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By Elizabeth M. Lynch, October 18, 2015

When the Chinese government detained, harassed and disappeared over 280 human rights lawyers and legal activists in July 2015, the international community took notice. These simultaneous, country-wide, nighttime and early morning raids made front page news in the United States, often described as the Chinese government’s attempts to eradicate cause lawyering from its shores.

But as the Leitner Center and the Committee To Support Chinese Lawyers‘ new and seminal report Plight and Prospects: The Landscape for Cause Lawyers in China reveals, in some ways, these arrests and detentions are the least of the human rights lawyers’ worries. Instead, Plight and Prospects makes clear that over the past five years, the Chinese government has quietly and methodically used a more effective means to limit the space for cause lawyers: the law.

Although the Chinese government still relies on extra-judicial measures such a illegal detentions, torture, constant surveillance when “free,” and pressures on families, employers and even landlords in an attempt to destroy the lawyer’s life, Plight and Prospects underscores that soon these extra-judicial methods will be unnecessary. Through amendments to the Lawyers Law (amended 2007), the Criminal Law (amended 2015), the Criminal Procedure Law (amended 2012), the National Security Law (passed 2015) and through the annual lawyer licensing procedure, the Chinese government can limit the ability of cause lawyers to practice and still pay lip service to “the rule of law.”

Chinese President Xi Jinping

As Plight and Prospects points out, under President Xi Jinping (pronounced See Gin-ping) there has been a stepped-up effort to enshrine in law methods that will effectively break the cause lawyering movement. But even before Xi took power in 2012, there were already concrete efforts in the Chinese government to use the law to limit human rights lawyers’ advocacy.

Take for example, the Lawyers Law. Amended in 2007 and believed to provide the profession with greater protection to practice law, it has proven to be a double-edged sword. Sure Articles 36 and 37 of the Lawyers Law maintain that the lawyers “rights to debate or a defense shall be protected in accordance with the law,” but Article 49, which lists the examples of lawyers’ conduct subject to punishment, increased the number of categories from four to nine with the 2007 amendments. Added to the Lawyers Law as Article 49(6) was instances where a lawyers “disrupts the order of a court . . . or interferes with the normal conduct of litigation or arbitration.” Vague and unclear, this provision could be used to limit the courtroom advocacy of lawyers who take cases the government just does not like.

Lawyers Liu Wei and Tang Jitian review papers in April 2010

And in 2010, it was. In April 2010, Tang Jitian (pronounced Tang Gee-tee’an) and Liu Wei (pronounced Leo Way), two cause lawyers who had represented a practitioner of the spiritual movement Falun Gong and who both quietly left the courtroom in protest when they were unable to present their client’s defense, were hauled before the Beijing Bureau of Justice for a hearing concerning whether they should be disbarred (see China’s Rule of Law Mirage: The Regression of the Legal Profession Since the Adoption of the 2007 Lawyers Law). While Tang and Liu both raised Article 37 – that their ability to practice law was being infringed upon – as a defense, both were permanently disbarred under Article 49(6) for “disrupting the courtroom.” (Id.).

Further attempts to limit the advocacy of human rights attorneys have been proposed more recently by the All China’s Lawyers Association (ACLA), the national bar association that operates under the guidance of the Ministry of Justice.  ACLA’s draft revisions to the Lawyers Code of Conduct (proposed in 2014), if adopted, could limit methods of advocacy that lawyers must use when representing vulnerable populations, including the use of the media and internet (draft Article 9), organizing demonstrations or “inflaming” public opinion (draft Article 11), or supporting organizations that do cause lawyering (draft Article 13).  These draft provisions are in contravention of Article 35 of the Chinese Constitution which provides for freedom of speech, of the press, of assembly, of association, of procession and of demonstration.

When your home becomes your prison: residential surveillance

The Criminal Procedure Law (CPL) provides another example. Amended in 2012, it was hoped that the amendments would better protect suspects’ rights and ensure a more fair system. But, as Yaqiu Wang at China Change has pointed out, it left one gaping loophole: “residential surveillance at a designated place.” Articles 72 through 77 of the CPL deal with residential surveillance. Although this sounds like a more mellow way to be detained than at a detention center, for those investigations that might involve crimes of “endangering state security,” “terrorism” or “serious crimes of bribery,” residential surveillance does not occur at one’s home. (CPL, Art. 73) Instead, it occurs at an undisclosed location – the family is informed of the fact that the person is being detained under residential surveillance (required by CPL, Art. 73), but not necessarily of the location of the residential surveillance. The suspect has a right to retain a lawyer (see CPL, Art. 73, applying CPL, Art. 33).  But because “residential surveillance in a designated place” presupposes a possible state security, terrorist, or serious bribery charge, the requirement that a meeting with the lawyer take place within 48 hours (CPL, Art. 37) is suspended for those possible charges.  (CPL, Art. 37).  Instead, any meeting must be approved by the police. (CPL, Art. 37).   Which fits with the rules that the suspect must follow when in residential surveillance: only with permission of the public security agency can the suspect meet or correspond with someone else. (CPL, Art.75(2)). And it is not hard to place someone under residential surveillance at a designated place. All that the police need is approval from the chief of public security above the county level. (see Ministry of Public Security Implementing Regulations of the CPL, Art. 106). Residential surveillance pending investigation is permitted for up to six months. (CPL, Art. 77).

Whereabouts Unknown: Lawyer Wang Yu

As Plight and Prospects points out, the use of residential surveillance at a designated place has been used with abandon in the current crackdown. The section entitled “Whereabouts Unknown” highlights that eight of the suspects still being held as a result of the July crackdown are held under residential surveillance at a designated place but no one outside of the police, not even their lawyers, know where. Amnesty International researcher William Nee has pointed out that although a legally-authorized form of detention under the amended CPL, it still carries with it the dangers associated with enforced disappearances: held secretly and without access to a lawyer, these suspects in residential surveillance are vulnerable to torture to force a confession.

By being able to point to the law it is using to crackdown on cause lawyers, the Chinese government likely aspires to punt the international critique of a failure to follow a rule of law. It is following a rule of law, it will say. But as Plight and Prospects notes, it is a hollow one where the Chinese government undermines its own Constitution, other provisions of many of the laws it has used in the crackdown, its international treaty obligations as well as the desires of its own people.

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By Elizabeth M. Lynch, June 2, 2014

The Goddess of Democracy – the symbol of the Tiananmen Square Protests

Twenty-five years ago, 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 seven weeks of student-led, peaceful protests in the Square itself, protests that were supported by much of the rest of Beijing, protests that would amass hundreds of thousands of people a day, protests that people wistfully thought would change China.

Twenty-five years later the students who participated in the protests are no longer fresh-faced, wide-eyed college kids, the workers who supported them are retired, and many of the bicycle rickshaw drivers who ferried dying students to hospitals on that bloody Sunday morning are long gone.  Along Chang’An Avenue, glitzy buildings have replaced the blood and bullet holes.  Starbucks stand near where students once went on hunger strikes. Tiananmen is different; China is different.  But yet there are some things that remain the same.

The government that ordered the crackdown 25 years ago – the Chinese Communist Party (“CCP”) – is still in power and many of the gripes that initiated the student protests – corruption and nepotism among political elites, lack of personal freedoms, and government censorship – have only gotten worse and continue to be the impetuous for activists.  And, like the students in 1989, these activists are still willing to risk their lives to promote the values enshrined in the Chinese Constitution and guide China to become a better place for its people.

But make no mistake, while these factors might be the same, there are important aspects of China that have changed.  In

Hundreds of thousands of Beijing residents – students, workers, ordinary people – supported the protests.

particular, China’s rise as a global power.  Criticizing China for human rights violations and its failure to live up to its own laws is not as easy as it was in 1989 when President George H.W. Bush cut off government ties, military relations, and the sale of U.S. government goods the day after the Chinese government’s crackdown.  Imagine denying U.S. businesses the opportunity to sell products to the world’s second largest economy?  That would never happen today.  And to severe relations with China – would the American public want to so easily give up its cheap Walmart goods or be denied the ability to obtain the newest iPhone?  Probably not.  The Chinese government understands the soothing and influential comforts of our material desires.

But perhaps the most troublesome change is how the CCP now deals with dissent.  If the last few months are any guide, excessive violence continues to be the modus operandi of the CCP.  Cao Shunli (pronounced Ts-ow Shoon-lee), an activist who organized small, peaceful protests that called for citizen participation in China’s United Nations human rights review, was detained for “picking quarrels and causing trouble,” was denied medical treatment for months, and died in police custody.  Tang Jitian (pronounced Tang Jee tee-an), a disbarred-lawyer-now-activist that sought to assist Falun Gong practitioners, has recounted the physical torture he suffered while in police custody in March.  Since coming out of detention with 16 broken ribs, Tang has all but effectively been denied appropriate medical care for his tuberculosis which has gotten significantly worse.

Deaths of many protesters lined the streets surrounding the Square

But the CCP has learned from its mistakes.  No longer is its violence against dissent as public as it was the morning of June 4, 1989.  And no longer does the CCP come off as a lawless regime.  Instead, its cloaks its crackdowns with a veneer of legality.  Since April 2014, in preparation for the 25th anniversary of the Tiananmen massacre, the Chinese government has detained – either criminally or through unofficial house arrest – over 84 individuals.  But these individuals are not detained under the guise of being counter revolutionaries like the students of the 1989 movement.  That would be too obvious.  Instead, the Chinese government has slapped the vague and overly broad crime of  “picking quarrels and provoking troubles.”  After 20 years of Western rule of law programs, the CCP has come to realize that the easiest way to deflect global criticism is to follow legal procedure, no matter how abusive, vague or entrapping that legal procedure might be.

If the 25th anniversary of Tiananmen means anything, China’s new strategy – the use of law to suppress dissent – must be

Everyday rickshaw drivers tried to save many of the students

examined and criticized.  China’s activists are being violently detained and imprisoned in record numbers “in accordance with the law.”  But that suppression of dissent is no different than what happened in 1989.  It is another method of killing the chicken to scare the monkeys – ensuring that the violence against a few “troublemakers” teaches the rest of society not to rock the boat.  This time though the rest of the world is increasingly complacent.

As the world marks the 25th anniversary of the Tiananmen Square massacre on Wednesday, China will be the lone nation that will not.  Since 1989, its people have been forbidden to commemorate the event; they are not permitted to remember; they are not allowed to note those fateful days that changed their lives more than anything in China’s recent past.  And that is why the events that other nations hold in honor of the many brave Chinese people who lost their lives on that night are so important.  Because while the Chinese government has found new strategies to more effectively deal with international criticism of its treatment of its people, the one thing that the outside world still has is the truth.  But that truth must not be limited to just what happened 25 years ago; it must also be used to call on China today stop its suppression of dissent today.  To do otherwise is a disservice the victims of that night.

One of the most iconic photos of the 2oth Century – one man stands up to a line of tanks

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By Elizabeth M. Lynch, May 9, 2014

For Tang Jitian (pronounced Tang Jee tee-an), a human rights advocate and disbarred criminal defense lawyer, 2013 should have been a banner year.  The new Criminal Procedure law took effect ostensibly providing for greater rights for defendants and their lawyers; the Supreme People’s Court’s new President, Zhou Qiang, highlighted the pressing need for the judiciary to respect criminal defense attorneys; and the Third Plenum of the Party’s Central Committee released its resolution, calling on the Party to “give rein to the important function of lawyers in safeguarding citizens’ and legal persons’ lawful rights and interests.”  To cap it all off, in December, the government abolished the much reviled Re-Education Through Labor (“RETL”), an administrative punishment unsupervised by the court system that often resulted in hard labor sentence of up to three years.

But for Tang Jitian, 2013 and the early months of 2014 have proven to be anything but positive.  Instead, human rights advocates have experienced one of the worst  years since 2008 according to the 2013 Annual Report published by the non-profit Chinese Human Rights Defenders (“CHRD”).  Under the leadership of China’s new president, Xi Jinping (pronounced See Gin ping), there have been more than 220 criminal detentions of human rights defenders, as documented by CHRD’s report, a three-fold increase from the previous year.  The number of detentions that have not gone through the legal process if even greater.

What makes Xi’s crackdown different – and more ominous – than previous ones is its veneer of legality and its attempt to mask the increased levels of violence.

China’s new president – Xi Jinping

Nothing exemplifies that better than what happened to Tang Jitian in China’s Heilongjiang province this past March.

Whac-A-Mole: RETL is Replaced By Other Administrative Detention

As a human rights attorney, Tang has represented some of China’s most vulnerable, in particular adherents of the spiritual movement Falun Gong.  The Chinese government has categorized Falun Gong as a cult not necessarily as a result of any of its practices, but rather as an easy way to target a movement that was able to amass a large number of dedicated followers in a short amount of time.  It was Tang’s zealous advocacy of a Falun Gong practitioner that led to his disbarment in 2010.

On some level, one cannot be a human rights lawyer in China without understanding the particular plight of Falun Gong practitioners.  And that is why Tang ended up outside of a Jiansanjiang (pronounced Gee-en san jee-ang) detention Center where several Falun Gong practitioners were being detained in a “Legal Education Center.”

Re-Education Through Labor Camp before they were formally abolished

While the Chinese government may have eliminated the RETL system, it did not get rid of all forms of administrative punishment.  In its place popped up  drug rehabilitation centers to house many of RETL’s drug addicts and legal education centers to deal with RETL’s Falun Gong practitioners as well as citizen petitioners, people the government has deemed “troublemakers.”  The ability to detain individuals without proper legal procedures has been too powerful of a tool for a government with an obscene infatuation with “social stability” to give it up so easily.   For these detained individuals, it is of little consolation if the prison they find themselves in is called a labor camp or a legal education center.  In the end they are still deprived of their liberty without any legal review or access to lawyers and often with little to no contact with their families.

When the Lawyers Become the Victims

It was this discrepancy that Tang and three other human rights lawyers – Jiang Tianyong, Wang Cheng and Zhang Junjie (the Jiansanjiang Four) – sought to bring attention to by trying to serve as attorneys to the Falun Gong practitioners being held at the Jiansanjiang Legal Education Center.  However, before the Jiansanjiang Four could lodge formal complaints on behalf of their clients, the police raided their hotel room and detained the four attorneys.

Zhang Junjie would be released five days later; Tang Jitian and Jiang Tianyong were held in detention for 15 days.  None ever went

The Jiansanjiang Four – from L to R: Jiang Tianyong, Zhang Junjie, Wang Cheng & Tang Jitian

before a judge but again the law allows for this form of administrative punishment as well.  In March 2006, China’s Public Security Administrative Punishment Law (“Admin Punishment Law”) – a law that gives free rein to the police to detain individuals for up to 15 days – went into effect.  Under the law, the police essentially serve as prosecutor, judge and jury.  Although there is an appeal process, as Joshua Rosenzweig notes, “it’s possible to request that a detention be postponed pending the outcome of such a challenge [appeal], but, again, police have discretion to decide this based on whether they think the individual will continue to be a harm to society. So, basically one has little option but to serve one’s time in jail first and pursue remedies later.”

Each of the Jiansanjiang Four were held under the Admin Punishment Law.  Tang and Jiang were given the maximum punishment of 15 days for “using cult activities to endanger society.”  It was Tang and Jiang’s attempts to represent Falun Gong practitioners – the very reason for their profession and protected by the Lawyers Law – that was punished.

Under the Veneer of Legality, Increase Levels of Violence

Five to 15 days might not seem like a long time, but for someone being tortured, it is an eternity.  While being held by police, each of the Jiansanjiang Four experienced repeated beatings and each needed to go to the hospital upon their release.  This is what makes the Admin Punishment Law dangerous – without any supervision or the ability to appeal the sanction, the police have free rein to do what they want with these “troublesome” human rights advocates.

Tang Jitian receiving diagnosis at the hospital
AP Photo/Alexander F. Yuan

This type of violence against human rights advocates is becoming increasingly common under President Xi Jinping.  While beatings are the most common, denial of services, including food and medical treatment has also become prevalent and at times with dire consequences.  Tang Jitian suffers from spinal tuberculosis.  According to Boxun, while at a Beijing hospital after his detention, Tang was initially informed that surgery was necessary to avoid paralysis.  But a few days later, the head of the hospital visited Tang’s room to inform him that the surgery was not possible at the hospital and suggested that he leave.  Tang’s TB, at least the spinal portion, is going untreated.

For Cao Shunli, another human rights advocate who had been criminally detained since September 2013, it was her medical condition mixed with possible beatings that eventually killed her.  On March 14, 2014, while still in police custody, Cao died of as a result of her tuberculosis.  Her family claims that her TB was left untreated and that she was physically abused in police custody.  To this day, Cao’s body has not be release to her family for proper burial.

But while China conducts one of its worst crackdowns on human rights advocates, it is still able to obtain a seat on the United Nations’ Human Rights Council, a body responsible for enforcing many of the international human rights standards which the Chinese government violates with abandon.  One wonders how many other human rights advocates must die before the world wakes up.

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By Elizabeth M. Lynch, April 10, 2011

Originally posted on The Huffington Post

Bob Dylan performed in concert in Beijing on April 6 and Shanghai on April 8

Maureen Dowd’s op-ed in Sunday’s New York Times – Blowin’ in the Idiot Wind – lambasts singer-songwriter/protest-singer/civil-rights-activist/voice-of-a-generation/whatever-he-is-to-you Bob Dylan for his recent concert in Beijing, China.  For Dowd, Dylan’s acceptance of the Chinese government’s approval of his set list is anathema to everything he represents.  Dropping his famous protest songs of “Blowin’ in the Wind” and “The Times They Are A’Changin’” from the set list during China’s most severe crackdown on its own citizens since 1989 and ignoring the recent detention of Chinese rights activists shows, for Dowd, that Dylan is nothing more than a sellout, willing to auction his morals to the highest bidder.

But Dowd’s virulent critique of Dylan makes one wonder, where has she been in all of this?  Dowd is an obvious Dylan fan, likely even a disciple, with her skilled use of Dylan quotes and understanding of the man’s extremely tangled and uncomfortable history with fame.  But China’s “harshest crackdown on artists, lawyers, writers and dissidents in a decade” and its “dispatching the secret police to arrest willy-nilly, including Ai Weiwei” as Dowd notes, didn’t just start this weekend and didn’t just start with the detention of Ai Weiwei.

Since the middle of February, the Chinese government has been illegally abducting Chinese rights activists, preventing them from contacting their family let alone a lawyer, and subjecting them to torture and abuse.  This siege on rights activists in China is done as a pre-emptive strike on the nascent civil society that has been developing and is an attempt for the Chinese Communist Party to avoid the fate of Mubarak and Ben Ali and maintain its one-party authoritarian rule, especially as a change of leadership comes in 2012.

Tang Jitian was abducted from his home on February 16, 2011, starting what has proved to be a wide-cast net of illegal abductions and abuse (abuse of both China’s own laws and the individuals that remain in custody).  Since then, Dowd has written 13 columns, not a single one dealing with the issue of the Chinese government’s harsh and violent crackdown on its citizens.  Today’s column barely touches upon the issue and instead focuses on Dylan’s “selling out.”

Let’s face it, Dylan is unable to sell out because he never bought in in the first place.  Dylan never fully engaged the civil rights movement.  While his songs did become a motivating force for many of the great civil rights activists and moments in U.S. history, by 1965, he was done with folk and had plugged in.  And since the 1980s, Dylan has been on a non-stop tour, selling the rights of his iconic protest songs to commercial entities (the rights to Times They Are A Changin’ was first sold to accounting firm Coopers & Lybrand and in 1996 to the Bank of Montreal), appearing in a Victoria’s Secret ad, producing an abysmally bad Christmas album, and almost never including Blowin’ in the Wind and the Times They Are A’Changin’ in any set list anywhere in the world (review his set lists here: http://www.bobdylan.com/tour/calendar/2010).

Dylan’s lack of mentioning China’s recent crackdown on dissent isn’t shocking.  In fact, the old guy likely knows nothing of what is happening in China – why should we rely on him to be our voice and do all the work?  This isn’t his issue; in fact, the man likely has no issues other than himself.

Which brings us back to Maureen Dowd.  Unlike most of the people concerned about human rights abuses in China, Dowd has a powerful platform for her voice – her twice-a-week column in the N.Y. Times.  With a large and influential readership that likely reaches the halls of the White House and Congress, discussion of China’s recent abuse of its own citizens and its subversion of a rule of law in her column could influence important policy makers as well as the world-at-large.

To their credit, some of the world’s major newspapers have been reporting on China’s recent crackdown, but these articles have been cursory at best and do not fully explain why China’s recent assault goes above and beyond what traditionally occurs in an authoritarian regime.  But most individuals knowledgeable on the issue have had extreme difficulty in getting their voice out in the mainstream press (kudos though to The International Herald Tribune and the N.Y. Times for publishing opinion pieces in its print editions and kudos to  The Guardian and the Wall Street Journal for having opinion pieces on the issue in their online papers).

Dowd has the opportunity to expose what is happening in China and call for the freeing of, or at the very least the end of the abuse of, not just Ai Weiwei, but also rights-defending lawyers Tang Jitian, Jiang Tianyong, Teng Biao, Liu Shihui, Tang Jingling, Li Tiantian, and Gao Zhisheng.  The whereabouts of these lawyers, unlawfully abducted by Chinese authorities (even under Chinese law), remain unknown.  Their only offense: asking the Chinese government to uphold its promise of a rule of law and using the legal system to protect society’s most vulnerable.

Dowd’s disappointment in Dylan’s snub of China’s crackdown on dissent leads me to believe that this is an issue Dowd is concerned about.  But instead of asking Dylan to be the spokesperson for the issue, Dowd should practice what she herself appears to preach.  My challenge to Dowd is to use her sharp-witted pen and find a way to raise the plights of China’s rights-defenders in the American consciousness instead of relegating it to two sentences in a column that is otherwise a critique of Dylan.  If Dowd doesn’t, then I am left to think “you could have done better but I don’t mind, you just kinda wasted my precious time….”

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By Elizabeth M. Lynch, March 28, 2011

Gao Zhisheng is perhaps the most well-known of China’s rights-defending lawyers.  In the late 1990s and early 2000s, Gao began successfully representing victims of medical malpractice and farmers denied just compensation for their land.  In fact, in 2001, Gao was named by China’s Ministry of Justice as one of China’s most influential lawyers.  Spurred by his success and what appeared to be a Chinese government welcoming a stronger public interest law bar, Gao expanded his work to included practitioners of Falun Gong, a religious organization which the Chinese government has long feared as a threat to its one-party rule and has declared a cult.  Gao’s representation of Falun Gong practitioners did not just highlight the baseless accusations of “using superstitious sects [cults] to undermine the implementation of the law” (China’s Criminal Law, art. 300), but also the torture of Falun Gong practitioners while in police custody (for a seminal article on Gao’s work, see Eva Pils, Asking the Tiger for His Skin: Rights Activism in China, Fordham International Law Journal 2007. Available at SSRN: http://ssrn.com/abstract=1563706).

Gao’s zealous advocacy of Falun Gong practitioners did not go unnoticed by the Chinese government, and his status as a lawyer to be celebrated for representing society’s most vulnerable, quickly changed.  Gao was now viewed as a piranha of the state. In December 2006, Gao was convicted of subversion and was given five years probation to be served from his home.  However, in February 2009, Gao was abducted from his home by the police.  For over fourteen months, he was not heard from and no one knew where he was.  In April 2010, Gao emerged from seclusion only to be abducted again only two weeks later.  During the time he was free, he was able to report to the Associated Press the torture he underwent while in police custody.

Gao’s whereabouts, like recently abducted rights defending lawyers Tang Jitian, Teng Biao, and Jiang Tianyong, remain unknown.  In a plea for the world to pay attention to these random and lawless detentions, Gao’s wife, Geng He, who was able to flee to the United States with their two children in January 2009, published an op-ed in today’s New York Times.  Below is an excerpt with a link to the full article.  Geng begs that if her husband has been killed, that the Chinese government have the dignity to return his body so that his family can lay him to rest.

The Dissident’s Wife

By Geng He

Gao Zhisheng with his wife, Geng He, and their two children

San Francisco – WITH the world’s attention on the uprisings in the Middle East, repressive regimes elsewhere are taking the opportunity to tighten their grip on power. In China, human rights activists have been disappearing since a call went out last month for a Tunisian-style “Jasmine Revolution.” I know what their families are going through. Almost a year ago, the Chinese government seized my husband and since then, we have had no news of him. I don’t know where he is, or even if he is alive.

Click here for full article

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By Elizabeth M. Lynch, February 21, 2011

Originally posted on The Huffington Post

Rights-Defending Lawyer, Tang Jitian

The Chinese government has tried to break Tang Jitian’s spirit.  Failing, it now seeks to break his body.  Tang, a Chinese human rights lawyer, was forcibly abducted from his home on Wednesday, February 16 by the Beijing police.  Five days later, in contravention of Chinese law, Tang’s whereabouts remain unknown to his family, friends, and other human rights lawyers who desperately await some news of him.  Tang’s wife, after waiting at the police station for over four hours, was not permitted to see her husband and not informed of his whereabouts.  Tang’s “crime” in all of this: seeking to uphold individual’s legally-guaranteed rights and hold the State to its promise of a rule of law.

When Tang Jitian (pronounced Tang Gee Tea-ann) emerges from this unlawful and forced seclusion, he may be badly beaten, tortured and abused.  Soon after his abduction on Wednesday, Tang was transferred to the Beijing Public Security Bureau (PSB), an outfit that has been assigned the task of suppressing China’s nascent human rights movement.  Violence is a necessary part of the PSB’s mandate: it provides a very physical signal to other human rights lawyers what awaits them if they become too vocal, organized, or, ironically, too successful in bringing cases to protect citizen’s rights.  But this State-sanctioned violence is outside the limits of the law, and makes one wonder that if, by attacking these rights-defending lawyers (in Chinese, weiquan lawyers), the Chinese government is really committed to a “rule of law” society or if the use of such language by Chinese officials is a mere mirage.

The Breaking of a Body: Tang Jitian’s Potential Fate While in PSB Custody

Human rights lawyer Gao Zhisheng (pronounced Gao Zhi-sheng) likely serves as the most potent reminder of the

Human Rights Attorney, Gao Zhisheng

lawlessness of the PSB.  In 2001, Gao was listed by China’s Ministry of Justice as one of the country’s top-ten lawyers for his work representing victims of medical malpractice and farmers who were denied just compensation for their land.  But as Gao took on more controversial cases – particularly defending Falun Gong practitioners, a quasi-religious organization that the Chinese government perceives as a real threat to its power – government respect for his work quickly faded.   In December 2006, Gao was convicted of subversion and was given five years probation to be served from his home.  However, in February 2009, Gao was abducted from his home by the police.  This was the second time he was abducted, the first in 2007 where he was tortured for over 50 days.  But this time, Gao’s abduction would be for much longer.  For over fourteen months, he was not heard from and no one knew where he was.  In April 2010, Gao emerged from seclusion only to be abducted again only two weeks later.  During the time he was free, he was able to report to the Associated Press the torture he underwent while in police custody.

What awaits Tang may be similar – 48 hours of continuous beatings, various forms of physiological torture, wet towels over one’s face to give the feeling of suffocation – or even worse.  Unlike Gao Zhisheng, who is well known in the international community, or Teng Biao, a famous Chinese law professor and human rights activist who, because of his status, experienced a less violent beating when he was taken into custody for a few hours by police last December, Tang does not have such connections to protect him.  Without such an international cache like Teng Biao, Tang is an easy target for the Chinese security apparatus and will likely be used to violently symbolize the PSB’s power over the human rights lawyers.

Trying to Break a Spirit: Tang Jitian’s Disbarment

Wednesday’s abduction was not the first time that Tang has been on the Chinese government’s radar.  In May 2010, because of his defense of a Falun Gong practitioner in Sichuan province, the Beijing Bureau of Justice – the government body that manages the legal profession in Beijing – disbarred Tang from the practice of law.  Ostensibly arguing that Tang violated courtroom rules, the Beijing Bureau of Justice’s decision was largely seen as political.  Similar to the United States, disbarment in China is reserved for those lawyers who commit a crime.  Tang was the first lawyer to be disbarred for what merely appeared to be zealous advocacy.

Since his disbarment, Tang has had no way to economically support himself, relying solely on the kindness of other human rights lawyers.  Such a blow has had its impact and more recently, Tang had become depressed about his situation, although still very active in the human rights movement.  One would have thought that this would have been sufficient for the Chinese government – that by taking away Tang’s livelihood, it would not seek to detain him.  One would also think that such action would be unnecessary: Tang’s disbarment was a clear signal to other human rights lawyers that the State could use vague provisions of the law to disbar them and deny them their raison d’etre.  But it appears that disbarment was not punishment enough for the PSB.

Why Abduct Tang Jitian Now? China’s Rule of Law Regression

The immediate cause of Tang’s abduction relates to the recent house arrest and abuse of another human rights lawyer,

Human rights lawyer, Jiang Tianyong

Chen Guangcheng (pronounced Chen Gwang-chung).  Chen, a blind, self-taught lawyer who represented women forced into abortions by their village government, has been under house arrest since he was freed from prison in September 2010.  Last week, Chen and his wife were reportedly beaten after they leaked an hour-long video of their daily surveillance to the U.S.-based human rights and religious group, China Aid (for the video, click here).  On Wednesday afternoon, Tang Jitian had lunch with a group of Beijing human rights lawyers to discuss what the group could do to support Chen.  Soon after this brain-storming session, Tang was abducted.  Additionally, another participant of the Wednesday lunch group has also been abducted.  On Saturday, February 20, 2011, human rights lawyer Jiang Tianyong (pronounced Gee-ong Tea-ann young) was taken away in an unmarked van, only days after he was roughed up while in police custody.

But Tang and Jiang’s belief that the law should be followed and individuals’ rights should not be trampled on by the State is the real reason for his abduction and likely abuse at the hands of the PSB.  Over the past few years, China’s human rights attorneys have become more organized, using modern technology to quickly communicate with each other, and increasingly vocal, demanding that  the government abide by its own laws when it comes to the people’s civil rights and civil liberties.  Instead of responding positively to these developments – developments that largely symbolize a growing rule of law society and an emerging civil society  – the Chinese government and the Chinese Communist Party (CCP) has further entrenched its authoritarian rule and has used increasingly sever measures to break these human rights lawyers. While Chinese human rights lawyers’ cases would be everyday affairs for public interest lawyers elsewhere in the world, the CCP views these lawyers as a threat to their one-party rule and the PSB views them as a threat to its all-inclusive, and many times illegal, policing methods.  Based upon the recent abduction of Tang Jitian and Jiang Tianyong, the PSB and the CCP will do whatever it takes to suppress these human rights lawyers.

On Saturday, while rumors were circulating on the internet that China itself was to have a “Jasmine Revolution” following the events in the Middle East, a Chinese rights activist tweeted that the Chinese government detained twenty-one other human rights attorneys: Zhu Yufu, Liao Shuangyuan, Huang Yanming, Teng Biao, Ran Yunfei, Li Tiantian, Liu Guohui, Ding Mao, Lu Yongxiang, Xiao Yong, Zhang Jianping, Shi Yulin, She Wanbao, Li Yu, Lou Baosheng, Wei Shuishan, Zhang Shanguang, Li Xiongbing, Xu Zhiyong, Huang Yaling, and Li Bo.  Many may suffer physical abuse at the hands of the PSB.  Some already have.

Why Should Anyone Care?

I met Tang Jitian when I was last in China and was impressed, not just with his bravery, but also with understanding of his role in pushing the Chinese government to truly commit to a rule of law.  If human rights lawyers are suppressed now he told me, there will be no one to take over the movement.  Tang is right and breaking the movement appears to be one of the goals of the Chinese government.  By openly subjecting human rights attorneys to constant surveillance, disbarment, psychological threats, and physical abuse, the Chinese government hopes that once this generation of human right lawyers pass, no younger lawyers will dare to take up the mantle; the repercussions are too severe.

Secretary of State Hillary Clinton to take a hard line on human rights

But the question remains, will the rest of the world allow this?  Last month, the Obama Administration impressed many by repeatedly raising the issue of human rights with Chinese President Hu Jintao.  Just days before Hu’s arrival in Washington, D.C., Secretary of State Hillary Clinton bluntly discussed the plight of China’s human rights lawyers, stating that the United States will expect China to fulfill its own promise of rule of law: “America will continue to speak out and to press China…when lawyers and legal advocates are sent to prison simply for representing clients who challenge the government’s positions….”  The time has come for the United States to back-up that statement.

The Obama Administration has already expressed its concern with the treatment of Chen Guangcheng.  But it cannot forget the less known advocates like Tang Jitian and Jiang Tianyong – without some form of international recognition of his situation the PSB will believe it has the cover to do with Tang and Jiang what it wants.  Furthermore, the Obama Administration needs to see the Chinese government’s recent reaction as an affront to a “rule of law” and also needs to comment on the importance of not just a “rule of law” in China but on the existence of a vibrant public interest law bar.  Human rights lawyers directly challenge the State in order to protect individual’s legally-guaranteed rights; only when these lawyers are able to more freely function in society will China have any meaningful rule of law.

A meaningful rule of law in China is not just an abstract principle for Americans.  As more Americans do business in China and as the U.S. government seeks to increase the number of students studying in China to over 100,000, rule of law in China will become an everyday concern.  Last year’s arrest and prosecution of Australian citizen and Rio Tinto executive Stern Hu and the recent conviction of U.S. citizen and geologist Xue Feng embody the importance of China’s rule of law development for Americans.  The Obama Administration needs to publicly condemn the Chinese government’s recent suppression of human rights lawyers, call for the release of Tang Jitian, and frankly question the Chinese government’s commitment to a rule of law.  Tang and Jiang’s safety depends on it.

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By Elizabeth M. Lynch, May 17, 2010

After a two year hiatus, the U.S. and China resumed their human rights dialogue last Thursday and Friday in Washington, D.C.  Don’t be alarmed if this is the first you heard of the Dialogue; the U.S. mainstream press barely covered it.

The U.S-China Human Rights Dialogue is subject to criticism and much of it viable.  China doesn’t send anyone with much power to negotiate (for last week’s Dialogue the highest official was Chen Xu, Director General of the Department of International Organization of the Ministry of Foreign Affairs); the Dialogue itself is conducted largely behind closed doors and it is unclear what is accomplished; and there are never benchmarks set to determine if these dialogues actually produce any results.

But last week’s U.S.-China Human Rights Dialogue, even with the little that is

Assistant Secretary, DRL, Michael Posner

known about it, is newsworthy; it reflects a changing interpretation of human rights in the U.S.-China relationship.  From what can be gleaned from Department of State press conference, the new emphasis in human rights appears to be almost exclusively rule of law.  While Mike Posner, Assistant Secretary of State for the Bureau of Democracy, Human Rights and Labor, highlighted five different topics which were discussed at the dialogue (religious freedom, labor rights, freedom of expression, rule of law, and racial discrimination), the focus of the Chinese delegation’s field trip on Friday was largely legal.  On Friday, the Chinese delegation made the following visits: a meeting with Justice Sandra Day O’Connor to discuss rule of law and an independent judiciary; a talk with Cardinal McCarrisk at Catholic Charities’ Anchor Mental Health Center to discuss the relationship between the religious community and government as it pertains to human and social services; discussions with the Federal Mediation and Conciliation Services concerning labor rights and collective bargaining; and a talk with Thomas Crothers at the Carnegie Endowment for International Peace regarding the interplay among law, human rights and food safety.

In addition to the focus of an effective legal system as a part of human rights, here are some other interesting takeaways:

Why discuss with delegates from an atheist country the role of religious organizations?

This is perhaps the most interesting and most puzzling aspect of the talks.  China, run by the Communist Party, is a self-declared atheist country.  In fact, all of the Chinese delegates from last week are admitted atheists.  To be a Chinese official, Communist Party membership is a prerequisite; to be a member of the Chinese Communist Party renunciation of religion (Buddhist, Islam, Christianity, etc) is necessary.   So given this fact, the State Department trip to Catholic Charities offers an interesting insight into the U.S.’ policy toward religion, human rights, and China, particularly in regards to Christianity.

While ostensibly atheist, China is one of the fastest growing Christian nations.  Even based on the Chinese government’s official numbers –which are likely low-balled—from 1997 to 2006, China saw a 50% rise in the number of Christians.  The number, including those that attend the government-run churches as well as the underground, unofficial churches, is around 70 million.  Although this seems like a large number, population wise, it is only around 5%.  So for many Western Christian missionaries, the name of the game is China.  Western Catholics and Protestants both know this and are in China, albeit undercover, in large numbers.

While China has a growing Christian population, the Chinese government remains ambivalent about its development – sometimes seeing it as buttressing its authority and sometimes seeing it as a threat.  Although religious groups and charities have been important in the U.S.’ civil society development, China is a long way from having any sort of religious charities that could support human rights or rule of law.

So why the trip to Catholic Charities?   Perhaps the Chinese officials requested this because they are sincerely interested in learning more about the role religious groups can play in society.  Or perhaps U.S. policymakers’ idea of human rights, at least in China, is becoming less secular and more religious-based, particularly Christian.  Unfortunately, Assistant Secretary Posner did not explain why the Human Rights Dialogue with atheist China focused on the role of religious organizations in supporting human rights and we are left merely to speculate.

U.S. Raises Issue of Liu Xiaobo’s Imprisonment, the Disappearance of Gao Zhisheng, and likely the Disbarment of Tang Jitian and Liu Wei

Assistant Secretary Posner informed the press that U.S. officials discussed many specific Chinese dissents’ cases during the Dialogue.  However, the only two cases he named were those of Liu Xiaobo and the very odd case of Gao Zhisheng.

Liu Xiaobo has a long history of human rights activism in China.  In 1989, he

Activist Liu Xiaobo

participated in the Tiananmen protests and has repeatedly criticized the Chinese government.  His activism has received many accolades from the West, including Reporters Without Borders’ Foundation de France Prize.  In December 2008, Liu Xiaobo was one of the organizers of the Charter ’08 movement, a movement calling for more democracy, less corruption and greater accountability of the Chinese government.  For these activities, Liu was arrested and sentenced to a very harsh 11-year prison term for inciting subversion of state power.  Even for China, the sentence is particularly long.

Although Liu’s sentence was harsh, the outcome was not surprising from

An emaciated Gao Zhisheng in March 2010 after a year in police custody

China.  Gao Zhisheng’s case however is just downright bizarre and Kafkaesque.  Gao is a self-taught lawyer and received much praise by the Chinese government for his work in public interest law.  But that was back in 2001.  By 2006, Gao had fallen out of favor and his work, particularly the representation of the repressed religious organization Falun Gong, was seen as a threat to the Chinese government.  In 2006, Gao was detained, arrested and eventually found guilty of subversion.  His three year prison sentence was converted to five year probation and he was allowed to remain at home.  After harassment, physical abuse and threats to his life, in February 2009, one month after his wife and child fled China for the United States, Gao was mysteriously abducted by Chinese police.  His whereabouts remained unknown.  The Chinese government remained largely silent in regards to Gao’s whereabouts until January of this year when in response to questions regarding Gao’s disappearance, Foreign Ministry spokesman Ma Zhaoxu retorted that Gao was “where he should be.” Although ominous, Gao eventually reemerged in March 2010 at Wutai Mountain, hundreds of miles from his home.  Announcing that he was giving up rights activism for the opportunity to be reunited with his family, Gao went to Xinjiang Autonomous Region at the beginning of April to visit his in-laws.  After one night there, Gao was abducted a second time and to this day, his whereabouts are unknown.

In addition to Liu and Gao, Posner also mentioned that the cases if recently disbarred public interest lawyers were also raised.  This likely means Tang Jitian and Liu Wei, two public interest lawyers who were recently stripped of the right to practice law.  Both Tang and Liu merely represented

China’s increasingly hard-line stance against rights activists and public interest lawyers reflects a country that may not be interested in establishing the rule of law, at least at it pertains to non-economic spheres.  Raising these issues is important not just for the people being detained or harassed, but also to see how China moves forward in response to the issues.  For example, President Obama, in his trip to China last November, reportedly raised the issue of Liu Xiaobo’s detention.  However, the Chinese government did not lighten Liu’s sentence in response.  Instead, the Chinese government sentenced Liu to the overly harsh term of 11 years in December, a month after President Obama’s visit.  It will be interesting to see what happens to Liu Xiaobo, Gao, Tang and Liu Wei after the Human Rights Dialogue.  Does China care anymore about the U.S.’ criticism?

Even the Chinese know what the real purpose of Arizona’s new law

To create a feeling of mutual respect, the U.S. usually voluntarily discusses its own human rights issues during these dialogues.  In last week’s Dialogue, Assistant Secretary Posner volunteered Arizona’s new law against illegal immigrants as an example of a potential human rights violation in the United States.  However, according to Posner, the Chinese were not concerned about the law as it may apply to their citizens visiting the U.S.  Even the Chinese know that the law’s likely racial profiling will be for Mexicans, not Chinese.

How to Move Forward

Last week’s Human Rights Dialogue was only the second since 2002, after China suspended the talks.  Actually having the Dialogue itself is a major accomplishment.  Additionally, at the end both sides agreed to have another session in 2011, making the Dialogue an annual event.  For purposes of a continuing conversation, this is a good sign.  But the criticism that China merely plays lip service to the Dialogue is apt.  That is why it is important that during this month’s Strategic & Economic Dialogue (S&ED), to be held in China May 24 and 25, that high level officials, including the Secretary of State, raise human rights.  China places more emphasis on the S&ED compared to the Human Rights Dialogue.  But if the U.S. really wants China to move forward in human rights and rule of law, the topic must also be raised at the S&ED.