How the Uyghur Forced Labor Prevention Act Became Law, Parts 8 and 9

Editor’s Note: This is the fifth and final installment of a story documenting the creation and passage of the Uyghur Forced Labor Prevention Act. The first installment is available here, the second installment is here, the third is here, and the fourth is here. The story is based on more than 21 hours of interviews with more than two dozen people involved, including lawmakers, staff, and human rights advocates. An audio version of the story is available here. Dispatch members can download a PDF of the full report here.

8. What Next?

The passage of the Uyghur Forced Labor Prevention Act tells several stories.

It tells the story of lawmakers seeking real responses to China’s genocide, and how difficult it can be to win support for meaningful action in the face of corporate resistance and dueling policy priorities.

It tells the story of determined Uyghur advocates and a coalition that fought for the bill every step of the way.

It also tells the story of two countries, deeply linked through trade, beginning to decouple.

And despite the bill’s passage, it highlights the shortcomings of the U.S. Congress: The institution’s anarchy and lack of planning was on full display, with members never quite sure of how the bill would move—whether as part of an omnibus spending package, the defense act, a broader China competition bill, or a standalone measure—until the final weeks of 2021. Still, in a Congress with more animus between members than most sessions in recent history, lawmakers overwhelmingly rallied around the bill in the end. 

Congress is broken in numerous ways.

Many offices don’t have the resources to dedicate to legislation as ambitious as the forced labor bill. It’s not that they don’t want to—it’s that a lot of work goes into these kinds of bills. High rates of staff turnover have hobbled congressional offices, stripping them of valuable policy experience and connections to advance their priorities. It’s also a question of time. Aides behind the forced labor bill organized dozens of calls with businesses, talked with executive agencies, and negotiated with other lawmakers to move it closer to passage. That’s why most of the major bills coming out of Congress emerge from leadership offices these days. They have the power and resources to pull it off. Committee chairs are also in a better position relative to most members.

Without the Congressional-Executive Commission on China, it’s not clear the forced labor bill would have been written or passed into law. It originated from that commission, led by staff who knew the issue inside and out. Their hard work, and the expertise the lawmakers on the commission have gained from serving on it, was essential in seeing the bill to fruition.

“How many members can spend enough time to really delve into that deep of an issue?” asks Jonathan Stivers, the former CECC staff director. “And between Rubio and McGovern and the rest of them, they did. The ability for a member to sit that long on one specific aspect of an issue is hard.” 

Because those members did have that capacity, they were able to decide: “Let’s do something. Let’s do something big.”

There’s an irony to this. Congress established the CECC to monitor human rights in China in 2000, in the same bill that paved the way for permanent normal trade relations with China. The CECC was seen almost as a bone thrown to the losers of the trade relations fight, those lawmakers who wanted China to make more significant human rights advances before America closely embraced it as a hub of economic investment. With the Uyghur Forced Labor Prevention Act, people involved say, the CECC created the most potent tool in decades for the government to pursue economic disentanglement with China.

For much of its existence, the CECC has acted as a research organization, issuing regular reports and maintaining a database of political prisoners in China. In recent years, the lawmakers on the panel have empowered it as a force for producing major legislation. Since 2017, the commission has spearheaded bills responding to China’s crackdown on freedom in Hong Kong, repression in Tibet, and the genocide in Xinjiang.

“It was worth being a part of,” one person who worked on the forced labor bill says.

The CECC isn’t done searching for ways to fight China’s human rights abuses. Staff continue to work diligently. When the Overton window cracks open even further, they’ll have legislation ready to go through it.

Lawmakers are also looking at other ways to place pressure on China and end American complicity in human rights abuses there.

Potential versions of the Securities and Exchange Commission disclosure requirements that didn’t make the cut in the forced labor bill are still on the minds of members who believe American investors should be confident their money isn’t propping up genocide.

Rubio introduced legislation alongside Florida GOP Sen. Rick Scott earlier this year that aims to tackle the issue. The Transaction and Sourcing Knowledge Act would direct the SEC to require businesses to report supply chain sourcing and due diligence activities related to Xinjiang, along with connections to Chinese military-industrial complex companies or companies the Department of Commerce has added to its trade restriction entity list.

Members are also working to fully fund the Customs and Border Protection (CBP) unit that currently oversees forced labor investigations and will implement the Uyghur Forced Labor Prevention Act. CBP has requested more than $70 million to hire 300 additional personnel, boost its technological abilities, and to carry out training necessary to enforce the law. According to a May letter from the top lawmakers on the CECC, officials estimate the law will hike the number of transactions subject to CBP review each year from less than 1 million to more than 11.5 million.

In practice, CBP enforcement will look similar to the process it has used for forced labor investigations in the past. Items suspected of violating the law will be detained at ports of entry, a CBP official told businesses on a guidance call in early June, and importers will have 90 days to provide clear and convincing evidence that forced labor was not involved in their supply chains. Businesses will be able to request extensions of that period. If a company cannot provide the evidence prescribed by the law, the shipment can be sent back to its point of origin—but it will not enter American markets.

In guidance calls, CBP officials warned businesses there will be a high threshold of evidence as the law requires, and they rebuffed the corporate community’s attempts to create a loophole for products with inputs from Xinjiang that make up only a small percentage of a product’s components. All items with any connection to Xinjiang are subject to the presumption of forced labor, as well as items connected to forced labor transfer schemes in broader China.

It will take some months to evaluate how the law plays out and if the administration is committed to enforcing it completely.

Uyghur advocates, meanwhile, continue to call on businesses to move out of Xinjiang. They are also pushing other countries to block products connected to the genocide from entering their markets.

Despite the headwinds the forced labor bill faced in the United States, its success underscores a major shift in the tone of China policy debates in just the past five years. A genocide can do that.

Lawmakers with long records on human rights in China are hoping bills that would have been out of the question several years ago could win new support now, as bipartisan consensus about China’s malign behavior solidifies.

Rep. Chris Smith, the Republican from New Jersey who sits on the CECC, introduced legislation this year to end America’s permanent normal trade status with China. It would effectively hike tariffs on many Chinese imports and require China to meet certain human rights standards for future favorable trade treatment.

The United States ended permanent normal trade relations with Russia earlier this year after Vladimir Putin launched his brutal and unprovoked war in Ukraine. If Chinese President Xi Jinping targets Taiwan, that response could likewise be on the table. Smith argues the ongoing genocide and China’s other human rights abuses should already warrant the same response. He was on the front lines of the debate in the 1990s over China’s trade status, arguing then as he is now that the Chinese government needed to change its behavior before receiving permanent normal trade benefits.

That debate looms large in his mind, more than two decades later.

“What a lesson in foolishness on the part of U.S. policymakers,” he says.

When then-President Bill Clinton de-linked human rights concerns from trade with China in 1994, Smith argues, “That’s when we lost China on human rights.”

Smith says presidents since then have paid lip service to human rights, but China hasn’t faced real penalties for its behavior. He doesn’t have much optimism about the remainder of the Biden administration, pointing to Biden’s recent move to pause tariffs on the solar industry for two years. Smith and China policy experts say that decision will enable Chinese solar manufacturers to circumvent punishment for trade violations.

“I am sick and disheartened,” he says. “There will be more people put into those concentration camps to meet the rising demand that will follow from this.”

Still, Smith is hopeful that his bill to subject trade with China to more stringent human rights safeguards “is an idea whose time has come.”

“Many people have awakened to the threat China poses on myriad levels,” he says. “A number of members have told me to my face: ‘You were right, you and the others who felt we needed conditionality on trade. And had we done that, we’d have a different China today.’”

If there’s anything the effort to pass the forced labor bill emphasized, it’s how much momentum and work is required to pass a law this ambitious. For now, Smith’s measure to end permanent normal trade relations with China is a long shot. Not only would the business community fiercely fight it, but current high inflation and supply chain challenges also weaken American policymakers’ resolve to pass anything like it.

Looking back, the sponsors of the Uyghur Forced Labor Prevention Act agree it is essential to have broad ideological support on these kinds of efforts from the outset.

“You have to have strong champions in both parties and in both chambers,” Rubio says. He adds that it was critical to lay the groundwork by explaining the issue to the public, through hearings, advocacy, and news reports.

By the time Congress passed the bill in December 2021, “It wasn’t like something people had never heard about before. It wasn’t obscure at that point. There was a human face behind it too.”

Finally, he says it is important for the people handling it to know how to navigate the legislative process.

“It’s not exciting, and it’s not the kind of thing that gets a lot of coverage on a daily basis, but there is a way of getting bills to become law that requires internal legislative maneuvering in terms of timing and format, and even using leverage, unfortunately.”

With the Uyghur Forced Labor Prevention Act, Congress has gone a long way toward addressing America’s complicity in the horrors in Xinjiang.

But the U.S. government has still not taken one of the most substantial steps it can to help Uyghurs and others harmed by China’s genocide: prioritizing refugees who have made it out of Xinjiang but who still face China’s international influence.

9. Escaping Xinjiang

Gulzira Auelkhan and her family have been in the United States for more than a year.

In that time, she has testified to federal investigators about her experience in China’s concentration camps and being forced to work in a textile factory. She has protested outside Congress for action on the forced labor prevention bill, telling her story to top lawmakers. And she has made a home in Texas, where she and her family are safe from China’s oppression. 

“I am endlessly grateful to the United States and people of America for their support and help,” Auelkhan tells The Dispatch through a translator.

Auelkhan was able to come to the United States from Turkey, after she escaped Xinjiang to Kazakhstan, through special humanitarian parole. The status is temporary, and it requires a sponsor—in this case, Bob Fu’s China Aid—to pledge to cover a recipient’s expenses. Auelkhan and her family members quickly applied for asylum after arriving in America, which would give them stability and longer term protection from persecution.

She still hasn’t been granted asylum, even though she directly suffered in what the U.S. government has officially designated genocide.

Auelkhan hasn’t even been able to have her first asylum interview with immigration officials yet, Fu says.

She is among many others, primarily Uyghurs, who are in the United States seeking safety from China’s oppression. They face massive backlogs, contending with a bureaucracy that isn’t prioritizing them or providing much clarity on how long they will have to wait for approval. In January, Caroline Simon at Roll Call reported there are roughly 800 Uyghurs stuck in America’s asylum backlog consisting of hundreds of thousands of people from around the world.

The Uyghur American Association sent a letter to the Department of Homeland Security in 2020 asking for expedited consideration of those Uyghurs seeking asylum.

“They wish to send their children to school, serve in the United States military, and regain a sense of normalcy after fleeing persecution in China,” the letter reads.

Fu, who came to America as a political refugee in the late 1990’s, has helped hundreds of people escape China since establishing China Aid. It’s grueling work.

“The American asylum system is totally broken,” he says.

So is the refugee program, which is for people applying from outside the United States.

Fu has attempted to bring people who escaped Xinjiang to America from various third countries through the refugee admissions program, but he has been rebuffed by State Department officials who point to a lack of capacity and other geographic priorities. That’s why he and other human rights activists have relied on special humanitarian parole to rescue victims of China’s genocide.

“Despite the fact that the U.S. government made a legal recognition of genocide that has occurred in Xinjiang by the Communist Party, the bureaucracy has been really, really slow-walking—in some ways stalling—the kind of freedom that we could have helped so many,” Fu says.

Most recently, Fu helped bring Ovalbek Turdakun, an ethnic Kyrgyz and a Christian who was detained in a concentration camp in Xinjiang for nearly a year, to America.

The rescue effort was complex: Turdakun relied on help from people in the West, who found an American Christian family to fly with him out of Kyrgyzstan to Turkey. They believed flying with Americans and posing as tourists would dissuade customs officials there from blocking Turdakun and his family from leaving. Once they flew out, they then had to wait in Turkey for months while American agencies mulled Turdakun’s case and as American lawmakers advocated on his behalf. Finally, Turdakun and his family were able to fly to the United States, special parole granted because he had new testimony about China’s atrocities, including the surveillance cameras China is using in its concentration camps.

Other attempts haven’t been successful. Fu is still traumatized by his efforts to rescue a Kazakh man from Xinjiang who said he was a camp survivor and had escaped to Uzbekistan. In February 2019, that man—Halemubieke Xiaheman—was facing extradition to China. He publicly pleaded for help, and the State Department got involved, urging Uzbek authorities to let him leave. Eventually, Xiaheman was able to fly to Bangkok in Thailand, according to Fu. Fu booked hotels and flights for him to leave Thailand. But once Xiaheman reached Bangkok, Fu says he lost contact with him. He believes the Chinese government kidnapped him.

“He was vanished,” Fu says.

That week is “the most horrible memory. Still is.”

A bipartisan group of American lawmakers introduced legislation more than a year ago to prioritize Uyghur refugees and others fleeing Xinjiang. It would make it easier for those affected by the genocide to apply for refugee status in the United States.

Having direct access to the American refugee program is an important step, advocates say, because it would offer greater protection from China’s long arm in other countries. Without priority status in America, refugees generally go through the United Nations process or processes in the countries they are living in, facing more exposure to extradition requests or pressure by Chinese officials.

Countries heavily influenced by China in the Middle East and North Africa are not safe for those who have escaped Xinjiang. Since 1997, the Chinese government has targeted more than 5,500 Uyghurs outside of China with cyberattacks, threats to family members in China, and intimidation, according to a 2022 Wilson Center report. And in the same timeframe, more than 1,500 Uyghurs have been detained abroad or forced to go back to China.

Reporting by the Uyghur Human Rights Project also tells a grim story.

“At least six Arab states—Egypt, Morocco, Qatar, Saudi Arabia, Syria, and the United Arab Emirates (UAE)—have participated in a campaign of transnational repression spearheaded by China that has reached 28 countries worldwide,” the report reads.

The bill to prioritize Uyghur refugees hasn’t passed Congress. It advanced through the House earlier this year as part of a broader China competition package, although the odds of it becoming law appear slim. House Democrats said it was one of their top priorities in negotiations with the Senate for the competitiveness bill, but it is facing resistance from Republican senators rejecting all immigration provisions.

Rubio, who cosponsored the Senate version of the measure, predicted last October that it would get bogged down in broader immigration politics.

“Anything that has to do with immigration obviously becomes a target for other immigration-related topics, so it’s always hard to move on this,” he said. “But hopefully it’s something that we can include in some other piece of legislation without becoming a forum for a fight on everything else.”

This legislation doesn’t actually need to pass Congress, though.

It doesn’t need to go through the same fraught, winding process the Uyghur Forced Labor Prevention Act went through to become law. If he wanted to, President Biden could unilaterally make the change prioritizing Uyghur refugees, matching America’s official view of the genocide in Xinjiang with tangible action. He hasn’t yet.

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