You Have the Right to Remain Silent
Inside the fight over the American Bar Association's tepid condemnation of Beijing’s crackdown on lawyers and activists.
Rob Precht readily admits that he’s no moral purist. From 2008 to 2012, Precht lived in Beijing and served as the China director of PILnet, an organization that strives to connect and empower public interest lawyers globally and to build a world where “the rule of law delivers justice and protects human rights,” according to its website. But these lofty goals often conflicted with the aims and whims of the ruling Chinese Communist Party — and required playing in what Precht calls “the gray market of morality.”
During his years in Beijing with PILnet, Precht strived to balance his organization’s high-minded mission with the reality that operating in China sometimes required difficult compromises. In 2010, for example, after a successful training course on human rights law at a Beijing university, Precht received an angry email from the Chinese professor who had helped coordinate the program. State security, Precht said, had visited the professor and demanded he repudiate the program. The professor, in turn, demanded a letter from Precht apologizing to the university and to state security. Precht obliged. The entire process, he said, made him “deeply uncomfortable.”
And yet, Precht, who now runs the legal NGO Justice Labs, felt strongly that he and his organization, on balance, did good work in China: PILnet offered international scholarships for promising Chinese students, conducted training programs which included a summer school for public interest law, and placed Chinese lawyers at legal aid offices. For him, the moral compromise of working in Beijing — and occasionally humbling oneself before Chinese state security — was a small price to pay for furthering legal reform.
When Precht read the Aug. 3 official statement by the American Bar Association (ABA) following the detention the month before of hundreds of activists and lawyers across China, he was appalled. In the aftermath of perhaps the biggest crackdown against Chinese human rights lawyers in a generation, with the detention of more than 200 lawyers and their supporters, the strongest thing the ABA had to say was that it “encourages the Chinese Government to permit lawyers to discharge their professional duty to [ensure] achievement of the fair and just legal system that the Communist Party has promised to all its citizens.”
The English-language statement, signed by the organization’s then-president, William C. Hubbard, emphasized at length the areas of cooperation between the ABA and its “Chinese partners” — including lawyers, NGOs, judges, and legal officials, among others. It referenced the work done by the ABA’s Rule of Law Initiative (ROLI), the organization’s international development arm, which has an office in Beijing. And, in a rhetorical move that no doubt pleased Beijing, the statement implicitly critiqued the U.S. judicial system, adding, “ABA leaders acknowledge that the development of a just rule of law is a continuing struggle in every nation, including the United States.”
Precht wasn’t the only one in the community of foreign Chinese human rights defenders angered by the statement. “I was extremely disappointed,” Elisabeth Wickeri, an adjunct professor at Fordham University and an expert on Chinese human rights law, told Foreign Policy. Jerome Cohen, a professor at New York University School of Law and among the most prominent Western scholars of the Chinese legal system, wrote on his blog that the statement was “timid” and did not meet his standard “for what would have been appropriate.” Nicholas Bequelin, a regional director for Amnesty International, told Foreign Policy that the statement was “very damaging,” because it equated the deficiencies of the U.S. legal system with the far more enervated Chinese one. And in an email, Yu-Jie Chen, a research scholar at New York University’s U.S.-Asia Law Institute, said that the ABA’s refusal to “assertively” speak out against the recent crackdown compromised ABA ROLI’s “mission and moral integrity.”
What appalled Precht was not the perceived weakness of the statement. “We always have to make compromises,” he said. But in order to justify the compromise, Precht said, “you have to make the argument that by being silent, you’re furthering some other important goal.” In other words, has the ABA been doing enough good in advancing the rule of law in China to justify such a mild statement? Or would the costs of a strong statement have outweighed the benefits?
The ABA itself seems to think that the answer to both of those questions is yes. An ABA staffer, who asked to speak anonymously in keeping with the organization’s policy, said that it is using other channels to raise concerns about the treatment of lawyers in China, though the staffer did not specify which channels. And in response to questions, an ABA spokesperson emailed a response from the association’s new president, Paulette Brown, who said, “The American Bar Association, which has worked closely with lawyers and civil society for nearly two decades in China, is deeply concerned about and is closely monitoring the situation of lawyers in China.”
The ABA’s August statement sits at the intersection of several moral questions regarding foreign institutions dealing with a rising China and with authoritarian governments worldwide. Does the ABA’s furthering of a specific goal — broadly speaking, the rule of law — justify downplaying a human rights abuse like the arbitrary detention of human rights lawyers? More pointedly, does doing good work quietly in China give an organization a pass from speaking up against injustice?
With regard to China, the ABA has two main interests. First are those involving ABA ROLI, which implements legal reform programs in China and in more than 50 other countries. ABA ROLI has worked with Chinese lawyers since 1998 and opened an office in Beijing in 2002: Their programs have “provided training, supported practical research, supplied technical comparative expertise and facilitated professional exchange relationships between Chinese legal reformers and their counterparts abroad,” according to a description of the program on ABA ROLI’s website. An ABA spokesperson, who also asked to remain anonymous, sent Foreign Policy the 2015 China program book, which highlighted some of the areas where the organization aided the cause of justice in China: These included supporting criminal justice reform, strengthening the rights of women, and encouraging public interest work, among others.
The ABA’s other main goal in China is to serve the interests of its members, some of whom do business in, or have business interests relating to, China. One of the world’s largest voluntary professional membership organizations, the ABA boasts more than 400,000 members, including U.S.-licensed lawyers, lawyers licensed abroad, students, and “individuals interested in the legal profession,” according to its website. The ABA holds conferences, for members and non-members, in cities around the world on subjects like global white-collar crime and the future of the legal profession in Europe and Eurasia. In mid-November, it hosted conferences in Beijing and Shanghai, mid-sized events with an estimated several hundred people in attendance, according to the ABA spokesperson. Conference fees ranged from $95 for full-time law students to $665 for non-members registering late.
The ABA regularly issues statements on issues of concern to its members, in part to achieve one of its four goals: to “advance the rule of law” by holding “governments accountable under law” and working “for just laws, including human rights, and a fair legal process.” In other words, it’s a professional guild with moral aims. “Unlike plumbers, for example, lawyers see themselves having a wider responsibility,” said Donald Clarke, a professor of Chinese law at George Washington University and an ABA member.
Problematically for the organization, the goals of ABA ROLI don’t always accord with those of the ABA more broadly: When ABA ROLI advocates for Chinese human rights lawyers, those efforts may harm the pragmatic interests of ABA members who practice corporate law in China — by tainting the organization and foreign lawyers in Beijing’s eyes. “The ABA is a complex organization that should take a leadership role in advocating for lawyers and the profession,” said an ex-employee of ABA ROLI, who asked to remain anonymous because of the controversy surrounding the debate. And yet, ABA ROLI “and the reality of programming on the ground create internal tensions,” the ex-employee said. Multiple sources admitted that it is difficult, if not impossible, for an organization of the ABA’s size or complexity to please its members while satisfying the demands of Beijing. But the August statement following the detention of Chinese lawyers and activists “misses the mark,” the ex-employee concluded, “even cognizant of how it might have ended up so seemingly toothless and strange.”
The ABA issued its China statement on Aug. 3, after the crackdown on Chinese lawyers had already become an issue of global concern: By July 24, more than two dozen institutions and governments had already issued public responses to the crackdown, according to China Human Rights Lawyers Concern Group, a Hong Kong-based nonprofit. Even by its own standards, ABA’s China missive was far weaker than a March statement condemning the persecution of Malaysian human rights lawyers or its October 2014 statement decrying that the selection process of high court judges in Guatemala was “marred by irregularities.”
Beijing’s mandarins are notoriously sensitive, especially toward criticism from foreign organizations. At the same time, the sheer size and influence of China makes successfully engaging with the country increasingly critical. Several people working at foreign legal NGOs in Beijing admired that the ABA dared issue a statement at all. “There is power in just standing up and saying something,” the head of a legal reform NGO in Beijing said, asking to speak anonymously because of the sensitivity of the subject. “Beijing is not going to parse the language; they’re just going to say, ‘Oh, they made the statement.’”
On one level, the two sides are fighting the same battle: Both Beijing and foreign legal NGOs want to strengthen and improve China’s judiciary. Recently, for example, there has been a successful push to reduce wrongful convictions for nonpolitical court cases. Shortly after coming to power in late 2012, Chinese President Xi Jinping instituted a wide-ranging fight against corruption in the Communist Party apparatus. He has targeted both “flies” and “tigers” — low-level officials and the powerful elite — reportedly decreasing instances of crimes like bribery and graft.
The anti-corruption campaign is part of an effort for greater transparency in the justice system, but it is not divorced from political expediency. It has allowed Xi to consolidate power, eliminating potential rivals like Bo Xilai, the popular former party secretary of the metropolis of Chongqing, and the powerful former security czar Zhou Yongkang — both of whom were sentenced to life in prison for crimes related to corruption. Xi wields the anti-corruption campaign against his political enemies, while striving to ensure that he and those at the top of the party can continue to operate according to unofficial party codes — as opposed to China’s laws.
Despite Beijing’s talk of “constitutionalism,” the party fears that foreign legal NGOs could be the “spark” that helps spread those dangerous ideas, said a Western diplomat in Beijing, who requested anonymity due to the sensitivity of the issue. “And if you’re that spark, they’re going to take you down,” he said.
In China, advocates for rule of law — which Beijing wants and tolerates, up to a point — are often supporters of human rights more broadly, which the party finds far less palatable. Many of China’s best-known human rights activists have legal backgrounds: This includes rights activist Chen Guangcheng, now in exile in the United States; rights lawyer Xu Zhiyong, serving a four-year prison sentence for “gathering a crowd to disturb public order”; and Gao Zhisheng, a prominent attorney known for defending human rights activists, among others. In a recently published interview, Gao told the Associated Press that he was tortured with an electric baton to the face during a recent stint in prison. His health has since improved — but when he left prison in August 2014, he could barely walk or speak intelligibly.
One of the reasons that Western legal reform NGOs working in Beijing don’t speak out as loudly as many would like is that they find themselves in constant danger: of Chinese state security closing their offices, the arrest or harassment of local staff, and the deportation of foreign workers. The narrowing space for NGOs may have sprung from the explosive protests in Tibet in March 2008, five months before the Beijing Olympics. Some in the Chinese leadership appeared to blame the protests — the worst ethnic violence China had seen in decades — on the agitation of “foreign elements,” including NGOs. “Nobody should underestimate how chill the political wind has been [since then],” said the Western diplomat in Beijing — especially since the ascension of Xi.
Most worrying recently has been the May release of a draft law governing foreign NGOs, which if it passes in close to its current form could “instantly criminalize our presence,” said one employee of a legal NGO in Beijing, who asked to remain anonymous in order to speak freely. In a late September speech in Seattle, Xi said, in reference to foreign NGOs, “So long as their activities are beneficial to the Chinese people, we will not restrict or prohibit their operations.” He added, “On their part, foreign NGOs in China need to obey Chinese law and carry out activities in accordance with the law.” Xi’s message was not reassuring. “They could legally lock us up without due process,” said the employee of the legal NGO in Beijing, who noted that, over the last six months, threats to local staff have been on the rise.
Compounding the difficulty is that many NGOs already exist on legally shaky grounds in China — though they prefer not to advertise that fact. Ambiguity often surrounds the legal status of foreign NGOs in China. In a November report, the European Council on Foreign Relations wrote that it’s not uncommon for foreign NGOS to operate within Chinese territory “without any kind of formal legal existence.” Precht, for one, said that PILnet wasn’t registered with Chinese authorities — as required by Chinese law — until 2012. “Our president was always absolutely clear that we were not to do anything illegal,” he said. “That’s why he went to such lengths to get registered; we wanted to be in full compliance. But before we were registered, we were faced with this dilemma. Do we stay here, knowing that we’re violating the law, knowing that we’re doing great work? Or do we leave and try to help in another way?” PILnet’s founder Ed Rekosh disputes this characterization. It’s almost always possible, he wrote in an email, “to be legally compliant without compromising organizational goals.” And in China, he wrote, “we have gone to great lengths to be fully compliant with Chinese law at every stage of our involvement in the country.”
Perhaps, argues Cohen, the NYU law professor, the public statements of NGOs with offices in China should be judged by different standards than those without a presence on the mainland. Human rights NGOs “that cannot set up shop in China have no hostages to fortune,” Cohen wrote on his blog. “Those like the ABA that have labored long and hard in China, with some staff devoting their lives to this kind of work, have a lot to lose if their protests lead to their ouster and the closing of their office.” Consider the New York City Bar Association’s open letter to Xi, written by the organization’s president, Debra L. Raskin, and published on July 28: It expressed her association’s “grave concern” about the treatment of China’s human rights lawyers and their allies. Its statement is far stronger than the ABA’s — but the City Bar doesn’t have an office in China.
The ABA staffer said that the concern for ABA ROLI staff and for the safety of its partners — which include Chinese public interest lawyers — played a role in its decision not to publicly condemn Beijing’s behavior. The stakes are far higher for the local staff of NGOs and, of course, for the Chinese lawyers languishing in prison or under house arrest, none of whom could be reached for comment for this article and who might have been buoyed by a strong statement from the ABA.
As the space constricts, the importance of the legal NGOs that remain increases. Although “it’s depressing for us, and people sometimes don’t want to work with us openly, our missions are advancing,” the employee of a legal NGO in Beijing said.
In this context, would it have been better for the ABA to have issued a stronger statement — but one that might have jeopardized the good work ROLI, and the ABA in general, has done in Beijing? “The ABA’s programs and exchanges on death penalty procedures, exclusion of illegally obtained evidence, access to counsel, sentencing procedures, and other criminal procedure topics have enriched discourse and debate in China over the past decade,” Keith Hand, director of the East Asian Legal Studies program at the University of California, Hastings College of the Law, said in an email. “Especially now, with legal status of ABA and others in question, and a very high likelihood that they may be asked to leave,” the head of the legal reform NGO said, “you would almost be derelict of duty to not advocate against too much of a strident statement.”
It is difficult to determine how big of a role protecting its local staff played in ABA’s decision, especially in relation to other concerns — like facilitating business access for the ABA’s members. “The ABA has big financial disincentives from criticizing China,” Precht said. “They have millions of dollars invested in staying in China and maintaining good relations with the authorities and the government.”
After weeks of public and private grumbling among lawyers, the ABA tried to counter the backlash engendered by its statement. On Aug. 4, a day after the ABA issued its letter, the organization’s new president, Paulette Brown, took office. On Sept. 6, Precht wrote an op-ed in the Washington Post, criticizing the ABA’s failure to speak out for the detained lawyers. In a Sept. 11 response letter to the same newspaper, Brown expressed “concern” over the detentions. On Sept. 15, an ABA spokesperson sent Foreign Policy a comment from Brown, who was not made available for an interview. Besides noting that the ABA is “deeply concerned,” the statement also said: “We hope that the Chinese government will comply with its own policies and laws that acknowledge the important role of lawyers in the administration of justice and that provide meaningful protections for defendants.” As of late November, the draft NGO law, which could criminalize the presence in Beijing of organizations like ABA ROLI, seems no closer to being passed.
But for several people interviewed for this article, the ABA response was too little, too late. They argue that the ABA, and the interests of rule of law in China, would have been better served if it had stayed quiet, instead of issuing such a lukewarm response. “No statement would have been better than this statement,” said Wickeri, the expert on Chinese human rights law at Fordham.
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