Genocide Declared, Now What?

By , January 19, 2021

In one of his last acts as Secretary of State, Mike Pompeo stated that the Chinese government’s extrajudicial internment of 1.8 million Uyghurs, the torture and forced labor of Uyghur detainees, and the forced sterilizations and abortions of Uyghur women, amounts to crimes against humanity and genocide.  Hours later, in his confirmation hearings, President-elect Biden’s secretary of state nominee Antony Blinken agreed with Pompeo’s designation of genocide.  Immediately, the U.S. press heralded the bi-partisan nature of this genocide declaration.

But genocide is not just about the acts committed; it also requires government intent to physically or biologically destroy the group.  See Convention on the Prevention and Punishment of the Crime of Genocide (“In the present Convention, genocide means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group”) (emphasis added).  By declaring genocide, the U.S. government could easily get bogged down in this required element, an element that even Pompeo left out of his declaration. Nowhere in his statement does Pompeo assert that the Chinese government had an intent to physically destroy the Uyghur people. 

Mike Pompeo

That is why Pompeo’s declaration that the Chinese government’s actions in Xinjiang province amounts to crimes against humanity is more actionable, and has been for the past couple of years. Like genocide, crimes against humanity include acts that attack the very soul of a people and its culture: murder, extermination, torture, arbitrary detention, forcible transfer of a population, rape, sexual violence, forced sterilizations, apartheid. But unlike genocide, these crimes do not require an intent to biologically destroy.  Instead, acts that constitute crimes against humanity merely need to be part of a widespread or systemic attack directed at a group, with the perpetrator’s knowledge that his or her acts are part of this larger attack.  In looking at Pompeo’s declaration of genocide he states that “we are witnessing the systematic attempt to destroy Uyghurs.” In those words, he seems to mistake the element of crimes against humanity for genocide.

This isn’t to say that the crime of genocide is not occurring in Xinjiang nor that such a declaration is inconsequential. It certainly carries meaning and should. But the U.S. must ensures that it acts on these declarations and not just get caught up in a war of words with China and its allies, something that could more easily happen by solely focusing on genocide.  In fact, the United Nations, through a 2005 Resolution signed by all 193 member states, requires countries to respond similarly to both genocide and crimes against humanity. For both, states have a duty to “protect populations from genocide, war crimes, ethnic cleansing and crimes against humanity” and must “use appropriate diplomatic, humanitarian and other peaceful means.” See ¶¶ 138-39.

Antony Blinken at his Senate Confirmation Hearing, Jan. 19, 2021

To fulfill this obligation to protect, the U.S. must step up its efforts.  Pompeo’s statement, while full of important policy pronouncements, provided no new courses of action. Similarly, Blinken’s suggestions on how to respond – ensure that we don’t import cotton picked by forced labor and guarantee that we don’t sell surveillance technologies to China – didn’t break new ground.  Instead, the U.S. should be advocating a liberal asylum/refugee policy for Uyghurs. 

More obvious, the U.S. government needs to start discussing boycotting the 2022 Winter Olympics in Beijing and encourage allies to do the same.  How can the U.S. send its athletes to compete in games hosted by a country engaging in crimes against humanity and genocide?  To do so would render Pompeo and Blinken’s statements today hollow words and would embolden the Chinese government – and all governments – to continue genocidal policies.  The last time we ignored the genocidal intent of a host country – Berlin, 1936 – six million Jews were murdered by the governing party.  The 2022 Winter Olympics are a little more than a year away.  In fairness to our athletes, these discussions must begin now.  Also, making these discussions public now, might save some lives in Xinjiang. 

But the U.S. cannot go this alone, either boycotting the 2022 Olympic boycott or fulfilling its responsibility to protect. Only a multilateral response can defeat crimes against humanity; no individual country has ever been able to end a genocide. The U.S. must re-engage international institutions including re-joining the U.N. Human Rights Council, a body where has been dominated by China since the U.S.’ 2018 withdrawal from the Council.

Genocide is a bold word. Those words need to be followed up with bold action.  Failure to do so only weakens those post-World War II international institutions and treaties the Biden Administration has promised to uphold.  It also means that Uyghurs will continue to suffer while all we did was play word games.

Book Review – Eat the Buddha: Life and Death in A Tibetan Town

By , December 21, 2020

Since 2017, the Chinese government has interred over a million Uighur Muslims in Xinjiang, destroyed Uighur religious sites and limited – at times forcibly – the number of children a Uighur woman can have, all in what appears to be an effort to stamp out the Uighur culture.  This summer, in Inner Mongolia, the government instituted policies that restrict the use of Mongolian in local schools, an effort Mongolian parents maintain is designed to eliminate their language and culture.  For many outside of China, these policies are a shocking new development, reflective of the hardline approach of current President Xi Jinping.  But, as Barbara Demick shows in her harrowing new book, Eat the Buddha: Life and Death in a Tibetan Town, for Tibetans, cultural destruction has been a part of their lives for the last 70 years. 

Eat the Buddha tells the story of this destruction by focusing on Ngaba, a town on the Tibetan plateau that has earned the morbid distinction as “the undisputed world capital of self-immolations.”  Ngaba is not located in the Tibetan Special Autonomous Region (“SAR”), the area on a Chinese map that most non-Chinese think of as “Tibet.” Rather, Ngaba is located in the northwest region of China’s Sichuan province, and is an important reminder of just how far the Kingdom of Tibet once extended and how dispersed the Tibetan population is today. In fact, as Demick notes in her introduction, the vast majority of Tibetans in China live outside the Tibetan SAR, but this in no way lessens the Chinese government’s repressive rule. In many ways it is worse.  According to the International Campaign for Tibet, since 2009, 45 Tibetans in Ngaba have self-immolated in protest. In Lhasa, the capital of the of Tibet SAR, only two have. 

Map showing Ngaba’s location in China

In Eat the Buddha, Demick asks why. Why have so many in Ngaba chosen to set themselves on fire, especially in a religion where suicide is not an accepted practice. Demick answer this question by examining the lives of eight Ngaba residents spread across generations, from the daughter of the last king of Ngaba (Princess Gonpo) to a twelve-year-old Tibetan girl, captivated by Chinese social media and uninterested in her own culture (Dechen).  None of the people are particularly militant or even interested in Tibetan independence.  Even Princess Gonpo, whose family members died, some by suspicious means, during the Cultural Revolution, is not anti-China and sees some of the benefits of being a part of the world’s second largest economy. 

But as Demick tells their stories, each of the eight, even the younger ones, begin to resist Chinese rule and increasingly view the Chinese governments’ efforts in Ngaba as the degradation and ultimate destruction of their culture.  And as Demick shows, these efforts have not just been limited to policies designed to “assimilate” the Tibetans; some have been violent attacks on the Tibetan people.  Particularly harrowing is the retelling of the violence perpetuated on Delek’s grandparents in 1958 when he was just nine years old.  As he hid in basket in their home, he heard screams and the senseless beating of his grandparents.  When he emerged, this nine-year-old saw his grandmother, blood running down her head from where her braids had been ripped from her head.  More recently, Ngaba has seen the increase militarization of the police force, creating an air of violence and captivity in the city, and at times resulting in the loss of innocent, young lives.  For most of us who have studied Chinese history – at least those of us outside of the Mainland – we have been taught about the harshness of Chinese rule.  But Eat the Buddha, by putting a personal face on this human suffering for the past 70 years, horrifies in the way a history lesson never can. 

Chinese military on the streets of Ngaba around 2009

What Eat the Buddha also powerfully makes clear is that as much as the Chinese government attempts to censor this history in schools or tries to buy young Tibetan’s loyalty through a higher standard of living, these attempts ultimately fail.  Dechen is a perfect example. When we first meet her, she is a twelve-year-old Tibetan girl fluent in Mandarin who loves watching Chinese movies that glorify the Chinese military.  For her, Tibetan culture is for the old. But then, as Chinese rule becomes increasingly suffocating in Ngaba and her family members become victims of the government’s violence, she awakens her from her social media stupor. 

By the time Demick reaches the start of self-immolation period in 2009, the reader is not shocked. It is the last form of protest available to Ngaba’s Tibetans, particularly the young monks at the Kirti monastery, grandchildren of those Tibetans first exposed to the Chinese government’s oppressive and violent rule.  Unable to freely learn their religion and watching their culture be destroyed, they are left with nothing else but the ultimate sacrifice.  The sad truth though, these self-immolations, with their shocking nature and international attention, result in the easing of some restrictions.  45 monks had to kill themselves in the most horrific of ways for the Chinese government to listen. 

Ceremony at Ngaba’s Kirti Monestary

Eat the Buddha is a brilliant exposition of the Chinese efforts to eradicate a culture and how the culture pushes back.  But that push-back is not enough to save the Tibetan culture and one starts to wonder why other countries aren’t doing more.  Yes, some leaders, risking Beijing’s ire and meet with the Dalai Lama, the exiled spiritual leader of Tibetan Buddhists (Angela Merkel in 2007; Barak Obama in 2016).  But those are just symbolic gestures. And this is why Eat the Buddha is a must read. By telling Tibetan’s stories, Demick reminds us that the world’s commitment to human rights is more than just words, sometimes it is the difference between life and death for a people and their culture. Its time we give more than just words.

RATING:

Rating: 5 out of 5.
Author Barbara Demick

Eat the Buddha: Life and Death in a Tibetan Town, by Barbara Demick (Penguin Random House, 2020), 352 pages.

Interested in purchasing the book? Considering supporting you local, independent bookstore. Find the nearest one here.

Derk Bodde and Why We Need to Restore the China Fulbright Program

By , November 30, 2020
A young Derk Bodde, around 1943

It often comes as a surprise to most Americans when they learn that the first country to participate in the Fulbright program was not the United Kingdom, where the Rhodes and Marshall scholarships send students, or even a country in Europe.  Rather it was China. And it would be Derk Bodde, a Chinese historian, fluent in Mandarin, who would earn the title of America’s first Fulbright scholar. 

Soon after the U.S. and China signed the Fulbright agreement on November 10, 1947, Bodde wrote to the Fulbright Board.  For months he heard little.  But in March 1948, the Fulbright Board called Bodde, asking if he would accept a scholarship to China. The Board needed an immediate response since it planned to issue a press release that day announcing that the Fulbright program had begun.  Bodde replied yes and five months later he, his wife and eight-year-old son were on a boat to Beijing.  “Such was the unorthodox beginning to an unorthodox journey which was to culminate in a decidedly unorthodox year in China” Bodde would recount two years later in his memoir, Peking Diary: A Year of Revolution

Bodde’s time in Beijing would be unorthodox because he, and the 20 other China Fulbrighters, arrived as China was in the midst of a civil war.  When World War II ended in 1945, so too did the ceasefire between the ruling Nationalist party (“Guomindang” or “KMT”) and the insurgent Chinese Communists.  By the time Bodde arrived in August 1948, Beijing was on the cusp of falling into Communist hands, an event that occurred on January 23, 1949, midway through his time there.

But Bodde would complete his full Fulbright year and would share his experiences in his 1950 memoir, Peking Diary.  With accounts showing the efficacy of the Communists’ initial rule in Beijing – clamping down on run-away inflation, adding order to a society that had gone astray, returning students back to classes, promising an end to government corruption, and responding to the people’s grievances  – Peking Diary was instrumental in explaining why the people of Beijing readily accepted Communist rule. Bodde, reading various Chinese newspapers daily, also reported that the Communist takeover in China was not some Soviet-led effort, the reigning orthodoxy of Washington, D.C foreign policy circles.  Instead, Bodde saw the Chinese Communist revolution as uniquely Chinese, a response to the deep problems plaguing Chinese society.  U.S. policymakers ignored this reality at their peril Bodde maintained. 

People’s Liberation Army enters Beijing, January 1949

Peking Diary, with its eyewitness account from an American fluent in Mandarin and familiar with the culture, shows just how foolish the Trump Administration was to terminate the China and Hong Kong Fulbright programs, an action it took in its July 14, 2020 Executive Order.  The Fulbright program has been vital in deepening U.S. policymakers’ understanding of China, with Fulbrighters returning from the country, sharing their experiences and their perspectives.  Bodde is just one.  More recent China Fulbright scholars have testified before Congress, have published op-eds, have written various reports and have broken the story of the mass internment of Uighurs in Xinjiang.  All of these efforts gives U.S. policymakers a much more nuanced perspective of China.

Senator J. William Fulbright, the architect of the program, never wanted it to be used to promote the U.S. government’s foreign policy goals such as providing information to government policymakers.  For him, the Fulbright program had one goal: world peace through the humanizing of other cultures and people.  “If international education is to advance these aims – of perception and perspective, of empathy and the humanizing of international relations – it cannot be treated as a conventional instrument of a nation’s foreign policy.  Most emphatically, it cannot be treated as a propaganda program designed to ‘improve the image’ of a country. . . .” Fulbright told an audience in 1967, after seeing his program exploited during the Cold War for U.S. foreign policy goals.

Mutual understanding of other cultures, which in turn fosters peace among people, is and should remain the Fulbright program’s primary purpose.  But as much as Senator Fulbright may not agree, we can’t ignore that the program does serve to educate the U.S. government in understanding a country that for the last 40 years has been in a state of constant transformation.

But, with the termination of the China and Hong Kong Fulbright programs, we lose this crucial information source when we need it most.  For the first time in recent history, China is emerging on the world stage, not to play a bit part but to be the director of the show.  It’s imposition of the Hong Kong National Security Law, which ignores its obligations under international treaties and disregards Hong Kong law, reflect that fact.  Today, one could imagine another “Diary” written by a Fulbright fellow except this diary would be situated in Hong Kong with a people rejecting Communist rule instead of welcoming it.  Unfortunately, with the Fulbright program terminated in Hong Kong and China, that book will not be written. 

What we could be missing out on without Fulbrighters in Hong Kong – eye witnesses to the protests

If world peace alone is an insufficient reason for the Biden administration to reinstate the China and Hong Kong Fulbright programs, our own self-interest should be enough.  The knowledge that Fulbright fellows bring back to the United States is vital to the country’s interests and its national security.  The Biden administration must modify the July 14 Executive Order by revoking the provision terminating the Fulbright program in China and Hong Kong.  Why would we put ourselves at a disadvantage?

To see our earlier essay recounting the history of the Fulbright program and its success in China, click here: Biden Should Bring Back the China Fulbright Program on SupChina.

The China Fulbright By the Numbers: 1979-2016

By , November 15, 2020
All the Fulbright countries are highlighted in orange. Map is only current through July 13, 2020.

Last Wednesday, SupChina published our oped calling on the Biden administration to restore the China and Hong Kong Fulbright programs, both terminated by the Trump Administration’s July 14, 2020 Executive Order. As we noted in the article, prior to that termination, the United States had been sending approximately 200 Americans every year to China on the Fulbright program and China was sending more than 100 Chinese citizens to the U.S. as Fulbrighters. Since the United States resumed diplomatic relations with the People’s Republic of China in 1979, the United States has sent 3,556 Americans to China on a Fulbright and China has sent 1,545 Chinese scholars to the U.S.

These numbers come from an analysis of the Fulbright annual reports, published between 1978 and 2016, which China Law & Policy reviewed and made a summary excel spreadsheet of the number of Fulbrighters, broken down by year (see below). The spreadsheet also includes an analysis of the Chinese government’s annual contribution to the Fulbright program.

The annual reports for 2004 to 2016 are available on the Department of State’s Bureau of Educational and Cultural Affairs’ (ECA) website here. After China Law & Policy made a request to ECA for the pre-2004 reports, ECA provided us with all the reports dating back to 1959. We have uploaded the Fulbright annual reports here from 1979 to 2003 here. Unfortunately, for the last three years the Fulbright Foreign Scholarship Board has failed to fulfill its Congressional-mandate of publishing an annual report and thus, the last report is from the 2016 academic year.

How to Read the China Fulbright Excel Workbook

You can download the Excel Workbook below or view it in the embedded document. Note that the Workbook has three sheets, the first shows the number of U.S. citizens sent to China, broken down by the various different sub-programs covered by the Fulbright program. Sheet two is the number of Chinese citizens sent to the U.S., also broken down by Fulbright sub-program. For both of these sheets, the right most column lists the total number of Fulbrighters by year. The bottom of the right most column totals the number of China Fulbrighters between 1978 and 2016.

You are welcome to use these numbers as you see fit but we would appreciate it if you could cite to China Law & Policy if you use this excel spreadsheet or the data we collected.

(AP Photo/Jacquelyn Martin)

Biden Should Bring Back the China Fulbright Program

By , November 11, 2020

Originally published in SupChina.

It was 1999, and for the Fulbright program, Nickolas Zaller and I were pioneers. Never before had China hosted recently-graduated college students on the Fulbright program, and it only permitted five of us to come that August for a year-long fellowship. The following year, 26 U.S. students went to China on a Fulbright, and for the last 15 years, that number has hovered around 50 annually.

But earlier this year, on July 14, with neither explanation nor warning — and buried deep in an Executive Order addressing the legal status of Hong Kong under U.S. law — the Trump Administration terminated the China and Hong Kong Fulbright programs. . . .

To read more please click to the original SupChina article (free number of monthly articles, after that paywall).

The TikTok Red Herring

By , August 5, 2020

For the past couple of weeks, the Trump Administration has been saber-rattling about TikTok, a Chinese-based social media platform popular among America’s youth and full of silly short videos – relatives dancing together, kids lip-syncing, teens sharing beauty tips.  According to Reuters, 60% of TikTok’s active users in the U.S. are between the ages of 16 and 24.  The idea that TikTok is a national security threat and a danger to our democracy seemed preposterous.

But over the weekend, these seemingly preposterous ideas became very real, with U.S. President Donald Trump stating that he was going to “ban” TikTok from the U.S. market.  And on Monday, Slate’s What Next podcast took on the TikTok debate, interviewing Axios reporter Bethany Allen-Ebrahimian on the reasons behind the Trump Administration’s desire for a ban.  While an informative interview on the Trump Administration’s justifications behind its threats to ban TikTok,  China Law & Policy came to realize that it’s time to take a deeper dive on TikTok.

Is TikTok A National Security Threat? 

Much of the What Next interview centered around TikTok as a national security threat, arguing that because TikTok’s parent company, ByteDance, is located in China, TikTok may have to share information with the Chinese government under Chinese law.  As China cybersecurity expert Samm Sacks recently noted, theoretically, this could happen.  But according to TikTok, it does not maintain any U.S. users’ data in China.  Instead that information is kept on servers in the U.S. and in Singapore.  Additionally, TikTok has allegedly cut off China-based engineers to TikTok’s source code and data.

Bytedance and TikTok founder Zhang Yiming

There is potential here for the Chinese government to obtain a large swath of U.S. users’ data, especially if the protections that TikTok has allegedly put in place don’t work.  But as Sacks points out, we have no evidence that this has actually occurred. But yet, the U.S. government is asking the American public to accept a forced a sale of TikTok to a U.S. company – something that feels more and more like a shakedown – without providing a scintilla of evidence that this song-and-dance social media platform popular among teenagers is an actual national security threat.  Our elected leaders owe us more than just conclusory statements. If they want us to forgo one of the core tenants of our society – a free and flourishing market economy – they need to provide us some evidence.

And as Sacks points out in her piece, if the Trump Administration is truly concerned about potential national security threats, it would be wise to develop a system to test the safeguards companies have put in place to guarantee that U.S. users’ data will not be used by any government:

The way to deal with this problem is to develop a country-agnostic set of criteria with robust rules not just for TikTok, but for how all companies collect, retain, and share their data. Instead of playing a game of whack-a-mole against a rotating cast of Chinese tech companies, the U.S. would be wise to spend more time developing legislation and standards for how all companies, regardless of country of origin, protect online privacy and secure data.

But such forward-thinking ideas that would actually solve the problem do not seem to be a part of the Trump Administration’s TikTok calculus.

Is TikTok A Danger to Democracy?

According to Allen-Ebrahimian, the Chinese government could use TikTok to wage a campaign of disinformation to influence our elections.  But that danger is not unique to TikTok.  Remember the 2016 election and Russian interference?  According to the Mueller Report, that election interference was largely done on Facebook through fake accounts and purchased ads.  TikTok is no more or less susceptible to disinformation than any other social media platform, be it FaceBook, Instagram, Snapchat, YourTube or Twitter.  There is nothing holding the Chinese government back from using those sites if TikTok is banned in the U.S.

But if you’re China, why stop there?  As Jeremy Daum recently pointed out, the best way for foreign governments to influence our elections is through limitless donations to Political Action Committees (PACs) by U.S. subsidiaries of state-owned enterprises. After the Supreme Court’s decision in Citizens United  v. Federal Election Commission, this is perfectly legal.   By treating corporations the same as individuals, Citizens United leaves the door wide open for foreign influence in our politics. In the case of Chinese corporations, this also means foreign government involvement. Most multinational Chinese corporations, like Haier, China Telcom, and China State Construction Engineering Corporation (CSCE), have U.S. subsidiaries. These are companies incorporated in the United States: Haier’s U.S. subsidiary, Haier American Holding Corporation, China Telecom’s subsidiary, China Telecom Americas, and CSCE’s subsidiary, China Construction America, are all incorporated in Delaware.

Under Citizens United, all three of these subsidiaries are citizens of Delaware and enjoy the same political speech rights as any other citizen of the United States. Citizens United does not permit us to look behind their corporate veil to see their relationship to foreign corporations. Haier, China Telecom and CSCE are all officially government-run. While the Chinese government does not meddle in the corporation’s daily affairs, it will exert its influence if it suits the government’s self-interest. For example, in 1994, Haier, a manufacturer of washing machines and refrigerators, was pressured by the Chinese government into acquiring a pharmaceutical company, a venture that ended badly.  And while Citizens United forbids “foreign influence” on a U.S. subsidiary’s political donation decisions, how are we going to find that smoking gun in the complex and complicated world of multinational corporations?

TikTok is not the demise of our democracy.  We are.  In the past four years, neither Congress nor the Trump Administration has done anything to put in place structures that protect our elections from foreign interference via social media.  And a decade later, Citizens United still stands.

Conclusion

There are serious issues with TikTok. It is necessary to understand better what it does with U.S. user’s data and some of the examples of censored speech, especially if the speech is anti-China, are problematic and need to be looked into.

But in the end, these are insufficient bases for the extreme tool of divestiture for national security reasons.  Banning TikTok is not going to solve our problems.  Setting up smart laws, rules and systems that ensure that foreign tech companies are not national security threats nor a danger to our democracy will go a much longer way.  But that doesn’t seem to be in the cards with this Administration.

For Those Who Don’t Have TikTok – Three Fun TikToks:

@thearielleWhen your old jam comes on! 🔥 ##foryoupage ##fyp ##comedian @mattjcutshall♬ original sound – thearielle

@afrobysaraawho’s down for this challenge? ##familychallenge ##familygoals ##nobodydancevideo ##fyp ##foyou ##viral♬ original sound – sara.afro

@jalaiahharmonLike we hit the lottery 🆙🔥🥳 @addisonre @charlidamelio♬ original sound – _.xoxlaii

Jerome A. Cohen – An Essay for His 90th Birthday

Prof. Jerome A. Cohen

It was my first trip to Taiwan and I was traveling with a celebrity, Jerome A. Cohen.  I had started working for Jerry at NYU Law School’s U.S.-Asia Law Institute only a few weeks prior.  Because it was August, I hadn’t seen much of my new boss who was spending the summer in Cape Cod.  Taiwan would be my first opportunity to get to know Jerry, one of the pre-eminent scholars of Chinese law in the West.

As soon as we arrived in Taiwan, Jerry’s importance in the region was evident.  At the airport, we were picked up in a car befitting a high-level dignitary.  We dined with then-Vice President of Taiwan, Annette Lu, a former student of Jerry’s and who, in 1985, Jerry helped secure an early release from a 12 year prison sentence for her political speech. And wherever we went, people asked Jerry about another of his former students, Ma Ying-jeou, a presidential candidate who would eventually win.  This law professor from New York had the ear of the highest level of Taiwan’s politics.

Jerry’s high-level contacts didn’t stop at politics.  We also met with Justice Lai In-jaw, the recently appointed President of Taiwan’s Judicial Yuan, in other words, the chief justice of Taiwan’s highest court.  He too had been a student of Jerry’s.  For over an hour, Justice Lai and Jerry discussed recent legal changes in Taiwan and Justice Lai expressed his excitement about his new position leading the Court.

At the end of the meeting, when we had already stood up to show ourselves out, Justice Lai stopped us, turned to Jerry, and, after noting that Jerry had clerked for Chief Justice Earl Warren in the 1950s, asked in a hushed, solemn tone “Do you have any advice for me in my new position?”

Jerry paused, looked at Justice Lai and asked  “Have you ever watched The Graduate?” The seriousness on Justice Lai’s face quickly disappeared with his eyes opening wide.  A smile spread across his face and in a voice louder than I expected said “Yes!  Mrs. Robinson!  The Sound of Silence!”

Jerry in Beijing, 1973. Photo courtesy of Joan Lebold Cohen

Evidently Justice Lai was a fan of the flick.  But I wondered, where is Jerry going with this; how could The Graduate, a movie from the 1960s where a mother seduces her daughter’s boyfriend, provide guidance to the future president of Taiwan’s Judicial Yuan.  Jerry continued.  “Do you remember the first scene, the pool party?”  “Yes!” Judge Lai exclaimed.   “Do you remember when Dustin Hoffman asks his dad’s friend, ‘what should I do?’ And the friend says ‘Plastics.  Get into plastics.’”  Judge Lai, still smiling, nodded repeatedly.  Jerry looked at Justice Lai and with a smile said “So Justice Lai, get into plastics!”  On that note, our meeting was over and I thought, what have I gotten myself into?

What I got myself into was the start of a relationship that would change my life and shape the way I see China, the world and the pursuit of justice.  When I started working with Jerry back in 2007, he was in the thick of supporting China’s human rights (weiquan) lawyers.  But unlike other academics, he didn’t just study these lawyers.  He met with them. He supported them.  He advocated for them before high-level Chinese officials.  Jerry took on the cause of these human rights lawyers, recognizing that they were as much change agents as those in power.  Often it was through Jerry that their stories of persecution were kept alive in the West. Jerry’s unwavering belief that rights lawyers are necessary to rectify societal injustices rubbed off on me.  When, two and half years later, I was offered the opportunity to take a job with a legal services organization in New York City, I spoke with Jerry before making a decision.  I was torn.  Should I abandon the study of Chinese law for a public interest law job in the U.S.?  Jerry didn’t hesitate.  “Yes” he told me.  But that’s Jerry, always encouraging you to take a risk and sometimes knowing you better than you know yourself.

The last time I saw Jerry before New York City went into COVID lockdown was at a talk he was moderating about academic freedom in China.  During the question and answer period, a middle-age professor from China raised his card to speak.  When it was the professor’s turn, he began with an opinion that was contrarian and, as he continued to talk, the groans from other audience members were audible. Even I bristled at what seemed like the party line. The Chinese professor began to slow down, likely unsure if he should continue with all the eye rolls from the audience. But Jerry, looking directly at the Chinese professor, asked him to continue, telling the professor that he wanted to hear the professor’s on-the-ground experience. The professor resumed, a little more confident with Jerry’s encouragement. Jerry engaged the professor, asking pointed questions that developed what turned out to be an important and insightful perspective.

That moment is etched in my mind because it is so different from what we see in today’s society, where we are quick to stake a position and dismiss or objectify those whose opinions differ.  But Jerry is not afraid to be challenged by a different opinion and he has the grace to engage those with different perspectives, making them comfortable to share their life experiences.  We need to be more challenged.  We need to be more respectful of each other. We need to be more like Jerry.

Jerry with his wife, Joan Lebold Cohen

I also often think back to our meeting with Justice Lai where I first got to see Jerry’s mischievous side and learned that none of us should take ourselves too seriously; regardless of our age or where we are in life, we should continue to have fun.

So to Jerome A. Cohen, on this July 1, 2020, happy 90th birthday! May you continue to be the teacher we need now more than ever and may you have many more years of fun!

U.S.-China Journalist Visa War: Further Undermining A Free Press

By , June 16, 2020

Wall Street Journalist Josh Chin

Wall Street Journalist Josh Chin

2020 was going to be a good year for Josh Chin.  He had just become Deputy Bureau Chief of The Wall Street Journal’s Beijing Bureau, had been awarded a prestigious New America fellowship, and received the Gerald Loeb Award for international reporting.  His was a career on the rise; a long way from his start as a freelancer.

On February 19, 2020, Chin, in his new role as Deputy Bureau Chief, sat in a waiting room at the Chinese Ministry of Foreign Affairs.  Chin’s boss was on the other side of a closed door, meeting with Ministry officials to discuss whether the Ministry would delay renewing one of their staffer’s soon-to-be-expired journalist visa.  Two weeks prior, The Journal had published an op-ed entitled “China the Real Sick Man of Asia” and the Ministry immediately responded, lambasting the author for his arrogance, prejudice and ignorance.  Chin and his boss were there to convince Ministry officials not to retaliate against their colleague.

When his boss emerged, Chin waited to hear his colleague’s fate: renewed credentials or delayed visa.  Neither his boss told him.  Instead, the Ministry had decided to expel Chin and another colleague along with the staffer.  Even though Chin’s journalist visa was still valid, he had five days to pack up his life of 13 years and get out.

Since 2012, the Chinese government has used its power over the journalist visa process to censor foreign news outlets.  For the Chinese government and the ruling Communist Party, the media exists to serve the Party.  “[L]ove the party, protect the party, and closely align [] with the party. . . .” President Xi Jinping told the government-run People’s Daily during a visit to their offices in 2016.  To keep foreign journalists in line, the Chinese government has used harassment, surveillance, visa delays and visa downgrades according to the Foreign Correspondents Club of China.

But for the United States, the press is viewed as central to our democracy, its freedoms enshrined in the First Amendment. “Our liberty depends on the freedom of the press, and that cannot be limited without being lost,” Thomas Jefferson wrote in a letter in 1785.  Because of this bedrock principle, the U.S. government has been hesitant to retaliate against Chinese journalists in response to the Chinese government’s provocations.  But enter Donald Trump, a president who constantly attacks the press.  For Trump, rolling back press Chinese journalists’ freedoms was not a hard choice.  Instead, it corresponded perfectly with his effort to undermine the press, an institution crucial to our democracy.

President Richard Nixon, not a fan of the press

Trump is not the first president hostile to the press.  John Adams signed into law the Sedition Act of 1798 which criminalized the publication of “false, scandalous or malicious writing” about the federal government.  Richard Nixon privately maintained an “enemies list” and illegally surveilled certain reporters.  The Obama Administration prosecuted 11 government employees and contractors for revealing classified information to the press.  But Trump’s treatment of the press is different and more nefarious to our democracy.  It’s “a systematic effort to de-legitimize the news media as a check on government power,” University of Georgia media law professor Johnathan Peters told the Committee to Protect Journalists last month.

The day Chin was expelled from China, U.S. Secretary of State Mike Pompeo condemned the Chinese government’s actions, stating that “[m]ature, responsible countries understand that a free press reports facts and expresses opinions. The correct response is to present counter arguments, not restrict speech.”  But on March 2, 2020, the State Department limited the number of journalist visas issued to Chinese state-run outlets to 100, effectively expelling 60 Chinese reporters.  The Chinese government responded with more severe sanctions: the expulsion of U.S. citizens employed by The New York Times, The Wall Street Journal, and The Washington Post.  Not long after, the Trump Administration issued its most punitive sanction yet: downgrading every Chinese journalist’s visa to a three-month term from a previous unlimited time period, regardless of whether they work for a Chinese, state-run news outlet or The New York Times.   The Chinese government has yet to respond.  But expect it to similarly relegate U.S. journalists to a three-month visa or expel all U.S. journalists from China.

Two expelled Wall Street Journal Reporters – Philip Wen (L) and Josh Chin (R) – on their way out of China. Photo Courtesy of Greg Baker / AFP

The Trump Administration’s tit-for-tat diplomacy is a far cry from Pompeo’s “correct response.”  Instead, it mimics Beijing’s tactics: restricting speech through the journalist visa process.  The United States, once the international champion of freedom of the press, is following the lead of an authoritarian, one-party state.  But this should not be a surprise.  The Trump Administration’s treatment of the domestic press the past three years reflects its authoritarian bent.  Trump repeatedly tweets “fake news” about news stories he doesn’t like and has called the U.S. media “the enemy of the people.”  The White House revoked CNN reporter Jim Acosta’s White House press credentials after Trump told him he was a “rude, terrible person.”  Trump’s re-election campaign has sued three major media organizations for libel in cases considered “long shots.”  These are all pages from Beijing’s playbook, a playbook where the media is subservient to the ruling party.

Some of Chin’s last articles from China were on the emergence of a novel coronavirus in Wuhan.  His reporting from early February, as well as that of his fellow, expelled colleagues, exposed the pandemic nature of COVID-19: hospitals overrun with patients; front-line medical workers dying of the virus; mortuaries unable to process the massive number of dead.  Their reporting foreshadowed what we would see on our shores a few months later.  Even with the Chinese government hiding early facts about the novel coronavirus, U.S. reporters were able to find – and report – the truth.  But this truth is an impediment to the Trump Administration’s narrative that China’s lack of transparency prevented it from recognizing the severity of COVID-19.  So while the Trump Administration publicly laments the Chinese government’s restrictions on U.S. reporters, it has to know that its retaliatory tactics means that there will be even less U.S. reporters in China.  But this may be precisely what it wants.

Tiananmen 31 Years Later – Where Are We Now?

This Thursday marks the 31st anniversary of the Chinese government’s violent crackdown on the peaceful protests at Tiananmen Square.  On the night of June 3 and into the early morning hours of June 4, 1989, tanks rolled in to the streets of Beijing and the Chinese government did the unthinkable: it opened fire on its own people, killing hundreds if not thousands of unarmed civilians in the streets surrounding Tiananmen Square.  That violent crackdown marked the end of student-led, peaceful protests in the Square, protests that sought to bring reform to China.

To mark this anniversary, I was going to write a post on where China is today and its new attempts to squelch any dissent, protest, or rule of law in one of the last areas in China that permits freedom of speech: Hong Kong.  But as I sit here in New York City, on a picture-perfect spring afternoon, searching for photos of the tanks rolling into the Tiananmen Square area to accompany the blog post, my twitter feed is full of pictures of U.S. military trucks invading some of America’s largest cities to “put down” peaceful – and some less peaceful – protests.  These protests erupted soon after videos emerged of the brutal death of George Floyd, a black man who died after a white police officer pressed his knee into Floyd’s neck until Floyd stopped breathing. For eight minutes and 46 seconds, and even after Floyd’s handcuffed body went limp, the officer never stopped his pressure on Floyd’s neck. Three other police officers stood there and watched.

As protests erupt in the United States, our initial response is violence.  Tear gas and pepper spray fill the streets of many U.S. cities with the police resorting to heavy-handed tactics.  Peaceful protesters are hit with rubber bullets.  There is little attempt by the police to de-escalate.  Journalists find themselves the targets of police.  The government blames “antifa” forces for instigating the protests.  These  scenes conjure up images of last year’s protests in Hong Kong, where violent police tactics were used against unarmed protesters.  And with some Hong Kong protesters’ frustrations growing, they too sought to vandalize stores and destroy property.  The Chinese government blames “foreign forces” for riling up the people. The one difference: President Xi Jinping didn’t tweet that the Hong Kong police should shoot the protesters; that would be too reminiscent of 1989.  But, in the United States, President Donald Trump did tweet such sentiments. And mere days from the 31st anniversary of the Chinese government unleashing its military to massacre unarmed civilians, Trump has threatened to do the same.

I know that substantively comparing the United States and China is inappropriate.  The police officer who killed Floyd has been charged with third degree murder and will be prosecuted at a public trial that will be covered by the press.  The officer’s fate will be determined by an independent judicial system.  These things would never happen in China, and increasing less so in Hong Kong.  And there are some police officers and national guard members showing restraint and solidarity with the protesters; those who are not will be held accountable.  Again, something that would not happen in China and isn’t happening in Hong Kong.  But the images from the United States this week, and the sentiments from the U.S. president, are eerily similar to images of Beijing in 1989 and Hong Kong last summer.  It’s too much to ignore.   And I fear that like the protesters in 1989 who sought a better society for China, the protesters this weekend in the United States will confront a government that prevents them from realizing a better society for us: one that is truly equal and  where black lives matter.

Every year, I dedicate this post to those killed on June 4th, 1989.  But as I write this, I wonder, how many of the men and women who lost their lives in Beijing 31 years ago used their last breathes to cry out for their mothers, just like George Floyd did last week on the streets of Minneapolis.  And while we still must remember June 4th, the lives lost and the dreams crushed, this year, I would like to dedicate this post to George Floyd.  And to Ahmaud Arbery, Breonna Taylor, Philando Castile, Sandra Bland, Eric Gardener, Michael Brown, Tamir Rice, Trayvon Martin and the countless other African Americans killed by the police in the United States (or people who thought they were the police).  We need to say their names.  We must never forget.  For them, we must continue to build a better society with freedom, equality and dignity for all.

 

How Misperceptions of China Hobbled Our COVID Response

Last Friday, the United States reported its deadliest day in its fight against COVID-19: 2,909 people dead in one day, bringing the total to 65,173. In two months, COVID-19 has taken more American lives than the decades-long war in Vietnam and it has quickly surpassed the estimated flu deaths in the U.S for the season.  On Monday, experts gave a dire prediction: by the beginning of August over 134,000 Americans lives will be lost to COVID-19, almost doubling an estimate made just a few weeks ago. Americans remain in a state of shock and sixty-five percent of all Americans oppose re-opening.

Meanwhile, at the White House, another story is being crafted. While experts were upping their estimates for the number of dead, President Donald Trump was doing a victory lap about his successful handling of the COVID-19 pandemic, repeatedly stating that the country is optimistic about re-opening, as if saying this multiple times somehow makes it true.  Key to Trump’s smoke-and-mirror strategy to hide his own ineptitude and incompetency is to blame China.  Last week, Trump told the press that if China had stopped the virus when it started, the United States would not have had so many deaths. Over the weekend, Secretary of State Mike Pompeo beat the same drum, tweeting, that “China has a history of infecting the world. . . .”  Of course he didn’t offer any evidence to support this claim.

But this blame shifting makes the United States into a weak player, a country with no power to protect its people. Does the U.S. really lack the ability to change the course of what happens on its shores? For sure, the Chinese government is not innocent in all of this, it delayed by a month full knowledge that pandemic that was exploding in its midst.  But once the Chinese government admitted that there was human-to-human transmission and the numbers coming out of China showed cases doubling every four days, the writing was on the wall: this highly contagious virus was going global and the United States needed to act to pronto.

But that writing is only on the wall if your knowledge of China is grounded in today’s realities and its based on some archaic impression.  Unfortunately, the Trump Administration’s perception of China – and its people – is somehow stuck in 2003. Back then, SARs – another novel coronavirus that emerged from China – was a global threat. But it barely made any headway in the United States. We had around 328 cases, and the vast majority of which were Americans who visited China.

President Donald Trump speaking from the podium at one of his White House COVID-19 press conferences.

But fast forward 17 years and you have a different China. It’s the second largest economy in the world and its middle class is 420 million strong and growing. And this Chinese middle class loves to travel. In 2003, Chinese tourists made only 20 million trips abroad. In 2018, they took a whopping 150 million overseas trips.  Compare that to the United States. In 2003, 32 million Americans traveled abroad in 2003; in 2018, the number was only at 93 million. One of the top ten source cities of Chinese tourists abroad?  Wuhan, a city that has long served as an important trade hub for central China and at one point was home to various foreign concessions in the early 20th century. Given Wuhan’s prominence and the amount of travel that Chinese tourists do these days, there was no way this highly contagious virus could be contained.  If Trump Administration knew anything about today’s China, it should have assumed that by late January, COVID-19 had made it to our shores and was spreading.

Even New York State Governor Andrew Cuomo – who has been handling this crisis far more competently than his federal counterpart – seems mildly baffled that the COVID-19 strain floating around New York City shows that it came from Europe.  But again, knowing the China that exists today, this makes sense.  In 2018, over 6 million Chinese tourists visited Europe; only 3 million visited the United States in 2018, with 1.1 million visiting New York City. Unsurprisingly, of the 6 million Chinese tourists that visited Europe, over 2 million visited Italy.  In 2019, the Lombardy region became the top destination for Chinese travelers to Italy.

Well, this is one way to deal with quarantine.

But instead of following these numbers, Trump was lulled into complacency. “We have it under control” Trump kept telling the public in January and February. But with little COVID-19 testing during that time, these statements were just puffery, deadly puffery as we have now found out. Trump was likely making these assertions based on an outdated perception of China, believing that distance would still protect the United States like it did in 2003 with SARs. But China has changed, and its massive middle class enjoys traveling just as much as European and American citizens do. This pandemic was going to go international even before anyone could have determined that COVID-19 was a problem. Trump’s initial travel restrictions on flights from mainland China, also showed his ignorance.  While helpful to some degree, it disregarded the fact that Chinese tourists travel to Asia and Europe much more than to the United States.

But you know who wasn’t stuck in 2003?  The other countries of Asia.  The vast majority of Chinese tourists – over 65% – travel only as far as neighboring countries and territories in the region.  As a result, these countries – countries without the United States’ economic prowess and robust health care system – took decisive action early. And they didn’t know anything more than Trump did; they too were kept in the dark early on by China.  But what they did know was that China had changed since SARs, and once they found out that COVID-19 was transmissible among humans and was spreading like wildfire in Wuhan, they took action – instituting widespread testing, conducting contact tracing, and assuming the worst about the virus. None of these countries have an infection rate anywhere close to the United States.

Imagine if the Trump Administration understood the realities of today’s China?  Maybe then it would have instituted wide-spread testing, without restrictions that limited testing to only those who traveled from China. Maybe this widespread testing would have uncovered clusters of community spread, allowing us to take more decisive actions earlier. Maybe we would not have needed to shut down our entire economy. Maybe we could have saved lives. Unfortunately, we will never know.  More Americans will die while the Trump Administration seeks to blame its mortal enemy, and allow its outdated, Cold War paradigm keep us from working with the one country we need to work with to stop this pandemic: China.

 

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