Jerome A. Cohen. Taiwan’s Criminal Defense Lawyers And China’s. SCMP (South China Morning Post)

November 26, 2009

When Chinese law enforcement officials detain a visitor, his family faces excruciating decisions. This is especially true when the detainee is either a foreigner who used to be a Chinese citizen or a Chinese residing abroad. If the case involves “state secrets”, it is more complex.

The hardest decisions concern publicity. Should the case be made public? When? The wife of Rio Tinto mining company’s Stern Hu, a naturalized Australian detained in China since July, initially on suspicion of stealing “state secrets”, was spared this dilemma. His detention was immediately reported by journalists focused on Sino-Australian iron ore negotiations.

The wife of naturalized American petroleum geologist Feng Xue wasn’t so lucky. Until the Associated Press revealed her husband’s detention last week, Nan Kang, also a naturalized American, had been agonizing for two years over whether to go public. Her instincts told her to handle the problem “the Chinese way”, trying to quietly mobilize assistance for her husband’s release from the United States Government, a Beijing lawyer and whatever connections she could muster. Until recently, her husband’s former employer, the American company IHS Energy, ignored its responsibility for the case.

Ms. Kang worried that going public might worsen her husband’s plight by angering PRC officials and might even harm the couple’s parents still living in China. Going public would also mean telling her young children that their father, a respected University of Chicago Ph.D, was being investigated on criminal charges — “secretly gathering intelligence and state secrets,” i.e., oil data, and “providing it to a foreign organization”, i.e., his employer.

Ms. Kang could not discuss her worries with her husband. China prohibits family visits with detained suspects. Fortunately, once the Chinese Government belatedly complied with its obligation to give notice of his detention under the US-PRC Consular Agreement, American Embassy consuls began to make monthly visits to Xue in accordance with the Agreement.

Xue saw things differently from his wife. Certain of his innocence and angered by the torture to which his interrogators had subjected him, he showed consular officials cigarette burns on his arms and authorized them to contact the media. Yet the Embassy, which has otherwise sought to protect Xue against vague charges enveloped in almost total secrecy, was reluctant to override the understandable concerns of his wife.

In June, however, following a human rights lecture that I gave to Embassy personnel, I was asked to discuss the case with his wife. She had already been advised to go public by Xue’s former mentor and co-author, Chicago professor David Rowley. My view was similar. Recently, after inconclusive trial hearings, John Kamm, the dynamic American human rights advocate, was informed of the case. Satisfied that Xue had been tortured and convinced that Xue wanted his ordeal made known, Kamm urged the AP to investigate.

Under this accumulating pressure, Ms. Kang was becoming distraught. She was reluctant to interfere with China’s judicial process, hopeful that U.S.efforts to secure Xue’s release before and during President Obama’s visit to China might succeed and yet increasingly disillusioned with quiet diplomacy. The AP’s Beijing chief, Charles Hutzler, resolved her dilemma by breaking the story after weighing the ethical issues involved.

Xue’s fate is still in doubt, and the case has dragged on. The court’s repeated dissatisfaction with prosecution evidence suggests that a not guilty verdict would be appropriate. Yet acquittals are rare in China, since the Party/State does not want to “lose face”, and officials fear damage suits and administrative sanctions for violating defendant’s rights. Conviction of a lesser offense and sentence to time already served would be one type of Chinese compromise.

Whatever the outcome, it will be difficult to determine the impact of publicity compared to other factors, but Hutzler’s inquiries may have stimulated President Obama’s recent, unexpected mention of the case to President Hu Jintao.

Feng Xue reportedly believed that publicity in the period before formal arrest might exert the strongest influence. This proved true in the subsequent Rio Tinto case when outcry over the initial “state secrets” accusation led to Stern Hu’s formal arrest on a lesser, “commercial secrets” charge.

Yet most Chinese prefer to keep matters private in the earliest stage, hoping that quiet diplomacy might prevent formal arrest. After arrest, many become persuaded by statistics that show arrest ordinarily leads to indictment, conviction and prison unless public pressure is applied. Post-arrest publicity helped to release Dickinson College librarian Song Yongyi, a U.S. permanent resident, in 2000, when China needed U.S. Congressional approval to join the WTO.

One lesson already seems clear. Consular officials, or a lawyer if one is allowed, should honor a detainee’s demand to go public. It is his decision, not his family’s. Indeed, this would relieve his family of a painful burden and be likely to help his case. It would also help educate the world about Chinese justice.

An edited version of this text will appear in Chinese in the China Times (Taiwan) on November 26, 2009 (繁体中文),and in English, under the title “Out in the Open” in the South China Morning Post (Hong Kong).