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granted just three of 18 prison site visits requested by the U.S.
Customs attaché in Beijing, none of which occurred within the period
of 60 days prescribed in the agreements. U.S. officials found
no evidence that these particular facilities were producing goods
bound for export to the United States. 47 Five site visits were made
between September 2002 and April 2005; each of these visits resulted
in that particular case being closed without issuance of any
product detention order or formal findings. 48 The very long delays
between U.S. requests for site visits and the small number of visits
actually approved suggest the possibility that U.S. officials are
granted permission to visit only selected prison labor facilities from
which all evidence of export manufacturing has been removed. This
points out a fundamental weakness of the investigation and enforcement
provisions of the Statement of Cooperation: it is unrealistic
to expect the very Chinese government authorities who have
control over prison labor facilities to provide to U.S. officials evidence
incriminating themselves or the facilities for which they are
responsible.
According to testimony presented to the Commission by James
Ink, deputy assistant director of the Office of International Affairs
at ICE, there remain 13 outstanding requests that date back to
1994 for site visits to suspect facilities. 49 This represents the failure
of Chinese officials to abide by the terms of the Statement of
Cooperation and, specifically, by its commitment to respond to visit
requests within 60 days. Some human rights observers maintain
that China is denying access to these prisons in order to maintain
production that has become a vital part of the Chinese economy or
because such operations directly benefit influential officials and
business interests. 50 Additionally, China’s Ministry of Justice continues
to deny access to facilities with respect to which it claims
there is ‘‘insufficient evidence’’ of prison labor violations. U.S. officials—as
well as representatives of the International Red Cross—
remain barred from all ‘‘reeducation through labor’’ sites. The Chinese
government maintains that ‘‘reeducation through labor’’ is a
nonjudicial, administrative sanction and therefore is not covered by
agreements related to prisons. 51 The Chinese government has used
this distinction as a major loophole, which leaves large sectors of
the Chinese penal system outside the scope of any enforcement provisions
of the two agreements. The U.S. government does not concur
with the Chinese government’s characterization of ‘‘reeducation
through labor’’ as distinct from prison incarceration.
U.S. officials describe a state of sporadic contact and cooperation
with their Chinese counterparts with whom they must work on
prison labor matters. For example, Mr. Ink testified to the Commission
that between February and September 2003, PRC Ministry of
Justice officials held monthly meetings with ICE attaché personnel
to discuss prison labor issues but that these were halted in the
wake of the SARS (severe acute respiratory syndrome) outbreak in
the autumn of that year. These meetings resumed in 2004, with
PRC officials seeking to place other prison-related issues, such as
the administration of prisons, on the agenda. These meetings continued
through June 2006, when they stopped again. Then they
commenced once again in June 2008, but discussion of prison labor
facilities was not on the agenda. 52