Jerome Cohen on Chen Guangcheng: 'You Shouldn't Bite the Hand That Feeds You'

In May 2012, Jerome Cohen, a professor of law at New York University, advised blind activist Chen Guangcheng on his negotiations with the United States and Chinese government, which ultimately resulted in Chen accepting an offer to be a visiting fellow at NYU law school.

Now Chen's saga has taken another dramatic turn. On Thursday, the New York Post ran a story claiming that the university had "booted" the dissident  in the face of pressure from the Chinese government over the school's construction of a controversial branch in Shanghai. And on Sunday night, Chen stated that NYU did indeed urge him to leave (a claim that NYU denies). "As early as late August and September, the Chinese Communists had already begun to apply great, unrelenting pressure on New York University," he wrote. "So much so that after we had been in the United States just three to four months, NYU was already starting to discuss our departure with us."

In a phone interview with Foreign Policy on Monday, Cohen disputed Chen's statement and the Post's report. The interview is below, edited and condensed for clarity.

Foreign Policy: Is there any connection between NYU Shanghai and Chen Guangcheng?

Jerome Cohen: We've tried to keep it quite separate. I have not been involved in setting up the Shanghai campus -- it was easy for me, therefore, to take on the Chen thing.

The irony of this whole thing is that I share a concern of [the Chinese government interfering in institutions] outside of China, but I always try to do it on the basis of evidence and facts. What concerns me here is that the New York Post, or something that Congressman Christopher Smith says, or NYU faculty opposed to [NYU President John] Sexton who don't have anything to do with China, or Chen's statement, no one has given one fact [to show that] Chen has been restricted or not done much at NYU. It's all nonsense!

You shouldn't bite the hand that feeds you. NYU has been extraordinarily generous to the Chens, and I've been grateful for the support. 

FP: Why did Chen release a statement saying that NYU asked him to leave?

JC: I asked him to issue this statement [to express his views on what happened]. That said, he's a special person, and he bears a certain resentment. He's obviously being guided by people who have a different point of view than my own, and maybe they have information that I don't have.

FP: What are your thoughts on NYU's position in China?

JC: I might have advised them to go slower, or not go at all. This is an especially tough time in China right now. And the fact is [the university has] done it, and they've been careful, and it's proceeded, and I don't know how it's going to work out.

You have to give them a lot of credit. Sexton could have said I don't want to touch this thing. But they did. Of course, NYU, having established the branch complex in Shanghai, doesn't want to take promiscuous risks.

But I hate malicious gossip. People just say things, they talk. It's very unfortunate. If I had seen a basis for [NYU restricting Chen] at all, I would have been the first to raise the alarm.

FP: Would you call Chen mercurial?

JC: Chen is not a two-week wonder. We've had cases of great people who come here and they're just gone in a short time -- they have no clue on how to deal with a different society. Chen is unique and we have tried hard to keep him unique. I don't know what will happen after this -- it could hurt him with some people -- but he has to learn that there are consequences of free speech. You can say anything in America, but you have to learn that it can come back and bite you.

My goal was to give him a year, one year in American life -- what groups he wants to work with, and what groups he wants to avoid. I didn't want him to get involved in the U.S. election and get used by one side or another. Now that that's over, I figure increasingly he's on his own -- and he's certainly taken part in all sorts of activities and had a widely busy schedule, making his own choices -- and that's alright with me. He's a big boy!

I just felt in the early months so many people were trying to trick him and exploit him, and that he needed a few months to get on his feet.

FP: Chen is in talks with other U.S. institutions -- what do you think is next for him?

JC: I don't see any realistic prospect of [him] going back to China soon, and certainly the statements he's been making cannot be helpful.

There is also the problem of his nephew locked up in China, and the rest of his family locked up back there. Recently, the application for passports for Chen's older brother and their mother were suddenly approved. We don't know why that's the case, but maybe that's a sign that the central government is suddenly coming to its senses.

When he came to the United States, it wasn't clear that Chen was going to be a dissident. His whole appeal was for the Chinese government to live up to its law -- not [to] overthrow the government. But what they've done this year is turned him into a dissident by mistreating his family -- and it's gotten worse recently. I'm not a professional anti-communist, but it's sad. I hate to see Chen driven by the persecution of his family.

National Security

NSA Swears Its Spy Programs Are No Big Deal in PRISM Spin War, Round Two

The revelations about the National Security Agency's spying programs just keep piling up.

True to his promise to continue disclosing NSA secrets, Edward Snowden has now revealed to the Guardian that the agency intercepted the communications of former Russian President Dmitry Medvedev and other world leaders in 2009. Not only are the leaks embarrassing for the agency, but they also present the NSA with a Catch-22: How do you defend yourself publicly while keeping a lid on classified operations? In the latest installment of Washington's PRISM spin war, the NSA has opted for vaguely worded, highly legalistic denials and assurances -- ones that are often difficult to square with what's been reported so far about the U.S. intelligence community's surveillance programs.

Consider the NSA's latest fact sheet, released on Saturday, which seeks to address allegations about two different programs geared toward collecting Internet data and telephony metadata. And, oh boy, is the NSA's public relations department trying hard to make Americans feel like they have nothing to worry about.

Let's begin with the collection of telephony metadata. According to the Washington Post, the NSA is engaged in a large-scale effort to rake in this data -- information like the origin and recipient of a call, call length, subscriber information, and the type of device used. The government has code-named this program MAINWAY. 

Here's how the NSA fact sheet describes the system: "The government does not indiscriminately sift through the telephony metadata acquired under this program.... The metadata acquired and stored under this program may be queried only when there is a reasonable suspicion, based on specific and articulated facts, that an identifier is associated with specific foreign terrorist organizations." (The emphasis is the NSA's.)

Here's what the NSA isn't saying: In order to build this database, it is collecting telephone records en masse. If the government is to be believed, it only looks at the data "when there is a reasonable suspicion," but that doesn't change the fact that your telephone records are sitting on a government server. We don't know exactly whom the government has collected records from, but the Post revealed Sunday that the NSA has pulled records from other large telephone companies, including AT&T and Bell South.

Next, let's look at PRISM, the scope of which is hotly disputed. The initial reports describing PRISM alleged that the program involves "direct access" to the servers of several major tech companies. This allegation has since been scaled back, and the current operating wisdom is that PRISM functions as something of a lock box. The government requests information from the companies, and they deposit the relevant information in a secure repository. Under such an arrangement, the NSA might conceivably ask for every Facebook profile in Peshawar, Pakistan -- data that Facebook could then deposit in the lock box for the NSA to download.

According to the NSA fact sheet, this program "does not allow the government to target the phone calls or emails of any U.S. citizen or any other U.S. person anywhere in the world, or any person known to the in the United States. It only allows the targeting of communications of foreigners, and even then only when those communications may have foreign intelligence value." The agency further notes that "any information about U.S. persons that may be incidentally acquired" is subject to "minimization procedures." 

First, when evaluating the government's statements about PRISM, it's crucial to note that it is dealing with Internet content, not metadata. That is, PRISM can give the NSA access to the contents of an entire email inbox. It sweeps up this data in targeted requests to companies, not in bulk as with telephone records. In its statement, the NSA emphasizes that this power is not directed at Americans, only foreigners. But implicit in this program is the fact that Americans' communications are bound to be swept up when the government collects something like an entire email inbox. When it does so, such information is subject to "minimization procedures." This is where the NSA's Catch-22 comes in: Since they are highly classified, the government can't reveal what those minimization procedures entail.

Stepping back, the NSA fact sheet explains that both PRISM and MAINWAY are "subject to strict controls and oversight." In the case of MAINWAY, "only a small number of specifically trained officials may access the data; the Foreign Intelligence Surveillance Court (FISC) reviews the program every 90 days; and the data must be destroyed within 5 years." With PRISM, the Department of Justice and the director of national intelligence regularly review the program, Congress and the FISC receive semi-annual reports, and the FISC "must renew the program each year upon certification" by the attorney general and the director of national intelligence.

What this description of oversight, meant to convey that these intelligence programs are tightly controlled, omits is that the controls on the program exist entirely out of public view. Though some members of Congress are kept in the loop on the NSA's activities, they are barred from disclosing any of that information to the public. This is why Sen. Ron Wyden, the Oregon Democrat, has been issuing apocalyptic warnings about the NSA's activities for years without offering any detailed information to substantiate those accusations.

In other words, when President Obama's interview on the NSA leaks airs Monday night, pay as much attention to what he omits as to what he says.

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