2016 Defense Authorization Act would define N. Korea as state sponsor of terrorism

On Sunday, I spotted this interesting Yonhap headline: “U.S. defense bill calls N. Korea terror sponsor.” Given my own recent work on this subject, I was curious about the effect of this provision, so I pulled up the text of the bill, H.R. 1735, the National Defense Authorization Act for Fiscal Year 2016. The versions on Thomas and Congress.gov don’t yet reflect the amendment, but clues from the Yonhap piece led me to the amendment in question, offered by Rep. Duncan Hunter (R, Cal.). The “almost identical” language of H.R. 1498 yields the amendment’s operative text.

No, the amendment would not re-list North Korea as a state sponsor of terrorism, or invoke any of the sanctions that an SSOT listing would bring; only the Secretary of State can do that. Instead, the bill creates an “Interagency Hostage Coordinator” to lead a federal interagency task force, and “coordinate and direct all activities of the Federal Government” to “secure the release of United States citizens who are hostages of hostile groups or state sponsors of terrorism.” The legislation does not define the term “hostage,” but does define “state sponsor of terrorism.” Here’s what got Yonhap’s attention:

(3) STATE SPONSOR OF TERRORISM.—The term “state sponsor of terrorism”—

(A) means a country the government of which the Secretary of State has determined, for purposes of section 6(j) of the Export Administration Act of 1979, section 620A of the Foreign Assistance Act of 1961, section 40 of the Arms Export Control Act, or any other provision of law, to be a government that has repeatedly provided support for acts of international terrorism; and

(B) includes North Korea.

The Hunter amendment isn’t non-binding “sense of Congress” language; it does something. That something, however, is to change the staffing of our hostage negotiation team by putting those negotiations under the control of a new coordinator. The amendment does not invoke any sanctions against these SSOTs, but Congress is clearly making a symbolic point here. It’s concerned about the detentions of Merrill Newman, Jeffrey Fowle, Matthew Todd Miller, Kenneth Bae, Laura Ling, Euna Lee, Aijalon Gomes, Robert Park, and others (we’ll call them “the detainees”). It wants Pyongyang to know that the unjust detentions of Americans will carry consequences. It’s fair to assume that Congress is also sending a message to the State Department that North Korea should go back on the SSOT list. All of that is good. Congress is correct about all of these things, including the fact that North Korea has repeatedly sponsored acts of international terrorism.

In another sense, however, these detentions may not be the best vehicle for pressuring State to put North Korea back on the list, especially when so many more deserving vehicles are whizzing past us. For example, the threats that drove “The Interview” from theaters across America meet the legal definitions of “support” and “international terrorism,” and would be a far better reason to re-list North Korea.

I considered, but ultimately decided against, discussing the detentions of Bae, Miller, Newman, and others in “Arsenal of Terror.” In the report, one theme I discuss extensively is the lack of a single coherent definition of “international terrorism,” although it is possible to assemble a lowest common denominator definition from three separate statutes, informed by State Department “Country Reports on Terrorism,” to the extent those reports are consistent with the statutory language. At page 96, I proposed a codified definition of “international terrorism,” ready to be inserted into the Export Administration Act, that consists of five elements.

(9) the term “international terrorism” means any act that—

(A) is unlawful under the laws of the place where it is committed;

(B) involves a violent act; an act dangerous to human life, property, or infrastructure; or a threat of such an act;

(C) involves the citizens or the territory of more than one country;

(D) is perpetrated by a subnational group or clandestine agent against a noncombatant target; and

(E) appears to be intended to intimidate or coerce a civilian population; to influence the policy of a government by intimidation or coercion; or to affect the conduct of a government.

To call these detentions “terrorism” seems iffy under two elements of this definition. First, in a place where everything that is not absolutely compulsory is absolutely forbidden,* just about any idle expression of thought is unlawful, and is a basis for arrest under “the laws of the place where it is committed.” The correct answer to this problem is not to expand the definition of terrorism in ways that will lead to perverse results in other contexts; the correct answer is to keep Americans out of North Korea (but more on that in a moment). Second, I don’t see clear evidence that North Korea’s conduct meets the intent element of (9)(E). Yes, Pyongyang was probably using the detainees as “hostages” to some degree, and I’m not alone in speculating that it was, but speculation without more isn’t evidence. Evidence might include statements by North Korea demanding specific financial or political benefits in exchange for the detainees’ release. I haven’t seen that evidence.

In pushing State to re-list North Korea, of course, Congress gets the greater truth right, which State has been getting wrong for a decade or more. As a matter of fact, law, and policy, North Korea should be back on the list, and sanctions for SSOTs should be stronger. There is also an important symbolic value in treating North Korea like a state sponsor of terrorism. Having said that, however, I’m not sure how this provision will make our negotiations more successful if it doesn’t give our diplomats more leverage. Not that anyone asked me, but I can think of another way to do that.

Under Section 203(b)(4) of the International Emergency Economic Powers Act, the President lacks the authority to ban transactions incident to tourist travel to a targeted jurisdiction. This doesn’t mean it can’t be done, however. There are tourist travel sanctions against Cuba because Congress passed special legislation to do that. If Congress really wants to put teeth into this particular provision, it could give the Hostage Coordinator the authority to recommend, and for the Secretary of State to find, that a state is uncooperative in releasing U.S. hostages detained without proper legal justification, that travel to that state presents an undue safety risk to U.S. citizens, and that a similar travel ban should apply to that jurisdiction until the hostage situation resolves.

The blocking of financial transactions incident to tourist travel would be a powerful deterrent, and strong diplomatic leverage. The language would not only cover all tourist travel by Americans, but it would also cover all tourism-related transactions denominated in dollars by anyone, regardless of nationality.

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* Credit to the late Christopher Hitchens.