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[Joint House and Senate Hearing, 108 Congress]
[From the U.S. Government Publishing Office]

 
AFTER THE DETENTION AND DEATH OF SUN ZHIGANG: PRISONS AND DETENTION IN 
                                 CHINA

=======================================================================

                               ROUNDTABLE

                               before the

              CONGRESSIONAL-EXECUTIVE COMMISSION ON CHINA

                      ONE HUNDRED EIGHTH CONGRESS

                             FIRST SESSION

                               __________

                            OCTOBER 27, 2003

                               __________

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

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

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91-305                        WASHINGTON : 2004
_______________________________________________________________________
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              CONGRESSIONAL-EXECUTIVE COMMISSION ON CHINA

                    LEGISLATIVE BRANCH COMMISSIONERS

House

                                     Senate

JIM LEACH, Iowa, Chairman
DOUG BEREUTER, Nebraska
DAVID DREIER, California
FRANK WOLF, Virginia
JOE PITTS, Pennsylvania
SANDER LEVIN, Michigan
MARCY KAPTUR, Ohio
SHERROD BROWN, Ohio
DAVID WU, Oregon

                                     CHUCK HAGEL, Nebraska, Co-Chairman
                                     CRAIG THOMAS, Wyoming
                                     SAM BROWNBACK, Kansas
                                     PAT ROBERTS, Kansas
                                     GORDON SMITH, Oregon
                                     MAX BAUCUS, Montana
                                     CARL LEVIN, Michigan
                                     DIANNE FEINSTEIN, California
                                     BYRON DORGAN, North Dakota

                     EXECUTIVE BRANCH COMMISSIONERS

                 PAULA DOBRIANSKY, Department of State*
                 GRANT ALDONAS, Department of Commerce*
                   LORNE CRANER, Department of State*
                   JAMES KELLY, Department of State*

                      John Foarde, Staff Director

                  David Dorman, Deputy Staff Director

* Appointed in the 107th Congress; not yet formally appointed in 
  the 108th Congress.

                                  (ii)

                            C O N T E N T S

                              ----------                              
                                                                   Page

                               STATEMENTS

Seymour, James Dulles, senior research scholar, Columbia 
  University, East Asian Institute, New York, NY.................     2
Tanner, Murray Scot, senior political scientist, RAND 
  Corporation, Arlington, VA.....................................     5

AFTER THE DETENTION AND DEATH OF SUN ZHIGANG: PRISONS AND DETENTION IN 
                                 CHINA

                              ----------                              

                        MONDAY, OCTOBER 27, 2003

                            Congressional-Executive
                                       Commission on China,
                                                    Washington, DC.
    The roundtable was convened, pursuant to notice, at 1:30 
p.m., in room 2168, Rayburn House Office building, John Foarde 
(staff director) presiding.
    Also present: David Dorman, deputy staff director; Susan 
Weld, general counsel; Carl Minzner, senior counsel; Steve 
Marshall, senior advisor; and Keith Hand, senior counsel.
    Mr. Foarde. I would like to welcome everyone to this issues 
roundtable of the Congressional-Executive Commission on China. 
On behalf of our Chairman, Jim Leach, and our Co-chairman, 
Senator Chuck Hagel, welcome to our two panelists and to all 
who are here to observe and to listen.
    Our subject matter today is not the most pleasant in the 
world, but we think that it is important and interesting. It is 
particularly interesting for us, with our mandate on human 
rights and rule of law.
    We had followed very closely the case of Sun Zhigang, a 27-
year-old fashion designer and migrant worker who died 3 days 
after his arrest last spring in Guangzhou. The autopsy showed 
that he had been badly beaten before his death. As the facts 
came out, he was beaten because he was unable to produce a 
residence permit.
    He was taken to a local police station and then moved to a 
custody and repatriation transfer center, which is part, or was 
part, of the nationwide system in China for the detention and 
control of migrant workers in urban areas. Sun died at the 
clinic of the transfer center on March 20.
    What ensued, from our point of view, was something valuable 
and unique, in that a debate broke out and public pressure was 
brought on the government about the whole question of custody 
and repatriation, about conditions not only in transfer centers 
for urban migrants, but also in detention centers, period.
    Although eventually that debate was cut off or truncated, 
we thought that it broke out for the first time in a number of 
very interesting ways. So, we wanted to get two experts on 
these aspects of the Chinese criminal justice system in to 
examine these questions.
    We are delighted that we have finally been able to get Dr. 
Jim Seymour to come down from Columbia to talk to us about the 
detention system. He has done a lot of work on Chinese human 
rights generally over the past 15 or 20 years, but particularly 
co-published or co-wrote a wonderful book on China's prisons.
    And Dr. Scot Tanner, who we had the pleasure of hosting at 
a hearing last year, and now is down here in the Washington 
area permanently, who is an expert on police and police 
procedure in the People's Republic of China [PRC].
    So, without further introduction, let me just say how we 
usually conduct things here at these roundtables. We normally 
give our panelists 10 minutes to make an opening presentation, 
with the understanding that you may not have time to cover 
everything you wanted to cover in 10 minutes.
    Once all panelists have spoken, we open it up to questions 
and answers from the staff panel. We hope we will also be 
joined by personal staff to our Commission members, but given 
what the weather is like at present, who knows whether they 
will actually join us.
    Everyone here will get a chance to do at least one round, 
if not two, of questions and answers. We give everybody about 5 
minutes to ask a question and listen to the answer.
    Without further ado then, let me introduce Dr. Seymour to 
start off with the presentation. Thank you.

  STATEMENT OF JAMES DULLES SEYMOUR, SENIOR RESEARCH SCHOLAR, 
    COLUMBIA UNIVERSITY, EAST ASIAN INSTITUTE, NEW YORK, NY

    Mr. Seymour. Thank you very much. I am delighted that you 
are holding these hearings today.
    I prepared a rather detailed, and I hope comprehensive, 
paper. I do not know where the pile ended up, but it is 
available. They are back there someplace.
    Anyway, I think I can see your eyes glazing over at the 
thought of my reading that paper, so what I thought I would do 
instead is let the paper stand as it is and I would just hit a 
few of the highlights, organizing my remarks somewhat 
differently, just to keep it clear and not unnecessarily 
complicated.
    It is kind of a good news/bad news scenario. I will start 
with the bad news, and then I will come back to--well, it is 
not really good news--but better news.
    The bad news is pretty well known. This is a very large 
prison system, upward of 2 million prisoners. It is erratically 
managed. It is often very poorly managed, although there are, 
of course, also some better managed institutions. Conditions 
are often very harsh. Even when administrators have the best of 
intentions, they lack the resources to maintain the prisons 
according to decent standards.
    Then, of course, there is the separate problem that many of 
the people in these prisons do not belong there. This is really 
outside the scope of my paper, but something that one has to 
keep in mind. There are arbitrary arrests, no judicial review 
of arrests, per se, and many miscarriages of justice. Even if 
people are guilty, they are sometimes ``guilty'' of something 
that we would not recognize as a crime, but rather of a 
political or religious offense.
    A third problem, is that often there are no trials. This 
brings us to the subject of administrative detention, that is 
to say, cases handled outside of the criminal justice system, 
which I will just touch on briefly.
    There is a whole constellation of regimes of administrative 
detention. For instance, there is one for handling people 
involved in drugs, another one for people involved in 
prostitution. Then there is the whole question of people 
incarcerated in mental institutions.
    The big issue is the so-called labor re-education. Now, the 
number of re-education prisoners has fluctuated widely over the 
years. There were about 400,000 such prisoners 20 years ago.
    Then the authorities seemed to want to reduce the size of 
this labor re-education, that is to say, people who were 
imprisoned without trial, apparently aiming at about 200,000, 
but in recent years it has usually been a little bit above 
200,000, maybe 230,000, 260,000, in that general range. People 
are held in 280 labor re-education camps, of which 86 are for 
drug offenders.
    Now, because the courts are meting out fewer intermediate 
length sentences and more shorter sentences, this may have the 
effect of pushing more people out of the prison system and into 
the labor re-education system. Also even though labor re-
education is normally an administrative punishment, meaning 
that they do not have to give suspects a trial, but nonetheless 
sometimes the courts will send people to labor re-education 
rather than to prison.
    I think I should perhaps move on and we can come back to 
this question of labor re-education. You will probably have 
questions. It is quite controversial, what should be done with 
it. What should foreign human rights advocates advocate in the 
case of labor re-education? I dare say that will come up in the 
discussion period.
    The better news can be found in five areas. I would just 
list them and then I will let you raise questions about 
whatever you are 
interested in.
    The first is that of the seven or eight forms of 
administrative detention, two have been eliminated, most 
importantly what Mr. Foarde referred to: the detention and 
repatriation regime that Sun Zhigang got caught up in. Because 
he was an intellectual and college graduate and so forth, when 
he died, that case got a great deal of attention. One likes to 
think he did not die in vain, because they did eventually, more 
or less, eliminate that practice. There had been large numbers 
of prisoners held under that regime. I can go into the details 
later on. So, we should be thankful for small favors. They have 
gotten rid of certain aspects of administrative detention.
    Second, the rate of imprisonment. Although I said that the 
numbers of prisoners is very large, 2 million, then you have to 
ask, well, is that a lot or a little, and it depends upon to 
what you compare it. If you compare China to Scandinavia or 
Japan, of course, this is a horrendously high rate of 
imprisonment.
    If you compare it to Russia or, God forbid, the United 
States, then all of a sudden it does not look like such a high 
rate of imprisonment. In the case of the United States, our 
prison population is very close to the prison population of 
China in size, but China has a population four or five times 
ours. So, if you do the math, you will realize that, compared 
to the United States, the size of the prison population in 
China is not great.
    The third point. I am not too comfortable putting this 
under ``good news,'' but sometimes the problem, which is indeed 
a very serious problem, of people being imprisoned for their 
religious views, political views, or activities, gets somewhat 
overstated. Some people are under the impression that this is a 
major part of the incarceration system in China, a huge 
percentage of prisoners being there for political or religious 
reasons.
    Actually, it is not a large percentage. It is hard to put a 
figure on it because it depends upon how you define political, 
how you define religious. But the great majority of the 
prisoners in China's prisons are there because the regime 
believes that they have committed something that we would all 
recognize as a crime. I put it that way because the regime may 
believe wrongly, and there are many miscarriages of justice.
    The fourth point, is that they have completely changed 
their thinking regarding the economics of the prison system. It 
used to be they hoped it would make a profit, or at the very 
least, that the prison system would be self-supporting, and 
they have given up on that idea and step-by-step moved away 
from that kind of thinking.
    Just last month, they began what one hopes is going to be 
the wave of the future. They are trying, in six provincial 
level units--two municipalities and four provinces--completely 
separating the prison enterprises from the prisons themselves. 
Not only that, but the funding of the prisons is all going to 
come from the government. None of the funding has to come from 
these enterprises. That should mark an improvement, for reasons 
that we can talk about.
    Finally, I think there is a realization in high places in 
China that the system needs to be reformed, and not just 
financially. In particular, inmates' living conditions need 
further improvement.
    A year ago, the Ministry of Justice held a work meeting on 
the upgrading of the administration of the prisons and their 
re-education regime. It was admitted that ``our efforts to 
build a core of gangzhang,''--that is to say, the 
administrators and guards in the prison--``have yet to 
completely meet the demands of the new situation and new tasks. 
The overall quality of the force still needs further 
improvement, and they need to constantly strengthen their law 
enforcement in a strict, fair, and civilized manner.'' Then 
they proceed to lay out an extremely ambitious 3-year program, 
and I have attached to my paper an account of that program as 
an 
appendix.
    This, of course, is not going to be easy for them to 
implement. One could detect a note of frustration on the part 
of Justice Minister Zhang Fusen. He cited on the need to 
address ``the sharp struggle in reform and anti-reform, as well 
as the struggle between corruption and anti-corruption.'' He 
obviously knows that he has a problem.
    Thus, improving this vast system is an awesome challenge 
and not simply a matter of rewriting laws and regulations. With 
the important exception of the problem of administrative 
detention, laws and regulations are in place which, in theory, 
should provide China with a decent penal system and also a 
decent system of administrative detention.
    The progress so far has been spotty, with huge variations 
from province to province and prison to prison. But experience 
demonstrates that, where there is a political will, prison 
conditions can be made satisfactory.
    Mr. Foarde. Jim, thank you very much. Just to clarify, we 
have passed out your paper. There is a distribution table back 
in the back, and everybody has got a copy.
    Scot, if you please, go ahead.

 STATEMENT OF MURRAY SCOT TANNER, SENIOR POLITICAL SCIENTIST, 
                RAND CORPORATION, ARLINGTON, VA

    Mr. Tanner. Mr. Foarde, Mr. Dorman, I would like to begin 
today by expressing my sincere thanks to the Members of the 
Congressional-Executive Committee on China for honoring me with 
the invitation, and also thank the committee staff, in 
particular Dr. Susan Roosevelt Weld, for her kind help in 
arranging my visit.
    I must also note for the record that, since I was last 
honored to speak to this Commission a little over a year and a 
half ago, I have taken a new position as a senior political 
scientist at the Washington offices of RAND Corporation.
    My comments today draw upon my longtime study of policing 
issues in China and are not part of any project I am currently 
undertaking for RAND. My views today are entirely my own and do 
not necessarily represent the views of RAND Corporation, its 
officials, or any of its many contracting organizations.
    My purpose today is to examine the recent wave or renewed 
popular and official attention to law enforcement abuses in 
China and analyze some of the recent reforms in police 
regulations designed to reign in some of these abuses.
    I am going to focus in particular on an issue that even 
many law enforcement officials concede is pervasive, and that 
is the widespread use of torture.
    My purpose is not monitoring or exposition of these abuses. 
That has been done much better by many courageous, dedicated, 
and meticulous individuals and organizations, including several 
here today.
    And although I am going to be discussing some recent 
changes in police regulations designed to deter torture and 
also the positive role played by some law enforcement reformers 
in China today, listeners should not infer from that any 
defense at all of the government's totally inadequate record in 
addressing law enforcement abuses.
    As I have argued before, any examination of the efforts of 
some Chinese to address law enforcement abuses must begin by 
confronting the painful distinction between the kinds of 
significant 
improvements that may be possible within China's current 
authoritarian system and more fundamental improvements that are 
not probably possible without institutional changes that are 
incompatible with the current system.
    China, like most authoritarian systems, lacks the 
institutions to create self-generating or self-sustaining 
monitoring of law enforcement abuses, or to generate effective 
political pressure for reform.
    The institutions I am talking about, of course, would be 
things such as a free and investigative press, civil society, 
human rights monitoring groups, professional judges and 
prosecutors, elections, and so on.
    The party has launched short-term crackdowns on abuses in 
the past--1998 was an example--but without these other 
fundamental institutional reforms, improvements are very 
difficult unless the top leadership keeps up the pressure.
    Beginning in late summer, we started seeing the first signs 
that another wave of attention to law enforcement abuses, 
especially administrative detention of migrants, detention 
exceeding time limits, torture, abuse of prisoners, was 
emerging within China's popular press, within its official 
legal press, and even in the speeches of some senior officials.
    So far, this has spawned renewed policy debates over how to 
handle these problems, and a few noteworthy changes in 
regulations. I would point to four or five significant 
political forces that have come together to pressure China's 
leadership to address these issues at the present time.
    These are, first, leadership succession politics and the 
desire of the new Party General Secretary and President Hu 
Jintao to find popular issues such as corruption and rule by 
law to strengthen his power base and his mass support.
    Second, the recent occurrence of several high-profile 
shocking cases of law enforcement abuses that acted as focusing 
incidents in the Chinese, that is, jiaodian shijian, for these 
problems.
    Third, the rise of a nascent public opinion pressure on the 
regime, in particular via a less restrained and increasingly 
competitive and sensationalistic press and Internet, all of 
which have raised public consciousness of these focusing 
incidents in a manner that we have rarely seen before in China.
    Fourth, the tireless lobbying and advocacy of a small 
number of reformist legal officials and scholars who, for more 
than a decade, have drafted and continually pushed proposals 
for stronger disincentives for law enforcement abuses, in 
particular, stiffer penalties and tougher rules of evidence.
    Fifth, I would say the international forces have always 
played a significant role. While it is impossible to say with 
any great confidence how much impact sustained international 
pressure by international human rights organizations, by the 
U.S. Government, or by other countries has had in shaping this 
response, we do know that in internal discussions of law 
enforcement policy reform, China's international reputation is 
frequently invoked as one among many justifications for change.
    We should also note that the changes proposed by legal 
reformers in China explicitly draw on Western, and in many 
cases Warren Court-era U.S. law enforcement reforms.
    Readers of China's legal press would probably never have 
anticipated this campaign at the beginning of the year. In 
early February, the Ministry of Public Security held a rather 
self-congratulatory nationwide meeting to launch a 5-year 
effort to reduce police violations of law and discipline.
    This meeting, however, began by claiming remarkable 
improvements that had been made against such abuses in 2002 
over 2001, including a claim of a 41.4 percent drop in torture 
cases over the preceding year.
    By mid-summer, however, it was clear that even official 
views of law enforcement discipline were changing quickly In 
China, as in most countries, including the United States, 
political perceptions of law and order are shaped far more by a 
few high-profile, heavily publicized focusing cases than they 
are by any official statistical measures of legal trends.
    The most famous cases, unquestionably, were the detention 
and beating death of Sun Zhigang, as well as the case of a 
mother detained by police whose baby starved to death because 
of police neglect, written up, I think, brilliantly in an 
article by John Pomfret.
    Cases that received not only extensive coverage in official 
and popular press outlets, but also in the West and, in 
particular, on the Chinese Internet. As with the SARS crisis in 
the spring, these new electronic media helped fan the nascent 
public opinion pressure that the government felt it could not 
ignore.
    We do also know, however, that there were other cases of 
illegal detention and torture that got spotlighted in Chinese 
law enforcement internal documents. Although they were not 
widely publicized, they appear to have had some impact in the 
process.
    These focusing cases soon became symbols in China's ongoing 
leadership succession process. Before his accession to power 
last November, General Secretary and President Hu Jintao had 
never made a public priority of legal reform or rule by law. I 
say this, having suffered from having read every published 
speech the man has ever given, something I do not recommend.
    Indeed, when he spoke of legal issues at all, it was often 
to endorse strike-hard anti-crime campaigns or to endorse Deng 
Zaoping's famous authoritarian dictum that ``stability 
overrides 
everything.''
    Very soon after his accession, however, Hu began making 
speeches and organizing seminars for top party leaders on the 
importance of law and constitutionalism. These talks contained 
few concrete proposals to reform legal institutions, and so far 
they have shown no sign of going beyond a very instrumental 
strategy of advocating rule by law in order to stabilize and 
professionalize the party's ruling position.
    Obviously, I have cut too long a presentation for myself. 
Let me get to the major points. On July 14, in response to Hu 
Jintao's pressure, the Minister of Public Security, Zhou 
Yongkang, gave a widely publicized press conference in which he 
attacked a number of these abuses.
    In response to this pressure, there have been two modest, 
but noteworthy, law enforcement policy changes, both of which 
draw on policy proposals long advocated by reformist scholars.
    In September, the Zhejiang Provincial Public Security 
Bureau announced tougher administrative punishments for police 
who commit torture, including automatic firing not just for 
them, but for their overseeing bosses. Also, if a public 
security department has two serious torture cases in a year, 
the head of the department is supposed to be fired.
    The second noteworthy change was a revision of the 
Ministry's regulations on handling administrative cases, the 
category of broad cases that include the Sun Zhigang case.
    I believe one of the most interesting aspects of this was 
that the regulations involved adopting an exclusionary rule for 
oral confessions, and perhaps other evidence illegally obtained 
by torture.
    These were improperly reported in the press as a ban on 
torture in China. As the Commission members no doubt know very 
well, torture has been illegal under Chinese law for decades. 
But this is a step toward bringing police internal regulations 
in line with those of courts and procurators to exclude 
illegally obtained evidence.
    In legal circles, these regulations rekindled a major new 
policy debate. Some have portrayed these as a step forward. 
Others have criticized them, arguing that these punishments 
might be substituted for criminal punishments for torture.
    Still others have expressed a fear that these might create 
unintended negative side incentives as local police, fearful of 
being fired, will step up their pressure to intimidate 
witnesses.
    I can go into more detail on this later. But I see these as 
a modest step forward in the direction toward establishing a 
solid, clear exclusionary rule for evidence obtained by 
torture.
    Prospects and obstacles. Two noteworthy positive points. 
One, is the nascent public opinion pressure via the press and 
Internet which could gradually become a persistent source of 
pressure and criticism on law enforcement abuses.
    Another modest source of optimism is that with each 
successive wave of attention to these law enforcement abuses, 
legal reformers seem to be making gradual progress in the 
intellectual battle toward law enforcement professionalism and 
the establishment of an exclusionary rule.
    Still, there is strong reason for pessimism that the 
current wave of leadership attention is going to be sustained. 
The letter of Chinese law has long banned torture to extract a 
confession, as I pointed out. The problem has always been 
getting sustained enforcement of these regulations.
    Despite the calls by Hu Jintao for judicial structure 
reform and these new regulations, there is no sign yet that 
anyone in China's top leadership is presently pushing for the 
kind of significant institutional changes that I have argued 
would be necessary to create self-sustaining, self-generating 
pressure against these abuses.
    Consequently, there is reason to fear that, as the 
leadership and popular attention to the problem eases, so will 
the pressure for 
improvement.
    Mr. Foarde. Lots of ideas there and a rich trove of 
question-producing ideas; the same from Jim Seymour's 
presentation.
    I am going to let you both catch your breath for about 1 
minute while I take care of an administrative matter or two.
    Because our Commissioners are, we hope, fast closing in on 
the end of the first session of the 108th Congress, we will 
probably not have another formal hearing this calendar year. We 
will be back in the spring, or probably late winter, to start 
our hearing series again.
    But we will continue to have these issues roundtables every 
couple of weeks through the end of this calendar year, and 
picking up again in January. So I do not have an announcement 
for you today, but please continue to watch our Web site, and 
that is www.cecc.gov.
    If you are not already signed up for our Web site, and I 
see from the people in the crowd that maybe you are, but if you 
are not, you can sign up on the front page of the Web site and 
receive our announcements. We try to get them to you at least 2 
weeks before the event.
    So, we will probably have a roundtable in November and one 
in December before the Christmas holidays start before picking 
up again after the first of the year.
    Let me leave the administrative announcements there and go 
now to the question and answer session.
    I would open by posing a question or two to Jim Seymour, 
please.
    One of the things that the Congress is very interested in, 
and certainly our Commission members are very interested in, is 
the question of re-education through labor and reform through 
labor and the relationship between the enterprises that are 
staffed by prison laborers and exports anywhere, but 
particularly exports to the United States.
    As you know well, section 1307, title 19, U.S. Code 
prohibits the import of prison labor-made products into the 
United States, and this is something that our Commissioners 
take seriously.
    So I wanted to see if you would spend a minute or two 
picking up on a theme that you brought up in your presentation. 
That is, I take it from your writings and from what you just 
said that at one point the Chinese penal system had it in mind 
that it could be a revenue-generating enterprise, generally.
    The government has now admitted to itself that that is 
basically not possible, and they need to have a budget and 
budget for it as a cost item rather than a revenue-generating 
item.
    In the context of those changes, can you talk a little bit 
about your views as to whether exports from prison labor 
facilities to anywhere in the world, but particularly the 
United States, are a big problem or a small problem? Is there 
any way to tell? Your views would be welcome.
    Mr. Seymour. Well, as you say, Federal law prohibits the 
import of products of prison labor. By the way, it does not 
outlaw the 
export of the products of prison labor, and the Chinese are 
very aware of that. My own impression, though it is difficult 
to get statistics on this, is that the export from China of the 
products of prison labor go almost entirely to countries 
neighboring or very near China: Southeast Asia, and some of the 
Central Asian or former Soviet Union countries.
    Of course, they deny that any of it comes to the United 
States. Every once in a while, a product of prison labor does 
get through the net. I do not think they do everything they 
could on the Chinese side to prevent that. But because these 
products tend to pass through a lot of different hands, or 
enterprises, or commercial entities, it is kind of hard to 
track.
    However, the vast majority of the products of prison labor 
are sold within China, so my own view is that, from a human 
rights points of view, we should be focusing more on the 
conditions in the prisons and the exploitation--whether they 
are prisoners are not--of Chinese labor. So, that is my 
perspective. Did I miss parts of your question?
    Mr. Foarde. Not at all. Very useful.
    Let me shift gears a little bit and ask you for your sense 
of the percentage of the prison population in China currently 
that are people that you would term, I think, people that are 
there because everybody recognizes what they did is a crime, 
would be a crime anywhere.
    Mr. Seymour. By our definition of a crime.
    Mr. Foarde. By our definition.
    Mr. Seymour. Well, it is hard to put a number on it. I do 
not think I should try to do that. First, we do not have enough 
information. Second, there is such a huge definitional problem.
    I think if you use a more precise term, such as Amnesty 
International's term, ``prisoner of conscience,'' then you 
might be able to pin this down, but then it would probably be a 
rather small number compared to the total prisoner population. 
It is certainly not in the hundreds of thousands. It is 
probably more than in the thousands, maybe 10,000 or 20,000. I 
think it would be generally in that range.
    I personally suspect that there is a large category of 
prisoners that fall in the gray area of people who are in 
prison not because they wrote a pamphlet, nor because they put 
on a Falun Gong demonstration, but because somebody stepped on 
the toes of some administrator, said the wrong thing or did the 
wrong thing, and maybe did, indeed, have some minor infraction 
that they could pin on him or her, and then send him or her to 
jail for what is actually a different reason from the stated 
reason. I think there is a lot of abuse of that sort. You could 
call those people political prisoners. If you include that sort 
of thing, then of course the figure gets much larger.
    If you include people who have engaged in some act of 
violence, it would probably be slightly larger, although this 
is mainly an issue when you get up into the northwest. But that 
is my general take on that.
    Mr. Foarde. Thank you. Can you also comment just briefly on 
what, in your view, are the best sources of information about 
questions like this from your research over the many years?
    Mr. Seymour. I am sorry, sources of information?
    Mr. Foarde. The best sources of information in China about 
prison population, types of offenses, and what people are 
incarcerated for, et cetera.
    Mr. Seymour. Well, there are a variety of sources. No 
single one, in itself, is satisfactory. One can approach it 
from a number of different angles. You can, of course, look at 
the official national statistics. One can also go province by 
province and get a sense of how many people there are in these 
different prisons--we know most of them--then add it all up and 
see how that comports with the official figures.
    But there is a problem with the official figures in that 
they leave out a whole lot, so you have to add it back in. So, 
what they call the prison population does not include any of 
the administrative detention people, for instance. It does not 
include any of the people who are detained in jails, pre-trial, 
or maybe never will get a trial. Usually such detentions are 
just for a matter of days or weeks, but there are cases of 
people having been in jail untried, the case unsettled, for 
decades. This is not the norm, but it happens. So if you add in 
all those cases, and it involves a lot of guesswork, then it is 
at least a third higher than your starting official 
``prisoner'' figure.
    Mr. Foarde. Very useful. Thank you. I am out of time, so I 
am going to hand the microphone over to Dave Dorman.
    Dave.
    Mr. Dorman. Thanks, John. And thanks to both of you for 
taking the time today to testify. What you have said so far has 
been very useful.
    I have had an opportunity to scan through your written 
statement Professor Seymour, and calling it comprehensive is an 
understatement. I think it will be a very valuable addition to 
the record, so thank you for that.
    One thing you both may have noticed in this year's annual 
report by the Commission, and this is a question for you 
Professor Seymour, is that the Commission commented positively 
on China's 
decision to eliminate its frequently repressive custody and 
repatriation regulations and replaced them with non-coercive 
measures.
    I was interested in your testimony, and made a point of 
writing down your statement that these regulations had ``more 
or less'' been eliminated in China.
    As a Commission, to point out to the Chinese Government 
that here is a move that we are pleased with, and then to hear 
that these regulations have only been ``more or less'' 
eliminated, concerns me.
    Could you expand on your comment, please? Thank you.
    Mr. Seymour. Well, the words ``more or less'' just were to 
flag the fact that this is rather recent, and it is too soon to 
say what is happening. In general, this regime used to be 
administered jointly by the Civil Affairs Bureau and the Public 
Security Bureau, or the police. Supposedly now the police are 
out of it, and it is just the Civil Affairs Bureau, and it is 
supposed to be kind of a humanitarian way to take care of these 
migrants. But this happened so 
recently that it is hard to access. But I have asked around to 
people who are in a position to know, and they seem to think 
that it is happening, that people are not forcibly detained any 
more simply because they were in a city where they did not have 
the proper 
papers to be in that city. The emphasis is more on helping 
those people who are destitute or in trouble, and it is out of 
the penal system.
    Now, that is the initial feedback that I get. But we have 
to wait. Ask me a year from now and I will have a much better 
sense of whether it really happened.
    Mr. Dorman. Do you think that the Commission was premature 
in identifying this as a positive development?
    Mr. Seymour. No. I believe that certainly it is a step 
forward, no question about that. Just what happens to these 
people, it is just too early to say. But so far, the news is 
good. It appears that migrants are not being dragged off the 
street. We have not heard of any Sun Zhigang-like cases since 
the Sun Zhigang case.
    Mr. Dorman. Good. Thank you very much.
    Dr. Tanner, you commented on the impact the current 
leadership transition in China may or may not have on the 
prison system in China. Is it your feeling that, without 
sustained, high-level interest by the PRC leadership, any 
systemic change in the system is possible? Both of you 
mentioned variations in the prison system from province to 
province, and from locality to locality, but in terms of the 
overall system, is there any possibility of change without 
sustained leadership pressure?
    Mr. Tanner. I think, as I tried to point out in here, that 
significant improvement within the current system is just not 
possible without a sustained push from high-level leaders. And 
not just the national level leaders.
    One of the things I have been trying to tell people for a 
long time, is that we in the West greatly over-estimate how 
centralized the Chinese law enforcement system is. Unless there 
is pressure not only from national level leaders, but also from 
provincial level party and government leaders, this significant 
improvement is not likely to occur.
    Most of that comes down to just the difficulties of 
monitoring law enforcement behavior. We know how difficult this 
is in our own system or any other system. There is just 
something in the nature of policing. It requires speed, it 
requires a certain irreducible amount of secrecy, access to 
violence. These are all things that are very difficult to 
monitor from the outside, and doubly difficult in a Leninist 
system. So, yes. Pressure from the top on a sustained basis is 
necessary.
    Now, that said, there are reformers in the criminal justice 
system and also in China's legal universities, and who have my 
undying admiration, because these people just hammer, and 
hammer, and hammer away at this stuff to try and make small 
changes. And I am not going to deny that they do make a certain 
amount of progress.
    In my longer statement, you will see a list of the long 
number of regulations that have been issued in the last decade, 
trying to find ways to exclude as evidence confessions obtained 
by torture. I have no evidence that top central party officials 
were very heavily involved in authorizing or drafting that sort 
of thing.
    My very strong sense, from talking with Chinese law 
enforcement officials and scholars, is that one of the great 
frustrations for them is that they cannot get senior leaders to 
pay attention to anything other than the economy.
    Mr. Dorman. Thank you very much.
    Mr. Foarde. Let us pass the questioning over to Susan Weld, 
the general counsel of the Commission.
    Susan.
    Ms. Weld. Thanks a lot. I guess my first question maybe can 
be answered quickly. I am interested in that new, centrally 
controlled prison in Beijing. Do you see it as possibly leading 
to changes in the prison system as a whole or a place for pilot 
programs in prison reform, any good efforts of that kind? If 
you could both answer that question, I would be grateful.
    Mr. Seymour. Well, I did not study that particular prison. 
I think, in general, the centrally managed prisons are less 
inhumane places than many of the provincial prisons. We know 
that they have certain prisons with high standards, and they 
get held up as models that others are supposed to emulate.
    But that is not only true of the centrally administered 
prisons, this is also true of, for instance, Shangdong, where 
the prison system is considered better, and other provinces are 
urged to emulate that.
    It is certainly a good sign that the center is paying 
attention and trying to do something somewhere, and let us hope 
that others follow the example.
    Mr. Tanner. I cannot claim to have studied this particular 
reform in any detail. Let me just say a couple of quick, 
general things about that, though.
    Two of the biggest problems in professionalizing law 
enforcement in China have to do with the localization of law 
enforcement. One of them is control of the type of personnel 
that get recruited to the system, which is frequently tightly 
controlled by local officials and frequently involves properly 
trained law enforcement people, by Chinese standards, being 
passed over for the brother-in-law of the mayor.
    So, centralization, in that respect, could improve the 
quality of personnel that are recruited to it. The other 
problem is the budgetary issue. Since most law enforcement is 
financed locally in China, it means that provinces tend to 
provide as good law enforcement as they care to afford.
    That means that the level of professionalization can vary 
enormously from place to place. As hard as this is to believe, 
I cannot tell you how many Chinese legal scholars I have had 
tell me that the best, most professional law enforcement in 
China is in Beijing.
    Ms. Weld. Thanks a lot.
    Mr. Foarde. Let me pass the questioning over now to our 
friend and colleague, Steve Marshall. Steve works on Tibet and 
on prisoner data base issues for us and has some experience in 
following prisoner cases.
    Steve.
    Mr. Marshall. First, let me say that I have really enjoyed 
your written testimony and what you have had to say. There is a 
great deal of detail here, and we will all look at it very 
closely.
    I am thinking of our Administration and the effort, 
beginning with President Clinton, to suggest that China should 
review the sentences of people convicted of counterrevolution 
before 1997 and propose their early releases or commutation of 
sentences, on the basis that this is now a defunct crime.
    Some people point out that there is a problem with that, 
because basically with respect to the new CL and CPL, and then 
the 1999 constitutional amendment, that ``counterrevolution'' 
was just neatly changed into ``endangering State security.''
    Based on these two premises, what do you gentlemen think? 
Is this likely to be a productive approach? Is it a good 
approach on principle, even if it does not necessarily yield 
results? Professor Seymour, do you want to start?
    Mr. Seymour. Well, certainly everything helps that calls 
attention to the fact that people who were imprisoned under an 
old regime that is supposed to be no longer in effect, just for 
the world to remember and to keep reminding the Chinese 
authorities that you are responsible for these people who are 
in prison, in many cases, non-violent people.
    Of course, there was a whole range, or a half a dozen 
different types of counterrevolutionary crime, and one might 
want to distinguish among them. But probably one should focus 
on individual cases.
    A problem with the suggested approach is that they could 
release all the people who are presently in jail as 
counterrevolutionaries, and it would just be the tip of the 
iceberg in terms of the total number of people whom we would 
consider political prisoners, or people imprisoned because of 
their beliefs or religious activities.
    So, I think that is a useful approach, but I would not want 
it to divert us from the larger issue, that every non-violent 
person in prison because of their beliefs, political 
activities, should be released, regardless of the label that 
was placed on them at their trial, if they had a trial.
    Mr. Tanner. I would simply agree with Dr. Seymour's very 
thoughtful comments about that. But I think it is a bit 
artificial to overdraw the distinction between the old crime of 
counter-revolutionary offenses and endangering State security, 
leaking State secrets, the whole series of equally ill-defined 
crimes under Chinese law that were put in their place.
    We also have to consider whether this is the most effective 
place to use our leverage, and that is all I care to say on 
that, except, of course, to stress that these are my own 
personal views.
    Mr. Marshall. Thank you.
    Mr. Foarde. You have got time for a follow-up.
    Mr. Marshall. I think I will pass the mic right now, 
because the next question I have is going to take every bit of 
5 minutes.
    Mr. Foarde. Then let us give Keith Hand a chance to ask a 
question or two. Keith is a senior counsel and looks at 
national level rule of law issues for us.
    Keith.
    Mr. Hand. I was wondering if you might comment on the 
status of legal challenges to re-education through labor and 
administrative detention, generally. We understand that part of 
the impetus for the repeal of the custody and repatriation 
regulations was a scholar petition to the National People's 
Congress Standing Committee that challenged the legality of 
those regulations. Is there anything similar under way with 
respect to re-education through labor or other forms of 
administrative detention?
    Mr. Seymour. Well, this is becoming somewhat more common. 
People can appeal a verdict, or there also is another approach 
under the administrative litigation law that can be done. It is 
becoming doable. I do not say that it is the usual case, but 
only that the procedures are improving.
    One hopes that that is the wave of the future. Certainly, 
in criminal trials, there has always been at least a 
theoretical possibility of an appeal, although usually the 
appeal is rejected. Now it is becoming much more common in the 
administrative detention cases that it is possible to appeal.
    Along with that, now, people have, in administrative cases, 
a theoretical right to a lawyer if they can afford it. They are 
also entitled to a public hearing. So, all of this lays the 
basis for appeals if they wanted to do it. But I am not aware 
that it has been studied as to how often or what percentage of 
the cases get appealed, and how many of those appeals are 
successful.
    Mr. Tanner. I prefer to see this as one of the latest steps 
in a long process, almost a reform cat-and-mouse game that is 
being played by people who want to tighten up the Chinese legal 
system to try to narrow--increasingly through steps, through 
changes, through redefinitions--the number of actions for which 
people can be incarcerated without the case coming into court, 
which used to be just an enormous percentage of the number of 
cases.
    I see this as the latest step forward in that line going 
all the way back to getting rid of Shourong shencha, or 
``shelter for investigation,'' and things like that. This, and 
these administrative appeals, and changing the handling of 
these regulations, I think, are the latest step forward in 
this.
    Unfortunately, what I would predict, based on what happened 
with shelter and investigation, is that local police officials 
will probably try to find additional pretexts within the 
available regulations to incarcerate people under other means, 
and then reformers will try and find some way of modeling that 
as well.
    Mr. Seymour. Could I just add that allowing appeals under 
the administrative detention cases only began this year, so it 
is really too early to answer that question.
    Mr. Foarde. Very useful.
    Let me pass the questioning on now to Carl Minzner, who is 
a senior counsel looking at grassroots level rule of law 
issues.
    Carl.
    Mr. Minzner. Thank you very much for coming here today. I 
want to just ask two quick questions, and one is perhaps a 
little more pointed than the other. And you can either both 
respond to one or the other, or maybe of you will respond to 
one, the other one will respond to the other.
    The first question I want to ask is something just to 
follow-up on a question that Dr. Weld had asked. Both of you 
mentioned that the Chinese Ministry of Justice, the Chinese 
prison systems, are decentralized. I think Professor Seymour 
mentioned it in his written testimony. If I heard correctly, 
Dr. Tanner, you mentioned that in your spoken testimony. Both 
of you also characterized the provincial or the local 
detentions as perhaps more inhumane than, for example, the 
Beijing, or national, level.
    Do you think that the U.S. Government or even U.S. aid 
agencies could play a useful role in improving the conditions 
of Chinese prisons by helping the central government to 
nationalize or control the prison system? So, centralized 
control of the prison system--that is the first question.
    The second question is, as Mr. Foarde mentioned, that our 
Commissioners are very interested in the prison labor system in 
China. The United States has prison labor as well. Could you 
simply compare and contrast the prison labor systems in the two 
countries?
    Mr. Tanner. I am going to decline on the second for 
ignorance of the American system. An awful lot of people in the 
Chinese criminal justice system see the decentralization of the 
system as one of the major sources of problems, the lack of 
professionalism, the lack of control, the difficulties of 
getting laws actually implemented or enforced the way they want 
them to.
    I think they have a point. I also, however, sometimes think 
that they overstate this case. The Soviet system was a good 
deal more centralized than the Chinese system. I do not think 
we would draw from that the conclusion that it was more humane 
or professional.
    Nevertheless, I do think that what you have asked is kind 
of the cutting-edge question for the most difficult areas of 
U.S. legal engagement with China, because, in the short term, 
professionalization of the system, tightening up of standards 
is probably one of the best things we can accomplish under the 
current Chinese system. It also, unfortunately, creates a 
massive dilemma--we run the risk of strengthening a system that 
none of us cares for at all.
    I suggested, in the most cautious language the last time 
that I was here, that we might consider increased contacts with 
the Chinese procuratorial organs, because at least as far as I 
can tell, that seems to be one of the strongest locations 
within the system for this professionalizing, centralizing, and 
standards-raising school of thought, but that this has to be 
done in the most cautious way to make sure that we minimize the 
degree to which we might inadvertently be simply strengthening 
the existence of a system that we do not care for.
    Mr. Seymour. I would say that it is best to keep the focus 
on human rights abuses and urge the Chinese authorities to end 
those abuses, but not tell them exactly how to do it. I mean, 
this is a problem. They know they have a problem and they have 
to solve it.
    But for us to suggest specific ways, ``you need to be more 
centralized,'' or something like that, is kind of interfering 
in their affairs, and they are not going to listen anyway. So, 
I think that we should not tell them exactly how to solve these 
problems. We have just got to tell them they have got to solve 
this problem.
    In many ways, we look with favor on China becoming a more 
decentralized place because then it becomes somewhat more 
pluralistic. Do we really want to push for more power and more 
authority in Beijing and less authority in the localities? That 
is a road that might look attractive in the particular case of 
the prison system because we see so many abuses in this or that 
province where they just have an awful system, and why does 
Beijing not move in and straighten it out? Well, of course, 
they should do what they have to do to straighten out those 
problems, but to just in general ask for a more centralized 
system, I would be cautious about going down that road.
    Mr. Foarde. Let me continue now with a question to both of 
you. What is the one thing that the Chinese government could do 
at the national, provincial, and local level to improve prison 
conditions and bring them up to international standards? One 
policy change or one specific thing. What would you recommend?
    Mr. Seymour. I would say that, in general, it is a matter 
of changing the political culture. At every level, people need 
to be told about the dignity of the individual and that people 
have legal rights, and people have rights under international 
human rights conventions, and specifically what these rights 
are and the limitations on authority. If you would only let me 
do one thing, then I am going to make it a big thing.
    I would like to just have the government, which they are 
obligated to do under various international human rights 
conventions, promote the idea of human rights and educate 
people as to what their rights are, and educate the people 
administering the prisons as to the limitations on their 
authority and power.
    Mr. Tanner. If I were going to choose one, I think I would 
probably focus on weakening the control that local Communist 
Party committees have at every level over the whole package of 
law enforcement organs in China. Like a Soviet system, the 
Chinese legal system, on paper, has an enormous number of 
overlapping, cross-cutting oversight and monitoring and 
checking organizations.
    A police department has a discipline inspection committee, 
it is a political affairs department, it has personnel, it has 
auditing, it has police oversight, and so on, and so forth. 
Outside, there is the procuracy, there is the courts, all of 
these other things.
    These are supposed to be the organs that are supposed to 
cross-check and at least make sure that some semblance of 
procedure is actually followed. The problem is that at every 
level of this system, every one of these strings leads back to 
the Political Legal Committee of the local Party and the same 
person ends up overseeing all of these things. That greatly 
undermines the capacity of these organizations to begin to even 
play the kind of just basic bureaucratic, competitive cross-
checking that would be at least a step forward in this system. 
So, I guess I would come back to getting rid of the old Party 
political/legal system of committees.
    Mr. Foarde. Very useful. Thank you.
    I will pass the microphone back to Dave Dorman for a 
question.
    Dave.
    Mr. Dorman. Just a very short question for each of you. I 
will start with you, Professor Seymour.
    As a simple political scientist on a commission that is 
made up mainly of lawyers, they have the very difficult task of 
trying to 
explain to me the intricacies of things like Chinese criminal 
procedure law. And I have to admit that I often have trouble 
understanding the precise definition of illegal or unlawful 
detention in China. There seem to be many exceptions and many 
loopholes. Help us understand how the average Chinese citizen 
views their system. How difficult is it for someone to 
determine whether they are legally or illegally detained?
    Mr. Seymour. Well, one can kind of break it down this way. 
There are certain laws that say under what circumstances you 
detain somebody. Then the formal arrest comes later.
    But probably the larger issue is the sort of non-legal 
detention. They can detain you pretty much for any reason they 
want to. This is the underlying problem. I do not think anybody 
has a clear idea, because they do not make it that clear, as to 
what is legal and what is illegal.
    There are certain time limits in which you are supposed to 
be let go, depending upon what regime you are taken in under. 
You are supposed to be let go at the end of a certain number of 
days. Of course, there are legal procedures or legal provisions 
when it comes to the formal arrest.
    Then it becomes a little more something that we would 
recognize within the regime of law. I have no expertise in this 
area because I study what happens after they are imprisoned or 
sent to one of the non-prison incarceration regimes. But that 
is my general impression. You really put your finger on an 
important problem and it is really something they need to work 
on.
    Mr. Dorman. Is this a one question round?
    Mr. Foarde. No. Please, go ahead.
    Mr. Dorman. Dr. Tanner, you made a very interesting and 
useful point, and I hope you can clarify it for us further. You 
mentioned the impact that the press and the Internet is having 
on some legal cases, and this in turn, on the legal system.
    Dr. Tanner, I think you used the words ``focus cases'' 
``focal cases.'' What characterizes these cases? In other 
words, if each of these has had a significant positive impact 
on the system as a whole, what is it about these small number 
of cases that has led them to have such an impact on the 
system? Why do we not see more? How can we encourage more?
    Mr. Tanner. Well, first of all, in reference to your 
previous question, I want to tell you that you should not let 
the legal scholars get you down, that, as we all know, the 
superior degree is political science.
    The Chinese propaganda system does not have anywhere near 
the level of control over the press that it did when I first 
went to that country in 1984. The capacity of even Communist 
Party-controlled papers or Web sites to publish these cases is 
really remarkable compared to what it used to be.
    The need for these papers to make money drives them. I 
deliberately chose the word ``sensationalistic'' in my oral 
presentation to describe this. In an odd way, this is one of 
the interesting things that drives this. The write-ups you get 
on some of these cases are simply gut-wrenching, in many cases, 
the degree of detail they will go into, perhaps literally true, 
perhaps not. But these things get recirculated very quickly. I 
ran a quick Chinese Web site check on Sun Zhigang's name last 
week and was astonished at the number of times that the same 
couple of stories have been reprinted, and reprinted, and re-
posted to other sites, including several official government 
sites.
    We do not know yet exactly the politics of how that 
translates into putting pressure on legal officials. But on one 
of the points I left out of my oral presentation, the Vice 
Minister of Public Security, Bai Jingfu, in a public press 
conference shortly after these regulations were changed, was 
extremely frank about what happened after the Sun Zhigang case 
got out. He said, ``We started getting complaints from all over 
Guangdong Province. We started getting complaints even from 
within Public Security departments about the way this case had 
been handled.''
    I do not pretend to know any better than others why one 
case draws more public attention that it does in China any more 
than I understand why--I am not going to use a particular name, 
but we can all think of a half dozen legal cases that have 
focused attention in America in the last 5 to 10 years. These 
end up being moral object lessons in what is wrong with the 
system.
    Unfortunately, one little thing that bothered me a little 
bit in doing some of my research for this. This can work in the 
other direction. One of the other cases that is being widely 
publicized on the Chinese Internet these days is that of--I do 
not recall the name.
    Maybe you know, Dr. Seymour--a mafiosi, if you will, from 
northeastern China who apparently was able to successfully use 
an exclusionary rule as a defense in court and get a conviction 
turned back. These Chinese articles writing about this over and 
over again made reference to questions such as, ``Is our 
country going to become like the cases of Aiji Xiqusan,'' which 
is, of course, the Chinese transliteration of O.J. Simpson. Is 
this going to be a case where correct evidence against a man 
who is clearly guilty will be thrown out on a legal 
technicality?
    So, this process can cut both ways. But the ability of 
these individual cases to galvanize public opinion is something 
that we really have to pay more attention to. But as for why 
some of them gather the attention of public officials more than 
others, I cannot really say.
    Mr. Seymour. Could I add a comment to that? That is, we 
should not think that suddenly these cases are getting a lot of 
attention in the media, whereas before they did not. It is a 
little different from that.
    There was a lot published 10 or 15 years ago about 
horrendous cases of abusive behavior of people administering 
the justice system and awful things going on in the prisons, 
but they tended to be in a kind of narrow slice of what you 
might call the law press. That is, publications like Fazhi 
Ribao that tended to focus on, and just be of interest to, 
people who are interested in this sort of thing within the 
community of lawyers, judges, and people who are just following 
legal issues.
    Now, so much of it is getting into the popular press and on 
the Internet. That probably has more clout. You would think 
that people would have had to pay attention to the legal press, 
but this seems to be a social phenomenon that is having some 
impact.
    Mr. Foarde. Very useful. Thank you.
    Let us pass the questioning on to Susan Weld again for 
another question, please.
    Ms. Weld. Thanks, John.
    I am interested in--was it John who asked you--what was the 
single thing that you would like to have done if you could have 
something done? Jim said that the priority issue should be to 
teach the culture of human rights. He was probably referring to 
the International Covenant on Civil and Political Rights 
[ICCPR]. Scot, you also had a top-down solution. What was that?
    Mr. Tanner. My solution was to loosen the Party committee 
control over all of the legal organs within one area.
    Ms. Weld. That is less of a top-down idea. But what I see 
as the most useful thing is the culture of human rights, not in 
the sense that the state is teaching others how to respect 
them, but instead educates the ordinary people that they have 
these rights and that there are tools to use, mechanisms to go 
through to enforce them.
    Several articles in the press recently have talked about 
prisoners' rights. A scholar we were having lunch with talked 
about legal assistance centers in the prisons. I would love to 
think that could be an answer to this in a bottom-up way.
    Can you tell me your assessment of whether that is likely? 
Is that a hope which is based in any sense on a good 
foundation?
    Mr. Tanner. Well, it is likely and it is something that is 
going on quite a bit, and not just on legal issues. This has 
become quite the thing now. If you find that a local party 
official or a local government official is wronging you, it is 
increasingly easy--this commission knows that it used to be 
extremely difficult to even find the text of laws in China--now 
to find the text of regulations.
    And, as several of my colleagues have written in other 
ways, one of the major sources of protest in this country 
occurs when people get a hold of the regulations and just go to 
the officials and wave them in front of them. ``Here is the 
directive from Beijing. Where do you get off disobeying 
Beijing's law? '' That is a very powerful and hopeful sign for 
change in that system, this persistent, lower level pressure to 
actually force local officials to take the law seriously.
    Mr. Seymour. I think that we may be getting a false 
impression that we were thinking top-down, because it was kind 
of inherent in the way the question was asked, what one thing 
can China do. Well, China only has one government at the top.
    But this is something that has to permeate society and it 
will not just be top-down, obviously. I mean, the Internet can 
play a role. I would hope that every local schoolteacher would 
teach these things, and every student, by the time he or she 
gets out of grade school, would know about the Universal 
Declaration of Human Rights and some of the international human 
rights covenants. If you get arrested, you have a right to do 
this, and a right not to do that, and a right to a lawyer, and 
so forth. Americans pick this up from watching television 
programs and that sort of thing. We all know about our Miranda 
rights.
    So, in China, just the way China is, probably the easiest 
way to do it would be to publish it on the front page of 
People's Daily. I do not know, does anybody read People's Daily 
any more? I am not sure. Of course, there are local newspapers 
and they can promote this. So, you are absolutely right, it 
cannot be top down. It has to happen at all levels.
    Ms. Weld. What about these legal assistance centers and the 
prisons. Does that seem to you like a realistic thing? Because, 
otherwise, if there is not a legal assistance center there, the 
prisoners themselves have no way to assert their rights against 
whatever abuse is being visited on them. So, do you think that 
is likely? I just want to know whether you think there are such 
possibilities from your experience.
    Mr. Tanner. I cannot speak specifically to the legal 
assistance centers. I will say that previous similar 
experiments have not worked out well, as far as I know. A 
number of years ago, an experiment was tried to put 
representatives of a local prosecutor's offices in prisons to 
give prisoners a chance to discuss things that were wrong with 
their cases. This was proposed also as a way of dealing with 
people who were incarcerated through tortured confessions. I 
have yet to see any evidence that this has resulted in any 
improvement in their situation. I cannot recall ever hearing of 
one prisoner that got released as a result of that. I can hope 
the legal assistance centers are more successful, but I am 
dubious.
    Mr. Seymour. I would say the underlying problem is that 
there are very few well-trained lawyers in China, compared to 
the need. So, even though there is a theoretical right for 
people who are going to be tried to have a lawyer, of course, 
they usually get access to the lawyer too late.
    The lawyer may not be qualified. The good lawyers tend to 
go into commercial law and work for companies because you can 
make a living there. You really cannot make a living being a 
defender of people accused of crimes. Certainly, defending 
criminal suspects is somewhat risky.
    You hear of lawyers who try to defend alleged criminals. I 
guess in China we drop the term ``alleged,'' because they are 
just considered criminals. So, sometimes lawyers get beaten up 
for defending these people whom the police are not particularly 
interested in having defended. Of course, if it is a political 
case, it is very hard to get a lawyer to defend a defendant. 
They may have to be brought in from another city.
    I was recently talking to Han Dongfang, the labor activist. 
He would say, ``Well, one of our labor organizers gets 
arrested. If they find somebody who is willing to defend them, 
probably,'' Han Dongfang said to me, ``The lawyer knows less 
about the law than I do.'' So, they are just not qualified and 
maybe they do not have the guts--and who among us would--to 
defend these sensitive cases.
    Mr. Foarde. Our colleague, Steve Marshall, who has been 
very patient, has had a good question keyed up for about a half 
hour, now. So you may proceed with your question.
    Mr. Marshall. Well, actually I have got more than one, so I 
have to make up my mind.
    I would like to look at a comment on page 13 of Professor 
Seymour's testimony. You mentioned that as many as 40 percent 
of the political prisoners could be Mongols, Uyghurs, and 
Tibetans. You were commenting about the high incidence of State 
security convictions for these groups. This is very 
disproportionate, of course, to their population.
    I wonder if this conspicuous disproportionality would also 
apply to something like torture. In your studies, and I am not 
talking about just political prisoners, is the police system in 
areas like Inner Mongolia, the Tibetan autonomous areas, or 
Xinjiang, arresting more indigenous peoples there for various 
crimes, including politically oriented crimes? Are they more 
likely to be tortured than people in other parts of China?
    Mr. Seymour. Well, that comparative question, I do not 
think I can answer. Let me just put it this way. It would not 
surprise me at all if the ethnic minority people imprisoned for 
political reasons were more subject to torture.
    Also, perhaps because I am talking about the prisons and we 
should not just talk about torture in the usual sense, but 
include neglect, people who have health problems that do not 
get addressed, all of these things, one reads of case after 
case.
    Actually, in hearings of this sort I like to humanize it by 
mentioning one individual. So, if I may, in response to your 
question, mention a gentleman named Hada in Inner Mongolia. Mr. 
Hada had a bookstore in Hohhot and was arrested a few years ago 
and given a 15-year sentence, and is reported to be in terrible 
condition and subject to, shall we say, physical abuse. So, 
this is a case that very much fits the category of prisoners 
that you are raising.
    One knows anecdotally of so many cases of ethnic minority 
prisoners, especially politically active ethnic minority 
prisoners, who have been subject to physical abuse in prison, 
that one has the impression that, unfortunately, the answer to 
your question is ``Yes.'' But data is a little hard to come by.
    Mr. Tanner. Mr. Marshall, I am glad you asked the question. 
It is a question that I have tried very hard over the years to 
find any reliable evidence for one way or the other.
    Any time that I have looked at data or characterizations or 
anything like that, I have never been able to find anything 
that in any conclusive way suggested one way or another that 
there was a higher incidence of torture of ethnic minority 
prisoners than there is of Han Chinese prisoners.
    I do not rule it out. This is just one of these cases where 
we have to say, very frankly, that we do not have solid enough 
evidence to say one way or the other. I can say that I have 
discovered one thing that disturbs me a little bit and makes me 
suspicious, which is that in case books on torture, where cases 
of torture by police are being discussed in Chinese legal texts 
and analyzed, that the torture of ethnic minority prisoners 
seems to be systematically under-represented and under-
reported, that these books tend to be loath to mention victims 
who are ethnic minorities. You used the standard ``compared to 
their percentage of the population,'' and they are well below 
the percentage of the population. That makes me think that 
something special is going on here in the systematic under-
reporting of it.
    The other thing that is worth considering is that some of 
the crimes for which people in ethnic minority areas are picked 
up--how to put this? The same action in a Han area might be 
defined in one way and might be defined differently in another.
    The one that immediately comes to mind is that when the 
police count incidents of unrest in China, these are referred 
to as incidents of a mass nature, sheng ti xing shijian, that 
of course is not necessarily the case for when protests, or 
riots, or a mass demonstration occurs in Xinjiang or Tibet. 
That is a riot, that is separatism, that is terrorism. Other 
words are used for that. This is making a logical jump, but 
that sets these people up for a different and much harsher 
standard of treatment in the law.
    So, I would say those two things that lead me to suspect 
that there may be some evidence here, but I have to underscore 
I have tried very hard to find any solid evidence for this and 
have never been able to locate it.
    Mr. Marshall. Thank you very much.
    Mr. Foarde. We have reached the magic hour of 3, despite 
what the clock behind me says. And we do have a responsibility 
to give up the room. So, unfortunately, we are going to have to 
leave our discussion there for today.
    But on behalf of Congressman Jim Leach and Senator Chuck 
Hagel and the other Members of the Congressional-Executive 
Commission on China, thanks to Jim Seymour and to Scot Tanner 
for coming to share your expertise with us this afternoon.
    Thanks to everyone in the room for staying. I think it has 
gotten progressively colder in here over the last 40 minutes or 
so, and you are all troopers. I appreciate your coming.
    Please watch the Web site and your e-mail for an 
announcement on our next issues roundtable. With that, we will 
bring this one to a close. Thanks very much, and good 
afternoon.

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