[Joint House and Senate 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

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



                               ROUNDTABLE

                               before the

              CONGRESSIONAL-EXECUTIVE COMMISSION ON CHINA

                      ONE HUNDRED TWELFTH CONGRESS

                             FIRST SESSION

                               __________

                             JUNE 23, 2011

                               __________

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


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              CONGRESSIONAL-EXECUTIVE COMMISSION ON CHINA

                    LEGISLATIVE BRANCH COMMISSIONERS

House

                                     Senate

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)

                                  (ii)


                            C O N T E N T S

                              ----------                              
                                                                   Page
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 
  School.........................................................    10

                                APPENDIX
                          Prepared Statements

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

                            Congressional-Executive
                                       Commission on China,
                                                    Washington, DC.
    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, 
too.
    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 
you again.
    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 
society.
    Elisabeth, why don't you begin. Then I'll go around the 
table this way and end with you, Nisha.
    Welcome.

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 
China.
    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 
crime.
    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 
greatest.''
    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 
the authorities.
    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 
China today.
    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 
domestic laws.
    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 
China.
    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 
appendix.]
    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-
founded.
    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 
reform.
    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 
dialogues.
    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 
there alone.
    Thank you.
    [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 
crackdown.
    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 
heard.
    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 
Justice.
    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 
independent judiciary.
    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 
world.
    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 
appendix.]
    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 
boat.
    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 
settings.
    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 
appendix.]
    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 
PNTR.
    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 
money to----
    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 
firms.
    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 
thoughts?
    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 
trying.
    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 
summary.
    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 
dinner, were 
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 
time.
    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 
profile cases.
    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 
oppression.
    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 
the law.
    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.
    Thank you.
    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 
do so.
    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 
have.
    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 
them?
    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 
case.
    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 
roundtable.
    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 Statements 

                              ----------                              


                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 
cases.
    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 
China.
    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 
thoughts:

          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://
chrdnet.org/2011/06/17/jasmine--crackdown/)
    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-
judicial tactics.
    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 
(http://chrdnet.org/2011/06/07/u-s-must-voice-concerns-over-
china%E2%80%99s-assault-on-human-rights-lawyers-during-the-upcoming-
legal-experts-dialogue-with-china/), the abuse included:

          beatings,
          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 
        substances,
          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 
strategic interests.
    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 
Latin America.
     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 
stand alone.
    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 
                surveillance.

          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 
        control apparatus.
        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.

                            online activism

    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 
years.
    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 
discussion:

        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 
        access.
        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.

    Thank you.

Additional resources:
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 
there from.
    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 
the boat.
    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 
in China.
    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 
illegally 
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.

                                 
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