I make the legal and diplomatic case here.
Update: Sadly, The New Ledger is no more, so I post my argument below the fold.
Just what does a psychotic despot have to do to get on the list of state sponsors of terrorism? Since President Obama’s inauguration, Kim Jong Il has —
been caught twice shipping weapons — reportedly including man-portable surface-to-air missiles — to Iran, apparently for the use of its terrorist clients; sent a hit squad to assassinate a prominent defector in South Korea; threatened civilian air traffic to and from South Korea; threatened to turn the capitals of various neighboring states into “sea[s] of fire;” tested a nuclear weapon and multiple ballistic missiles in flagrant violation of at least three U.N. Security Council resolutions; sank a South Korean warship and killed 46 members of her crew; and imprisoned a young American citizen, Ailjalon Gomes, for the quixotic (but hardly criminal) act of presenting a petition to some North Korean border guards demanding the closure of Kim Jong Il’s extensive and horrific system of political prison camps. Last week, North Korea claimed that Gomes had attempted suicide in captivity because of his “strong guilty conscience” (as if) and his despair that the U.S. government “has not taken any measure for his freedom. Readers of above-average intelligence should feel free to interpret as a ransom demand.
In spite of all of this, the State Department has just announced that it does not intend to put Kim Jong Il’s squalid little fiefdom back on the list of state sponsors of terrorism. Leave aside the domestic state terror Kim inflicts on his subjects on a daily basis, and which the State Department barely acknowledges except under extreme duress. If these things do not count as the state sponsorship of terrorism to our State Department, then what does? Perhaps it would be more accurate to say that President Obama has added North Korea to the list of states that are permitted to sponsor terrorism without fear of adverse consequences. That’s probably how Kim Jong Il will see it.
This is a terrible decision on several levels. Legally, it’s wrong. Diplomatically, it kicks our friends and bows to the enemies who kick us. Politically, it breaks two clear promises by President Obama to keep North Korea on the list, subject to conditions that have clearly been met. Under ordinary circumstances, all of this would be bad enough, but it’s positively dangerous to let Kim Jong Il keep getting away with murder when what is desperately needed is for someone to finally hold him to the standards that apply to civilized humanity.
1. It’s Wrong, Legally.
Let’s review State’s justification for its decision:
The standards for designating a country as a state sponsor and rescinding the designation are set out in the three separate statutes: Section 620A of the Foreign Assistance Act (22 USC 2371), Section 40 of the Arms Export Control Act (22 USC 278), and Section 6(j) of the Export Administration Act (50 USC app 2405(j)). All three statutes provide for the Secretary of State the authority to designate countries the governments of which “repeatedly provide support for acts of international terrorism. Therefore, the Secretary of State must determine that the government of North Korea has repeatedly provided support for acts of international terrorism. The United States will follow the provisions of the law as the facts warrant, and if information exists which indicates that North Korea has repeatedly provided support for acts of terrorism, the Department will take immediate action. As a general matter, a state military attack on a military target would not be considered an act of international terrorism.
You’d think from reading these citations that State’s dispassionate scribes were caught in a web of pendantic statutory interpretation, but it really isn’t so. Section 2371 merely limits foreign assistance to governments that the Secretary of State finds “has repeatedly provided support for acts of international terrorism,” but does not define “international terrorism” or establish more specific criteria for listing. Section 6(j) of the Export Administration Act authorizes export controls for countries that meet this same standard, and provides that state sponsorship “shall include” allowing terrorists sanctuary in the state’s territory, but this certainly doesn’t seem to be an all-inclusive definition. If it were, it wouldn’t be the state sponsorship of terrorism to wire a terrorist cash, or even the plans for an atomic bomb. The last of the three statutes, 22 U.S.C. § 278, turns out to be a $2 million appropriation to build a center for the study of tropical diseases — no, I’m not kidding — to be known as the Senator Robert C. Byrd Tropical Disease Laboratory in Wheeling, West Virginia (OK, now I’m kidding). The statute the State Department no doubt meant to cite is 22 U.S.C. § 2778, a provision of the Arms Export Control Act cross-referencing § 2371, restricting arms exports to states that sponsor terrorism.
But not one these statutes defines “international terrorism” or sets specific criteria for listing a state as a sponsor. They merely give the Secretary of State wide discretion to make findings. The discretion and the evidence are there. All that Secretary Clinton lacks is the will to see what’s right in front of her nose. So by what specific standard is State saying a specific North Korean action doesn’t meet the definition? State hasn’t explained, and I’ve yet to see any journalist drill down for a better answer.
Unlike any of the aforementioned statutes, the U.S. Criminal Code does contains a specific definition of “international terrorism” for purposes of “this chapter.” That definition gives the term “international terrorism” the meaning that nothing in Title 22 really does. You can find that definition at 18 U.S.C. § 2331(1), and it’s a good fit for many of North Korea’s recent actions:
(1) the term “international terrorism” means activities that –
(A) involve violent acts or acts dangerous to human life that are a violation of the criminal laws of the United States or of any State, or that would be a criminal violation if committed within the jurisdiction of the United States or of any State;
(B) appear to be intended –
(i) to intimidate or coerce a civilian population;
(ii) to influence the policy of a government by intimidation or coercion; or
(iii) to affect the conduct of a government by mass destruction, assassination, or kidnapping; and
(C) occur primarily outside the territorial jurisdiction of the United States, or transcend national boundaries in terms of the means by which they are accomplished, the persons they appear intended to intimidate or coerce, or the locale in which their perpetrators operate or seek asylum;
Disingenuously, State argues that the sinking of the Cheonan is an act of war, but not international terrorism. As a strictly legal matter, the point is arguable. For the sake of argument, I’ll even concede it. I can afford to. When State cabins its “analysis” this way, it is disingenuously ignoring a host of recent acts that clearly are acts of international terrorism, or the sponsorship of terrorism. Last week, for example, a South Korean court sentenced Major Kim Yong-ho and Major Dong Myong-gwan of the Reconnaissance Bureau of the Workers’ Party of (North) Korea to ten years in prison after convicting them of a failed attempt to assassinate Kim Jong Il’s former teacher, Hwang Jang Yop. Hwang defected to the South in 1997. After years of being muzzled by left-wing governments in South Korea, he had emerged as a vocal critic of Kim Jong Il’s misrule. As is so often the case, it’s hard to rationalize Kim Jong Il’s decisions. After all, Hwang is 87 years old. Going to so much effort to cheat the Reaper of whatever time Hwang has left hardly seems worth the effort. It’s almost as difficult to make sense of the State Department, which announced its decision not to re-list North Korea as a state sponsor of terrorism just as the two North Korean assassins pled guilty in open court to the plot to kill Hwang.
Some commenters argue that listing North Korea as a state sponsor of terrorism is symbolic and inconsequential, but this is false. Here, it is important to remember the unique dependence of Kim Jong Il’s palace economy — the one he uses to sustain his personal lifestyle, system of patronage, and his military — on foreign trade, loans, and aid. A terror sponsor listing carries important legal consequences, such as the lifting of a state’s sovereign immunity from civil lawsuits for the acts of terror it sponsors. In fact, North Korea is currently a defendant in several such suits that are now pending in federal district courts. In one other such suit, surviving members of the U.S.S. Pueblo, joined by the widow of the ship’s captain, are now trying to collect a $69 million judgment they recently won against North Korea.
Other statutes and regulations create significant impediments to a terror-sponsoring state’s ability to finance its evil deeds. The availability of non-immigrant visas to nationals of terror-sponsoring states is severely restricted under 8 U.S.C. § 1735. Section 2332d of the Criminal Code prohibits financial transactions with states designated as sponsors of terrorism, except in accordance with Treasury regulations (these being largely administered by the Office of Foreign Asset Control). There are other significant restrictions on munitions transactions, agricultural exports, exports of sensitive technology (15 C.F.R. § 746.2) and foreign assistance grants and loans (22 U.S.C. § 2377), including a prohibition on U.S. support for World Bank and IMF loans (22 U.S.C. § 2371), or loans from the Export-Import Bank (12 U.S.C. § 635). Treasury Department regulations also place significant restrictions on financial transactions involving states designated as sponsors of terrorism. And in another sense, symbolic acts have powerful tangible consequences. Restoring North Korea to the list of state sponsors of terrorism would send a powerful signal to lenders and investors — especially those in China — that transactions that provide Kim Jong Il with regime-sustaining cash are politically and financially risky.
2. It’s Terrible Diplomacy
The matter of North Korea’s listing was never a matter of rigorous legal analysis in 2007, when President Bush first removed North Korea from the list in exchange for its promise — a promise North Korea was already breaking — to completely, verifiably, and irreversibly give up all of its nuclear weapons and programs. Yet State’s recent announcement that it would not re-list North Korea came more than a year after North Korea’s most recent nuclear test exploded two decades of futile nuclear diplomacy, and three months after North Korea sank a South Korean warship. There were other reasons to cringe at State’s timing — its announcement came two days before the 60th anniversary of the Korean War, and just as President Obama’s U.N. Ambassador, Susan Rice, was flailing against a great wall of Chinese obfuscation against imposing punitive sanctions against North Korea, obfuscation to which she has since proven herself unequal. We’ll revisit that subject in a moment.
Even in 2007, of course, North Korea was still engaging in other arguable acts of terror for which it was never called to account. There is the matter of the unknown numbers of Japanese citizens abducted from their own country by North Korea, including a 13-year old girl, Megumi Yokota. North Korea has allowed five of these abductees to return home after years of captivity, but it has lied about the whereabouts of eight others whom Kim Jong Il admitted his agents had abducted. The Japanese government believes that North Korea abducted at least eight more of its citizens. The plight of the abductees is an extraordinarily emotional matter for the Japanese people. President Bush’s 2008 decision to remove North Korea from the list of state sponsors of terrorism, just two years after Bush met with Megumi Yokota’s mother in the Oval Office, caused great anguish for the families of the disappeared, precipitated a crisis within the Japanese government, did serious harm to U.S.-Japanese relations, and strengthened the hand of the Democratic Party of Japan, whose rise to power did further harm to bilateral relations in 2009. Every time an American President renews North Korea’s exclusion from the terror-sponsor list, the decision reopens this wound to our relations to Japan. What interest is so great that it justifies alienating America’s most important Pacific ally? The answer, apparently, is the six-party disarmament talks, the State Department’s bridge to nowhere, which North Korea has been boycotting since 2008. When it comes to North Korea, the State Department sees every standard of human civilization as another obstruction to the next agreed framework.
But are the abductions terrorism? For years, our government certainly acted that way. At the urging of the Japanese goverment, State had linked North Korea’s abductions to its terror-sponsor listing. One of the reasons North Korea abducted its victims was to teach its North Korean spies Japanese, but in negotiations for their return, North Korea has also demanded “reparations” from Japan. You are also free to interpret this as a demand for ransom.
3. A President’s Words Should Mean Something
The Rev. Kim Dong Shik was a 60 year-old, wheelchair-bound lawful permanent resident of the United States in 2000, when North Korean agents kidnapped him from China and carried him across the Yalu River (obviously, without Chinese border guards noticing anything out of the ordinary). Rev. Kim’s offense against Kim Jong Il was to help and minister to young North Korean refugees. North Korea has never admitted to kidnapping Rev. Kim or accounted for his fate, but defectors have since told us that he was brought to a military base and tortured to death. One of the North Korean agents who kidnapped Rev. Kim was convicted of the crime in a South Korean court, and another of the suspected kidnappers was caught just this year.
Here, there is a curious intersection between Rev. Kim’s widow, who is a resident of Illinois, and the man who was the junior senator from Illinois in 2005. In January of that year, the entire Illinois congressional delegation signed a letter to the North Korean ambassador to the U.N., demanding an accounting for the Rev. Kim. The letter compared Rev. Kim to Raoul Wallenberg and Harriet Tubman, and said,
We will NOT support the removal of your government from the State Department list of State Sponsors of Terrorism until such time, among other reasons, as a full accounting is provided to the Kim family regarding the fate of Reverend Kim Dong-Shik following his abduction into North Korea five years ago.
The original letter, which you can see here, contains the signatures of Rahm Emanuel, Transportation Secretary Ray LaHood, and the man who has since been elected President of the United States. Having failed to obtain meaningful assistance from the political branches of our government, Rev. Kim’s family has since filed a multimillion-dollar lawsuit against the North Korean government. That suit is only possible because an amendment to the Foreign Sovereign Immunities Act allows for suits against state sponsors of terrorism for damages arising from their terrorist acts.
By 2008, Candidate Obama had probably forgotten his promise to Esther Kim, but that year, he would again promise — conditionally — to push to keep North Korea on the list of state sponsors of terrorism. In the summer of 2008, President Bush first announced he would remove North Korea from the list in a vain attempt to save his failing nuclear disarmament deal with Kim Jong Il. John McCain and Barack Obama both gave qualified support for the de-listing, but made their support strictly contingent on verification of North Korea’s continued disarmament. Here is what Senator Obama said at the time:
The declaration has not yet been made available, so Congress has not had a chance to review it. Before weighing in on North Korea’s removal from the list of state sponsors of terrorism, Congress must take the next 45 days to examine the adequacy of the North Korean declaration and verification procedures. Sanctions are a critical part of our leverage to pressure North Korea to act. They should only be lifted based on North Korean performance. If the North Koreans do not meet their obligations, we should move quickly to re-impose sanctions that have been waived, and consider new restrictions going forward.
North Korea’s actions since then speak for themselves, and by compounding President Bush’s error, President Obama also compounds the diminution of America’s reliability and consequently, its influence in East Asia.
4. This Is No Time to Go Wobbly
The U.N.’s complete failure last week to hold North Korea accountable for its premeditated March 26th sinking of the ROKS Cheonan compounds the sense that the Obama Administration, after showing initial signs of backbone, is losing its nerve and resolve. After four months of Chinese stalling — President Obama called it “willful blindness” — the U.N. Security Council finally settled for a weak presidential statement, rather than a resolution. To say that the United Nations underperformed expectations is saying quite a bit. Presidential statements are the “very angry letters” of Team America’s profane but very funny parody. They accompany no sanctions or real consequences. This particular statement not only lacked a clear statement holding North Korea responsible for the attack, it even acknowledged North Korea’s mendacious denial. Even The New York Times called the statement “absurdly, dangerously lame” and a product of the U.N.’s “lowest common denominator.” Britain’s Foreign Minister lamented that he “would have preferred a stronger statement” and a “clearer international condemnation of such appaling behavior.
Contrast those reactions with North Korea’s: their U.N. Ambassador called the statement a “victory.” For once, he was telling the truth. Kim Jong Il and Kim Jong Eun will be able to portray this as a military and diplomatic victory to vault Jung Eun through the succession process at September’s meeting of the Grand People’s Assembly. They’ve escaped any significant consequence for sinking the Cheonan, drawn China closer to North Korea and inflamed its differences with America and South Korea, and reaffirmed the gullibility — it calls itself skepticism! — of the herds of bleating imbeciles who dominate South Korea’s political left. While North Korea and its sympathizers deny responsibility and spread conspiracy theories abroad, inside North Korea itself, the regime is flaunting how it got away with murder, complete with red hand:
Aside from the North Koreans and the Chinese, the only person expressing satisfaction was our U.N. Ambassador, Susan Rice, who called the statement a “very clear and an appropriate response.” Can both the American and North Korean ambassadors to the U.N. really be so happy about this tardy and flaccid response to North Korea’s extraordinary provocation? If Ambassador Rice is telling the truth, we obviously need better representation at the U.N.
To add insult to injury, the statement also thanks the South Korean government for doing pretty much nothing about the premeditated destruction of one of its warships, which I suppose is the inevitable consequence of relying on failed international institutions and dying alliances to guarantee the security of your country. That is where this cycle of abdications begins and ends; after all, it’s ultimately up to South Korea to protect itself. Instead, it abdicated to the United States, which abdicated to the U.N., which is the hostage of China, which is the enabler of North Korea. Not that President Lee Myung Bak’s left-wing predecessors exactly set him up for success. They’d spent the last decade cutting the defense budget, bashing America, sending billions in unconditional aid to Kim Jong Il, cozying up to China, and investing their diplomatic capital on getting the notoriously spineless Ban Ki-Moon selected as U.N. General Secretary. (Ban may be the LeBron James of international diplomacy, but the South Korean government ought to have known beter than to trust a man whose Korean nickname is “slippery eel”).
President Obama can now dust off his hands and say he has dealt with this problem. But if he knew all along that China would shield North Korea from the consequences of breaching the Korean War Armistice, he might as well have told Ambassador Rice to submit a tough resolution to a vote and dared the ChiComs to veto it. A veto would have further isolated China, would have been another embarrassing fiasco for Ban, and might have galvanized the commitment of those nations with an interest in deterring North Korea to a forceful and coordinated effort to freeze the flow of cash to Kim Jong Il’s regime — an effort, say, like the one I advocated here. Naturally, the Chinese mining companies that play a large role in financing the Kim regime would not be spared in this effort. One hopes the rumors that the Obama Administration is considering such an approach are true.
Certainly restoring North Korea to the list of state sponsors of terrorism is a small part of restoring deterrence, but holding North Korea accountable for its outrages is essential to breaking the cycle of provocations. We saw this in 2009, when North Korea conducted a ballistic missile test, in violation of U.N. Security Council Resolutions 1695 and 1718. Then, too, China obstructed an effective U.N. response, and then, too, the result was a weak presidential statement. In due course, North Korea conducted a nuclear test. There is no joint naval exercise that can disguise the fact that the conventional military and diplomatic deterrence of North Korea, on which the peace of the region has depended for six decades, is collapsing. If there is to be deterrence against the next North Korean attack, there must be a strong response to the last one, and if the response will not include the use of military force, it must be a non-military response that is strong and swift enough to deter the next provocation. We haven’t seen anything of that kind yet, and unless we do very soon, we may find ourselves living in interesting times.