AFM HE URGES UNITED STATES TO INTERCEDE WITH COURT

C O N F I D E N T I A L SECTION 01 OF 02 BEIJING 001154

SIPDIS

SIPDIS

E.O. 12958: DECL: 02/16/2032
TAGS: PREL PGOV PHUM CH
SUBJECT: AFM HE URGES UNITED STATES TO INTERCEDE WITH COURT
ON FALUN GONG CASE


Classified By: Charge d'Affaires David S. Sedney. Reasons 1.4 (b/d).

Summary
--------------


1. (C) China is dissatisfied with the United States
Government's inaction in preventing the Federal
District Court for the Southern District of New York
from entering a default judgment in the Falun Gong
case against China Central Television, Assistant
Foreign Minister He Yafei told the Charge February 16.
AFM He repeated points he has made previously on this
and other cases, arguing that because CCTV is a state
owned and operated organization, it enjoys sovereign
immunity. The United States Government's inaction
risks harm to bilateral ties and could be viewed as
tacit support for Falun Gong, AFM He claimed. The
Charge stressed that the CCTV case is strictly a legal
matter and firmly rejected the idea that it is in any
way a political issue. The core question has no
relation to Falun Gong but rather is the different
views we have of sovereign immunity. The Charge urged
AFM He that to contest jurisdiction, China should
retain local counsel. End Summary.

AFM He: The United States Should Act
--------------


2. (C) AFM He said the Chinese side has repeatedly
urged the United States to take steps to have the
Falun Gong case against CCTV dismissed. The Chinese
side is dissatisfied that the United States has taken
no action. AFM He gave three reasons the United
States should act, specifically 1) CCTV is a state
organization and enjoys sovereign immunity, therefore
the court has no jurisdiction to consider the case,
let alone enter a default judgment; 2) CCTV has
extensive and close cooperation with "relevant
agencies" in the United States and a default judgment
could have a negative effect on those ties while
harming bilateral relations overall; and 3) CCTV
constitutes state property, and as result, if the
court enters a default judgment, the Chinese side will
be "forced to take countermeasures," which neither
side wants to see.


3. (C) AFM He assessed that the United States and
China have built positive momentum in our relationship
through implementing the consensus reached by
President Bush and President Hu. The productive
February 15 phone call between the two leaders, during
which they discussed the North Korea nuclear issue and
Sudan, among other matters, is evidence of the stable
state of ties. This year is a pivotal one for United
States-China relations and we should not allow
"roadblocks" such as the Falun Gong to hinder our
progress, AFM He said. The United States Government's
provision to courts of legal opinions on such
"unwarranted" law suits in the past has played an
important role in resolving them. In addition, the
United States has an interest in intervening in cases
involving sovereign immunity and should take the
initiative to do so in this instance, AFM He said.

It's Law, Not Politics
--------------


4. (C) The Charge rejected AFM He's linking the CCTV
court case with larger political issues, underscoring
that the matter is not a political decision but
strictly a legal issue. The United States Government
can not under our law and legal system do what the
Chinese request. The core issue has nothing to do
with Falun Gong. Rather, the crux of the matter
relates to our two countries' different
interpretations of the legal principle of sovereign
immunity and how it should be applied. In our legal
system, the Foreign Sovereign Immunity Act governs
such matters along with the case precedents from our
common law system. The United States is not singling
out China. There are other countries who have
different views from the United States onsoereign
immunity. We tell them the same thing we tell China,
that is, to get a lawyer and contest jurisdiction.


5. (C) The Charge rejected AFM He's contention that
United States inaction in this case is tantamount to a
sign of support for Falun Gong. He told the AFM that
China should not take any "countermeasures." The CCTV
case is a legal issue and not a political one and
China should not mix the two, the Charge stressed.

BEIJING 00001154 002 OF 002




6. (C) The Charge reminded AFM He of the United
States principle of separation of powers, underlining
that the Executive Branch does not have the authority
to do what the Chinese Government is asking in the
CCTV case. To contest jurisdiction in the United
States, foreign governments must retain counsel and
appear in court to present their sovereign immunity
arguments. Some special exceptions exist, for example
in some cases involving heads of state. The CDA
reiterated that the Executive Branch's actions in the
CCTV case in no way reflect political decisions and
signify no political "message."


7. (C) Contending that the decision not to act in
this case could be perceived as official support for
Falun Gong, AFM He repeated his previous points and
emphasized the risks to bilateral relations. The case
involves United States foreign policy interests. As
such, the United States Government should take
appropriate measures, AFM He said. The Charge said he
"firmly rejects" the notion that there is a political
element to the case, adding that our law must dictate
our response. If the Chinese Government believes we
are making a political decision in this case, then
"the Chinese Government is wrong," the Charge said.
SEDNEY