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Beijing Olympics -- You Want Jail Time With That?

By Dan Harris and Steve Dickinson

The Absurdity Allegory and China (AAC) blog makes an excellent legal point in its recent post, "Breaking Eggs in the Bird's Nest." The post is on a March 21, 2008 State Department fact sheet concerning the 2008 Olympics. This fact sheet has received its fair share of coverage from the blogosphere for warning visitors to beware of crime in China and telling them not to expect privacy from the Chinese government (here, here, here, here, here, here, and here). All well and good. But AAC spotted something crucial in that directive that everybody else seems to have missed or glossed over. AAC notes how "there is a much shorter passage, a single sentence, that many who are planning the trip need to pay particular attention to." That is that if you end up in a Chinese jail, the US government cannot help you get out:

The Department of State or the U.S. Embassy and Consulates General cannot have an American released from prison.

AAC has this to say about this warning:

Is that clear? Can it be any clearer? What this says is that there are no get-out-jail-cards in this game; there?s no stopping at Go to give Dad a call; no one?s going to make your bail before the sun goes down. That?s a fact. And another fact is that if you end up being hauled off to jail, there?s a very good chance that it will permanently alter your perceptions of basic human nature, and it won?t be for the better. All you folks who have visions of ?making a statement? ? from unfurling politically sensitive banners to setting yourself on fire atop the Water Cube ? think again. This is not Kansas, and, truth be told, it never will be. In fact, it has never had any desire to go that way at all, since not only do the Chinese disagree with Kansans? views on intelligent design, they also think that all US police forces in Kansas and elsewhere are wimps when it comes to dealing with youth who want to shake things up. They have a history of dealing harshly with that sort of thing here, and if you are unfamiliar with those events, bone up before getting on the plane with your high-minded ideals. They may not beat you to a pulp in front of the camera, but they?ll have you shitting your skivs when the door closes and the world?s on the far other side. And that will only be the beginning. This is something that everyone with an axe to grind and enough money to come to Beijing during an Olympic year needs to know. The State Department has warned you that they cannot get you out of jail. They?re not lying. No matter what you think of George Bush, Dick Cheney or Condoleezza Rice, you must understand that the State Department is not crying ?Wolf!? This is China coming-out, and if you want to wreck it for them, then they?re going to make you pay. And the price may be a lot dearer than you can even imagine.

Though I am sure most experienced travelers understand that US (or German or French or whatever) law typically ends at the border when it comes to criminal violations, you would be surprised at how many travelers either do not know this or think that their embassy or consulate will be there to bail them out no matter what. Now before you laugh, please realize many US companies believe their US trademark or patent registrations extend to China, so it is certainly not that large a legal leap for people to believe US criminal law extends to them wherever they may go. My firm has assisted on a number of criminal cases inside China for American (and European) defendants and, nearly without exception, we are told (usually by both the defendant and his family) that the US Embassy is not doing enough to get the defendant freed from the Chinese jail. When we explain that the US government will not usually employ its political capital on this or that drug or fraud case, our clients seem downright surprised. So to add to what AAC has already said, let me make it perfectly clear. If you get arrested in China, the role of the US government (be it the consulate the embassy, or whatever), will almost certainly be limited to helping you find a lawyer, helping you contact your family for assistance, and maybe helping you with the logistics of having your family or friends get food or magazines into you at the jail. I am NOT expressing an opinion as to how anyone should act during the Olympics, but it certainly does not hurt to know the potential repercussions.

Full post as published by China Law Blog on March 23, 2008 (boomark / email).