Whether in the United States, China or elsewhere, the struggle for fairness in the administration of criminal justice is never-ending. The challenge is especially daunting when prosecuting 'state secrets' cases. China's July 5 sentencing of naturalised American citizen Xue Feng to eight years' imprisonment for helping his American employer purchase a commercial database on Chinese oil resources is the latest example of how not to meet that challenge.
Xue was convicted of 'gathering intelligence' and 'unlawfully sending abroad state secrets'. Since it was first publicly revealed in November last year, the case, which has just been appealed, has unsettled not only the international business community but also Sino-US relations. During his China visit, US President Barack Obama mentioned it to President Hu Jintao .
Xue, a University of Chicago PhD in geology, disappeared in Beijing on November 20, 2007. Three weeks later, after two US diplomatic notes, China's Ministry of Foreign Affairs admitted Xue was in the custody of the Ministry of State Security, an institution modelled on the Soviet KGB. It was subjecting Xue to 'residential surveillance' - illegal, incommunicado detention in a secret facility.
Beijing's failure to notify the US of Xue's detention within four days violated the US-China consular agreement. It denied him his rights under the agreement to promptly meet American officials and have them arrange defence counsel. Not until the 32nd day of Xue's detention was an American official allowed to see him. This unlawful delay, not unusual in such cases, gave the Ministry of State Security exclusive, round-the-clock access to Xue for the crucial first month of investigation - every interrogator's dream.
The American consul who finally did meet him told Xue's wife that monitors had not allowed them to discuss the case and that Xue seemed 'in bad shape'. No wonder. In blatant violation of Chinese law, he had already been tortured. Xue managed to show subsequent consuls cigarette burns on his arm that his captors had inflicted when he refused to confess. He also said that the secret police ultimately coerced him into signing false documents.
On February 4, 2008, Xue was transferred to a Beijing State Security Bureau detention house. Yet, in violation of the Criminal Procedure Law, he was not formally arrested until April 11 that year. Although his wife retained an experienced defence lawyer the next month, the security ministry prohibited the lawyer from meeting Xue until December, after it had completed its investigation and sent the case to prosecutors. Thus, for over a year, Xue was denied access to counsel.
Throughout 2008, Xue was held in substandard, overcrowded conditions and regularly interrogated. In May 2008, when he refused to sign an investigation report, one investigator threw a glass ashtray at his head, injuring Xue when the glass shattered. Psychological torture intensified. To release the stress, Xue often openly howled until restrained.