China Plans to Legalize Disappearances

China's most famous artist & architect Ai Wei Wei

By Dennis Behreandt

The extrajudicial disappearance of Ai WeiWei, China’s most famous artist and architect, reminded the world that the Chinese communist police state apparatus is alive and well. As a result, it brought intense international criticism down on the regime in Beijing.

Ultimately, Ai WeiWei was released. But instead of reforming its ways in the wake of the scandalous kidnapping and detention — which was by no means unique — China is considering legal efforts to further codify its system of extrajudicial kidnappings of critics and whistleblowers.

Currently, victims of the Chinese police state can be held for six months after being detained. They are sometimes held under house arrest. At other times they are whisked, incommunicado, to a detention facility.

According to the London Telegraph, the proposed new rules fortify the practice. Under the new rules, the paper reports,

Chinese police will be allowed to hold suspects incognito if they suspected them of involvement in terrorism, endangering state security, or if keeping them in their own homes would ‘interfere with investigations’.

In practice, warn Chinese lawyers and international rights groups, the provisions will give the police a legal fig-leaf for the disappearance of enemies of the ruling Communist Party which includes anyone considered subversive or a threat to state security.

Extrajudicial disappearances are the hallmark of all tyrannies. The early Soviet Union had its “Cheka” and the Nazis had their Gestapo. Sadly, other examples abound, and the United States is not exempted. Under the Bush administration, the U.S. accepted the idea of extrajudicial detention even for citizens.

Writing for the American Constitution Society for Law and Policy (ACS), Seton Hall University law professor Jonathan Hafetz, author of the book Habeas Corpus after 9/11, described the growth and persistence of the U.S. extrajudicial “system.”

Describing the contents of his book as well as the present situation regarding extrajudicial detention in the United States, he necessarily focuses on Guantanamo, but notes that it should not be viewed in isolation, “but as part of a larger network of prisons established by the Bush administration to operate outside the law.”

Despite the hope that some entertained that the Obama administration would dismantle this extrajudicial apparatus, Hafetz points out that instead the President has embraced his predecessor administration’s work on this front. Hafetz writes:

Even as Obama vowed to close Guantanamo, he indicated that he would continue to use “military commissions,” pledging to reform the fatally flawed war crimes tribunals rather than end them. The administration’s decision to abandon the federal criminal prosecution of Khalid Shaikh Mohammed and four other alleged 9/11 plotters in favor of military commissions demonstrates the power this alternative system exerts over U.S. counter-terrorism policy. Obama has likewise endorsed another key feature of Guantanamo: the indefinite detention of some terrorism suspects without trial. His recent executive order creating a new review board to periodically examine their cases demonstrates how deeply this practice has become institutionalized. The question, in short, is not whether the post-9/11 detention system will continue (it will), but what form it will take and how broadly it will sweep.

With regard to China, critics point out that its plans to systematize extrajudicial detention fly in the face of so-called global norms.

“This is in complete contravention of international standards,” Nicholas Bequelin, a researcher on China for Human Rights Watch, told the Telegraph, “One of the key principles of international human rights law is deprivation of freedom can only take place if it has been decided by the court.”

Yet the Chinese maintain that their plans to give extrajudicial detention the color of law actually brings China into line with international practice.

The Telegraph reported that China’s state news organ, Xinhua, said that the changes would “further help protect human rights, and conforms rather than contradicts international conventions….”

Tragically, that case would be harder to make if the United States under the Bush administration had not built a system of extrajudicial detention.


The Moral Liberal associate editor, Dennis Behreandt, is the Founder and Editor In Chief of the American Daily Herald, and former long-time contributor, serving both as Senior and Managing Editor, to The New American magazine, writing hundreds of articles on subjects ranging from natural theology to history and from science and technology to philosophy. Mr. Behreandt’s research interests include the period of late antiquity in European history as well as Medieval and Renaissance history.