Jerome A. Cohen. How China Handles “State Secret” Prosecutions: Xue Feng’s Case . SCMP (South China Morning Post)

July 21, 2010

Whether in the United States, China or elsewhere, the struggle for fairness in the administration of criminal justice is never-ending. The challenge is especially daunting when prosecuting “state secrets” cases. China’s July 5 sentencing of naturalized American citizen Xue Feng to eight years imprisonment for helping his American employer purchase a commercial database on Chinese oil resources is the latest example of how not to meet that challenge.

Xue was convicted of “gathering intelligence” and “unlawfully sending abroad state secrets.” Since it was first publicly revealed in November 2009, the case, which has just been appealed,  has unsettled not only the international business community but also Sino-American relations. During his China visit, President Obama specifically mentioned it to President Hu Jintao.

Xue, a University of Chicago Ph.D in geology, disappeared in Beijing on November 20, 2007. Three weeks later, after two U.S. diplomatic notes, China’s Ministry of Foreign Affairs admitted that Xue was in the custody of the Ministry of State Security (MSS), an institution modelled on the Soviet KGB.  MSS was subjecting Xue to “residential surveillance”, which sounds like the “house arrest” that China’s Criminal Procedure Law (CPL) authorizes,  but was actually illegal incommunicado detention in a secret facility.

The failure of the Chinese government to notify the U.S. of Xue’s detention within four days violated the US-China Consular Agreement. This denied him his rights under the agreement to promptly meet American officials and have them arrange defense counsel. Not until the 32nd day of Xue’s detention was an American official allowed to see him. This unlawful delay, not unusual in such cases, gave MSS exclusive, round-the-clock access to Xue for the crucial first month of investigation – every interrogator’s dream.

The American consul who finally did meet him told Xue’s wife that monitors had not allowed them to discuss the case and that Xue seemed “in bad shape.” No wonder. In blatant violation of Chinese law, he had already been tortured. Xue managed to show subsequent consuls cigarette burns on his arm that his captors had inflicted when he refused to confess. He also said that the secret police ultimately coerced him into signing false documents.

On February 4, 2008, Xue was transferred to a Beijing State Security Bureau detention house. Yet in violation of the CPL, he was not formally arrested until April 11, 2008. Although his wife retained an experienced defense lawyer in May 2008, the MSS prohibited the lawyer from meeting Xue until December, after it had completed its investigation and sent the case to prosecutors. Thus, for over a year, Xue was denied access to counsel.

Throughout 2008, Xue was held in substandard, overcrowded conditions and regularly interrogated. In May 2008, when he refused to sign an investigation report, one investigator threw a glass ashtray at his head, injuring Xue when the glass shattered. Psychological torture intensified. To release the stress, Xue often openly howled until restrained.

Prosecutors were dissatisfied with the case developed by MSS and twice sent it back for further investigation. They took an extraordinary six months before indicting Xue and three Chinese associates in May 2009.

Beijing’s No.1 Intermediate Court had even more difficulty with the evidence than the prosecutors. After holding a two-day trial in July 2009, it could not reach a decision.  Because the court apparently found their evidence of guilt unpersuasive, prosecutors requested extending the trial twice, their legal maximum, to produce supplemental evidence. The court held only a brief hearing at year’s end. As winter turned to spring, it ran out of legal grounds for further delays and no longer attempted explanation. Perhaps it was awaiting instruction from the Communist Party leadership, as is common in sensitive cases.

By international standards, the trial was a farce. It was closed not only to the public and Xue’s family but also to American officials, in violation of both the consular agreement and Chinese law. The defense was not allowed to summon witnesses. Prosecution witnesses’ pre-trial statements were simply read out in court. There was no opportunity to cross-examine secret police about Xue’s claims of torture and coercion. Nor could defense counsel question representatives of the National State Secrets Bureau about its vague definitions of “secrets” or “intelligence” and why the oil database that Xue had obtained for his company had not been declared protected information prior to his detention. And there was no meaningful way to clarify the line between common commercial information and state secrets.

When the court finally rendered its decision — one year after trial began — its lengthy opinion cast little light on these issues. Most interesting was what the opinion did not discuss. It did not explain why the charges against Xue, who has never been charged with spying for the U.S. government but only facilitated his company’s purchase of industry data, were not reduced to illegally obtaining commercial secrets. That would have been consistent with the treatment of Australia’s Stern Hu in the similar but much more publicized Rio Tinto case decided several months ago. Nor did the opinion explain why IHS Energy, the oil information company that employed Xue at the time of the alleged offense, was not prosecuted,  even though it had purchased the database, and reportedly continues to offer the data as part of its commercial information services.  Like Rio Tinto, IHS emerged unscathed.

Will Xue Feng’s appeal be successful? Such appeals rarely are. But, in addition to other serious issues raised, a recently-promulgated guideline calling for the exclusion of illegally-obtained criminal evidence offers the appellate court an opportunity to reverse the conviction. Will the Communist Party allow independent review of the case? Otherwise it may be a long time before Xue can rejoin his long-suffering family and this festering wound to international business and Sino-American relations can heal.

This article appeared in the South China Morning Post on July 21, 2010 under the title, “Justice Denied.”  It appeared in Chinese in the China Times on July 22, 2010. ( 繁体中文

Professor Jerome A. Cohen is co-director of NYU School of Law’s US-Asia Law Institute and adjunct senior fellow for Asia at the Council on Foreign Relations. He serves without compensation as an advisor to Xue Feng’s wife. See also www,