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By Elizabeth M. Lynch, February 9, 2014

New York Times journalist Austin Ramzy

Last month, while another U.S. journalist was packing his bags, forced to leave China, the U.S. Senate was poised to hold the confirmation hearing for Max Baucus, the Administration’s nominee to replace Gary Locke as ambassador to China.  You would think that central to the Baucus hearing would be the issue of journalist visas, or at least it would be mentioned by the candidate himself as a troubling development.  But you would be wrong.   Instead, after a December where the issue of U.S. journalists in China reached crisis level, Congress reverted to its shortsighted old ways, barely even raising the issue.

But, as the recent expulsion of the U.S. journalist clearly demonstrates, such a lackadaisical approach is increasingly dangerous as the Chinese government attempts to develop a more sophisticated response to try to maintain control of foreign journalists and U.S. media outlets through the visa process.

New York Times Reporter Austin Ramzy Effectively Expelled from China

For ten years, Austin Ramzy diligently covered Asia and China for Time Magazine, first out of Hong Kong and then since 2007, out of Beijing.  While his pieces were thought-provoking for a Western audience, they were hardly the type that would illicit anger from the Chinese government.  There were no articles exposing government officials’ vast wealth and while Ramzy did report on certain human rights issues in China, those articles were interspersed among other more general pieces.  In other words, he was likely not on the Chinese government’s target list in terms of renewing a visa.

But Ramzy’s status changed when, in April 2013, he took a job with the New York Times.  Since October 2012, when it published a Pulitzer-Prize

Former Premier Wen Jiabao

winning series on former premier Wen Jiabao’s questionable role in his family’s lucrative business holdings, the New York Times has become the Chinese government’s Enemy Number One.  Its website, including the Chinese-language portion, has been blocked in China, its U.S. website allegedly hacked from China, and every December, when it comes time to renew their visas, the New York Times China correspondents have faced excessive delays and effective expulsion.  The New York Times Fall 2013 coverage of the U.S. investigation into J.P. Morgan’s cushy ties with the children of China’s government elite, including the daughter of Wen, likely did not help its situation.

Ramzy’s visa troubles began almost as soon as he started working for the Times.  Although Ramzy had a journalist visa good through the end of December 2013, because he switched employer, under Chinese law, Ramzy was required to first apply for a new press card with the Chinese Ministry of Foreign Affairs (“MOFA”).  Once issued, Ramzy then, with his new press card, would be required to apply for a new journalist visa and residency permit with the Public Security Bureau (“PSB”) to reflect his new employer (see Regulations on News Coverage by Permanent Offices of Foreign Media Organizations and Foreign Journalists -“Foreign Media Regs” – Art. 10).

But, according to a source familiar with the matter, MOFA began giving Ramzy a hard time from the beginning.  For two months, the Beijing MOFA office refused to accept his press card application, informing him first that he would have to apply through Hong Kong, and then informing him that it would have to be through the New York consulate.  However, Article 10 of the Foreign Media Regs clearly states that the application can be made within China and directly to MOFA.

As the source told China Law & Policy, it was not until June 2013, two months later, that MOFA finally accepted his press card application.  But MOFA would sit on Ramzy’s application, and come December 2013, Ramzy was part of the New York Times contingent that was almost effectively expelled en mass when MOFA failed to process any Times correspondents’ press card applications and renewals.

Photo from Ramzy’s Twitter feed showing that he had mostly packed his things

While the pressure from the Obama Administration, in particular Biden’s December visit to Beijing where he publicly raised the issue, appeared to have averted the de facto closure of the Times‘ China bureaus, Ramzy seems to be the lone casualty.  Ramzy’s vulnerability likely came from the fact that he was the only New York Times correspondent who was hired in the middle of the year.  For some reason, MOFA processes “new” applications for a press card with a news agency differently than a mere renewal of the press card for a reporter that continues to work for the same news agency.  This is what happened to New York Times correspondent Chris Buckley the year before.  Like Ramzy, Buckley took a job with the Times in October 2012 but MOFA failed to process his press card.  When his prior journalist visa and residency permit expired on December 31, 2012, Buckley was forced to leave China.  For the past year he has been reporting for the Times from Hong Kong while MOFA allegedly is still processing his press card application.

Similarly, by the end of this December, without a press card, Ramzy was unable to apply for a new journalist visa.  His prior visa and residency permit was set to expire on December 31, 2013.  At the end of December, MOFA provided Ramzy with a one-month “humanitarian” visa so that after seven years, he could pack up his life and leave.  On January 30, 2014, Ramzy left Beijing and relocated to Taipei, Taiwan to cover China from there.

Stronger Response from Both the US & China

With his departure, the White House issued a strong statement, condemning China on Ramzy’s effective expulsion.  This was a marked departure from the White House’s prior strategy of silence when other U.S. reporters were effectively expelled or banned from reporting from China (Melissa Chan in 2012, Philip Pan in 2012, Andrew Higgins from 2009 to 2012 and Paul Mooney in 2013).

But the U.S. was not the only country with a changed strategy.  For all of these prior expulsions and bans, the Chinese government has never

MOFA spokesperson Qin Gang

provided a specific reason for its delay or denial.  But in Ramzy’s case, the Monday before his departure, MOFA spokesperson Qin Gang addressed the issue and tried to put a fig leaf of legality over the situation.  While Qin implied that MOFA was still processing Ramzy’s press card application, he accused Ramzy of violating Chinese regulations because he continued to enter and leave China on his old visa connected to his prior employer and never applied for a new visa or residence permit.

Qin was correct that Ramzy did not apply for a new visa and residence permit once he took the job with the Times, but that was not a willful act.  For a journalist visa and residency permit, part of the application is submission of a valid press card (Foreign Media Regs, Art. 10).  Here Ramzy was not able to apply for a new visa where MOFA was sitting on his application for a new press card, failing to process it.

Regardless of that fact, the law does not require Ramzy to apply for a different type of visa (presumably a non-journalist one) while waiting on a new press card.  The only time that a journalist must apply for a different type of visa to remain in China is if his press card has been “canceled,” a decision that must be made public (Foreign Media Regs., Art. 14).  Here, Ramzy’s prior press card was not cancelled; rather he was applying for a replacement.*  Nowhere in the Foreign Media Regs is there a requirement that a journalist change his visa type while waiting on a replacement press card.

Finally, China’s Exit-Entry Administration Law permits a foreign resident to stay in China to expiration of a prior residence permit even when a new one is denied: “[I]f an extension is denied, the foreigner concerned shall leave China on the expiry of the validity period specified in their residence permits” (Exit-Entry Administration Law, Art. 32).

Ramzy was within the law in entering and exiting China on his prior visa while waiting on his press card.  But MOFA’s citation to the law, even if inaccurate, is an interesting development and not restricted to foreign journalist visas.  Rather, it has been a trend in dealing with criticism from abroad.  An examination of how the Chinese government has dealt with public interest lawyers shows a government increasingly using the law – even if only a fig leaf – to explain its suppression of dissent.  The Chinese government has come to realize that the rhetoric of law is often an effective defense and silencing device in dealing with the West.

The Danger of the Senate’s Silence

It is this more sophisticated response that should put the U.S. government on warning that Beijing does not intend to back down in toying with

The Baucus Senate Confirmation Hearing – Why Bother?

foreign journalists visas.  That is why the absence of this issue during the Baucus hearing was a dangerous disappointment.  During the hour and a half session, not a single Senator specifically asked what Baucus intended to do about this issue.  Instead, the hearing descended into the verbal embodiment of a high school social studies essay on the “interconnectedness” of the world, how they are like us, and with Baucus addressing human rights only superficially, stating that its protection “is the bedrock of American society.”

By not focusing on the issue of journalists visas during the hearing, Congress has effectively signaled to Beijing that it can go back to the status quo; the Senate is too concerned with how to sell beef in China to pay attention  to one journalist unable to stay there.  This is certainly a missed opportunity because if there is one thing the Chinese government does not understand and fears as a result, it is Congress.  Even if five minutes of the hearing addressed the issue, that might have given the Chinese government food for thought.

And it would also have been useful for Americans to know what Baucus’ strategy will be.  As Ambassador, Baucus will have a lot of power to determine if there should be a policy of visa reciprocity.  Does he think that is an appropriate approach?  Does he think there are other ways to deal with this issue?  How public will he be when the Chinese government again trifles with a U.S. journalist’s visa?

The U.S. government – both Congress and the Administration – cannot allow this issue to slip into the background.  While the White House should be commended for issuing a statement on Ramzy’s expulsion, it needs to use every opportunity to remind the Chinese government that this is a key issue.  Just stating it is not enough.  Last week, when Daniel Russell, Assistant Secretary of the Bureau of East Asia and Pacific Affairs at the State Department held a press conference, two reporters in the audience were from Chinese government-run media outlets.  Perhaps starting the press conference with a comment about how the U.S. allows a free foreign vis-a-vis China might demonstrate just how important the issue is to the current Administration.

Goodbye New York Times?

Consistent pressure on the Chinese government from all parts of government must continue until Pan, Buckley, and Ramzy’s visa applications are processed.  Back in December, when it looked like the New York Times and the Bloomberg China bureaus would effectively close, the U.S. government was able focus its resources and pressure China to renew the correspondents’ visas.  But here, the danger is no different.  Where the New York Times is unable to get a new press card for any new employees in China, it will be unable to replace its current correspondents.  How long can David Barboza, 10 years in China and Ed Wong, six years, stay there?  It might be a slow death for the Times‘ China offices, but, unless something changes, its end inevitable

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* After publication of this post on February 9, 2014, it was brought to my attention that Ramzy’s prior press card with Time Magazine could have been “cancelled” under Chinese law and that Article 14 might apply to him.  A correction in the form of a new post can be found here.  Apologies in advance.  — EML

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By Elizabeth M. Lynch, January 29, 2014

Welcome to the Year of the Wood Horse!

Volcanoes, earthquakes, record high temperature.  Are you ready for Year of the Horse?  The horse might look like a gentle beast, but in the Chinese zodiac, it is full of fire and it is that fire that will make the new year a tumultuous, fun-filled ride.

After two years of reptiles – dragon followed by snake – the Chinese zodiac is back to the more fuzzy animals and the horse is one of China’s favorite.  People born in year of the horse are often prized – charming and intelligent, they are often the life of the party.  Oprah Winfrey, Joe Biden – both horses.  But they can also be strong-willed, refusing to be corralled or dominated.  Mike Tyson is a horse.

What makes 2014 a little bit bumpy is the fact that horse’s internal element – fire – is at odds with the year element – wood.  Every zodiac animal has one of the five elements – wood, water, metal, earth or fire.  But every year has its own element and this year’s is wood.  But fire burns wood, making international tensions – think Syria, South China seas, the Olympics – downright combustible.

But a lot of how the year will pan out for the individual will depend on your own sign.  How will you do?  Check out your personal horoscope here (note you may have to do a Bazi test to determine the strength of your birth year element.  You can do that here – note that birth date is entered day-month-year).

At any rate, your year won’t be worse than Justin Bieber’s.  According to Hong Kong feng shui master Alion Yeo, Bieber will have a very negative year. ” There will be times where he will not be able to control himself” Yeo told the AFP.

Whatever the year may bring you, we wish all of our lunar new year-celebrating friends a happy and healthy new year!

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By Elizabeth M. Lynch, January 28, 2014

Fuzzy Jurisdiction

On Sunday, in a verdict that surprised no one,  the Beijing No. 1 Intermediate Court found human rights lawyer Xu Zhiyong guilty of gathering crowds to disrupt public order (Criminal Law Article 296).  The Court sentenced Xu to four years, only one year shy of the maximum.

The Court’s verdict which runs close to twenty pages when converted to a word document, details the prosecutor’s evidence that formed the basis of the Court’s decision.  The length of the document itself belies a Court confident in its decision on a case that they know the world was watching.

There is certainly much to be parsed out in the decision but one thing that is interesting are the jurisdictional issues that China Law & Policy raised last week prior to Xu’s trial.  Namely, why Xu – who is being accused of the same crimes as many of the other defendants – was being tried in an higher level court, Beijing’s No. 1 Intermediate Court, while his compatriots are being tried in the lower level Haidian People’s Court.

The verdict attempts directly answers this question and in doing so present a frightening future for defendants:

对于被告人及其辩护人在庭前及庭审中对管辖及分案审理所提的异议，经查，本案事实涉及北京市海淀区、朝阳区及西城区等属于不同法院管辖的区域，北京市人民检察院第一分院对许志永一案向我院提起公诉后，北京市高级人民法院依照《中华人民共和国刑事诉讼法》第二十六条之规定，指定由我院管辖。鉴于公诉机关在起诉书中明确指控了犯罪事实，并附有案卷材料及证据，符合《中华人民共和国刑事诉讼法》第一百八十一条的规定，我院依法应当受理并开庭审判。对于共同犯罪案件是否并案审理，人民法院、人民检察院、公安机关依法均可以在各自职责范围内决定。被告人及其辩护人所提上述异议不能成立，本院不予支持。

The Court acknowledges defense counsel’s two jurisdictional-based objections: (1) that the Intermediate Court should not hear the case and (2)

Xu Zhiyong, awaiting trial in the detention center

Xu’s case should be tried with the other defendants.   According to the Court, its jurisdiction is based upon Article 26 of China’s Criminal Procedure Law (“CPL”), a provision that permits a higher level court to re-assign cases to other courts when jurisdiction is unclear.  According to the Court, because the Haidian District, the Chaoyang District and the Xidan District People’s courts all had jurisdiction over the case (presumably because some of the public demonstrations accorded in each of those districts), the prosecutor filed his case with the Intermediate Court and the Beijing Municipal Higher People’s Court determined that the Beijing No. 1 Intermediate Court could hear the case, thus giving it jurisdiction.

The verdict pays no mind to defense counsel’s objections; it does not explain what these objections were let alone why the Court rejected them. By flat out ignoring these objections, the Court seems to imply that as long as the law was followed by the prosecutor and the courts, then the decision will be permitted regardless of defense counsel’s arguments.  Unfortunately, this does seem to be what Article 26 says although neither the Interpretation of the Supreme People’s Court on the Implementation of the CPL (“SPC Interpretation”) nor the Interpretation of the Supreme People’s Procuratorate on the Implementation of the CPL (“SPP Interpretation”)  explicitly permit the prosecutor to file a criminal case with a higher level court.  Although at the same time, it does not forbid it.

It doesn’t matter how loud defense counsel gets, his objection is never heard

While there might be a basis in law to permit the Intermediate Court to have jurisdiction, what there appears no basis for is the Court’s cursory denial of defense counsel’s request to try the other defendants with Xu.  In a two sentence analysis, the Court states that under the law it is within the discretion of either the Court, the prosecutor or the public security organs to decide whether joint defendants should be tried separately.  The Court fails to cite any provision of any law or regulation that states that premise.

As for defense counsel’s objection – which convincingly cited to Article 13 of the SPP Interpretation requiring all cases to be joined before a higher court if one is to be heard there – the Court conclusory stated that defense counsel’s objection was “untenable” (不能成立) and therefore the Court was right to reject it.  The verdict provides no reason or explanation as to why the objection was untenable.  Given that defense counsel was able to sight to regulation for its argument and the Court here cites to no law, defense counsel’s objection seems worlds more tenable than anything the Court provided.

But that would be for a trial that was based on rule of law, something that is missing here where the Court rules by executive fiat regardless of laws of regulations.  For all the Chinese Communist Party’s recent rhetoric about the need to have a “strict adherence to legal procedure,” the CCP again chose to ignore that procedure in the one case where it felt like its power was being threatened.

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By Elizabeth M. Lynch, January 23, 2014

Xu Zhiyong

On Wednesday, the Beijing No. 1 Intermediate Court concluded the trial of Xu Zhiyong on the charge of disrupting public order, a crime that can carry up to 5 years in jail.  At the conclusion of the trial, Xu was invited to make a final statement, a right afforded to him by Article 193 of the amended Criminal Procedure Law.  According to his attorneys, ten minutes into his closing statement, Xu was shutdown by the judge.  According to Article 235 of the Supreme People’s Court Interpretation on the Application of the Criminal Procedure Law, the Court is permitted to stop a closing statement:

“After the chief judge announces the conclusion of courtroom debate, the collegial panel shall ensure the defendant’s full exercise of the right to a final statement. Where the defendant in his final statement repeats his opinions several times, the chief judge may stop it. Where the final statement is contemptuous of the court or public prosecutor, harms others or the common interests of society, or are irrelevant to the case, they shall be stopped.” – translation courtesy of China Law Translate

Fortunately, Xu’s lawyers have released his closing statement in its entirety and Yaxue Cao over at the blog Change China has posted the English translation.  The document is an important read in understanding the New Citizens Movement, its principles, and why the Chinese Communist Party (“CCP”) is so afraid:

“While on the face of it, this appears to be an issue of the boundary between a citizen’s right to free speech and public order, what this is, in fact, is the issue of whether or not you recognize a citizen’s constitutional rights.

On a still deeper level, this is actually an issue of fears you all carry within: fear of a public trial, fear of a citizen’s freedom to observe a trial, fear of my name appearing online, and fear of the free society nearly upon us….” – Read the Full Translation Here Courtesy of Change China.

While this drama was unfolding in the courtroom, a separate drama was unfolding outside with various foreign journalists being physically harassed by both Chinese police and plain-clothed thugs likely hired by the Chinese police.  All of it caught on camera.  Here is Martin Patience of the BBC first harassed by police then by a group of thugs:

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By Elizabeth M. Lynch, January 21, 2014

Xu Zhiyong in better days – on the cover of Chinese Esquire in 2009

On Wednesday, the Beijing Municipal No. 1 Intermediate People’s Court will hear the trial of rights-defending lawyer Xu Zhiyong (pronounced Sue Zhi-young).  His alleged crime?  Disturbing public order, a charge that the Chinese government has used with abandon since China’s new president Xi Jinping rose to power at the end of 2012

Xu was not always the Chinese government’s Enemy No. 1.   Early in his career, Xu was celebrated for his ground-breaking work.  In 2003, Xu, along with rights-defending attorneys Teng Biao and Yu Jiang, successfully pushed for the abolishment of China’s custody and repatriation system, a form of extrajudicial detention that resulted in abuse and on one occasion the death of a college student.   In 2008, Xu, through his legal assistance organization the Open Constitution Initiative (“OCI” or in Chinese “Gongmeng”) represented parents whose children were poisoned by contaminated powdered milk, keeping the issue in the press and obtaining some form of justice for the parents.  These cases, in addition to investigations into the use China’s “black jails” – extrajudicial, ad hoc and secretive holding cells used to house government-defined trouble makers – brought both domestic and international fame.  In 2008, Xu was featured in China’s Economic Observer and by 2009, he would grace the cover of China’s Esquire magazine.

But Xu’s success also brought the attention of the Chinese government at a time when it was beginning to look less and less favorably upon the rights-defending movement.  In July 2009, Xu was detained on charges of tax evasion.  After being held for almost a month, Xu was freed on bail and his organization was fined a stunning 1.46 million RMB.  Such was the end of OCI.

Fortunately for the Chinese people it was not the end of Xu Zhiyong or his rights-defending work.  Instead, Xu looked to take his ideas and create

Emblem of the New Citizens Movement – calligraphy of Sun Yatsen

a more organized grassroots movement.  Working with other rights-defending lawyers, journalists, activists and average citizens, the movement called on the Chinese people to uphold the rule of law and seek to protect their civil rights.  By May 2012, Xu named this movement “New Citizens Movement” (in Chinese, Xin Gongmin Yundong) and called upon the new citizens to unite and help to establish a rule of law, protect constitutionally-guaranteed rights, end corruption in government and change the role of the Chinese people from subjects to full-functioning citizens.  Xu’s essay describing the movement was quickly removed from the internet.

Although many describe Xu’s approach as moderate, it is still too radical for the Chinese government, especially a Chinese government with a new president eager to solidify his power.  Over the past year, the Chinese government has detained over 100 activists, many of whom are New Citizens.

In July 2013, Xu’s time had come; the police detained him and various other activists and in August 2013, formally arrested him for disturbing public order.   In its December 2013 indictment, the Beijing police charged Xu with organizing and being the ringleader of protests held in Beijing calling on the government to require that senior government officials disclose their financial holdings and assets (see video below of one of the protests).

The fact that the Chinese Communist Party has recently initiated such a pilot program of asset disclosure is irrelevant.  Last Friday, Xu appeared before the Beijing Municipal No. 1 Intermediate Court where he learned that his trial is set for Wednesday, that he will not be permitted to call witnesses, and will not be permitted to cross-examine the prosecution’s witnesses.  As protest, Xu will remain silent during Wednesday’s trial.

There are many things to question about Xu’s impending trial, but one aspect that jumps out as out of the ordinary is the fact that Xu’s trial will not be held in a basic trial court.  Instead, the intermediate court has jurisdiction; many of the other defendants arrested and charged for the same crimes will have their case heard in the Haidian Basic People’s Court.   Why is Xu different?  Why is his case being heard by a higher court?

Beijing’s No. 1 Intermediate Court

According to the China’s amended Criminal Procedure Law (“CPL”), an intermediate court automatically has jurisdiction if the case involves charges of endangering state security or involves terrorist activities, or if the case has a penalty of life imprisonment or death  (see CPL, Article 20).  Here, the charges do not involve state security or terrorism and the penalty is a maximum of five years imprisonment.

However, according to the Supreme People’s Court’s Interpretation on the Implementation of the Amended CPL (“SPC Interpretations”), even when a case does not involve state security, terrorism, a life sentence or the death penalty, the lower court can ask the intermediate court to hear the trial if (1) the case is large or complex, (2) is a novel and difficult case, or (3) is a case that is significant and thus would provide general guidance to other case (see SPC Interpretations, Article 15).

If Article 15 of the SPC Interpretations is the basis of the Intermediate Court’s jurisdiction, then the Intermediate Court must issue a written decision accepting the transfer and submit that decision to the lower court and the prosecutor.  Article 15 does not require that the written decision be provided to defendant or his attorney (see also SPC Interpretations, Article 14: Higher people’s courts deciding to try a first-instance case within the jurisdiction of a lower people’s court, should send down a written decision to change jurisdiction to the court below, and notify the procuratorate at the same level in writing”).

Unfortunately, none of the articles about Xu trial – either in Chinese or English – explain why his case is being heard by the Intermediate Court and not, like the other defendants accused of the same crimes, by the Haidian Basic Court.

But regardless of the reason why the Intermediate Court is hearing Xu’s case, the SPC Interpretations are fairly clear that where a case involves

Xu Zhiyong, awaiting trial in the detention center

multiple defendants and the case is elevated to a higher court for one defendant, then all defendants should be tried by the higher court (see SPC Interpretations, Article 13: “For multiple crimes by a single person, joint crimes or other cases that need to be joined for trial, if one person or crime belongs to the jurisdiction of the higher level court, the higher level court has jurisdiction of the entire case”).

New Citizens activist and rights-defending lawyer Xiao Guozhen speculates that the police and prosecutors sought to separate the trials so that the statements of the other participants can be used against Xu in his trial.  According to Xiao, in a trial with multiple defendants, one co-defendant cannot serve as a witness.  But when the trials are separated, the other defendant’s statements and confessions can be used in the trial against Xu.  But this all supposes that the other accused will speak out against Xu.

Hopefully Wednesday we will know although as Prof. Jerome Cohen points out, the authorities has done all that it can, such as using one of the smallest courtrooms in the courthouse for Xu’s trial to guarantee that the trial is all but closed to the public.  Another violation of the amended CPL.

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By Elizabeth M. Lynch, December 23, 2013

Former WashPo Executive Editor Marcus Brauchli

After publishing an article concerning the Washington Post‘s 2010 decision to pull author Peter Manseau’s 8,000 word magazine piece on Washington D.C.’s  Falun Gong  community, the Post‘s former executive editor, Marcus Brauchli, returned China Law & Policy‘s call. Brauchli, executive editor in 2010, denied insinuations of self-censorship: “The Washington Post did not nor would it ever have killed a piece of journalism because of concerns about getting visas for its reporters.  The Post made its [publication] decision, and as far as I know always makes its decisions, based on journalistic merit” Brauchli said.

But Brauchli, with decades of experience reporting from China, was far from ignorant of the China visa issues.  As of last Thursday, many but not all of the New York Times and Bloomberg China correspondents received press cards from the Ministry of Foreign Affairs, enabling them to apply for their renewed visas with the Public Security Bureau.  But that does not mean the crisis is over.  As Brauchli noted to China Law & Policy, Beijing’s current approach to journalists’ visas appears to be a much more organized effort compared to the past.  Quite a number of individuals share Brauchli’s feelings, with many believing thatafter 2008, the Chinese government has been more inclined to use the journalist visa renewal or visa application process to intimidate and possibly censor foreign journalists.

But are these feelings accurate?  Even if the Times and Bloomberg journalists’ visas are renewed with full year ones – not the month to sixth month temporary journalist visas given to Paul Mooney and Melissa Chan before they were effectively barred from China – Beijing will probably continue its approach. It came fairly close to shutting down the China offices of two major news organizations.  As a result, it is imperative that the changed dynamics – both in U.S. newsrooms and in China – are understood.

Things Fall Apart: The John Pomfret, Ian Johnson & Andrew Higgins Visa Experiences

John Pomfret is perhaps the most famous American journalist to be expelled from China.  As a 30-year-old Beijing correspondent for the

John Pomfret reporting from Tiananmen during the 1989 protests

Associated Press, Pomfret found himself in the middle of the 1989 Tiananmen Square protests, protests that would bring as many as a hundred thousand people to the Square, that would shake the Chinese Communist Party to its core and that would culminate in the massacre of hundreds on the night of June 3 and into the early morning hours of June 4.

Ten days after the crackdown, Pomfret was  expelled from China.  The Chinese government accused him – along with Voice of America correspondent Al Pessin who also was expelled –  of stealing state secrets and violating martial law.

Pomfret’s journalist career would take him to other places and other crises, but eventually it would come back in China.  As Pomfret recounts in his book, Chinese Lessons: Five Classmates and the Story of the New China, in 1997, the Washington Post, his employer at the time, sought to elevate him to Beijing Bureau chief.  But the Chinese government had not forgotten his coverage of Tiananmen eight years earlier; the Chinese Embassy told the Washington Post: “please try another name.”

Pomfret would be approved for a journalist visa but not without great effort on the part of the Washington Post.  Fortunately for Pomfret, Katharine Graham, head of the Washington Post at the time and a powerful force in her own right, got involved.  She invited the Chinese ambassador to tea and made sure that her friend Henry Kissinger mentioned Pomfret’s case to the Vice Premier Qian Qichen.  Additionally, according to a source close to the Washington Post, managing editor Bob Kaiser and Beijing Bureau chief Steve Mufson raised Pomfret’s visa directly with then President Jiang Zemin in an off-the-record conversation during their October 1997 interview.  As he recounts in Chinese Lessons, Pomfret himself decided to write a “self-examination” about his prior attitude in response to a Chinese government official’s request that Pomfret write a letter applying for the Washington Post position.  On Christmas Eve 1997, Pomfret received word that his visa was approved.  Since then, Pomfret has never had a visa problem.

Journalist Ian Johnson

If Tiananmen was Pomfret’s roadblock to China, Falun Gong was Ian Johnson’s.  Between 1997 and 2001, Johnson was one of the Wall Street Journal‘s China correspondents.  Like Pomfret, he was covering China during a major crackdown, this time on a burgeoning spiritual group that was able to amass tens of millions of followers in less than ten years: Falun Gong.

In the beginning, Falun Gong, which uses traditional qigong exercises and draws upon the teachings of Daoism and Buddhism, was ambiguously tolerated by the Chinese government.  But on April 25, 1999, in response to a negative article published in a state-run magazine, an estimated 10,000 Falun Gong followers conducted a day-long silent meditation protest outside the Chinese government headquarters.  As Johnson recounts in his book, Wild Grass: Three Portraits of Change in Modern China, the fact that one group could amass so many people in one place without the State Security knowing, horrified the leadership.  Falun Gong – now perceived as a threat to its rule – would no longer be tolerated.  In July 1999, Beijing banned Falun Gong and began a violent crackdown against members of the group.  As Johnson recounted in his Pulitzer Prize-winning series on the crackdown for the Wall Street Journal and later in Wild Grass, Beijing permitted the crackdown to be enforced by all means necessary, even if that meant that many would die, a fact that Johnson recounted in his reports.

In 2001, Johnson left China to cover Europe for the Wall Street Journal.  But in 2007, the Journal sought to bring him back to China. Again, prior China coverage would prove problematic in obtaining a visa and would require the powerful resources of his news agency. According to an individual who had been involved in the matter, the Chinese government initially told the Journal that Johnson would never get back into China.  But as this source told China Law & Policy, the Journal began its lobbying in earnest with senior editors meeting with the Chinese ambassador to the U.S. and eventually Rupert Murdoch raising the issue directly with the Chinese government in Beijing.  Johnson also had to write a self-criticism.  But by 2008, right around the time Beijing was to host the Olympics, Johnson’s journalist visa was informally approved and was issued in early 2009 according to the source involved in the matter.

But less than a year later, Andrew Higgins’ attempt to obtain a journalist visa would end with a different outcome.  In 2009, the Washington

A group of nationalist Inner Mongolians protest in front of the Chinese Embassy, seeking the release of a Mongolian activist.

Post hired Higgins ostensibly as its Beijing Bureau chief and again the Post would need to lobby to get their chief into China as prior reporting had put Higgins on a blacklist. In 1991, Higgins was a Beijing correspondent to the British Independent newspaper, covering the Chinese government’s secret crackdown against ethnic Mongolian intellectuals in the Chinese province of Inner Mongolia.  According to a Human Rights Watch report, after being found in possession of a top secret Chinese Communist Party (CCP) document that ordered the harsh crackdown(a.k.a. Document 13), Higgins was expelled from China.

This time the Post was not able to overcome Higgins’ past.  According to a source involved in the Higgins negotiations, the Post raised Higgins’ visa issue in every high-level meeting with  Chinese officials, including the Chinese Ambassador; then executive editor Marcus Brauchli and publisher Katharine Weymouth went to Beijing to meet with China’s foreign minister about Higgins visa; and Don Graham, head of the Post at the time reached out to influential Americans, including Henry Kissinger, to assist with getting Higgins a visa.  But the Post‘s efforts failed.  Unable to obtain a residential journalist visa to China, in 2012, Higgins left the Post to cover Europe for the New York Times.

Since the Higgins’ incident, at least two other journalists – Paul Mooney and Melissa Chan – have been effectively denied journalist visa and many others, including Philip Pan and Chris Buckley, both of the New York Times, have been waiting more than a year for their visa request to be approved.

The Center Cannot Hold:  China’s Visa Policy Demonstrates its Continued Insecurity

Was Higgins the harbinger of China’s changed and harsher foreign journalist policy?  Another source familiar with the Higgins’ negotiations did question the strategy of the Post, noting that there were certain missed opportunities, that the Post did not bring in top people, like a Katherine Graham or a Rupert Murdoch, to close the deal, and Higgins’ alleged crime – being found in possession of top secret CCP documents – was inherently harder to overcome than Pomfret or Johnson’s issues.  But the source did tell China Law & Policy that the Higgins’ debacle reflected a China taking a harder line against foreign journalists.

Jim Sciutto, Former Chief of Staff to Amb. Gary Locke

Some, such as Jim Sciutto, former chief of staff to Ambassador Gary Locke, have argued that the Chinese government’s current attempts to censor foreign journalists through the visa process reflect a “more confident Chinese government.” Certainly, in 1997, when the Washington Post was seeking Pomfret’s visa, China was desperate to be in the good graces of the U.S. government as it anxiously awaited WTO entry.  In 2008, when the Wall Street Journal sought to get Johnson back, China was attempting to pull off its first Olympic games with as little criticism as possible.  But Higgins visa application came after these events, when China has made it through the 2008 economic crash and in 2010, surpassed Japan to become the world’s second largest economy.

But the type of reporting the Chinese government is currently trying to suppress does not reflect a Chinese Communist Party secure in its rule; instead, it demonstrates a government cognizant of the fact that its power is more vulnerable now than ever before.

The Chinese government’s current targets are the New York Times and Bloomberg, two news agencies that wrote hard-hitting articles exposing the corruption at the highest levels of the Chinese government and the CCP.   According to one source that China Law & Policy spoke to, these articles represent more of threat to the CCP’s legitimacy than Tiananmen, Falun Gong or any other taboo topic.  Tiananmen, Falun Gong, and Tibet are not issues that are necessarily on the minds of every Chinese person.  But corruption is.  If the media, even the foreign media, is able to prove that the Chinese leaders are corrupt, these allegations go to the very core of the government’s authority.

For the leaders of China, this threat is not theoretical.  In a September 2013 People’s Daily editorial, Li Congjun, the head of the state-run Xinhua News Agency, used particularly harsh language to  lambast the foreign press.  Referring to certain unnamed foreign media outlets as “hostile forces,” Li went on to criticize these outlets for smearing the CCP and China with made up stories which further weakens China’s interests and national standing.

In the introduction to his 2004 book Wild Grass, Johnson described the Chinese government’s message to current threats to its rule as “we are nervous, possibly even weak, but do not meddle; we can still crush you.”  In 2004, that message was for Falun Gong practitioners.  Today the message is still the same, but this time it is for foreign media companies and their reporters.

The Falcon Cannot Hear the Falconer: The Weakened State of US Media Companies

The Chinese government may be weak, but as its threats to the New York Times and Bloomberg demonstrates, it may very well still have the power to crush.  In elaborating on allegations of self-censorship, Brauchli was adamant that such a thing would not happen.  “Our credibility has always rested heavily upon the depth, quality and accuracy of our reports.  Any type of self-censorship could have impaired our success as a journalistic enterprise.”

This is likely true on the journalist side of the enterprise, but as news agencies find it harder and harder to turn a profit, at what point is the business side able to unduly influence editorial decisions.   Two weeks ago, Margaret Sullivan, the New York Times public editor, reported that with its Chinese website blocked, the Times had $3 million in lost revenue (the Times‘ 2012 revenue was $2.32 billion).  Similarly, Bloomberg News’ parent company, Bloomberg L.P., makes 85% of its profit through the sale of its stock-trading Bloomberg terminals.  With only 3,000 terminals throughout China, the market is undersaturated (compared with 10,000 terminals in Hong Kong and 100,000 in the United States).  Finally, even the Washington Post appears to rely on China for revenue.  Since 2010, the China Daily has paid for “China Watch” to the supplement section of the Post‘s website.

As Evan Osonos, former New Yorker China correspondent pointed out at some point business considerations must come into play: “the prospect of taking an expensive stand against a foreign state is unappealing, especially when it might mean giving up their dreams for future growth in China.”

Max Baucus, will be dealing with more than just trade as new Ambassador to China

The Higgins visa incident and subsequent incidents might indicate more than just a scared China; it might also represent news agencies no longer powerful enough to fight on their own for the principle of freedom of the press.  As a result, even if the immediate crisis with the Times and Bloomberg journalists pass, there is still a pressing need for the U.S. government to remain vocal on this issue especially as it seeks to bring a new ambassador to China.

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By Elizabeth M. Lynch, December 10, 2013

In response to the precarious situation of U.S. journalists in China where approximately 24 New York Times and Bloomberg reporters may not have their visas renewed, the Congressional-Executive Commission on China will host a roundtable discussion on the issue, tomorrow, December 11 at 3:30 PM.  The event will be held in Washington, D.C. at the Capitol Visitors Center, Room SVC 203-202 .

Panelists will include Paul Mooney, who was outright denied a journalist visa to work as Reuter’s Beijing correspondent, Edward Wong, current New York Times China correspondent, Bob Dietz, Asia Program Coordinator at the Committee to Protect Journalists and Sarah Cook, Senior Research Analyst for East Asia at Freedom House.

Because of the demand for this roundtable, an RSVP is required.  Please RSVP, no later than 10 AM on December 11 to Judy Wright at judy.wright@mail.house.gov

The roundtable will also be broadcast live on the web at: http://www.cecc.gov/events/roundtables/chinas-treatment-of-foreign-journalists

Since Vice President Biden’s visit to Beijing where he met with U.S. journalists and publicly raised the issue of press censorship, there have not been any reports of any New York Times or Bloomberg correspondents receiving their visas.  To the contrary, in a series of Twitter posts, New York Times China correspondent  Ian Johnson stated that the first reporters will be forced to leave on December 17, presumably the expiration date of their current visa, with all to leave by December 31.

Yesterday, the Foreign Correspondents Club of China (FCCC) released its 2013 Year-End statement, noting yet another year of negative trends.  The FCCC found “…that the Chinese authorities are increasingly using the denial of visas, or delays in their approval, in an apparent effort to influence  journalists‘ coverage. No correspondents for the New York Times and Bloomberg have yet been able to renew their annual residence visas, which have been subject to unusual and unexplained delays this year.”

The FCCC also noted that potential censorship goes beyond China’s borders, giving credence to author Peter Manseau’s belief that in 2010 the Chinese embassy contacted senior editors at the Washington Post to kill his story on Falun Gong in DC.  Although Manseau’s incident was in 2010, the FCCC reported that in 2013, “…[o]n at least two occasions this year Chinese embassy staff in foreign capitals have approached the headquarters of foreign media and complained about their China-based correspondents’ coverage, demanding that their reports be removed from their websites and suggesting that they produce more positive China coverage.”  One wonders how many other occasions there have been.

If you are in DC tomorrow, this should be an interesting and important event.  Again, RSVP is necessary by 10 AM tomorrow to judy.wright@mail.house.gov.

For those interested in learning more about foreign journalists’ visa troubles, please see China Law & Policy‘s three-part series with Part 1 here, Part 2 here, and Part 3 here.

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By Elizabeth M. Lynch, December 9, 2013

Part 3 of a three part series on American journalists’ difficulty in obtaining visas to China.  For Part 1, click here; Part 2, click here. 

Journalist Paul Mooney in San Francisco

When China denied veteran journalist Paul Mooney’s visa request this past November, neither the State Department, Administration officials nor anyone on Capitol Hill said anything publicly about a U.S. citizen appearing to be punished for his speech.

Similarly, when China failed to renew U.S. citizen and Al Jazeera English correspondent Melissa Chan’s visa, forcing her to leave China in May 2012, a State Department deputy spokesperson merely expressed the Department’s “disappointment” very briefly during a regular Q&A session with the press:  “I would just say that we’re disappointed in the Chinese Government – in how the Chinese Government decided not to renew her accreditation.  To our knowledge, she operated and reported in accordance with Chinese law, including regulations that permit foreign journalists to operate freely in China.”  Such has been the extent of the Administration’s public statements, until now.

It is certainly a positive development that Vice President Joe Biden, on his trip to Beijing last week, publicly rebuked the Chinese government for its treatment of U.S. journalists, tying Beijing’s actions to impacting “universal human rights.”  While the comments at last Thursday’s closed-door meeting with U.S. journalists were off-the-record, the fact that the meeting occurred was very much on-the-record, demonstrating that the Administration has finally realized the seriousness of the situation and the need to try a new tactic.

But one wonders if the Administration’s changed strategy – publicly addressing the issue – is too little too late.  According to reports, the Chinese

government is still toying with the visas of approximately 24 New York Times and Bloomberg correspondents; without renewal by December 31, the New York Times and Bloomberg’s China bureaus could potentially shut down, much in the way Al Jazeera English‘s Beijing office had to close, over a year and a half ago, when Melissa Chan’s visa was not renewed before its expiration.

Why the U.S. Government Must Act – Protecting an American Brand

A free and vibrant press has been a central tenet of the United States; it was crucial to the success of the American Revolution, is encapsulated within the First Amendment and rarely if ever abridged.

For Americans, standing up for freedom of the press is important  in and of itself, but becomes even more critical when journalists from one’s own nation are being restricted.  Congress or the Administration insisting that China allow access to foreign journalists is different from demanding access for other industries; it is not some mere effort to protect the domestic media establishment. Rather, speech is a core value of the American people, and condemning censorship is, as Hillary Clinton put it, part of our “national brand.”

This national brand goes beyond the U.S.’ own borders.  As recounted by Chinese journalist Liu Jianfeng in a special report by the Committee to Protect Journalists, it is often the foreign press’ coverage of domestic events that provides the green light necessary for the Chinese media to cover more sensitive issues.  Liu specifically points to the 2011 Wukan protests, where over a thousand villagers demonstrated for months because of the local government’s land seizures, to make his point.  It was only because the foreign press started covering the event that the Chinese media was permitted to do so.  Similarly, Melissa Chan filmed her report on China’s black jails in April 2009; in November 2009, a Chinese magazine ran a similar expose.  In February 2013, signaling official opprobrium, a Beijing court sentenced 10 men to prison for illegally operating a black jail.  Thus, the U.S.’ promotion of freedom of its press in China benefits the Chinese people, bringing some accountability and transparency to their one-Party state.

Not Just a Moral Principle But Also Good for Business

China’s attempted censorship of the foreign press – through its abuse of the visa process – certainly infringes upon free speech.  But there is a more mercantile reason to guarantee that U.S. media companies are not censored: information and disclosure are key to efficient markets.  Accurate information protects investors and businesses as it creates transparency in the market, placing all sides of a transaction on equal footing.  This is especially true where an economy, like China’s, is particularly opaque.

One of the apparent red lines for foreign reporters is the finances of China’s leadership: the New York Times‘ David Barboza wrote an October 2012 series concerning former Premier Wen Jiabao’s protection of his family’s investment in Ping An Insurance and Bloomberg published its June 2012 “Revolution to Riches,” an expose on the children of China’s revolutionaries and the power and wealth they have been able to accumulate.  Both have also become Beijing’s main targets.

What Beijing currently seeks to censor – articles about the overlap of its economy, major businesses and the power elite – are the exact articles

Cheers! Former Premier Wen Jiabao

necessary to inform potential market investors.  Unfortunately as the New York Times and Bloomberg reporters appear on the cusp of a compelled departure, there are few news agencies that can – or will even want to – fill their role of hard-hitting financial reporting on China, a time-intensive endeavor.

But even articles about legal development, political unrest, growing wealth inequalities, environmental degradation and crackdowns on dissent, issues that Mooney and Chan fervently covered, are also important.  Businesses who invest in China hire companies – like the Eurasia Group – to inform them about these developments.  It is vital to their investments to know if the village, town or county where their company or factory is located is a political powder keg.

But by continuing to harass, intimidate and effectively expel journalists who cross certain red lines, Beijing is sending a message to the remaining reporters.  “The decision to deny Paul Mooney a visa has brought home to our membership the lengths the Chinese authorities will go to persuade foreign reporters not to report on things they don’t like” Peter Ford, president of the Foreign Correspondents Club of China (“FCCC”) told China Law & Policy in a phone interview.  Foreign reporters who are left in China may not want to continue to take on these hard-hitting stories that could effectively terminate their livelihoods.  Their editors may not let them.  As a result, banks, investors and even the U.S. government will lose one of its most important resources for accurate and frank reporting on a country vital to America’s position in the world.

‘It’s Only Words’…Or is it Visa Retaliation?

Right now, approximately 24 foreign correspondents for the New York Times and Bloomberg are waiting for their visa to be renewed.  According to reports, many have not received their press cards, the annual cards issued every November by the Ministry of Foreign Affairs (“MOFA”) and necessary to apply for a visa renewal with the Public Security Bureau’s (PSB) Exit- Entry Administration.  Under China’s new Exit-Entry Administration Law, resident foreigners, such as foreign journalists, are required to apply for a visa renewal at least 30 days prior to the current visa’s expiration (see Article 32).  In China, all journalists’ visas have a December expiration which could be any day in the month, with the 31st as the last.  Since it is already December 8, those journalists who have not received their press cards, are currently in violation of Chinese law.  However, as Gary Chodorow, a Beijing-based immigration lawyer, points out, the law is silent as to any repercussions to applying late.  But that is of little comfort to those reporters unsure if they will have to leave China on or before New Year’s Eve.

“Things are never going to get better if we don’t do something reciprocal” Mooney complained to China Law & Policy last week in a phone interview and prior to Biden’s Beijing visit.  “Some sort of stronger tactic would be helpful”  Mooney said.

But is Biden’s public censure last week and meetings with journalists sufficient to stop a Chinese government that appears intent on essentially shutting down two major U.S. media outlets in China?  Even in light of Biden’s actions, the Chinese government appears to have dug in its heels with a MOFA spokesperson stating on Thursday that “[a]s for foreign correspondents’ living and working environments in China, I think as long as you hold an objective and impartial attitude, you will arrive at the right conclusion.”  “Objective” was the same key word used in Mooney’s visa interview before his visa application was denied.

This type of stubborn behavior is precisely why some have begun to consider reciprocal visa treatment as a way to deal with China’s attempted censorship of the foreign press.

The U.S.’ Immigration and Nationality Act (“INA”) provides journalist visas “upon the basis of reciprocity” (see INA Sec. 101(a)(15)(I)).  Reciprocity is a foundational principle of the international order, guaranteeing that the treatment of one country to another will be returned in kind.  Reciprocity – and the fear of negative reciprocity – is what induces international actors to act reasonably.

While visa reciprocity is usually in regards to fees and other procedural aspects, reciprocal treatment can be used to deny entry to a foreign national.  The INA also permits the State Department and its consular agents to deny a visa where entry of the individual would have “serious adverse foreign policy consequences for the United States….”  What is a “serious adverse foreign policy consequence” is left in the discretion of the State Department and its employees.  In fact, the decision to deny a visa falls under the “Doctrine of Consular Non-reviewability” and is rarely subject to judicial review (exception: Kleindienst v. Mandel, 408 U.S. 753 (1972)).

With the U.S. issuing 989 journalist visas to Chinese mainland reporters in 2012, many of which are issued to Chinese state-run media outlets,

Chinese state-run Xinhua News in the heart of NYC

some have looked to deny one or two key visas as a form of reciprocity.  At the very least, some have suggested slowing down the visa approval process much in the same way the Chinese government does to U.S. journalists in China.

While legal, it raises the question of is this who we want to be?  The reason why the U.S. government should more publicly reprimand Beijing for its treatment of foreign journalists is because of the U.S.’ commitment to freedom of the press.  For the U.S. to refuse a visa to a Chinese journalist would undermine that commitment.  While many of the Chinese reporters do work for the state-controlled media, they are still journalists and should be protected by freedom of the press.  These also are not the individuals responsible for the Chinese government’s actions.

The U.S. government, in calling on China to stop censoring its reporters through the visa process, has the moral high ground.  Because of the principle of freedom of the press, the U.S. government is seeking to guarantee that its media outlets – outlets that often run critical stories on these same politicians – are able to report freely from China.  Even if not reported in the Chinese press, this type behavior still resonates with the Chinese journalists both in the U.S. and in China.

Robert Mugabe, No Visa for You!

If the U.S. government were to resort to visa reciprocity, it should not look to restrict or delay Chinese journalist visas.  Instead, visa denials or delays of employees of MOFA or the PSB, the entities that are responsible for U.S. journalists current mistreatment in China, is likely more appropriate.  Visa denial of responsible government officials would not be a first.  The U.S. currently has a visa ban on approximately 128 Zimbabwe government officials and their families.  These high officials have been deemed to be partially responsible – along with President Robert Mugabe – in undermining Zimbabwe’s nascent democratic practices.  As a result, the U.S. has targeted them with visa denials

‘But Words Are All Have’…Other Options Open to the U.S.

There are still less extreme courses of action that the U.S. government can take.  Biden’s public statement in Beijing and meeting with U.S. journalists were a start.  Public admonishment of China’s behavior must continue and be regular.  In speaking with China Law & Policy, Ford, president of the FCCC, an organization which does not support using visa retaliation, stated that “the FCCC does not think it would be inappropriate for foreign diplomats to take every opportunity to remind their Chinese counterparts that Chinese journalists face none of the obstacles that foreign reporters in China are faced with. ”

In the U.S., this reminder must come from both Congress and the Administration.  Although Mooney has reached out to members of Congress, including his representative, Nancy Pelosi, Capitol Hill and the White House have remained largely silent other than Biden’s recent remarks in Beijing.  China Law & Policy‘s calls and emails to Representative Pelosi’s office went unanswered.

Fortunately, to keep this issue front and center, the Congressional-Executive Commission on China (“CECC”) will host a roundtable discussion

Rep. Nancy Pelosi, shaking hands with former Premier Wen Jiabao

this Wednesday featuring Mooney, Bob Dietz, Asia Program Director at the Committee to Protect Journalists, and Sarah Cook, Senior Research Analyst for East Asia with Freedom House.  How well attended that roundtable is will signal to Beijing just how far it can go in its abuse of the journalist visa process.  Biden’s gestures in Beijing were an important start but will senior Administration or State Department officials attend the roundtable?  Will it be more than just Congressional interns in attendance?  China knows how to read Capitol Hill tea leaves as well.

There is a chance that the New York Times and Bloomberg reporters will have their visas renewed and the China bureaus will not be shut down.  But while the immediate crisis might be avoided, as this series has demonstrated, Beijing will likely continue to find ways to censor foreign reporters through the visa renewal process or through direct pressure on the editors of key newspapers.  The fact that this has risen to crisis level means that the U.S. government did not act boldly soon enough to protect one of its core values, freedom of the press.

This is the third and final post in this series.  To re-read Part 1, click here; Part 2, click here.

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By Elizabeth M. Lynch, December 4, 2013

Part 2 of a three part series on American journalists’ difficulty in obtaining visas to China.  For Part 1, click here.

While the New York Times might still be on a path to publish at all costs, other news organizations might not be so immune to the Chinese government’s attempts to muzzle more critical voices.

Last month, Hong Kong-based Bloomberg New reporters leaked to the press allegations of self-censorship at the organization.  According to the staff’s accounts, editor-in-chief Matthew Winkler killed an explosive investigative piece that revealed the financial ties between one of China’s wealthiest men and the top leadership of the Chinese Communist Party, one of the “redlines” that often leads to visa troubles.  These Bloomberg reporters told the New York Times that Winkler’s concern was that if they published the story, his journalists might be kicked out of China altogether, leaving the organization unable to cover anything.  Bloomberg has denied the allegations and has stated that the story is still active.  It has yet to be published.

But if these allegations are true, Bloomberg would not be the first major U.S. news organization to participate in eyebrow-raising and possibly self-censoring behavior.  The Washington Post had a similar curious event, where the long arms of the Chinese censors potentially reached the Post‘s headquarters in Washington.

An Example of Self-Censorship in the U.S. Capitol?

In late 2009, Peter Manseau was studying for his doctorate in religion at Georgetown University.  Manseau was far from a China hand but through his religious studies became intrigued by Eastern religions, in particular the use of qigong in traditional Chinese religions.  Coincidentally, 2009 also marked the ten year anniversary of the Chinese government’s public crackdown on the spiritual movement of Falun Gong, a movement the Chinese government has long considered a cult and a threat to its rule; it does not like to even be reminded of the group’s existence.  But with the anniversary, Washington D.C. was awash in Falun Gong protests and demonstrations.

Seeing these demonstrations, which usually included qigong movements, Manseau pitched an article idea to the Washington Post for a piece

Author Peter Manseau

focusing not so much on Falun Gong in China but more on what it is in the United States, in particular the groups that amass on the streets of D.C.  The Post liked the idea and Manseau began writing.  Because the piece was about individuals who lived in the District, it was to be a featured piece in the Washington Post‘s Sunday magazine.  Manseau was under the impression that the story, scheduled to run at 4500 words, might even be a cover piece.   “They were entirely supportive,” he told China Law & Policy in a phone interview.

Although the article was to be D.C.-focused, there was no way to avoid the underlying political currents since his interviewees – two North American-born practitioners and one an exile from China – kept raising the issue of the Chinese government’s suppression of Falun Gong.  “I reported the story out and realized that the story couldn’t run without contacting some Chinese official to comment” Manseau said in his phone interview.

On April 30, 2010, Manseau called the Chinese Embassy and spoke with its press person, Wang Baodong.  “He told me that he didn’t want the story to run. It wasn’t threatening in any way, but he did say something along the lines of ‘We would strongly encourage you not to write such a story.’ He then mentioned a top editor at the Post, and asked if the Sunday magazine was in this editor’s portfolio.” Manseau added Wang’s comments to his article and then on May 3, 2010, filed a final draft with the magazine.  Manseau believed that the story would run at the end of that month.

But it didn’t.  Instead, on May 7, 2010, Manseau learned that there was trouble with his article and on May 10, 2010, the Washington Post, once supportive of the piece, killed it.  The article never ran in the Post (an updated version was later republished by Salon as “Falun Gong’s March”).  For Manseau what was interesting was that he wasn’t paid a “kill fee,” a percentage of the full fee, usually 10 to 30%, that is contractually obligated to be paid if the article is cancelled.  Instead, as he told China Law & Policy, he was paid in full.

Was there Chinese government pressure at play here?  Manseau believes so.  He told China Law & Policy that at the time he learned that Wang Baodong, the Chinese Embassy spokesperson, raised the issue of his Falun Gong piece directly with high-ups at the Post.

China Law & Policy‘s calls to the Washington Post to verify or deny these allegations were not returned.

What is curious about Manseau’s story is that its time frame, especially when the article was killed, coincides with the Washington Post‘s struggle to obtain its China correspondent, Andrew Higgins, a journalist visa.  Hired in 2009, Higgins was in Hong Kong, anxiously awaiting to start reporting from China.  But because of his prior work and expulsion from China in 1991, the Chinese government was not moving quickly on his application (although it did give him a temporary visa to cover President Obama’s China trip in November 2009).

Henry Kissinger

In fact, in March 2010, just a little less than two months before Manseau called the Chinese Embassy, the Washington Post enlisted the help of Henry Kissinger in its efforts to get Higgins a residential journalist visa.  In fact, the foreign editor at the time, Douglas Jehl, told the Washington City Paper that the Post was talking to the Chinese Embassy about Higgins visa and found that “[t]he embassy has been very responsive to our requests.”

In 2010, when Manseau was in the midst of writing his piece, Jehl was having conversations with the Chinese Embassy about Higgins’ visa.  Did the Embassy – as a quid pro quo – put pressure on the Post to pull the Falun Gong piece after Manseau showed his hand to Wang?  If it did put pressure on the Post, can the Post be blamed for pulling the article in the hopes that its reporter, desperate to enter China, would be allowed in?  More importantly, how many other editors at different news organizations have had to make similar pacts?

‘Pleased To Meet You, Hope You Guessed My Name:’ The World Media Summit

One such pact that seems to be becoming a regular affair is the “World Media Summit,” an event that the China Media Project aptly described as “the media event all major global media players attend but none bother to actually cover.”

Created in 2008, the year China was to hold its first Olympics, the World Media Summit is the brainchild of Li Congjun, president of the

Protesting the Beijing Olympics

state-run Xinhua News Agency and formerly deputy chief of China’s Central Propaganda Department.  With many using the Beijing Games as an opportunity to criticize China’s human rights record, 2008 was the year that the Chinese government was made painfully aware of its image problem in the Western press.

Enter Li Congjun.  According to the Summit’s English website, Li held conversations with many of the top movers and shakers of the Western media who were in town for the Games: Rupert Murdoch of News Corporation, Tom Curley, President of the Associated Press, David Schlesinger, Editor-in-Chief of Reuters and Mark Thompson, Director of BBC.  These conversations allegedly resulted in everyone agreeing to “enhance cooperation in a win-win context” and the creation of the World Media Summit.

Since those first formative talks, there have been two World Media Summits, with the list of significant media outlets in attendance increasing.  This past October, the World Media Summit’s presiding members, which according to Chinese news reports include executives from News Corporation, the Associated Press, Reuters, ITAR-TASS News Agency, Kyodo News, BBC, Turner Broadcasting, Google, Al Jazeera, the New York Times Company, NBC News, MIH Group, and Kasturi & Sons Limited, held a meeting in Hangzhou, China to discuss the next summit and the possibility of creating an international prize for journalism.

China’s World Media Summit

It not out of the ordinary for the Chinese government to create an alternative reality, a sort of cocoon world.  Largely its internet is sealed off from the rest of the world – while everyone else is on Twitter, the Chinese are on Weibo – and in response to some of the Nobel Peace Prize committee’s choices, in particular the selection of human rights activist and current prisoner Liu Xiaobo, the Chinese government created the Confucius Peace Prize.  Vladimir Putin was the 2011 winner.

Thus, the idea of creating an international journalism prize without acknowledging the existence of already established journalist prizes is not necessarily bizarre for China.  But it is a bit curious that media outlets like the New York Times and the Associated Press, would be on board with such a prize.  And who would determine the criteria?  Unfortunately  the World Media Summit is not a transparent event, at least not in the Western press.  Agendas, agreements or any other outcomes are not made public.

But what was made public – at least by Xinhua News – is that the New York Times will host the 2014 World Media Summit followed by Al Jazeera in 2016.  Not surprisingly, other than Bloomberg, these two media companies have faced some of the harshest journalist visa treatment.  As recounted in Part 1, two New York Times reporters have been waiting for over a year for their journalist visas.  Al Jazeera’s situation is even worse.  In 2012, it had to completely shut down its China operations when the Chinese government conveniently failed to renew its sole reporter, Melissa Chan’s, journalist visa before it expired.  Chan, who had been covering sensitive subjects like China’s use of “black jails” to quash dissent, fled China in May 2012.

Is hosting the World Media Summit the quid pro quo for positive visa treatment?  Will the New York Times and Al Jazeera reporters now be

Melissa Chan, no longer reporting from China

able to get into China?  If Manseau’s tale is correct, the answer is no.  His Falun Gong piece was killed but Andrew Higgins never got his journalist visa.  Similarly, Bloomberg’s recent actions – if true – have not put its journalists in a better position.  At Tuesday’s no-questions press conference between  U.K. Prime Minister David Cameron and Premier Li Keqiang in Beijing, Bloomberg reporter and U.K. citizen Robert Hutton was blocked from attending.  The Chinese government has denied that this was intentional.

Why does this keep happening?  Why does each media company think that it will be the exception?  It is the lack of unity among the major media outlets in dealing with the Chinese government about their journalists’ visas that is a weakness.  Each thinks it can make its own compromise with Beijing.  And that is their second fallacy: seeking compromise.  Compromise is not usually what authoritarian regimes do.  Control and domination – like the Chinese government’s relationship with its domestic media – is the usual end game.  Even with a united front, this is likely not a battle that the Western media can win on its own.

For Part 3, which examines the U.S. government’s present response and what it can do to change this situation, is posted here.

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By Elizabeth M. Lynch, December 3, 2013

Part 1 of a three part series on American journalists’ difficulty in obtaining visas to China

In less than two years, China has effectively banned four journalists – either American citizens or those working for American media companies – from entering and reporting on the country.  Their crime?  None that the Chinese government cares to explain.  But most outside of China believe that it was these reporters’ – or their colleagues’ – critical coverage of China that proved to be their sin.

As China rises, its government has come to realize that it has a bit of a problem: its image.  While the Chinese government can effectively censor its domestic media from reporting on human rights violations, political unrest, corruption, or anything it deems sensitive, its control of the foreign media has long proven less successful.  Until more recently.  For the past few years, Beijing has increasingly used the journalist visa process to try to influence foreign reportage and to signal to foreign media outlets that they better tone down critical coverage.  Unfortunately, it appears that some U.S. news organizations are getting the message and towing the line.

To date, the U.S. government has remained silent about China’s assault on foreign journalists, even as U.S. citizens and news outlets are increasingly targeted.   Last month, when China denied Reuters‘ visa request for veteran China journalist Paul Mooney, the Administration again failed to issue any public statement.

The U.S. government’s silence is not without its costs.  As the world’s second largest economy and an increasingly bellicose nation, accurate reporting on the country is imperative to the United States.  If Beijing is permitted to continue to trifle with foreign journalists’ visas, frank reporting on China will become a relic of the past.  But it is the U.S. government that can prevent this outcome if it chooses to act and not wait for the situation to get worse.  Which it will if the past year is any guide.

Paul Mooney’s Experience Epitomizes Foreign Journalists’ Visa Anguish

Soft-spoken  and unassuming, Paul Mooney is not what you would expect from a former soldier who saw some of the worst fighting of the

Paul Mooney, now in San Francisco

Vietnam War.  But those familiar with his hard-hitting news reports on China, have little difficulty understanding why he’s been called the bane of Beijing.

Mooney, a freelance journalist in China for the past 18 years, moved back to the United States when his contract with Hong Kong’s South China Morning Post expired.  With his in-depth knowledge of China, understanding of its people and politics, and fluency in Mandarin, Reuters quickly picked up Mooney as one of their China correspondents.  Mooney is the type of reporter you want on the ground in China if you want accurate and interesting reporting.  Reuters submitted Mooney’s journalist visa application in March 2013.

In a phone interview with China Law & Policy, Mooney said he figured the Chinese government would make him jump through some hoops to get the visa since some of his articles in the past few years covered more sensitive topics.  In fact, during his last two visa renewal cycles in Beijing – in 2010 and 2011 – the Public Security Bureau (“PSB” – the organization that renews the actual visa) had him meet with officers in an interrogation room in the back of the visa application hall.  In 2010 – in what Mooney interpreted as a power play – the PSB demanded that his wife attend the visa renewal interview with him.

If the 2010 and 2011 renewal processes were difficult, applying for a new journalist visa from abroad just added to Mooney’s struggle.  In April 2013, Mooney was summoned to the Chinese consulate in San Francisco for an interview.  But again what should have been a routine affair proved to be a 90 minute interrogation.  Familiar with his articles and prior visa interviews, the consular officer grilled Mooney on some of his more critical articles such as the suppression of Chinese rights activists and the Chinese government’s treatment of blind dissident Chen Guangcheng.  According to Mooney, the official ended the interview telling him that if China let him back in he hoped that his reporting would prove more “objective.”  “It is outrageous and unacceptable that they can call you in and tell you how to report” Mooney told China Law & Policy.  “Imagine a U.S. official calling in a German reporter and telling him what to write about?”

According to Mooney, another Reuters China correspondent who applied for a new visa around the same time Mooney did and whose focus was solely economic, received her journalist visa approval in May.  But for Mooney, the wait continued for another seven months. Then on November 8, 2013, Reuters informed Mooney that China had denied his visa application.  According to Mooney, the Ministry of Foreign Affairs (“MOFA”) did not explain its decision providing only a cryptic written statement to other journalists covering his visa denial that its determination was made in accordance with Chinese law and regulations.  “If they want to reject you, they should give a reason” Mooney said.  “This is not the behavior of a country that wants to be a superpower or a respected power.  It’s childish.”

Mooney believes the Chinese government’s real reason to deny him a visa was to censor his China reporting and potentially chill other foreign correspondents’ China coverage.  Calls to the Chinese Embassy in Washington went unanswered.

Harassment of Resident Foreign Journalists in the Visa Renewal Process

What Mooney labels “childish” behavior – the use of the visa process to ostensibly chill the foreign press – appears to have become a strategy that the Chinese government is more quick to employ.  Which it can do on an annual basis.  For resident journalists in China, the journalist visa (“J-1 visa”) is only good for a year, expiring every December.  Beginning in November, every resident foreign journalist begins the renewal process, first re-applying with MOFA for a press card and then, once obtaining the press card, renewing her J-1 visa with the PSB.  But what should be a routine event has turned into an anxiety-ridden affair.

In the past three years, the Foreign Correspondents Club of China (“FCCC”) has documented an increasing number of incidents where the Chinese government threatens not to renew a visa or unnecessarily delays the visa renewal process.

In its November 2012 survey,[1] the FCCC found that since the end of 2011, at least 29 resident foreign correspondents were threatened with a visa non-renewal.  The respondents’ quotes (119 FCCC members responded to the survey) show that some of these threats were linked to specific reporting or journalists’ “attitude.”

Currently, all of China’s resident foreign correspondents are undergoing the visa renewal process.  In a phone interview with China Law & Policy, Peter Ford, president of the FCCC, said that it was just too early to draw any conclusions from the 2013 process as it is ongoing but he did note that “reporters for media which have displeased the authorities appear to be facing unexpected delays.”

Who displeases the authorities is anyone’s guess although some topics are touchier than others on the Chinese government’s revolving list of sensitive subjects.  But as Ford told China Law & Policy, “it would seem that the red line the government has drawn in the last 18 months concerns finances of senior government officials.”  In line with that assessment is the fact that for the two foreign media outlets that covered that issue – Bloomberg and the New York Times – both have had their websites blocked in China since publishing their reports.  In January 2013, the New York Times reported that Chinese hackers – hackers possibly related to the Chinese military – had attacked its website for many months. Those attacks began on the eve of the Times‘ publication of the first of David Barboza’s Pultizer Prize-winning series on Premier Wen Jiabao’s role in preventing the legally-mandated break-up of one of his family’s lucrative holdings – Ping An Insurance.

Additionally, according to Ford, China’s changed visa regulations, which applies to all foreigners residing in China, makes renewal of the J-1 visa procedurally more difficult.  With the new regulations that went into effect in July 2013, the PSB (which is the entity that issues the visa; MOFA issues the press card which is necessary to obtain to apply for the visa) is now permitted to take 15 business days – basically three weeks – to issue the renewal. During that time period, the PSB holds on to the reporter’s passport, making international travel impossible.  Prior to those changes, the PSB only had 5 business days for the renewal process.  How these procedural changes will affect the J-1 visa renewal process is yet to be seen, but at the very least, it makes an already trying process more difficult.

Foreign Media Outlets Can’t Get Their Reporters In

For foreign journalists living in China, the visa renewal process is certainly distressing.  But for those journalists trying to get into China, the visa process can become a wall.  Included in the FCCC’s November 2012 report, 20 foreign reporters stated that they had to wait four months or more for their J-1 visas to be processed.  According to Ford, the FCCC considers waiting more than three months for a J-1 excessive.  For a temporary correspondent who receives a J-2 Visa, the FCCC believes it should only be a 30 day wait.

Presently, two individuals waiting an excessive period of time for a journalist visa are New York Times’ reporters Philip Pan and Chris Buckley.  Pan, who is ostensibly the New York Times‘ Beijing Bureau chief, has been in a Chinese government-imposed visa-limbo since March 2012.  His colleague Buckley, reporting on China from Hong Kong, has been waiting for his J-1 visa since at least December 2012.

But the New York Times is not alone.  Andrew Higgins, the Washington Post‘s China correspondent waited in Hong Kong for over three years for his J-1 visa.  His crime?  Likely his 1991 expulsion from China for possession of confidential documents concerning the alleged suppression of a Mongolian nationalist movement.  Unable to obtain his J-1 visa, in September 2012, Higgins announced his resignation from the Washington Post.  He now reports for the New York Times from Brussels.

If Higgins’ experience and Mooney’s outright visa denial are any guide, the future does not look bright for Pan and Buckley.  Especially in light of the fact that the New York Times has more recently published another likely sensitive series –  J.P. Morgan Chase’s hiring of the Chinese leadership’s children, including the daughter of former Premier Wen Jiabao.  Luckily the New York Times hasn’t gotten the hint that its coverage isn’t particularly popular with the Chinese regime.

For Part 2, which examines various U.S. media outlet’s possible self-censorship, please click here.