Thursday, August 16, 2018

The Arbitrary Classification of State Secrets

China’s national broadcasting station CCTV airs Gao Yu’s confession of “illegally procuring/trafficking in state secrets for foreign entities,” blurring out her face but disclosing her full name.

In China, transparency on endangering state security (ESS) cases is low in many respects. China Law Yearbook, an official judicial compendium that publishes judicial statistics, states that 4,818 individuals were indicted for ESS crimes during the four-year period from 2011-2014. In recent years, China Law Yearbook has obscured this information by counting ESS cases under the category of “others.” Dui Hua estimates that more than 1,000 individuals have been indicted every year for ESS crimes since 2015.

There are 12 offences categorized under ESS. China has never disclosed a breakdown showing how many cases or individuals were arrested, indicted, tried or sentenced under each of these 12 offences, which include subversion, splittism, incitement, espionage, and illegally procuring/trafficking in state secrets for foreign entities. Dui Hua’s Political Prisoner Database (PPDB) has information on 779 individuals incarcerated for ESS crimes during 2011-2017.

Dui Hua has found that a substantial portion of ESS judgments disclosed online by courts concern the crime of illegally procuring/trafficking in state secrets for foreign entities, a charge that carries a maximum sentence of death. These judgments generally provide little information about the background of defendants or the nature of the illegally acquired secrets. Only a few judgments provide specifics about the cases. Some defendants were sentenced for taking photos of troops, vessels, and air force equipment. Some judgments concern individuals who allegedly provided state secrets to Taiwanese, U.S. or other foreign agents in exchange for financial compensation.

Every country has its reasons for guarding state secrets, but in China the offence has been frequently applied to regulate academic research, curb free speech, and suppress criticisms about party policy in the name of state security. Article 10 of the Law on Guarding State Secrets classifies state secrets into three levels: top secret (绝密), secret (机密), and confidential (秘密). What counts as a state secret and who is considered a foreign entity? The cases below illustrate that the classification system can be highly problematic, and the application of the offence can run counter to international norms, trumping individual rights of expression under the guise of safeguarding state security.

“Top Secret” State Secrets

The Law on Guarding State Secrets defines “top secret” as the highest level of state secrets; divulging such information is said to cause “extremely serious harm to state security and national interests.” In Dui Hua’s PPDB there are two cases involving the June Fourth protests and top secrets. Sympathetic to the protests, Fan Baolin (范宝琳) obtained six top secret documents in 1999 in his capacity as a state security cadre in Shaanxi. The documents revealed Beijing’s refusal to let exiled Chinese democracy activists return to China. Fan sent the documents to the Federation for a Democratic China, a group founded in Paris following the crackdown in 1989, which advocates for the democratization of China. In February 2001, Fan was sentenced to life imprisonment for illegally procuring state secrets for foreign entities. His imprisonment was not known by any human rights groups until 2007, when Zhao Changqing (赵常青) disclosed Fan’s case after completing his five years’ sentence in the same Weinan Prison for inciting subversion. Fan was imprisoned for a total of 17 years and was released on November 2, 2016, following multiple sentence reductions.

The case of Shi Tao (师涛) received extensive international media coverage when the journalist was sentenced to 10 years’ imprisonment for using a Yahoo! Mail account to send top secrets to a New York-based, Chinese language website. In April 2004, Shi attended a staff meeting where a memo issued by the Central Propaganda Department about stability maintenance ahead of the 15th anniversary of the June Fourth protests was discussed. The memo covered restrictions on media coverage about June Fourth, Falun Gong, and mass protests. Prosecutors accused Shi of taking detailed notes about the memo and sending them to “overseas hostile forces” under the name of “198964”, despite him “knowing full well that recording and dissemination were strictly prohibited.”

Prominent dissident Huang Qi (黄琦) is currently incarcerated for allegedly sharing a top secret report issued by a local neighborhood committee in Mianyang, Sichuan, on his 64 Tianwang website. With the help of like-minded volunteers, Huang founded the website to provide legal assistance and information to vulnerable groups. According to several volunteers, police investigating the case claimed 64 Tianwang was a “hostile foreign website” created to “spread negative news about China.” The so-called top secrets concerned a report covering the government’s handling of petitions lodged by Chen Tianmao (陈天茂), also a 64 Tianwang volunteer, who photographed the report for Huang. Pu Wenqing, Huang Qi's mother, questioned why a petitioner report would be classified as top secret and claimed the offence was trumped up since the report did not even bear a “secrets” stamp or an official seal.

“Secret” State Secrets

"Secret" information refers to important state secrets, the leakage of which is said to cause "serious harm to the state." Rights lawyer Zheng Enchong (郑恩宠) was sentenced to three years’ imprisonment for sending two documents by fax to the New York-based organization Human Rights in China (HRIC). The Shanghai Secrecy Bureau found that one of the documents contained "secrets" while the other was considered “confidential.” The secret information referred to a manuscript Zheng had compiled about police handling of a protest that broke out at a food factory in Shanghai in May 2003. Zheng was found guilty even though neither of the two faxes were actually received by HRIC due to technical errors; nor had HRIC sought to disclose information about the documents.

In a relatively recent case, journalist Gao Yu (高瑜) was sentenced on November 26, 2015 to five years’ imprisonment for illegally providing secrets to Mirror Media Group, a Chinese news outlet based in the U.S. The charge stemmed from her acquisition of "Document No.9," a warning to Chinese Communist Party members about the “seven perils.” The seven perils included the promotion of historical nihilism and Western values such as democracy, free press, and judicial independence. The full text of Document No.9 was shared online, garnering a total of 26,197 views as of April 28, 2014, according to the judgment handed down by the Beijing No.3 People’s Court. Due in part to her poor health and international outcry, Gao was allowed to serve her sentence outside prison. Her sentence will expire on April 23, 2019.

“Confidential” State Secrets

Although “confidential” is the lowest level of state secrets, individuals providing more than three “confidential secrets” to foreign entities can still face lengthy sentences of up to 10 years’ imprisonment. U.S. citizen Xue Feng (薛锋) was sentenced to eight years’ imprisonment in July 2010 for obtaining 15 geological reports classified as “intelligence” and acquiring an oil industry database classified as “confidential” on behalf of his employer, a U.S. consultancy company. The database contained information about the coordinates of more than 30,000 oil wells, each of which was “confidential” even though oil well coordinates are research data generally made public in countries other than China. Of the oil wells, 2,000 of them were either located outside of China or were already widely known. Dui Hua raised Xue's case with Chinese officials and urged the U.S. government to step up efforts to secure Xue's better treatment and early release. In November 2012, Xue was granted a 10-month sentence reduction. He was deported on the day he was released, April 3, 2015.

While the case of Xue Feng casts a spotlight on the danger of doing business in China, academics also face similar risks. Dui Hua has previously reported on the case of Xu Zerong (徐泽荣), a historian sentenced to 13 years’ imprisonment for sending photocopies of books about the Korean War, published in the 1950s, to a South Korean scholar. Unbeknownst to Xu, the books remained classified as “top secret,” even though their secrecy status should have been declassified upon the expiry of the 30-year secrecy period as stipulated by Article 15 of the Law on Guarding State Secrets.

An early case Dui Hua uncovered involved two individuals in Fujian who were sentenced to 5-10 years’ imprisonment for mailing “secret,” “confidential,” and “neibu” (i.e. internal) books to a university library in Hong Kong. The prosecutors claimed the duo illegally procured library materials in China starting in 1995 in exchange for financial compensation from the Hong Kong library. The “confidential” books covered statistical materials on broadcasting and civil administration in Hebei, which are now widely available in both Hong Kong and mainland libraries. The “secret” information referred to books published in the 1960s about the Sino-Soviet and Mongolian borders and books published in the early 2000s about Chongqing’s public security bureau and its anti-gang campaigns. The first defendant was released in September 2010 following two sentence reductions totaling 32 months; the second defendant completed his full five years’ sentence in May 2008.

Arbitrary Application

State secrets are matters that have a vital bearing on state security and national interests and are entrusted to only a limited number of people for a given period of time in accordance with proper legal procedures. The regulations governing the handling of state secrets in Chinese courts are not well understood. Dui Hua has previously reported that entire criminal cases may be classified as secret from the police investigation stage onward, based solely on the politically sensitive nature of the alleged criminal activities at play, and that this classification holds over when the case is tried in court. In the aforementioned cases, it is questionable how the defendants’ actions put China’s state security at risk. Zheng Enchong's defense lawyers claim the offence was misapplied because Zheng only recorded ordinary social news – ranging from a small peaceful protest by factory workers to a demolition jointly carried out by government officials and business corporations. Zheng’s accounts have no obvious connection to state security.

Similarly, it is hard to imagine why a document issued by a local neighborhood committee concerning a petitioner’s complaint could be classed as “top secret,” as in the case of Huang Qi. In an interview with Radio Free Asia, Huang's mother stated that “if it were really a top secret document, the staff members [allowing Chen Tianmao to photograph] should have been detained too... They have set a trap for Huang Qi...” Huang’s defense lawyer, Li Jinglin, remarked that Huang would very likely be sentenced even though the state secret charge against him had no basis.

Several Chinese legal scholars and practitioners have cast doubt on the labeling of Document No. 9 as a “secret.” Scholar Zhang Xuezhong argued that to avoid arbitrary application, courts should be required to identify and quantify the harm inflicted on state security and national interest. He remarked that a party document should not be seen as a state secret since the ruling party is obliged to make its policies and governing philosophy public so that party members can monitor and evaluate their performance. Even if a document discloses party secrets, party members only receive disciplinary, not criminal, punishment. Gao should not have received any form of punishment because she has never been a party member.

Scholar He Bing argued that Gao is innocent on the basis that the information in Document No. 9 was already disclosed by official news media outlets that warned party members to remain vigilant about the infiltration of aspects of Western ideology, dubbed the “seven perils.” These reports came out months before Document No. 9 was circulated online in August 2013. Prominent dissident Bao Tong called it “ridiculous” to treat Document No. 9 as a state secret – as it relates neither to military affairs nor commerce, but an instruction of “ideological control” given by a political party.

The two cases relating to Fujian and Guangdong academics illustrate the question of the expiration periods imposed on state secrets. In finding the scholars guilty, the courts’ decision ran counter to the Law on Guarding State Secrets, which provides that a state secret shall be automatically declassified upon the expiration of the period guarding it. The secrecy period of “top secrets” shall not exceed 30 years, whereas the time limit for “secrets” and “confidential” secrets is 20 years and 10 years, respectively. Nonetheless, Xu Zerong and the duo in Fujian were found guilty although the acquired materials had technically been “declassified” at the time of their detention.

In January 2018, Swedish national Gui Minhai (桂民海) made international headlines again after he was snatched by Chinese agents on board a train to Beijing while accompanied by two Swedish diplomats. Gui was reportedly detained for the problematic offence of illegally procuring state secrets for foreign entities. The level of state secrets involved in the case remains unclear. In a televised confession in February, Gui claimed he had been manipulated by Sweden as a “chess piece” to cause trouble for China. Given Gui’s past involvement in Causeway Bay Books, a Hong Kong bookstore which sold titles about Chinese leaders, there are reasons to believe the charge is political and Gui’s statement at the government-arranged interview was coerced.

The cases above reveal the problematic nature of the offence of “illegally procuring/trafficking in state secrets for foreign entities.” Not only is there a lack of transparency in the classification system of state secrets, there is also a great deal of evidence that the offence is being used to curb individual rights of expression under the guise of safeguarding state security. The offence has been arbitrarily used to silence dissidents, rights lawyers, journalists, and academics and to cover up events like June Fourth protests.