Non-release “release” of human rights activists and their confessions

Photo: Wang Yu and her son Bao Zhuoxuan, Photo courtesy of Bao Zhuoxuan

Chinese human rights lawyer Wang Yu has been “released” on bail, as reported in today’s Wall Street Journal. Wang Yu was seen in a video making a confession. “I also wrote inappropriate things online and accepted interviews with foreign media. For this, I feel ashamed and express remorse,” She said. As to the inaugural American Bar Association (ABA) International Human Rights Award given to her, she was quoted as saying she did not “acknowledge, recognize or accept” the award.

It’s obviously too soon to analyze with confidence but it sounds like another of the curious deals that are being struck between PRC oppressors and courageous but hapless human rights victims, deals involving the welfare of spouses, children, parents, lovers etc as well as the target whose captivity and torture are at stake.

This is all so sad, not only for the oppressed, broken victims but also for China and its standing in the world. These pathetic, ludicrous “confessions” and charges are obviously designed for a Chinese audience, but tens of millions of Chinese are not foolish enough to believe these farces.

Yet the damage to China that these torture-inspired fairy tales inflict abroad is incalculable. Does the Chinese leadership not see this? Xi Jinping is holding himself and the country up to increasing worldwide ridicule. This is the Chinese Communist Party’s distinctive contribution to the playbook of international Communist abuse of the legal system and promises to rank in notoriety with Stalin’s infamous purge trials, although so far no Chinese victims have been formally executed!

I’d like to think that if the ABA, in its new vision, could honor every detained human rights lawyer in China, it could guarantee them some minimal concession from their oppressors, but we know that international prizes can only be helpful in a few cases and certainly cannot free even Nobel Prize winners!

I don’t know what this foretells re the ABA’s work in China. Certainly it adds fuel to the fire of the continuing debate over what the appropriate ABA response to the vicious repression of human rights lawyers should be. If this case results in the termination of the ABA’s praiseworthy activities in China, it would be another classic instance of what Beijing propagandists like to call “dropping a rock on your own foot”.

Support silent supporters of the rule of law in China

Human Rights lawyer Teng Biao, Photo credit: May Tse/South China Morning Post

Here is a stimulating op-ed by Chinese law scholar and activist Teng Biao. I hope US funders, public and private, will take it into account. I believe, after giving due regard to Teng Biao’s admonition against funding the oppressors, funders should continue to support those non-Chinese institutions that do not pull their punches in studying and reporting on legal developments in China while also continuing to conduct legal and human rights education of not only Chinese lawyers but also Chinese judges, prosecutors, justice officials and even police.

The point that needs greater recognition here is that hundreds of thousands of legal specialists in China are extremely unhappy with Xi Jinping’s oppressive policies, policies that they feel forced to live with and practice while awaiting a less repressive regime and the renewal of true legal reforms. At a time when they are being ordered to reject universal human rights values, we should not abandon these silent supporters of the rule of law, but should keep up contacts and professional nourishment that will sustain them until a better day dawns.

Years ago, the late Senator Arlen Specter asked me to emphasize this point in a letter to then House Majority Leader Nancy Pelosi, recalling the importance of foreign funded legal education and training given to officials of the Chiang Kaishek dictatorship in Taiwan and the Park Choon-Hee dictatorship in South Korea. Those efforts paid rich dividends when political circumstances permitted legal liberalization. Indeed, they helped fuel legal officials’ opposition to dictatorship, as occurred when Taiwan prosecutors and judges rebelled against their masters and successfully established their independence of political interference.

The U.S. Congress, other countries and private foundations should also fund basic research on the many complex aspects of the evolving Chinese legal system, not only education and training in China but also efforts to enhance foreign understanding of both contemporary events and the country’s political-legal culture.

In addition, there is a great need to fund the support and activities of the increasing number of Chinese refugee lawyers, law professors and human rights activists who, like Professor Teng, are turning up outside China as a result of the terrible situation they confront in China.

Finally, in fairness to the America Bar Association, we should note that, after long internal debate spawned by external criticisms, it has decided to establish an international human rights award and next week at its annual meeting in San Francisco this new award will be bestowed, in absentia, on another of China’s courageous human rights lawyers, Ms. WANG Yu, who, sadly, is jailed in China and awaiting criminal conviction and a long prison sentence. 

More Questions on the American Bar Association Story: Who in Washington Ordered the ABA’s Book Publishing Unit to Rescind the Offer to Teng Biao?

By Jerome A. Cohen

The report by Isaac Stone Fish in Foreign Policy, “Leaked Email: ABA Cancels Book for Fear of ‘Upsetting the Chinese Government’,” which I wrote about earlier this week here, has finally stimulated the beginnings of an ABA response.

An email from Jen Leung, the Country Director of the American Bar Association Rule of Law Initiative China Program, on the China Law Listserv makes it clear that the Beijing office of the ABA’s Rule of Law Initiative (ROLI) had no knowledge that some people in Washington headquarters, where ROLI’s central office is located, reportedly influenced the ABA’s book arm to rescind its offer to Teng Biao. The email implies that ROLI’s central office in Washington, which directs its Beijing office and has fought vigorously and successfully to maintain the valuable work its Beijing staff is doing, also was unaware of the ABA’s book offer to Teng.

Presumably this will be confirmed by either the ABA’s internal investigation or further journalistic efforts. Whatever the outcome of that specific inquiry, however, it is clear that, despite the ABA’s belated and pathetic attempt to deny the reason its employee originally gave for its embarrassing change of mind, there is nothing fictional about the Foreign Policy story. What we don’t yet know is who in Washington ordered the book publishing unit to rescind the offer.

To its credit, another wing of the ABA, the ABA Journal, has published three articles reporting on the Chinese Government’s current repression of lawyers, and, under the leadership of the highly respected sociologist of law Terry Halliday, the American Bar Foundation has done important research on the plight of those Chinese lawyers courageous enough to try to defend human rights. So perhaps there are advantages as well as disadvantages to the ABA’s lack of efficiency regarding its China policy!

It will be interesting to see whether this important fuss leads to a debate during the annual meeting of the ABA House of Delegates this summer. Surely some outstanding ABA members would like to take part.

China and the American Bar Association – Another Sad Story

By Jerome A, Cohen

Human Rights lawyer Teng Biao, Photo credit: May Tse/South China Morning Post

The report by Isaac Stone Fish in Foreign Policy, “Leaked Email: ABA Cancels Book for Fear of ‘Upsetting the Chinese Government’,” stirred up a lot of discussion over the weekend. The American Bar Association’s 2015 reversal of its initial decision to publish a book by the famous Chinese rights scholar/activist Teng Biao was allegedly market-driven, the ABA belatedly claimed, and not based on fear of China as originally explained by the ABA employee in charge of book negotiations.

Did the ABA tell the truth in seeking to explain its reversal of the original decision to publish? The fable from the ABA reminds me of the stories the PRC has recently put out to try to explain China’s kidnappings of certain Hong Kong publishers. Reasonable people could argue about the ABA’s discouragingly timid statement last August about the oppression of China’s human rights lawyers, which I wrote about here, but what can one say about the Teng Biao incident other than that it is a pathetic chapter in the history of the world’s leading bar association?

Commissioning a book by ex-professor and lawyer Teng – a genuine hero of the legal profession now unable to return to China, accepting his outline for the book’s publication and then changing its mind out of fear of offending Beijing was surely bad enough. But then to belatedly seek to retract an apparently truthful explanation of its bad judgment by spinning a yarn that is an insult to our intelligence is contrary to the ethics and integrity for which the ABA purports to stand. Heads should roll over this incident, but not the head of the whistle-blower! 

As to the real reason – fear that China might terminate the ABA’s valuable law reform work in Beijing, we heard it given last August in defense of the initial insistence of ABA’s Rule of Law Initiative (ROLI) that there be no protest whatever and, under fire, that any protest be a timid one. This was months after the reversal over Teng’s book. I don’t think any of us who opposed ROLI’s view last August knew about the book reversal and the ABA did not disclose it. If it had done so, this would have added significant fuel to the fire against its position.

Within the ABA, ROLI impressed me as a tough, no-holds-barred bureaucratic infighter against other ABA units that challenged its view, such as the Human Rights committee. For example, I was told that, when, as the internal debate within ABA over whether to make a statement raged, ROLI scheduled a meeting with the State Department on behalf of the ABA, it did not notify the ABA human rights people, thereby precluding them from being included in the ABA delegation to the meeting.

The ABA is a huge, unwieldy organization that desperately needs – at a minimum – better coordination regarding China so that its various entities know what each other is up to and can develop a coherent, respected policy toward a major country that will continue to present many challenges. We have not heard the last of this story and perhaps the ABA head office will issue a clarification in the next few days. Surely the incoming president should give this matter a high priority.

Since we have been discussing disclosure, I should mention what many know – that Teng, since last summer, is no longer at Harvard but has been a Visiting Scholar at our NYU US-Asia Law Institute.  I suppose I should also disclose that in 1966, I think it was, I published a letter in the NY Times, taking the ABA House of Delegates to task for uncritically endorsing American military actions in Vietnam as consistent with international law.

The ABA's statement about the crackdown on lawyers in China

The recent crackdown by the Chinese government on human rights lawyers has raised the question of what is an appropriate response by foreign organizations working on the rule of law in China. The statement released by the President of the American Bar Association on August 4 has further prompted such discussion as well as frustration of those who want to see a stronger statement of the ABA in support of China’s beleaguered lawyers, as in this op-ed by Robert Precht in the Washington Post.

Below are some thoughts of Professor Jerome Cohen about the ABA statement and the broader question of what considerations foreign organizations, including bar associations, universities and NGOs, have when they think about how to respond to the recent challenge.

Jerome A. Cohen

August 4, 2015

First of all, I am impressed by how little interest has been expressed in the ABA statement. Perhaps it’s the mid-summer doldrums and holiday schedules, perhaps many people feel what the ABA says is of little significance in influencing the PRC to cease its attack on human rights lawyers, and perhaps there is little appreciation of the importance of human rights lawyers and the Party’s attack on them.

The ABA statement does not meet my standard for what would have been appropriate. I had helped draft a stronger statement, yet one that also emphasized the ABA’s hard work over the past 17 years and the importance of continuing, indeed expanding this effort with the support of some of the other lawyers’ organizations that condemned the PRC purge. Some of the language of our draft is in the compromise final draft decided upon by the ABA president.   I think the final statement is adequate since it shows the ABA is not happy with what the PRC is doing, which is a lot more than the original draft produced by the staff of its Rule of Law Initiative did. So I think the statement is helpful, since it adds to the protest the voice – however timid – of one of the world’s greatest bar organizations. Of course, even the outpouring of protest is not likely to be helpful in the sense of persuading XJP to call off the hounds, but it surely is helpful in supporting the victims and their colleagues and families and the hundreds of thousands of Chinese legal officials, judges, prosecutors, lawyers, legislators, law professors, journalists and activists who have been coerced into suffering this abomination in guilty silence. It is also helpful in letting the American legal profession and general public know more about reality in China today.

ABA's logo on its website: americanbar.org

It would be painting too quickly and with too broad a brush to say the mild ABA response is a result of meretricious, mercenary motives on the part of law firms, universities, or NGOs.  Individual American law firms with offices in China or otherwise engaged in China practice have never shown the slightest interest in human rights problems. That surely is for business reasons. Yet bar associations have often been active regarding PRC transgressions as well as those taking place in many other countries. I am glad to say the NY City Bar has in this case, as in many others, made its condemnation loud and clear, n Chinese as well as English.  The Hong Kong Bar Association, whose opinions really carry some weight in China, is terrific in this respect.

The situation with universities has its own characteristics. Universities and their centers and institutes seldom go on record as institutions condemning Chinese human rights violations, but many individual faculty members and research scholars do express themselves even while many keep silent for their own good reasons. I do not think that the failure of universities and centers to speak out can generally be attributed to concerns over loss of money, although some might suffer financial consequences from doing so. I think there are other explanations readily available, some reflecting worthy considerations and some not (does visa denial constitute primarily a monetary concern?).

NGOS also need careful analysis. Human rights NGOs that cannot set up shop in China have no hostages to fortune. Those like the ABA that have labored long and hard in China, with some staff devoting their lives to this kind of work, have a lot to lose if their protests lead to their ouster and the closing of their office. That was the principal articulated consideration motivating those within the ABA who preferred no statement or one that would have been ludicrous in the eyes of the world. Of course, one can say that their view too is based on money since their jobs and funding could be cut off by a hostile PRC reaction, but I think that a genuine zeal for law reform and a belief that their efforts have already produced tangible progress and will in the long run bear greater fruit was their primary motivation. Concern was also expressed that a strong statement might lead the PRC to impose sanctions against the persons of their American and especially Chinese staff in Beijing, an idea that seemed to carry weight with some within the ABA who know little about China.

So ABA leaders were called on to balance conflicting considerations, essentially to balance the speculative consequences of a strong statement against the less speculative consequences of failing to meet the challenge, including the ongoing but impossible to stop attack on China’s human rights lawyers and the damage to ABA’s reputation. Hence the compromise. Many ABA lawyers were undoubtedly unhappy with the outcome, judging by their words and votes during various group discussions. I know nothing about ABA practices and procedures but what I witnessed from afar (I did my pro bono consulting by phone, skype and email from the soothing beaches of Cape Cod!) made me think a bit of law reform is overdue within the organization!

A SEPTEMBER 7 POST-SCRIPT: The ABA’s dilemma has surely not ended. Public criticism has begun to rise at summer’s end. Some within the organization are properly calling for further consideration in a special meeting. There is already an effort under way to persuade the ABA to seek to add to the agenda of its long-scheduled November conference with Communist Party-controlled Chinese lawyers a discussion of the current repression of human rights, public interest and criminal defense lawyers.