Kai Li was jailed in China on espionage charges in 2018. Li is one of just three Americans who have been officially designated 'wrongfully detained' by the U.S.Li family
Amid celebrations of a historic prisoner exchange between the United States, Russia and other countries this month, some families of Western detainees in China couldn’t help but feel a twinge of bitterness that the chances of a similar deal for their relatives remain scant.
More than 99 per cent of prosecutions in China end in a guilty verdict, and for years, dozens of foreign detainees have called on their governments to press Beijing for their release, arguing they were denied a fair trial or jailed for political purposes. But they have often struggled to get an audience back home, while China reacts angrily to any perceived criticism of its justice system.
“China cases have not gotten the same attention from our government as the Russia cases,” said Harrison Li, the Washington-based son of Kai Li, who was jailed on espionage charges in 2018, noting recent prisoner swaps between the U.S. and Russia despite hostile bilateral relations show “that it is in fact possible to resolve these kinds of issues” regardless of wider geopolitical concerns.
Kai Li is one of just three Americans who have been officially designated “wrongfully detained” by the U.S., meaning their cases ended up on the desk of Roger Carstens, who has served as special presidential envoy for hostage affairs (SPEHA) since 2020 and has been instrumental in freeing prisoners held by Russia.
Harrison Li said this opened doors in Washington and meant there was a dedicated team working toward his father’s release. But many others have not received the same attention he said, and some have “waited for designation for years.”
David McMahon is one of them. The SPEHA position was created soon after he was sentenced to 12 years in prison in 2014 for a crime he insists he did not commit, and as his appeals came to naught, Mr. McMahon soon pinned all his hopes on Washington, particularly after the appointment of Mr. Carstens in 2020 and laudatory media coverage of his negotiating abilities.
Beijing, however, has proven a tougher file than Moscow. While the U.S. played a key role in securing the release of Canadians Michael Kovrig and Michael Spavor, there has been little apparent progress when it comes to Kai Li and the two other Americans deemed “wrongfully detained”: alleged drug trafficker Mark Swidan and pastor David Lin.
Accused of sexually abusing children, Mr. McMahon has struggled to get much support back home, even as he has continued to maintain his innocence, despite this stance preventing him from earning time off his sentence. A months-long CNN investigation in 2021 found serious problems in his trial, during which he was only allowed to call one witness. The trial included no physical or forensic evidence, and relied almost entirely on the testimony of extremely young children, many of whom gave conflicting and confused accounts.
David McMahon, a U.S. citizen, has been imprisoned in Shanghai since 2014. An investigation by CNN found the case against him to be severely flawed.Hannah Miller
This assessment is shared by independent observers, including Rob Saale, a retired FBI Special Agent and former director of the U.S. Hostage Recovery Fusion Cell, who examined the case for the James Foley Foundation, which advocates on behalf of Americans detained overseas. The Foley Foundation says it believes “David is innocent of the charges against him.”
Mr. McMahon now has less than a year left to serve on his sentence. As he considers his freedom, he remains angry about his treatment, both at the hands of the Chinese authorities and his own government, according to a series of letters Mr. McMahon wrote to U.S. officials, shared with The Globe and Mail.
“I think it’s probably too late for anyone in the State Dept. to try and help me get released. I’m not asking for that anymore,” Mr. McMahon wrote in May to Scott Walker, the U.S. consul general in Shanghai. “What I’m asking now is this: why didn’t you help me when you had the chance?”
In that letter and another to Mr. Carstens, Mr. McMahon complained about the opaque functioning of the SPEHA system.
“There are approximately 13 U.S. citizens in this prison,” McMahon wrote. “The State Dept. currently is only helping to negotiate the release of one. One out of thirteen? From a country where all men are created equal, you only help one person? What makes him so special? What makes the rest of us so disposable?”
On background, a spokesperson for the State Department said it continuously reviews the detentions of U.S. citizens overseas, including in China, for indicators that they are wrongful.
Any review, they said, would involve a fact-based assessment examining the circumstances of each case. According to the SPEHA website, this includes “the fairness of the judicial process, the veracity of the charges, and motivation or other circumstances surrounding or related to the arrest or the detention.”
More often than not however, diplomatic concerns appear to come first. Despite his lofty title of presidential envoy, cases must be referred to Mr. Carstens’s office by the State Department before they can be taken up. Even after designations are made, his power is limited: During negotiations for Wall Street Journal reporter Evan Gershkovich’s release this month, Mr. Carstens struggled to get an audience with the White House, eventually enlisting the detained journalist’s mother to lobby President Joe Biden directly, according to the WSJ.
Carla Ferstman, a law professor at the University of Essex, said it is a “huge step” for governments to declare a citizen wrongfully detained by a foreign power, and one diplomats are often unwilling to take.
Governments have an “obligation to respect foreign legal systems generally,” even those with well documented flaws such as China’s, she said, adding that regular interventions could lead to diplomatic chaos when “governments need to find ways in which to work together.”
The problem, she said, arises from there being “not enough ways for the families and the persons detained to press their governments and get some transparency in the decision making.”
Many Canadian families know this only too well. While the country came together to celebrate the release of the two Michaels, the relatives of others detained in China have often struggled to get the same kind of media or political attention.
One of those is Robert Schellenberg, who was sentenced to death on drug trafficking charges in 2019. His case remains in limbo as it awaits review by China’s Supreme People’s Court, which sets its own, unpredictable schedule, said Mr. Schellenberg’s lawyer Zhang Dongshuo.
Michael Spavor, centre left, and Michael Kovrig, centre right, receive a standing ovation in the House of Commons prior to U.S. President Joe Biden's address of Parliament, in Ottawa, March 24, 2023.Adrian Wyld/The Canadian Press
Following the detention of the two Michaels, Canada led 78 countries in signing the Declaration Against Arbitrary Detention in State-to-State Relations, and Ottawa remains “deeply committed to putting an end to the use of people as bargaining chips in diplomatic relations,” Foreign Minister Mélanie Joly said in February.
But there is little agreement on what constitutes an arbitrary detention, let alone the woolier term “wrongfully detained” used by the U.S. Some prisoners, such as the two Michaels and Mr. Gershkovich, can easily be characterized as hostages; many others, particularly in China, fit the UN definition of arbitrarily detained – based on human-rights law, including the right to a fair trial – but are not being held for any clear political purpose.
“‘Wrongful detention’ does not exist in any international legal framework,” said Beatrice Lau, a Hong Kong lawyer and expert on international humanitarian law. “It is, therefore, a unilateral determination without international accepted criteria. It is more prone to be a political rather than a legal determination.”
By conflating arbitrary and wrongful detentions with incidents of hostage taking, governments risk creating an expectation for detainees and their families that they will act as forcefully in all cases, when the political context is vastly different and responses to the plight of prisoners abroad inconsistent.
Harrison Li gave the example of Zack Shahin, an American businessman detained in Dubai in 2008. His case was deemed an arbitrary detention by a UN working group in 2022, but has yet to be taken up by Washington, which has close relations with the United Arab Emirates.
Analysts and advocates interviewed for this article praised the Levinson Act, which created the position of SPEHA, as an example for countries around the world to follow in dealing with hostage taking and arbitrary detention. But the designation process remains inscrutable and difficult to understand for detainee families, Mr. Li said.
“It took four years to get my dad designated; what ultimately moved the needle was not any change in the case but a meeting with then-deputy national security adviser Matt Pottinger,” he said. “There needs to be a deadline for timely response from the government and transparency as to why a case does or does not meet the criteria laid out in the Levinson Act.”
In Mr. McMahon’s case, his detention has spanned almost the entire lifespan of the act, but it may not be until his release next year that he gets any answers from his government about why it never came to his aid.