The High Price of Diplomacy with China

Apr 23, 2008

 The Bush administration is trying to scuttle a federal human rights lawsuit that threatens to embarrass one of China’s top political leaders. The administration says the case could jeopardize trade and “has already had a chilling effect on U.S.-China relations,” documents show.

The lawsuit, which was filed in U.S. district court, accuses Bo Xilai—a member of China’s elite Politburo and until recently the country’s trade minister—of controlling and directing forced labor camps where inmates were beaten, suffocated and killed.

The abuses occurred while Bo was governor of Liaoning province between 2001 and 2004, before he was named China's minister of commerce, according to the complaint.

If the lawsuit goes forward, the Bush administration argues it could create a “diplomatically undesirable inquiry” -- into Bo’s -- “responsibility for alleged torture and extrajudicial killing,” according to court filings. These “difficult and sensitive questions,” the administration said, “need not be confronted at this time.”

The plaintiffs are all part of the Falun Gong religious movement, members of which according to a 2007 U.S. State Department report were subjected to shock treatments, forced abortions and “credible reports of deaths due to torture and abuse” at the hands of Chinese authorities. Protestant and Catholic priests and their followers were also abused, according to the annual report, which echoed those from previous years.

The United Nations, in its own report on global torture, last year alleged that while Bo was governor of Liaoning province, Falun Gong members were killed for their hearts, livers and other organs, which were removed for reuse in transplant patients. At the time, the Chinese dismissed the allegations of organ harvesting as “rumor.”

Despite the reports, the Bush administration has asked Judge Richard J. Leon, who is hearing the Bo case in the District of Columbia federal court, to dismiss it, saying the suit has had “immediate adverse foreign policy consequences.”

“It will undercut the U.S. government’s efforts to engage China on human rights issues, including its treatment of the [Falun Gong],” according to diplomatic correspondence reviewed by the Center for Investigative Reporting. “It could also adversely affect U.S. engagement with China on a broad range of other issues, including counter-terrorism, law enforcement, economics and trade, trafficking in persons, adoption, narcotics suppression, and nuclear proliferation.”

The civil action against Bo, 58, was filed under federal statutes that allow noncitizens to sue alleged torturers in U.S. courts. It comes at a delicate time for U.S.-China relations, and the Bo case offers a rare glimpse into the administration’s strategy to aggressively protect its financial and diplomatic relationship with a country long considered an ideological nemesis.

During Bo’s tenure as commerce minister, U.S.-China trade increased 67 percent, to nearly $387 billion in 2007. China is now America’s second-largest trading partner. Its recent crackdown on protesters in Tibet has heightened worldwide concern and attention regarding its human rights policies. The focus comes as the Communist regime prepares to host this year’s Summer Olympics.

Behind Closed Doors

Four members of the Falun Gong living outside of China filed the lawsuit against Bo in 2004. The case was first reported on in 2006, by the Legal Times trade magazine, and has since received little attention publicly. But privately, the allegations against Bo drew immediate concern at the highest diplomatic levels.

Bo was served with the legal papers in an embarrassing episode at the Fairmont Hotel in Washington, D.C. While passing through the hotel lobby, on route to a dinner with the U.S. Chamber of Commerce, “an unidentified man suddenly rushed toward Minister Bo and the Chinese entourage,” according to a complaint letter sent from the Chinese Embassy to the State Department. “Minister Bo and other members of the Chinese entourage swiftly dodged this physical attack.” A U.S. court clerk, however, considered Bo served.

As the case moved through the courts, China’s Foreign Affairs Minister Li Zhaoxing warned his U.S. counterpart—Secretary of State Condoleezza Rice—of financial consequences if the case were to proceed, according to a 2006 letter sent directly to Rice.

Minister Li described the Falun Gong as a cult and repeatedly called its case a “frame-up” against China. He went on, saying if the case proceeded, it would undermine “our economic and trade ties.”

“This is something neither of us wants to see,” the minister wrote.

A month later, China’s Justice Minister Wu Aiying wrote then-Attorney General Alberto Gonzales, asking that he give personal attention to the Bo suit and “resolve the case” and suggesting some American legal principles that could be applied in getting it dismissed.

The Justice Department has since taken an active role, filing a series of legal briefs urging Judge Leon, who was appointed by President Bush in 2002, to shut down the lawsuit. Because Bo has not responded in court to the allegations, the Bush administration is the only party fighting the suit. Civil cases filed against alleged foreign torturers are infrequent, but it is not uncommon for the U.S. government to oppose such legal actions.

Tightening the Noose

Falun Gong, an offshoot of Buddhism and Taoism, was officially banned by the Chinese government in 1999, along with certain Protestant and Catholic groups. The government set up a special security bureau to enforce the ban.

The State Department—which monitors religious freedoms worldwide—has for years expressed particular concern over China’s repression of “unauthorized” religions. Its 2007 International Religious Freedom Report is strewn with torture references, including “beatings with fists, sticks and electric batons … cigarette burns … and submersions in water or sewage.” The report cites “credible” reports from Falun Gong adherents in the United States who claim that more than 100,000 practitioners have been detained since 1999 and that many “have been subjected to excessive force, abuse, rape, detention, and torture, and that some of [the group’s] members, including children, have died in custody.”

According to Scott Flipse, the East Asia program director at the State Department’s Commission of International Religious Freedom, a bipartisan monitoring arm, the abuse is not limited to the Falun Gong.

“It is a deteriorating situation for many religious communities. They [the Chinese] are targeting unregistered Protestants, unregistered Catholics and others,” said Flipse.

Upsetting Foreign Relations

The administration’s arguments against the Bo suit are familiar refrains among critics of the Torture Victim Protection Act and similar laws used to penalize alleged foreign torturers. They argue that plaintiffs and judges fail to grasp the nuances of foreign relations and may in fact undo diplomatic strides gained in private negotiations.

“I think you can condemn a country’s practices and use a variety of tools to induce them to improve and still be concerned that you don’t want these ad hoc private-party lawsuits being the vehicle for conducting our foreign relations,” said Curtis A. Bradley, a visiting law professor at Harvard who in 2004 worked in the State Department’s legal advisory office.

But some legal specialists said diplomatic and political concerns appear to be distorting the Bush administration’s judgment in this case.

Jacques deLisle, a law professor at the University of Pennsylvania and an expert on Chinese and international law, said if the case proceeded, it would be unlikely to impact trade or other relations with the Chinese. “The level of outrage that gets cranked out, I think, is somewhat disingenuous,” he said. “It is possible [for the Bush administration] to explain to China’s government that we do believe in letting these laws on the books operate and letting these litigants have their day in court.”

Bo’s Alleged Role

The plaintiffs in the Bo case—three of whom are referred to by pseudonyms for fear of retaliation against relatives still in China—contend that as governor, Bo maintained strict control over the persecution of Falun Gong. The complaint alleges that he fired and prosecuted other government officials who refused to execute his Falun Gong policies, which, according to China experts, are often carried out by provincial officials.

“There has been a lot of evidence pointing to the provincial government as overseeing these abuses,” said one State Department Asia policy officer who spoke on condition of anonymity because she was not authorized to speak publicly about sensitive diplomatic matters.

The plaintiff named is 47-year-old Falun Gong member Li Weixum. She claimed she was beaten with a steel pipe and hung by handcuffs around her wrists until she bled. Another member, arrested with Li, said her head and face were covered with plastic wrap until she fainted. The action was repeated when she regained consciousness.

The Falun Gong was formally outlawed by the Chinese government in 1999, along with other religious groups determined to be illegal “cults.” Several Christian groups were included on the list and, according to human rights monitors, are now frequent targets of religious enforcement units known as “6-10 Offices,” named for the month and day in 1999 that the policy went into effect. Members of outlawed religious groups can be sentenced to from three to seven years in work camps that the Chinese government calls “re-education-through-labor” facilities.

A Global Campaign

The Falun Gong has filed more than 50 human rights lawsuits around the world, seeking damages from Chinese government agencies and officials. Only a handful of suits has been successful. Last fall, an Australian court ruled in favor of Falun Gong members in a torture claim filed against Bo Xilai.

Human rights groups, such as Human Rights USA—the group that is representing the Bo case plaintiffs in U.S. courts—are increasingly pursuing alleged human rights abusers in civil arenas, using laws like the Torture Victim Protection Act and the Alien Tort Statute, a controversial law enacted in 1789.

“The [Alien Tort Statute] became an effort by human rights activists to incorporate all sorts of ideas from international law into the law of the U.S.,” said Richard A. Samp, chief counsel at the Washington Legal Foundation, a public-interest law firm and free-enterprise think tank. “Ninety-nine percent of [the cases] I think are frivolous.”

But foreign officials have begun to accept U.S. jurisdiction in such cases. In 2006, the ruler and deputy ruler of Dubai hired the law firm DLA Piper when they were accused of trafficking boys to be used as camel jockeys in the United Arab Emirates. The case—filed in federal court in Florida—was eventually dismissed. A similar suit is ongoing in Kentucky.

In another case, the then-prime minister of Cambodia hired an American law firm to defend against allegations of human rights abuses in a lawsuit filed in New York.

A ‘Special’ Immunity

The Bo suit in the end may not hinge on foreign policy implications, but on whether Bo is immune from litigation filed in U.S. courts. He was served with the civil complaint while visiting the U.S. on official government business, as part of the U.S.-China Joint Commission on Commerce and Trade in 2004.

Heads of state and diplomats are by law immune from most criminal and civil complaints, but international laws are less clear when it comes to lower-level government officials like cabinet members.

In a similar case in 2004, a federal judge in the Northern District of California ruled that two Chinese officials—the then-mayor of Beijing and the then-deputy governor of Liaoning province—were not immune from torture suits. The judge, Edward M. Chen, issued a default judgment in favor of the plaintiffs, practitioners of Falun Gong, but did not award any damages. The former Beijing mayor, Liu Qi, is now president of the Beijing Organizing Committee for the 2008 Olympics.

In the Bo case, the Justice Department is claiming Bo cannot be sued because of what it calls “special missions immunity,” part of a treaty the U.S. has never signed. But the Bush administration says such immunity is legitimate under customary international law, and that the president can decide when to invoke the rule. “Such a determination has been made in this case with respect to Minister Bo,” according to legal filings. “The United States must be able to host foreign officials without the prospect that they may be served with process in a civil suit.” The government also claims it “could expose U.S. officials visiting other countries to suits arising from their performance of official U.S. government functions.”

Human rights groups, however, argue that the U.S. government is reinforcing human rights abuses by maintaining positive relationships with alleged torturers.

“High-level officials from foreign governments who are committing human rights abuses should be very fearful of entering this country, or any other country,” said Morton Sklar, executive director of Human Rights USA.

Judge Leon has been deliberating over the Bo case since last June, and by law it is his choice whether to defer to the views of the Bush administration and dismiss the suit. A spokeswoman for Judge Leon would not say when he plans to make a decision.

The State Department’s legal advisory office would not comment on the record for this article, instead pointing to its arguments already filed in court.

China experts say it is unlikely Bo will ever be questioned in the affair.

“I don’t think any Chinese government official would even spend time in hiring lawyers, or coming to America to give a deposition or show up in court,” said Siva Yam, president of the U.S.-China Chamber of Commerce. “If they do, they will lower their status.”