Should the U.S. Extradite Chinese Wanted by Beijing?

I am a great believer in Sino-American cooperation. Like many Americans I support Xi Jinping’s remarkable campaign against corruption. I would be happy to rid the United States of genuinely corrupt fugitives from any country, including China. Yet, unless China experiences another Cultural Revolution or a slaughter of its youth similar to that of June 4, 1989, I cannot imagine a worse time for the two countries to negotiate an extradition treaty.

There is a reason why the U.S. and most democratic nations do not have extradition treaties with China. That reason is China’s criminal justice system, which, twenty-six years after the Tiananmen tragedy, has still failed to meet the minimum standards of international due process of law. Indeed, since Xi Jinping’s assumption of power, despite a plethora of hymns extolling the rule of law, in practice China’s criminal justice system has been steadily marching in the wrong direction, and this is no state secret or development known only to Chinese and foreign legal specialists.

The whole world knows of the Communist Party’s ongoing brutal attack upon China’s human rights and criminal defense lawyers. Until recently, although hundreds of hapless defendants were convicted in unfair proceedings each year, I took hope that legislative improvements, such as the rule calling for the exclusion of coerced confessions from criminal evidence, would soon be reflected in practice. Unfortunately, five years later, that rule has not yet become “living law.” Most Chinese law reformers have long had to content themselves with better statutes, being unable to afford the luxury of worrying about the failure to implement them.

Now, however, we have to recognize that, instead of practice gradually coming to conform to legislation, legislation is being revised to conform to practice. The National People’s Congress is enacting a comprehensive legislative agenda designed to confirm China as a de facto garrison state administered by the police and other domestic security forces. Hence the new National Security Law, the draft Cybersecurity Law, the draft Counter-Terrorism Law and the draft Foreign NGO Management Law designed to terminate exchanges with Western organizations that preach such “hostile” concepts as constitutionalism, independent judges and unfettered defense counsel. As part of this legislative assault, the Criminal Law itself is about to be amended so that any lawyer bold enough to wage a vigorous defense in court can easily be sentenced to three years in prison, marking the end of his career. Moreover, any lawyer who reveals to anyone—even to a witness, a colleague or a defendant’s family—anything about a trial declared to be “secret,” as major corruption trials often are, will be subject to similar punishment. And, to further restrict the scope of defense counsel, the Ministry of Justice has been presiding over the revision of legal ethics norms regulating lawyers’ conduct in and out of court.

We also must acknowledge that, however disappointing and dangerous this new round of legislation may be, in China today laws nevertheless continue to be secondary to lawlessness, as the current attack on lawyers demonstrates. To be sure, in individual cases Chinese defense lawyers have frequently been subject to kidnapping, torture, illegal detention, arrest and prosecution, loss of employment, disbarment and many other forms of intimidation, not only against themselves but also their families. But what is distinctive in recent weeks is the uninhibited attack, at the same time in many Chinese cities, upon hundreds of rights lawyers and their staff, whether or not they are at present involved in controversial cases. This is an effort to destroy any remaining possibility of waging a vigorous defense at trial or of challenging government in the broader arena of public opinion.

In these circumstances, how can any democratic government negotiate an extradition treaty with China? The most that the U.S. government can do is to look carefully into each case presented by the PRC, see whether the suspect appears to have violated American immigration, financial or other laws and then open discussion with the suspect and his counsel as well as with Chinese officials to seek a solution to the specific case. Such informal discussions are necessarily non-transparent, murky and complex, as were the cases of three Bank of China employees who over a decade ago were accused of absconding to the U.S. with almost five hundred million U.S. dollars. They were confronted with a choice of accepting pre-determined PRC prison sentences, excluding the death penalty, if they returned to China or remaining in the U.S. to face prosecution and undoubtedly longer prison sentences for violations of our federal law. Other factors had to be taken into account also, including any provision for return of the misappropriated funds, punishment for their spouses’ involvement and arrangements for their families. Faced with the double pressures of plea bargaining with American prosecutors and their Chinese counterparts, one chose immediate return and a 12-year sentence in Chinese prison, while the other two decided to stay in the U.S., reject guilty pleas and take a chance with a jury trial that they lost, resulting in sentences of over 20 years and the likelihood of subsequent deportation.

Criminal prosecution in America and “voluntary” return to Chinese prosecution under threat of American prosecution—both rare to date—are not the only existing alternatives to extradition of alleged corrupt fugitives. The major option at present is the exclusion or deportation of suspects whose attempted entry into this country is found to have violated our immigration laws. But, like extradition, such measures surely raise human rights issues that may prevent repatriation to a country that is notorious for practicing torture on criminal suspects, denying them a fair trial and using corruption prosecutions as a vehicle for settling political struggles. Many more fugitives may spend time in U.S. immigration detention than in formal American prisons.

The PRC, in March of this year, unveiled “Operation Skynet” as the successor to “Operation Foxhunt,” increasing its demands upon the U.S., Canada and Australia—the most popular destinations for fugitives—to repatriate a long list of Beijing’s most wanted suspects. The U.S. Government, to the extent we are permitted to know, seems to be trying hard to be responsive within the bounds of our very different legal system. Regular discussions have been held over the years in the China-US Joint Liaison Group on Law Enforcement Cooperation. In March an agreement was reached between the U.S. Department of Homeland Security and the PRC’s Ministry of Public Security, but, although a summary of its contents has been made available, perusal of its actual text may require a Freedom of Information Act lawsuit. China’s Ministry of Public Security claims that U.S. authorities are “prejudiced” against the PRC legal system and “mistakenly believe we would undertake unfair prosecution of suspects.” Our State Department has made clear that the U.S. will not force any foreign national to return to a country where no fair trial is available.

High officials of the two sides will meet again this month to review progress in identifying what the State Department has called “a finite number” of alleged fugitives and in developing a strategy for addressing each of them, including the return of their stolen assets.

The U.S. does not want to become more of a haven than it already is for foreign criminal suspects, but it also does not want to commit any further human rights violations. It is time for the PRC to fundamentally overhaul its criminal justice system to meet the standards of the International Covenant on Civil and Political Rights, which it signed in 1998 but has never ratified, and the other international human rights commitments that it has already made, like the Convention Against Torture. In light of the current campaign to tame human rights and criminal defense lawyers, however, prospects for a genuine rule of law look bleak.