Jerome A. Cohen. China and Economic Espionage. SCMP (South China Morning Post)

July 21, 2009.

“I hope that one of the messages that goes out is if someone is going to steal proprietary information and steal that information for the benefit of another country, they are going to be charged in this country and face very serious punishment for doing so.”

These might have been the words of the Chinese Ministry of Foreign Affairs’ spokesperson, justifying the detention of four Rio Tinto employees under investigation for stealing state secrets and commercial bribery. Yet they were uttered last week by an American prosecutor, Ivy Wang, following the federal conviction of Dongfan “Greg” Chung, a former Chinese national, for economic espionage relating to the U.S. space program.

Every nation has the right to defend itself against theft of state secrets and commercial bribery. No one should dispute China’s right to do so. Then why should Australia’s Prime Minister Kevin Rudd, himself a China specialist, take the extraordinary step of publicly warning the Chinese Government that the world is watching how it handles the case of Rio Tinto’s Stern Hu, a Chinese-born Australian, and his three Chinese co-workers? To paraphrase former President Clinton, “It’s the procedure, stupid”.

Greg Chung had a fair opportunity to defend himself. He was free on bail for the entire seventeen months between arrest and conviction. He had unmonitored, unrestricted access to lawyers of his choice, who were able to conduct their own investigation while the police completed theirs.

Chung had the right to choose whether he would be tried by a jury or, as he preferred, by a judge whose life tenure guaranteed his independence. He also had the right to a public trial, open to the media and others who could evaluate the fairness of the proceedings.

Witnesses against him were required to testify in court, where they could be cross-examined to test their honesty and accuracy. The same judge who heard the witnesses decided the case. His decision carefully analyzed all legal and factual questions and was immediately posted on the Internet for public scrutiny.

Stern Hu should be so lucky. He is detained incommunicado. Bail is seldom granted. He is not allowed to see a lawyer because the police say his case involves “state secrets”. No prosecutor, lawyer or court can challenge that determination. This enables police to exclude defense counsel until their investigation concludes, usually many months later. By that time there is little a lawyer can do.

Hu’s trial will be closed to the public. His family will be excluded, and perhaps even Australian government representatives, although the Sino-Australian consular agreement authorizes their presence at trials. The three judges who will preside can be removed from office at any time. Moreover, they can only recommend a decision to their court superiors, who in turn will be instructed by higher judicial and Communist Party officials.

Witnesses are unlikely to testify. Usually their pre-trial statements are simply read to the court. Chinese law authorizes cross-examination, but one cannot cross-examine a piece of paper.

“State secret” cases present unique obstacles. The National State Secrets Bureau (NSSB) has ultimate power to decide what constitutes a “state secret.”  Defendant cannot question its decision either at trial or elsewhere. Moreover, the NSSB decision is often made only after his detention. This means that, when he acquired the information, it may not have been marked as restricted, which complicates the issue whether he should have known that it was.

Incongruously, the Criminal Law equally punishes providing a foreign organization with “intelligence.” Yet “intelligence” is even broader than “state secret”, and the definition imposed by the Supreme People’s Court is hopelessly vague. Chinese have been convicted of sending abroad “intelligence” that has been published in China!

Lawyers who prove too vigorous at trial — for example, by challenging the scope of “intelligence” or claiming that a detention house confession was coerced — risk prosecution themselves.

Is it any wonder that U.S. Secretary of Commerce Gary Locke, a Chinese-American, reinforced Prime Minister Rudd’s warning by calling on the Chinese Government to “ensure transparency and fair treatment for the staff of foreign companies”? China’s current efforts to revise its state secrets legislation should include urgently-needed procedural reforms as well as substantive clarifications.

An edited version of this text appeared in in English in the South China Morning Post (Hong Kong) on July 21, 2009.