Silencing Critics by Exploiting National Security and State Secrets Laws

National Security  |   State Secrets

Prosecuting individuals for national security violations, in particular subversion, is currently the most common method used by Chinese authorities for silencing those who, in spite of the legal, political, psychological, and technological barriers that authorities have erected to prevent Chinese citizens from expressing their opinions, nevertheless attempt to exercise their right to publish their political views.

Chinese laws require that anyone intending to disclose information relating to state secrets, national security, or the nation's leaders must get prior government authorization. The law then defines these terms to encompass all forms of information pertaining to politics, economics, and society. The government therefore has the right to censor any information on these topics, and anyone who publishes such information without prior authorization has violated the law, regardless of the actual contents of their writings (see, for example, the case of Zheng Enchong, discussed below).

Reports from non-governmental organizations such as Amnesty International, Digital Freedom Network, the Committee to Protect Journalists, Reporters Without Borders, and Human Rights in China indicate that Chinese authorities regularly detain and imprison professional and freelance journalists and writers based on accusations that their writings violate national security laws.

National Security

Articles 102 through 112 of the Criminal Law specify what types of behavior constitute a threat to national security. Of these, Articles 105 and 111 are the ones most commonly employed to silence political dissent:

• Article 105 criminalizes organizing, plotting, or carrying out subversion of the national regime, or using rumor mongering or defamation or other means to incite subversion of the national regime or the overthrow of the socialist system.
• Article 111 prohibits stealing, secretly collecting, purchasing, or illegally providing state secrets or intelligence to an organization, institution, or personnel outside the country.

Most countries have laws intended to protect national security. Furthermore, the principle that national security concerns can outweigh an individual's freedom of expression is consistent with both international law and U.S. case law. As the U.S. Supreme Court has stated, a government (at least an elected government) has the right to defend itself:
 

We reject any principle of governmental helplessness in the face of preparation for revolution, which principle, carried to its logical conclusion, must lead to anarchy. No one could conceive that it is not within the power of Congress to prohibit acts intended to overthrow the Government by force and violence.

Dennis v. United States, 341 U.S. 494 (1951), where one of the "acts" which the Court found the government could prohibit was to knowingly and willfully "advocate and teach the duty and necessity of overthrowing and destroying the Government of the United States by force and violence."

But although China and democratic nations share the principle that a government must protect the security of the nation, there are several major differences in the way China and representative democracies implement this principle:

1. According to China's 1999 Five Year Court Reform Plan, one of the goals of China's judiciary is to increase the analysis, authentication, and reasoning in court decisions, and "utilize court decisions, not only to record the process of reaching a verdict, but also to publicize the rationale underlying a verdict, enabling court decisions to become a vehicle for showing society that the judicial system has been just, and become vivid instructional materials on the implementation of the legal system." Chinese courts do not adhere to this principle, and generally simply issue opinions that restate the law, but provide no guidance as to how it was violated.
2. Authorities in China do not consider whether a given publication actually represented any realistic threat to national security. Instead, courts only look at whether a given publication's contents were inconsistent with the Communist Party's current political dogma. Publications that question or criticize the Party line are deemed a threat for that reason alone, and their actual or potential impact on national security or the public's safety is completely ignored.
3. Courts in China do not engage in Constitutional interpretation and do not try to limit State power in order to protect citizens' rights.

The Case of Huang Qi

An examination of the court decision in involving the balancing of national security and freedom of expression provides a useful illustration of the way China balances the issues of national security and freedom of expression.

Sichuan Intermediate Court Decision (2001) #49: Huang Qi

Huang Qi was arrested in the city of Chengdu on 3 June 2000 and on 21 August 2000 was formally charged with "instigating subversion of state power." The indictment cited allegedly "subversive" material posted on Huang's Tianwang Web site (www.6-4tianwang.com) between March and June 2000. In affirming Huang Qi's conviction, the Intermediate People's Court of Chengdu held:

This court believes that the accused Huang Qi's behavior of using the Internet to disseminate essays on matters such as "democracy," "June 4," and "Falun Gong," using rumor mongering and defamation to incite subversion of the national regime and topple China's socialist system constituted the crime of inciting subversion of the national regime, and should be punished.

First,the court's decision in the Huang Qi case does not provide any examples of what was said that was subversive. Instead, it provides only the titles of essays (written and posted by other people, not the accused), such as:

• China's Democracy Party's Guiding Principles
• Xinjiang Uigurs Independent Consciousness: Because Historically We have Always Been an Independent Nation
• The Future of China is Unpredictable
• June 4 was Not an Affair, It was not a Disturbance, it was a Massacre
• Two Citizens Demand Redress for Those Arrested on June 4
• Amnesty International Says 213 Political Prisoners are Detained in Connection with June 4
• Falun Gong Practitioners Demonstrate and are Arrested

It is possible to interpret this list as providing some guidance, provided that it is read as a list of topics that are off limits to public debate, because the Communist Party has already established what the "correct" and "factual" approach to the topics must be. Understood in this way, what the court ruling is saying is that in China anyone who publishes opinions contrary to those of the Communist Party will be deemed subversive. Unfortunately, because the courts opinion does not provide any specific guidance as to what constitutes subversion, this interpretation is more of a veiled threat than a judicial holding.

Second, the court in Huang Qi's case made no attempt to show that the articles appearing on the Tianwang Web site had caused, or were in any way likely to cause, a threat to the national security of China. The only guidance the court offers is the aforementioned list of articles, and the reader is left to infer from that list that any dissemination of opinions on these topics which is inconsistent with Communist Party dogma is de facto subversive.

Finally, the Huang Qi court did not undertake any analysis that balanced the right to freedom of speech and the need for national security, nor did it attempt to lay out any constitutional limitations on the authority of the government to criminalize certain types of speech. Instead, the Huang Qi courts simply dismissed the issue of freedom of expression with language that seemed to imply defense counsel should not have bothered to bring it up in the first place:

Also, defense counsel takes the standpoint that Huang Qi has freedom of speech, and may freely express his opinion on a given matter. This court believes that freedom of speech is a political right of the citizens of China, but when exercising this right, no one may harm the interests or security of the nation, and may not use rumor mongering or defamation to incite subversion of the national regime. Therefore, the court takes note that the defense counsel takes a standpoint that only stresses the right of the accused, and ignores his duties.

As the preceding example shows, Chinese national security laws, at least as they are currently enforced by authorities, are not employed to restrict speech which represents an imminent threat to the security of the nation. Rather, they are exploited to silence people who voice criticism of the current regime, but who are not advocating overthrowing the government (by violence or otherwise). Instead of seeking to protect the rights of Chinese citizens, China's public security, procuratorial, and judicial organs work in collusion with the Communist Party to silence people who are merely expressing discontent and seeking reforms. These same authorities fail to make public any information indicating that people detained or imprisoned for their writings have committed any acts, or advocated the commission of any acts, that represented any realistic threat to the national security of China. Rather, the only "crime" they have shown to have committed was the unauthorized publication of articles that expressed opinions inconsistent with, or critical of, the leaders and policies of the Communist Party and the central government.

State Secrets

Every media regulation in China contains a prohibition on divulging of state secrets. China's Criminal Law provides for punishment for the following types of crimes involving state secrets:

· Article 111: Stealing or acquiring through spying or buying state secrets or intelligence for, or illegally supplying state secrets or intelligence to, a foreign entity, organization or personnel.
· Article 282: Illegally acquiring state secrets through theft, espionage or purchase.
· Article 283: Illegally producing or selling wire-tapping, micro-cameras or other equipment used for espionage.
· Article 287: Using a computer to steal state secrets.
· Article 398: Intentionally or negligently divulging state secrets, regardless of whether the divulging party is a state employee or a private citizen.

These provisions raise two issues, the first being who is responsible for ensuring state secrets remain secrets, and the second being what constitutes a state secret.

Who is responsible for keeping state secrets?

China's Constitution states that all Chinese citizens have an obligation to "safeguard" state secrets. Article 398 of the Criminal Law extends liability for disclosure of state secrets to non-governmental personnel. The Supreme People's Court has also made it clear that every person in China will be held criminally responsible for protecting state secrets, even information that is not marked "secret":

Any person who knows, or should know, that an item which is not marked secret relates to the security and interests of the nation and steals, acquires through spying or buys it for, or illegally supplies it to, a foreigner, shall be prosecuted and punished under the provisions of Article 111 of the Criminal Law for stealing, acquiring through spying or buying state secrets for, or illegally supplying state secrets to, a foreigner.

Explanation of Certain Issues Regarding the Specific Laws to be Used in Adjudicating Cases of Stealing or Spying to Obtain, or Illegally Supplying, State Secrets for Foreigners, Article 5.

Chinese authorities have also enacted regulations specifically addressing state secrets and the Internet, and these regulations create duties in addition to, and rights more restrictive than, those provided in the Constitution and the Criminal Law:

• The administration of the protection of secrecy of online information shall adhere to the principle of "those who go online shall bear responsibility." Anyone who provides or disseminates information to internationally networked sites must go through secrecy protection examination and approval.
• Any unit or user who sets up an online bulletin board system, chat room or network newsgroup shall be examined and approved by the relevant secrecy protection work entity, which shall explicitly define its secrecy protection requirements and responsibilities. . . . Those persons who set up online bulletin board systems, chat rooms and network newsgroups which are open to the public or their superior responsible agencies shall conscientiously perform secrecy protection duties and establish sound administration systems to strengthen supervision and monitoring. Upon discovering any information which involves secrets, measures shall be taken in a timely matter and it shall be reported to the local secrecy protection work agency.

Provisions on the Administration of the Protection of Secrets on Internationally Networked Computer Information Systems, Articles 8 and 10

What constitutes a state secret?

If Chinese authorities are going to extend liability for protecting state secrets to every member of society, even information that the government has failed to label as a state secret, then the government has an obligation to clearly define the boundaries of what is and is not secret information. The State Secrets Law and its Implementing Regulations provide a list of categories of what may be state secrets, but the lists are so broad and vague as to encompass essentially all conceivable information. The State Secrets Law makes it clear that information falling into one of these categories only may be classified as state secrets, it is not a state secret per se. The State Secrets Law specifically states that information is not to be considered a state secret unless:

1. it is determined to be a state secret in accordance with legally defined procedures, and
2. knowledge of it is restricted to a defined scope of personnel for a defined length of time.

Under this definition it is not only the nature of information, but also the way the government handles that information, that makes it a secret. If information relating to the security and interests of the nation is not designated and treated as secret by the government, then it is not a state secret. This would also appear to imply that once information becomes known to people outside the government (i.e., the government has failed to restrict knowledge of it), it is no longer a state secret.

Unfortunately, other legislation disregards this principle. For example, the Regulations on the Protection of Secrets in News Publishing, enacted jointly by several agencies and ministries, provides that:

• Article 14: Anyone who plans to supply a news agency with information for public report or publication shall, if such information relates to the work of their own system or unit, or if they are unclear as to whether it relates to state secrets, first apply to their unit or their supervising organ or unit for examination and approval.
• Anyone wishing to provide a foreign news publishing organization a report or publication with contents that relate to the nation's government, economy, diplomacy, technology or military shall first apply to this agency or their supervising organ or unit for examination and approval.

The message of this regulation is clear: anyone who talks to the press (particularly the foreign press) without clearance from the government may be subject to prosecution. But what is even more disturbing is the way this regulation broadens the scope of information which people may be liable for revealing. First, even though the State Secrets Law clearly requires that information be restricted in order to be a state secret, this regulation places the burden for determining whether or not information is a state secret squarely upon those wishing to report it. Second, information does not even need to be a state secret, it only needs to relate to the government or other matters of public interest. Finally, the regulation treats practically all information that is to be disclosed to a foreign news publishing organization as a de facto state secret, simply because it is going to be disclosed to a non-Chinese entity.

Another example of this tendency to broaden the scope of what constitutes a state secret is the creation of a new category of classified information: "intelligence." This term appears in the Criminal Law, but it is not used, much less defined, in the State Secrets Law, its implementing regulations, the State Security Law, or its implementation regulations. Clarification was left to the Supreme People's Court, which defined it as follows:

The term "intelligence" in Article 111 of the Criminal Law refers to items which involve the security and interests of the nation, but which are not public or which, according to relevant regulations, should not be made public.

Explanation of Certain Issues Regarding the Specific Laws to be Used in Adjudicating Cases of Stealing or Spying to Obtain, or Illegally Supplying, State Secrets for Foreigners, Article 1

Once again the Supreme People's Court broadens the scope of what constitutes a state secret, this time to effectively include all information that is not public.

The Case of Zheng Enchong

The detention of Zheng Enchong provides a disturbing example of how Chinese authorities are willing to exploit laws regarding disclosure of information in order to silence those who attempt to stop what they perceive as an abuse of government authority. On October 28, 2003 the Shanghai Second Intermediate People's Court sentenced lawyer Zheng Enchong to three years in prison on charges of "illegally providing state secrets to entities outside of China." The "state secret" in question was an internal Xinhua news agency news report, which he allegedly sent to Human Rights in China.