bilateral collaboration is no
doubt limited at present, but there are shared avenues of
interest that dovetail with the Chinese Government's stated
areas of reforms and that can, and should, be explored.
Thank you for the opportunity to present a few thoughts. I
look forward to our discussion.
[The prepared statement of Ms. Lewis appears in the
Senator Brown. Thank you very much, Ms. Lewis.
I will open the questioning and then turn it to Senator
Merkley, who will chair the Commission after I leave.
Ms. Li and Ms. Wickeri, your comments on sort of an array
of things in terms of how important it is that the American
Government and individual American elected officials and
activists speak out, and what that means to prisoners, and what
that means to human rights activists, is noted. Your comments
that in some sense though the Chinese think they have nothing
to fear because there is not much oomph behind our speaking out
here in terms of what our government did. I heard your comments
about President Obama and sort of what we do or don't do as a
country, and how activists and people who have been imprisoned
or on bail, how they're encouraged by international support. I
hear all of that.
I remember 10 years ago, when Wei Jingsheng said to me as
we were talking about PNTR, he made a statement which was a bit
incendiary, but with great insight, I thought. If I could
recall more or less exactly how he said it, although he said it
in Mandarin and it was translated, obviously. He said the
vanguard of the Communist Party in the United States is
American CEOs, as they were lobbying the U.S. Congress for
Are American lawyers--not human rights lawyers--in China
today working for U.S. corporations, are they potentially
allies of any of these human rights activists? Are they allies
for other lawyers? Are there ways that we can reach them in a
way that they will stand up for human rights in China or are
they a lost cause because they do not want to jeopardize their
position in the larger Chinese economy? And any of the four,
you can answer that, but I'm looking at you two because you
kind of led me to asking that.
Ms. Li. Well, I certainly believe they can be a force for
the good cause. I don't want to make any sweeping statement to
lump them all into one category or another.
Senator Brown. Well, let me interrupt if I could. Have you
seen examples of it where that has happened, any of you? The
more important issue is, how do we make that happen?
Ms. Li. The thing is how individual American businessmen,
lawyers, and anybody that goes to China doing something, what
can they do? That's the larger question. I believe, in talking
to a lot of activists, including Mr. Wei here who probably
agrees with me, we need to change the system in China. What we
all as individuals can do is to prepare for that change.
We cannot, by any one of those professional groups in China
from America--nobody can really change until the system itself
has itself been changed. So in a way, lawyers, for example,
going to China could be putting Band-Aids on a very sick system
by saying, okay, ``improve your prison.'' For what? So the
authorities can be more efficient to manage prisoners? Or
telling authorities ``improve your police force.'' But again
for what? So they can be more effective in crowd control when
faced with protesters?
Those things can be helpful when the system changes, but if
the system doesn't change, all those things, years, years, more
than 20 years, the United States has been pouring humongous
resources into the ``rule of law reforms'' in China, training
judges, policemen, prison guards, and legislators--as if those
legislators have any independence. All those are the same for
the Chinese activists: they have the outcome, perhaps
unintended, of aiding a repressive machine. But somehow we need
to look at the bigger picture.
What happened in Egypt, in Tunisia, was that citizens had
somewhat more space to organize, assemble, and express their
views than citizens in China. I heard that there was a training
workshop on nonviolent protest tactics for civil society
activists last year in Cairo. That sort of work became crucial.
It's the sort of work that is useful when the bigger movement
comes when the system started to crumble. Those preparations in
civil society can kick into place. In that sense, I support
people going to China to impact civil society, whether while at
the same time doing business, training officials, whatever they
do. But it's the fundamental piece that's missing here if they
only deal with authorities or official outfits alone. The
problem is we still don't see a systematic U.S. Government
human rights policy toward China. How do we prepare for the
kind of crumbling of the system, like what happened in Egypt?
Senator Brown. Ms. Wickeri--sorry to cut you off. The
wealth that U.S. companies and U.S. consumers are helping to
create in China, the argument against what Wei Jingsheng said a
decade ago was that as there's more companies there and more
wealth and more of a middle class, that freedom would follow.
There are many examples in history where that didn't happen,
but that was the argument they made. Is that happening? Is
there a way of helping to make that happen? Is there a way of
empowering or encouraging U.S. corporate lawyers, for want of a
better term, to step up and work on all the things that the
four of you have devoted your professional lives to?
Ms. Wickeri. Yes. Certainly one of the things that the
Committee to Support Chinese Lawyers was founded for was to try
and tap the resources of that community, of the community of
corporate lawyers and other business people working inside
China and benefiting from that work. It is not an easy task to
make the issue of the role of human rights defenders and the
crackdown on human rights lawyers relevant to corporate lawyers
working for American law firms in Beijing. There have been a
lot of informal conversations, but in terms of constituting
formal meetings in Beijing--or even less so elsewhere in the
country--among American lawyers to raise their awareness on
this issue, that's much more difficult.
On the other hand, the Committee to Support Chinese
Lawyers, as well as the New York City Bar Association, has
instituted a number of meetings in New York to try and raise
the awareness of corporate lawyers who have offices in Beijing
about these issues. So we've been doing that, particularly this
year. The New York City Bar, the International Bar Association,
and a number of other professional associations have written
letters to highlight the cases of these individuals.
Whether or not individual lawyers will take on this task
too, or if law firms will, is another question. I think many of
us may have seen Professor Cohen's opinion piece in the South
China Morning Post a couple of weeks ago that looked especially
at this issue, that despite the fact that a lot of different
actors had spoken out on the recent crackdown, law firms have
been conspicuously silent about the fact that their Chinese
colleagues were being especially abused.
Senator Brown. Does Google's about-face give you hope or
make you cynical?
Ms. Wickeri. I'm a hopeful person in general.
Senator Brown. Good answer.
Ms. Wickeri. So I think that I have to answer the question
that way. Certainly the New York City Bar, as well as the
Committee to Support Chinese Lawyers, are trying to encourage
law firms that have practices in China--to take a stand on this
issue. We're just in the early stages of reaching out to
interested parties, so I cannot yet predict whether or not the
Google example will be one that they look to.
Senator Brown. Okay, then, I'm going to turn it over to
Senator Merkley to chair. But I'd like all four of you to think
about what this Commission can do to help empower and encourage
American lawyers, whether they are law firms, whether they're
corporate counsel, here and in China to step up on human
rights, if that's not too tall an order.
Your comments, Ms. Lewis?
Ms. Lewis. I was a corporate lawyer in a former life, so
perhaps I'm more sympathetic. But I was on the New York City
Bar delegation that went to China and met with the Beijing
Lawyers Association and the Shanghai Lawyers Association, and
met with a bunch of foreign lawyers there. I mean, the hard
thing is that for the individual foreign lawyers, they have
clients and they do have a duty as a lawyer to do what is best
for their clients. They're not there as human rights advocates,
so they're very constrained in what they can do.
Senator Brown. Of course. I understand that.
Ms. Lewis. Because they know immediately--and we say this
again and again--they cannot even do real pro bono work like
they would do in the United States. So they do things like give
Senator Brown. Well, all that, if I could be so bold, is
part of the corruption of this whole trade policy, this whole
system, is you can't expect anybody representing their
businesses to ever do the right thing for human rights because
they've got to take care of their businesses here. I understand
all that. Of course, that's their fiduciary responsibility. But
they are also human beings, they are also American citizens
with a set of values. I would hope that might call on them to
do something better.
Ms. Lewis. Yes. But I think we're going to need to get it
out of the city bar or out of the bar associations, not out of
the individual law firms, because no one is going to be the
first mover. I do think there is movement to use the bar
associations, maybe like the American Chamber of Commerce which
has a group of lawyers. We need to try to have it so it doesn't
have the label of ``this individual law firm has taken this
stand,'' but rather try to defuse it a little bit. I think
that's going to be the movement, not getting a name list of
necessarily individual firms.
Senator Brown. Okay.
Ms. Wickeri. Just to build off of that--one result of the
trip that Professor Lewis and I were both on to Beijing and
Shanghai is that the New York City Bar Association now has a
memorandum of agreement with the Beijing Lawyers Association to
cooperate on a number of issues, including human rights. So
this might be one way for American lawyers who are members of
the New York City Bar in Beijing to coordinate efforts and work
on these issues as opposed to highlighting the role of their
Ms. Cook. In terms of examples--and this is maybe more from
the sphere of the Internet world--I would just add that it's
worth keeping in mind the significant power of efforts that
involve the Chinese authorities hearing voices of concern from
populations that they're not used to hearing from. In 2009,
there was the example of the Green Dam software that the
Chinese Government had contracted a company to institute.
All of a sudden, they came out with a regulation that every
PC that was going to be imported to China had to have this
particular software that was supposedly to protect children
from pornography, but actual tests found that it was really
targeted at censoring and very much filtering and monitoring
information, including on issues like human rights groups,
minorities, and Falun Gong practitioners.
What happened was that there was a real outcry from the
Chamber of Commerce and I think there were also complaints from
some legal associations or business associations. These were
combined with the voice of netizens and some of the human
rights lawyers that we've been talking about today. It was
really quite a powerful force because I think it took the
Chinese Government off-guard a bit and they backed off.
Now, they've still implemented this particular software in
schools, but they really backed away from the big, nationwide
policy. So when you really have a multilateral front of
opposition, particularly when people are talking about their
concerns from an economic and commercial perspective, then this
can be effective. The issues relating to broader challenges to
the rule of law in China do not only affect Chinese citizens,
they affect a lot of American companies. That may be one
effective angle for approaching the issue and getting business
or legal firms to speak out against mistreatment of human
rights lawyers. Certainly in the case of the Internet and the
Green Dam software, there was a strong sense that it was going
to damage business for people who were trying to import
technology into China, which is what sparked the outcry.
Senator Merkley [presiding]. Nisha is going to have to
leave in a few minutes. Did you want to share some additional
Ms. Biswal. I did. I wanted, first of all, to just thank
you. This is my first opportunity as a new Commissioner to be
able to participate. So my primary objective in coming today
was to learn, to observe, and to just state my desire and
willingness, on behalf of USAID, to be part of the
conversation. But this is a really interesting and important
conversation that's happening right now.
I do apologize for having to leave early, but I would like
to just pursue that conversation, perhaps, a little bit later
because very key questions that you're raising in terms of how
we influence the rule of law and legal reforms and whether or
not we're having any impact with some of the things that we are
And I think it's probably a little bit early to assess what
kind of impact we're having and whether it's sufficient to
continue, but I think it's a good conversation to be having and
to be constantly looking at the ways that we're approaching
this, and what kind of effect it's having.
I do think that there is a connection between economic
governance, commercial law, and strengthening rule of law at
large, and I think it may not be as direct and as quick and
immediate as we would want, but there is a connection there and
we have to explore that a little bit as well. But again, I just
wanted to thank you, and hopefully invite a conversation in the
near future to continue the dialogue that has started here.
Senator Merkley. Thank you very much for joining us and for
your offer of a continuing dialogue in the future.
I wanted to go back to the number of folks who have
disappeared over the last few months. It was about two months
ago that Senate Majority Leader Reid led a bipartisan
delegation of Senators to China, the largest delegation, to our
knowledge, that's ever gone to China, 10 Senators, bipartisan.
We were arriving there, really in the midst of this situation
with so many folks disappearing. Sarah, I'm not sure if you
covered this before I arrived or someone else did, so if you
did I apologize.
But could one of you that has a good grip on this kind of
summarize what we know about the numbers who have disappeared,
whether it's home detention, whether they've truly disappeared,
as in their families and friends do not know where they are,
the patterns in terms of, are they mostly lawyer advocates, are
they mostly folks who made unfavorable statements in their
Twitter or email accounts, and so forth. Just give us a quick
summary of what that picture looks like.
Ms. Cook. I think Ms. Li had the most comprehensive
Senator Merkley. Ms. Li, I'm sorry I missed that. Can you
just give us the outlines of that again?
Ms. Li. Well, you can supplement if I miss anything. The
disappearance seems to be a tactic applied to those who are
somewhat known internationally. That's number one. Number two,
this tactic seems applied to those who are somewhat known as
being stubborn, who would not bend. The number we have been
able to verify is 30-some individuals who have been
disappeared--and some of them have resurfaced later.
In that category, there are about half lawyers, half of
them activists. Almost all of them have somehow been tied by
authorities to the ``Jasmine Revolution.'' Either they Tweeted,
blogged, or talked at meetings, which were recorded, filmed, or
they used the Chinese equivalent of Twitter to spread the word
about the call for protests. The three largest geographic
concentrations of people being disappeared and being criminally
detained are in Guangzhou, Chengdu, and Beijing.
On all three locations, there were some meetings right
before the so-called ``Jasmine Revolution'' protests and large
numbers of people who attended those meetings, which could be a
affected. In two cases, I think, they were gathering for dinner
to discuss other topics. But during the meetings, somehow they
talked about the anonymous online protests and their
conversations were either secretly filmed somehow or recorded.
Then there are others who were picked up by tracing their
Tweets or blogs.
It's also interesting to note that these affected
individuals are in most cases well-known activists. Not as
well-known as Ai Weiwei, but known in the Chinese activist
community. What is interesting is that they include people who
are petitioners, which means they may not have been political
dissidents. They simply wanted to use the occasion to voice
their own grievances--over unfair handling of their land,
housing, jobs--and then there are quite a few numbers of young
professionals, IT people who are very good on the Internet.
Then, of course, we already know that they included those very
brave human rights lawyers.
Senator Merkley. So these profiles that you're mentioning,
that's of the 30 who have disappeared?
Ms. Li. Yes. In some cases, the line between disappearance
and criminal detention is blurred because some reappeared later
or were accounted for as having been criminally detained.
Senator Merkley. Now, we have several hundred during that
same time period who were put under house arrest, I believe.
Ms. Li. Yes.
Senator Merkley. Were the profiles roughly similar, but
just kind of a lesser level?
Ms. Li. It's very hard to document because all of those who
have been released were warned sternly not to speak up,
otherwise facing severe consequences--before they were sent
home. They were told to stay quiet. Some of them are now being
released on bail, waiting for trial, so they are under
restrictions from speaking about their treatment in detention.
Yes, the numbers of the affected in the crackdown, including
those who were soft-detained at home or questioned, should be
several hundred at least. In a lot of the cases, the families
might be afraid to speak up due to fear of retaliation.
In one case, I want to mention the case of one human rights
lawyer who was disappeared for about three weeks and then sent
home. He was at the time of release very sick and clearly had
been severely tortured. He and his family were told not to
speak a word about his situation, otherwise the consequences
could be very grave. Today, even by now, after a few months,
the person remains in critical condition. Attempts by activists
to contact him to deliver aid or medicine have all been turned
back because the police are standing guard at his apartment.
Senator Merkley. Has the U.S. Government formally inquired
on behalf of the 30 or so disappeared, if you will?
Ms. Li. I believe both the U.S. Embassy in China, and
visiting U.S. officials, prior and after the human rights
dialogue in Beijing, have made statements calling for the
Chinese Government to give an account of those disappeared or
detained individuals. We have also repeatedly submitted various
lists of those individuals. What happened, we all know during
the human rights dialogue in Beijing, Chinese officials first
seriously warned against the U.S. delegates not to mention
individual cases, but when they did, the
Chinese officials at the dialogue actually came well-prepared
with documents of each and every individual mentioned. For
example, when Gao Zhisheng was mentioned, they said Gao is free
and on a business trip. When Chen Guangcheng's case was
mentioned, they said Chen was free at home. When Ai Weiwei was
mentioned, of course he was said to be ``investigated for
economic crimes.'' The same for Liu Xia, the wife of Liu
Xiaobo: she was said to be free at home, and anyone could visit
her at anytime. This preparedness says that Chinese authorities
do mind very much about the outside world knowing about these
individuals and putting pressure on their release.
Senator Merkley. So largely here in the United States,
much of the portrayal of this was kind of a warning shot, if
you will, of the government to the Chinese citizens in regard
to not follow the example of the Arab Spring. Is that your
sense of the motivation of this crackdown on individuals?
Ms. Li. Oh, yes.
Senator Merkley. Yes. Yes. Yes.
Ms. Li. That is clearly the political agenda, which is to
flick out any kind of spark for popular protests.
Ms. Cook. If I may, I think of it in the context of
something that has been building for a while and in the context
of growing resources being devoted to this issue of stability
maintenance. The creation and expansion of an extralegal
network of stability maintenance offices, running through Party
committees down the Party hierarchy, combined with a situation
where a lot of these individuals have already been detained and
warned over their activism, creates a situation in which I
could see the Chinese authorities using the ``Jasmine
Revolution'' calls as an excuse, or maybe a catalyst.
Maybe this was an opportunity for some of the hardliners,
people like Zhou Yongkang, to grab onto these calls and say,
look, we really need to nip this in the bud. More generally
speaking though, a lot of these people have been on the Party's
radar for a while.
The other thing I would mention is the general practice of
Chinese security agencies engaging in disappearances,
abductions, and taking people from their homes without
warrants. These cases are much more difficult to verify, but
when you talk to Chinese refugees or read interviews with
petitioners, or Falun Gong practitioners, or Uyghurs and
Tibetans, these people who are much more anonymous than the
activists we are talking about today and often aren't high-
profile individuals, you find that these are pretty routine
practices. People get picked up and taken to hotels, taken to
schools, taken to so-called legal education centers all the
One thing I know that Freedom House would like to be able
to do more of is to try to document more such cases. It is very
difficult, given the dangers and given the anonymous quality of
sources and how hard it is to know who these people are. But,
as I look at the current situation, that's also the lens and
broader context through which it is important to place higher
It may be that if the Arab Spring protests hadn't happened,
then maybe there wouldn't have been a crackdown of this
severity or within such a concentrated period of time. But it's
something that's been building for a while.
Ms. Lewis. I just want to completely agree that I think the
Arab Spring exacerbated the sensitivity. But the sensitivity
was there already. One of the concerns for those of us who are
more in the academic community is that previously the
government would follow the letter of the law, and the law
often had exceptions which allowed them to say we're following
the law, but according to article whatever we can extend the
detention because of X, Y, or Z.
But like with Ai Weiwei, we were following the time that he
was in detention before being formally arrested, and there's
some key terminology because the actual physically taking into
custody is different than the formal arrest under Chinese law.
The time was going and going. We're like, oh, well, they still
have one more week under the Criminal Procedure Law. Then it
went past even what the Criminal Procedure Law would allow.
They're just flouting the law now. So that was a change, too,
of not even trying to wrap it up in the trappings of ``it fits
our formal law,'' which is particularly concerning.
When I was in Beijing last month when Ai Weiwei was still
detained and we asked some very high-level criminal procedure
scholars about the case, their response--and I think this was
totally true--was, ``We don't know about this case. You keep
asking. It's not like we're hiding the ball, we just are not
hearing about it.'' This is talking about how the information
is not getting out.
Then the next response is, and why do you keep focusing on
this handful of cases? What about the thousands of other cases?
There was also, I think in some of the community there, just
this: ``You foreigners are focusing on this small number, what
about the masses of cases. That's what we're concerned about.''
So I think it's hard at times to get traction among some of the
more high-profile people who we would hope would help out.
Senator Merkley. So one of the things I'd like to get a
better feeling about is really related to protests throughout
China. You hear that there are a lot of labor protests,
essentially folks who have lost their guarantee of a job, their
guarantee of healthcare, maybe even their access to public
schools. Then you hear about protests where land is being taken
away from folks under the local official's argument that, well,
all the land belongs to the state, and then the officials take
and re-sell it to developers and people are displaced. So you
hear about that section of protests, if you will.
So on this China trip I was asking questions a little bit
about, what do you see in terms of broader grassroots reaction
to the human rights side. Their answer was, well, not so much.
Not so much because people don't know about it, they don't have
access to the information, and maybe not so much because
they're occupied with trying to get through their life.
One of the things that I raised was, well, here we're
seeing these cities with these massive numbers of new housing
towers. There was a little bit of a description by some
American officials saying, well, partly that goes hand-in-hand
with the village policies where there's less guaranteed
employment, less guaranteed healthcare, less guaranteed public
schools, and so folks are shifting to the cities. So I was
asking, is there a massive reaction to this, kind of people
being economically forced to go into the city?
The general reaction--I'm sharing this because I want to
get your perspectives--is well, not so much. Many of the young
folks who are moving to the cities, they have fully embraced
this dream of being able to dress the way they would like,
being able to buy their condominium or their apartment in the
city, and having a motorcycle or a car. That isn't particularly
driving a huge reaction. So as we think about the economic
labor issues and the corruption issues, is there any form of
broader reaction on the human rights side or is it really the
lack of information and the set of other issues folks have to
deal with, weighing in?
Ms. Cook. As Ms. Lewis had mentioned, it is very difficult
to gauge this. One thing I found in speaking to Chinese people,
and the ones who have become activists, especially, a lot of
them didn't start off as activists or petitioners. A lot of
them started off as people similar to the ones you have just
described, but at some point, for some reason beyond their
control, they ran into the system.
When they ran into the system, they had faith in the law
and in the system, in a lot of cases, this was partly because
of the government's own rhetoric about rights and a growing
rights consciousness in Chinese society. So, they went to
petition or they tried to find some way of dealing with the
injustice that they encountered within the system, and then
they ran into more problems. Now for some people, when they
encounter that first level of threat, they may just back off.
But then you also have people who will continue to seek
justice, and they continue in this lifestyle that just gets
harder and harder because they run into more and more
When you have a system that is this corrupt and when there
are this many human rights violations and abuses of power
occurring, there are so many people each day running up against
this system. One question the Communist Party faces is: how do
you keep a lid on these things and prevent people from being
informed of the extent to which this is happening and other
people are encountering similar injustices?
A lot of Chinese have some sense that there are injustices
occurring, and in a lot of ways the Internet has opened up room
for more conversations related to certain issues. But in terms
of the systemic problems, a lot of people don't realize the
root obstacles until they run up against them.
I think that it is almost like a game that Communist Party
leaders are playing in terms of how long they can keep a lid on
it. Of course, in such a complex country, you have people with
many different experiences. But there is certainly a phenomenon
of people running into the system and then that generating more
activism. And that goes hand-in-hand with one of the other
things that I've observed in recent years--the sheer rights
consciousness of Chinese people. They are more aware of the
fact that they might have rights. When they speak of rights, it
may not necessarily always be in terms of systemic change and
democracy, but rather based on a more instinctive sense of
having rights and wanting justice.
Ms. Lewis. And I think beyond sort of the individual
injustices, where people are petitioning and trying to get help
with grievances, that we are seeing very high-profile cases
that are galvanizing larger groups. For example, the case of
Zhao Zuohai. He is a man who was convicted of murder. A
headless body was literally found at the bottom of a well. Zhao
Zuohai had had a quarrel with someone who had since
disappeared, so they said, well, this must be the body of the
man you quarreled with, you did it. He was sentenced to death.
That was commuted into a long prison sentence. Ten years later,
whoa, the dead body, back alive--the man who was supposedly the
victim was alive.
So if you want the clearest case, you don't need DNA
evidence to say this was a wrongful conviction. There was no
murder victim, this person was there. That case got on the
Internet, it went viral, and then finally after it went viral
through informal news channels the official press had to
respond to it.
That case was seen as one of the pushes to get these new
evidence rules out that had been circulating behind the scenes.
There have also been deaths during detention. We have seen this
a number of times; police coming out with excuses, like this
person died because they were playing a game like Blind Man's
Bluff. They don't even pass the laugh test. So we are seeing
some of those cases, I think, getting some more attention from
the wider populace.
Senator Merkley. I apologize, I'm being told my time has
run out. Is staff going to chair, going to take over the
emceeing? I really appreciate all the insights that you're
bringing to this Commission. Thank you.
Mr. Liu [presiding]. My name is Lawrence Liu. I'm the
Acting Staff Director for the Cochairman for the Congressional-
Executive Commission on China. I wanted to give, in the
remaining few minutes, the audience a chance to ask a couple of
questions. I will just ask, we have two mics in the back. If
you would just raise your hand if you have a question that you
want to ask of the panelists, and please, since we're running
low on time, keep your question brief and just ask the
question. No statements, please. So, does anybody have a
question? Just raise your hand, please.
Ms. Ford. I can speak from here, if that's okay.
Mr. Liu. Sure. Just be aware, there will be a transcript of
these proceedings. So if you want to you can state your name
and affiliation, but you're free not to as well.
Ms. Ford. Sure. My name is Caylan Ford. I volunteer with
the Falun Dafa Information Center. My question is for Ms.
Lewis. I wanted to inquire about what your impression is of
what the impact is of a few of the recent campaigns that have
occurred, particularly since 2006. I'm thinking of, in 2006,
Luo Gan headed a campaign, the ``Socialist Rule of Law
Concept,'' which basically stipulated that the interests of the
Party come above this sort of strict following of the letter of
This was sort of further enshrined in December 2007 when Hu
Jintao introduced the ``Three Supremes,'' which was sort of
enforced with alacrity by Wang Shengjun, who is now the
president of the Supreme People's Court. Again, these things
sort of codify this notion that the Communist Party's interests
are the guiding interests in implementing the law. What does
this mean when we're looking at rule of law reform? I suppose
Ms. Li may also want to weigh in on this.
Ms. Lewis. And the ``Three Supremes,'' which put the
interests of the Party, and then you're supposed to look at
sort of the public opinion, and then the law. The Constitution
is the least supreme of the ``Three Supremes.'' Certainly since
the leaving of Xiao Yang, the former president of the Supreme
People's Court, and Wang Shengjun coming in, who doesn't have
formal legal training, this has shown a shift away from an
emphasis on professionalism of the judiciary.
Also, Ms. Cook mentioned the role of Zhou Yongkang, who
came out of the Ministry of Public Security and is now on the
Politburo Standing Committee, and supports very harsh law-and-
order tactics. He is very high ranking. In this sort of
trifecta of the Public Security Bureau, the Procuratorate, and
the courts, I think it is clear that the courts are the weakest
of that threesome. That's not new but that's become clearer.
What has also been getting a lot of attention from, I
think, the legal academic community has been the emphasis on
mediation and avoiding use of the courts for what we think
courts do: litigation. You should try to nip any problems in
the bud. I remember going to a small community center in Xiamen
in December, and they were so excited that they were a ``wu
susong she qu,'' literally a community without any litigation.
This was something that was so great, that every dispute didn't
have to go to courts. So I do think on the outside of even
criminal justice, that there is a real emphasis on trying to
just clamp down on any problems when they're small, nip them in
the bud, and if it's gotten to court, that means it's blossomed
into a big problem.
That being said, I work with a lot of people more on the
law professor side than on the activist side, because that's
the world I exist in. There are a lot of really good, sincere
people who want to make the system better. So again, I think in
the short term I'm pretty pessimistic for the climate. But in
the long term I think there are some really sincere reform-
minded people, and we're going to have to think not 1 year out,
but 10 years out or more.
Ms. Li. Remember, in Chinese, the words ``fa zhi,'' can be
translated into ``rule of law'' or ``rule by law.'' The Chinese
Government always understood it as ``rule by law.'' Many well-
wishers wishfully read it to mean ``rule of law.'' Number two,
the Chinese Constitution, even though Article 35 claims to
protect such human rights as freedom of expression and so on,
the cardinal principles of the Constitution are to put the
CCP's--the Chinese Communist Party--rule on top of everything
else. Third, at every level of the judicial system there are
``political and judicial committees'' [zheng fa wei]. So these
committees make decisions on verdicts for the courts,
particularly on sensitive cases; in these cases, the trials,
all the other procedures, are just a farce. Remember the
spokeswoman for the Chinese Ministry of Foreign Affairs
recently told journalists, ``No law can protect those who make
trouble.'' It might be just an illusion for us here to think
China has had a rule of law reform going on. Very recently,
some Chinese lawyers, legal scholars, including very prominent
people, have on different occasions said that the rule of law
reform is dead.
Mr. Liu. Okay. Thank you.
I just want to let you know, because we weren't able to get
to general questions until the very end, I'll extend this for
another 10 minutes for a couple more questions. If you could
please just keep them a little bit briefer.
I wanted to give Wei Jingsheng an opportunity to ask a
question first, and then we'll let others ask them.
Mr. Wei. I just want to remind the CECC today of one very
important subject which is about the Chinese human rights
situation's association with American policy. We all know the
Chinese human rights situation is terrible, but one of the
worst parts is Chinese workers' rights to strike for
unionization is almost completely non-existent.
This has resulted in extremely cheap labor in China in
which they produce extremely cheap products which get dumped
into the United States, and thus produces the result of
unemployed workers in America. In this process I am afraid that
American businesses have played a role to help the Chinese
Government to exploit Chinese workers. The reason is very
simple, because they get a huge profit from the cheap labor and
they share this huge profit with the Chinese Government.
Since the time of PNTR 10 years ago, I am afraid that this
trade deficit with China has been getting worse and worse every
year. I am seeing that the bad Chinese human rights situation
is closely tied to the Americans' daily lives.
CECC was established due to this reason, so, therefore I
think this Commission has reason to correct such a mistake.
Mr. Liu. Thank you. That was very nice of you.
Yes. Do we have questions? Okay. Go ahead and speak into
the mic. If you want to introduce yourself, please feel free to
Ms. Jia. [Question asked in Chinese.]
Translator. I will try to translate for her.
Mr. Liu. And if you could try to get to your question.
Translator. My name is Jia Jianying. I am the wife of He
Depu. My husband spent eight years in prison. He was released
in January this year.
On the day that my husband was released in January, even
right on that time, several police beat him up in front of me.
I was there to pick him up. I cried and I shouted and tried to
prevent them, and tried to help my husband. It was in vain. I
just wanted to mention this to let you pay more attention to
the torture and the situation of the human rights in China.
People are forbidden to speak out, even when they are
tortured or beaten up. Not only the lawyers, but also the
normal people, the victims, and the victims' family.
Mr. Liu. Thank you. I just want to make sure that we have
enough time for the last remaining questions. But we thank you
very much for your comments and appreciate it.
Does anybody else have any questions?
Mr. Fei. Hello. My name is Yong Fei, and I'm from Laogai
Research Foundation. My question is, right now, one, actually
Chinese students try to study abroad, like in the United States
or in the United Kingdom. I wonder, is that possible for those
students to take an active role in the future and what are the
potential challenges for those young teenagers in China to deal
with the human rights issue back in China?
Ms. Wickeri. That's a great question. In fact, I think that
this echoes what Dr. Li was saying earlier about change, real
systemic change having to come from inside of China. So there's
certainly a role for students to play. But I want to emphasize,
I don't think that students have to study abroad in order to
play an active role.
I have been really impressed by a number of very young
activists and public interest workers in China, some of whom
have studied abroad but many of whom have not who have taken a
real interest in developing and working in the public interest
world inside China. So, I think that is a really positive note.
Ms. Cook. I would just say, from the perspective of
information flows, that it is a really special opportunity, I
think, for students to be able to travel outside of China. They
can learn about certain perspectives and access information
they might not be able to encounter in China. I have quite a
few Chinese friends who talk about a definitive experience of
sitting in class and having the professor mention what happened
in 1989, or watching video footage of the tanks and students,
and how that really changed how they thought about China, how
they thought about their own country, its history, and their
role. So, I would say that could be one thing to try to do--to
keep an open mind and seek out alternative perspectives.
The other thing would be to learn about some of the
different ways in which, when students go back to China, they
can continue to access information abroad and remain safe
online, too. In addition to just accessing information, if they
want to continue reading certain information or communicating
with people outside of China, particularly on human rights
issues, they should be aware of some of the measures that they
can take to remain safe. And they can even share those ways
with their friends.
Ms. Lewis. And particularly with respect to law students,
which there are thousands and thousands now in China, I think
that there's been a move to start having more clinical legal
education. It's difficult to do, but having students feel that
they can be empowered to help people, even with very simple
disputes, or that it's not just about memorizing laws for the
bar exam, but that you can actually have a positive impact in
someone's life. If you learn that as a student, I think you
carry that throughout your career. The reality, though, too, is
that when you get out of school you need to find a job, as I'm
sure many people understand in this room. So we can say, go be
a human rights defender, but you also need to support yourself
and oftentimes family members in China.
I've been happy to see some foreign funding even going
toward helping young public interest lawyers have a couple-year
fellowship because, as much as we can say you should do this
kind of work, we also need to make it so people then can go
home and have a house, and have food, and have the basic needs,
which you just are not going to be able to do on your ideals
alone. I think that more funding for those kinds of programs is
also a way to make people believe they can make positive change
and do this as their career, not just once in a while.
Mr. Liu. Thank you.
We have time for one very brief question. So if you could
please keep your question short. Go ahead.
Audience Participant. So when it comes to environmental
policy, there's a serious enforcement gap between the local and
central governments. Local governments, even if they're told by
the central government to clean up or have stricter enforcement
of certain environmental regulations, often flout these and
ignore them because of business interests local officials may
So environmental advocacy groups often try to protest these
things, but then they get silenced. But as Chinese
environmental problems get worse, do you think the central
government will take a greater interest in listening to
environmental advocacy groups or will they continue to silence
Ms. Wickeri. One thing I would say is that certainly as
with any issues like environmental concerns that don't
recognize local provincial boundaries and that have a tendency
to spread, authorities will have no choice but to pay attention
to these problems at some point. But environmental issues used
to fall into this category of a ``safe'' area to work on as a
public interest advocate or a human rights defender. We've seen
in the past couple of years that that's just less and less the
A number of colleagues and I have noticed that this line
between what is a ``safe'' issue to work on and what is a
``sensitive'' issue to work on has become more and more
blurred. We can't, anymore, say that health and the environment
are those areas where, as a human rights advocate or a public
interest worker, you can work on and be assured that you won't
be visited by local public security officers. That perhaps used
to be the case, or maybe we weren't just seeing the signs.
So it is not necessarily the case that there are areas of
human rights work that people can carve out and ``safely'' work
on. I think what that means is that we have to be concerned
with a comprehensive area of public interest work and human
rights in China.
Mr. Liu. Okay. Well, thank you very much.
On behalf of Senator Brown, I wanted to thank everyone for
coming to today's roundtable. I especially want to thank our
witnesses for today. They gave some great testimony. I know
Senator Brown was very sorry that he couldn't stay longer and
he will be looking forward to the transcript from this
Thanks again. This roundtable is adjourned.
[Whereupon, at 3:41 p.m. the roundtable was adjourned.]
A P P E N D I X
Prepared Statement of Elisabeth Wickeri
june 23, 2011
Mr. Chairman and members of the Commission, I am grateful for the
opportunity to participate in today's roundtable, and for your
leadership on the important topic of the situation of rights defenders
in China today. I would like to thank you, your fellow commissioners,
and the CECC staff for inviting me.
I am here today representing the Leitner Center for International
Law and Justice at Fordham Law School, and specifically the Committee
to Support Chinese Lawyers, an independent NGO based at the Center. The
Committee is a group of independent lawyers from outside China whose
mission is to support lawyers in China in their quest to uphold the
rule of law there. The Committee seeks to strengthen the role of
lawyers in China and to promote their independence through public
education, research, advocacy, and trainings.
Today's roundtable is extremely timely and important because
current conditions for rights defenders and human rights lawyers in
China are in flux. Since February 2011, following online calls for a
``Jasmine Revolution,'' rights defenders and lawyers have been
increasingly detained, disappeared, abused, and subjected to a range of
strict methods of surveillance and control, even after release. In my
comments today, I would like in particular to highlight the especially
pronounced chilling effect this suppression has caused. I will suggest
that the individuals that have been most seriously impacted are still
in need of public calls for support and attention to their cases, by
government and other actors.
Concern for rights defenders and human rights lawyers in China is
not something we come to anew today. On many occasions over the past
several years, NGOs, professional associations, activists, and
academics have had cause to voice their concerns about the difficult
position for these actors in China. For example in the run-up to the
Beijing Olympic Games, during important visits to Beijing by visiting
dignitaries, on sensitive historical dates such as June Fourth, and
even in the wake of the announcement that Liu Xiaobo would receive the
Nobel Peace Prize, activists would be confined their homes, brought in
for questioning, and barred from leaving the country, but these
conditions were generally loosened following the completion of the
``sensitive moment.'' Seasoned rights defenders and human rights
lawyers, used to these modes of harassment, would generally return to
their work upon release.
However, since February of this year, the situation has
deteriorated significantly, in particular for human rights lawyers who
have, among other things, taken on the most unpopular criminal defense
The deterioration represents a marked shift in at least two ways.
First, the breadth of the crackdown that lead to the detention and
disappearance of so many individuals--at least thirty detentions, that
many disappearances, and many more put under surveillance, in just a
month--is much wider. Second, in the wake of the eventual releases of
these individuals there is an eerie silence among lawyers and other
defenders who would previously have remained vocal and outspoken in
carrying out work that was admittedly unpopular with authorities. Even
casual meetings over lunch or coffee have become difficult to arrange,
because of the fear of
associating with others working in this field, especially, of course,
with foreigners. The result of these two differences has been a
substantial chilling effect and a decrease in the space and people
willing and available to carry out human rights and legal advocacy in
The fact that lawyers and rights defenders have come out of
detention less willing to return to work tells us something about their
experiences before, during, and after detention. Many lawyers were
simply disappeared as opposed to being formally detained; reports
emerged about serious mistreatment, abuse, and torture while they were
held; on release, people have had to sign statements admitting guilt or
promising to behave. In the aftermath of their detention, they and
family members have lived under very strict conditions, ranging from
constant surveillance, to family members being arrested with their
activist partners, to young children not being permitted to leave home
to attend school.
As troubling as these stories are, it is the silence among formerly
outspoken and energetic lawyers that is especially troubling to me and
suggests that, in the immediate aftermath of this crackdown, legal
advocacy and human rights work in China is stalled. It has become more
difficult to find lawyers in sensitive cases, for example, in cases
where lawyers themselves are accused of a crime. Shanghai-based lawyer
Li Tiantian, who was disappeared on February 19 and reappeared on May
24, is one of the few individuals to speak out about her experience. On
Twitter, she noted ``the kind of fear that you can describe is small,
while the kind of fear you can't speak of is the greatest.''
Lawyers are important not because they are lawyers per se, but
rather, because lawyers have a multiplier effect with respect to human
rights promotion and protection: they play a fundamental role within
the system, protecting the rights of other civic actors, vulnerable
citizens, and activists. Their special role, however, also makes them
the target of abuse. Well before February this year, human rights
lawyers in China faced serious challenges to fulfilling their
professional responsibilities through legal and procedural obstacles,
intimidation and abuse, and extra-legal attacks. This treatment of
lawyers gives us a vital window onto what is happening in China today.
The significance of the fear the Li Tiantian speaks of cannot be
understated. The role of human rights lawyers does not rest only on
whether their cases are successful. Indeed, successes may be few and
far between. The importance, rather, is based on the possibility of
their success when they are able to try.
What policy implications emerge from this? I have four preliminary
First, more voices--including those at the government
level--are needed to call attention to the many individuals
that have been targeted in this crackdown. Through this
attention, they may be supported and provided some space to
return to work. This includes public calls and sustained,
private dialogue with Chinese actors, official and unofficial.
Second, international standards promoting the rights
and freedoms of lawyers should be promoted and used to
demonstrate how lawyers' rights are being curtailed.
Specifically, the UN Basic Principles on the Role of Lawyers,
which members of the U.N. General Assembly, including China,
adopted without dissent, are useful and can support standards
already in the Chinese Lawyers Law which, in article 37,
protects a lawyer's ``right of the person,'' and affirms that a
lawyer should not be held legally liable for the opinions he or
she presents on behalf of a client.
Third, expanding opportunities for the trainings and
exchanges of Chinese lawyers with colleagues abroad remain
important and provide space for much needed dialogue, but must
also include Chinese lawyers doing rights defense and other
public interest work.
Fourth, as Professor Jerry Cohen, a member and Senior
Advisor to the Committee to Support Chinese Lawyers, has
increasingly emphasized, there is a need for foreign lawyers--
many of whom benefit from doing business in China--to stand up
and speak out for their Chinese colleagues. Bar Associations,
including the International Bar Association and the New York
City Bar Association have already done this. But our Committee
believes that there is a professional responsibility for
lawyers and law firms benefiting from their work in China to
stand up and say something.
Finally I will end on what I hope are two positive notes. First,
some well-connected lawyers and legal scholars, like Chen Youxi, have
begun to express concern for their marginalized colleagues. These
voices can only benefit from more support inside and outside China. And
second, I was happy to read reports yesterday that artist Ai Weiwei had
been released. Not a lawyer, but an advocate for change, it is worrying
that he was detained for so long without information about his
condition. However, perhaps his is a case that demonstrates how
sustained media attention and public calls can have positive results.
Mr. Chairman, I'd like to thank you again for this opportunity to
present a few thoughts. I am happy to answer any questions you or other
commissioners may have.
Prepared Statement by Xiaorong Li
june 23, 2011
The serious backsliding of the Chinese government's human rights
records had started before the 2008 Summer Olympics, highlighted with
the jailing of activists Hu Jia, Huang Qi, and many others, the torture
and disappearance of lawyer Gao Zhisheng, the imprisonment of Nobel
Peace Prize laureate Liu Xiaobo and house arrest of his wife, both
incommunicado, and the house arrest of Chen Guangcheng after his
release. Yesterday's release of the artist Ai Weiwei on bail awaiting
for trial was in the same fashion as his arrest: with disregard of the
Chinese law. All these took place in the larger context of severe
restrictions on freedom of expression and association, repression
against religious and ethnic minorities, and significant roll-back on
rule of law reform.
Since February, several hundreds of people have been harassed or
persecuted in one of the harshest crackdowns in recent years when the
Chinese government tried to stamp out any sparks for protests in the
Tunisia-style ``Jasmine Revolution'' after online calls first appeared.
According to information documented by the group Chinese Human Rights
Defenders, the Chinese government has criminally detained a total of 49
individuals, outside the Tibet and Xinjiang regions. As of today, nine
of them have been formally arrested, three sent to Re-education through
Labor (RTL) camps, 32 have been released but most of them not free: out
of which 22 have been released on bail to await trial, while four
remain in criminal detention. In addition, one individual is being held
in a psychiatric hospital, and one lawyers remains under residential
surveillance in unknown locations. At least 26 individuals are
confirmed as having been subjected to enforced disappearance, some for
as long as 70 days. At least 10 of them remain unaccounted for as we
speak. More than 200 people were put under ``soft detention'' at home,
taken on ``mandatory tour,'' or questioned and intimidated by police.
(An updated list of these individuals is appended at the end of this
statement and can also be found at the CHRD website here: http://
Giving the difficulties in collecting and verifying information,
these numbers are far from being complete. There are unconfirmed
reports that extremely nervous authorities at the top level approved a
list of more than one thousand individuals in February as the targets
of this nation-wide crackdown.
Many observers consider the current crackdown the worst since the
post-Tiananmen man-hunt, arrests, and jail sentences after the June 4th
massacre in 1989 outside Tibet and Xinjiang. The current crackdown is
believed to have affected more people than the 1998-99 suppression
against organizers of China Democracy Party, an opposition party, in
which several dozens of people were eventually sent to jail to serve
sentences up to 15-years or longer.
On distinction of this crackdown is that the government targets
people beyond circles of political dissidents. The disappeared and
harassed range from petitioners who try to lodge grievances against
corrupt officials, to artists like Ai Weiwei, who use art to voice
discontents of the powerless. This has been an all-out assault on civil
society in the wake of rolling back on rule of law reform, especially
as seen in authorities' indiscriminating and ostentatious use of extra-
I particularly want to draw your attention to the fact that the
Chinese government extensively and ostentatiously used extra-judicial
tactics such as enforced disappearance, secret detention, and torture
in the current crackdown, in clear violation of the international
Convention against Torture, which the Chinese government signed and
ratified in 1988. According to the Chinese Human Rights Defenders
legal-experts-dialogue-with-china/), the abuse included:
use of electric batons on genitals,
sleep and food deprivation,
repeated and lengthy interrogations (on occasion for
up to 20 hours at a time),
forcible injections and ingestion of unknown
forced stress positions (such as sitting motionless
on small stools for many hours at a time), and
threats to their families.
Some individuals have also been coerced to sign statements in which
they admitted ``wrongdoing'' and made various promises, such as to
cease their activism.
The harassment is designed to strike fear, and often targeting
families including children. Take for example the AIDS activist,
environmentalist Hu Jia, who has served almost 4\1/2\ years in prison,
is due for release in 3 days. His wife, Zeng Jinyan, is facing growing
pressure from police in recent days. She fears that she and her 3-yr
old daughter will be put under house arrest with her husband soon after
his release. Releasing from prison followed by detention at home has
become the fate of China's well-known prisoners of conscience. The most
horrific case is that of Chen Guangchen, who is blind. Mr. Chen was
house-arrested with his wife and two young children after he was
released from prison last year. Many efforts to visit them in their
village, including attempts by CNN journalists and EU diplomats, have
been blocked by security guards, often violently. And of course there
is the case of lawyer Gao Zhisheng, who had disappeared after his
release from prison where he was severely tortured.
What impact should this have on US policy toward China? The Chinese
government has fought back to criticisms. It has threatened with
economic sanctions of its own. That should be expected. But that is not
the reason to give up public pressure and replace it with close-
door``dialogues''and ``strategic partnership.'' Promoting human rights
can be inconvenient. It may sometimes interfere with the economic and
strategic interests of the US government. But a genuine commitment to
such values as human rights means that there is to be no double
standards applied on countries with different economic power status.
We see very little as to what, if any, concrete outcome is achieved
through the US-China Human Rights Dialogue, the Economic Strategy
Dialogue, and the Legal Expert Dialogue, though the Obama
Administration has been unusually outspoken about China's rights abuses
since its 2nd year. The ``dialogues' seem to do more to appease critics
of complacency than to secure real change; its' a diversion from the
fact that nothing of consequence is being accomplished, because the
Chinese government knows there is nothing to fear from delivering no
concrete results following year-after-year's ``dialogues.'' The Chinese
government even welcomes close-door dialogues because they remove the
spotlight from exposing its human rights abuses. Chinese officials are
quick to cite the existence or resumption of dialogue as sign of
``progress''in human rights.
When the Chinese government clearly lacks any political willingness
to curtail its violations, any ``quiet diplomacy'' and behind-door
engagement must be coupled with public pressure. Dialogue and
cooperation can be useful, but only when the partner government shows
political willingness to improve its records. The US-China human rights
dialogue, if it is to proceed, must be tied to concrete and publicly
articulated benchmarks. These benchmarks should not be ignored when
they prove inconvenient or getting in the way of U.S. economic and
Many have argued against publicly criticizing a rising economic
power on human rights because, they contend, economic liberalization
will lead to greater political freedoms. Enough time has passed for
critically examining this position. 30 years' economic development in
China has not brought fundamental changes in human rights. An
unaccountable government is more likely to be corrupt and irresponsible
to their people's most urgent needs. In China there have been rising
numbers of protests, some 90,000 annually for the past few years by the
government's own count. The protests are fueled by growing discontent
over corruption and arbitrariness of official policies. Moreover, the
Chinese government has used its economic clout to strengthen its
censorship, increasing police surveillance and political repression
domestically, and internationally, boosting its lobbying efforts to
undermine human rights standards and weaken their implementation. China
tries to take any teeth out of the international human rights system
that might one day be applied to its own shameful records. And it is
aggressively replicating its ``economic growth at the expenses of human
rights'' to other developing countries, in Southeast Asia, Africa and
Consistent and substantive international pressure can make a real
difference. By strongly exposing or condemning abuses, conditioning
access to military cooperation or market, imposing targeted travel or
banking sanctions on abusive high-rank individual officials, and
calling for prosecution of those responsible, for example, the US
government can increase the cost to the Chinese governments for
harassing activists and lawyers. Credible and consequential pressure
help create space for local activists to push their government to
reform, and allow those persecuted by their government know they do not
To borrow some suggestions I made during a meeting with President
Obama, which I participated in January, I continue to argue that long-
term U.S. efforts to promote human rights in China should aim to:
1. Support civil society, and in particular, support
activists and lawyers who are taking great personal risks to
promote human rights and democracy. The hope in China's future
lies with Chinese citizens. They are speaking up, organizing,
and demanding that their rights be respected. For nearly a
decade now, a civil rights movement known as the ``rights
defense movement'' has spread among citizens of many kinds.
Victims of forced eviction or migrant laborers are transformed
into rights activists when they see their efforts to remedy
injustices answered with censorship, police brutality, and
corruption in legal institutions. Some practical ideas for
supporting civil society include:
(a) Make strong and clear public statements that
support human rights activists and that speak directly
to the Chinese people: Rhetoric is important. The
Chinese authorities, in service of their own power
interests, consistently imply that ``we are China'' and
``China is us'' and that is all. Yet the most
significant and sensitive divide in China today is
between the Chinese state and its citizens. It is
insensitive to lump rulers and ruled together as if
they were the same thing and as if only the rulers can
speak for the whole.
(b) Facilitate Internet freedom: Today the Internet
is the most important tool, with which ordinary
citizens can access information, express their views,
organize themselves, and engage in activism. The US
government should do what it can to provide Chinese
Internet users with technical
support to skirt the ``Great Firewall'' and hold
American IT companies accountable for the sordid
practice of supplying the Chinese government with
technology that facilitates censorship and
2. Focus on holding the Chinese government to its own
rhetorical commitments to its citizens. Such an emphasis is
effective in its own right and will also help to avoid
stimulation of anti-Western``nationalist'' sentiment. If the
Chinese government is called upon to observe the constitutional
and legal commitments that it has made to its own citizens--
some of which are inscribed in international protocols--it can
hardly claim ``interference.''
3. Strengthen the US role in multilateral forums such as the
UN Human Rights Council. The Chinese government participates
actively in the UN Human Rights Council. The US should use the
UN HRC more effectively, to press for Chinese government
adherence to the international human-rights conventions and
covenants that it has signed and/or ratified. Such a policy
would require the US to take a leadership role in forums such
as the UN HRC and to work there to build multilateral
coalitions to hold the Chinese government accountable for its
failure to respect international norms as well as to prevent it
from attempting to change those norms. This kind of
international scrutiny undercuts the Chinese government's
exceptionalist claims about ``human rights views with Chinese
characteristics'' and leaves claims about ``interference in
internal affairs'' vacuous. It also decreases the Chinese
government's ability to fan nationalist sentiment at home into
opposition to ``Western'' human rights.
4. ``Rule of law'' assistance programs and exchange of
``legal experts'' should be made relevant to administrative and
legal problems responsible for human rights abuses. The
Communist Party elite in China welcomes Western legal
assistance programs insofar as they strengthen a legal system
that it, the
Communist Party, can continue to dominate. Such assistance is
seen as strengthening, not weakening, the one-Party rule. The
Party's ``Political and Legal Committees'' are tools the Party
uses to control on the judiciary at every level, where they
dictate legal procedures as well as verdicts. US assistance to
``rule of law'' programs is misconceived insofar as it assists
the current legal system in being more efficient. Instead, US
legal assistance would be better directed toward problems such
as widespread torture. The Chinese government ratified the
Convention against Torture in 1988. US legal aid could also be
used to strengthen protections for criminal defense lawyers
from prosecution or being barred from practicing law.
Prepared Statement of Sarah Cook
june 23, 2011
Thank you very much to the Commission for organizing this
roundtable. One of the topics I've been asked to speak about today is
the internet dimension of the work of Chinese human rights lawyers and
the repression they have faced, as well as to reflect on some of the
underlying dynamics that have contributed to this latest crackdown.
Drawing on findings from Freedom House's recently released Freedom
on the Net report, as well as our weekly China Media Bulletin, I
thought I would focus in my remarks on three points:
1. How human rights lawyers and activists in China have used
the internet and social media.
2. What internet controls these individuals have encountered
and how these are a microcosm of a broader, robust internet
3. How the long term practice of the Chinese Communist Party
using arbitrary, extralegal measures to suppress free
expression laid the foundation for this more recent crackdown.
As in many countries, when you go down the list of China's leading
lawyers and activists, almost every one of them has used the internet
to expose human rights abuses, educate fellow citizens about their
legal rights, and advocate for genuine rule of law reforms.
Gao Zhisheng published open letters documenting the torture and
killing of Falun Gong practitioners. Xu Zhiyong blogged about the
inhumane treatment meted out to petitioners. Teng Biao used Twitter to
alert other netizens that he had been arbitrarily detained. Ai Weiwei
produced a video of people reading the names of the children who died
in the Sichuan earthquake, then circulated it online.
But what is different from the dynamics in more democratic
societies is that these initiatives are an indirect testament to the
limits of legal recourse in China. In fact, it is in part because of
the weakness of rule of law protections that many of these activists
and lawyers have taken advantage of new media technologies to publicize
abuses and press judges and government officials to respect the rights
of their clients, and more recently, of themselves.
environment of harsh internet controls
The other aspect to keep in mind is that they are engaging in these
activities in the context of the most robust, sophisticated, and multi-
faceted internet censorship apparatus in the world. One, that according
to a recent study on internet freedom that Freedom House released in
April, has further expanded and tightened over the last two years.
These individuals have encountered the gamut of internet controls
that play out in China, from blocked websites to disabled blogging
accounts, from ``invitations to tea'' to enforced disappearance and
torture. Many of them keep multiple blogs, playing hide and seek with
censors, hoping that even if commentary on one blog is deleted, perhaps
another hosting service may be more lenient.
So, for instance, for Gao Zhisheng to post an open letter or Teng
Biao to use Twitter, the first thing they have to do is safely get
around the so-called ``Great Firewall.'' In May 2009, Ai Weiwei's blog
was shut down after he repeatedly posted the details of children's
deaths in the 2008 Sichuan earthquake and aired accusations that they
were caused in part by official corruption. Xu Zhiyong's blog was shut
down in July 2010. In other instances, such as surrounding the 2010
awarding of the Nobel Peace Prize to Liu Xiaobo, the internet and
mobile-phone connections of dozens of prominent lawyers and bloggers
across China were disrupted, in an apparent effort to stop them from
spreading news of the award, particularly via Twitter.
And then there are the offline tactics. Though the latest
detentions have been the longest, over the past five years, practically
every one of these human rights defenders has experienced one incident
or another of being abducted, beaten, and in some cases, badly
tortured, including being shocked with electric batons.
Perhaps a more insidious dynamic has been that as real world
measures against them escalate, in some instances, we've seen a
corresponding implementation of censorship related to their names, an
attempt to make them disappear in the virtual world as well. Following
Ai Weiwei's abduction in April, censorship has not only applied to his
name but directives have been leaked that include orders to delete
within ten minutes even an editorial with veiled reference to him. Gao
Zhisheng, who has been disappeared for over a year, was listed as a
sensitive key word on a list leaked by a Baidu employee. A search for
his name on China's most popular search engine primarily produces
state-run news sources referring to him as a ``criminal.'' There are no
links to his own writings.
What is striking in the case of both of these men is that in an
earlier era, they were the subject of quite a bit of official support
and media coverage. In 2001, Gao was named one of the top ten lawyers
in China in a legal debate competition on television sponsored by the
Ministry of Justice. And of course, Ai Weiwei was invited to the design
the Bird's Nest for the 2008 Beijing Olympics. And now, the state is
hoping people will forget they exist.
why is this happening?
As other panelists have noted, we too, in Freedom House's various
assessments of political rights and civil liberties, have observed a
backsliding in the Chinese government's commitment to the rule of law
since 2006. But what is worth noting is that even during the earlier
part of last decade when limited legal reforms appeared to be moving
forward, in parallel, was an extralegal world, a world of makeshift
detention centers, forced labor camps, and plainclothes police forces
torturing with impunity. That is the world that tens of thousands of
petitioners and Falun Gong practitioners have been experiencing for
Many of the lawyers we're talking about here today have spoken
about their encounters with this world in their writings. They have
voiced the concern that the tactics and strategies developed to
suppress one group can also be quickly and easily applied to others. It
is evident from their writings that the reason they take such risks to
work on politically sensitive cases is because they feel very strongly
that if the current system is not able to protect these innocent people
from such severe abuses, every Chinese citizen is at risk at well.
Thus, the current series of abductions cannot be viewed in a
vacuum. Rather, what we're seeing manifest in recent months is an
expansion of suppression. It is the reflection of a decision taken
somewhere at the top of the Party that a group of individuals whose
work and activism had previously been tolerated are now ``persona non
grata'' and that the Party is willing to apply the full force of a pre-
existing extralegal repressive apparatus to silence them. And, of
course, they are able to take such actions unconstrained by
institutional mechanisms like an independent judiciary.
From that perspective, were Gao Zhisheng and some of these lawyers
here today, one thing I think they would recommend is for U.S. policy
to go beyond focusing on them, despite the urgency of their plight.
They would urge serious action to address the plight of the full range
of clients and causes they have defended. Taken together, the victims
of Communist Party repression go far beyond dozens of activists,
amounting to tens of millions of people. When the day comes that these
people have their rights protected, that is when lawyers will no longer
need to worry about being abducted or disbarred either.
Given the harshness and scale of this recent crackdown and other
signs of the Chinese leadership backing away from a commitment to the
rule of law, it may be time for a recalibration of U.S. policy on human
rights in China. A revised strategy should be developed based on an
understanding that the current leadership, and the leadership to assume
power in 2012, are very unlikely to institute crucial legal reforms,
while continuing to pursue a policy of enhancing internet controls,
particularly on speech of political and social consequence.
A few other recommendations that I hope will be helpful for our
1. U.S. officials should speak frankly of Chinese abuses: When
the Chinese authorities engage in acts that clearly violate
international human rights commitments and Chinese law, high-
ranking members of Congress and the administration should
consistently articulate that such violations have occurred,
similar to recent remarks in response to Russia's rejection of
an opposition party's registration. A less vocal approach can
be construed as acceptance or acquiescence in these abuses,
which is not a signal U.S. officials should, or that many would
want to, send. On particular human rights issues, the legal
arguments these human rights lawyers are making to Chinese
courts may be a helpful resource.
2. U.S. official should meet with human rights lawyers and
activists: When U.S. policymakers travel to China, they should
meet with human rights lawyers and activists working on
relevant issues, in addition to meeting with government
officials. Beyond showing support and solidarity for their
work, these individuals are able to provide visitors with a
credible, first-hand account of events at the grassroots level
of Chinese society that may otherwise be hard for outsiders to
3. The U.S. should continue efforts to expand internet freedom
in China: The U.S. and other government should continue to
support and explore the expansion of methods that counter the
effect of internet controls in China, including tools that
allow Chinese users to circumvent information blocks. As
evident from the work of these lawyers, the boomerang effect of
information being posted outside and then trickling back into
China is an important channel of communication, particularly on
topics that are heavily censored within China. Beyond the
direct impact on free expression, a further closing of the
information space in China portends very poorly for fundamental
governance and rule of law reforms.
4. U.S. officials should address the most serious abuses in
dialogues with Chinese counterparts: In conversations and
dialogues with Chinese officials, policymakers should push not
only for reforms that the Communist Party may be more amenable
to implementing, but also address the most victimized groups
and large-scale abuses, such as those committed against
petitioners, Falun Gong practitioners, Tibetans, and Uighurs.
Though these groups may appear to some to be on the margins of
society, in practice, the repression they face affects tens of
millions of people. Moreover, the tactics developed to suppress
their rights can spread and pose a serious obstacle to genuine
rule of law in China.
Freedom on the Net: www.freedomhouse.org/freedomonthenet2011
China Media Bulletin: www.freedomhouse.org/cmb
Prepared Statement of Margaret K. Lewis
june 23, 2011
Mr. Chairman and distinguished Members of the Commission, I am
privileged to be invited to participate in this roundtable and greatly
appreciate the Commission's efforts to improve American understanding
of China and the specific issues at hand.
The topic of today's roundtable--``Current Conditions for Rights
Defenders and Lawyers in China, and Implications for US Policy''--is
timely and complex. In my brief opening remarks, I have been asked to
place the recent crackdown in the broader context of overall legal
reform and rule of law developments in China, especially with respect
to reform efforts in the criminal justice system. I will focus on the
first part of today's topic, namely, addressing what are the current
conditions, and then briefly suggest policy implications that flow
The path of legal reform in China never did run smoothly, but I
think it is fair to say that it is a particularly challenging time for
legal reform. In part, this reflects an overarching political climate
that emphasizes stability and is wary of anyone who is seen as rocking
A week from tomorrow, July 1, marks the 90th anniversary of the
founding of the Chinese Communist Party. The Party has demonstrated
impressive adaptability over its six decades of uninterrupted rule.
Despite reports of some disagreements among the top leaders, the public
face is one of orderly transition on a periodic basis, as seen in the
handing of power from the third-generation leaders to fourth-generation
leaders in the early 2000s and, as currently playing out, to the fifth-
generation leaders. As the composition of the Poltiburo Standing
Committee and other top positions are negotiated, it is not surprising
that candidates for the next generation of leadership would take a
risk-averse stance when it comes to advocating significant reforms,
especially when those reforms could be unpopular with current leaders.
Looking beyond the immediate term, the public accolades by current and
rising members of the Party leadership for the harsh law-and-order
tactics used by Bo Xilai, the Chongqing Party Secretary and rising star
on the national scene, raise serious questions whether we can expect a
more pro-reform climate after the leadership transition is complete.
Exacerbating the cautious climate is the leadership's awareness of
popular unrest in the Middle East and concern that fermenting
discontent at home could blossom into China's own Jasmine Revolution.
It is difficult to quantify public discontent but, at a minimum, the
rhetoric out of Beijing has moved beyond the ubiquitous slogan of
``harmonious society'' (hexie shehui) to emphasize ``social
management'' (shehui guanli) and preserving stability. From a legal
reform perspective, my concern is that the government fundamentally
views lawyers as undermining stability rather than enhancing it. When I
was in China last month, I was struck by a decrease in the level of
candid conversations at various meetings on legal reforms as compared
with even last year.
Turning particularly to how this climate impacts criminal justice
reforms, there is no shortage of formal laws and regulations on the
books in China. And, in fact, the past year has seen ostensibly
promising reforms. Along these lines, the Criminal Law was amended this
spring to decrease the number of death-eligible crimes by thirteen,
leaving a total of fifty-five death-eligible offenses. Reports that the
number of death-eligible crimes decreased by 19.1 percent--a simple
mathematical formula dividing thirteen offenses by the original sixty-
eight offenses--sounds more dramatic than the expected percentage
decrease in actual executions. In reality, the reforms will likely have
a much smaller impact on the total number of executions because the
death penalty was seldom imposed for those crimes anyway.
As further example of recent legal reforms, this past year the five
government bodies that participate directly in the criminal justice
system issued two sets of evidence rules that are notable for providing
a mechanism to suppress illegally obtained evidence, most conspicuously
coerced confessions. The announcement of these rules closely followed
the disclosure of a wrongful conviction scandal involving a farmer
named Zhao Zuohai. Zhao was convicted of murdering his neighbor, but he
fortunately had his death sentence commuted to a long prison term. Ten
years after his conviction, the alleged murder victim showed up very
much alive. The media and Internet were soon aflame with reports that
police tortured Zhao to extract his confession.
The problem is that lawyers who actually seek to implement these
reforms are hitting serious political roadblocks. There have been but a
few scattered reports of lawyers successfully using the new evidence
rules to suppress illegally obtained evidence. Disturbingly, in July
2010, the lawyer for a defendant named Fan Qihang submitted evidence
that Fan was tortured, including a secretly made video of a detained
Fan showing scars on his wrists that he said resulted from the police
shackling and suspending him during interrogations. Despite the recent
implementation of the new rules that call for a hearing when there is
evidence that the police obtained a confession through torture, the
Supreme People's Court promptly upheld the sentence, and Fan was
executed in September 2010.
In addition to the substantial challenges that lawyers face when
trying to operationalize reforms and serve as effective advocates for
their clients who are accused of crimes, lawyers are finding themselves
in court as defendants. For example, the conviction in 2010 of lawyer
Li Zhuang for encouraging people to give false testimony raised
concerns that he was really being targeted for zealously defending
unpopular clients. Considering such perils and the general lack of
social prestige for defense work, it is a wonder that people pursue
careers as criminal defense lawyers in China, especially outside of the
relatively financially lucrative realm of white-collar crime.
In speaking about the role of lawyers, it bears emphasizing that
the topic of today's roundtable is the current conditions of both
lawyers and rights defenders. As a member of the legal profession, I
hope that all lawyers seek to defend people's rights. In China, so-
called ``rights defenders'' go beyond licensed lawyers: There is an
additional population of non-lawyers who are nonetheless seeking to use
the legal system to effectuate change in China, such as the blind
activist Chen Guangcheng who taught himself enough law to assist
villagers with their grievances against the government. Since
completing a four-year sentence for damaging property and disturbing
traffic, Chen and his family have been held under informal house
arrest. Reports of government-sanctioned physical abuse underscore that
the term ``soft detention'' (ruan jin) utterly fails to capture the
harsh reality of Chen's post-prison life.
As another example of a non-lawyer citizen seeking to defend
people's rights, Ai Weiwei, the renowned artist and outspoken
government critic, was detained by authorities at the Beijing airport
in April 2011 on suspicion of ``economic crimes.'' Over a month later,
the government clarified that Ai is being held for tax evasion and
destruction of corporate financial documents. This is not a simple
story of allegations of economic crimes. Rather, Ai's high profile and
dogged efforts to expose
government corruption, including seeking justice for parents who lost
children in shoddily constructed schools during the 2008 Sichuan
earthquake, make him a bigger threat than any mere tax evader.
Going forward, a key question is how can the PRC government manage
expectations of the populace in the face of a graying population,
growing environmental pressures, and other destabilizing effects. The
incorrigible long-term optimist in me wants to believe that the
government will eventually view lawyers as a positive force to help
express citizens' grievances and effectively channel them through a
formal process instead of leaving people to vent their frustrations in
the streets. However, at present, the emphasis is on the rhetoric of
the ``rule of law'' with a reluctance to allow people to actually make
use of the laws in a meaningful way.
Finally, what are the implications of this challenging landscape
for US policy? The official US-China Human Rights Dialogue and slightly
less official Legal Experts Dialogue are valuable for maintaining high-
level bilateral discussions, though I think we must keep our
expectations very modest for these forums' ability to spur legal reform
Although we also cannot expect instant gratification from more
informal legal cooperation, I remain convinced that sustained
interpersonal contacts will serve as a positive force for legal reform.
For example, China's efforts to reduce wrongful convictions open up
possibilities for collaboration on projects regarding techniques to
improve evidence collection, including use of DNA evidence. Similarly,
new rules in China requiring asset disclosures by government officials
as a means of reducing corruption offers the possibility for a
substantive discussion about the US government's experience with
requiring disclosures as a prophylactic tool to prevent conflicts of
interest. And, indeed, the new rules addressing the exclusion of
obtained evidence followed years of comparative legal research and many
projects involving foreign assistance. The scope for substantial
bilateral collaboration is, no doubt, limited at present. But there are
shared avenues of interest that dovetail with the PRC government's
stated areas of reforms and that can and should be explored.
Thank you for the opportunity to present a few thoughts. I look
forward to our discussion with the Commission.