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CURRENT CONDITIONS FOR HUMAN RIGHTS 

DEFENDERS AND LAWYERS IN CHINA, AND 

IMPLICATIONS FOR U.S. POLICY 

ROUNDTABLE 

BEFORE THE

CONGRESSIONAL-EXECUTIVE 

COMMISSION ON CHINA 

ONE HUNDRED TWELFTH CONGRESS 

FIRST SESSION 

JUNE 23, 2011 

Printed for the use of the Congressional-Executive Commission on China 

( 

Available via the World Wide Web: http://www.cecc.gov 

CONGRESSIONAL-EXECUTIVE COMMISSION ON CHINA 

LEGISLATIVE BRANCH COMMISSIONERS 

House Senate 

TO BE APPOINTED SHERROD BROWN, Ohio, Cochairman 

MAX BAUCUS, Montana 

CARL LEVIN, Michigan 

DIANNE FEINSTEIN, California 

JEFF MERKLEY, Oregon 

SUSAN COLLINS, Maine 

JAMES RISCH, Idaho 

EXECUTIVE BRANCH COMMISSIONERS 

SETH DAVID HARRIS, Department of Labor 

MARIA OTERO, Department of State 

FRANCISCO J. SANCHEZ, Department of Commerce 

KURT M. CAMPBELL, Department of State 

NISHA DESAI BISWAL, U.S. Agency for International Development 

DOUGLAS GROB, Staff Director (Cochairman) 

(II) 

(III) 

C O N T E N T S 

Page 

Opening statement of Hon. Sherrod Brown, a U.S. Senator from Ohio, Cochairman, Congressional-Executive Commission on China .............................. 1 

Wickeri, Elisabeth, Executive Director and Adjunct Professor of Law, Leitner 

Center for International Law and Justice, Fordham Law School; and Executive Director, Committee To Support Chinese Lawyers ................................... 3 

Li, Xiaorong, Independent Scholar ......................................................................... 6 

Cook, Sarah, Asia Research Analyst and Assistant Editor, Freedom on the 

Net, Freedom House ............................................................................................ 7 

Lewis, Margaret K., Associate Professor of Law, Seton Hall Law School .......... 10 

APPENDIX 

PREPARED STATEMENTS

Wickeri, Elisabeth ................................................................................................... 28 

Li, Xiaorong .............................................................................................................. 29 

Cook, Sarah .............................................................................................................. 41 

Lewis, Margaret K ................................................................................................... 44 

(1) 

CURRENT CONDITIONS FOR HUMAN RIGHTS 

DEFENDERS AND LAWYERS IN CHINA, AND 

IMPLICATIONS FOR U.S. POLICY 

THURSDAY, JUNE 23, 2011 

CONGRESSIONAL-EXECUTIVE

COMMISSION ON CHINA, 

Washington, DC. 

The roundtable was convened, pursuant to notice, at 2:13 p.m., 

in room 328A, Russell Senate Office Building, Senator Sherrod 

Brown, Cochairman, presiding. 

Also present: Senator Jeff Merkley and Nisha Desai Biswal. 

OPENING STATEMENT OF HON. SHERROD BROWN, A U.S. SENATOR FROM OHIO, COCHAIRMAN, CONGRESSIONAL-EXECUTIVE COMMISSION ON CHINA 

Senator BROWN. Thank you for joining us today. We really appreciate the attendance of all of you. It’s my pleasure to welcome everyone to this important roundtable on ‘‘Current Conditions for 

Human Rights Defenders and Lawyers in China, and Implications 

for U.S. Policy.’’ 

Commissioner Merkley will be here shortly, I believe. I’m not 

sure that Nisha Desai Biswal is here yet. She is the Assistant Administrator for Asia at the U.S. Agency for International Development [USAID]. I believe she will join us, too. 

I’ve been a member of the Congressional-Executive Commission 

on China since 2002 after the House and Senate passed permanent 

normal trade relations [PNTR] with China. The Commission has 

done excellent work in raising awareness about human rights and 

the rule of law in the People’s Republic of China. I was honored 

to be appointed cochair of this Commission in early May. 

The Commission monitors developments in China closely and 

creates records of cases of political imprisonment in China. This 

year alone the Commission has created over 400 records for the 

Commission’s Political Prisoner Database. 

In addition, in 2011, the Commission has already published 39 

reports on human rights and the rule of law in China, and is now 

preparing its annual report due out in October. 

As cochair, I am privileged to host this roundtable on such an 

important and timely issue. There are a number of Commission vacancies. I hope that they will be filled soon. In the meantime, I 

want to ensure anyone that is interested in the Commission’s work, 

that it will continue and that the outstanding staff has continued 

2 

this important mission. When all the Commissioner slots are filled, 

we will begin the robust agenda of hearings and roundtables. 

Before we get started, I’d like to thank Doug Grob behind me, 

the Staff Director, who will be leaving the Commission, for his tremendous service to our country. I look forward to working with him 

in his new role. Thank you for all that you’ve done with this Commission. 

I’d also like to thank Lawrence Liu who, when I have to leave 

in about 30 or 40 minutes, will chair this roundtable. Many of you 

know him very well, having served as Acting Staff Director for the 

foreseeable future. 

Also, I wanted to introduce Wei Jingsheng, who walked the halls 

of Congress with me and others in 1999 and 2000 in opposition to 

the congressional vote that took place, and I appreciate his courage, two decades of courage, that he showed in China and his activism since in Canada and in our country, and I’m so appreciative 

that he has joined us. 

Our work continues. This roundtable is not only timely, but critical to the U.S.-China relationship. In February of this year the 

Chinese Government launched one of the harshest political crackdowns in years. Just in the last four months, hundreds of citizens 

have been interrogated, placed under illegal house arrest, sent to 

labor camps, or detained. More disturbing has been the so-called 

disappearance of more than 20 Chinese citizens. Officials have simply taken them away without saying why or where they’re being 

held. Detained outside of the legal process, they obviously face the 

risk of torture. 

Those targeted include many of China’s most prominent rights 

advocates, lawyers, whistleblowers. They include the well-known 

artist, Ai Weiwei. Ai has advocated on behalf of schoolchildren 

killed in a devastating earthquake. Chinese police detained Ai in 

April. He was just released on bail this week. We know that’s not 

really real release and we still are concerned about him and still 

not happy with what has happened to him, even with being released on bail. 

The government has also detained people like the human rights 

lawyer Teng Biao. Teng is a well-known law professor at one of 

China’s top universities. When not teaching, he is a tireless advocate for some of China’s most vulnerable. He has helped defend 

poor, indigent, criminal suspects and has advocated for enslaved 

child workers. In February, Teng disappeared for months and only 

resurfaced recently. 

In any modern society, brave and noble citizens such as Ai and 

Teng would be celebrated. Why does the Chinese Government, we 

ask, consider them enemies? What does this crackdown mean for 

human rights lawyers and for activists who follow in their footsteps? What role has the Internet and social media played in the 

crackdown? What does the Chinese Government’s disregard of its 

own laws in these cases, a disregard well-documented by this Commission, mean for legal reform and the rule of law in China, and 

how should the United States respond? 

As we begin, I’d like to introduce the other participants in the 

roundtable and ask each of them for their comments, and then 

we’ll begin to do questions and discussion. Let me start with 

3 

USAID’s Nisha Biswal. If you would be willing to start, Nisha, with 

your comments. Are you ready or do you want to wait a minute? 

Okay. Okay. Fair enough. Thanks. Welcome. Good to see you again. 

To my right is Elisabeth Wickeri, who is Executive Director and 

Adjunct Professor of Law at the Leitner Center for International 

Law at Fordham Law School. Professor Wickeri is also a member 

of the Committee to Support Chinese Lawyers, and has published 

numerous articles on human rights and civil society. 

Elisabeth, why don’t you begin. Then I’ll go around the table this 

way and end with you, Nisha. 

Welcome. 

STATEMENT OF ELISABETH WICKERI, EXECUTIVE DIRECTOR 

AND ADJUNCT PROFESSOR OF LAW, LEITNER CENTER FOR 

INTERNATIONAL LAW AND JUSTICE, FORDHAM LAW 

SCHOOL; AND EXECUTIVE DIRECTOR, COMMITTEE TO SUPPORT CHINESE LAWYERS 

Ms. WICKERI. Thank you. Thank you, Mr. Chairman. I am really 

grateful for the opportunity to participate in today’s roundtable and 

for your leadership on this important topic. I’d like to thank you, 

your fellow Commissioners, and the CECC staff for inviting me 

here. 

I’m here today representing the Leitner Center for International 

Law and Justice at Fordham, and specifically the Committee to 

Support Chinese Lawyers, which is an independent nongovernmental organization [NGO] housed at the center. 

The Committee is a group of lawyers from outside of China 

whose mission is to support lawyers in China in their quest to support the rule of law there. We do this through public education, research, advocacy, and outreach. 

Today’s roundtable is extremely timely and important because 

the conditions for rights defenders and human rights lawyers in 

China are in flux. Since February 2011, following online calls for 

a ‘‘Jasmine Revolution,’’ rights defenders and lawyers have been increasingly detained, disappeared, abused, and subject to a range of 

strict methods of surveillance and control—and this even after 

their release. 

In my comments today I would like to, in particular, highlight 

the especially pronounced chilling effect that this suppression has 

caused. I will suggest that individuals that have been most seriously impacted are still in need of public calls for support, and attention to their cases by governments, as well as other actors. 

Concern for human rights defenders and lawyers in China is not 

something we come to anew today. Indeed, on many occasions over 

the past several years we have had cause to voice our concerns 

about the difficult position for these actors in China. For example, 

in the run-up to the Beijing Olympic Games, during important visits to Beijing by dignitaries on sensitive historical dates such as 

June 4, and of course in the wake of the announcement that Liu 

Xiaobo would receive the Nobel Peace Prize, activists would be confined to their homes, brought in for questioning, and barred from 

leaving the country. But these conditions were generally loosened 

following the completion of the sensitive moment. Seasoned rights 

4 

defenders and human rights lawyers, used to these modes of harassment, would generally return to their work upon release. 

However, in the four months since February of this year, the situation has deteriorated significantly, in particular for the human 

rights lawyers who have, among other things, taken on the most 

unpopular criminal defense cases. This deterioration represents a 

marked shift in at least two ways, I think. First, the breadth of the 

crackdown that led to the detention and disappearance of so many 

individuals—as you mentioned, at least 20 disappearances and detentions, many more people harassed and people put under surveillance. 

Second, in the wake of the eventual releases of these individuals, 

there is an eerie silence among lawyers and other defenders who 

had previously remained vocal and outspoken in carrying out their 

work that was admittedly already unpopular with the authorities. 

Even casual meetings for lunch or coffee have become difficult to 

arrange because of the fear of associating with others working in 

the field. This is especially true, of course, for meetings with foreigners. 

The result of these two differences has been a substantial 

chilling effect and a reduction in the space available and people 

willing to carry out human rights and legal advocacy in China. 

The fact that lawyers and rights defenders have come out of detention less willing to return to work tells us a little something 

about their experiences before, during, and after detention. Many 

were simply disappeared as opposed to being formally detained. Reports emerged about serious mistreatment, abuse and torture while 

they were held. 

On release, people have had to sign statements admitting guilt 

or promising to behave. In the aftermath of their detention, they 

and family members have lived under very strict conditions, ranging from constant surveillance to family members being arrested 

with the defender, to young children not being permitted to leave 

home to attend school. 

And as troubling as these stories are, it is the silence among formerly outspoken and energetic lawyers that is especially troubling 

to me and suggests that in the immediate aftermath of this crackdown, legal advocacy and human rights work in China is stalled. 

It has become more difficult in particular to find lawyers who are 

willing to take on sensitive cases, including where lawyers themselves are accused of a crime. 

Shanghai-based lawyer Li Tiantian, who was disappeared on 

February 19 and reemerged on May 24, is one of the few individuals who has spoken out about her experience. She noted on Twitter that ‘‘the kind of fear that you can describe is small, while the 

kind of fear that you can’t speak of is the greatest.’’ 

Lawyers are important, not because they are lawyers, per se, but 

rather because they have a multiplier effect with respect to human 

rights promotion and protection. They play a fundamental role 

within the system, protecting the rights of other civic actors, vulnerable citizens, and activists. Their special role, however, also 

makes them the target of attacks by the authorities. 

Well before February this year, human rights lawyers in China 

faced serious challenges to fulfilling their professional responsibilVerDate Mar 15 2010 13:48 Aug 19, 2011 Jkt 000000 PO 00000 Frm 00008 Fmt 6633 Sfmt 6633 U:\DOCS\67865.TXT DEIDRE
5 

ities through legal and procedural obstacles, intimidation and 

abuse, and extralegal attacks. This treatment of lawyers gives us 

a vital window into what is happening in China today. 

The significance of the fear that Li Tiantian speaks of cannot be 

understated. The role of human rights lawyers does not rest solely 

on whether or not their cases are successful. Indeed, these successes may be few and far between. The importance, rather, is 

based on the possibility of their success when they are able to try. 

So what policy implications emerge from this? I have four preliminary thoughts. First, that more voices, including those from the 

U.S. Government, are needed to call attention to the many individuals that have been targeted in this recent wave of attacks. 

Through this attention they may be supported and provided some 

more space to work. This includes public calls, as well as sustained 

private dialogue with Chinese actors, official and unofficial. 

Second, that international standards promoting the rights and 

freedoms of human rights defenders and lawyers should be promoted and used to demonstrate how lawyers’ rights and others’ 

rights are being curtailed. Specifically, the U.N. Basic Principles on 

the Role of Lawyers, which members of the U.N. General Assembly, including China, adopted without dissent, are useful and can 

also support existing Chinese domestic laws. 

Third, expanding opportunities for the training and exchanges of 

Chinese lawyers with colleagues abroad remains an important avenue and provides space for much-needed dialogue, but these must 

also include Chinese lawyers doing rights defense and other public 

interest work. 

Fourth, as Professor Jerome Cohen, a member and Senior Advisor to our Committee to Support Chinese Lawyers has increasingly 

emphasized, there is a need for foreign lawyers, many of whom 

benefit from doing business in China, to stand up and speak out 

for their Chinese colleagues. 

Finally, I’ll end on what I hope are two somewhat positive notes. 

First, there are some well-connected lawyers and legal scholars 

who have begun to express concern for their marginalized colleagues. These can only benefit from being supported by other expressions of support inside and outside of China. 

Second, I was also happy to see, somewhat hesitantly, that Ai 

Weiwei was released yesterday. An advocate for change, it is troubling that he was detained for so long with so little information 

about his condition. But it is a case that perhaps demonstrates how 

sustained media attention and public calls can have positive results. 

Again, I’d like to thank you for this opportunity and I’m happy 

to answer any questions you and others may have. 

[The prepared statement of Ms. Wickeri appears in the appendix.] 

Senator BROWN. Thank you, Ms. Wickeri. 

Xiaorong Li is an independent scholar who has published numerous articles on topics including human rights and democracy. Since 

1989, she has served as an executive director on the boards of 

human rights organizations which she has co-founded. 

Thank you for joining us. 

6 

STATEMENT OF LI XIAORONG, INDEPENDENT SCHOLAR 

Ms. LI. Thank you. Thank you all. 

The serious backsliding of the Chinese Government’s human 

rights records started before the 2008 Summer Olympics, highlighted with the jailing of activists Hu Jia, Huang Qi, and many 

others; torture and disappearance of lawyers Gao Zhisheng; imprisonment of Nobel Peace Prize Laureate Liu Xiaobo, and the house 

arrest of his wife, both incommunicado; and the house arrest of 

Chen Guangcheng after his release. 

Yesterday’s release of the artist Ai Weiwei on bail, waiting for 

trial, was in the same fashion as his arrest, with total disregard 

of the Chinese law. All this took place in the larger context of 

increasingly severe restrictions on freedom of expression and association, repression against religious and ethnic minorities, and significant roll-back on the rule of law reform. 

Since February, according to the information documented by the 

group Chinese Human Rights Defenders, the Chinese Government 

has criminally detained a total of 49 individuals outside of the 

Tibet and Xinjiang regions. As of today, 9 of them have been formally arrested, 3 sent to reeducation through labor camps, 32 have 

been released, but most of them are not free, out of which 22 have 

been released on bail to wait for trial, while 4 remain in criminal 

detention. 

In addition, one individual is being held in a psychiatric hospital 

and one lawyer remains under residential surveillance in an unknown location. At least 24 individuals are confirmed as having 

been subjected to enforced disappearance, some for as long as 70 

days, and at least 10 of them remain unaccounted for as of today. 

Given the difficulties in collecting and verifying information, 

these numbers are far from being complete. There are unconfirmed 

reports that extremely nervous authorities at the top approved a 

list of thousands of individuals as the targets of the ‘‘Jasmine Revolution’’ crackdown. 

I particularly want to draw your attention to the fact that 

the Chinese Government extensively and ostentatiously used 

extrajudicial tactics, such as enforced disappearance, secret detention, and torture in the current crackdown, in clear violation of the 

International Convention Against Torture, which the Chinese Government signed and ratified in 1988. 

The abuses included beating, use of electric batons on genitals, 

sleep and food deprivation, repeated interrogations on locations for 

up to 20 hours at a time, forcible injections, including injection of 

unknown substances, and forced distressed positions, such as sitting motionless on small stools for many hours at a time, and intimidation on the safety of their families, and so on and so forth. 

These are documented, but we cannot make public who provided 

the information, who specifically underwent which torture treatment because the victims were threatened with severe consequences if they talked about what they went through. 

What impact does this have on U.S. policy toward China? The 

Chinese Government has fought back at criticisms, has threatened 

with economic sanctions of its own. That should be expected, but 

that is not a reason for the U.S. Government to give up public pressure and replace it with closed-door dialogue and strategic partnerVerDate Mar 15 2010 13:48 Aug 19, 2011 Jkt 000000 PO 00000 Frm 00010 Fmt 6633 Sfmt 6633 U:\DOCS\67865.TXT DEIDRE
7 

ship with China. We see very little as to what, if any, concrete 

outcome is achieved through the U.S.-China human rights dialogues. 

Though the Obama Administration has been unusually outspoken about China’s rights abuses since its second year in office, 

the dialogue seems to do more to appease critics of complacency 

than to secure any real change. It is a diversion from the fact that 

nothing of consequence is being accomplished because the Chinese 

Government knows there is nothing to fear from delivering no concrete results. The government even welcomes closed-door dialogues 

because they remove the spotlight from exposing China’s human 

rights abuses. 

The Chinese Government loves to cite the existence or resumption of dialogues as signs of progress on human rights. The Chinese 

Government clearly lacks any political will in this to curtail its violations. Any quiet diplomacy and behind-the-door engagement must 

be coupled with public pressure. Dialogue and cooperation can be 

useful, but only when the partner government shows political willingness to improve. The U.S.-China human rights dialogues must 

be tied to concrete and publicly articulated benchmarks if it is 

going to continue. 

These benchmarks should not be ignored when they prove inconvenient, or get in the way of U.S. economic and strategic interests. 

Substantive international pressure can make a big difference, as 

we see in the release of Ai Weiwei, by exposing or condemning 

abuses, conditioning access to military aid, imposing targeted sanctions on abusive individual officials, and calling for prosecution of 

those responsible, the U.S. Government can increase the cost to the 

Chinese Government for harassing activists and lawyers. 

International pressure can help create space for local activists to 

push the government to reform, and we have been told over and 

over again by those prisoners of conscience released from prison 

that when they knew there was such help from outside and international pressure on their cases, they did feel encouraged to fight 

on and knew that they were not there alone. 

Thank you. 

[The prepared statement of Ms. Li appears in the appendix.] 

Senator BROWN. Thank you, Ms. Li. 

Sarah Cook is the Asia Research Analyst and Assistant Editor 

for Freedom on the Net at Freedom House. She has extensively researched the human rights situation in China and co-edited the 

English translation of a memoir by Gao Zhisheng, the prominent 

rights attorney who remains missing. 

Thanks, Ms. Cook. 

STATEMENT OF SARAH COOK, ASIA RESEARCH ANALYST AND 

ASSISTANT EDITOR, FREEDOM ON THE NET, FREEDOM HOUSE 

Ms. COOK. Thank you very much, Mr. Chairman, and thank you 

very much to the CECC for inviting me here today. 

One of the topics I have been asked to speak about today is the 

Internet dimension of the work of Chinese human rights lawyers 

and the repression that they’ve faced, as well as to reflect on some 

of the underlying dynamics that have contributed to the latest 

crackdown. 

8 

I thought I would focus in my remarks on three points: (1) how 

human rights lawyers and activists have used the Internet and social media in China; (2) the Internet controls these individuals 

have faced and how these are actually a microcosm of a broader 

and very robust system of Internet control; and (3) how the longterm practice of the Chinese Communist Party using arbitrary, extralegal measures to suppress freedom of expression has actually 

laid the foundation for this recent crackdown. 

As in many countries, when you go down the list of China’s leading human rights lawyers and activists, almost every single one of 

them has used the Internet in very creative ways to expose human 

rights abuses, educate fellow citizens about their legal rights, and 

advocate for rule of law reforms. 

For example, Gao Zhisheng published open letters documenting 

the torture and killing of Falun Gong practitioners. Xu Zhiyong 

blogged about the inhumane treatment meted out to petitioners, 

particularly in ‘‘black jails.’’ Teng Biao used Twitter to be able to 

alert fellow netizens when he was being arbitrarily detained, and 

Ai Weiwei produced a video of people reading the names of children 

who had died in the Sichuan earthquake, and then circulated it online. 

But what is different from the dynamics in democratic settings, 

and what makes these efforts even more impressive, is the fact 

that these people are engaging in such activities in the context of 

the most robust, sophisticated, and multi-faceted Internet censorship apparatus in the world, an apparatus that, according to a 

study that Freedom House released in April, has actually tightened 

and been enhanced over the past two years. 

When one looks at these particular individuals, and even the examples I just noted, one finds that they have encountered the 

gamut of Internet controls that play out in China today, from 

blocked Web sites to disabled blogging accounts, from ‘‘invitations’’ 

to tea, to more lengthy enforced disappearances and torture. Many 

of them keep multiple blogs because they have to play a hide-andseek game with censors, hoping that even if commentary on one 

blog happens to be deleted, perhaps another blog hosting company 

will be a bit more lenient. 

So, for instance, for Gao Zhisheng to be able to post an open letter or for Teng Biao to use Twitter, the first thing they have to do 

is safely get to the other side of the so-called Great Firewall. Ai 

Weiwei and Xu Zhiyong both had their blogs shut down in 2009 

and 2010. And in late 2010, dozens of lawyers and activists had 

their personal Internet and mobile phone communication ability 

completely shut off in an apparent effort to stop them from spreading the news about Liu Xiaobo’s Nobel Peace Prize. Then there are 

the offline tactics, as we’ve heard. 

Although the latest detentions have been the longest, over the 

past five years, most of the individuals that we’ve been speaking 

about have at one point or another encountered some form of abduction, beating, or torture, including being shocked with electric 

batons. 

One particularly insidious dynamic that I thought would be 

worth noting is that as these real-world measures against them 

have escalated, in some instances we’ve seen a corresponding imVerDate Mar 15 2010 13:48 Aug 19, 2011 Jkt 000000 PO 00000 Frm 00012 Fmt 6633 Sfmt 6633 U:\DOCS\67865.TXT DEIDRE
9 

plementation of censorship related to these individuals’ names, essentially an attempt to make them disappear in the virtual world 

as well as in the real world. 

So, following Ai Weiwei’s abduction in April, censorship was not 

only applied to his name, but there are leaked censorship directives 

that indicate there were orders to delete within 10 minutes an editorial that made a veiled reference to Ai Weiwei’s work and advocacy on the Sichuan earthquake. 

Gao Zhisheng, who has been disappeared for over a year, had his 

name specifically listed as a sensitive key word on the list of such 

words leaked by an employee of Baidu, the largest search engine 

in China, in 2009. A quick test that we at Freedom House had 

conducted shows that a search of Gao Zhisheng’s name on Baidu, 

produces mostly state-run news sources referring to him as a 

‘‘criminal.’’ There are no links to his own writings. 

What is striking in the case of both of these men is that in an 

earlier era they were actually the subject of quite a bit of official 

support and media attention. So, Gao Zhisheng, in 2001, was 

named one of the top 10 lawyers in China in a televised legal debate competition hosted by the Ministry of Justice. 

Ai Weiwei, as many of you may know, was invited to design the 

Bird’s Nest for the 2008 Beijing Olympics. But a few years later, 

as their advocacy increased and they started touching on some of 

the human rights abuses that the Chinese Government wants most 

hidden, the state is now hoping that people will forget that they 

exist as well. 

So why is this happening? As other panelists have noted, we at 

Freedom House have also observed in our various assessments of 

political rights and civil liberties a backsliding in the Chinese Government’s commitment to the rule of law since 2006, and even 

more so since 2008. 

But what is worth noting is that even during the earlier part of 

the decade when limited legal reforms appeared to be moving forward, in parallel there still existed a very extensive extralegal 

world, a world of makeshift detention centers, forced labor camps, 

and plainclothes police forces torturing with impunity. In fact, that 

is the world that tens of thousands of petitioners and Falun Gong 

practitioners have been experiencing for years. 

Many of the lawyers that we’re talking about today actually encountered that world and they talk about it in their writings, voicing concern that the tactics and strategies developed to suppress 

one group can be quickly and easily applied to others, putting every 

Chinese citizen at risk. 

So, looking at the current series of abductions, they cannot be 

viewed in a vacuum. Rather, what we’re seeing manifest in recent 

months is an expansion of suppression. It is a reflection of a decision taken somewhere at the top of the Party that a group of individuals whose work and activism had previously been tolerated are 

now persona non grata, and that the Party is willing to apply the 

full force of a preexisting, extralegal, repressive apparatus to silence them. Of course, such a decision is made possible by the fact 

that Party leaders are unconstrained by institutional mechanisms, 

like an independent judiciary. 

10 

From that perspective, I think if Gao Zhisheng and some of the 

other lawyers were here today, one thing that they would recommend is for U.S. policy to go beyond focusing only on them, despite the urgency of their plight. When you read their writings, you 

see that they urge serious action to address the full range of clients 

and causes they have defended. 

Taken together, the victims of Communist Party repression go 

far beyond dozens of activists, amounting to tens of millions of people. As Ms. Wickeri noted, the lawyers themselves have encountered many of these abuses and represent a microcosm of what is 

happening much more broadly in China. 

The lawyers would say that when the day comes that these people have their rights protected, that is when lawyers will no longer 

need to worry about being abducted or disbarred either. So, one of 

the main recommendations we would offer is to really give serious 

thought to what are some of the longer term strategies the United 

States can adopt to more effectively address the broader range of 

human rights abuses in China, particularly those suffered by the 

most vulnerable and abused groups, such as petitioners, Falun 

Gong practitioners, Uyghurs, Tibetans, and others who are often 

caught up in this extralegal world. 

I have some other recommendations I have thought of, but I 

think my time is up so I will stop there. I would be happy to expand on any of the above during Q&A. 

[The prepared statement of Ms. Cook appears in the appendix.] 

Senator BROWN. Thank you, Ms. Cook. And we’d like to have 

your recommendations for sure in writing, if not spoken also. 

We are joined by Senator Merkley from Oregon. Thank you, Jeff, 

for joining us. 

Margaret Lewis, Associate Professor of Law at Seton Hall. Her 

research focuses on the intersection of Chinese legal studies with 

criminal procedure, criminal law, and international law. She is a 

Public Intellectuals Program Fellow with the National Committee 

on U.S.-China Relations. 

Thank you for joining us, Ms. Lewis. 

STATEMENT OF MARGARET K. LEWIS, ASSOCIATE PROFESSOR 

OF LAW, SETON HALL LAW SCHOOL 

Ms. LEWIS. Thank you, Mr. Chairman and distinguished members of the Commission for inviting me to join this roundtable, and 

for all of the work of the Commission on helping Americans to understand China better, including these specific issues at hand. 

In my brief opening remarks, I’ve been asked to place the recent 

crackdown in the broader context of what this means for overall 

legal reform and rule of law developments in China, specifically 

with regard to criminal justice reforms. 

The path of legal reform in China never did run smoothly, but 

I think that it is fair to say that now is a particularly challenging 

time for legal reform in China. In part, this reflects the over-arching political climate that emphasizes stability and is wary of anyone who is seen as rocking the boat. 

A week from tomorrow, July 1, marks the 90th anniversary of 

the founding of the Chinese Communist Party. The Party has demonstrated, I think, impressive adaptability over its six decades of 

11 

uninterrupted rule. Now, despite reports about some disagreements 

among the high leaders of the Communist Party, what the public 

face has been is orderly transition on a periodic basis. This was 

seen in the early 2000s when we went from the third generation 

to the fourth generation leaders, and is currently playing out to the 

fifth generation leaders. 

As the composition of the Politburo Standing Committee and the 

top leadership is taking shape, I think it is not surprising that candidates for the next generation of leadership are going to take a 

risk-averse stance when it comes to advocating for significant reforms, especially if those reforms might be unpopular with the current leaders. Looking beyond the immediate term, the current and 

rising members of the Party leadership have openly applauded the 

harsh law and order tactics used by Bo Xilai, who is the Chongqing 

Party secretary and a rising star on the national scene. 

This praise for Bo’s tactics raises serious questions, whether even 

after the leadership transition takes place will we see a more proreform climate. Exacerbating this cautious climate is the leadership’s awareness about the popular unrest in the Middle East and 

the concern that fermenting discontent at home could blossom into 

China’s own ‘‘Jasmine Revolution.’’ 

It is difficult to qualify and figure out exactly how much public 

discontent is out there. We know that there are thousands and 

thousands of mass incidents. But at a minimum, what we’re seeing 

out of Beijing is a change in rhetoric; they are not just talking 

about harmonious society, which is even on the front of trains now, 

but emphasizing social management and stability. Social management means keeping a lid on things. 

From a legal reform perspective, my concern is that the government fundamentally views lawyers as undermining stability rather 

than improving it. When I was in China last month, I personally 

was struck by the hesitancy—and Ms. Wickeri mentioned this too— 

of people to speak candidly about legal reforms in a variety of 

meetings. This is even markedly worse than when I was there last 

year. There has been a shift in attitude and people are seeing a 

chilling effect about what kind of conversations we’re able to have, 

even in unofficial settings. 

Turning particularly to how this climate impacts criminal justice 

reforms, there is no shortage of formal laws and regulations on the 

books. In fact, this past year we saw some ostensibly promising reforms. With respect to the criminal law, there was an amendment 

to the large criminal law this spring that reduced the number of 

death-eligible crimes by 13, limiting it now to 55 offenses as opposed to the prior 68. 

In reality this decrease is unlikely to have a real effect on the 

number of executions because the crimes they removed were seldom used anyways, so it looks much better than it probably will 

be in practice. 

As a further example of legal reforms in the criminal justice 

realm, this past year we also saw two new sets of rules dealing 

with evidentiary issues, and in particular an ability to suppress illegally obtained evidence and, most conspicuously, coerced confessions. 

12 

The problem is, the lawyers that are actually trying to seek to 

implement these rules are running into political road blocks. At 

most, we’ve heard of maybe one or two examples of a lawyer actually being able to suppress illegal evidence, and even in that case 

I guess the evidence got in through another route so it had little 

practical impact. 

In addition to the substantive challenges of the lawyers trying to 

be zealous advocates for their clients, what also is happening is the 

lawyers themselves are ending up being the criminal defendants. 

We saw this in 2010, most notably with lawyer Li Zhuang, who 

was actually convicted for encouraging people to give false testimony. 

Considering such perils and also the general lack of social prestige for defense work, I think it’s a wonder that people pursue careers as criminal defense lawyers in China at all, especially outside 

of the world of relatively financially lucrative white-collar crime. 

But in speaking about the role of lawyers, it bears emphasizing 

that the topic of today’s roundtable is the current conditions of both 

lawyers and rights defenders. As a member of the legal profession 

myself, I hope that all lawyers seek to defend people’s rights. But 

in China, so-called rights defenders go beyond licensed lawyers. 

There is a separate population of non-lawyers who are nonetheless 

seeking to use the legal system to effectuate change in China. 

Of course, exemplifying this is the blind activist Chen 

Guangcheng, who taught himself enough law that he could help out 

his fellow villagers with their grievances against the government. 

But since completing his four-year sentence for disturbing traffic 

and damaging property, Chen and his family have been held under 

informal house arrest and reports of government-sanctioned physical abuse underscore that the term ‘‘soft detention’’ utterly fails to 

capture the harsh reality that is Chen’s post-prison life. 

Going forward, a key question is how can the PRC government 

manage expectations of the populace in the face of a greying population, growing environmental pressures, and other destabilizing effects. The incorrigible long-term optimist in me wants to believe 

that the government will eventually view lawyers as a positive 

force to help express citizens’ grievances and effectively channel 

those grievances through a formal process instead of leaving people 

to go to the streets with their frustrations. However, at present the 

emphasis is on the rhetoric of the rule of law with a reluctance to 

allow people to actually make use of the laws in a meaningful way. 

So finally, what are the implications for U.S. policy in light of 

this challenging landscape? The official U.S.-China human rights 

dialogue and the slightly less official legal experts dialogue are valuable, I think, for maintaining high-level bilateral discussions, 

though I think we must keep our expectations very modest when 

it comes to how these forums might actually spur legal reform in 

China. 

Though we cannot expect instant gratification from more informal legal cooperation, I remain convinced that sustained interpersonal contacts will serve as a positive force for legal reform. For 

example, China’s efforts to reduce wrongful convictions opens up 

possibilities for collaboration on projects regarding evidence techniques, including use of DNA evidence. Indeed, the new rules adVerDate Mar 15 2010 13:48 Aug 19, 2011 Jkt 000000 PO 00000 Frm 00016 Fmt 6633 Sfmt 6633 U:\DOCS\67865.TXT DEIDRE
13 

dressing the exclusion of illegally obtained evidence followed years 

of comparative legal work and many projects involving foreign assistance. 

The scope of substantial bilateral collaboration is no doubt limited at present, but there are shared avenues of interest that dovetail with the Chinese Government’s stated areas of reforms and 

that can, and should, be explored. 

Thank you for the opportunity to present a few thoughts. I look 

forward to our discussion. 

[The prepared statement of Ms. Lewis appears in the appendix.] 

Senator BROWN. Thank you very much, Ms. Lewis. 

I will open the questioning and then turn it to Senator Merkley, 

who will chair the Commission after I leave. 

Ms. Li and Ms. Wickeri, your comments on sort of an array of 

things in terms of how important it is that the American Government and individual American elected officials and activists speak 

out, and what that means to prisoners, and what that means to 

human rights activists, is noted. Your comments that in some 

sense though the Chinese think they have nothing to fear because 

there is not much oomph behind our speaking out here in terms 

of what our government did. I heard your comments about President Obama and sort of what we do or don’t do as a country, and 

how activists and people who have been imprisoned or on bail, how 

they’re encouraged by international support. I hear all of that. 

I remember 10 years ago, when Wei Jingsheng said to me as we 

were talking about PNTR, he made a statement which was a bit 

incendiary, but with great insight, I thought. If I could recall more 

or less exactly how he said it, although he said it in Mandarin and 

it was translated, obviously. He said the vanguard of the Communist Party in the United States is American CEOs, as they were 

lobbying the U.S. Congress for PNTR. 

Are American lawyers—not human rights lawyers—in China 

today working for U.S. corporations, are they potentially allies of 

any of these human rights activists? Are they allies for other lawyers? Are there ways that we can reach them in a way that they 

will stand up for human rights in China or are they a lost cause 

because they do not want to jeopardize their position in the larger 

Chinese economy? And any of the four, you can answer that, but 

I’m looking at you two because you kind of led me to asking that. 

Ms. LI. Well, I certainly believe they can be a force for the good 

cause. I don’t want to make any sweeping statement to lump them 

all into one category or another. 

Senator BROWN. Well, let me interrupt if I could. Have you seen 

examples of it where that has happened, any of you? The more important issue is, how do we make that happen? 

Ms. LI. The thing is how individual American businessmen, lawyers, and anybody that goes to China doing something, what can 

they do? That’s the larger question. I believe, in talking to a lot of 

activists, including Mr. Wei here who probably agrees with me, we 

need to change the system in China. What we all as individuals 

can do is to prepare for that change. 

We cannot, by any one of those professional groups in China 

from America—nobody can really change until the system itself has 

itself been changed. So in a way, lawyers, for example, going to 

14 

China could be putting Band-Aids on a very sick system by saying, 

okay, ‘‘improve your prison.’’ For what? So the authorities can be 

more efficient to manage prisoners? Or telling authorities ‘‘improve 

your police force.’’ But again for what? So they can be more effective in crowd control when faced with protesters? 

Those things can be helpful when the system changes, but if the 

system doesn’t change, all those things, years, years, more than 20 

years, the United States has been pouring humongous resources 

into the ‘‘rule of law reforms’’ in China, training judges, policemen, 

prison guards, and legislators—as if those legislators have any 

independence. All those are the same for the Chinese activists: they 

have the outcome, perhaps unintended, of aiding a repressive machine. But somehow we need to look at the bigger picture. 

What happened in Egypt, in Tunisia, was that citizens had somewhat more space to organize, assemble, and express their views 

than citizens in China. I heard that there was a training workshop 

on nonviolent protest tactics for civil society activists last year in 

Cairo. That sort of work became crucial. It’s the sort of work that 

is useful when the bigger movement comes when the system started to crumble. Those preparations in civil society can kick into 

place. In that sense, I support people going to China to impact civil 

society, whether while at the same time doing business, training officials, whatever they do. But it’s the fundamental piece that’s 

missing here if they only deal with authorities or official outfits 

alone. The problem is we still don’t see a systematic U.S. Government human rights policy toward China. How do we prepare for 

the kind of crumbling of the system, like what happened in Egypt? 

Senator BROWN. Ms. Wickeri—sorry to cut you off. The wealth 

that U.S. companies and U.S. consumers are helping to create in 

China, the argument against what Wei Jingsheng said a decade 

ago was that as there’s more companies there and more wealth and 

more of a middle class, that freedom would follow. There are many 

examples in history where that didn’t happen, but that was the argument they made. Is that happening? Is there a way of helping 

to make that happen? Is there a way of empowering or encouraging 

U.S. corporate lawyers, for want of a better term, to step up and 

work on all the things that the four of you have devoted your professional lives to? 

Ms. WICKERI. Yes. Certainly one of the things that the Committee to Support Chinese Lawyers was founded for was to try and 

tap the resources of that community, of the community of corporate 

lawyers and other business people working inside China and benefiting from that work. It is not an easy task to make the issue of 

the role of human rights defenders and the crackdown on human 

rights lawyers relevant to corporate lawyers working for American 

law firms in Beijing. There have been a lot of informal conversations, but in terms of constituting formal meetings in Beijing—or 

even less so elsewhere in the country—among American lawyers to 

raise their awareness on this issue, that’s much more difficult. 

On the other hand, the Committee to Support Chinese Lawyers, 

as well as the New York City Bar Association, has instituted a 

number of meetings in New York to try and raise the awareness 

of corporate lawyers who have offices in Beijing about these issues. 

So we’ve been doing that, particularly this year. The New York 

15 

City Bar, the International Bar Association, and a number of other 

professional associations have written letters to highlight the cases 

of these individuals. 

Whether or not individual lawyers will take on this task too, or 

if law firms will, is another question. I think many of us may have 

seen Professor Cohen’s opinion piece in the South China Morning 

Post a couple of weeks ago that looked especially at this issue, that 

despite the fact that a lot of different actors had spoken out on the 

recent crackdown, law firms have been conspicuously silent about 

the fact that their Chinese colleagues were being especially abused. 

Senator BROWN. Does Google’s about-face give you hope or make 

you cynical? 

Ms. WICKERI. I’m a hopeful person in general. 

Senator BROWN. Good answer. 

Ms. WICKERI. So I think that I have to answer the question that 

way. Certainly the New York City Bar, as well as the Committee 

to Support Chinese Lawyers, are trying to encourage law firms 

that have practices in China—to take a stand on this issue. We’re 

just in the early stages of reaching out to interested parties, so I 

cannot yet predict whether or not the Google example will be one 

that they look to. 

Senator BROWN. Okay, then, I’m going to turn it over to Senator 

Merkley to chair. But I’d like all four of you to think about what 

this Commission can do to help empower and encourage American 

lawyers, whether they are law firms, whether they’re corporate 

counsel, here and in China to step up on human rights, if that’s 

not too tall an order. 

Your comments, Ms. Lewis? 

Ms. LEWIS. I was a corporate lawyer in a former life, so perhaps 

I’m more sympathetic. But I was on the New York City Bar delegation that went to China and met with the Beijing Lawyers Association and the Shanghai Lawyers Association, and met with a bunch 

of foreign lawyers there. I mean, the hard thing is that for the individual foreign lawyers, they have clients and they do have a duty 

as a lawyer to do what is best for their clients. They’re not there 

as human rights advocates, so they’re very constrained in what 

they can do. 

Senator BROWN. Of course. I understand that. 

Ms. LEWIS. Because they know immediately—and we say this 

again and again—they cannot even do real pro bono work like they 

would do in the United States. So they do things like give money 

to—— 

Senator BROWN. Well, all that, if I could be so bold, is part of the 

corruption of this whole trade policy, this whole system, is you 

can’t expect anybody representing their businesses to ever do the 

right thing for human rights because they’ve got to take care of 

their businesses here. I understand all that. Of course, that’s their 

fiduciary responsibility. But they are also human beings, they are 

also American citizens with a set of values. I would hope that 

might call on them to do something better. 

Ms. LEWIS. Yes. But I think we’re going to need to get it out of 

the city bar or out of the bar associations, not out of the individual 

law firms, because no one is going to be the first mover. I do think 

there is movement to use the bar associations, maybe like the 

16 

American Chamber of Commerce which has a group of lawyers. We 

need to try to have it so it doesn’t have the label of ‘‘this individual 

law firm has taken this stand,’’ but rather try to defuse it a little 

bit. I think that’s going to be the movement, not getting a name 

list of necessarily individual firms. 

Senator BROWN. Okay. 

Ms. WICKERI. Just to build off of that—one result of the trip that 

Professor Lewis and I were both on to Beijing and Shanghai is that 

the New York City Bar Association now has a memorandum of 

agreement with the Beijing Lawyers Association to cooperate on a 

number of issues, including human rights. So this might be one 

way for American lawyers who are members of the New York City 

Bar in Beijing to coordinate efforts and work on these issues as opposed to highlighting the role of their firms. 

Ms. COOK. In terms of examples—and this is maybe more from 

the sphere of the Internet world—I would just add that it’s worth 

keeping in mind the significant power of efforts that involve the 

Chinese authorities hearing voices of concern from populations that 

they’re not used to hearing from. In 2009, there was the example 

of the Green Dam software that the Chinese Government had contracted a company to institute. 

All of a sudden, they came out with a regulation that every PC 

that was going to be imported to China had to have this particular 

software that was supposedly to protect children from pornography, 

but actual tests found that it was really targeted at censoring and 

very much filtering and monitoring information, including on 

issues like human rights groups, minorities, and Falun Gong practitioners. 

What happened was that there was a real outcry from the Chamber of Commerce and I think there were also complaints from some 

legal associations or business associations. These were combined 

with the voice of netizens and some of the human rights lawyers 

that we’ve been talking about today. It was really quite a powerful 

force because I think it took the Chinese Government off-guard a 

bit and they backed off. 

Now, they’ve still implemented this particular software in 

schools, but they really backed away from the big, nationwide 

policy. So when you really have a multilateral front of opposition, 

particularly when people are talking about their concerns from an 

economic and commercial perspective, then this can be effective. 

The issues relating to broader challenges to the rule of law in 

China do not only affect Chinese citizens, they affect a lot of American companies. That may be one effective angle for approaching 

the issue and getting business or legal firms to speak out against 

mistreatment of human rights lawyers. Certainly in the case of the 

Internet and the Green Dam software, there was a strong sense 

that it was going to damage business for people who were trying 

to import technology into China, which is what sparked the outcry. 

Senator MERKLEY [presiding]. Nisha is going to have to leave in 

a few minutes. Did you want to share some additional thoughts? 

Ms. BISWAL. I did. I wanted, first of all, to just thank you. This 

is my first opportunity as a new Commissioner to be able to participate. So my primary objective in coming today was to learn, to observe, and to just state my desire and willingness, on behalf of 

17 

USAID, to be part of the conversation. But this is a really interesting and important conversation that’s happening right now. 

I do apologize for having to leave early, but I would like to just 

pursue that conversation, perhaps, a little bit later because very 

key questions that you’re raising in terms of how we influence the 

rule of law and legal reforms and whether or not we’re having any 

impact with some of the things that we are trying. 

And I think it’s probably a little bit early to assess what kind of 

impact we’re having and whether it’s sufficient to continue, but I 

think it’s a good conversation to be having and to be constantly 

looking at the ways that we’re approaching this, and what kind of 

effect it’s having. 

I do think that there is a connection between economic governance, commercial law, and strengthening rule of law at large, and 

I think it may not be as direct and as quick and immediate as we 

would want, but there is a connection there and we have to explore 

that a little bit as well. But again, I just wanted to thank you, and 

hopefully invite a conversation in the near future to continue the 

dialogue that has started here. 

Senator MERKLEY. Thank you very much for joining us and for 

your offer of a continuing dialogue in the future. 

I wanted to go back to the number of folks who have disappeared 

over the last few months. It was about two months ago that Senate 

Majority Leader Reid led a bipartisan delegation of Senators to 

China, the largest delegation, to our knowledge, that’s ever gone to 

China, 10 Senators, bipartisan. We were arriving there, really in 

the midst of this situation with so many folks disappearing. Sarah, 

I’m not sure if you covered this before I arrived or someone else 

did, so if you did I apologize. 

But could one of you that has a good grip on this kind of summarize what we know about the numbers who have disappeared, 

whether it’s home detention, whether they’ve truly disappeared, as 

in their families and friends do not know where they are, the patterns in terms of, are they mostly lawyer advocates, are they mostly folks who made unfavorable statements in their Twitter or email 

accounts, and so forth. Just give us a quick summary of what that 

picture looks like. 

Ms. COOK. I think Ms. Li had the most comprehensive summary. 

Senator MERKLEY. Ms. Li, I’m sorry I missed that. Can you just 

give us the outlines of that again? 

Ms. LI. Well, you can supplement if I miss anything. The disappearance seems to be a tactic applied to those who are somewhat 

known internationally. That’s number one. Number two, this tactic 

seems applied to those who are somewhat known as being stubborn, who would not bend. The number we have been able to verify 

is 30-some individuals who have been disappeared—and some of 

them have resurfaced later. 

In that category, there are about half lawyers, half of them activists. Almost all of them have somehow been tied by authorities to 

the ‘‘Jasmine Revolution.’’ Either they Tweeted, blogged, or talked 

at meetings, which were recorded, filmed, or they used the Chinese 

equivalent of Twitter to spread the word about the call for protests. 

The three largest geographic concentrations of people being disVerDate Mar 15 2010 13:48 Aug 19, 2011 Jkt 000000 PO 00000 Frm 00021 Fmt 6633 Sfmt 6633 U:\DOCS\67865.TXT DEIDRE
18 

appeared and being criminally detained are in Guangzhou, Chengdu, 

and Beijing. 

On all three locations, there were some meetings right before the 

so-called ‘‘Jasmine Revolution’’ protests and large numbers of people who attended those meetings, which could be a dinner, were 

affected. In two cases, I think, they were gathering for dinner to 

discuss other topics. But during the meetings, somehow they talked 

about the anonymous online protests and their conversations were 

either secretly filmed somehow or recorded. Then there are others 

who were picked up by tracing their Tweets or blogs. 

It’s also interesting to note that these affected individuals are in 

most cases well-known activists. Not as well-known as Ai Weiwei, 

but known in the Chinese activist community. What is interesting 

is that they include people who are petitioners, which means they 

may not have been political dissidents. They simply wanted to use 

the occasion to voice their own grievances—over unfair handling of 

their land, housing, jobs—and then there are quite a few numbers 

of young professionals, IT people who are very good on the Internet. Then, of course, we already know that they included those very 

brave human rights lawyers. 

Senator MERKLEY. So these profiles that you’re mentioning, 

that’s of the 30 who have disappeared? 

Ms. LI. Yes. In some cases, the line between disappearance and 

criminal detention is blurred because some reappeared later or 

were accounted for as having been criminally detained. 

Senator MERKLEY. Now, we have several hundred during that 

same time period who were put under house arrest, I believe. 

Ms. LI. Yes. 

Senator MERKLEY. Were the profiles roughly similar, but just 

kind of a lesser level? 

Ms. LI. It’s very hard to document because all of those who have 

been released were warned sternly not to speak up, otherwise facing severe consequences—before they were sent home. They were 

told to stay quiet. Some of them are now being released on bail, 

waiting for trial, so they are under restrictions from speaking 

about their treatment in detention. Yes, the numbers of the affected in the crackdown, including those who were soft-detained at 

home or questioned, should be several hundred at least. In a lot of 

the cases, the families might be afraid to speak up due to fear of 

retaliation. 

In one case, I want to mention the case of one human rights lawyer who was disappeared for about three weeks and then sent 

home. He was at the time of release very sick and clearly had been 

severely tortured. He and his family were told not to speak a word 

about his situation, otherwise the consequences could be very 

grave. Today, even by now, after a few months, the person remains 

in critical condition. Attempts by activists to contact him to deliver 

aid or medicine have all been turned back because the police are 

standing guard at his apartment. 

Senator MERKLEY. Has the U.S. Government formally inquired 

on behalf of the 30 or so disappeared, if you will? 

Ms. LI. I believe both the U.S. Embassy in China, and visiting 

U.S. officials, prior and after the human rights dialogue in Beijing, 

have made statements calling for the Chinese Government to give 

19 

an account of those disappeared or detained individuals. We have 

also repeatedly submitted various lists of those individuals. What 

happened, we all know during the human rights dialogue in Beijing, Chinese officials first seriously warned against the U.S. delegates not to mention individual cases, but when they did, the 

Chinese officials at the dialogue actually came well-prepared with 

documents of each and every individual mentioned. For example, 

when Gao Zhisheng was mentioned, they said Gao is free and on 

a business trip. When Chen Guangcheng’s case was mentioned, 

they said Chen was free at home. When Ai Weiwei was mentioned, 

of course he was said to be ‘‘investigated for economic crimes.’’ The 

same for Liu Xia, the wife of Liu Xiaobo: she was said to be free 

at home, and anyone could visit her at anytime. This preparedness 

says that Chinese authorities do mind very much about the outside 

world knowing about these individuals and putting pressure on 

their release. 

Senator MERKLEY. So largely here in the United States, much of 

the portrayal of this was kind of a warning shot, if you will, of the 

government to the Chinese citizens in regard to not follow the example of the Arab Spring. Is that your sense of the motivation of 

this crackdown on individuals? 

Ms. LI. Oh, yes. 

Senator MERKLEY. Yes. Yes. Yes. 

Ms. LI. That is clearly the political agenda, which is to flick out 

any kind of spark for popular protests. 

Ms. COOK. If I may, I think of it in the context of something that 

has been building for a while and in the context of growing resources being devoted to this issue of stability maintenance. The 

creation and expansion of an extralegal network of stability maintenance offices, running through Party committees down the Party 

hierarchy, combined with a situation where a lot of these individuals have already been detained and warned over their activism, 

creates a situation in which I could see the Chinese authorities 

using the ‘‘Jasmine Revolution’’ calls as an excuse, or maybe a catalyst. 

Maybe this was an opportunity for some of the hardliners, people 

like Zhou Yongkang, to grab onto these calls and say, look, we really need to nip this in the bud. More generally speaking though, a 

lot of these people have been on the Party’s radar for a while. 

The other thing I would mention is the general practice of Chinese security agencies engaging in disappearances, abductions, and 

taking people from their homes without warrants. These cases are 

much more difficult to verify, but when you talk to Chinese refugees or read interviews with petitioners, or Falun Gong practitioners, or Uyghurs and Tibetans, these people who are much more 

anonymous than the activists we are talking about today and often 

aren’t high-profile individuals, you find that these are pretty routine practices. People get picked up and taken to hotels, taken to 

schools, taken to so-called legal education centers all the time. 

One thing I know that Freedom House would like to be able to 

do more of is to try to document more such cases. It is very difficult, given the dangers and given the anonymous quality of 

sources and how hard it is to know who these people are. But, as 

20 

I look at the current situation, that’s also the lens and broader context through which it is important to place higher profile cases. 

It may be that if the Arab Spring protests hadn’t happened, then 

maybe there wouldn’t have been a crackdown of this severity or 

within such a concentrated period of time. But it’s something that’s 

been building for a while. 

Ms. LEWIS. I just want to completely agree that I think the Arab 

Spring exacerbated the sensitivity. But the sensitivity was there already. One of the concerns for those of us who are more in the academic community is that previously the government would follow 

the letter of the law, and the law often had exceptions which allowed them to say we’re following the law, but according to article 

whatever we can extend the detention because of X, Y, or Z. 

But like with Ai Weiwei, we were following the time that he was 

in detention before being formally arrested, and there’s some key 

terminology because the actual physically taking into custody is 

different than the formal arrest under Chinese law. The time was 

going and going. We’re like, oh, well, they still have one more week 

under the Criminal Procedure Law. Then it went past even what 

the Criminal Procedure Law would allow. They’re just flouting the 

law now. So that was a change, too, of not even trying to wrap it 

up in the trappings of ‘‘it fits our formal law,’’ which is particularly 

concerning. 

When I was in Beijing last month when Ai Weiwei was still detained and we asked some very high-level criminal procedure scholars about the case, their response—and I think this was totally 

true—was, ‘‘We don’t know about this case. You keep asking. It’s 

not like we’re hiding the ball, we just are not hearing about it.’’ 

This is talking about how the information is not getting out. 

Then the next response is, and why do you keep focusing on this 

handful of cases? What about the thousands of other cases? There 

was also, I think in some of the community there, just this: ‘‘You 

foreigners are focusing on this small number, what about the 

masses of cases. That’s what we’re concerned about.’’ So I think it’s 

hard at times to get traction among some of the more high-profile 

people who we would hope would help out. 

Senator MERKLEY. So one of the things I’d like to get a better 

feeling about is really related to protests throughout China. You 

hear that there are a lot of labor protests, essentially folks who 

have lost their guarantee of a job, their guarantee of healthcare, 

maybe even their access to public schools. Then you hear about 

protests where land is being taken away from folks under the local 

official’s argument that, well, all the land belongs to the state, and 

then the officials take and re-sell it to developers and people are 

displaced. So you hear about that section of protests, if you will. 

So on this China trip I was asking questions a little bit about, 

what do you see in terms of broader grassroots reaction to the 

human rights side. Their answer was, well, not so much. Not so 

much because people don’t know about it, they don’t have access 

to the information, and maybe not so much because they’re occupied with trying to get through their life. 

One of the things that I raised was, well, here we’re seeing these 

cities with these massive numbers of new housing towers. There 

was a little bit of a description by some American officials saying, 

21 

well, partly that goes hand-in-hand with the village policies where 

there’s less guaranteed employment, less guaranteed healthcare, 

less guaranteed public schools, and so folks are shifting to the cities. So I was asking, is there a massive reaction to this, kind of 

people being economically forced to go into the city? 

The general reaction—I’m sharing this because I want to get 

your perspectives—is well, not so much. Many of the young folks 

who are moving to the cities, they have fully embraced this dream 

of being able to dress the way they would like, being able to buy 

their condominium or their apartment in the city, and having a 

motorcycle or a car. That isn’t particularly driving a huge reaction. 

So as we think about the economic labor issues and the corruption 

issues, is there any form of broader reaction on the human rights 

side or is it really the lack of information and the set of other 

issues folks have to deal with, weighing in? 

Ms. COOK. As Ms. Lewis had mentioned, it is very difficult to 

gauge this. One thing I found in speaking to Chinese people, and 

the ones who have become activists, especially, a lot of them didn’t 

start off as activists or petitioners. A lot of them started off as people similar to the ones you have just described, but at some point, 

for some reason beyond their control, they ran into the system. 

When they ran into the system, they had faith in the law and 

in the system, in a lot of cases, this was partly because of the government’s own rhetoric about rights and a growing rights consciousness in Chinese society. So, they went to petition or they 

tried to find some way of dealing with the injustice that they encountered within the system, and then they ran into more problems. Now for some people, when they encounter that first level of 

threat, they may just back off. But then you also have people who 

will continue to seek justice, and they continue in this lifestyle that 

just gets harder and harder because they run into more and more 

oppression. 

When you have a system that is this corrupt and when there are 

this many human rights violations and abuses of power occurring, 

there are so many people each day running up against this system. 

One question the Communist Party faces is: how do you keep a lid 

on these things and prevent people from being informed of the extent to which this is happening and other people are encountering 

similar injustices? 

A lot of Chinese have some sense that there are injustices occurring, and in a lot of ways the Internet has opened up room for more 

conversations related to certain issues. But in terms of the systemic problems, a lot of people don’t realize the root obstacles until 

they run up against them. 

I think that it is almost like a game that Communist Party leaders are playing in terms of how long they can keep a lid on it. Of 

course, in such a complex country, you have people with many different experiences. But there is certainly a phenomenon of people 

running into the system and then that generating more activism. 

And that goes hand-in-hand with one of the other things that I’ve 

observed in recent years—the sheer rights consciousness of Chinese 

people. They are more aware of the fact that they might have 

rights. When they speak of rights, it may not necessarily always 

22 

be in terms of systemic change and democracy, but rather based on 

a more instinctive sense of having rights and wanting justice. 

Ms. LEWIS. And I think beyond sort of the individual injustices, 

where people are petitioning and trying to get help with grievances, that we are seeing very high-profile cases that are galvanizing larger groups. For example, the case of Zhao Zuohai. He 

is a man who was convicted of murder. A headless body was literally found at the bottom of a well. Zhao Zuohai had had a quarrel 

with someone who had since disappeared, so they said, well, this 

must be the body of the man you quarreled with, you did it. He 

was sentenced to death. That was commuted into a long prison sentence. Ten years later, whoa, the dead body, back alive—the man 

who was supposedly the victim was alive. 

So if you want the clearest case, you don’t need DNA evidence 

to say this was a wrongful conviction. There was no murder victim, 

this person was there. That case got on the Internet, it went viral, 

and then finally after it went viral through informal news channels 

the official press had to respond to it. 

That case was seen as one of the pushes to get these new evidence rules out that had been circulating behind the scenes. There 

have also been deaths during detention. We have seen this a number of times; police coming out with excuses, like this person died 

because they were playing a game like Blind Man’s Bluff. They 

don’t even pass the laugh test. So we are seeing some of those 

cases, I think, getting some more attention from the wider populace. 

Senator MERKLEY. I apologize, I’m being told my time has run 

out. Is staff going to chair, going to take over the emceeing? I really 

appreciate all the insights that you’re bringing to this Commission. 

Thank you. 

Mr. LIU [presiding]. My name is Lawrence Liu. I’m the Acting 

Staff Director for the Cochairman for the Congressional-Executive 

Commission on China. I wanted to give, in the remaining few minutes, the audience a chance to ask a couple of questions. I will just 

ask, we have two mics in the back. If you would just raise your 

hand if you have a question that you want to ask of the panelists, 

and please, since we’re running low on time, keep your question 

brief and just ask the question. No statements, please. So, does 

anybody have a question? Just raise your hand, please. 

Ms. FORD. I can speak from here, if that’s okay. 

Mr. LIU. Sure. Just be aware, there will be a transcript of these 

proceedings. So if you want to you can state your name and affiliation, but you’re free not to as well. 

Ms. FORD. Sure. My name is Caylan Ford. I volunteer with the 

Falun Dafa Information Center. My question is for Ms. Lewis. I 

wanted to inquire about what your impression is of what the impact is of a few of the recent campaigns that have occurred, particularly since 2006. I’m thinking of, in 2006, Luo Gan headed a 

campaign, the ‘‘Socialist Rule of Law Concept,’’ which basically 

stipulated that the interests of the Party come above this sort of 

strict following of the letter of the law. 

This was sort of further enshrined in December 2007 when Hu 

Jintao introduced the ‘‘Three Supremes,’’ which was sort of enforced with alacrity by Wang Shengjun, who is now the president 

23 

of the Supreme People’s Court. Again, these things sort of codify 

this notion that the Communist Party’s interests are the guiding 

interests in implementing the law. What does this mean when 

we’re looking at rule of law reform? I suppose Ms. Li may also 

want to weigh in on this. 

Ms. LEWIS. And the ‘‘Three Supremes,’’ which put the interests 

of the Party, and then you’re supposed to look at sort of the public 

opinion, and then the law. The Constitution is the least supreme 

of the ‘‘Three Supremes.’’ Certainly since the leaving of Xiao Yang, 

the former president of the Supreme People’s Court, and Wang 

Shengjun coming in, who doesn’t have formal legal training, this 

has shown a shift away from an emphasis on professionalism of the 

judiciary. 

Also, Ms. Cook mentioned the role of Zhou Yongkang, who came 

out of the Ministry of Public Security and is now on the Politburo 

Standing Committee, and supports very harsh law-and-order tactics. He is very high ranking. In this sort of trifecta of the Public 

Security Bureau, the Procuratorate, and the courts, I think it is 

clear that the courts are the weakest of that threesome. That’s not 

new but that’s become clearer. 

What has also been getting a lot of attention from, I think, the 

legal academic community has been the emphasis on mediation 

and avoiding use of the courts for what we think courts do: litigation. You should try to nip any problems in the bud. I remember 

going to a small community center in Xiamen in December, and 

they were so excited that they were a ‘‘wu susong she qu,’’ literally 

a community without any litigation. This was something that was 

so great, that every dispute didn’t have to go to courts. So I do 

think on the outside of even criminal justice, that there is a real 

emphasis on trying to just clamp down on any problems when 

they’re small, nip them in the bud, and if it’s gotten to court, that 

means it’s blossomed into a big problem. 

That being said, I work with a lot of people more on the law professor side than on the activist side, because that’s the world I exist 

in. There are a lot of really good, sincere people who want to make 

the system better. So again, I think in the short term I’m pretty 

pessimistic for the climate. But in the long term I think there are 

some really sincere reform-minded people, and we’re going to have 

to think not 1 year out, but 10 years out or more. 

Ms. LI. Remember, in Chinese, the words ‘‘fa zhi,’’ can be translated into ‘‘rule of law’’ or ‘‘rule by law.’’ The Chinese Government 

always understood it as ‘‘rule by law.’’ Many well-wishers wishfully 

read it to mean ‘‘rule of law.’’ Number two, the Chinese Constitution, even though Article 35 claims to protect such human rights 

as freedom of expression and so on, the cardinal principles of the 

Constitution are to put the CCP’s—the Chinese Communist 

Party—rule on top of everything else. Third, at every level of the 

judicial system there are ‘‘political and judicial committees’’ [zheng 

fa wei]. So these committees make decisions on verdicts for the 

courts, particularly on sensitive cases; in these cases, the trials, all 

the other procedures, are just a farce. Remember the spokeswoman 

for the Chinese Ministry of Foreign Affairs recently told journalists, ‘‘No law can protect those who make trouble.’’ It might be just 

an illusion for us here to think China has had a rule of law reform 

24 

going on. Very recently, some Chinese lawyers, legal scholars, including very prominent people, have on different occasions said 

that the rule of law reform is dead. 

Mr. LIU. Okay. Thank you. 

I just want to let you know, because we weren’t able to get to 

general questions until the very end, I’ll extend this for another 10 

minutes for a couple more questions. If you could please just keep 

them a little bit briefer. 

I wanted to give Wei Jingsheng an opportunity to ask a question 

first, and then we’ll let others ask them. 

Mr. WEI. I just want to remind the CECC today of one very important subject which is about the Chinese human rights situation’s association with American policy. We all know the Chinese 

human rights situation is terrible, but one of the worst parts is 

Chinese workers’ rights to strike for unionization is almost completely non-existent. 

This has resulted in extremely cheap labor in China in which 

they produce extremely cheap products which get dumped into the 

United States, and thus produces the result of unemployed workers 

in America. In this process I am afraid that American businesses 

have played a role to help the Chinese Government to exploit Chinese workers. The reason is very simple, because they get a huge 

profit from the cheap labor and they share this huge profit with the 

Chinese Government. 

Since the time of PNTR 10 years ago, I am afraid that this trade 

deficit with China has been getting worse and worse every year. I 

am seeing that the bad Chinese human rights situation is closely 

tied to the Americans’ daily lives. 

CECC was established due to this reason, so, therefore I think 

this Commission has reason to correct such a mistake. 

Thank you. 

Mr. LIU. Thank you. That was very nice of you. 

Yes. Do we have questions? Okay. Go ahead and speak into the 

mic. If you want to introduce yourself, please feel free to do so. 

Ms. JIA. [Question asked in Chinese.] 

TRANSLATOR. I will try to translate for her. 

Mr. LIU. And if you could try to get to your question. 

TRANSLATOR. My name is Jia Jianying. I am the wife of He Depu. 

My husband spent eight years in prison. He was released in January this year. 

On the day that my husband was released in January, even right 

on that time, several police beat him up in front of me. I was there 

to pick him up. I cried and I shouted and tried to prevent them, 

and tried to help my husband. It was in vain. I just wanted to mention this to let you pay more attention to the torture and the situation of the human rights in China. 

People are forbidden to speak out, even when they are tortured 

or beaten up. Not only the lawyers, but also the normal people, the 

victims, and the victims’ family. 

Mr. LIU. Thank you. I just want to make sure that we have 

enough time for the last remaining questions. But we thank you 

very much for your comments and appreciate it. 

Does anybody else have any questions? 

25 

Mr. FEI. Hello. My name is Yong Fei, and I’m from Laogai Research Foundation. My question is, right now, one, actually Chinese students try to study abroad, like in the United States or in 

the United Kingdom. I wonder, is that possible for those students 

to take an active role in the future and what are the potential challenges for those young teenagers in China to deal with the human 

rights issue back in China? 

Ms. WICKERI. That’s a great question. In fact, I think that this 

echoes what Dr. Li was saying earlier about change, real systemic 

change having to come from inside of China. So there’s certainly 

a role for students to play. But I want to emphasize, I don’t think 

that students have to study abroad in order to play an active role. 

I have been really impressed by a number of very young activists 

and public interest workers in China, some of whom have studied 

abroad but many of whom have not who have taken a real interest 

in developing and working in the public interest world inside 

China. So, I think that is a really positive note. 

Ms. COOK. I would just say, from the perspective of information 

flows, that it is a really special opportunity, I think, for students 

to be able to travel outside of China. They can learn about certain 

perspectives and access information they might not be able to encounter in China. I have quite a few Chinese friends who talk 

about a definitive experience of sitting in class and having the professor mention what happened in 1989, or watching video footage 

of the tanks and students, and how that really changed how they 

thought about China, how they thought about their own country, 

its history, and their role. So, I would say that could be one thing 

to try to do—to keep an open mind and seek out alternative perspectives. 

The other thing would be to learn about some of the different 

ways in which, when students go back to China, they can continue 

to access information abroad and remain safe online, too. In addition to just accessing information, if they want to continue reading 

certain information or communicating with people outside of China, 

particularly on human rights issues, they should be aware of some 

of the measures that they can take to remain safe. And they can 

even share those ways with their friends. 

Ms. LEWIS. And particularly with respect to law students, which 

there are thousands and thousands now in China, I think that 

there’s been a move to start having more clinical legal education. 

It’s difficult to do, but having students feel that they can be empowered to help people, even with very simple disputes, or that it’s 

not just about memorizing laws for the bar exam, but that you can 

actually have a positive impact in someone’s life. If you learn that 

as a student, I think you carry that throughout your career. The 

reality, though, too, is that when you get out of school you need to 

find a job, as I’m sure many people understand in this room. So 

we can say, go be a human rights defender, but you also need to 

support yourself and oftentimes family members in China. 

I’ve been happy to see some foreign funding even going toward 

helping young public interest lawyers have a couple-year fellowship 

because, as much as we can say you should do this kind of work, 

we also need to make it so people then can go home and have a 

house, and have food, and have the basic needs, which you just are 

26 

not going to be able to do on your ideals alone. I think that more 

funding for those kinds of programs is also a way to make people 

believe they can make positive change and do this as their career, 

not just once in a while. 

Mr. LIU. Thank you. 

We have time for one very brief question. So if you could please 

keep your question short. Go ahead. 

AUDIENCE PARTICIPANT. So when it comes to environmental policy, there’s a serious enforcement gap between the local and central 

governments. Local governments, even if they’re told by the central 

government to clean up or have stricter enforcement of certain environmental regulations, often flout these and ignore them because 

of business interests local officials may have. 

So environmental advocacy groups often try to protest these 

things, but then they get silenced. But as Chinese environmental 

problems get worse, do you think the central government will take 

a greater interest in listening to environmental advocacy groups or 

will they continue to silence them? 

Ms. WICKERI. One thing I would say is that certainly as with any 

issues like environmental concerns that don’t recognize local provincial boundaries and that have a tendency to spread, authorities 

will have no choice but to pay attention to these problems at some 

point. But environmental issues used to fall into this category of 

a ‘‘safe’’ area to work on as a public interest advocate or a human 

rights defender. We’ve seen in the past couple of years that that’s 

just less and less the case. 

A number of colleagues and I have noticed that this line between 

what is a ‘‘safe’’ issue to work on and what is a ‘‘sensitive’’ issue 

to work on has become more and more blurred. We can’t, anymore, 

say that health and the environment are those areas where, as a 

human rights advocate or a public interest worker, you can work 

on and be assured that you won’t be visited by local public security 

officers. That perhaps used to be the case, or maybe we weren’t just 

seeing the signs. 

So it is not necessarily the case that there are areas of human 

rights work that people can carve out and ‘‘safely’’ work on. I think 

what that means is that we have to be concerned with a comprehensive area of public interest work and human rights in China. 

Mr. LIU. Okay. Well, thank you very much. 

On behalf of Senator Brown, I wanted to thank everyone for coming to today’s roundtable. I especially want to thank our witnesses 

for today. They gave some great testimony. I know Senator Brown 

was very sorry that he couldn’t stay longer and he will be looking 

forward to the transcript from this roundtable. 

Thanks again. This roundtable is adjourned. 

[Whereupon, at 3:41 p.m. the roundtable was adjourned.] 

(27) 

A P P E N D I X 

28 

PREPARED STATEMENTS

PREPARED STATEMENT OF ELISABETH WICKERI

JUNE 23, 2011

Mr. Chairman and members of the Commission, I am grateful for the opportunity 

to participate in today’s roundtable, and for your leadership on the important topic 

of the situation of rights defenders in China today. I would like to thank you, your 

fellow commissioners, and the CECC staff for inviting me. 

I am here today representing the Leitner Center for International Law and Justice at Fordham Law School, and specifically the Committee to Support Chinese 

Lawyers, an independent NGO based at the Center. The Committee is a group of 

independent lawyers from outside China whose mission is to support lawyers in 

China in their quest to uphold the rule of law there. The Committee seeks to 

strengthen the role of lawyers in China and to promote their independence through 

public education, research, advocacy, and trainings. 

Today’s roundtable is extremely timely and important because current conditions 

for rights defenders and human rights lawyers in China are in flux. Since February 

2011, following online calls for a ‘‘Jasmine Revolution,’’ rights defenders and lawyers 

have been increasingly detained, disappeared, abused, and subjected to a range of 

strict methods of surveillance and control, even after release. In my comments 

today, I would like in particular to highlight the especially pronounced chilling effect 

this suppression has caused. I will suggest that the individuals that have been most 

seriously impacted are still in need of public calls for support and attention to their 

cases, by government and other actors. 

Concern for rights defenders and human rights lawyers in China is not something 

we come to anew today. On many occasions over the past several years, NGOs, professional associations, activists, and academics have had cause to voice their concerns about the difficult position for these actors in China. For example in the run-up 

to the Beijing Olympic Games, during important visits to Beijing by visiting dignitaries, on sensitive historical dates such as June Fourth, and even in the wake 

of the announcement that Liu Xiaobo would receive the Nobel Peace Prize, activists 

would be confined their homes, brought in for questioning, and barred from leaving 

the country, but these conditions were generally loosened following the completion 

of the ‘‘sensitive moment.’’ Seasoned rights defenders and human rights lawyers, 

used to these modes of harassment, would generally return to their work upon release. 

However, since February of this year, the situation has deteriorated significantly, 

in particular for human rights lawyers who have, among other things, taken on the 

most unpopular criminal defense cases. 

The deterioration represents a marked shift in at least two ways. First, the 

breadth of the crackdown that lead to the detention and disappearance of so many 

individuals—at least thirty detentions, that many disappearances, and many more 

put under surveillance, in just a month—is much wider. Second, in the wake of the 

eventual releases of these individuals there is an eerie silence among lawyers and 

other defenders who would previously have remained vocal and outspoken in carrying out work that was admittedly unpopular with authorities. Even casual meetings over lunch or coffee have become difficult to arrange, because of the fear of 

associating with others working in this field, especially, of course, with foreigners. 

The result of these two differences has been a substantial chilling effect and a decrease in the space and people willing and available to carry out human rights and 

legal advocacy in China. 

The fact that lawyers and rights defenders have come out of detention less willing 

to return to work tells us something about their experiences before, during, and 

after detention. Many lawyers were simply disappeared as opposed to being formally 

detained; reports emerged about serious mistreatment, abuse, and torture while 

they were held; on release, people have had to sign statements admitting guilt or 

promising to behave. In the aftermath of their detention, they and family members 

have lived under very strict conditions, ranging from constant surveillance, to family 

members being arrested with their activist partners, to young children not being 

permitted to leave home to attend school. 

As troubling as these stories are, it is the silence among formerly outspoken and 

energetic lawyers that is especially troubling to me and suggests that, in the immediate aftermath of this crackdown, legal advocacy and human rights work in China 

is stalled. It has become more difficult to find lawyers in sensitive cases, for examVerDate Mar 15 2010 13:48 Aug 19, 2011 Jkt 000000 PO 00000 Frm 00032 Fmt 6601 Sfmt 6621 U:\DOCS\67865.TXT DEIDRE
29 

ple, in cases where lawyers themselves are accused of a crime. Shanghai-based lawyer Li Tiantian, who was disappeared on February 19 and reappeared on May 24, 

is one of the few individuals to speak out about her experience. On Twitter, she 

noted ‘‘the kind of fear that you can describe is small, while the kind of fear you 

can’t speak of is the greatest.’’ 

Lawyers are important not because they are lawyers per se, but rather, because 

lawyers have a multiplier effect with respect to human rights promotion and protection: they play a fundamental role within the system, protecting the rights of other 

civic actors, vulnerable citizens, and activists. Their special role, however, also 

makes them the target of abuse. Well before February this year, human rights lawyers in China faced serious challenges to fulfilling their professional responsibilities 

through legal and procedural obstacles, intimidation and abuse, and extra-legal attacks. This treatment of lawyers gives us a vital window onto what is happening 

in China today. 

The significance of the fear the Li Tiantian speaks of cannot be understated. The 

role of human rights lawyers does not rest only on whether their cases are successful. Indeed, successes may be few and far between. The importance, rather, is based 

on the possibility of their success when they are able to try. 

What policy implications emerge from this? I have four preliminary thoughts: 

• First, more voices—including those at the government level—are needed to 

call attention to the many individuals that have been targeted in this crackdown. Through this attention, they may be supported and provided some 

space to return to work. This includes public calls and sustained, private dialogue with Chinese actors, official and unofficial. • Second, international standards promoting the rights and freedoms of lawyers 

should be promoted and used to demonstrate how lawyers’ rights are being 

curtailed. Specifically, the UN Basic Principles on the Role of Lawyers, which 

members of the U.N. General Assembly, including China, adopted without 

dissent, are useful and can support standards already in the Chinese Lawyers 

Law which, in article 37, protects a lawyer’s ‘‘right of the person,’’ and affirms 

that a lawyer should not be held legally liable for the opinions he or she presents on behalf of a client. 

• Third, expanding opportunities for the trainings and exchanges of Chinese 

lawyers with colleagues abroad remain important and provide space for much 

needed dialogue, but must also include Chinese lawyers doing rights defense 

and other public interest work. 

• Fourth, as Professor Jerry Cohen, a member and Senior Advisor to the Committee to Support Chinese Lawyers, has increasingly emphasized, there is a 

need for foreign lawyers—many of whom benefit from doing business in 

China—to stand up and speak out for their Chinese colleagues. Bar Associations, including the International Bar Association and the New York City Bar 

Association have already done this. But our Committee believes that there is 

a professional responsibility for lawyers and law firms benefiting from their 

work in China to stand up and say something. 

Finally I will end on what I hope are two positive notes. First, some well-connected lawyers and legal scholars, like Chen Youxi, have begun to express concern 

for their marginalized colleagues. These voices can only benefit from more support 

inside and outside China. And second, I was happy to read reports yesterday that 

artist Ai Weiwei had been released. Not a lawyer, but an advocate for change, it 

is worrying that he was detained for so long without information about his condition. However, perhaps his is a case that demonstrates how sustained media attention and public calls can have positive results. 

Mr. Chairman, I’d like to thank you again for this opportunity to present a few 

thoughts. I am happy to answer any questions you or other commissioners may 

have. 

PREPARED STATEMENT BY XIAORONG LI

JUNE 23, 2011

The serious backsliding of the Chinese government’s human rights records had 

started before the 2008 Summer Olympics, highlighted with the jailing of activists 

Hu Jia, Huang Qi, and many others, the torture and disappearance of lawyer Gao 

Zhisheng, the imprisonment of Nobel Peace Prize laureate Liu Xiaobo and house arrest of his wife, both incommunicado, and the house arrest of Chen Guangcheng 

after his release. Yesterday’s release of the artist Ai Weiwei on bail awaiting for 

trial was in the same fashion as his arrest: with disregard of the Chinese law. All 

30 

these took place in the larger context of severe restrictions on freedom of expression 

and association, repression against religious and ethnic minorities, and significant 

roll-back on rule of law reform. 

Since February, several hundreds of people have been harassed or persecuted in 

one of the harshest crackdowns in recent years when the Chinese government tried 

to stamp out any sparks for protests in the Tunisia-style ‘‘Jasmine Revolution’’ after 

online calls first appeared. According to information documented by the group Chinese Human Rights Defenders, the Chinese government has criminally detained a 

total of 49 individuals, outside the Tibet and Xinjiang regions. As of today, nine of 

them have been formally arrested, three sent to Re-education through Labor (RTL) 

camps, 32 have been released but most of them not free: out of which 22 have been 

released on bail to await trial, while four remain in criminal detention. In addition, 

one individual is being held in a psychiatric hospital, and one lawyers remains 

under residential surveillance in unknown locations. At least 26 individuals are confirmed as having been subjected to enforced disappearance, some for as long as 70 

days. At least 10 of them remain unaccounted for as we speak. More than 200 people were put under ‘‘soft detention’’ at home, taken on ‘‘mandatory tour,’’ or questioned and intimidated by police. (An updated list of these individuals is appended 

at the end of this statement and can also be found at the CHRD website here: http:// 

chrdnet.org/2011/06/17/jasmine—crackdown/) 

Giving the difficulties in collecting and verifying information, these numbers are 

far from being complete. There are unconfirmed reports that extremely nervous authorities at the top level approved a list of more than one thousand individuals in 

February as the targets of this nation-wide crackdown. 

Many observers consider the current crackdown the worst since the postTiananmen man-hunt, arrests, and jail sentences after the June 4th massacre in 

1989 outside Tibet and Xinjiang. The current crackdown is believed to have affected 

more people than the 1998–99 suppression against organizers of China Democracy 

Party, an opposition party, in which several dozens of people were eventually sent 

to jail to serve sentences up to 15-years or longer. 

On distinction of this crackdown is that the government targets people beyond circles of political dissidents. The disappeared and harassed range from petitioners 

who try to lodge grievances against corrupt officials, to artists like Ai Weiwei, who 

use art to voice discontents of the powerless. This has been an all-out assault on 

civil society in the wake of rolling back on rule of law reform, especially as seen 

in authorities’ indiscriminating and ostentatious use of extra-judicial tactics. 

I particularly want to draw your attention to the fact that the Chinese government extensively and ostentatiously used extra-judicial tactics such as enforced disappearance, secret detention, and torture in the current crackdown, in clear violation 

of the international Convention against Torture, which the Chinese government 

signed and ratified in 1988. According to the Chinese Human Rights Defenders 

(http://chrdnet.org/2011/06/07/u-s-must-voice-concerns-over-china%E2%80%99s-assault-on-human-rights-lawyers-during-the-upcoming-legal-experts-dialogue-withchina/), the abuse included: 

• beatings, 

• use of electric batons on genitals, 

• sleep and food deprivation, 

• repeated and lengthy interrogations (on occasion for up to 20 hours at a time), 

• forcible injections and ingestion of unknown substances, 

• forced stress positions (such as sitting motionless on small stools for many 

hours at a time), and 

• threats to their families. 

Some individuals have also been coerced to sign statements in which they admitted ‘‘wrongdoing’’ and made various promises, such as to cease their activism. 

The harassment is designed to strike fear, and often targeting families including 

children. Take for example the AIDS activist, environmentalist Hu Jia, who has 

served almost 41⁄2 years in prison, is due for release in 3 days. His wife, Zeng 

Jinyan, is facing growing pressure from police in recent days. She fears that she 

and her 3-yr old daughter will be put under house arrest with her husband soon 

after his release. Releasing from prison followed by detention at home has become 

the fate of China’s well-known prisoners of conscience. The most horrific case is that 

of Chen Guangchen, who is blind. Mr. Chen was house-arrested with his wife and 

two young children after he was released from prison last year. Many efforts to visit 

them in their village, including attempts by CNN journalists and EU diplomats, 

have been blocked by security guards, often violently. And of course there is the case 

of lawyer Gao Zhisheng, who had disappeared after his release from prison where 

he was severely tortured. 

31 

What impact should this have on US policy toward China? The Chinese government has fought back to criticisms. It has threatened with economic sanctions of its 

own. That should be expected. But that is not the reason to give up public pressure 

and replace it with close-door‘‘dialogues’’and ‘‘strategic partnership.’’ Promoting 

human rights can be inconvenient. It may sometimes interfere with the economic 

and strategic interests of the US government. But a genuine commitment to such 

values as human rights means that there is to be no double standards applied on 

countries with different economic power status. 

We see very little as to what, if any, concrete outcome is achieved through the 

US-China Human Rights Dialogue, the Economic Strategy Dialogue, and the Legal 

Expert Dialogue, though the Obama Administration has been unusually outspoken 

about China’s rights abuses since its 2nd year. The ‘‘dialogues’ seem to do more to 

appease critics of complacency than to secure real change; its’ a diversion from the 

fact that nothing of consequence is being accomplished, because the Chinese government knows there is nothing to fear from delivering no concrete results following 

year-after-year’s ‘‘dialogues.’’ The Chinese government even welcomes close-door dialogues because they remove the spotlight from exposing its human rights abuses. 

Chinese officials are quick to cite the existence or resumption of dialogue as sign 

of ‘‘progress’’in human rights. 

When the Chinese government clearly lacks any political willingness to curtail its 

violations, any ‘‘quiet diplomacy’’ and behind-door engagement must be coupled with 

public pressure. Dialogue and cooperation can be useful, but only when the partner 

government shows political willingness to improve its records. The US-China human 

rights dialogue, if it is to proceed, must be tied to concrete and publicly articulated 

benchmarks. These benchmarks should not be ignored when they prove inconvenient or getting in the way of U.S. economic and strategic interests. 

Many have argued against publicly criticizing a rising economic power on human 

rights because, they contend, economic liberalization will lead to greater political 

freedoms. Enough time has passed for critically examining this position. 30 years’ 

economic development in China has not brought fundamental changes in human 

rights. An unaccountable government is more likely to be corrupt and irresponsible 

to their people’s most urgent needs. In China there have been rising numbers of protests, some 90,000 annually for the past few years by the government’s own count. 

The protests are fueled by growing discontent over corruption and arbitrariness of 

official policies. Moreover, the Chinese government has used its economic clout to 

strengthen its censorship, increasing police surveillance and political repression domestically, and internationally, boosting its lobbying efforts to undermine human 

rights standards and weaken their implementation. China tries to take any teeth 

out of the international human rights system that might one day be applied to its 

own shameful records. And it is aggressively replicating its ‘‘economic growth at the 

expenses of human rights’’ to other developing countries, in Southeast Asia, Africa 

and Latin America. 

Consistent and substantive international pressure can make a real difference. By 

strongly exposing or condemning abuses, conditioning access to military cooperation 

or market, imposing targeted travel or banking sanctions on abusive high-rank individual officials, and calling for prosecution of those responsible, for example, the US 

government can increase the cost to the Chinese governments for harassing activists 

and lawyers. Credible and consequential pressure help create space for local activists to push their government to reform, and allow those persecuted by their government know they do not stand alone. 

To borrow some suggestions I made during a meeting with President Obama, 

which I participated in January, I continue to argue that long-term U.S. efforts to 

promote human rights in China should aim to: 

1. Support civil society, and in particular, support activists and lawyers who 

are taking great personal risks to promote human rights and democracy. The 

hope in China’s future lies with Chinese citizens. They are speaking up, organizing, and demanding that their rights be respected. For nearly a decade now, 

a civil rights movement known as the ‘‘rights defense movement’’ has spread 

among citizens of many kinds. Victims of forced eviction or migrant laborers are 

transformed into rights activists when they see their efforts to remedy injustices 

answered with censorship, police brutality, and corruption in legal institutions. 

Some practical ideas for supporting civil society include: 

(a) Make strong and clear public statements that support human rights 

activists and that speak directly to the Chinese people: Rhetoric is important. The Chinese authorities, in service of their own power interests, consistently imply that ‘‘we are China’’ and ‘‘China is us’’ and that is all. Yet 

the most significant and sensitive divide in China today is between the ChiVerDate Mar 15 2010 13:48 Aug 19, 2011 Jkt 000000 PO 00000 Frm 00035 Fmt 6601 Sfmt 6621 U:\DOCS\67865.TXT DEIDRE
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nese state and its citizens. It is insensitive to lump rulers and ruled together as if they were the same thing and as if only the rulers can speak 

for the whole. 

(b) Facilitate Internet freedom: Today the Internet is the most important 

tool, with which ordinary citizens can access information, express their 

views, organize themselves, and engage in activism. The US government 

should do what it can to provide Chinese Internet users with technical 

support to skirt the ‘‘Great Firewall’’ and hold American IT companies accountable for the sordid practice of supplying the Chinese government with 

technology that facilitates censorship and surveillance. 

2. Focus on holding the Chinese government to its own rhetorical commitments to its citizens. Such an emphasis is effective in its own right and will 

also help to avoid stimulation of anti-Western‘‘nationalist’’ sentiment. If the 

Chinese government is called upon to observe the constitutional and legal commitments that it has made to its own citizens—some of which are inscribed in 

international protocols—it can hardly claim ‘‘interference.’’ 

3. Strengthen the US role in multilateral forums such as the UN Human 

Rights Council. The Chinese government participates actively in the UN 

Human Rights Council. The US should use the UN HRC more effectively, to 

press for Chinese government adherence to the international human-rights conventions and covenants that it has signed and/or ratified. Such a policy would 

require the US to take a leadership role in forums such as the UN HRC and 

to work there to build multilateral coalitions to hold the Chinese government 

accountable for its failure to respect international norms as well as to prevent 

it from attempting to change those norms. This kind of international scrutiny 

undercuts the Chinese government’s exceptionalist claims about ‘‘human rights 

views with Chinese characteristics’’ and leaves claims about ‘‘interference in internal affairs’’ vacuous. It also decreases the Chinese government’s ability to fan 

nationalist sentiment at home into opposition to ‘‘Western’’ human rights. 

4. ‘‘Rule of law’’ assistance programs and exchange of ‘‘legal experts’’ should 

be made relevant to administrative and legal problems responsible for human 

rights abuses. The Communist Party elite in China welcomes Western legal 

assistance programs insofar as they strengthen a legal system that it, the 

Communist Party, can continue to dominate. Such assistance is seen as 

strengthening, not weakening, the one-Party rule. The Party’s ‘‘Political and 

Legal Committees’’ are tools the Party uses to control on the judiciary at every 

level, where they dictate legal procedures as well as verdicts. US assistance to 

‘‘rule of law’’ programs is misconceived insofar as it assists the current legal system in being more efficient. Instead, US legal assistance would be better directed toward problems such as widespread torture. The Chinese government 

ratified the Convention against Torture in 1988. US legal aid could also be used 

to strengthen protections for criminal defense lawyers from prosecution or being 

barred from practicing law. 

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PREPARED STATEMENT OF SARAH COOK

JUNE 23, 2011

Thank you very much to the Commission for organizing this roundtable. One of 

the topics I’ve been asked to speak about today is the internet dimension of the 

work of Chinese human rights lawyers and the repression they have faced, as well 

as to reflect on some of the underlying dynamics that have contributed to this latest 

crackdown. 

Drawing on findings from Freedom House’s recently released Freedom on the Net 

report, as well as our weekly China Media Bulletin, I thought I would focus in my 

remarks on three points: 

1. How human rights lawyers and activists in China have used the internet and 

social media. 

2. What internet controls these individuals have encountered and how these are 

a microcosm of a broader, robust internet control apparatus. 

3. How the long term practice of the Chinese Communist Party using arbitrary, 

extralegal measures to suppress free expression laid the foundation for this 

more recent crackdown. 


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ONLINE ACTIVISM

As in many countries, when you go down the list of China’s leading lawyers and 

activists, almost every one of them has used the internet to expose human rights 

abuses, educate fellow citizens about their legal rights, and advocate for genuine 

rule of law reforms. 

Gao Zhisheng published open letters documenting the torture and killing of Falun 

Gong practitioners. Xu Zhiyong blogged about the inhumane treatment meted out 

to petitioners. Teng Biao used Twitter to alert other netizens that he had been arbitrarily detained. Ai Weiwei produced a video of people reading the names of the children who died in the Sichuan earthquake, then circulated it online. 

But what is different from the dynamics in more democratic societies is that these 

initiatives are an indirect testament to the limits of legal recourse in China. In fact, 

it is in part because of the weakness of rule of law protections that many of these 

activists and lawyers have taken advantage of new media technologies to publicize 

abuses and press judges and government officials to respect the rights of their clients, and more recently, of themselves. 

ENVIRONMENT OF HARSH INTERNET CONTROLS

The other aspect to keep in mind is that they are engaging in these activities in 

the context of the most robust, sophisticated, and multi-faceted internet censorship 

apparatus in the world. One, that according to a recent study on internet freedom 

that Freedom House released in April, has further expanded and tightened over the 

last two years. 

These individuals have encountered the gamut of internet controls that play out 

in China, from blocked websites to disabled blogging accounts, from ‘‘invitations to 

tea’’ to enforced disappearance and torture. Many of them keep multiple blogs, playing hide and seek with censors, hoping that even if commentary on one blog is deleted, perhaps another hosting service may be more lenient. 

So, for instance, for Gao Zhisheng to post an open letter or Teng Biao to use Twitter, the first thing they have to do is safely get around the so-called ‘‘Great Firewall.’’ In May 2009, Ai Weiwei’s blog was shut down after he repeatedly posted the 

details of children’s deaths in the 2008 Sichuan earthquake and aired accusations 

that they were caused in part by official corruption. Xu Zhiyong’s blog was shut 

down in July 2010. In other instances, such as surrounding the 2010 awarding of 

the Nobel Peace Prize to Liu Xiaobo, the internet and mobile-phone connections of 

dozens of prominent lawyers and bloggers across China were disrupted, in an apparent effort to stop them from spreading news of the award, particularly via Twitter. 

And then there are the offline tactics. Though the latest detentions have been the 

longest, over the past five years, practically every one of these human rights defenders has experienced one incident or another of being abducted, beaten, and in some 

cases, badly tortured, including being shocked with electric batons. 

Perhaps a more insidious dynamic has been that as real world measures against 

them escalate, in some instances, we’ve seen a corresponding implementation of censorship related to their names, an attempt to make them disappear in the virtual 

world as well. Following Ai Weiwei’s abduction in April, censorship has not only applied to his name but directives have been leaked that include orders to delete within ten minutes even an editorial with veiled reference to him. Gao Zhisheng, who 

has been disappeared for over a year, was listed as a sensitive key word on a list 

leaked by a Baidu employee. A search for his name on China’s most popular search 

engine primarily produces state-run news sources referring to him as a ‘‘criminal.’’ 

There are no links to his own writings. 

What is striking in the case of both of these men is that in an earlier era, they 

were the subject of quite a bit of official support and media coverage. In 2001, Gao 

was named one of the top ten lawyers in China in a legal debate competition on 

television sponsored by the Ministry of Justice. And of course, Ai Weiwei was invited to the design the Bird’s Nest for the 2008 Beijing Olympics. And now, the 

state is hoping people will forget they exist. 

WHY IS THIS HAPPENING?

As other panelists have noted, we too, in Freedom House’s various assessments 

of political rights and civil liberties, have observed a backsliding in the Chinese government’s commitment to the rule of law since 2006. But what is worth noting is 

that even during the earlier part of last decade when limited legal reforms appeared 

to be moving forward, in parallel, was an extralegal world, a world of makeshift 

detention centers, forced labor camps, and plainclothes police forces torturing with 

43 

impunity. That is the world that tens of thousands of petitioners and Falun Gong 

practitioners have been experiencing for years. 

Many of the lawyers we’re talking about here today have spoken about their encounters with this world in their writings. They have voiced the concern that the 

tactics and strategies developed to suppress one group can also be quickly and easily 

applied to others. It is evident from their writings that the reason they take such 

risks to work on politically sensitive cases is because they feel very strongly that 

if the current system is not able to protect these innocent people from such severe 

abuses, every Chinese citizen is at risk at well. 

Thus, the current series of abductions cannot be viewed in a vacuum. Rather, 

what we’re seeing manifest in recent months is an expansion of suppression. It is 

the reflection of a decision taken somewhere at the top of the Party that a group 

of individuals whose work and activism had previously been tolerated are now ‘‘persona non grata’’ and that the Party is willing to apply the full force of a pre-existing 

extralegal repressive apparatus to silence them. And, of course, they are able to take 

such actions unconstrained by institutional mechanisms like an independent judiciary. 

From that perspective, were Gao Zhisheng and some of these lawyers here today, 

one thing I think they would recommend is for U.S. policy to go beyond focusing 

on them, despite the urgency of their plight. They would urge serious action to address the plight of the full range of clients and causes they have defended. Taken 

together, the victims of Communist Party repression go far beyond dozens of activists, amounting to tens of millions of people. When the day comes that these people 

have their rights protected, that is when lawyers will no longer need to worry about 

being abducted or disbarred either. 

Given the harshness and scale of this recent crackdown and other signs of the 

Chinese leadership backing away from a commitment to the rule of law, it may be 

time for a recalibration of U.S. policy on human rights in China. A revised strategy 

should be developed based on an understanding that the current leadership, and the 

leadership to assume power in 2012, are very unlikely to institute crucial legal reforms, while continuing to pursue a policy of enhancing internet controls, particularly on speech of political and social consequence. 

A few other recommendations that I hope will be helpful for our discussion: 

1. U.S. officials should speak frankly of Chinese abuses: When the Chinese authorities engage in acts that clearly violate international human rights 

commitments and Chinese law, high-ranking members of Congress and the administration should consistently articulate that such violations have occurred, 

similar to recent remarks in response to Russia’s rejection of an opposition party’s registration. A less vocal approach can be construed as acceptance or acquiescence in these abuses, which is not a signal U.S. officials should, or that many 

would want to, send. On particular human rights issues, the legal arguments 

these human rights lawyers are making to Chinese courts may be a helpful resource. 

2. U.S. official should meet with human rights lawyers and activists: 

When U.S. policymakers travel to China, they should meet with human rights 

lawyers and activists working on relevant issues, in addition to meeting with 

government officials. Beyond showing support and solidarity for their work, 

these individuals are able to provide visitors with a credible, first-hand account 

of events at the grassroots level of Chinese society that may otherwise be hard 

for outsiders to access. 

3. The U.S. should continue efforts to expand internet freedom in 

China: The U.S. and other government should continue to support and explore 

the expansion of methods that counter the effect of internet controls in China, 

including tools that allow Chinese users to circumvent information blocks. As 

evident from the work of these lawyers, the boomerang effect of information 

being posted outside and then trickling back into China is an important channel 

of communication, particularly on topics that are heavily censored within China. 

Beyond the direct impact on free expression, a further closing of the information 

space in China portends very poorly for fundamental governance and rule of law 

reforms. 

4. U.S. officials should address the most serious abuses in dialogues 

with Chinese counterparts: In conversations and dialogues with Chinese officials, policymakers should push not only for reforms that the Communist Party 

may be more amenable to implementing, but also address the most victimized 

groups and large-scale abuses, such as those committed against petitioners, 

Falun Gong practitioners, Tibetans, and Uighurs. Though these groups may appear to some to be on the margins of society, in practice, the repression they 

face affects tens of millions of people. Moreover, the tactics developed to supVerDate Mar 15 2010 13:48 Aug 19, 2011 Jkt 000000 PO 00000 Frm 00047 Fmt 6601 Sfmt 6621 U:\DOCS\67865.TXT DEIDRE
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press their rights can spread and pose a serious obstacle to genuine rule of law 

in China. 

Thank you. 

Additional resources: 

Freedom on the Net: www.freedomhouse.org/freedomonthenet2011 

China Media Bulletin: www.freedomhouse.org/cmb 

PREPARED STATEMENT OF MARGARET K. LEWIS

JUNE 23, 2011

Mr. Chairman and distinguished Members of the Commission, I am privileged to 

be invited to participate in this roundtable and greatly appreciate the Commission’s 

efforts to improve American understanding of China and the specific issues at hand. 

The topic of today’s roundtable—‘‘Current Conditions for Rights Defenders and 

Lawyers in China, and Implications for US Policy’’—is timely and complex. In my 

brief opening remarks, I have been asked to place the recent crackdown in the 

broader context of overall legal reform and rule of law developments in China, especially with respect to reform efforts in the criminal justice system. I will focus on 

the first part of today’s topic, namely, addressing what are the current conditions, 

and then briefly suggest policy implications that flow there from. 

The path of legal reform in China never did run smoothly, but I think it is fair 

to say that it is a particularly challenging time for legal reform. In part, this reflects 

an overarching political climate that emphasizes stability and is wary of anyone who 

is seen as rocking the boat. 

A week from tomorrow, July 1, marks the 90th anniversary of the founding of the 

Chinese Communist Party. The Party has demonstrated impressive adaptability 

over its six decades of uninterrupted rule. Despite reports of some disagreements 

among the top leaders, the public face is one of orderly transition on a periodic 

basis, as seen in the handing of power from the third-generation leaders to fourthgeneration leaders in the early 2000s and, as currently playing out, to the fifth-generation leaders. As the composition of the Poltiburo Standing Committee and other 

top positions are negotiated, it is not surprising that candidates for the next generation of leadership would take a risk-averse stance when it comes to advocating significant reforms, especially when those reforms could be unpopular with current 

leaders. Looking beyond the immediate term, the public accolades by current and 

rising members of the Party leadership for the harsh law-and-order tactics used by 

Bo Xilai, the Chongqing Party Secretary and rising star on the national scene, raise 

serious questions whether we can expect a more pro-reform climate after the leadership transition is complete. 

Exacerbating the cautious climate is the leadership’s awareness of popular unrest 

in the Middle East and concern that fermenting discontent at home could blossom 

into China’s own Jasmine Revolution. It is difficult to quantify public discontent but, 

at a minimum, the rhetoric out of Beijing has moved beyond the ubiquitous slogan 

of ‘‘harmonious society’’ (hexie shehui) to emphasize ‘‘social management’’ (shehui 

guanli) and preserving stability. From a legal reform perspective, my concern is that 

the government fundamentally views lawyers as undermining stability rather than 

enhancing it. When I was in China last month, I was struck by a decrease in the 

level of candid conversations at various meetings on legal reforms as compared with 

even last year. 

Turning particularly to how this climate impacts criminal justice reforms, there 

is no shortage of formal laws and regulations on the books in China. And, in fact, 

the past year has seen ostensibly promising reforms. Along these lines, the Criminal 

Law was amended this spring to decrease the number of death-eligible crimes by 

thirteen, leaving a total of fifty-five death-eligible offenses. Reports that the number 

of death-eligible crimes decreased by 19.1 percent—a simple mathematical formula 

dividing thirteen offenses by the original sixty-eight offenses—sounds more dramatic 

than the expected percentage decrease in actual executions. In reality, the reforms 

will likely have a much smaller impact on the total number of executions because 

the death penalty was seldom imposed for those crimes anyway. 

As further example of recent legal reforms, this past year the five government 

bodies that participate directly in the criminal justice system issued two sets of evidence rules that are notable for providing a mechanism to suppress illegally obtained evidence, most conspicuously coerced confessions. The announcement of these 

rules closely followed the disclosure of a wrongful conviction scandal involving a 

farmer named Zhao Zuohai. Zhao was convicted of murdering his neighbor, but he 

fortunately had his death sentence commuted to a long prison term. Ten years after 

45 

his conviction, the alleged murder victim showed up very much alive. The media 

and Internet were soon aflame with reports that police tortured Zhao to extract his 

confession. 

The problem is that lawyers who actually seek to implement these reforms are 

hitting serious political roadblocks. There have been but a few scattered reports of 

lawyers successfully using the new evidence rules to suppress illegally obtained evidence. Disturbingly, in July 2010, the lawyer for a defendant named Fan Qihang 

submitted evidence that Fan was tortured, including a secretly made video of a detained Fan showing scars on his wrists that he said resulted from the police shackling and suspending him during interrogations. Despite the recent implementation 

of the new rules that call for a hearing when there is evidence that the police obtained a confession through torture, the Supreme People’s Court promptly upheld 

the sentence, and Fan was executed in September 2010. 

In addition to the substantial challenges that lawyers face when trying to 

operationalize reforms and serve as effective advocates for their clients who are accused of crimes, lawyers are finding themselves in court as defendants. For example, 

the conviction in 2010 of lawyer Li Zhuang for encouraging people to give false testimony raised concerns that he was really being targeted for zealously defending unpopular clients. Considering such perils and the general lack of social prestige for 

defense work, it is a wonder that people pursue careers as criminal defense lawyers 

in China, especially outside of the relatively financially lucrative realm of white-collar crime. 

In speaking about the role of lawyers, it bears emphasizing that the topic of today’s roundtable is the current conditions of both lawyers and rights defenders. As 

a member of the legal profession, I hope that all lawyers seek to defend people’s 

rights. In China, so-called ‘‘rights defenders’’ go beyond licensed lawyers: There is 

an additional population of non-lawyers who are nonetheless seeking to use the 

legal system to effectuate change in China, such as the blind activist Chen 

Guangcheng who taught himself enough law to assist villagers with their grievances 

against the government. Since completing a four-year sentence for damaging property and disturbing traffic, Chen and his family have been held under informal 

house arrest. Reports of government-sanctioned physical abuse underscore that the 

term ‘‘soft detention’’ (ruan jin) utterly fails to capture the harsh reality of Chen’s 

post-prison life. 

As another example of a non-lawyer citizen seeking to defend people’s rights, Ai 

Weiwei, the renowned artist and outspoken government critic, was detained by authorities at the Beijing airport in April 2011 on suspicion of ‘‘economic crimes.’’ Over 

a month later, the government clarified that Ai is being held for tax evasion and 

destruction of corporate financial documents. This is not a simple story of allegations of economic crimes. Rather, Ai’s high profile and dogged efforts to expose 

government corruption, including seeking justice for parents who lost children in 

shoddily constructed schools during the 2008 Sichuan earthquake, make him a bigger threat than any mere tax evader. 

Going forward, a key question is how can the PRC government manage expectations of the populace in the face of a graying population, growing environmental 

pressures, and other destabilizing effects. The incorrigible long-term optimist in me 

wants to believe that the government will eventually view lawyers as a positive 

force to help express citizens’ grievances and effectively channel them through a 

formal process instead of leaving people to vent their frustrations in the streets. 

However, at present, the emphasis is on the rhetoric of the ‘‘rule of law’’ with a reluctance to allow people to actually make use of the laws in a meaningful way. 

Finally, what are the implications of this challenging landscape for US policy? The 

official US-China Human Rights Dialogue and slightly less official Legal Experts 

Dialogue are valuable for maintaining high-level bilateral discussions, though I 

think we must keep our expectations very modest for these forums’ ability to spur 

legal reform in China. 

Although we also cannot expect instant gratification from more informal legal cooperation, I remain convinced that sustained interpersonal contacts will serve as a 

positive force for legal reform. For example, China’s efforts to reduce wrongful convictions open up possibilities for collaboration on projects regarding techniques to 

improve evidence collection, including use of DNA evidence. Similarly, new rules in 

China requiring asset disclosures by government officials as a means of reducing 

corruption offers the possibility for a substantive discussion about the US government’s experience with requiring disclosures as a prophylactic tool to prevent conflicts of interest. And, indeed, the new rules addressing the exclusion of illegally 

obtained evidence followed years of comparative legal research and many projects 

involving foreign assistance. The scope for substantial bilateral collaboration is, no 

doubt, limited at present. But there are shared avenues of interest that dovetail 

46 

with the PRC government’s stated areas of reforms and that can and should be explored. 

Thank you for the opportunity to present a few thoughts. I look forward to our 

discussion with the Commission. 

Æ