The Moonshine Policy failed because Kim Jong-un demands surrender, not engagement

Just before Air Force One took off for Tokyo, the New York Times printed a story by Choe Sang-hun, mourning for Moon Jae-in’s failure to revive the Sunshine Policy, wallowing in self-pitying nationalism, and pinning the most of the blame for this on Donald Trump — not Moon, for failing to read the U.N. Security Council resolutions before promising initiatives that would violate them, not Korean voters who don’t trust Pyongyang and don’t want a revival of the Sunshine Policy. Choe assigned only a small share of the blame to the person most responsible for the failure of Moon’s outreach: Kim Jong-un.

Personal relationships seem to matter more to Donald Trump than to ordinary world leaders, and Trump and Moon don’t appear to have much use for one another. It’s true, of course, that Trump has made some wince-inducing gaffes on KORUS, and on making South Korea pay for THAAD (even if South Korea should pay for it). I’m on record as saying that his war threats scare our friends more than they scare our enemies. His boast today that Seoul will soon be buying armloads of American weapons plays perfectly to the Korean left’s conspiracy theories about the American presence and its deeper mercantilist motives. It also feeds the Korean left’s worldview — of which Choe’s mislabeled opinion piece is an exemplar — that all foreign entanglements are inherently exploitative, while all intra-national (as in, inter-Korean) interactions are inherently beneficent and pure. That view, of course, is much older than Donald Trump’s presidency, and it has sometimes put Korea on a path to some grave logical errors.

I could cite many examples of one side of this logical error — the determined refusal to believe in Pyongyang’s maleficence. There is the decision to host the Olympics in the middle of a nuclear crisis and invite North Korea to join. I don’t expect that to end well.

Before that, there was the long national embarrassment of the Sunshine Policy. Because this blog operates at all levels, you can read our argument about why its failure was predictable in Foreign Affairs, or you can watch the perfect six-minute metaphor.

But even as we assign Trump his fair share of the blame for his differences with Moon, let’s do what the foreign press has failed to do and assign Moon his fair share, too. Moon’s history, associations, and appointments suggest that his private thoughts were shaped in an anti-American, anti-anti-North Korean millieu. It speaks poorly of foreign journalists in Korea, for example, that hardly any of them wrote a word about the pro-North Korean, anti-American history of his Chief of Staff, Im Jong-seok, leaving it to bloggers to reveal that to our small audiences.

The man who is most responsible for blocking Moon’s “engagement” of Kim Jong-un is … Kim Jong-un. It’s just that his nuclear and missile tests have denied Moon political space to appease Kim. Kim has repeatedly rejected Moon’s overtures toward conditional or co-equal engagement and instead demanded what would be tantamount to South Korea’s surrender. I’m a compulsive linker because I believe that linking to sources disciplines one’s arguments. I’ve collected so many links documenting Pyongyang’s responses to Moon’s overtures that all I have time to do is dump them here:

  • 5/19: N. Korea criticizes Moon’s dual-track policy toward it
  • 6/1: Moon says will handle N.K. issues without role of foreign countries
  • 6/5: N.K. rejects S. Korean aid provider’s inter-Korean exchanges, citing sanctions
  • 6/12: N. Korea urges S. Korea to implement summit agreement
  • 6/15: Why Pyongyang turned down humanitarian aid from the South
  • 6/19: S. Korea rejects N.K. claim Seoul not stakeholder to nuke issue
  • 6/19: N. Korea demands S. Korea implement hands-off policy over its nuclear ambitions
  • 6/21: Pro-N.K. paper in Japan condemns Moon’s offer for talks
  • 6/24: S. Korea urged to have proper approach to inter-Korean relations (Pyongyang Times)
  • 6/25: CCNR Issues Open Questionnaire to S. Korean Authorities. This article, printed in Uriminzokkiri, and attributed to the Committee for the Peaceful Reunification of the Country of the DPRK — and yes, that includes South Korea — is probably the best summation of Pyongyang’s demands to Seoul. Note the historical significance of the date of its publication. I’ve appended the full text to the bottom of this post and urge you to read it. Click the link at the lower right-hand corner of this post that says, “Continue Reading.”

  • 7/11: No expectation from N.K.’s acceptance of Moon’s peace proposal: pro-N.K. paper
  • 7/20: N.K. dismisses S. Korea’s wish for better ties as ‘nonsense’ amid sanctions
  • 7/29: N.K.’s new ICBM test to dampen Moon’s rapprochement approach
  • 7/31: S. Korea urges NK to end provocations, accept dialogue offer
  • 8/2: Pro-Pyongyang paper accuses Moon of misjudging changing status of N. Korea
  • 8/2: N. Korea rejects joint civilian event to mark Korea’s Liberation Day
  • 11/7: S. Korea says no meaningful inter-Korean contacts so far under Moon gov’t

Not once in his article does Choe so much as allude to this chronology. Also, just for laughs, here are some links via Moon Jae-in cheerleader Nathan Park, who expected this to all work out just brilliantly, in recklessly blithe disregard of all the evidence that it wasn’t:

  • 5/19: Moon’s Secret Weapon Is Sunshine
  • 7/18: South Korea’s President May Be Just the Man to Solve the North Korea Crisis

One could argue that Moon’s early ambitions and failures aren’t so different from those of his predecessors. As I said five years ago, Park Geun-hye, Lee Myung-bak, and Barack Obama all had grand plans to “engage” North Korea, but North Korea had other plans. Park, in particular, clung to what I called “Sunshine Lite” for years until the January 2016 nuclear test, when she finally said, “Enough!” Maybe Lee and Park believed in forms of engagement with North Korea that were more conditional and balanced than Moon’s vision. Maybe this failed experiment means more to Moon than it did to his predecessors, who eventually yielded to reason. What reason tells us now is that Kim Jong-un hasn’t the slightest interest in conditional engagement. Now that he thinks his nuclear hegemony has been secured, he demands nothing less than supplication.

Kim Jong-un expects Moon to unilaterally break U.N. sanctions, disarm unilaterally by halting training exercises and shutting down missile defense, unlawfully repatriate North Korean refugees to die in his gulag, and censor and “liquidate” his critics in the South. South Korean voters would not concur, and Moon knows it. He’s smart enough to see that his election was not a mandate for that. He might never have been elected but for his personal likeability, and for the fractiousness, incompetence, and unpalatability of his opponents. To shift his North Korea policy in a more permissive direction, he needs public and political support he does not have. South Korean voters feel worried about North Korea, bullied by China, anxious that the U.S. might start a war or abandon them, and uneasy about Moon’s capacity to manage it all.

Moon’s visit to Trump in Washington might have been a fiasco, but we saw little outward evidence of this at the time (their disagreement came out later — characteristically, in a tweet). Maybe Moon’s luck will hold again this week, but it won’t hold forever if he won’t pick a side. Moon Jae-in can’t please everyone, especially when “everyone” includes not only Kim Jong-un, but Xi Jinping, Donald Trump, and his own voters.

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Why Trump’s itinerary in Japan hints at re-listing N. Korea as a state sponsor of terrorism

Last week, Secretary of State Rex Tillerson missed a statutory deadline to decide whether to re-list North Korea as a state sponsor of terrorism (SSOT). Asked about this, State said it told members of Congress that Tillerson “expects to conclude his review and announce a decision within the month.” The Washington Times claims that “[t]here were rumors this week in the back hallways of the State Department that the administration was weighing a state sponsor designation.” National Security Advisor H.R. McMaster hinted at the outcome when he said, “A regime who (sic) murders someone in a public airport using nerve agent — that’s clearly an act of terrorism.” It helps to watch his expressions and listen to his intonations as he answers.

If this isn’t quite conclusive, the President’s itinerary and personality also offer strong indications. As I write this, the President has just arrived in Japan to begin his grand tour of Asia. This blog shies from making predictions, but I’ll offer this one: before President Trump leaves Japan, he will leave little room for doubt that Pyongyang will go back on the SSOT list, and soon. I could be wrong, but if I am, it will mean that a man that even his harshest detractors call a master showman, political opportunist, and crowd pleaser isn’t really those things after all.

[Update: It looks like I was wrong. What a shame to waste such an opportunity.]

Reason 1: Congress

I can see why the administration would risk annoying Congress by missing its deadline if it’s only waiting a few days to notify foreign governments of its decision to re-list Pyongyang. Ed Royce, the Chairman of the House Foreign Affairs Committee and author of the bill that set the deadline, wasn’t happy that the administration missed it, but Congress will probably forgive the slight if the administration practices some good diplomacy and then promptly re-lists Pyongyang.

Congress will not forgive the administration if it misses the deadline and only then says that it will not put Pyongyang back on the list. Ted Poe, who chairs the Subcommittee on Terrorism, Nonproliferation, and Trade, fired off a stream of tweets on the day of the deadline calling for Pyongyang’s re-listing. He called on Congress to pass his bill, H.R. 479, which is pending in both Houses of Congress, and which would force the State Department to review its decision again 90 days after its passage. If Congress times it right, that deadline could come several months before State’s next annual report on terrorism is due in June.

If Poe’s bill doesn’t do the trick, I could suggest an escalatory strategy: Congress could force the State Department to report, item by item, on a long list of crimes for which Pyongyang is the prime suspect, whether it believes Pyongyang committed each of those crimes, and whether each crime was an act of international terrorism. Poe could also call State Department officials back to testify before his subcommittee. This could go on forever, but it shouldn’t. The evidence is too overwhelming to deny forever.

Reason 2: Diplomacy

It’s well known that Trump gets along famously with Japanese Prime Minister Shinzo Abe. What isn’t as well known is that Abe has a deep personal history with the issue of Japanese citizens abducted by North Korea. If you know this history, you’ll also know why Trump’s visit foreshadows his decision on re-listing North Korea as an SSOT.

In 2002, after years of rumors and suspicion, Pyongyang admitted that it had kidnapped a number of Japanese citizens from their home country to use as language instructors for its spies. It is also suspected in dozens of other disappearances that it has not owned up to. The abduction issue resonates powerfully with the Japanese people. Pyongyang’s failure to come clean on other suspected abductions, most notably that of Megumi Yokota, turned public opinion strongly against it. In time, it forced the government to sever most trade relations and dismantle Chongryeon, Pyongyang’s fifth column in Japan.

Japan also leaned on its American ally to pressure North Korea to return the abductees. Before 2008, the State Department said that the abductions were acts of terrorism* and that North Korea had to return the abductees to get off the SSOT list. But in 2008, in a grasp for a nuclear deal with Kim Jong-il, George W. Bush flip-flopped and took Pyongyang off the list without securing either an admission from Kim about the remaining abductees or a clear commitment to return them. Bush’s decision, for which we can thank Condoleezza Rice and Christopher Hill, shook the Japanese government, drew strong criticism from Abe, and damaged America’s image as Japan’s loyal ally. Bush even felt compelled to call two of Abe’s successors, Yasuo Fukuda and Taro Aso, to promise that the U.S. would “never forget the abduction of Japanese citizens by North Korea.”

Bush’s decision was a diplomatic face-plant. It betrayed one of our closest allies to appease our most mendacious enemy. It gained us nothing and cost us valuable time and the leverage of the sanctions we lifted. For what it’s worth, even Hill now thinks Pyongyang should go back on the list. He also offers this “expert” opinion: “I don’t know the legal justification for putting them back on.” I doubt he knew better in 2008.

Abe has been at the center of the abduction issue since 2002, when he was former Prime Minister Junichiro Koizumi’s chief negotiator and both men flew to Pyongyang, met with Kim Jong-il, and secured the return of five of the abductees. In 2007, during a previous term as Prime Minister, Abe strongly opposed rescinding Pyongyang’s SSOT designation until it released all of the abductees. Abe raised the abduction issue in 2012 when he was again elected Prime Minister. He got nowhere with the Obama administration, so in 2014, he tried his luck with Kim Jong-un, to the detriment of Japan’s fragile alliance with the U.S. and South Korea, but without result. This year, Abe asked Trump to meet with the abductees’ families.

“When I asked … he accepted on the spot,” Abe said this week. “He promised he would do his best to rescue the Japanese abduction victims.”

Trump mentioned Megumi during his speech to the UN general assembly. “We know it kidnapped a sweet 13-year-old Japanese girl from a beach in her own country to enslave her as a language tutor for North Korea’s spies,” he said.

Megumi’s mother welcomed the reference to her daughter. “I was really surprised, but it was great, and I’m thankful to [Trump] for bringing up the issue and putting it into words in front of representatives from around the world,” she said, according to Kyodo news agency. “Every word on the issue is a chance.” [The Guardian]

I’ve long thought that pundits make too much of personal relationships between world leaders who must base their policy decisions on cold calculations of national interests, but emotions and relationships seem to matter more to Trump than they do to ordinary world leaders. Trump and Abe have clearly hit it off, the abduction issue is clearly and understandably a big deal for Abe, and Abe is now in a strong position to ask Trump for favors (unlike Moon Jae-in, who isn’t).

Trump does not strike me as one who would leave Japan quietly without giving his friend the political boost of re-designating North Korea as a state sponsor of terrorism, or at least indicating an imminent intent to do so. If he’s the master of publicity that even his harshest detractors say he is, he’ll announce it at a press conference with Abe and the victims’ families. Then, he’ll watch with satisfaction as Abe’s approval rating soars, and as Abe uses that political capital to build up Japan’s defenses.


If this opportunity hasn’t occurred to Trump, it has occurred to his advisors and his hosts. McMaster says that when Trump meets with the families, he will “bring a message of sympathy [and] empathy” and ask the world, “Do you want a regime like this to have nuclear weapons?” Former Abduction Minister Eriko Yamatani — yes, Japan created a cabinet ministry for this — raised it with Matt Pottinger, the National Security Council’s top Asia policy staffer, when they spoke recently. The administration has reportedly said it will consider the abductions when it decides on North Korea’s SSOT re-designation.

Another report, sourced to “an administration official,” says that the declaration would come after Trump’s meeting with Xi Jinping in Beijing. How foolish it would be, and how unlike Trump, to squander this opportunity to mobilize public opinion in Japan and globally. At the very least, I’d expect Trump to foreshadow his decision in a press availability or a tweet shortly before or after meeting with the families. Then, Trump can let Rex Tillerson make the formal designation later, under section 6(j) of the Export Administration Act.

Reason 3: Itinerary

No single case has personified the abduction tragedy for Japan like that of Megumi Yokota. North Korean agents kidnapped Megumi from the shores of her home village when she was just 13. The Japanese government says she scratched at the hold of the ship during her passage into slavery while weeping for her mother. Some reports say that the decades of loneliness and suffering in North Korea drove her to madness and suicide. To add to this outrage, in 2004, Pyongyang sent back what it claimed were Megumi’s ashes. These turned out to be the ashes of a completely different expendable human being. The callous cruelty of it all almost defies description.

In 2006, George W. Bush met with Megumi’s mother, Sakie Yokota. This week, Mrs. Yokota will also be among the family members who will meet with President Trump. The abductees’ families haven’t forgotten their sense of betrayal by President Bush. Just last month, Megumi’s brother called for North Korea’s re-listing as a state sponsor of terrorism. Perhaps Donald Trump scheduled a meeting with Sakie Yokota to offer her an anguished explanation of regret for the State Department’s pedantic, nuanced, but sadly unassailable legal reasoning that it was wrong before 2007 and, no, sorry, the kidnapping of your little girl on the way home from badminton practice wasn’t terrorism at all. No, I didn’t think that, either. And if not, why would Trump meet with Mrs. Yokota at all?

Reason 4: Personality

I’ve never met Donald Trump, but my impression of him is that he doesn’t have a dramatis personae, he is a dramatis personae. What he loves most — what he feeds his ego on — is the adoration of crowds, which he buys with the currency of crowd-pleasing declarations, some of them taxpayer-funded. The Japan Times, citing Pottinger, reports that Trump is familiar with Megumi’s case and instructed him “to study North Korea’s human rights violations.” That’s a lot of material for one of the busiest men in Washington to cover. Trump could employ a (ahem) full-time Special Envoy to cover that brief.

No sentient human being can know what happened to Megumi Yokota and fail to be outraged, but in Trump’s case, we have good reason to predict how outrage will influence his decision. Early in Trump’s presidency, we learned that he experiences bouts of righteous, impulsive, paternal outrage. This may have goaded him into bombing Syria. We saw this tendency again in his outrage at the death of Otto Warmbier. Trump’s critics can make a case that he’s a terrible person, but this quirk of Trump’s personality makes it harder for them to make a convincing case that he’s an entirely terrible person.

The Coverage

The news coverage of Pyongyang’s potential SSOT re-listing isn’t as terrible than it was, say, three years ago. These days, one seldom sees “experts” claim that North Korea hasn’t sponsored any acts of terrorism, which is progress, given that several federal court decisions (among others) have found that evidence to be sufficient. Both The Guardian and Fox News accurately review the history of Pyongyang’s listing and rescission. Fox’s report appears to have drawn heavily on well-researched letters from members of Congress calling for Pyongyang’s re-listing.

This doesn’t mean that the coverage has been good. Most of it fails to even summarize the overwhelming and credible evidence implicating Pyongyang in multiple international assassination attempts, terrorist threats, arms sales to terrorist groups or cyber-terrorist threats. The Voice of America is nearly alone in doing so, but Claudia Rosett offers the most detailed recitation. AP writes that “[s]anctions from a terror designation are unlikely to inflict significant, additional economic punishment,” which is not a true statement. Nor is it quite accurate to say that re-listing would be “largely symbolic,” although Congress has moved this falsehood closer to the truth over the last two years by re-imposing some (but not all) of the SSOT sanctions through legislation.

It is true that other recent actions by Congress, the Treasury Department, and the Justice Department will have far greater effects on Pyongyang’s finances than an SSOT re-listing. That includes another sanctions bill that I expect Congress to pass this year, and which will contain the toughest secondary financial sanctions we’ve seen yet. It is also true that Pyongyang’s re-listing, which seems increasingly likely to occur next week, will have powerful symbolic consequences, including by reinforcing a message to every bank, government, and tin-pot tyrant on this planet that this time, at last, we mean it.

~   ~   ~

* Whether the abductions themselves were acts of terrorism is debatable, notwithstanding State’s pre-2007 position. North Korea’s original intent in abducting Japanese citizens was to use them as language instructors, which doesn’t meet the element that the act must be done with the intent to influence the conduct of a government or a civilian population. I could make a stronger argument, however, that the continued detention of the abductees — or their remains — became terrorism when, at least as early as 2002, Pyongyang tried to trade them for the normalization of relations with Japan, and most likely, a generous aid package. In 2014, Pyongyang again tried to use them (or their remains) as hostages to extract aid and the relaxation of bilateral sanctions.

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How Congress forced the State Department to confront Pyongyang’s crimes against humanity

Last Friday’s post was not the first time I’ve criticized the Trump administration for the inadequacy of its recognition that America shares common interests with the North Korean people in a less murderous North Korean government. I’ve also criticized the inadequacy of the administration’s public diplomacy advocating for those common interests. Long-time readers know I also criticized the last president and the president before that one. But shortly after I published Friday’s post, as if on cue, the State Department issued a new report detailing Pyongyang’s censorship and other abuses of the people. I couldn’t have been more pleased to be refuted. State’s report even drives home the essential point that Pyongyang’s pursuit of the means to terrorize us is inseparable from its acts to terrorize its own people. Someone gets it.

This report continues to shine a spotlight on the serious human rights abuses committed by the Government of North Korea, including those involving extrajudicial killings, forced labor, torture, prolonged arbitrary detention, as well as rape, forced abortions, and other sexual violence inside the country. Many of the country’s human rights abuses underwrite the regime’s weapons program, including forced labor in the form of mass mobilizations, re-education through labor camps, and overseas labor contracts. Thousands of North Koreans are sent abroad every year to work in slave-like conditions, earning revenue for the regime. [U.S. State Dep’t]

The report then names and shames individual top officials of the Military Security Command, the Ministry of the Peoples’ Security (MPS), the Ministry of Labor, and a construction company that employs forced labor.

And the report did, indeed, “shine a light” on those abuses. The Wall Street Journal covered the slave labor designations here. The Washington Post covered them here, and published a video report with an exclusive interview of North Korean slave laborers in Mongolia, showing the squalid quarters they’re packed into — living, eating, and shitting together like livestock.

Treasury then follows State’s bill of particulars by adding those officials to its list of specially designated nationals, which freezes any dollar-denominated assets they’ve hidden abroad.

OFAC identified the Military Security Command, also known as the Military Security Bureau or the Korean People’s Army Security Bureau, pursuant to E.O. 13722 as an agency, instrumentality, or controlled entity of the Government of North Korea or the Workers’ Party of Korea. OFAC also designated Jo Kyong-Chol, the Director of the Military Security Command, and Sin Yong Il, the Deputy Director of the Military Security Command, pursuant to E.O. 13687 for being officials of the Government of North Korea. According to the Department of State, the Military Security Command monitors military personnel for anti-regime activity and investigates political crimes in the military, and it has been described by the United Nations Commission of Inquiry as “the military’s own secret police.” [U.S. Treasury Dep’t]

This represents a strategically smart attack on the military’s immune system against rising — and increasingly violent — dissent among the enlisted ranks. If the MSC can’t pay its cadres, those cadres will have no choice but to neglect their duties and turn to bribery or smuggling to get by, internal discipline will continue to weaken, and Pyongyang will see that time is not on its side.

An even more welcome designation, coming just as the President prepares to leave for Beijing, was this one:

OFAC designated Ri Thae Chol, the Democratic People’s Republic of Korea (DPRK) First Vice Minister of the Ministry of People’s Security, Ku Sung Sop, Consul General in Shenyang, China, and Kim Min Chol, a diplomat at the North Korean Embassy in Vietnam, pursuant to E.O. 13687 for being officials of the Government of North Korea or the Workers’ Party of Korea. Ku Sung Sop and Kim Min Chol are also associated with the Ministry of State Security and, according to the State Department, have participated in the forced repatriation of North Korean asylum seekers. On July 6, 2016, OFAC designated the Ministry of State Security and the Ministry of People’s Security pursuant to E.O. 13722 for having engaged in, facilitated, or been responsible for an abuse or violation of human rights by the Government of North Korea or the Workers’ Party of Korea. [U.S. Treasury Dep’t]

No previous administration has ever sanctioned anyone for involvement in the inhumane and illegal repatriation of North Koreans from China to Kim Jong-un’s gulag. The administration deserves particular commendation for doing this, especially now.

~   ~   ~

Shortly after the announcement of these designations, Isaac Stone Fish criticized them as disingenuous efforts to attack Pyongyang’s proliferation by back-handed means. Isaac may be struggling, as many others are, to separate his judgment of a polarizing president’s policies from his judgment of the President himself. But in this case, the policy decisions were right, and they had overwhelming bipartisan support from the Congress that mandated them.

The same was true in July 2016, when the Obama administration, almost certainly with the knowledge of the President himself, designated Kim Jong-un for human rights abuses. Administration officials told me at the time that this decision was imminent regardless of Congress’s actions, but it did not happen until the coming of a statutory deadline in a law Congress passed by a veto-proof, nearly unanimous vote. Politically, President Obama had little choice but to sign the law. Title III and section 104(a) of that law, the North Korea Sanctions and Policy Enhancement Act, required the President to investigate North Korean officials responsible for human rights abuses, designate them, and impose a series of serious sanctions on them. Now it is the Trump administration that must comply.

That’s why we shouldn’t view the new human rights sanctions against North Korea through a partisan lens. I write as one with first-hand knowledge of exactly what motivated the Republican and Democratic staffers who drafted the legislation that mandated those sanctions. Their motives did not arise from partisan conflict, but from humanitarian compassion and institutional conflict. Congress writes forcing mechanisms into sanctions laws because it has lost confidence in the State Department to do what our elected representatives want it to do — to attach financial, diplomatic, and political consequences to Pyongyang’s crimes against humanity.

Chairman Ed Royce, whose views are shaped by his father’s presence at the liberation of Dachau, and who probably has more influence on North Korea policy than anyone in Washington today, has long spoken with sincere passion about human rights in North Korea. So have his many Korean-American constituents. Ranking Member Elliot Engel is the grandson of Jewish immigrants from the Ukraine. Engel must be conscious of the fact that his immigrant ancestors left behind communities that were later exterminated during the Holocaust. I know I’ve had similar thoughts about the communities my own ancestors left behind in Belarus and Hungary. Those thoughts have helped to motivate me to write here for more than a decade.

Royce was also one of the strongest critics of George W. Bush’s 2007 agreement to lift sanctions against Pyongyang, while sidelining human rights and effectively nullifying the North Korean Human Rights of 2004. In the short term, State protected its prerogative to do nothing with great skill and guile. But in the long term, the price State paid was a loss of confidence that still endures in the form of forcing mechanisms that divest it of that discretion. We learned some bitter lessons from the North Korean Human Rights Act. One of them was to write basic human rights conditions for the lifting of sanctions into the statute itself.

In 2004, it was easier legally, politically, and diplomatically to sideline human rights. Today, Congress is far less likely to overlook it, the U.N. continues to talk about it, and NGOs and journalists — with the obvious exception of the New York Times — are paying more attention to it. Pyongyang may protest at the mention of human rights as though it fears for its very survival, and some in the State Department may view Pyongyang’s objections as obstructions to their myopic goals, but this is not an issue that will go gently away.

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A top defector risked his life to tell us of Pyongyang’s plans & vulnerabilities. The media put its own words in his mouth.

Before I get to what Thae Yong-ho did not say at CSIS on Tuesday, and when he testified the House Foreign Affairs Committee yesterday, let’s start with what he did say. By now, you probably know that Thae was North Korea’s Deputy Ambassador to the U.K. before he defected in August 2016. This week, Thae made his first visit to the U.S. I could not have been more impressed or moved by his words. Do yourself a favor and bookmark this post. Then, go back this weekend and watch both events. Do this not only because Thae’s ideas are an essential, articulately formed North Korean perspective about the greatest national security crisis of our time from a man who obviously cares deeply about his nation and its people, or because he risked his life and the lives of his wife and children to deliver that perspective. Do it so that you can also see how badly the media distorted Thae’s remarks when it “reported” on them. Here is video of Thae’s remarks at CSIS:

And here is Thae’s written testimony, and video of his live testimony, at the House Foreign Affairs Committee.

In all the years I’ve been going to hearings of this Committee, I’ve never seen members or staff more interested or engaged than they were when Thae testified yesterday. It was literally standing room only for staff. Fresh-faced twenty-somethings and wizened Hill veterans alike filled the flanks of the hearing room, hanging on every word. Although I can’t do justice to Thae’s complete remarks in this post, I’ll attempt to summarize his main points from both events, in the approximate order of the length and priority Thae himself gave them.

– Thae spent most of his time calling for a much greater emphasis on information operations and subversion inside North Korea, contrasting the potential value and low cost of such operations against the high cost of our military forces in South Korea (or, God forbid, a war). He called for different information strategies for the Pyongyang elites and the poor everywhere else. He called for satellite TV broadcasts into North Korea and for smuggling in small SD cards (which the kids in Pyongyang call “nose cards” because they hide them inside their noses — yeah, ick).

– Thae said that broadcasts to North Korea should dispense with blunt polemics and epithets (of the kind that in my view, and apparently Thae’s, the South Korean right lazily resorts to). Instead, he called for informing North Koreans of the natural rights they ought to possess: to a living wage, and not to have their pretty daughters taken away to Pyongyang to work at elite-only hospitals or dance troupes, or to be used as modern-day palace courtesans.

– Thae’s most subversive statements questioned the family legitimacy of Kim Jong-un, noting that Kim Il-sung never accepted Kim Jong-un’s mother — whom Kim Jong-il expropriated from her husband — into the royal family. He pointed out that Kim Jong-un has never produced a photograph of himself with Kim Il-sung for this reason, and that few North Koreans even knew that Kim Jong-un had an older brother before Kim murdered him. Kim Jong-un’s parentage is now deemed so sensitive inside North Korea that before he took power, Kim Jong-un released a short film on his family history to a small group, which Kim’s advisors later urged him not to release. Everyone who saw it was later purged. Thae believes that to broadcast this film, which was recently still on YouTube, to North Korea would cause North Koreans to question Kim Jong-un’s claim to be the rightful heir to Kim Il-sung. (I don’t have time to get you a link at the moment; see Thae’s CSIS remarks.)

– Kim Jong-un was not properly prepared for his own succession. Not only was he not prominent in the royal court before 2009, he was hidden from view. In January 2009, none of the North Korean diplomats even knew who Kim Jong-un was. Then, one day, they were all told to start singing the song “Footsteps.” The fact that the botched currency “reform” came later that year causes Thae to infer that Kim Jong-un pushed for or supported it. Thae also thinks the failure of this initiative convinced Kim Jong-un to resist broader economic reforms, while avoiding large-scale crackdowns on the markets. Only later were the diplomats even told the name of their new master, and they still don’t know the year of his birth (by contrast, the year of Kim Il-sung’s birth is the year zero in the Juche calendar). Kim Jong-un was and is obsessively insecure about the degree of respect he commands among the hard-faced generals who surround him, which is why he occasionally shoots one for dozing off during a speech.

– Thae nearly brought himself — and me — to tears when, near the end of his remarks at CSIS, he spoke of his own decision to defect. Thae and his family were nearing the end of their time in London, and his high-school-age sons contemplated a life without Facebook or the internet. Intense discussions followed: Why can’t we have the internet in North Korea? Because if people knew the things you knew, they’d ask questions. Thae must have believed that this knowledge would endanger them all, and worse, that his sons would never forgive him for throwing away the chance to live freely.

I believed the best legacy I could leave for my sons was to give them the freedom that is so common to everyone in America. Had we not defected, I feared that someday my sons would have cursed me for forcing them back to North Korea. They were used to online gaming, Facebook messaging, email and internet news. I believed my sons would suffer a lot if they returned to the North Korean system. Indeed, how could any boys raised in the London education system and familiar with freedom of thought ever go back and re-acclimatize to life in North Korea? I could not confiscate freedom and enjoyment of liberty from them. I could not take back the happy smiles of my sons by bringing them back to North Korea. I could not force my sons to pretend to be loyal to Kim Jong Un and the North Korean system and to shout ‘long live the supreme leader Kim Jong Un!,’ ‘long live the socialist paradise of the DPRK’ – like I did all my life. [Testimony of Thae Yong-ho, House Foreign Affairs Committee, Nov. 1, 2017]

– North Korea’s military has standing orders to retaliate if they see evidence of “fire and fury” from a U.S. or South Korean strike. It’s unlikely that a first strike could stay “limited,” and likely that it would instead cause massive loss of life.

– Thae refuted the conventional wisdom that Kim Jong-un only wants nukes for self-defense, and broadly confirmed my theory that Kim Jong-un plans to leverage his nuclear arsenal to gradually, then suddenly, subjugate South Korea by forcing Seoul to weaken its defenses and negotiate U.S. forces out. About halfway into the hearing, Congressman William Keating (D, MA) asked Thae a question about stabilizing post-collapse North Korea. Thae apparently misunderstood Keating’s question and started talking about North Korea’s plans to “stabilize” the South. Keating tried to get Thae back on his question, but Chairman Royce stopped Keating because he — like me — was even more interested in what Thae was saying about Pyongyang’s intentions. Watch the whole exchange at 1:32.

– Specifically, Thae said that Pyongyang’s plan was inspired by the fall of South Vietnam and the recession that played a significant part in denying Saigon the capacity to fuel, arm, and maintain its big-on-paper army. Pyongyang views the withdrawal of U.S. forces and consequent capital flight as the cause of that recession. In fact, the recession was a global one. Several factors converged on South Vietnam, including the oil shock, the loss of U.S. development and military aid, and the fact that fewer American paychecks were being spent on Tu Do Street. But the general model isn’t far off from what I’ve been ranting about for the last several years, but for some variations. For example, I expect the silencing of men like Thae to be one of Pyongyang’s first objectives, and I’d imagined that Pyongyang would try to throw the South Korean economy into crisis with limited artillery attacks in areas with inflated real estate prices, or by turning the economically vital air and sea lanes near Incheon into conflict zones. Thae’s chronology of the fall of South Vietnam is a bit off, too: the U.S. had largely “Vietnamized” the war and drawn down its forces by 1972. The Paris Accords followed in 1973. By then, South Vietnam was experiencing a major recession. But as I sat behind Thae listening to him, I finally understood the “then suddenly” part of Pyongyang’s plan to bankrupt Seoul, at least as Pyongyang sees it.

– We must persuade the elites in Pyongyang that they will have a future in reunified Korea, or they will resist it. But because of Kim Jong-un’s recent purges, the elites doubt that they have much of a future under his rule.

– We should continue to expand sanctions. It’s too early to tell if they’re working.

– Kim Jong-un’s greatest fear is actually an internal uprising. Thae elaborates on this near the end of his remarks at CSIS, before the first audience member question.

– Oh, yeah, and we should also try to talk to Kim Jong-un before we start a nuclear war. Thae didn’t say we should offer a freeze, or a peace treaty, or an aid package, or an industrial park — none of that. Just this:

Some people do not believe in soft power, but only in military options. But it is necessary to reconsider whether we have tried all non-military options before we decide that military action against North Korea is all that is left. Before any military action is taken, I think it is necessary to meet Kim Jong Un at least once to understand his thinking and to try to convince him that he would be destroyed if he continues his current direction.

Not that it matters, but I don’t disagree with a word of it — if it’s even possible, and if we can find an appropriate format for it (Thae later conceded in his congressional testimony that it might not be). The point that I’m setting up here is that in the context of Thae’s entire written statement and his verbal remarks, this was a throw-away line without any specific proposals. It was clearly not what Thae emphasized, did not have the meaning it implied to readers, and couldn’t have comprised more than one percent of what Thae said, but it was all the media — and Yonhap in particular — heard.

As a lawyer, I’m not one for the indiscriminate bashing of professions. I’m a voracious consumer of journalism myself. I know stellar journalists and terrible ones. This week, the terrible ones showed up and reminded me why Americans have learned to distrust the media, and why Koreans should. They owed it to us to report on Thae Yong-ho’s important, perhaps historically determinative ideas. How sad for us all that they chose to report their own tired ideas instead. Yonhap’s headlines are the best example of this.

Top N.K. defector urges U.S. to meet with Kim

It is strictly true that Thae states at one point, early in his CSIS speech, that engagement should include engaging the regime. It is also true that “engage” is a deliberately vague word that can mean many things. Still, this headline is in no sense an accurate summation of Thae’s most important, second-most important, or third-most-important point. It is not an honest or complete reflection of Thae’s remarks in any sense.

Top N.K. defector urges maximum engagement with Pyongyang

This statement is even more misleading. If anything, Thae urged minimal engagement with a self-isolated heir who has never heard the word “no” before we go to war with him. Yonhap’s headlines, by contrast, evoke the dozens of tone-deaf, intellectually exhausted talk-to-North-Korea op-eds that think-tank nitwits inexplicably keep writing, no matter how ardently Pyongyang insists that it just isn’t interested. Thae didn’t call for any of that. He didn’t propose a freeze, protection payments, concessions, negotiations, a peace treaty, Kaesong 2.0, exchange programs to teach them how to launder money or do men’s synchronized swimming or fold paper cranes or write malicious code, or any of the other twaddle that Northwest D.C. academics and South Korean Peace Studies professors produce in bulk. He proposed a last-chance message to Kim Jong-un before we resort to war. He would “talk to North Korea” on a completely different level. For the record, I agree that it’s our obligation to try. If the alternative is war, then we should find some appropriate way (and that rules out a hamburger summit) to deliver a plain statement to Kim Jong-un that there are some interests we’re deadly serious about protecting.

But what isn’t in the coverage is even more damning: nothing about an insider’s confirmation of Pyongyang’s plausible-sounding plan to subjugate Seoul, his talk of the possibility of a “civilian uprising or his delicately implied advocacy that we encourage one, and much too little about Thae’s main emphasis — his call for informing the North Korean people about their natural rights as human beings, which is (if you’re familiar with Thae’s prior statements) clearly leading toward a “people’s revolution.” It couldn’t be more obvious that the reporters listened to the first five minutes, heard what they wanted to hear, typed out and emailed their stories, and ignored the far more important and profound ideas Thae risked his life to speak freely about. (And to think that people still doubt that Pyongyang could reach over the DMZ to censor the South Korean media!) What Thae said about Kim Jong-un’s family and political illegitimacy are certain to drive Pyongyang to lethal fury. He has made himself the Emmanuel Goldstein of North Korea and a prime candidate for assassination, and he certainly knows it. The least I can do for this brave man is give him the last word.

Q. What’s South Korea’s biggest drawback?

A. They’re too naive compared to North Koreans.

Q. What do you mean?

A. I sometimes get that impression when I talk with South Koreans. And I think to myself, ‘How will they face North Korea with a mentality like that?’

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North Korean assassins arrested in Beijing as Tillerson’s terror sponsor decision looms

If you haven’t read my last post on this week’s deadline for the Secretary of State to decide whether North Korea has repeatedly sponsored acts of international terrorism, you may want to start there. This post will be a combination of breaking news and supplement to that post. This morning, Bloomberg News, citing a report in the Joongang Ilbo, is reporting that yet again, North Korean agents have been caught while on their way to assassinate a dissident in exile. This time, the target was Kim Han-sol, the son of Kim Jong-nam, whom the North Korean government also assassinated.

Chinese police arrested several North Koreans dispatched to Beijing on suspicion of plotting to murder Mr Kim Jong Un’s 22-year-old nephew, South Korea’s JoongAng Ilbo newspaper reported.

Two of seven North Korean agents were arrested over the alleged plot to kill Mr Kim Han Sol, whose father Kim Jong Nam was assassinated in Malaysia earlier this year, the newspaper said, citing an unidentified person familiar with North Korean issues.

Some agents are being interrogated in special facilities on the outskirts of Beijing, the paper said, without elaborating on whether the other five were arrested. China’s Foreign Ministry did not immediately respond to a faxed request for comment. [Bloomberg, crediting the Straits Times]

Let’s review the elements of “international terrorism:” To qualify, the conduct must be —

1. an act of, an attempt at, or a threat of violence,

2. that is unlawful where it was or would have been committed,

3. involves the citizens or territory of more than one country,

4. is carried out by clandestine agents or subnational groups, and

5. is done with the apparent intent* to influence the conduct of a government or a civilian population.

Subject to confirmation of the original report, that would be check, check, check, check, and check. I recently wrote about Kim Han-sol’s rescue from the apparent fear of assassination by Pyongyang’s hit squads by Cheollima Civil Defense, which looks to be the first indigenous North Korean resistance organization, though it appears to operate only outside North Korea using non-violent methods, and does not yet appear to pose a serious threat to the regime’s internal control.

For a list of recent North Korean state-sponsored attempts to assassinate human rights activists and dissidents in exile, I’ll refer you to my report for HRNK. (You don’t have to read all 100 pages. The table of contents will direct you to the appropriate section.) This week, when Thae Yong-ho testifies — under extraordinarily tight security — before the House Foreign Affairs Committee, I hope the members will ask him about this latest report. I hope they’ll ask him how reports like this make him feel about his own safety and the safety of his family. I hope they’ll ask him just what message he thinks Kim Jong-un is trying to send by dispatching these terrorists, how he intends to respond, and whether he will remain silent. What message do you suppose Secretary Tillerson will send to Thae and other North Korean dissidents in exile if he, like his predecessors, refuses to call North Korea a state sponsor of terrorism?

So, to summarize, Secretary Tillerson should re-list North Korea because —

1. North Korea has repeatedly sponsored acts of international terrorism, and the American people have an interest in having a government that tells them the truth.

2. To begin restoring the State Department’s badly damaged credibility in Congress, which suffers every time State refuses to re-list Pyongyang. In last week’s post, I cited a number of op-eds and a letter from several members of the House of Representatives calling for Pyongyang’s re-listing. I neglected to link to this letter, signed by 12 U.S. senators of both parties.

3. To send a message of support to dissidents in exile like Kim Han-sol, Thae Yong-ho, Park Sang-hak, Lee Hyeon-seo, and others.

4. To send a message to Pyongyang that we are not afraid to attach, and are determined to attach, consequences to its crimes.

5. To further tighten existing sanctions. In addition to the potential civil liability and securities law consequences I wrote about last week, there’s another important point I forgot to mention. Re-designating Pyongyang would close a loophole in our sanctions by unlocking the stricter sanctions regulations in 31 C.F.R. Part 596. That regulation unambiguously requires an OFAC license for any dollar transactions or transactions by U.S. persons with a government that’s listed as a state sponsor of terrorism.

Why does that matter? Because the existing North Korea Sanctions Regulation (NKSR) at 31 C.F.R. 510, in my view, does not do that. It hasn’t been updated since 2011 — two statutes and three executive orders ago. Instead, the NKSR prohibits “[a]ll transactions prohibited pursuant to Executive Order 13466,” 13551 (which potentially applies to anyone involved in Pyongyang’s arms trafficking, proliferation, and money laundering, but in reality only applies to a few people who’ve been designated under this EO), 13570 (which requires a license for most imports from and exports to North Korea).

But to see how vague, circular, and Kafkaesque this regulation really is, you have to see what 13466 covers: any property that was already blocked until 2008, when President Bush took North Korea off the terror list and canceled Trading With the Enemy Act sanctions. That appears to include only property that was blocked in 2008. Maybe Treasury would disagree. Then again, maybe if it tried to sanction or prosecute anyone for violating the NKSR — and with a single exception, it never has — a competent defense attorney would argue that the regulation is ambiguous on its face, and that under the rule of lenity, the court should construe any ambiguity in favor of the accused. The courts will not give Chevron deference to an agency’s interpretation of a regulation for purposes of imposing a criminal punishment. Part 510 is so vague in its wording, circular in its reasoning, and outdated in its incorporation of authorities that not even I could tell you what it really means, and reporters and government officials routinely ask me what these laws and regulations mean. Why wouldn’t a banker or trading company official in Dandong be able to make the same argument?

If our government is serious about “maximum pressure,” some clarity would be useful.

The State Department worries about how Pyongyang would react to a re-listing. There will be tantrums, paroxysms, and provocations, of course. That’s de rigeur for Pyongyang, but provocations are inevitable, for one excuse or another, regardless of what Tillerson decides. What Tillerson can better control is whether he will also face a tantrum from Congress. Regardless of which convenient excuse it may seize on, Pyongyang engages in provocations to achieve political and diplomatic aims, and tests weapons to advance technical capabilities. Our objective should be to demonstrate to Pyongyang that attacks on our interests carry real consequences. An SSOT re-listing will carry both financial and symbolic consequences.

~   ~   ~

* Previously said “attempt.” Since corrected.

~   ~   ~

A reader’s question causes me to clarify a few points. First, Treasury’s FAQs say that financial transactions through the U.S. with North Korea require a license. Second, EO 13570, which is appended to the NKSR en toto, bans the export of “services” to North Korea, and the case law supports the position that clearing dollar transactions through the U.S. is an export of services. EO 13722, which is not appended to the most recent version of the NKSR published by the Government Printing Office online, also contains similar language.

But that’s far from intuitive or unambiguous enough for many of the persons who might consider dealing with North Korea. Even a brief review of what financial flows the Justice Department and the U.N. Panel of Experts have exposed in recent months shows that we haven’t made this nearly clear enough to the financial industry. Perceptions can become realities. EO 13810 made it much clearer, of course, but why not make the text of the regulation itself clear? Heck, we have four sets of sanctions regulations for Iran. You’d think having one set of clear sanctions regulations for North Korea isn’t too much to ask. The relative attraction of Part 596 is that at least it’s clear to everyone. Sorry for the wonky tangent.

~   ~   ~

Update, Nov. 4: The original Joongang Ilbo report is now available in English. It cites an unnamed source. The South Korean National Intelligence service officially says that it has no knowledge of the plot. Separately, it told KBS that Kim Jong-nam is safe in a third country and questioned the veracity of the Joongang Ilbo’s report on the basis that Kim Han-sol isn’t in China. The NIS may have sound reasons to doubt this anonymous report. It may also be under political pressure from Moon Jae-in’s cabinet to avoid implicating Pyongyang in its latest attempted act of terrorism. But the fact that Kim Han-sol isn’t in China — assuming that’s true — is probative of nothing. Regardless of where Han-sol is living, one naturally would expect the North Korean agents to transit through China. After all, most flights out of Pyongyang transit through there, many of its agents reside there, and so does most of its cash.

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Thae Yong-ho will testify at the House of Representatives next week

For those who have not read my previous posts about him, Thae was the number two diplomat at the North Korean embassy in London before he defected just over one year ago. Since his defection, Thae, who speaks excellent English, has shown his potential to be a powerful messenger to the world, and to the elites in Pyongyang, about the nature of the regime he once defended.

His testimony comes at a time when Kim Jong-un appears to have slowed a stream of high-level defections that had threatened to start a preference cascade and expose the regime’s entire overseas financial network. In recent months — perhaps coincidentally, since approximately the time Moon Jae-in took power in South Korea and appointed a former pro-North Korean, anti-American activist as his Chief of Staff — we’ve read about fewer high-profile defections and heard less from Thae himself. Whether that surge of defections has halted or merely gone unreported isn’t clear.

It also comes at a time when the U.S. government is also downplaying the importance of human rights in North Korea, sending messages that North Korean refugees are unwelcome, and merging the position of Special Envoy for Human Rights into a full-time part-time job instead of using it as a global pulpit for a more humane, tough-love policy.

The slowing of those defections also coincides with a campaign by the hard-left lawyers of Minbyun — a campaign largely ignored by the foreign press — to intimidate and expose refugees in the South. Pyongyang has also induced at least one high-profile defector into returning to Pyongyang and publicly renouncing the South, using means I can more easily guess based on past events than prove in this specific case. To gullible reporters, this campaign to publicize “re-defections” is evidence that North Koreans can’t adjust to life in a modern society. To more inquisitive journalists, and to the North Koreans themselves, the message will be the same one that Pyongyang’s assassins have delivered to refugees and Christian missionaries in China, to dissidents in South Korea, and at the airport terminal in Kuala Lumpur: “You can’t escape from us.” Perhaps Thae can better elucidate the reasons for this than I can.

Thae will testify at the House Foreign Affairs Committee, at Room 2172 of the Rayburn House Office Building, on November 1st at 10:00 a.m. Because the government of North Korea has repeatedly sponsored acts of international terrorism, security will be tight. The hearing will also be webcast live on the Committee’s website.

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Congress to Tillerson: Put North Korea back on the list of sponsors of terrorism

I won’t belabor the point of why North Korea should be on the list (well, maybe just a little). The better question is why, eight months, a nuclear test, two U.N. Security Council resolutions, and one public WMD-enabled assassination after Donald Trump’s inauguration, it isn’t already on that list. One growing line of speculation is that Tillerson, for all his unpopularity at Foggy Bottom, has gone native there. This sentiment comes from thoughtful and influential conservative members of Congress, not the sort who toss around words like “cuck” and “globalist.” And while voices of caution and experience are especially valuable in reckless times like these, the views that predominate within the State Department had become so hidebound as to contribute to the very reaction that put Donald Trump in the Oval Office to begin with.

Several factors have angered Congress into pushing for Pyongyang’s re-listing. One is the death of Otto Warmbier. Like a number of experienced congressional staffers I’ve talked to over the years, Wambier’s parents were surprised to learn that North Korea was not already on the list. I suspect that they’re even more surprised that it was not re-listed after their son’s death. I sympathize with their sentiment and agree that a re-listing would be a just result and good policy. I could offer a lawyer’s quibble that Wambier’s death may or may not have been murder or negligent homicide, but was almost certainly not an act of terrorism in a strictly legal sense, because neither clandestine agents nor subnational groups carried it out.

Kim Jong-un’s WMD testing and threats are arguably the biggest factor in Congress’s new push. But although the State Department is required to report on a state’s WMD proliferation in its annual terrorism report, I’ve argued that WMD testing isn’t legally definable as terrorism, either. Of course, this factor is a wash, considering that George W. Bush struck North Korea from the list because Kim Jong-il promised to dismantle his nuclear programs. The State Department certainly didn’t raise any pedantic legal objections to North Korea’s rescission then.

The result of this sentiment is that last week, 16 members of the House of Representatives — a fairly balanced group of Republicans and Democrats — wrote to Secretary Tillerson, calling for a re-listing. In an op-ed for the New York Times, Senator Ted Cruz adds his voice to those calls. Separately, the House has just passed, by a vote of 415 to 2, another North Korea sanctions law citing (among other factors) the risk of terrorist financing by North Korea in its findings section.

Again, I am asked: does this bill do anything we haven’t already done? Happily, yes. Although its prohibition on correspondent accounts is similar to the one added in section 312 of the KIMS Act, the new provision carries penalties that mirror those in section 206 of the IEEPA. (More concerning is that the new provision overlaps with the Treasury regulation at 31 CFR 1010.659, which already bans correspondent relationships with North Korean banks. Violations of that regulation are already punishable under 31 USC 5322, not including civil penalties that may also apply.) The section 5 reporting requirement on non-compliant banks will also add to the potential reputational harm that those banks could face. If shareholders and bond rating agencies see that a bank has been reported, it could cause them to weigh the risk of sanctions or boycotts in their financial decisions. The loss of assistance from international financial institutions for foreign governments that violate North Korea sanctions could be significant, as a number of developing UN member states — I mean you, Namibia, Malaysia, Egypt, Cambodia, Tanzania, and Angola — would not want to risk losing that assistance. Note also the fairly even partisan distribution in co-sponsorship for the new bill. Also, as a spoiler alert: this bill might just get even better when the Senate amends it.

Section 324 of the KIMS Act requires Secretary Tillerson to report back to Congress whether, in his view, North Korea has repeatedly sponsored acts of international terrorism, pursuant to section 6(j) of the Export Administration Act. His deadline is Tuesday, October 31st, and there is only one factually and legally correct answer to the question: yes. From a strictly legal perspective, Pyongyang’s assassination of Kim Jong-nam, the Sony cyberterror threats against the American homeland, its arming of Hamas and Hezbollah, and its dispatches of assassins to murder dissidents and human rights activists abroad all clearly qualify. Our allies in Japan, who want their abducted citizens back, want him to do it. The North Korean dissidents in exile who fear Kim Jong-un’s hit squads want him to do it. The Warmbier family wants him to do it. And Congress, which sees that immunizing His Porcine Majesty from the consequences of his crimes has only encouraged him to be more belligerent, clearly wants him to do it.

Civil servants often complain to me that they’re tired of being heaped with congressional mandates and reporting requirements while they’re trying to do their jobs. I sympathize. I would also predict that the mandates will continue to issue so long as the State Department disregards the collective views of a united Congress — and how often does one hear that phrase today? Eventually, the State Department will have to acknowledge that Congress isn’t going to let go of this issue. As long as State fails to respond to Congress’s will, it will continue to pay a price in time, energy, and credibility.

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CNN, UN Panel raise the pressure on Namibia over North Korea sanctions violations

Namibia (or as some refer to it locally, Nambia) has long been one of Africa’s worst violators of UN sanctions against North Korea, including by hosting an arms factory run by Mansudae Overseas Projects Group, in violation of an arms embargo that has been in effect since the adoption of UNSCR 1718 in 2006. It has also been a major consumer of North Korean slave labor (the export of which was only recently truncated by UNSCR 2375) and statues (also a recent ban, under UNSCR 2321). Mansudae itself was subsequently designated in UNSCR 2371. Because this commerce invariably caused dollars to change hands, this also meant that North Korean money launderers based in South Africa transited to and from Windhoek and made use of Namibian banks and a South African insurance company.

To add to the corruption of cherished institutions, I was even distressed to see some of Mansudae’s construction make a brief cameo in an episode of “The Grand Tour.”

The exposure of these illicit relationships began with the U.N. Panel of Experts’ report in March 2016. Because Namibia is functionally a one-party state that nonetheless has a vigorously free press, my own first post on its violations of the sanctions and potential consequences under U.S. law went viral in Namibia (see update). This was followed by some outstanding investigative reporting by Namibian journalist John Grobler for NK News, and sharp criticism in the Namibian press. The Namibian government initially pretended as if it was winding up those relationships, but in retrospect, it was probably just stalling for time until things settled down.

Now, CNN has added its own outstanding investigation to our information about North Korea and Namibia. Click the image to watch its video report.

One interesting detail in CNN’s report is that Namibia is a recipient of U.S. foreign assistance. Unfortunately for Namibia, under section 203 of the NKSPEA, as amended by section 313 of the KIMS Act, it now becomes ineligible for certain categories of U.S. assistance. Second and more acutely, now that there can be no doubt that its violations were knowing, continued violations subject the Namibian Defense Ministry to the mandatory asset freezes of NKSPEA section 104(a)(9).

The Namibian government clearly wants us to believe that it has terminated its relationships with North Korea. The speedy disappearance of the North Korean workers and its claims to CNN are unconvincing in this regard. They are also unconvincing to Hugh Griffiths of the U.N. Panel, who takes the extraordinary step of appearing in CNN’s broadcast to say so. U.N. sanctions don’t enforce themselves. It’s time for Namibia to come clean with the U.N. Panel, or to be made an example of.

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WSJ: Sun Sidong under FBI investigation

Previously, I’ve written about the C4ADS investigation that exposed the Sun Sidong network, and that network’s role in money laundering and arms smuggling for North Korea, most notably the seizure of the Jie Shun arms shipment in Egypt. Shortly after the release of C4ADS’s report, Treasury froze the assets of one of Sun’s companies, Dandong Zhicheng Metallic Materials, and the Justice Department filed a civil forfeiture suit against $4 million of its assets. Now, the Wall Street Journal reports that Sun is under FBI investigation:

The FBI has been looking into Mr. Sun’s U.S. connections to potentially illegal transactions with North Korea, according to one person familiar with the investigation. Another person said the FBI has inquired about a personal U.S. real estate deal involving Mr. Sun, and a third person said Mr. Sun was on the FBI’s radar. Neither Mr. Sun nor his businesses are officially sanctioned by the U.S. [WSJ]

That last statement isn’t entirely true.

One of Mr. Sun’s companies and a company owned by his sister, Sun Sihong, have each been listed as owners of a cargo ship, the Jie Shun, that the United Nations said was seized off Egypt’s coast last year and found to be hiding 30,000 rocket-propelled grenades under piles of iron ore.

At the time of the seizure, the ship was owned by Ms. Sun’s Hong Kong-based company, Vast Win Shipping, and it had been previously owned by Mr. Sun’s Hong Kong-based company, Jie Shun Shipping Co., according to the Equasis shipping database and Hong Kong corporate records. Ms. Sun declined to comment. [WSJ]

In related news, Vietnam recently expelled the local Vast Win representative, describing it as a subsidiary of North Korean shipper Ocean Maritime Management, which was designated by the UN and the US over a 2013 arms shipment, also in violation of the UN embargo. Vietnam also denied visas to 20 North Korean “IT workers.”

Anyway, so much for the theory (or guess) advanced by “experts” that North Korea’s Chinese enablers were shadowy, isolated, inscrutable, and sanctions-proof.

Mr. Sun has had assets in the U.S. as well—he sold a four-bedroom house in Great Neck, N.Y., in August for $1.1. million, according to real-estate records and people involved in the transaction.

By C4ADS’s reckoning, Sun’s network may have been Pyongyang’s since most important portal into the Chinese (and thus, the global) economy. I don’t expect most of these enablers to have physical assets in the U.S. like Sun had, but I do expect all of the major ones to require access to the dollar system.

Mr. Sun is linked in Chinese corporate records to several other firms registered in Hong Kong and mainland China. He also is listed in U.S. public records as the chief executive of Dongyuan Enterprise, a Flushing, N.Y.-based firm. That company successfully applied for a U.S. work visa last year for another Chinese national, its director, according to Labor Department records. Dongyuan Enterprise didn’t respond to repeated requests for comment.

Dongyuan Enterprise shipped 42,000 pounds of apples from South Korea to the U.S. in January, according to Descartes Datamyne, an international trade-data provider. It also shipped $35,000 worth of “used furniture” from one of Mr. Sun’s Chinese firms to the U.S., in March.

Mr. Sun’s U.S. business might allow him to do transactions around the world without any obvious ties to his China-based, North Korea-focused dealings, said C4ADS’s research chief, David Lynch. It could also provide him with the ability to register for business services within the U.S., including bank accounts to transfer funds internationally and overseas trade, Mr. Lynch said. [WSJ]

I don’t know anything more about this investigation against Sun than you do, but the conduct described here suggests an investigation for money laundering and violations of the International Emergency Economic Powers Act. I suppose we’ll also see a forfeiture action of some kind, listing the real property or proceeds of the sale as “proceeds” of criminal activity. If Sun Sidong runs back to China and the authorities there won’t extradite him, that may be the only way to impose any meaningful accountability on him.

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North Koreans fight a losing battle for the soil they till & the food they grow

With the greening of the trees each year in North Korea come annual predictions of famine due to weather conditions that, by some meteorological miracle, never cross the Demilitarized Zone and cause hunger in South Korea. This year, as with every year since 1999, the reality was not as bad as the dire predictions, but the situation is still bad: some of the Daily NK’s sources say that they’ve seen the bodies of people who (or so they believe) have starved to death. That wouldn’t be the first time that’s happened since the end of the Great Famine, and it’s also a sign that the causes of hunger in North Korea remain unchanged.

So unsurprisingly, yet again, Pyongyang isn’t feeding its people. But of all the obligations a state undertakes in its social contract with the governed, the one obligation you’d think Pyongyang would be able to deliver on would be security. But as this blog has documented, in North Korea, unfed soldiers roam the roads and rape women with impunity, and are sometimes ordered to pillage homes and farms by officers who aren’t feeding them. This year, Pyongyang will again loose its soldiers on the people.

Sources in North Korea are reporting that the authorities are preparing another push to collect rice for the armed forces this fall. However, in contrast to previous years, this time the order has been issued to the military itself. Ordinary citizens have in the past been assigned the task of gathering these provisions, but the responsibility this year has fallen on military conscripts.

“Military leadership handed down orders last month detailing the quotas required to be collected by the local 12th Corp. These orders include amounts covering every division and brigade in the entire 12th Corp, which must be collected and presented to division leaders in the coming season,” a source in Ryanggang Province informed Daily NK on October 18.

“It is quite absurd that military personnel have to collect these provisions themselves. And such orders were handed down in all provinces, covering all military divisions across the country.”

The source says that soldiers are complaining about the plan, especially given the government’s failure to distribute goods, even to the military in recent times.

“Is there any other country on Earth that does not feed its own military? I thought the army was supposed to be defending our country, but instead they’re turning us into an army of farmers,” one serviceman told the source. [Daily NK]

In the markets, the best thing that has happened to the North Korean people since the Japanese occupation army left, organized crime (often, in alliance with corrupt officials) is starting to monopolize trade and control prices. Now, with most North Koreans expecting a bad harvest, private sotoji farmers are taking the security of their crops into their own hands, unarmed.

Many farmers take security over their fields seriously even in good harvest seasons, but with this year’s poor yields, people are staying up all night to keep watch, as even a small amount lost to theft can leave a whole family in dire straits. The farmers and locals tend to watch the fields themselves. Although police officers also keep watch in some places, they are widely criticized as being so incompetent that “10 of them could not catch a single thief,” she said.

According to the source, the police are widely distrusted because they often only demand bribes from thieves that are caught in the act, which does little to address the problem. However, because citizens are patrolling the fields and catching thieves themselves, it has also been common for fights and other incidents to break out during confrontations.

Another source in Jagang Province spoke of a specific incident where “a fight broke out after citizens in the village of Wiwon caught a thief in the fields. However, after many locals began angrily condemning the thief for stealing their food, they also found themselves asking whether they would do the same in such circumstances.” [Daily NK]

Citizens, including the farmers who feed everyone else — and who will become increasingly important to the survival of the population as sanctions invariably have unintended impacts on non-sanctioned trade — can’t really look to the security forces for security: the security forces shake them down for bribes and intermittently enforce orders to clear, confiscate, and replant the plots they farm. Indeed, the abusive and corrupt security forces themselves are the single greatest threat to the security of the people. And consequently, the converse is increasingly true, as it justly should be in this unjust world.

The North Korean authorities have yet to identify any leads in the murder of a Preliminary Examination Officer outside his own home in Sunchon, South Pyongan Province. The officer worked for the Ministry of People’s Security’s Inspection Department.

A source in the area notified Daily NK on October 17 that the “authorities believe the state inspector was killed out of revenge, though they have yet to find the killer.”

According to the source, the 32-year-old agent was ambushed after returning home from work outside an apartment block in the Kangpo neighborhood of Sunchon. As the man parked his motorbike, he was struck in the back of the head and later died. The authorities are apparently wary of additional attacks targeting law enforcement officials.

MPS personnel responding to the scene of the crime immediately notified their superiors when they discovered that the victim was an MPS investigator. Attention soon turned to the likelihood that it was a revenge killing, carried out as payback for misconduct by the officer.

“This MPS officer was the most sadistic and brutal of them all. Anyone caught by him was usually beaten half to death, paralyzed, sent to a correctional labor camp, and almost always died within a few years after intense suffering,” the source said. [Daily NK]

Surely events like this must enter into the minds of the security forces’ officers as they go about their brutal work. More events like this would cause more of them to think twice — specifically about actions that impede the supply and distribution of food.

Lately, I’ve taken to citing the argument of Nobel prize-winning economist Angus Deaton, that foreign aid can have the effect of reinforcing the very state behavior that causes the hunger aid is meant to address. Marcus Noland is fond of citing the work of the Nobel prize-winning economist Amartya Sen, who argues that most modern famines are not the consequence of inadequate supply, but of grossly unequal distribution of that supply as a consequence of unequal entitlements. North Korea turns out to be a good case study for both of these arguments. Look no further than the U.N. aid agenciessilence — even falsehoods — attributing hunger to everything except Pyongyang’s gross waste of resources, and its onagain, offagain suppression of private farming and trade. No wonder hunger still stalks the people of North Korea despite decades of U.N. aid.

This blog has long presented evidence that North Korea’s government has more than adequate resources to feed its people with just a fraction of what it spends on weapons and luxuries for its morbidly obese tyrant. The reasons for hunger in North Korea are not material, they are political. And if the world won’t confront those political causes, the North Korean people must. To shift their country’s grossly unequal balance of entitlements away from the state, they will first have to confront its monopoly on violence. With a futility borne of desperation, they are. But without the means to communicate and arms with which to resist, they will do no more than shift that balance minimally at its margins.

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Computer crime, bank fraud & money laundering: A preview of Kim Jong-un’s indictment

The Wall Street Journal is reporting that hackers employed by the government of North Korea have been implicated in yet another international bank fraud scheme using hacked SWIFT software. This time, the victim is a bank in Taiwan, and the take was $60 million, all of it laundered through accounts in Cambodia, Sri Lanka, and the United States.

In a blog post Tuesday, cybersecurity researchers at U.K. defense company BAE Systems PLC also implicated Lazarus in the Taiwanese theft, saying that tools used in the attack on the Far Eastern International Bank include those used by Lazarus in the past.

“The attack this month on Taiwanese Far Eastern International Bank has some of the hallmarks of the Lazarus group,” BAE researchers wrote.

The suspected ties to Lazarus suggest the group’s continued focus on financial cybercrimes. In addition to the Bangladesh Bank theft, the BAE researchers said the group has been targeting bitcoin and is behind attacks on banks in Mexico and Poland.

Security researchers suspect the group has links to North Korea. U.S. authorities have said that one hack also linked to Lazarus—the 2014 Sony Pictures hack—originated in North Korea. The country has denied being behind the attack.

The BAE researchers said they found further evidence of the group’s North Korea links, saying they observed infrastructure in North Korea controlling the malware used in a previous Lazarus-linked attack. Representatives at North Korea’s Beijing embassy and Hong Kong consulate weren’t immediately available for comment. [WSJ, Dan Strumpf]

Sri Lankan authorities have arrested two suspects, one of whom was trying to withdraw $520,000 (which is more than my ATM ordinarily allows me to take out before a trip to Home Depot for plywood and router bits).

That report closely follows this New York Times story on the recent history of North Korea’s cyber crimes, including the Bangladesh Bank fraud, where the North Koreans got away with $81 million, the 2013 Dark Seoul cyberattacks, the 2014 Sony cyberattack and cyberterrorist attack against the U.S. homeland (about which the United States of America did approximately diddly squat), and (consequently) this year’s the WannaCry ransomware attacks.

Earlier this year, I wrote about reports that high officials in U.S. intelligence and law enforcement agencies had found evidence implicating North Korea in recent cyberattacks. Clearly, the FBI is investigating this course of criminal conduct, which is something I presume the FBI wouldn’t do without some prospect of a prosecution. We are speaking, after all, of conduct that is highly dangerous, ongoing, and undeterred. That gives the U.S. government a powerful incentive to charge those who conspired to commit these crimes.

Which brings us to this question: Is there any real doubt as to who the real person of interest is here? Of course, the feds would need at least some proof to get a grand jury to indict. The opacity of the royal court in Pyongyang presents some obvious challenges to this, but just over a decade ago, when prosecutors very nearly indicted His Porcine Majesty’s father for counterfeiting — before George W. Bush stopped them for political reasons — they concluded that those challenges were surmountable.

“The most difficult thing is connecting evidence of criminality to a state’s leader, because there is so much deniability built in. But there isn’t a whole lot of activity in North Korea that isn’t sanctioned by the leadership, and the evidence we had already built up was very good. These cases were very doable.” The criminal cases, says Asher, were based on information from undercover agents, informants, and a vast surveillance operation. [Vanity Fair, David Rose]

If you’ve read the links above or my posts on the Sony cyber attacks, it’s apparent that our signals intelligence is part of the case that implicates state-sponsored North Korean hackers. The Justice Department has cited the testimony of defectors in recent civil forfeiture cases against North Korean funds, and at least two defectors with inside knowledge of North Korean cyber operations have spoken publicly.

But even assuming there are no defectors who testify to His Porcine Majesty’s complicity, and that the government offers no signals intelligence implicating him (which it might not want to do to protect sources and methods) the feds could still do what the plaintiffs did in their lawsuits against North Korea for the state sponsorship of terrorism — they could call experts to testify about North Korea’s system of government, command systems, and the certainty that this conspiracy must have been approved at the very top.

Then, what would the feds most likely charge? Prosecutors’ opinions inevitably vary, but here are my best guesses. I’ve linked the relevant sections in the Criminal Code so that you can read the elements yourself.

  • Count I: Conspiracy. This one is pretty much a given in most federal prosecutions now. Note that cases interpreting the federal conspiracy statute define “defraud the United States” broadly.
  • Count II: Bank Fraud. Which should be self-explanatory.
  • Count IV: Violations of the Computer Fraud & Abuse Act. This is the statute the feds use to charge computer hacking offenses.
  • Count III: Money Laundering. In plain English, the transfer, use, or spending of crime-tainted funds with intent to carry out, facilitate, or profit from one of the predicate offenses listed in subsection (c) of the money laundering statute. This is an important count, because — let’s face it — it’s not like we’re ever going to arrest Kim Jong-un short of his overthrow. The only way to hold people beyond our personal jurisdiction accountable is to shame them and seize and forfeit their funds. The indictment shames; the forfeiture count takes the money away.
  • Count V: Criminal Forfeiture. This is how we take money away from people after they’re convicted (but hold that thought for a moment).

Assuming the feds do indict, would His Porcine Majesty, a sitting head of state, be immune from prosecution in a U.S. court? I want to thank one of my Twitter followers, Shin Chang-hoon, for pointing me to this interesting discussion of that potential obstacle in the broader, global context. In the U.S. federal courts, however, there is at least one precedent for the feds successfully indicting, prosecuting, and convicting a sitting, de facto head of state. That would be Manuel Antonio Noriega, the former dictator of Panama, whom we arrested after the 1989 U.S. invasion of that country. Noriega argued his indictment on drug charges must be dismissed because he was immune from prosecution. The U.S. Court of Appeals for the 11th Circuit rejected Noriega’s argument on the grounds that the U.S. had not recognized him as the lawful head of state, and because (and this is admittedly circular) by invading Panama, and by arresting and extraditing him, the U.S. showed that it did not intend to immunize him. You can read the court’s decision here.

Yes, the potential for such prosecutions to get out of hand is obvious, but it’s hard to believe that a federal court of appeals would immunize a head of state from prosecution for straight-up international bank fraud. The key distinction is whether the prosecuted conduct consists of the acts of a head of state or “for private or criminal acts.”

Having navigated past one problem, we encounter a more difficult one: the requirement to have a defendant present for the arraignment before a prosecution can go forward. (One of my least pleasant trials was a case where I defended a man who ran away after his arraignment and before trial. Much like Clint Eastwood did not do in 2012, only more effectively, I had to defend an empty chair. The chair got three years — a good result, given the charges and the evidence.)

So, does this bring us to an Emily Litella moment?

Not quite. Admittedly, my experience in federal civilian criminal litigation is limited, but as I read the Federal Rules of Criminal Procedure and the U.S. Attorneys’ Manual, you don’t need to have custody of a defendant to indict. The statute of limitations (typically, five years) stops running when the feds indict. Then, the indictment sits on a shelf until arraignment, which starts the ticking of the defendant’s speedy trial clock. But why do that? Again, past history is instructive.

The final stage, which David Asher says President Bush had been fully briefed about, would have been the unsealing of criminal indictments. “We could have gone after the foreign personal bank accounts of the leadership because we could prove they were kingpins,” Asher says. “We were going to indict the ultimate perpetrators of a global criminal network.” “The world wanted evidence that North Korea is a criminal state, not a lot of hoo-ha,” says Suzanne Hayden, a former senior prosecutor at the Department of Justice who ran its part of the Illicit Activities Initiative. “The criminal cases would have provided the evidence. It would have been in the indictments. As with any money-laundering investigation, we would have identified the players and traced them back, from Macao to those who were behind it in North Korea.” [Vanity Fair, David Rose]

A better reason might be to charge and prosecute the third-country nationals and businesses that provide the North Korean hackers with the havens and support they require.

The feds would also have the alternative of filing a civil forfeiture case under 18 U.S.C. 981, alleging all of the same counts in a civil, in rem suit against funds that belong to Kim Jong-un, on the theory that the funds are proceeds of that conduct, or are facilitating property (such as property co-mingled with the stolen funds to conceal their origin and ownership). The advantage of that strategy is that the feds would only have to prove the forfeitability of the property by a preponderance of the evidence, and the feds would win the suit by default unless Kim Jong-un enters an appearance in federal court and intervenes in the proceeding.

In 2005, President Bush decided not to go forward with the prosecution of Kim Jong-il because it was afraid that he’d walk out of six-party talks. But of course, North Korea did walk about of six-party talks in 2008, hasn’t returned since then, and is absolutely adamant in its refusal to negotiate either a freeze or denuclearization, that concern isn’t present.

Of all the dumb things smart people tend to write about North Korea, the dumbest of them all may be the idea that what North Korea needs most is for us to teach it how to do capitalism. Over the last week, I’ve read reports of how North Korea and its officials make money through drug trafficking, racetrack gambling, tourism, and ivory and rhino horn smuggling. It runs one of the world’s more sophisticated money laundering operations using front and shell companies in Hong Kong. The last thing Pyongyang needs us for is to teach it how to make money. To Pyongyang, capitalism is not a path to reform, but a path to the enslavement of all Koreans. What Pyongyang needs to learn is an object lesson in the rule of law — that at last, its crimes will have consequences, even if some of those consequences are symbolic. And for a system of government built on symbols and myths, symbolic consequences can be some of the most powerful ones.

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On North Korea sanctions, evidence of an inflection point

As I’ve mentioned previously, this has been a busy month for me, and a difficult one for keeping up with the many developments in North Korea sanctions enforcement. Over the last months, I’ve been keeping a tally of how those efforts are taking shape. The accumulating evidence now gives reason for guarded optimism that at last, the sanctions are starting to show significant effects.

Financial. Treasury Undersecretary Sigal Mandelker sent the right message to the financial industry in her recent testimony before the Senate Banking Committee:

Banks worldwide should take note that we are acting to protect the U.S. financial system from North Korean illicit financial activity.  The new authorities granted to the Treasury Department by the Executive order issued last week give us even greater ability and leverage to target foreign banks that support the Kim regime.  We now have the ability to suspend correspondent account access to, or designate and freeze the assets of, any foreign financial institution that knowingly conducts significant transactions in connection with any trade with North Korea or on behalf of any North Korea-related designated person.  These new financial sanctions will be forward looking, and will apply to behavior that occurs following the date of the Executive order.  These types of sanctions were used to great effect in the Iran context, and present a stark choice to banks around the world.

Treasury took an important step late last month when it designated most of the remaining active North Korean banks (see the list in this post for reference). The designation of North Korea’s Central Bank, which issues its currency and has historically sold gold overseas, could be the most significant. But the designation of 26 individual North Korean bankers, trade representatives, and diplomats (read: money launderers and arms dealers) also matters, because banks everywhere now have a legal duty to close and/or freeze their accounts. Targeting these operatives in larger numbers makes it harder for the regime to react and shift funds to other operatives. The regime probably can’t replace these operatives and their valuable contacts faster than we’re designating them now.

Financial sanctions are also having second-order effects. The decision by China National Petroleum to stop selling fuel to North Korea reflects a concern that Pyongyang can’t pay for it, although Beijing has historically supplied fuel to Pyongyang through a cross-border pipeline, free of charge, and without reporting it in its official trade statistics.  Last month, I noted that banks in China were freezing or closing North Koreans’ accounts.

Similarly, the North Korean coal industry, which has been sanctioned by the U.N., and (perhaps more significantly) targeted by the U.S. Treasury and Justice departments for asset freezes, seizure warrants, and civil forfeiture suits, is clearly suffering, according to Daily NK interviews of citizens living near the mines.

In late September, China reportedly ordered joint ventures with North Korea to shut down. Since then, other reports have suggested that North Korean workers are returning from China in large numbers — despite the fact that U.N. sanctions allow those workers to complete their three-year contracts — and multiple reports suggest that Chinese businesses that relied on the cross-border trade have been hurt or idled. In Russia, too, North Korean money launderers are having trouble remitting funds.

Although most press reports have assumed that these developments were the result of Beijing ordering Chinese firms to comply with U.N. sanctions, I’ve theorized that the actual reason for these changes may be, as one Chinese trader put it, that their North Korean partnerscan’t pay us.” That is most likely a consequence of Chinese banks’ fear of losing their access to the dollar system. Chinese firms may also be concerned that products made with North Korean labor or materials will lose their access to U.S. markets, or that millions in profits may be frozen in correspondent accounts.

Historically, actions by Beijing have tended to generate optimistic headlines until, a few weeks later, we’d learn that its actions weren’t being enforced. It’s too early to conclude that this trend will continue, but it bears watching.

Designations. And yet, there are still some surprising oversights. It is objectively difficult to understand why, months after the U.N. and C4ADS exposed them, the feds still haven’t frozen and forfeited the assets of large North Korean arms-trading fronts like Glocom and Vast Win Trading, unless we believe that Malaysia, Singapore, and China are going to do that for us. Belatedly, Treasury has also designated one of the Chinese companies that sold North Korea the chassis that it converted into transporter-erector-launchers for its missiles.

Lawmakers like Senator Cory Gardner (R, CO) and Ed Markey (D, MA) recently introduced new legislation to toughen the sanctions even more, and to emphasize human rights — a key component that has been missing from our diplomatic efforts to build a global coalition. It’s good that they’re keeping the pressure on, and offering this useful course correction. Legislation is one way to do that, but another is to demand regular classified briefings, which means that congressional committee staffs need more staffers with the right clearance levels.

Diplomatic. A month ago, I aggregated the evidence that State’s efforts to isolate North Korea diplomatically — efforts that only began in the final weeks of the Obama administration, and that began to increase last spring — were starting to pay off. Spain, Mexico, Italy, Kuwait, and Peru all cut diplomatic relations with North Korea. Poland, the Philippines, Malaysia, India, the Sudan, Taiwan, Vietnam, and Egypt all announced that they would reduce trade relations with North Korea, or expel North Korean money launderers, slave laborers, or arms dealers.

Since the publication of that post, Portugal and the United Arab Emirates have also announced that they would sever relations with Pyongyang. The UAE also joins Kuwait in ending its acceptance of North Korean workers. Treasury’s removal of a number of Sudan designations suggests that the administration believes that Khartoum has also stopped buying North Korean weapons. Malaysia has banned travel to North Korea, and will not be replacing its withdrawn ambassador, in the wake of a brief hostage crisis early this year following the assassination of Kim Jong-nam. The EU has imposed new sanctions that ban oil and gas exports, textile imports, joint ventures and investments, and new work authorizations for North Korean laborers.

Finally, sanctions are, if slowly, taking their toll on the North Korean embassies that remain to sell its weapons and launder its money, by requiring national governments to freeze payments and shut down the businesses the embassies use to fund their salaries and operations. These developments represent not just a loss of multiple revenue sources, but also nodes within a global, interdependent money-laundering network.

Domestic. As state industries have increasingly struggled to meet their quotas, the regime has turned increasingly to the taxation of domestic industry, including small businesses, for its revenue. A new yuan-denominated tax on license plates suggests that even the state may be losing confidence in the North Korean won. That’s not entirely a bad thing, as one consequence of it is that more people gain a greater degree of economic independence from the state, people have more access to the things they need, there are more opportunities for corruption to siphon off more of this revenue, and the tax collection process puts more citizens into conflict with the state and its corrupt petty despots.

Personnel changes within the regime suggest that it may be under financial strain. An unconfirmed South Korean report says that Pyongyang may have replaced the head of Bureau 39. And whereas until recently, people associated with Jang Song-thaek were under suspicion, some are now being promoted. Jang’s network of operatives in China was Pyongyang’s financial root system. Their restoration might — I stress, might — mean that in its financial desperation, the regime is now (at least, temporarily) prioritizing money over loyalty.

Domestically, the regime is increasingly coming into conflict with its people as the regime squeezes them to make up for the loss of revenue, but the regime can only squeeze them so much: first, there is hardly anything left to steal from them; and second, as with the Great Confiscation of 2009, the regime knows that it has historically been economic conflicts with the state that have caused North Koreans to resist it. In the last six months, prices of fuel and other commodities have risen. South Korea’s National Intelligence Service believes that North Koreans are already disgruntled over the economic effects of sanctions, and that the regime is “conducting a large-scale campaign” to suppress that disgruntlement. None of these developments is irreversible, but for the first time since 2007, there are clear signs that sanctions are starting to take a toll on Pyongyang’s access to the global economy.

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How the U.S. fishing industry can do its part to disarm Kim Jong-un

Long-time readers know that I’ve had many uncomplimentary things to say about the Associated Press’s North Korea coverage. Its still-undisclosed agreements with the North Korean government to open a bureau in Pyongyang sacrificed journalistic ethics for a dubious dividend of access. Since opening its bureau in 2012, AP and its state-supplied North Korean stringers have reported a great deal of North Korean government propaganda and almost no actual news, while ignoring major news stories (to include a hotel fire, a building collapse, the taking of at least a dozen foreign hostages, and multiple purge rumors).

Careful readers also know that I’ve singled out AP reporter Tim Sullivan as a bright spot in this dreary picture. Like most foreign reporters, Sullivan, who is not a part of AP’s Pyongyang bureau, does his best reporting from outside North Korea. The latest example is his outstanding investigative reporting, along with Seoul-based Hyung-Jin Kim and half a dozen others, finding evidence that Chinese fisheries are smuggling seafood packed by North Korean laborers into U.S. markets.

Through dozens of interviews, observation, trade records and other public and confidential documents, AP identified three seafood processors that employ North Koreans and export to the U.S.: Joint venture Hunchun Dongyang Seafood Industry & Trade Co. Ltd. & Hunchun Pagoda Industry Co. Ltd. distributed globally by Ocean One Enterprise; Yantai Dachen Hunchun Seafood Products, and Yanbian Shenghai Industry & Trade Co. Ltd.

They’re getting their seafood from China, Russia and, in some cases like snow crab, Alaska. Although AP saw North Korean workers at Hunchun Dongyang, manager Zhu Qizhen said they don’t hire North Korean workers any more and refused to give details. The other Chinese companies didn’t respond to repeated requests for comment.

Shipping records seen by the AP show more than 100 cargo containers of seafood, more than 2,000 tons, were sent to the U.S. and Canada this year from the factories where North Koreans were working in China.

Packages of snow crab, salmon fillets, squid rings and more were imported by American distributors, including Sea-Trek Enterprises in Rhode Island, and The Fishin’ Company in Pennsylvania. Sea-Trek exports seafood to Europe, Australia, Asia, Central America and the Caribbean. The Fishin’ Company supplies retailers and food service companies, as well as supermarkets.

American importers and retailers are already cutting their ties with these Chinese suppliers, which may be one reason why Chinese factories are sending their North Korean laborers home, despite the fact that new U.N. sanctions (see paragraph 17) allow the workers to serve out their (typically, three-year) contracts.

Often the seafood arrives in generic packaging, but some was already branded in China with familiar names like Walmart or Sea Queen, a seafood brand sold exclusively at ALDI supermarkets, which has 1,600 stores across 35 states. There’s no way to say where a particular package ends up, nor what percentage of the factories’ products wind up in the U.S.

Walmart spokeswoman Marilee McInnis said company officials learned in an audit a year ago that there were potential labor problems at a Hunchun factory, and that they had banned their suppliers, including The Fishin’ Company, from getting seafood processed there. She said The Fishin’ Company had “responded constructively” but did not specify how.

Some U.S. brands and companies had indirect ties to the North Korean laborers in Hunchun, including Chicken of the Sea, owned by Thai Union. Trade records show shipments came from a sister company of the Hunchun factory in another part of China, where Thai Union spokeswoman Whitney Small says labor standards are being met and the employees are all Chinese. Small said the sister companies should not be penalized.

Shipments also went to two Canadian importers, Morgan Foods and Alliance Seafood, which did not respond to requests for comment.

Boxes at the factories had markings from several major German supermarket chains and brands — All-Fish distributors, REWE and Penny grocers and Icewind brand. REWE Group, which also owns the Penny chain, said that they used to do business with Hunchun Dongyang but the contract has expired. All the companies that responded said their suppliers were forbidden to use forced labor. [AP]

The report is long and detailed, and well worth reading in full. The moral and national security hazards should be clear enough, so I’ll devote most of this post to the legal hazards for the companies involved in this trade. Let’s start with this one:

At a time when North Korea faces sanctions on many exports, the government is sending tens of thousands of workers worldwide, bringing in revenue estimated at anywhere from $200 million to $500 million a year. That could account for a sizable portion of North Korea’s nuclear weapons and missile programs, which South Korea says have cost more than $1 billion. [AP]

Of course, there is no direct evidence that the world’s most financially opaque regime is using its slave labor revenues to fund its nuclear program. As with the Kaesong Industrial Complex, however, the importer’s duty under UNSCR 1718, paragraph 8(d), is to know where its money goes, and to “ensure” that Pyongyang is not using it for nukes. Ignorance is no defense, and cash is fungible. A dollar in Pyongyang’s bank accounts can just as well be used for centrifuge parts, barbed wire, cognac, or cell phone trackers.

Second, the U.N. Security Council has recently banned North Korean exports of seafood, and the KIMS Act authorizes sanctions against transactions in North Korean food exports or fishing rights. Transactions in North Korean forced labor are subject to mandatory sanctions under the NKSPEA, as “severe human rights abuses.” By exposing this latest example of China violating U.N. sanctions, the legal and diplomatic pressure on Beijing to enforce the sanctions it voted for increases.

Third, although these authorities are relatively recent, smuggling any North Korean products into the United States has long been a felony. Executive Order 13570, signed by President Obama in 2011, banned all imports of products made with North Korean goods, services, or technology. Because the authority for this executive order is the International Emergency Economic Powers Act, violations of this order are punishable by 20 years in prison, a $1 million fine, a $250,000 civil penalty, and even the forfeiture of any property “involved in” that transaction. The exporter also faces the risk of designation by the Treasury Department, which would freeze any assets that enter or transit the United States.

Fourth, Chinese fisheries that use North Korean laborers may face additional sanctions under the Trafficking Victims Protection Act.

The workers wake up each morning on metal bunk beds in fluorescent-lit Chinese dormitories, North Koreans outsourced by their government to process seafood that ends up in American stores and homes.

Privacy is forbidden. They cannot leave their compounds without permission. They must take the few steps to the factories in pairs or groups, with North Korean minders ensuring no one strays. They have no access to telephones or email. And they are paid a fraction of their salaries, while the rest — as much as 70 percent — is taken by North Korea’s government.

This use of North Korean labor also puts a powerful sanction in the hands of the U.S. fishing industry. Recall that in this post, I wrote about the similar problem of Chinese textile factories smuggling clothing made by North Korean workers, or using North Korean materials, into the United States, and noted how U.S. textile manufacturers have taken advantage of an obscure Customs regulation to bar Uzbek cotton* exports from entering U.S. commerce if those products may be made by convict or forced labor.

It’s unknown what conditions are like in all factories in the region, but AP reporters saw North Koreans living and working in several of the Hunchun facilities under the watchful eye of their overseers. The workers are not allowed to speak to reporters. However, the AP identified them as North Korean in numerous ways: the portraits of North Korea’s late leaders they have in their rooms, their distinctive accents, interviews with multiple Hunchun businesspeople. The AP also reviewed North Korean laborer documents, including copies of a North Korean passport, a Chinese work permit and a contract with a Hunchun company.

When a reporter approached a group of North Koreans — women in tight, bright polyester clothes preparing their food at a Hunchun garment factory — one confirmed that she and some others were from Pyongyang, the North Korean capital. Then a minder arrived, ordering the workers to be silent: “Don’t talk to him!” [AP]

Under section 321 of the KIMS Act, products made with North Korean labor now face a rebuttable presumption that they are made with forced labor, which means that Chinese seafood exports made with North Korean labor (whether inside or outside North Korea) could end up spoiling in warehouses or running up storage charges while the petition process runs its course. That, in turn, will incentivize bankers and insurers to do due diligence to ensure that Chinese exporters cleanse their supply chains of North Korean labor.

The reputational cost of using North Korea labor or materials may be just as effective as any legal sanction.

Every Western company involved that responded to AP’s requests for comment said forced labor and potential support for North Korea’s weapons program were unacceptable in their supply chains. Many said they were going to investigate, and some said they had already cut off ties with suppliers.

John Connelly, president of the National Fisheries Institute, the largest seafood trade association in the U.S., said his group was urging all of its companies to immediately re-examine their supply chains “to ensure that wages go to the workers, and are not siphoned off to support a dangerous dictator.”

“While we understand that hiring North Korean workers may be legal in China,” said Connelly, “we are deeply concerned that any seafood companies could be inadvertently propping up the despotic regime.” [AP]

And lastly, lest this point be missed amid the other reasons to be outraged, North Korea’s poor have a severe protein deficiency in their diet. Why is Pyongyang allowed to export its main source of protein for cash while most of its people are malnourished?

~   ~   ~

* Previously said “Chinese seafood.” Since corrected.

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There is a North Korean resistance

A blog about North Korea never suffers from a shortage of material; rather, it is more likely to suffer from an insufficiency of time to curate such an abundance of material. A post that isn’t ready for publication when my train arrives at my stop may sit unfinished for hours, weeks, or even years. So it was last May, shortly after the assassination of Kim Jong-nam, when an intriguing video first emerged of Jong-nam’s son, Kim Han-sol, claiming that a group calling itself Cheollima Civil Defense had spirited him away to safety from Pyongyang’s agents.

Cheollima Civil Defense’s Korean- and English-language website is here, and has a link for financial contributions. Because this site has been eagerly watching North Korea for years for signs that organized resistance would rise (and instead found plenty of evidence of disorganized resistance) the story sounded almost too good to be true. But now, via the Wall Street Journal, comes a report that convinces me that Cheollima Civil Defense is a thing — and that thing is North Korea’s first organized resistance organization since the 6th Corps mutiny more than two decades ago.

When Kim Jong Nam, the exiled half brother of North Korean dictator Kim Jong Un, was killed with nerve gas in a Malaysian airport on Feb. 13, it was evident who might be targeted next.

His 21-year-old son, Kim Han Sol,  had similarly criticized the regime in Pyongyang, which was suspected of carrying out the attack. The son’s bloodline made him a potential threat to the Kim dynasty.

What followed was a secretive scramble by a group of North Korean dissidents to get Kim Han Sol, his mother and sister out of their Macau home and fly them to safety in a secure location.

Details have been largely a mystery since February, but the group that helped the trio get out agreed to discuss the evacuation with a media organization for the first time—and from its account it appears that Kim Han Sol was targeted.

There were “attempts by several parties to interfere” with the evacuation, a representative of the group, Cheollima Civil Defense, told The Wall Street Journal. [Wall Street Journal, Alastair Gale]

Read the rest of the story on your own. Recall that Kim Han-sol first came to the world’s attention in October 2012, when he sat down for an interview with Finnish former U.N. official Elisabeth Rehn (see reports here, via the Wall Street Journal, and here, via the Atlantic Wire). The most striking thing about Han-sol? He seems … nice. Normal. He speaks excellent English. His manner would not stand out as exceptional at a meeting of the Korean Church Coalition, where the young people I meet almost always seem cleaner and better-adjusted than the feral, mulleted, tobacco-spitting waifs I was raised with out on the prairie in South Dakota.

“I’ve always dreamed that one day I will go back and make things better,” Kim Han Sol said in the interview. He spoke fluent English with a British accent, and said he was interested in the revolution the previous year in Libya, as related to him by his Libyan roommate. [WSJ]

If you possess the spiritual certainty that I don’t, pray for the safety of this young man. He may have much to contribute to the future of his ancestral homeland. Among the more disappointing things we learn: how Pyongyang uses terrorism to its advantage. Canada refused to help Cheollima for fear of jeopardizing a hostage it was trying to convince Pyongyang to free.

But of course, there have been underground railroad groups helping North Koreans to escape through China for decades. What makes Cheollima something those groups are not? This:

The defector, who isn’t part of the group, said Cheollima is a small but well-connected organization that had helped North Koreans escape their country through China and into Southeast Asia.

The human-rights worker confirmed the group consisted of North Koreans and had good connections with foreign governments. “They moved very quickly and were verified at the highest level,” he said. Two Western diplomats said Cheollima was trusted to help defectors. [WSJ]

Does Cheollima represent a threat to Pyongyang? Not immediately, but over the long term, it is well-positioned to take advantage of rising disaffection among the elites, including the regime’s diplomats, and guide them to the protection of foreign embassies and intelligence services. For example, I’m convinced that we’ve yet to see the full political potential of the defection of Thae Yong-ho to sow doubt within the elites in Pyongyang. They may eventually help us make contact with key people in the armed forces to prevent war or split the regime’s internal cohesion. And of course, every defection by an official who brings his laptops, ledgers, and bank account numbers with him will have second-order financial impacts. If more defections cause the regime to distrust its diplomats and recall more of them, it could have almost as great an impact on regime finances and cohesion as the U.S. diplomatic campaign to get North Korean diplomats and workers expelled.

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The deterrence of North Korea has already failed

First, the North Korea commentariat told us that the Yongbyon reactor might be for no more nefarious purpose than generating electricity (never mind that it was never connected to the electrical grid). Then, it told us that the North merely wanted aid and recognition by the United States, to better provide for the people it had so recently starved to death in heaps, the dust of whose loves and aspirations now fills a thousand forlorn and forgotten pits in the barren hills of Hamgyeong. It told us that Pyongyang only wanted to open itself up to the world and bask in our gentle rays of glasnost and perestroika. It told us that if we were willing to disregard the good sense of the voting public and pay enough extortion money, surely Pyongyang could be talked out of its nukes.

What all of these theories had in common — aside from being wrong — is that they required a determined ignorance of the nature of the regime in Pyongyang. The appeal of these theories has always been greatest among those Americans who knew the least about its ideology and abuses of its own people (arms control experts, diplomats, and left-leaning academics), and among those South Koreans with the fewest objections to either. Overwhelming majorities of the commentariat in Washington and Seoul also embraced the reassurance these theories offered. Indeed, many proponents of these discredited theories still cling to the fantasy and they can talk Pyongyang into a nuclear and missile freeze, no matter how many times Pyongyang declares its unwillingness to discuss or consider any such thing.

At some point, we can’t confine the blame for this atrocious predictive record to the commentariat itself; some of that blame must also stain the journalists and policymakers who keep slogging back to this well of wisdom to fill their buckets and ladle it into the troughs of newspaper readers and presidents. Foreign affairs is not an empirical science; still, one wonders when a predictive record becomes catastrophic enough that the theories and their adherents get the Dick Cheney treatment. Surely, in the modern history of analytical folly, “They will open up and reform,” has to be right up there with, “He only wants the Sudentenland,” and, “They will welcome us as liberators.” For all my criticisms of President Trump — and there have been many of them, for many reasons, on many issues — he is the first president we’ve had in 30 years who possessed the instincts to reject this nonsense.

Now, the commentariat tells us that we must accept a nuclear North Korea as a fait accompli and fall back on deterrence. I’ve grown tired of rehashing all of the counterpoints to this — did we deter the sinking of the Cheonan, the Yeonpyong attacks, the Sony cyberterrorism, the 2015 landmine incident, Pyongyang’s multiple assassination attempts and threats against journalists, its nuclear and chemical proliferation, or the assassination of Kim Jong-nam with VX in the Kuala Lumpur airport? On what basis do we still deceive ourselves into believing that we’ve seen the worst of this behavior, or that this problem is a distant one?

“We cannot have a society in which some dictators someplace can start imposing censorship here in the United States because if somebody is able to intimidate us out of releasing a satirical movie, imagine what they start doing once they see a documentary that they don’t like or news reports that they don’t like. That’s not who we are. That’s not what America is about.” – Barack Obama, Dec. 19, 2014

If these recent incidents are in fact more indicative of Pyongyang’s new way of war and how it will escalate in the coming years than the 1950 Kim Il-sung strategy, on what basis do we believe that deterrence that was failing before will succeed now? On what basis do we doubt that a nuclear-armed North Korea will continue to escalate this war of skirmishes? On what basis do we believe that the crisis is already as bad it as it will get? If the commentariat ducks those questions, perhaps it hasn’t applied its imagination to the question of just how much worse things will get in five years if present trends continue. Illusions are stubborn things, and the commentariat’s predictive failures could make for a fine seminar on cognitive biases one day. That’s why I keep pushing back against this latest dangerous blandishment.

Beneath all of this is the long record of Pyongyang’s ideology and stated intentions to use its nukes to achieve reunification on its terms, an intention Pyongyang is increasingly brazen about. Brian Myers and Edward Oh make that case compellingly enough in new articles. I won’t repeat them here, though I can’t resist quoting this passage from Myers:

Also worth mentioning in this context are conservative reports of an academic proposal now circulating among higher-ups that proposes, as a transition to unification, a Kaesong Confederated State. This would be a swathe of jointly administered territory along the southernmost reaches of the North, from the port of Haeju in the west to the Geumgang mountains in the east, that would play host to five universities. That last word, I suspect, is meant about as seriously as the Associated Press’ use of the word bureau for its Pyongyang office.

Of course, one need not choose deterrence or unification as Pyongyang’s reason for sacrificing all the aid, money, prosperity, and recognition the commentariat told us it wanted — as it consistently sacrificed all of those things for the nuclear weapons it preferred, for some reason. If you want to be precise, the answer is both deterrence and reunification, because Pyongyang’s strategy is to deter Washington and Seoul from responding to its carefully calibrated attacks against American or South Korean interests and targets — attacks that will be designed to dissolve their increasingly uncertain alliance, but mostly to raise a chorus of calls from the usual commentariat for us to make a few “small” concessions that will be calculated to lower the South’s military and ideological defenses, skirmish by skirmish and crisis by crisis, against North Korean hegemony and remote control through a confederation.

To know whether we can deter Pyongyang, we must know what we’re deterring. It is as true — and as irrelevant — that we can deter a 1950-style invasion or a nuclear first strike on Seattle as it was true 80 years ago that the Maginot Line could protect Alsace-Lorraine from Hindenburg’s Prussian cavalry. Whether you believe that Pyongyang’s war-of-skirmishes strategy is plausible matters less than whether a petulant, impulsive, morbidly obese, and psychotic 33-year-old heir to a medieval dynasty who has never heard the word “no” does.

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Maximum Pressure Watch: Trump puts the squeeze on Kim Jong-un

Donald Trump hit Kim Jong-un with his first sanctions executive order today. (Update: Its official number is Executive Order 13810.) The new EO partially implements UNSCR 2371, UNSCR 2375, and the KIMS Act, which the President signed in August. As a strictly legal matter, this EO will not affect anyone’s interests immediately because Treasury didn’t announce any new designations. As a practical matter, however, we may already be seeing the effects of the clear seriousness of purpose that Trump has already shown. You can read the full text here and a White House fact sheet here.

The New Authorities: A Summary

The new provisions broaden the administration’s authority to designate (and thus, freeze any assets within U.S. jurisdiction of) entities that engage in the conduct described below:

  • (i) Sectoral sanctions against anyone determined “to operate in the construction, energy, financial services, fishing, information technology, manufacturing, medical, mining, textiles, or transportation industries in North Korea.”

Treasury previously authorized sectoral sanctions against anyone operating in North Korea’s the mining, energy, transportation, and financial services industries. The newly designated industries include those sanctioned under the new U.N. resolutions and the KIMS Act. Sanctions on the medical industry are a notable exception. This will draw gasps of horror from some, but remember, there’s still a humanitarian general license that exempts “medicine distribution” and “the provision of health services.” Section 7 of the EO exempts UN operations entirely. So why say “medical” at all? The feds may suspect Pyongyang of hiding behind “medical” uses to make biological weapons, but that’s only a guess.  

  • (ii) Shipping sanctions against anyone who owns, controls, or operates any seaport, airport, or land port of entry in North Korea.
  • (iii) Import-Export: “to have engaged in at least one significant importation from or exportation to North Korea of any goods, services, or technology.”

Executive Order 13570 previously banned unlicensed imports and exports between the United States and North Korea. This provision, by contrast, bans any transactions through the U.S. financial system, or by U.S. persons, that facilitate imports to or exports from North Korea by anyone, to or from any country. In effect, if you trade with North Korea now, you have to use a non-dollar currency or get an OFAC license.

  • (iv) Status-based: “to be a North Korean person, including a North Korean person that has engaged in commercial activity that generates revenue for the Government of North Korea or the Workers’ Party of Korea.”

This effectively cuts the Gordian Knot around the spurious claims of China (or this one, by Tanzania) that the North Koreans they’re dealing with aren’t representatives of the North Korean government. Hopefully, Treasury will now start mining names out of the U.N. Panel of Experts reports and designating the members of Pyongyang’s overseas proliferation and money laundering networks, thus putting the banking industry on notice to freeze their accounts.

I’m glad Treasury exempted North Koreans (including refugees) who are legally in the United States. I would have preferred that Treasury had clarified that North Korean refugees in Europe and South Korea are also exempt. I realize that Treasury has no intention of enforcing sanctions against refugees in England or South Korea — and I hope the banks realize this, too. Some clarifying guidance from Treasury might be useful. Refugees in South Korea, in particular, often keep their family members alive by remitting money to them. As I’ve argued before, remittances might be a rare case of financial interaction with North Korea that actually does drive reform, by helping the poor start businesses and achieve financial independence from the state. Thankfully, a general license covers noncommercial, personal remittances.

Things start to get more interesting in Section 2, which provides for a secondary boycott on ships and aircraft. Under the EO, any ships or aircraft that have been in North Korea in the last 180 days can’t land in the United States. This both overlaps with and complements section 315 of the KIMS Act. It is also the same concept that Japan and South Korea had previously applied to North Korean ships, meaning that ships that visit North Korea will now incur a six-month ban from the waters of China’s three largest trading partners. Furthermore, any ship that has done a ship-to-ship transfer with a ship that has been in North Korea in the last 180 days also gets banned from U.S. ports for 180 days. Shipping trackers suggest that a fair number of these transfers are happening off the Chinese coast. A concern, however, is that the existing humanitarian general license may not cover shipments of commercial food imports (which we should want to encourage).

Section 3 contains some very tough secondary financial sanctions. Section 3(a) freezes any funds controlled by a “North Korean person,” or in which a North Korean person as an interest. This is very powerful — much like its ancestor, section 104(c) the NKSPEA, which blocks all property of the “Government of North Korea,” a term that the NKSPEA defines in roughly similar terms to this EO’s definition of “North Korean person.” The EO also extends the blocking to any person who finances, approves, facilitates, or guarantees a transaction that would be frozen under this paragraph.

Section 4 contains some additional penalties that are tailored to the financial industry. Any person who knowingly conducts or facilitates a transaction in property blocked under a North Korea-related executive order, or who knowingly conducts or facilitates a significant transaction in trade with North Korea, can lose access to the U.S. financial system. That potentially means no correspondent accounts, or the freezing of all of the bank’s assets in the United States. This amounts to a mini Patriot Act section 311 just for North Korea. And of course, banks that knowingly deal with Pyongyang could also face prosecution for money laundering, criminal or civil forfeitures, or the kind of civil penalties that were applied to BNP Paribas for violating Iran sanctions.

Which is to say, this section mostly does what section 104(b) of the NKSPEA does, now that President Trump has signed the KIMS Act section 311 amendments into law.

 We sound like we really mean it this time.

The effects of previous, strong-on-paper EOs fell short of their potential because President Obama never showed the world that he was serious about enforcing them (or rather, until the very end of his administration, he showed the world that he wasn’t serious about enforcing them at all). Let no one accuse Donald Trump of indecision or paralysis.

“A new executive order will cut off sources of revenue that fund North Korea’s efforts to develop the deadliest weapons known to humankind,” Trump said at the start of a trilateral luncheon meeting with South Korean President Moon Jae-in and Japanese Prime Minister Shinzo Abe in New York….

Trump said China’s central bank had just told the country’s other banks to “immediately” stop doing business with North Korea, and thanked Chinese President Xi Jinping for that “unexpected” decision.

“For much too long North Korea has been allowed to abuse the international financial system to facilitate funding for its nuclear weapons and missile programs,” he said. [Yonhap]

Take note, humanity: Donald Trump just said the right thing in the right tone, and it all appears to be true, right down to “unexpectedly.” Then, Treasury Secretary Steven Mnuchin said this at the U.N., just to be sure the whole world heard him:

For far too long, North Korea has evaded sanctions and used the international financial system to facilitate funding for its weapons of mass destruction and ballistic missile programs. No bank – in any country – should be used to facilitate Kim Jong-un’s destructive behavior.

This new Executive Order will authorize Treasury to impose a range of sanctions, such as suspending U.S. correspondent account access to any foreign bank that knowingly conducts or facilitates significant transactions tied to trade with North Korea or certain designated persons.…  Foreign financial institutions are now on notice that, going forward, they can choose to do business with the United States or with North Korea, but not both….

We call on countries around the world to join us by cutting all trade and financial ties with North Korea in order to achieve a denuclearized Korean peninsula. [link]

Finally, in a conference call this afternoon, a senior National Security Council official and a senior Treasury Department official (whom we weren’t allowed to name) emphasized the administration’s seriousness. Some key points:

  • This EO goes further than any other sanctions EO — implicitly, including even Iran. He might be right. I might have to shelve my “not the most sanctioned” refrain, assuming the administration enforces this.
  • Treasury will unravel the front companies and shell companies to get to any shipping company that smuggles to or from North Korea in violation of this EO.
  • Treasury is investigating financial institutions that have been involved in facilitating trade with North Korea, and will start enforcing this EO in the near term.
  • Treasury won’t only enforce the EO against Chinese banks. Before the President signed the EO, the administration discussed it with EU, Japanese, and South Korean officials. Oh, and Treasury would really like the South Koreans to use the full extent of their legal authority to publish their equivalent of SDN designations of North Korean enablers.
  • Also, it welcomes the investigative work of NGOs, specifically C4ADS (which single-handedly exposed much of Pyongyang’s money laundering network in China). I hope that means the government will offer them grant funding or rewards, as authorized in section 323 of the KIMS Act. (Leo Byrne and The Beard of Knowledge also received well-deserved praise.)

 Signs of impact on North Korean trade

So, you ask, will the Chinese banks finally listen? I’ve cited the evidence that they already are. Fuel prices in North Korea have spiked, North Korean workers are flooding back over the border to China, and trading companies in China are effectively out of business and unhappy about the freezing of their bank accounts. The coal industry, which has taken some hard hits from the Treasury and Justice Departments lately, is also showing the strain. These things could be consequences of the banks telling their customers to de-risk North Korea. We may soon find out just who’s right here.

 

Today, Reuters reports that the Chinese government has directed its banks to stop dealing with North Koreans entirely, to include winding down loans with existing customers. If that’s true — and if it lasts — that will be fatal. The timing is curious. One of the “senior administration officials” said that President Trump had only notified President Xi about this EO today, yet the reports of the alleged Central Bank order — the bankers say they received it Monday — come a week after multiple press reports of Chinese banks closing North Korean-controlled accounts. Could Beijing be making a virtue of necessity by ordering banks to do what they’re already doing for their own sake? As I’ve said before, there isn’t just one “China.” Various ministries and industries have diverse and conflicting interests.

This week, President Trump acted strongly, decisively, publicly, and with a deliberate seriousness of purpose. Banks and governments around the world will disregard his words at their peril (meaning, very few of them will). His misbegotten threats against North Korea (as opposed to its regime) shouldn’t distract us from what he did right, if only because his predecessors could not do it right. His words and actions, and in tandem with other governments’ actions to cut their trade and diplomatic ties to North Korea, should be difficult for Pyongyang to withstand for long. We may soon conclude the sanctions-never-work portion of our narrative and enter the sanctions-are-starving-North-Korean-babies portion of our narrative fairly soon. In fact, it looks like we already have.

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Save North Korean Refugees Day: This Friday, September 22nd

What sort of place could be so horrible that a family of five would choose to die together rather than be sent there? The answer, of course, is this place, or this one, or this one, or this. Here is the story of a family that made that choice.

A North Korean family of five, including a former senior official of the Workers Party, committed suicide last week after they were caught by Chinese police and faced deportation to the North. They were heading to South Korea.

Activist Kim Hee-tae told the Chosun Ilbo on Sunday, “Fifteen defectors who were on their way to South Korea were caught by police in the Chinese province of Yunnan a week ago.”

“They killed themselves by taking poison after they were taken to Shenyang, Liaoning Province three days ago and faced deportation to the North,” he added. They were a 50-something senior official of a regional agency of the Workers Party, his wife, son and two daughters.

“Right after they were caught in Yunnan, they tried to bribe their way out through a local fixer, but once they were taken to Shenyang they probably lost hope and killed themselves,” Kim speculated. [Chosun Ilbo]

The story was also reported by Radio Free Asia. Otherwise, the U.S. and foreign press almost completely ignored the story. Did they fail to even investigate it, or did they run into a stone wall in trying to find the truth in China? I wonder if we will ever even know their names. Try to imagine the moment of that terrible choice. Imagine the words they spoke to one another as they prepared for that possibility. Imagine their thoughts as they all realized that they would have to go through with it. Imagine their last words to each other. Imagine what dreams, aspirations, and potential the children might have had to live lives that we, in our ingratitude, refer to as “normal.” They are not alone in making that choice.

China’s long-standing policy of forcible repatriation of North Korean refugees only complicates the dangers and difficulties faced by refugees. China does not consider North Koreans refugees but illegal economic migrants to be sent back to their home country, under a border protocol agreed upon in 1986.

“Many of the refugees carry razor blades to slit their wrists or arsenic with which to commit suicide in case they are forcibly repatriated,” Peters said. [S. China Morning Post]

Now, imagine the cruelty of governments that inflict this on people for no greater crime than aspiring to eat, to survive, to live a life that is better than slavery. Imagine the cruelty of a government — of China’s government — which sends them back to a fate this family judged to be far worse than the death it chose instead.

Then, come out Friday and protest against it, on Save North Korean refugees day.

Even in China, where the government has increased its repatriations of refugees to North Korea, and even pays bounties for their arrests — repatriations that a U.N. Commission of Inquiry has described as complicity with crimes against humanity — there are signs that public anger at North Korea’s belligerence is growing.

In South Korea, there are also growing doubts about the government’s commitment to the protection of North Korean refugees. The president himself is a former member of a hard-left lawyers’ group that is trying to violate refugees’ right to confidentiality. One South Korean official was recently charged with selling refugees’ personal information — information that could be used to identify and intimidate North Korean refugees by threatening their families inside North Korea, and to force them to “re-defect.” Hundreds of North Korean refugees who had made it to South Korea are unaccounted for. Most are believed to be in foreign countries, but which countries?

Our news media hardly paid any attention to the tragedy of the Yunnan Five, but Pyongyang certainly did. It launched a massive security crackdown to cover their story up, to punish those who failed to prevent their escape, and to track down anyone who might have helped them escape. In North Korea, any lapse in brutality begets greater acts of brutality, and everyone is a hostage to the obedience of everyone else. Truth is the greatest enemy of the state, because even the most repressive states know that the truth will eventually destroy them.

In the last year, the number of defectors from the military and the elites has risen. The defectors now include even diplomats, senior officials from the internal security forces, and workers posted overseas. If only for utilitarian reasons, we should look on refugees as potential allies. Consider, for example, the Justice Department documents that have cited the testimonies of refugees in forfeiture suits against regime funds. If the humanity of North Korean refugees isn’t reason enough reason to support their cause, the fact that they can help us bankrupt Kim Jong-un and break his hold on power should be. But for now, the regime is winning its war against its people. Although more members of the elites are escaping, the overall number of North Koreans who successfully escape continues to fall because of Kim Jong-un’s border crackdown.

That is why Pyongyang is so desperate to intimidate Seoul into returning refugees, or to intimidate the refugees themselves into “re-defecting,” so that it can put them on display as examples to other North Koreans, and as propaganda props to deceive gullible journalists (and thereby, us). Koreans — don’t turn away from your brothers and sisters. Americans — don’t let our government forget these people. Doing so is short-sighted. It is against our interests. It is against our values. It is not who we are. Please share this post, and join us this Friday.

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