8. ‘Secrets’ and Subversion: The Limits of Expression
Laws on secrets and subversion provide a catchall basis for punishing any citizen who disseminates information that is sensitive or embarrassing.
It took Chinese authorities several months to discover what happened on the night of April 20, 2004, and to determine that a national secret had been leaked. On a Tuesday night, an editor named Shi Tao stayed late in his newspaper office in a city in central China to send an e-mail to a man in Queens, New York. With the e-mail address [email protected] and the pen name 198964 flagging his political beliefs, Shi sent his notes from a routine meeting on propaganda orders during the run-up to the anniversary of the crackdown at Tiananmen Square on June 4, 1989. In Queens, a Taiwanese expatriate named Hong Zhesheng immediately reposted the notes in his e-mail newsletter, Democracy News, and the posting found its way online.
It didn’t create much of a stir. It is common knowledge that the Chinese government censors the media, and that the 1989 crackdown remains a sensitive issue. Shi’s e-mail was hardly newsworthy, and certainly revealed no classified information. And yet, after tracking down the journalist (with the help of Yahoo) in his new home in Taiyuan, in northern China’s Shanxi province, authorities charged him with the crime of leaking state secrets abroad and sentenced him to 10 years in prison. Assigned to a high-security prison in central China, where he worked cutting gems, Shi’s health rapidly deteriorated. He was finally transferred in June 2007 to a prison in Deshan, where conditions are said to be better.
“What is the meaning of a state secret? How can a journalist hold a state secret?” wondered Mo Shaoping, the attorney who represented Shi in his appeal. “These things did not involve state secrets or state security at all. It’s common sense. These are things that everyone ought to know about.”
China’s 1988 law on guarding state secrets provides a catchall basis for punishing any citizen—not just those who have access to classified information—for disseminating information deemed sensitive. It wasn’t until 2005 that the government declassified the death toll from natural disasters, leaving many other matters under wraps. Among the general categories it lists as secret, the law names major policy decisions on state affairs, national defense and military issues, diplomatic activities, national economic and social development, science and technology, investigation into criminal offenses, and “other matters that are classified as state secrets by the state secret-guarding department.” State secrets can be named as such after the fact, as they were in Shi Tao’s case. The State Secrecy Bureau can simply decree that given information is secret, even after it has entered the public domain.
The vague outlines of this law—bolstered by additional provisions on state secrets in news publications and online—are a stumbling block in efforts to build true watchdog journalism in China. For the press, the law is almost superfluous; there are enough social and administrative controls on online, broadcast, and print media to ensure that nothing very sensitive is leaked. And yet authorities have used it as a last resort to criminally prosecute journalists. The law carries its own particular barbs. It allows suspects to be held for months, or even years, without access to a lawyer. It allows extension after extension of pretrial detention. And it often brings steep jail terms.
DEFENDING THE PRESS
"The charges we see over and over again are subversion and violation of state secrets. They are used because the government can’t openly call free expression a crime."
CPJ has documented the prolonged jailing of more than a dozen journalists under this law. Jiang Weiping, a reporter based in the northern city of Dalian, spent five years in jail on the charge. He was punished in retribution for writing about official corruption in that city for a Hong Kong-based magazine. One of the officials he wrote about, Bo Xilai, was later named China’s trade minister. Xu Zerong, a U.K.-trained academic and freelance writer, remains in jail on a 13-year term for e-mailing to a colleague in South Korea information gleaned from a 1950s book about China’s involvement in the Korean War. New York Times researcher Zhao Yan was tracked down and imprisoned, initially on suspicion of leaking state secrets, apparently because of an article that predicted the retirement of Chinese leader Jiang Zemin. (Zhao was later convicted on a fraud charge widely seen as being trumped up; he served almost three years in prison before being released in September 2007.)
The liberal use of this and other national security-related charges makes China the world’s leading jailer of journalists. According to CPJ research, 20 of the 26 journalists known to be imprisoned in China are jailed for antistate crimes. Though all countries have laws safeguarding state security, Chinese authorities’ use of these accusations is overly broad, and has been used repeatedly to squelch free expression. Most of the jailed journalists on CPJ’s list are political prisoners, incarcerated for appearing to get too close to the corridors of power, for embarrassing top leaders, or for criticizing the Communist Party as it jealously guards its hegemony.
China hasn’t jailed anyone for “counterrevolution” since the charge was abolished in 1997. Originally deployed against communists before the revolution of 1949, the crime was used to punish political enemies of all stripes under the reign of Mao Zedong, throughout the Cultural Revolution, and in the aftermath of the military crackdown at Tiananmen Square.
The push to eradicate this outdated charge was once hailed by outsiders as a sign of progress, and seemed at its inception to be a step toward the modernization of China’s criminal code. But instead, authorities simply shifted to imprisoning reporters under a list of offenses now called “endangering national security.” Tossed in with crimes that most countries would consider a threat—such as organizing an armed uprising against the state—the criminal code includes vaguely stated “crimes” that constitute mere expression. The charge of “inciting subversion of state authority,” for instance, has been lobbed with alarming regularity against writers who criticize the one-party state.
This use of national security charges to inhibit the expression of opinions and stanch the flow of information is in contravention of international standards set forth by the International Covenant on Civil and Political Rights, to which China is a signatory. China signed the Covenant in October 1998, less than two months before Beijing announced its plan to bid for the 2008 Olympic Games. This was hardly a coincidence: The failure of its previous bid for the 2000 Olympic Games was widely attributed to concerns about China’s human rights record. But national leaders still have not ratified the international agreement, a step that would require significant legal reform.
Article 19 of the Covenant states that everyone “shall have the right to hold opinions without interference,” and that everyone “shall have the right to freedom of expression; this right shall include freedom to seek, receive, and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.” The same article makes exceptions in the right to free expression for the protection of national security. But it states specifically that these restrictions apply only in cases that are “provided by law and are necessary.”
In 1995, the London-based anticensorship organization Article 19 convened a group of experts on international law, human rights, and national security to establish recommendations for interpreting exceptions to the free expression clauses. The resulting Johannesburg Principles, later endorsed by the U.N. special rapporteur on freedom of opinion and expression, established a guideline that allows restriction of freedom of expression or information only in cases when a government can demonstrate that the restriction is lawful and is necessary to protect a legitimate national security interest in a democratic society. The principles place the burden on governments to define unambiguously their restrictions on expression.
China’s application of national security laws against journalists and writers for their peaceful expression of dissent or criticism fails to live up to these norms, CPJ research shows. Instead, the ranks of its political prisoners have recently swelled with a new category of transgressor. Finding the Internet harder to control than traditional media, authorities have repeatedly jailed online writers on national security-related charges. One of the earliest prosecutions CPJ documented of an Internet publisher in China was that of Huang Qi, who founded the Tianwang Web site, initially intended as a means to search for missing persons. The site soon became a forum for people to post articles on other topics, including such taboos as Uighur nationalism, Falun Gong, and the crackdown at Tiananmen Square. Huang was detained in 2000 and sentenced much later to a term of five years in prison. In 2001, authorities in Beijing went after a group of four young university graduates, members of an informal discussion group they called Xin Qingnian Xuehui (New Youth Study Group). Citing their online articles on social and political reform as proof of their intent to overthrow the Communist Party, authorities accused them of “subverting state authority.” More than two years after their detention, two of the four were sentenced to jail terms of 10 years each, the others to eight-year terms.
These cases—and the many others that have followed—reflect China’s obsession with suppressing any hint of organized opposition to party rule, however embryonic or informal it may be. They also mark the brutal outside limit of any reporting or commentary on reform, elite politics, Falun Gong, Tibet, the autonomous region of Xinjiang, or other sensitive topics.
Since the beginning of this decade, Chinese authorities have tightened their administrative, technological, and social control over the Internet. At the same time, several overseas Chinese-language Web sites have developed an audience of readers in China who use proxy servers to access their banned content. These Web sites have become real targets of Chinese authorities. One of them, Dajiyuan (Epoch Times), is affiliated with Falun Gong, a spiritual movement that has grown political under the brutal repression of the state. Many of the site’s contributors in China are not themselves Falun Gong practitioners, but this doesn’t matter: Even the association is enough to cause suspicion. Another site, Boxun News, sees itself as a forum for citizen journalists. It has no stated religious or political goals, but its willingness to post even the harshest criticism of the one-party state has similarly angered authorities.
The case of Li Yuanlong, who served two years for “inciting subversion of state authority,” illustrates the government’s willingness to use antistate laws to silence dissenting views. Li’s crime was to write political commentary expressing his frustration with the local government and with Communist Party rule, which he posted on a number of banned overseas Web sites, including Dajiyuan, Boxun News, ChinaEWeekly, and New Century Net. But Li was hardly a political organizer, and his intention was not to start a revolution. Instead, he told his lawyer, he had simply become frustrated with the “lies and clichés” of his work for the local daily Bijie Ribao. His efforts to report on poverty, unemployment, and inequality in the rural and undeveloped province of Guizhou had been continuously thwarted by local officials.
“He was a regular reporter at the newspaper,” his locally hired lawyer told CPJ after Li was picked up in September 2005. “He reported news.”
Broad classifications, ambiguity, and a lack of transparency make China’s national security laws a threat to free expression. These aspects of the laws would have to be addressed if China were to ratify the International Covenant on Civil and Political Rights. That work should be done now.