AFM HE YAFEI ON DAUB, RUSSELL AND SHAO CASES, U.S.

C O N F I D E N T I A L SECTION 01 OF 02 BEIJING 006849

SIPDIS

SIPDIS

USDA/FAS FOR OA/YOST; OCRA/RADLER; OSTA/BRANT, WETZEL,
HAMILTON
STATE PASS USTR WINELAND
USDA/OSEC FOR KEENUM/TERPSTRA/RAYMOND

E.O. 12958: DECL: 10/25/2017
TAGS: PGOV PREL OFDP CASC CJAN EAGR ECON ETRD WTRO
CH
SUBJECT: AFM HE YAFEI ON DAUB, RUSSELL AND SHAO CASES, U.S.
BEEF

REF: 10/19/07 CARTIN-TESONE EMAIL

Classified By: Ambassador Clark T. Randt, Jr., for reasons 1.4 (b/d).

SUMMARY
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1. (C) Assistant Foreign Minister (AFM) He Yafei, accompanied
by two MFA lawyers, raised the Daub lawsuit against the PRC
Consulate General in New York with the Ambassador on October
25 and asked the USG to intercede and stop enforcement of the
recent court order. He said the Chinese would have no choice
but to retaliate in case of any adverse enforcement actions
by the court. Reiterating the Department Legal Advisor's
recommendation (ref A),the Ambassador urged the PRC to
retain legal counsel to represent and defend Chinese
Government interests in the case. The Ambassador provided
AFM He with an autopsy report for deceased Amcit Darren
Russell, who died under questionable circumstances in
Guangzhou in 2005, and asked that the case be reopened given
the autopsy conclusion of homicide. AFM He said this case
was "no small matter" and promised to look into it and
provide "feedback." The Ambassador also urged the early
release from prison of Amcit Jude Shao. In response to AFM
He's suggestion that the United States "start the flow" of
exported beef to China, the Ambassador underscored that China
has an opportunity for leadership on this issue. END SUMMARY.


2. (C) The Ambassador and AFM He met October 25 to discuss a
range of topics, including Burma, Darfur, nuclear
nonproliferation, the DPRK, Iran and the P5-plus-1 Political
Directors process (reported septels),as well as the Daub,
Russell and Shao cases and U.S. beef exports reported here.

DAUB CASE
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3. (C) AFM He formally raised the Anne Daub lawsuit against
the PRC Consulate General in New York, asserting that Daub
had "launched a false accusation" and insisting that the
default judgment awarded by the relevant court was against
the norms of international law. Embassies and consulates in
the United States should enjoy immunity from U.S. courts.
The default order of $670,000 and possibility that Chinese
state assets would be seized is most distressing, he said.
The Assistant Foreign Minister stated the Chinese would have
no choice but to retaliate in case of any enforcement actions
by the court in this regard. It is the responsibility of the
host country to ensure "such things will not happen." AFM He
expressed his hope that the USG would ensure Chinese assets
and property are "safe and sound" and not "sit tight and do
nothing" in connection with an obvious case of immunity. The
first step is to stop the court's enforcement, He said.


4. (C) The Ambassador underscored that the Foreign Sovereign
Immunities Act of 1979 does not require sovereigns to submit
to U.S. courts, but does require a "special appearance" to
contest the court's jurisdiction. The foreign sovereign can
assert the affirmative defense of sovereign immunity, but
must appear before the court to assert the defense, the
Ambassador emphasized. The Department of State cannot assert
a defense on China's behalf. The Ambassador strongly urged
the PRC to retain legal counsel to represent Chinese
interests in this case.

DARREN RUSSELL AUTOPSY PASSED; AFM HE TO INVESTIGATE
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5. (C) Ambassador Randt provided AFM He with the autopsy
report of Darren Russell, an American citizen who died in
Guangzhou in 2005, and asked that the MFA ask the
Procuratorate to reopen the case. The Ambassador said
Chinese authorities at the time reported that he was the
victim of a hit-and-run driver, but the autopsy calls that
assessment into question. The autopsy concludes that
Russell's injuries are consistent with a homicide, the
Ambassador said. AFM He said this case was "no small matter"
and promised China would look into it and provide "feedback."

JUDE SHAO ASSISTANCE
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6. (C) The Ambassador thanked AFM He for MFA assistance in
the Jude Shao case, relaying that the Shanghai prison has
sent his parole papers to the local court authorities and
that he may be released soon. The Ambassador urged Shao's

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early release.

AMBASSADOR ASKS CHINA TO SHOW LEADERSHIP ON U.S. BEEF
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7. (C) AFM He suggested to the Ambassador that the United
States "start the flow" of exported beef to China. The
Ambassador highlighted the recent visit of USTR's Ambassador
Crowder and underscored that China has an opportunity for
leadership on this issue by accepting all U.S. beef per the
OIE certification.
Randt