Stan Abrams over at China Hearsay has a great post on the China state secrets case against Xue Feng, the Chinese-American recently convicted in China and sentenced to eight years.

I was not going to write about this case for the simple reason that I do not know what to say about it because I just do not have even one tenth the information necessary to opine as to his guilt or innocence. This of course never stops the media, who tend to jump right in and write on these sorts of cases as clear-cut morality plays.

Abrams will have none of that; he instead does a great job raising (but not answering) the following key questions surrounding Xue’s conviction:

1. Was Xue treated fairly during his incarceration and interrogation? He claims to have been beaten and otherwise abused while in custody. As he has no legal recourse at this point with respect to these accusations, I assume that this matter will simply be dropped.

2. Was this database classified as containing state secrets done so before or after Xue obtained it? Any sort of ex post facto classification would be extremely difficult for the government to justify.

3. Was Xue Feng aware of the nature of these documents prior to obtaining them? Generally, lack of knowledge of the law is not a valid excuse for criminal behavior. However, when you are dealing with a law that uses very vague terminology, one would at least expect leniency if ignorance could be proven.

Stan then does a nice job analyzing the Western reporting on the case:

1. I’ve only read a few articles, but the AP‘’s article today on Beijing’s rejection of criticism seemed hastily written and not particularly balanced. Here’s a particularly weak bit:

Xue was punished for gathering data on China’s oil industry in violation of vague secrets laws the government uses to restrict business information.

During Xue’s detention that started in November 2007, Chinese state security agents stubbed lit cigarettes on his arms.

I thought that was supposed to be a news article. At least the author could have thrown the word “allegedly” into that last sentence?

2. A lot of press accounts include good discussions of the state secrets law and its use to protect economic information, particularly in the natural resources sector. The vague definition of “state secret” and the use of the law in the recent Rio Tinto/Stern Hu case has also received a lot of attention.

3. The eight-year sentence has been criticized as unduly harsh. I’m not impressed with stories that include quotes from Xue’s defense lawyer (or human rights advocates) to this effect. Why bother getting a reaction quote on the length of the sentence if all you do is use his own lawyer’s statement? I mean, what’s he going to say?

4. Xue and others say that the information at the center of this case is not usually considered secret in other countries. While there is an issue here about whether or not Xue knew that this data was indeed secret, I am not so thrilled to see press accounts that suggest that just because this isn’t secret in other countries, it shouldn’t be secret here either. None of the articles I’ve read says that explicitly – I’m reading between the lines a bit – but I do get that impression. Seems to me that if China wants to classify that data (even better would be to amend the law to make the definition clear) as secret then that’s its own business.

5. Is this case another (i.e., in addition to Rio) example of China using its state secrets law to protect its energy sector? This seems to be taken for granted in some of the reporting, and for good reason. However, there is a distinction to be made between passing a law that restricts information about key state energy assets, on the one hand, and using that law in an arbitrary or capricious manner to punish competitors or give SOEs a business edge. Some have said that the Rio case, which involved an iron ore supplier in negotiations with Chinese buyers, was an example of a punitive use of the state secrets law. I have yet to read anything that alleges Xue or his employer were specifically targeted for some reason.

I completely agree with Stan that there is something unseemly about the media going off on a country without the facts. The role of the media is to do exactly what Stan has done here, which is to pose the right questions and then pursue and report on the answers. It is not clear to me whether the lack of answers here is due to the lack of questions or to the fact that the trial itself was no doubt closed off to the foreign press.  Either way, the media owes us, the reader, the obligation to inform, not engage in rank speculation.

I find this particularly irritating after having listened to the BBC this morning talk of how the US media has, literally until the issue was forced right in their face by a hearing today, completely ignored for months how the US Justice Department appears to have dropped a voter intimidation lawsuit in a nod to White House political pressure. The single most important job of the US media (and maybe the citizenry as well) is to go after U.S. government wrong-doing like a lion goes after red meat, no matter who is in power. A media that goes after only those targets that will make it popular with its readers is of little value at all. We now have a media that seems to view its task

Here is another issue regarding China’s state secret cases that the media has never raised (political correctness maybe?), but would a Caucasian have gotten off easier than did Mr. Xue? Does China act more harshly against those of Chinese ethnicity? I know most of my Chinese-American friends and clients who do business with China would answer yet to both questions. What do you think?  Lastly, and perhaps most importantly, how do these state secret cases (this one and the Rio Tinto one) impact your business in China?  Are you doing anything differently because of them?

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Dan Harris

I am a founder of Harris Bricken, an international law firm with lawyers in Los Angeles, Portland, San Francisco, Seattle, China and Spain.

I mostly represent companies doing business in emerging market countries. It has taken me many years to build my network and it takes constant communication and travel to maintain it. My work has been as varied as securing the release of two improperly held helicopters in Papua New Guinea, setting up a legal framework to move slag from Canada to Poland’s interior, overseeing hundreds of litigation and arbitration matters in Korea, helping someone avoid terrorism charges in Japan, and seizing fish product in China to collect on a debt.

I was named as one of only three Washington State Amazing Lawyers in International Law, I am AV rated by Martindale-Hubbell Law Directory (its highest rating), I am rated 10.0 by AVVO.com (its highest rating), and I am a SuperLawyer.

I am a frequent writer and public speaker on doing business in Asia and I constantly travel between the United States and Asia. I most commonly speak on China law issues and I am the lead writer of the award winning China Law Blog (www.chinalawblog.com). Forbes Magazine, Fortune Magazine, the Wall Street Journal, Investors Business Daily, Business Week, The National Law Journal, The Washington Post, The ABA Journal, The Economist, Newsweek, NPR, The New York Times and Inside Counsel have all interviewed me regarding various aspects of my international law practice.

I am licensed in Washington, Illinois, and Alaska.

In tandem with the international law team at my firm, I focus on setting up/registering companies overseas (via WFOEs, Rep Offices or Joint Ventures), drafting international contracts (NDAs, OEM Agreements, licensing, distribution, etc.), protecting IP (trademarks, trade secrets, copyrights and patents), and overseeing M&A transactions.