James T. Areddy
A crusading mother. Legal challenges. Human-rights campaigns. Corporate appeals. Congressional resolutions. Pressure from the White House. A United Nations agency plea.
For more than a decade, China has resisted impassioned requests to release a Texan imprisoned under murky and unusual circumstances, Mark Swidan. His case speaks to how the U.S., like other Western powers, has limited leverage in its efforts on behalf of citizens it says are arbitrarily detained in China’s opaque justice system.
The families of Americans detained in China, including some not imprisoned but blocked from leaving the country, hope that this year’s halting resumption of high-level Washington-Beijing engagement can spur the release of their loved ones. China’s leader, Xi Jinping, is planning to travel to the U.S. for the first time since 2017 to meet President Biden in San Francisco. Sometimes summits have featured goodwill gestures by Beijing, including amnesty for detainees.
But families also worry the halting bilateral engagement has relegated individual Americans ever-lower on the long list of weighty issues that confront the rivals.
“It was very common in advance of a trip either way for prisoners…to be released,” said John Kamm, who heads San Francisco human-rights organization Dui Hua Foundation. “That’s the past.”
China’s government says it applies laws equally regardless of nationality and opposes what it calls foreign interference in its legal affairs.
Chinese authorities last month released an Australian citizen after three years in detention just before a visit to Beijing by Australia’s prime minister, Anthony Albanese. The pardoned woman, Cheng Lei, a former presenter for China’s state broadcaster, had been sentenced only days ahead of her release on espionage charges apparently related to her newsgathering. She told an interviewer that China’s detention system is designed to “make you feel isolated, and bored and pained and desperate.”
The State Department has publicly classified three Americans as “wrongfully detained” in China: 48-year-old Swidan and two China-born, naturalized U.S. citizens in their 60s, Long Island businessman Kai Li and California pastor David Lin, all of them serving lengthy prison sentences. All three have health issues, their families say.
“I don’t understand why those three people are so significant” to China, says Katherine Swidan, Mark’s mother, who has spoken with a parade of top U.S. officials about his case. Calling her son a “pawn” between the nations, she says, “We have the money. We have the power. We have the people. Just find out what they want [in exchange].”
The “wrongful” designation indicates the U.S. believes such people are held at least in part because of their American citizenship. U.S. diplomats are therefore empowered to press harder for their release than they might on behalf of ordinary detainees, such as those convicted of violent crimes.
The State Department says American officials continually raise the cases when engaging with Chinese officials. A tally by a senior Biden administration official shows that the “wrongful detainees” have been mentioned by name nearly monthly in face-to-face engagements with China’s foreign ministers since May and that visiting American politicians in recent weeks referenced Lin and Li when they met China’s leader, Xi. “Due to the sensitive nature of these conversations, we aren’t going to publicly discuss our efforts, but they remain ongoing,” a State Department spokesman said.
The U.S. alleges a small number of other nations wrongfully detain Americans too, including Russia, which holds the jailed Wall Street Journal reporter Evan Gershkovich and former Marine Paul Whelan. Both face espionage charges, which they deny.
What China might accept in exchange for prisoners, current and former U.S. officials say, is far less obvious than with nations such as Russia and Iran that have freed Americans detainees in clear-cut deals. They say the answer could be honoring a Chinese request for the U.S. to hand over certain people wanted on criminal charges there or making an adjustment to American policy that is unrelated to justice issues.
Another area of legal difficulty for Americans and other noncitizens in China is authorities’ blocking them from leaving the country even though they aren’t being prosecuted. The State Department warns exit bans are a growing risk for Americans in China but doesn’t publicize an estimate of how many citizens are subject to them.
The Journal has reported recent bans affecting executives of U.S. advisory firms Kroll and Mintz Group, as well as an employee of Japanese financial firm Nomura. One person ensnared over a debt dispute, self-employed Californian Henry Cai, fears his exit ban will soon enter its seventh year.
Pitfalls in China’s legal system are a major concern of Western governments and human-rights groups, though they agree hardships are often worse for the country’s own citizens and non-Western foreigners; the group Human Rights Watch in October said Chinese authorities repatriated 500 North Koreans to their country, where they could face grave punishment.
“President Biden needs to take advantage of the ongoing flurry of dialogue between the U.S. and China to gain the release of my father, Kai Li, and the other Americans wrongfully detained in China,” said Harrison Li, who recently also made that request in a letter to Biden.
The elder Li sourced aerospace equipment in China before he was detained in 2016 and accused of providing secrets to U.S. authorities. Unsuccessfully, Li’s defense argued the “secrets” were readily found online and that his communication with U.S. agencies was mischaracterized.
The pastor, Lin, initially drew a life sentence based on fraud allegations that his supporters view as an excuse to jail him for Christian preaching and financial support for unapproved churches in China. The sentence has been cut more than once, most recently around the time Biden and Xi met last year, setting Lin for release in December 2029. His daughter laments, “It’s by the grace of God that he has survived this long already.”
Also, as China began to re-engage with U.S. officials, the U.S. ambassador to China, Nicholas Burns, was permitted to see all three Americans designated as wrongfully detained. Mostly though, the State Department says Chinese authorities put roadblocks in front of routine matters, including disrupting what should be monthly consular visits with prisoners that are required under a bilateral treaty. Many visits were suspended during China’s Covid lockdowns, while others took place online.
Swidan’s detention has appeared arbitrary since Chinese police first grabbed him around 11 years ago, according to his supporters. In 2019, a U.N. Human Rights Council working group on arbitrary detention agreed and called on China’s government to immediately release Swidan. This year, a Chinese court rejected Swidan’s appeal.
His odyssey began at the tail end of his first-ever trip to China, in 2012, when Swidan had gone to buy flooring and furniture. He was on the phone telling his mother about the deals he had seen—in part for a house they had bought in Texas—when police burst in and cut the phone line, she says. Authorities had found methamphetamine on Swidan’s local driver and translator, and police told Swidan he was being detained as a possible witness in a drug case.
More than a month later Swidan was indicted on charges that he participated in a drug manufacturing and distribution ring, though prosecutors described him as having a secondary role and recommended a light sentence, according to the U.N. account. The evidence tying him to the drug activity was hearsay, and he wasn’t in China when the alleged offense took place.
A year later Swidan was put on trial. It then took the court more than five years to return its verdict: guilty—with a new description he was the drug operation’s principal. He was sentenced to death but under rules that make it an effective life term. Swidan has maintained his innocence.
During the U.N. agency’s probe, China’s government claimed Swidan “made a confession of guilt during the investigation stage” and said evidence pointed to him as “the principal offender.” To his supporters, any confession Swidan might have made was the result of severe psychological torture.
Kamm, who contributed to the U.N. agency’s research, said he has included Swidan’s name more than 45 times on lists of what he calls U.S.-connected prisoners that he has delivered to Chinese officials. Kamm’s list now includes 21 names and he says he regularly tells Chinese officials, “if you want to improve relations with the United States, how about releasing some Americans, like Mark.”
Swidan’s mother, a 73-year-old who says she learned persistence collecting bills as a credit manager for Dell, says she hasn’t spoken with him by telephone since 2018 but gets letters and drawings that describe dire conditions. She says he has lost many teeth, acquired a scar on his face and broken his hands during his time in the Guangdong province detention center. “He’s been called a Renaissance man because he’s never given up,” she said.
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