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By Elizabeth M. Lynch, June 20, 2013

Chinese activist Chen Guangcheng

Love is a battlefield and so evidently is our China human rights policy.  At least that is what the recent developments with blind Chinese activist Chen Guangcheng demonstrate.  Chen made international headlines last April when he bravely escaped his illegal house arrest, fled to Beijing and sought refuge in the U.S. Embassy.

On May 19, 2012, after the U.S. brokered a deal, Chen and his family arrived at Newark International Airport where Chen was to start a fellowship at NYU Law School’s U.S.-Asia Law Institute.

Fast forward a year and on Sunday, Chen was again in the news, this time issuing a press release stating that NYU had forced him to leave, alleging that NYU’s actions were a result of the Chinese Communist Party’s pressure on the University.  NYU has denied Chen’s allegations.

Chen’s story is more than just a page six affair of he-said-she-said.  Instead it reflects the ability one group to exert an undue influence on the China human rights agenda.

The Commandeering of the U.S.’ Human Rights Policy in China

In very simplistic terms, the politics behind our China human rights policy used to be easy – the left supported human rights in China above all else.  The right was more about business ties to China before human rights (or as a way to achieving human rights).

But the rise of the religious right, especially the pro-lifers, within the Republican Party has changed that dynamic.  Nothing demonstrates that more clearly than the changing politics behind the Congressional-Executive Commission on China (CECC).

In 2000, after China’s WTO entry, Congress created the CECC to monitor China’s human rights and rule of law development.  It quickly became Capitol Hill’s bipartisan think tank on China issues, publishing a detailed annual report on China’s human rights and rule of law record and some of the U.S.’ best young China hands passed through the CECC.

But over the past six years, the CECC has become dominated by one voice, that of Rep. Chris Smith, a pro-life Republican who became a member of the Commission in 2007, its chairman in 2011 and its current co-chair.  Since his membership, the CECC has become increasing politicized.

I first felt this when undergoing an interview for a position covering the CECC’s criminal law portfolio back in 2009.  I had already cleared interviews with CECC staff, and a political vetting by one of

Rep. Chris Smith of New Jersey

Chris Smith’s staffers was the final hurdle. It was unclear why this staffer had been chosen as he neither spoke Chinese nor demonstrated any special knowledge of China.  He asked only limited questions about my work at NYU’s U.S.-Asia Law Institute (the same organization where Chen would land years later) or about my knowledge of Chinese criminal law which I had focused on during my two years at NYU.  Instead he asked about my views of Obama’s China policy vis-a-vis Bush’s (I believe they were pretty much the same); why I wrote for the Huffington Post (because they are willing to publish me); what editorial control did the Huffington Post have over my work (none); and finally, what did I think about China’s one-child policy.  And that is where much of the interviewed remained – around China’s one-child policy.

I told the staffer that forced abortions are wrong and illegal under Chinese law.  The staffer probed deeper than just forced abortions, inquiring what I thought about the one-child policy in the abstract and whether the policy alone, regardless of the way it was implemented, was a human rights violation.  Of the human rights violations in China, the one-child policy is low on my list, and I said as much.  But the questions continued, and at some point I found myself “admitting” that I was fine with contraception.   Once those words left my mouth, somehow I knew I did not get the job.

The phone interview ended with the staffer asking about one of my blog posts where I tried to explain why the Chinese Communist Party should not be viewed as a monolith.  The line of questioning quickly turned into what felt like a McCarthy-era hearing with the staffer accusing me about not caring about human rights.

After the interview, I was rejected for the job.  I was told that Chris Smith’s office stated that my rejection was because my blog had typos (which is true).  But the line of questioning I underwent suggests another reason to me.  That interview was the first glimpse of what I believe is the pro-life contingent’s influence on our policy toward China’s human rights.

How Does Chen Guangcheng Play Into Chris Smith’s China Human Rights Policy?

It didn’t surprise me last year when it was Rep. Chris Smith who orchestrated Chen Guangcheng’s dramatic phone call from Beijing into the CECC hearing where Chen begged to be allowed into the US, creating a second international crisis that the U.S. had to negotiate.  It was even less surprising that Chen’s translator on that phone call was Bob Fu, president of the Texas-based evangelical human rights group, ChinaAid.  Fu himself has testified a number of times before the CECC, and since Chen’s Sunday night press release Fu has made the rounds with the press, alleging that Chen was being forced out of NYU because of Chinese pressure.  Expectedly, Rep. Smith has threatened to convene a hearing hauling in NYU officials to testify under oath and prove that they were not pressured by the Chinese government.

Rep. Chris Smith with Bob Fu of ChinaAid, on the phone with Chen Guangcheng

To pro-life advocates like Rep. Smith, Chen is an important figure.  Chen, a self-taught lawyer, began his career by fighting for the rights of those with disabilities.  Soon, Chen heard of other injustices in his village, especially forced abortions.  Although China maintains a one-child policy, forced abortions and sterilizations are illegal under Chinese law.  An investigation by Chen and lawyers from Beijing uncovered that forced abortions and sterilizations were common, especially in rural areas.  By the summer of 2005, Chen filed multiple lawsuits in his village Linyi on behalf of many of the victims.

It was those forced abortion cases that caused Chen to become a martyr, being arrested and thrown in jail on trumped-up charges.  Even after his official release, the Linyi authorities illegally kept him under house arrest.  But it was these forced abortion cases that also brought him to the attention of the pro-lifers in the United States.  Although Chen has stated that he is against forced abortions and less against abortions themselves (see NPR interview at 9:51), his lawsuits represent an important stepping stone for pro-lifers –  ridding China of the one-child policy.  And there is always hope that he can be converted to a pro-life stance.

Chen Guangcheng – Only A Pawn in Their Game?

I don’t believe that NYU succumbed to Chinese political pressure.  Mattie J. Bekink, Chen Guangcheng’s special adviser while at NYU, has issued a convincing press release detailing the efforts that NYU went to for Chen and his family and that she was the one who informed him early on in his tenure is that he was on a one-year fellowship.

But more importantly, I question how much the Chinese government actually cares about Chen’s existence in the United States.  Chen was a public relations disaster for the Chinese government while he was in China – causing protests domestically and internationally and even having Christian Bale attempt to visit.  Yes, the Chinese government protested the U.S. government’s involvement in the Chen affair, but ultimately they let him go and likely because they wanted to.  Activists lose their impact once they leave China.

Chen offers no evidence as to this alleged pressure.  Although he ties all of this to NYU’s desire to expand its Shanghai campus, that doesn’t seem to make sense.  NYU accepted Chen in May 2012.  That didn’t change its plans for the Shanghai campus.  The campus is still set to open in fall 2013.

But whether Chen is a pawn in a much bigger game is merely speculation.  And maybe Chen isn’t even a pawn; maybe he has taken sides and that he has chosen the pro-life camp.  News reports have stated that Chen is currently negotiating fellowships with two organizations – the Leitner Center at Fordham Law School focused on international human rights and the Witherspoon Institute, a conservative, pro-life think tank, in Princeton, New Jersey.  But it wouldn’t surprise me if after Sunday’s press release and accusations if Fordham withdraws from negotiations; who would want that headache, ending up in the press like NYU.  So in the end, Chen may only be left  with one choice – Witherspoon.  Which makes one wonder why Chen didn’t wait until he signed the contract with whichever organization he chose and then lambast NYU.  There was no particular reason to do it now.  Unless of course Chen – or the people surrounding him – didn’t want a choice.

Ramifications of the Pro-Life’s Influence on China’s Human Rights Policy

Soon after my interview with Rep. Chris Smith’s office, I asked a friend who worked on Capitol Hill how a Congressional commission could be so influenced by one voice.  No one cares about China he told me, they care about the Middle East.

I don’t know if that is exactly true but certainly what happened with the CECC shows that others on Capitol Hill need to start paying attention.  Our relationship with China is too important to allow the human rights agenda to be so unduly influenced by one contingent.  The one-child policy and abortions can and should be a part of our human rights agenda, but it should not be the exclusive focus.  Or if it is, that consensus should be reached in a more democratic process not just by default because no one paid attention.

The CECC has long been an important resource for scholars, journalists and everyday citizens who want to learn more about China.  No other organization publishes as well documented an analysis of China’s human rights and rule of law developments as the CECC does in its annual report.  But if the organization becomes politicized, that annual report will begin to lose its legitimacy.  Its work is too important to allow that to happen.

In the present Congress, Rep. Smith is CECC’s co-chair, meaning that he will wield less influence than he did as chairman.  But he is still on the Commission and he also currently chairs the Subcommittee on Africa, Global Health, Global Human Rights and International Organizations of the House Foreign Affairs Committee.  Under his tenure, many of the hearings on China focus on these narrow issues with some of the same witnesses testifying.

But more than anything, what is happening with Chen Guangcheng is a sad state of affairs – it appears that he is being used by pro-life advocates in an attempt to commandeer the U.S.’ human rights policy in China.  To the extent that Chen is not a pawn, well, it didn’t have to end this way.  What’s unfortunate is that Chen’s behavior sets the tone for other activists trying to escape China, fearing for their life.  Will the United States government be willing to take that risk again, especially if a Democrat is still in the Executive Office?  Likely “the Dissident Wears Prada” is not a movie they want to see replayed.

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By Elizabeth M. Lynch, May 18, 2012

Chen Guangcheng, entering a Beijing Hospital with US Ambassaor Gary Locke and State Dep't Legal Advisor Harold Koh

More often than not, I am my friends’ go-to China person; something in the news pops up with China, I get the questions.  So I wasn’t surprised on Saturday when over some carrot cake at the Chelsea Market a friend of mine had questions about Chen Guangcheng: if he cared so much about human rights in China, why would he leave?  What is up with the Chinese government, keeping a blind man trapped in his own home?  How did things get so messy between the U.S. government and Chen?

It’s been almost a month since Chen fled the home that illegally became his prison. So what exactly is up with Chen’s escape and to answer some questions – what does it all mean?

Chen’s Escape Has Propelled Human Rights to the Top of the US-China Agenda

My friend’s question on Saturday caught me off guard – does Chen really care about human rights in China if he fled to the protection of the U.S. Embassy, ostensibly to seek asylum and leave China.

To ask a man with a wife and two children to be a martyr for his cause is asking too much.  As this blog has recounted previously, since Chen’s release from prison (oddly convicted of a traffic disturbance) did not result in freedom.  Instead, for the past year and a half, Chen and his family have been subjected to illegal house arrest and at times, physical torture by his captures.

It is true that by departing China, Chen’s ability to change China’s current system will be much reduced if not extinguished.  But his heroic flight has perhaps done more to highlight the Chinese government’s recent illegal oppression of dissent than anything else.  Over the past year and a half, this blog has increasingly written about the Chinese government’s crackdown on China’s nascent rights defending (weiquan) lawyers. Aside from people already interested in the issues, these posts – and the acts of repression which they have focused on – have received little attention.

Chen’s escape and his subsequent stay at the U.S. Embassy  altered this focus. With Hillary Clinton arriving for the Strategic and Economic

Inspiring Architecture? The US Embassy in Beijing

Dialogue (S&ED), the focus of U.S.-China relations shifted to human rights.  For one week, as the world watched, the U.S. and China’s relationship was thrown back to a 1980s-Cold War paradigm, when ideology played a more governing role.  For one week, the Western media’s attention finally focused on the repression of rights defending lawyers, and the lip service the Chinese government gives “rule of law” when it comes to civil rights and civil liberties.

It is amazing that a single man’s act, that one blind man’s heroic act, can still change the dialogue in U.S.-China relations.  It is a hopeful reminder that in this globalized world, individuals still matter; that one man’s quest for freedom is still “news.”  And don’t think Chen’s act was not a heroic one.  Not only was a blind man able to find his way to Beijing, but imagine if he wasn’t; imagine if he was caught.  Likely his fate would match that of Gao Zhisheng, a rights defending lawyer who, while in government custody, remains missing.

The U.S. Government’s Actions Supported Human Rights

Some have criticized the U.S. government – or more aptly, the Obama Administration – for its dealings with the Chinese government over Chen.  Initially, the U.S. Embassy worked out a deal with the Chinese government whereby Chen would stay in China, study law at a university in a coastal city away from the thugs of his hometown, and be left alone with his family.  This was what Chen initially wanted.

But once he left the safety of the embassy for a Beijing hospital, Chen began to reconsider his options.  As Prof. Jerome A. Cohen recounted to CNN, the promised U.S. Embassy official was unable to stay with Chen at the hospital and once he began speaking other rights defending lawyers – friends he hadn’t been able to speak to for a year – he began to more clearly understand the increased oppression of rights defending lawyers in China.  Chen was scared; Chen realized that without full information, he misjudged the situation.  That’s when he vocally requested that he be able to leave China for the United States.

Were some in the U.S. Embassy a touch too naive to rely on the Chinese government’s promises?  Most likely.  But being naive is not the same as turning one’s back to human rights.  It was Secretary of State Hillary Clinton’s decision to allow Chen into the U.S. Embassy in the first place.  Chinese citizens cannot just willy-nilly enter the U.S. Embassy; even American citizens are allowed limited access to their embassy (which resembles a high-security prison).  As the N.Y. Times has recounted, embassy officials were notified of Chen’s flight to Beijing and on April 25, Secretary Clinton gave the authorization to sneak Chen into the embassy compound.  Secretary Clinton knew full well that by providing that approval, a throw-down with the Chinese government on the issue of human rights was certain and the ultimate outcome unclear. It is unfortunate – although not all together shocking given the current acrimonious status of politics – that Washington D.C. cannot view this moment as a proud one for America and its ideals; that the web of support that both parties have built for a human rights network in China over the years enabled Chen to come to our door.   Instead, it appears that what could otherwise be a proud moment for Americans, is becoming a political tug-of-war.

Who is Driving the Bus? The Chinese Central Government’s Lack of Control

Beep Beep! Who drives this bus??

What is perhaps the most shocking of all from this whole situation is the Chinese central government’s lack of control of local governments. Chen’s persecution has largely been conducted by the local government in his hometown, with local government officials still seething after his attempt to bring a lawsuit against them for forced abortions.  But even when Chen fled to Beijing, his safety could not be guaranteed, hence his changed desire to leave for the United States.  Many of his relatives left in their villages are being persecuted by local officials.  It makes one wonder – who really drives the bus in China?

Imagine a United States where Governor George Wallace could ignore federal law, have his way and continue segregation in his home state of Alabama.  Likely you can’t.  It’s unfathomable to think that a national government is unable to enforce its own laws, and in the case of China, that a supposed authoritarian dictatorship cannot control lower level party members.

Chen’s case reflects a center weaker than anyone previously thought.  And that is what is most frightening and should give people pause.  Does China really have the power to become a rising superpower or will it revert to its warlord past, where each city is governed by its own power broker and the central government remains impotent?

While China’s weakness appears to manifest itself often in human rights issues, it should not be just a concern for human rights advocates.  Anyone working in or with China – business people, government officials – should be troubled.  A weak center, especially as China undergoes an important leadership transition this year, does not bode well for China.

Prof. Jerome Cohen – The Fixer

On a final note, I want to focus on Prof. Jerome Cohen and his role in all of this.  As a research fellow for two years, I had the privilege of working

Prof. Jerome A. Cohen

with Prof. Cohen at NYU’s U.S.-Asia Law Institute.  In that time, I got to know a kind, brilliant man who never ceased to amaze me.  It was Prof. Cohen who first identified the ingenuity and necessity of Chen’s unschooled, “barefoot lawyer” approach in 2003 and deservedly catapulted him to the world stage.

While my two years with Prof. Cohen were filled with inspiring moments, I have never been more proud of him than I was with his handling of the Chen Guangcheng situation.  While this is all purely based on hearsay, it appears that it was Prof.  Cohen who got the U.S. and China out of what was becoming a crisis situation.  Prof. Cohen’s lifetime of experience with China, including high-level delegations soon after Nixon’s visit to China in 1972, allowed him to realize that all that was needed was a practical solution where everyone could save face: a scholarship for Chen to study law at NYU’s U.S.-Asia Law Institute and invitation for his wife and children to join him.

Now we wait and see.  The United States has approved Chen’s visa application and just yesterday he applied for his Chinese passport.  Although the Chinese government could renege on the deal, that looks increasingly less likely and ultimately not in their best interest.  It’s never a satisfying moment when one of your citizens essentially seeks protection from a foreign government for human rights abuses, but on some level, the Chinese government is likely happy that Chen, who has long been a rabble rouser and a cause célèbre for other Chinese rights defenders and foreign friends, is leaving the country.  Unfortunately for Chen and his family, he will likely never be able to return to his home country.

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By Elizabeth M. Lynch, October 10, 2011

Over at the US-Asia Law Institute’s blog, research fellow, Jeremy Daum has just published a thought provoking article on the Zhang Guoxi case, the first case to publicly – and perhaps most effectively – use China’s exclusionary rule to exclude evidence that was obtained through torture.

In June 2010, China surprised the world by issuing detailed rules on the use of evidence obtained through torture, essentially excluding it as the basis of conviction when the prosecutor could not show that the evidence was obtained legally and without torture.  China Law & Policy blogged about these new rules here and here.

On paper, the new rules provided hope that the police would reign in their ardent use of torture as a means to obtain a conviction.  But in practice, it appeared that the courts, the enforcers of the new exclusionary rules, had little institutional power to control the more powerful police and prosecutor’s offices.  This fear appeared to be realized when the Supreme People’s Court, a few weeks after the Rules’ adoption, chose not to apply them to overturn a death sentence that appeared to be based on a confession obtained through torture.

But as Daum describes below, a trial court in Ningbo has done what scholars thought was impossible – use the exclusionary rules to deny the use of a suspect’s confession where the prosecutor was unable to, or more aptly was too arrogant to provide evidence that the confession was obtained legally.

The Ningbo trial court did not just stop there.  Instead, the trial court issued a clear and transparent opinion on its decision, reflecting its reliance on the letter of the law concerning the new exclusionary rules. As Daum notes below, in China such an opinion from a trial court is rare making Daum wonder, what impact will the appellate court’s decision (the decision has now been appealed to the intermediary court), and the public’s response, have on the Chinese government’s impending adoption of an amended Criminal Procedure Law (“CPL”).

Below is an excerpt of Daum’s interesting article with a link to the full version.

 

Zhang Guoxi Case: a simple case of bribery?

Excluded : The Zhang Guoxi Case

By Jeremy Daum
Research Fellow, US-Asia Law Institute, NYU Law School

Normally, ‘dog bites man’ is not news, but in the generally bleak climate for reform that pervades China’s criminal justice system, a story of “judge upholds law” has gained some traction in the Chinese media. As Chinese and foreign experts scrambled to absorb new draft revisions to China’s Criminal Procedure Law (CPL) in time to offer their opinions during the single month allotted for public comment, another less publicized story was also making waves in the legal community. A trial court in Ningbo has been hailed as the first to give full force to rules on the exclusion of illegally gathered evidence jointly introduced slightly over a year ago by China’s Supreme People’s Court, Supreme People’s Procuratorate, Ministry of Justice and top law enforcement agencies (“the Rules”), by excluding a confession and allowing a defendant to go unpunished…

…The case itself is remarkable only in its mundanity.  It is an ordinary bribery case in which Zhang Guoxi (章国锡), an official from a local construction administration project, was accused of abusing his office to accept seventy-six thousand yuan (about $12,000 U.S.) in graft over four years. The mistreatment that Zhang allegedly received at the hands of interrogators is also not the sort of blood-curdling horror story that “shocks the conscience” or that one might expect would provoke a judge to take a stance against his investigative and prosecutorial colleagues, risking his career and reputation….

….What is exceptional about the case is instead the trial court’s insistence that prosecutors and investigators follow both the spirit and the letter of the law.

Read the full article here.