'He's been set up': the American whose life may depend on US-China relations

When Chinese police raided the Guangzhou hotel room of Mark Swidan and arrested him on 13 November 2012, he was on the phone to his mother, Katherine. Swidan had been in China sourcing building materials for his business , Katherine says, and they were discussing booking his ticket home to Houston, Texas, for his wedding, when he said there was a knock at the door.

“I heard banging, then I didn’t hear anything after that,” she recalls.

Some excruciating weeks later, she says, the US consulate told her they’d tracked him down – he had been arrested and detained on drug trafficking charges.

It would be a year before Swidan saw trial in the Jiangmen intermediate people’s court, and another five – all spent in squalid detention – before he was found guilty, sentenced to death with a two-year reprieve in April 2019. The conviction appeared to come out of the blue, at the same time US officials were in Beijing for trade talks.

Amid deepening hostilities between Beijing and the US, Canada, and other western nations, there are fears such cases are being leveraged.

Swidan is by no means the only foreigner to be detained in China. His case has attracted little publicity, but is now discussed in the context of growing hostilities between the Chinese Communist party and the US and other western allies. Amid tit-for-tat consulate closures, sanctions, and a growing number of criminal prosecutions that appear to be retaliatory or diplomatically strategic, governments are also warning their citizens in China they they are at increased risk of arbitrary detention.

Katherine Swidan says Mark has tried to take his own life three times in detention, and was shackled to the floor after one attempt.

“Mark is in a centre that is caged with probably 25 other people. There’s a hole in the ground for a toilet. They ration toilet paper. There’s no hot water, even in the winter,” Katherine says.

“He told me: ‘mama, I’ve never been so cold in my life’. I look at his little boy pictures, and I just want him to be warm.”

‘I’d stake my life on it, this man is innocent’

Swidan’s supporters say the little evidence supporting his arrest, let alone conviction, was weak and circumstantial. Humanitarian and prisoner advocacy group Dui Hua says no forensic evidence has been produced linking him to any drug transaction.

John Kamm, the chairman of Dui Hua, has advocated for about 6,000 prisoners over the past 30 years, and says it has secured clemency for several hundred. In direct contact with the Chinese government, Kamm’s advocacy is usually limited to political and religious prisoners, but when he was approached by Katherine Swidan about her son’s case he decided to take it on.

“I have never seen such a violation of an individual’s due process rights. It is appalling,” Kamm tells the Guardian from San Francisco. “In my opinion he’s been persecuted, he’s been set up.”

The reprieve in Swidan’s sentence suspends execution for two years with the possibility it will be commuted to a jail term for good behaviour. It’s common enough in China’s legal system but Swidan is believed to be the first American to receive it.

“We don’t know what’s going to happen at the end of that reprieve,” says Katherine, and fears that if China closes Guangzhou’s US consulate like it did in Chengdu then her son will have even less representation and support. “He told me: mama I’m going to come home in a box of ashes or on a plane, but I will come home.”

China’s judicial system is notoriously harsh and lacking in judicial fairness. Around 99% of cases end in conviction, and while there are occasional acquittals including one last month, they are rare.

Kamm says the authorities are trying to get Swidan to plead guilty by “holding him in an absolute hellhole”.

“I’d stake my life on it, this man is innocent. He’s a victim of serious human rights abuses and the UN agrees.”

In February, the United Nations working group on arbitrary detention concluded that Swidan had been arbitrarily detained in violation of international law, and urged his immediate release “with compensation and other reparations”. Nothing has happened.

The Swidans are from Houston, Texas, with little financial means for legal assistance.

Swidan’s father died when he was young, and he used a small inheritance to travel, Katherine tells the Guardian. She describes her son as an artist and a cook, and very smart, proudly noting he read Dostoyevsky in the eighth grade. He was due to get married in Houston a month after his return from China.

In the years since Swidan was detained, both Katherine and her other son have been treated for cancer. She was allowed to speak to Swidan before her surgery, but his brother wasn’t before his. She is angry about the lack of support she feels she’s had from successive US administrations to free her son from an oppressive state prison.

‘All cases involving Americans have a political element’

In a 2019 report on capital punishment, Amnesty International said the death penalty in Chinese drug-related cases “appeared to play a central role in the middle of political stand-offs with some foreign countries”.

In June Australian man Karm Gilespie – whose seven-year detention in China was until then unknown – was found guilty of drugs charges and sentenced to death. The sudden ruling five years after his trial coincided with China and Australia having one of their worst diplomatic rows in decades.

Last month another Australian citizen, business journalist for Chinese state media Cheng Lei, was taken into the secretive form of solitary detention by Chinese authorities for reasons still unknown.

In December 2018 Canadian authorities arrested the Chinese Huawei executive Meng Wanzhou. Just days later former Canadian diplomat Michael Kovrig and businessman Michael Spavor were arrested in a move widely seen as retaliatory.

In January 2019 onlookers were horrified when a Chinese court increased Canadian man Robert Lloyd Schellenberg’s sentence from 15 years in prison to execution after he appealed against the verdict.

This month a Chinese court sentenced Canadian Xu Weihong to death on drugs charges.

“This is the level of China’s game,” says former foreign correspondent Peter Humphries, who was also detained in China for several years.

China denies the cases are linked to politics. When asked about Xu’s sentence, a spokesman for the foreign ministry said it saw no impact on China-Canada relations. “I want to stress that Chinese judiciary independently handles the case in strict accordance with Chinese law and legal procedures.”

“I’ve come to the view that basically all cases involving Americans have a political element,” says Kamm. “Especially these days. The way things are, the Chinese government is in no mood to do anything for Americans.”

Both Katherine Swidan and Kamm speak furiously of an apparent lack of action, or even interest, from the US government. Kamm accuses an unnamed Washington official of admonishing him for “making waves” when he was pushing for a UN intervention.

The state department declined to answer questions on the case but said it was providing consular assistance to Swidan.

“The Chinese government does not currently allow in-person consular visits, but we have communicated with Mr Swidan monthly since his arrest,” a spokesman said. “We will resume in-person visits in accordance with guidance from health authorities once the Chinese government lifts its restrictions on consular visits.”

China’s ministry of foreign affairs has been contacted for comment.