Secrecy Veils China's Jailing of a Journalist
New York Times | August 30, 2005
By JIM YARDLEY
For the more than 11 months that he has been incarcerated, Zhao Yan has been held in one of the darkest corners of China's legal system because of the accusation against him: that he leaked state secrets to his employer, The New York Times.
The accusation, which Mr. Zhao and The Times deny, deprives a defendant in China of almost all rights. Mr. Zhao still has not had a court hearing. No public explanation has been given for his arrest. He is forbidden to see his family. His lawyer's efforts to post bail were denied not by a judge but by the Ministry of State Security, the agency that arrested him.
Mr. Zhao, 43, who worked as a researcher for the newspaper's bureau in Beijing, was no stranger to State Security when it picked him up last Sept. 17 at a Pizza Hut in Shanghai. His previous work as a muckraking journalist and rural activist earned him regular visits from agents and invited speculation that his past life was the reason for his arrest.
But a confidential State Security report and interviews confirm that Mr. Zhao was the focus of a high-level investigation begun in response to an article in The Times on Sept. 7.
The article, which cited two anonymous sources, stated that Jiang Zemin, the former president and Communist Party chief, had unexpectedly offered to resign his last leadership position, as head of the military - an exclusive report that was proved accurate when Mr. Jiang retired on Sept. 19.
In many other countries, information about the future of a political leader would be considered in the public domain. But even as China's authoritarian leaders now promise a more impartial legal system to their citizens and the multinational corporations that do business here, they continue to use the loosely defined state secrets law to single out political enemies and prevent journalists from prying into the inner workings of the top leadership of the ruling Communist Party.
The Times has stated that Mr. Zhao did not provide any information about Mr. Jiang's resignation. And the confidential State Security report, which was described by Jerome A. Cohen, an adviser retained by The Times to assist with Mr. Zhao's defense, does not accuse him of doing so.
Major Piece of Evidence
Instead, the key evidence cited is a photocopy of a note Mr. Zhao wrote, two months before the Sept. 7 article, that makes no mention of Mr. Jiang's resignation.
The original note remains in the Beijing office of The Times, raising questions about whether state security agents induced a Chinese employee of the office to provide a copy without authorization or conducted a search without permission. In either case, under Chinese law, the photocopy would be inadmissible as evidence.
"How did they get this note?" asked Mr. Cohen, a specialist in Chinese law at New York University Law School. "China has detailed provisions about what you have to do to execute a search."
The contents of the note underscore how broadly China defines a state secret. It is a few paragraphs of political gossip about jockeying between Mr. Jiang and his successor, Hu Jintao, over the promotions of two generals.
The information was included at the bottom of the Sept. 7 article to provide context about the rivalry between the leaders.
Prosecutors are still deliberating whether to indict Mr. Zhao formally on the state secrets charge and a lesser charge of fraud, which was added later in the investigation. On July 9, prosecutors returned the case to State Security agents for another month of investigation. Legal analysts say prosecutors may believe that they need more evidence or they may simply want to delay a formal indictment.
The timing is particularly delicate because next week Mr. Hu is making his first official visit to the United States and is scheduled to meet with President Bush at the White House on Sept. 7. Mr. Zhao's case has already drawn protests from international human rights groups, as well as Secretary of State Condoleezza Rice.
For Mr. Zhao, a conviction could mean 10 years or more in prison. His lawyer, Mo Shaoping, has argued in filings to prosecutors that both charges are without merit. He noted that investigators had not presented any evidence that Mr. Zhao had received any government documents or spoken to any government officials. Mr. Mo also argued that discussing a possible shuffling of generals should not constitute a state secret.
"We've submitted that citizens have the fundamental right to know about changes in state personnel," Mr. Mo said.
The current state secrets law was codified in 1988. In recent years academics and even some government officials have pushed to rewrite the law and tighten the definitions of state secrets. Yu Ping, a research fellow at New York University Law School and an expert on the secrets law, said that the reform process had resulted in more than a dozen drafts of a proposed new law but that so far nothing had been approved.
Mr. Yu said the current law was particularly outdated now that more information was flowing into Chinese society. Under the law, he said, some materials available in bookstores could be classified as state secrets. He said he believed that many Chinese officials initially denied the spread of sudden acute respiratory syndrome, or SARS, in 2003 because revealing such an outbreak would have constituted revealing a state secret.
"Nobody is safe if the system stays this way," Mr. Yu said. He estimated that a few hundred people were charged under the law every year.
Mr. Zhao is jailed at a Ministry of Public Security detention center in southern Beijing. He has lost 22 pounds and has requested but been denied a biopsy for several lumps on his skin. "Mentally he's fine, but has also been very emotional," Mr. Mo said. "He's very emotional about these charges. He thinks they are absurd."
Mr. Zhao's arrest followed an unlikely sequence of events. Infuriated after finding a cockroach in his salad at the Pizza Hut, he complained in vain to the manager and then turned on his cellphone to ask a local reporter to come to the scene. Days earlier he had switched the phone off as a precaution.
He often told friends that state security agents tracked his movements through surveillance of his phone. His fit of temper apparently proved it. Shortly after he activated the phone, three agents arrived and took him away.
Mr. Zhao joined The Times in April 2004 after working for more than a decade at Chinese publications, writing articles about the plight of farmers and exposés of government corruption.
Flamboyant and swaggering, Mr. Zhao was once a police officer in his hometown, Harbin, the bitterly cold provincial capital in northeast China.
But friends say he found his passion as a journalist. One friend, Li Baiguang, recalled that Mr. Zhao, under the pretense of a family visit, once dressed up as a peasant and sneaked into a prison to interview a group of farmers jailed by a corrupt official.
Asked once whether he was one of the better journalists in China, he responded with typical bravado, "I am the best." Mr. Zhao, who is divorced, introduced himself to at least one potential girlfriend as "an anticorruption warrior."
In 2002 he joined China Reform Magazine and became one of a trio of writers known for aggressive reporting on rural issues. But he soon blurred the lines between journalism and activism as he began advising farmers about drafting legal documents or petitioning officials in Beijing.
By 2003, working with Mr. Li, Mr. Zhao embraced riskier strategies and was instructing farmers on organizing recall movements against corrupt officials. He also helped prepare a lawsuit against China's cabinet.
"He's got a strong sense of justice," said Liu Jie, the woman who filed the lawsuit. "It was Zhao Yan who inspired me to learn about the law and to use it to protect myself."
But his actions did not endear him to local officials or the Ministry of State Security. By 2001 he had been detained and questioned at least once. State Security assigned agents to watch him or meet him for occasional dinners to question him about his activities.
Friends say Mr. Zhao maintained a careful relationship with the agents. When he was once late to a meeting, an agent threatened to approach his boss at China Reform. Mr. Zhao wrote the agent an apology and delivered a gift through an intermediary.
"On the one hand, Zhao Yan was respectful of State Security," said a longtime friend who insisted on remaining anonymous because of fear of reprisals. "On the other hand, he didn't let it affect his work. He was willing to maintain good relations, but he also knew how to handle them."
By early 2004, China Reform was under pressure to tone down its aggressive reporting. Mr. Zhao's friends say he quit before he could be fired. But he had become too controversial to be hired by a Chinese publication. He was also becoming desperate for income. His daughter was entering college, and he had just bought an apartment in Beijing.
He had contacts in the international press and met in April with Joseph Kahn, the Times bureau chief in Beijing. Mr. Kahn, who first met Mr. Zhao in 2003, hired him as a researcher on the condition that he stop his activism. His job would be to use his contacts to help arrange interviews and assist in developing articles.
Friends say Mr. Zhao was excited about the prestige of working for a well-known foreign newspaper and had new name cards. But some friends were worried. State Security agents often approach Chinese employees of foreign news organizations about providing information. Sometimes they offer bribes; in some cases they make threats. Some friends fretted that by helping a major foreign news outlet, Mr. Zhao would become a more vulnerable target for the many enemies he had made with his reporting and activism.
"He seemed happy, and I was happy too," the longtime friend said. "But there were other people who thought it was too sensitive and dangerous. Any job like that where Chinese and foreigners mix would have uncertainties."
Mr. Kahn said he told every new Chinese employee that his or her job was "treated as a sensitive matter by the authorities and that it is possible they would come under some type of pressure." Mr. Zhao was not concerned, he said.
"He was very confident that he could handle any sort of situation that might arise," Mr. Kahn said, adding, "I saw him as someone who could help us monitor the media and keep in touch with friends in the world of advocates."
Mr. Zhao started in May and began researching rural articles. By July several foreign newspapers and wire services were reporting possible infighting between President Hu and Mr. Jiang.
Gossip About 2 Generals
One day, Mr. Zhao arrived with a tidbit of gossip in that vein that he handed to Mr. Kahn: that Mr. Jiang had rejected two of Mr. Hu's candidates for promotions on the Central Military Commission. It later turned out that one of the generals was, in fact, promoted.
Mr. Kahn said he had filed the item away as "potentially interesting, if true, but not something really worthy of a story in itself."
But two months later, with a major Communist Party meeting about to convene, Mr. Kahn got a tip that Mr. Jiang was offering to retire. He says he incorporated Mr. Zhao's note at the bottom of the article to help illustrate the rivalry with Mr. Hu. Otherwise, he said, Mr. Zhao was not involved.
"He had no substantial reporting role at all," Mr. Kahn said. "I think he knew about the story, and I believe he was very skeptical, just from chatting with him, about the possibility that Jiang would resign."
Within a week of the article's publication, Mr. Kahn said, Mr. Zhao arrived in the office, obviously worried. "He said he had been told that Hu Jintao had ordered an investigation of how that information got into The New York Times," Mr. Kahn recalled.
A person with a well-placed source in the government also confirmed the leak investigation.
The person, who asked not to be identified because of the political delicacy of the issue and the potential for reprisals, said the source had described it as a "high level" investigation but could not confirm any linkage to Mr. Hu.
Mr. Zhao said he had been told that he was a chief target of the investigation. "I said to him: 'You didn't have any crucial role in that story. It shouldn't be a problem,' " Mr. Kahn recalled. "He said, 'You don't know how they work.' "
Mr. Zhao asked if he could take a few days off work until the investigation calmed down. He also said he would turn off his telephone. "Then he disappeared," Mr. Kahn said.
Mr. Kahn said he learned that Mr. Zhao had been detained on the same day that Mr. Jiang's retirement was officially announced.
State secrets trials are closed to the public, and witnesses often are too afraid to appear on behalf of defendants. But Mr. Mo, the lawyer, said he planned to call Mr. Kahn as a witness in what would be a rare appearance by a foreigner at such a secret tribunal.
Mr. Zhao has apparently not buckled under the pressure of prison, isolation and nearly a year of interrogation. The State Security report to the prosecutors recommended that Mr. Zhao be indicted and noted that he had neither confessed nor been cooperative.
As a result, agents recommended a harsher sentence.