Interviewee: Jerome A. Cohen, Adjunct Senior Fellow for Asia Studies, Council on Foreign Relations

Interviewer: Bernard Gwertzman, Consulting Editor, CFR.org

Jerome A. Cohen, an expert on human rights in China, sees "enormous progress" in economic and social rights but says deep problems--and sometimes harsh reprisals--persist for those seeking political and civil rights. "Repression is brutal and continuing for people who overtly challenge the system or refuse to allow themselves to be beaten down," Cohen says. He notes the continuation of the practice of "reeducation through labor" to clamp down on dissent. Cohen says the Obama administration has not yet decided how to deal with the problem when it needs China's help in economic, diplomatic, and military areas but says there is a great opportunity for cooperation in improving China's rights system.

The latest State Department report on human rights around the world is rather condemning of China's recent record. Is China really doing that badly or has there been some improvement in recent years?

If we're talking about human rights in the narrower sense that Americans generally use it, that is, political civil rights, meaning freedoms of expression and protections against arbitrary state actions, including imprisonment, then China has at best a mixed record. But the Chinese might discuss human rights in terms of economic and social rights. Of course in those categories, China has made enormous progress, even though there are increasingly obvious social costs, especially the big gap that's getting bigger between the rich and the poor. But if we talk about what I think we're talking about, which is political and civil rights expressions, due process of law, and all that, it's at best a mixed record.

Perhaps we should focus on the period after Mao Zedong died?

Beginning in 1979, China started the process of what it calls "the open policy," and that has led to considerable improvements including in the legal system. There wasn't much of a legal system even before the Cultural Revolution (1966-1976). When the Cultural Revolution ended with the death of Chairman Mao in September 1976, and Deng Xiaoping finally ascended to the head of the party in late 1978, there was a push to create a legal system. Deng knew that China needed a legal system for many reasons--internal economic development, foreign economic cooperation, assuaging people's concerns against all the trepidations of the Cultural Revolution when over 100 million were adversely affected. It represented one of the most arbitrary periods of Chinese history.

Repression is brutal and continuing for people who overtly challenge the system or refuse to allow themselves to be beaten down.

China needed rules and regulations for regulating the allocation of power among central government institutions and between the central government and the provincial and local governments. In summary, China needed law, in fact, just to settle disputes. If you get a huge number of individually unimportant disputes, that gets out of hand because the system isn't processing them. This creates a dangerous situation. And that's what the Chinese social situation is becoming now, with a huge number of petitioners trying to solve their grievances and the questions of what kind of systems are there for processing these grievances.

I was a Soviet specialist, and in those years, it was clear that human rights were quite limited. The Communist Party was everywhere, and it was very hard for individuals to speak out at all. In China today, given the Internet and everything else, it's obviously easier to speak out individually.

It's easy to speak out as an individual if you don't overtly challenge the system and if you don't seek to have any colleagues or any kind of large-scale organization or association. People have the freedom to speak at home now. They used to be afraid during the worst years of the Cultural Revolution and earlier to speak out even at home. You never knew who would be forced to betray you. So there is a big improvement in terms of speaking to your friends confidentially, putting individual opinions out criticizing this or that. That can be done more than in the past, and the Internet obviously facilitates that. But repression is brutal and continuing for people who overtly challenge the system or refuse to allow themselves to be beaten down.

What are the issues that the Chinese authorities are most sensitive about?

Falun Gong, the new quasi-religious organization, would be at the top of any list for ridiculous reasons. Tibet would certainly be at the top along with Xinjiang. Taiwan is another sensitive issue. The administration of repression is uneven because it varies from month to month depending on the circumstances, and it varies from place to place also depending on circumstances. The fact is that state security agencies, together with various police units, including armed police under the military, run a very tight ship, and quietly, they're very good at regulation. They have an enormous amount of repression skills, even while giving the appearance of not being a police state. If you go to Pakistan, for instance, at every corner even though there're democratic elections and the restoration of a chief justice, you are in no doubt that it's essentially a policed country. You see military in police uniforms on every corner. If you go to China, it looks great. You don't see any of this.

When I was in Shanghai last November, I didn't see much repression at all.

It's wonderful except you can't be under any illusion that they aren't aware of what you're doing. If they think it's worthwhile, they will quietly be tracking you. People will ask me, "Are you followed when you're there?" I say, "No, they're ahead of me." When I arrive at some place, they're already there because that's the way the system works. My friend Zheng Enchong, a Shanghai lawyer, wasn't challenging the government in any way or calling for the overthrow of the party or the constitution or calling for freedom of expression. He was representing a large number of lower-middle-class and middle-class people who had apartments that were being dispossessed for profitable real-estate redevelopments by favored developers.

Authorities stopped Zheng from helping these people. They took away his lawyer's license and when he continued to advise without a lawyer's license, they cooked up a scheme to send him to prison for three years, saying that he had sent abroad state secrets. And when he came out and finished his period of deprivation, nothing had changed. He's continuing to be under a very loose form of house arrest that effectively precludes him from seeing people. I tried to visit him, and six police stopped me at his door.

But what about the judicial reforms?

There has been some criminal justice reforms, an attempt to improve the review of death penalty sentences at the Supreme Court level. Formal criminal justice reform efforts still survive in China despite a very conservative climate. But that's at the top, very visible part of the scale. Underneath, you have all these thugs. You've got secret jails, and you've got the Communist Party's Discipline and Inspection Commission. They're the real police for over 74 million people who are party members. When a party member is suspected of corruption like the deputy president of the Supreme Court of China was last year, he's not taken in by prosecutors or investigators or the police; he's taken in by the party's Discipline and Inspection Commission. There are no set rules. They have certain rules but they just don't come into play day to day in the commission. If they're taken in by the police, there are at least some formal rules. You're supposed to be held only thirty days before the prosecutors have to approve an arrest warrant.

But when the party's Discipline and Inspection Committee takes over, you're gone. And they spit you out whenever they're ready. Some of the 15 percent of the people that are spit out are then taken to the police and prosecutors for criminal conviction. Others will suffer other consequences, starting with the loss of their party membership, etc. So in other words, you have the formal criminal justice system that has seen some reforms, largely at the death penalty review level at the Supreme Court, and then you have the real system including reeducation through labor. Reeducation through labor is a system that existed in the old Soviet Union. You were often sent away out of town sometimes for several years by a system that didn't go through the criminal justice system. You could be exiled maybe for three years, maybe for more. The Nationalist Chinese used that under Chiang Kai-shek, starting in the late 1940s. People were sent to Green Island off the coast of Taiwan and to other places without going through the criminal justice system. That finally ended in Taiwan in January of this year, but the mainland has not been able to end reeducation through labor.

Lots of people, including important judges, denounce it as a violation of the whole constitutional criminal justice system, which it is. And yet they have one significant opponent, and that's all you need. That's the industry of public security, which fears if they lose this right, they won't be able to cope, whether in Tibet or Guangzhou, and the minister of public security has now been promoted to become head of the Communist Party's Political Legal Committee. That is the legal organization that controls human rights in China.

Secretary of State Hillary Clinton was in China last month, and it was played up in the press that she avoided any public discussion of human rights violations. There's a certain feeling now that at this time the United States is not interested in picking a fight with China. Is that your analysis?

The State Department just hasn't got its act together in terms of what priority to give human rights in its current relations with China, and how to express whatever priority they decide upon.

We've got very important political, diplomatic, and military issues where we need China's cooperation. At the same time, you have to decide with an incoming administration, which could make a fresh start, what to stress. One option is that you just downplay human rights, and that's certainly the impression she has given. Another option would be to downplay only the public expression of pressure on China in favor of off-the-record, confidential talks and perhaps even greater U.S.-China cooperation to improve human rights. There's an enormous area of opportunity for the United States and China to work together to improve the human rights system in China. The real situation with Hillary is that the administration hasn't worked all of this out. They looked ridiculous at the Geneva [UN] Human Rights Council meeting in February because our representative just sat in the back taking notes.

This was the first review of China under the new, what they call, universal periodic review, by the Human Rights Council. People were waiting to see what the new administration would do. In the end, they did nothing because they haven't pulled a policy together. They're having trouble just putting the team on board, and these things take time. Then Hillary got caught up in these demands of the annual bureaucractic process. Having taken a lot of heat for her phraseology to put human rights down on a lower peg than other matters on her China trip, she comes home and very shortly afterward, her department issues its annual human rights report. Obviously, it had been prepared before she took over. The report is a very useful review. The State Department just hasn't got its act together in terms of what priority to give human rights in its current relations with China, and how to express whatever priority they decide upon. What's the nature of cooperation to be, what should criticism be?