US-China tensions weigh on Americans detained in Chinese jails

When U.S. Secretary of State Antony Blinken was scheduled to visit Beijing last month, many observers were looking for any sign of a thaw or de-escalation of the most fraught tensions in decades between the two countries.

But it was not only politicians and businesses with lots at stake who were looking out for signs of reduced tensions. U.S. families with loved ones locked up in Chinese jails were following developments in the diplomatic ice age with a mixture of anxiety and hope.

Families I have mentored and assisted in supporting their imprisoned members in China–through lobbying, hand holding and practical tips, all with the ultimate aim of securing their release–saw their new hopes shattered. They had been lobbying Blinken to raise their cases with China in the hope that the Chinese authorities might show a little mercy and allow early releases, prisoner swaps, or other gestures of goodwill for prisoners the U.S. government considers wrongly detained.

The chances of that were shattered on Feb. 3 when Blinken canceled his trip in protest over China’s spy balloon, which the U.S. Air Force later shot down, accusing China of illegal surveillance and violation of American sovereign territory.

When Blinken met Chinese foreign policy supremo Wang Yi on the sidelines of the Munich Security Conference on Feb. 18, hopes were raised that they might patch things up.

But the encounter rapidly descended into mutual recriminations that made matters even worse. At no time since China began opening up at the end of the 1970s have relations been worse than now.

This has a lot to do with who is in charge in Beijing. China’s de facto dictator Xi Jinping has spent his 11 years in office waging unfriendly campaigns against U.S. dominance over the rules based world order, not only through influence and interference campaigns, but also by building up a large stock of foreign prisoners in his jails, for common crimes that are often unsubstantiated in court.

This inventory includes around 300 Americans stuck in squalid Chinese jails in numerous cities, and others under exit bans unable to leave the country. None of the penalties ever seem proportionate to the alleged offenses, to the point where sentencing appears outright reckless.

Murky charges

This is also true for all of the several thousand foreigners in China’s jails. Many Singaporeans are holed up on murky charges in Xi’s gulag, such as the lawyer Edwin Tay, who was jailed for life on false fraud charges, and football coach Kunju Jamaludeen, who was sentenced to death, commuted to a life term, and now has life-threatening illnesses in a jail in Guangdong Province.

In fact, not a single prisoner in China has undergone a truly fair and transparent trial with a proper legal defense, because all policing, legal, judicial and penal mechanisms in China are controlled by the Communist Party with no separation of powers, no independent courts and no impartial judges. As a result, criminal prosecutions are driven by the revenge or enmity of party members or their friends, not by forensic detective work and evidence, not by an even-handed and objective justice.

Things began to get much worse for prisoners during the COVID pandemic. For three years China halted all in-person visits to prisoners, making it much harder for U.S. consular officers to deliver support to their imprisoned citizens.

These visits are vital for discussions of their health and welfare, delivery of letters from family, books and other reading material. Comfort parcels posted from abroad ceased to be handed over to the prisoners. Books and magazines that I mailed to prisoners were not given to them.

Families were throwing up their arms in despair over having much less information and insight into how their loved-one was faring in XI’s cells.

A number of American prisoners have waived some privacy considerations and allowed their names and cases to be publicized, thinking it better that their fellow citizens be made aware of their plight and that public pressure may one day help them get released.

The school teacher David McMahon from Alabama, businessmen Mark Swidan from Texas, Nelson Wells Jr from Louisiana, Kai Li from New York, and pastor David Lin, detained since 2006 and in poor health, have all permitted the release of their information.

No sign of softer Xi

When you study such cases with the eyes of an investigator, as I have done, they simply don’t stand up and would not survive scrutiny in an American court. Swidan and Wells were hit with death and life sentences, respectively, while Li was given ten years on spurious espionage charges, and. McMahon is serving 13 years on false charges of child molestation.

“The spy balloon incident, the indefinite postponement of Blinken's trip, and the fallout from that certainly make it more challenging to have productive conversations between the U.S. and China on issues like my dad's wrongful detention. But that cannot be an excuse by our government not to find a way to immediately make progress,” Kai Li’s son, Harrison Li, told me.

“When I heard Blinken was going to China, I said to myself finally after eight plus years America and China are improving relations. Our son Little Nelson has a chance now. Then of course it fell through. Never get your hopes up. It is hard to trust, when you are constantly being let down or forsaken,” said the prisoner’s father, Nelson Wells Sr..

In the case of. Swidan, who has been held in a Guangdong jail for ten years without it being clear whether a death sentence has been commuted, the only political leaders visibly trying to save him are his senators Ted Cruz and John Cornyn. They recently introduced a resolution in the Senate urging the Blinken and the federal government to "deepen and prioritize" efforts to secure his release. At the federal level, though there is little sign of effort.

“‘Wrongfully detained’ and 'hostage’ are not just words. There is real suffering behind them and people must know no matter how hard it is to hear,” said his mother Katherine, who has been lobbying for her son’s release for a decade and encountering deaf ears.

I know of many other cases where privacy has not been waived, so they cannot be named. One, a 50-year-old American woman with suspected uterine cancer, has spent nine years in a prison in Guangdong province.

A young U.S. man has just been imprisoned in a complete stitch-up in Shanghai where he took a rickshaw taxi home after an evening out with friends, and was somehow drugged and delivered to a brothel where he awoke on the floor the next day covered in bruises and was charged with beating staff and police officers.

U.S. engagement with China is essential to ratchet down the tensions and facilitate official discussions on many such imprisonment cases.

But can we imagine Xi adopting a softer tone towards the United States and other countries right now? There is no sign of that. All we can see currently is that he is busy backing Russia over the war in Ukraine, while on his home front he is focused on new hardline reforms that will boost his dictatorial powers even further at an annual meeting of the rubber-stamp parliament, the National People’s Congress, now playing out in Beijing.

Real efforts can pay off

In recent times the biggest name in hostage diplomacy in the public eye is the American basketballer Brittney Griner, a hostage of Vladimir Putin in Moscow until Dec. 8, 2022. Washington made gargantuan efforts to get her out, and succeeded, which shows that real efforts sometimes pay off, just as they did for the U.S. earlier in China back in 2017 with the release of Sandy Phan-Gillis after two years in detention for alleged spying.

Washington also procured the release last year of Trevor Reed from Putin’s jails.

I hope Brittney will live up to her recent pledge to use her celebrity status to help other Americans in similar ordeals overseas, especially those held in China. Blinken is now said to be renewing efforts to obtain the release of another prominent U.S. prisoner in Russia, Paul Whelan.

Bilateral diplomatic tensions produce domestic casualties, but conflict does not rule out releases, as the case of Russia shows.

“Our administration was able to negotiate the release of both Trevor Reed and Brittney Griner from Russia in the past year despite the Ukraine war. So it is possible. There just needs to be a political will,” said Harrison Li.

The U.S. does not have a bilateral prisoner transfer agreement (PTA) with China allowing for the transfer of convicts to serve out their terms in facilities back home. But there is a Chinese law available to achieve just that.

In 2018 China enacted a law on international cooperation in judicial matters which contains a section allowing for case-by-case home transfers of foreign prisoners held in China on compassionate, medical and humanitarian grounds.

The foreign government concerned must initiate the process by raising a case with the international cooperation department of the Chinese Ministry of Justice.

I am unaware if the U.S .has ever bothered to invoke this Chinese law. But it is time that Washington did so.

Unfortunately, they are not on talking terms. So hundreds of Americans face prolonged isolation and suffering in the Communist Party’s dungeons.

Peter Humphrey is a sinologist and journalist with 48 years of involvement with China. The former Reuters correspondent and fraud investigator is an external research affiliate of Harvard University Fairbank Centre for Chinese Studies. He serves as a mentor to families with members imprisoned in China. He was a prisoner of the Chinese state for two years in 2013-2015 after being arrested on false charges of illegal information gathering.