How to hold North Korea accountable for Otto Warmbier’s death

In North Korean prisons (at least, in those from which release is possible at all) when the guards conclude that a prisoner is about to die, they release her and send her away to die at home, so that disposing of her body will be someone else’s problem, and so that the warden can manipulate the camp’s rate of in-custody deaths downward. (Perhaps in some small way, even the wardens of North Korean prisons fear being held accountable, one day, for what they do.) The same is true when North Korean officers conclude that a soldier is about to die of starvation or tuberculosis — the army will send the soldier home to die.

So it was when North Korean diplomats at the U.N. reached out to their American counterparts to inform them that they had an American patient to dump. That the Warmbiers were able to see and touch their son one last time before he died was merely incidental to Pyongyang’s true purpose. It reminds us that Pyongyang has the means to talk to us when it decides that it’s in its interest to do so. Above all, Otto Warmbier’s death should remind us that governments that murder their own people will eventually murder ours. Pyongyang has made the hatred of Americans a national virtue. It indoctrinates its little children to hate and kill us. All that prevents it from murdering us on a greater scale is that it still lacks the means to do so.

This is how Children’s Day is celebrated in North Korea. pic.twitter.com/6zRc3dULTc

– Al Jazeera English (@AJEnglish) June 11, 2017

An autopsy should now be done to determine the precise cause of Mr. Warmbier’s death, to rule out Pyongyang’s explanations of botulism or a drug reaction. Even if this explanation turns out to be plausible, however, it would not excuse holding Mr. Warmbier in Pyongyang in a coma for a year and denying him access to medical care that might have saved him. The coroner should look for evidence of what event put Warmbier into a coma to begin with, whether it was a beating, a suicide attempt, or some other cause. If prompt medical attention might have saved his life, a willful decision to deny him life-saving care would still be murder. And here, the chronology supplies circumstantial evidence of a political motive, and thus, a darker explanation:

• Jan. 2: North Korea arrests Otto Warmbier.
• Jan. 6: North Korea carries out a nuclear test, an event that took weeks of preparation. International condemnation follows; the U.S. calls the U.N. Security Council into emergency session.
• Jan. 12: North Korea arrests a second U.S. citizen, Kim Dong-Chul, a humanitarian aid worker from Fairfax, Virginia.
• Jan. 22: North Korea reveals Warmbier’s arrest publicly for the first time.
• Feb. 5: The House introduces H.R. 757, a North Korea sanctions bill. It advances quickly through Committee to the House floor, where it passes by 418 to 2.
• Feb. 10: The Senate passes H.R. 757 by a vote of 96 to 0.
• Feb. 18: The President signs H.R. 757 into law.
• Mar. 2: The U.N. Security Council approves new sanctions in Resolution 2270.
• Mar. 15: President Obama signs Executive Order 17722, implementing the sanctions in H.R. 757.
• Mar. 16: North Korea holds a show trial for Otto Warmbier and sentences him to 15 years’ hard labor.

In retrospect, then, Pyongyang’s “arrests” of both Otto Warmbier and Kim Dong-Chul appear to have been part of its coordinated plan to test a nuke, and to blunt a U.S. push to sanction it for doing so. It was at this point, shortly after Warmbier’s show trial, that something put him into a coma. This was when Pyongyang had the greatest motive to use Warmbier to punish the U.S. government. (North Korea’s dogma is one of collective rights and collective punishment. It does not recognize the individual as separate from the state. It would be consistent with Pyongyang’s dogma to punish one American to punish the U.S. government.) This was also when North Korea had a political disincentive against sending Warmbier home, lest it show the world a less defiant face or give up the leverage of holding one more American hostage. Shortly before Otto Warmbier passed away, the North Koreans doubled down and said that he got what he deserved.

President Trump reacted to Otto Warmbier’s passing appropriately:

Melania and I offer our deepest condolences to the family of Otto Warmbier. Full statement: https://t.co/8kmcA6YtFD pic.twitter.com/EhrP4BiJeB

– Donald J. Trump (@realDonaldTrump) June 19, 2017

Ambassador Haley said it best, however:

Death of Warmbier “will serve as an indelible reminder to us of the barbaric nature of the North Korean dictatorship,” says @nikkihaley. pic.twitter.com/mNscZ9OQVR

– Steve Herman (@W7VOA) June 19, 2017

But it is with regard to Secretary of State Tillerson’s reaction where I might offer some help:

Secretary Tillerson: We hold #NorthKorea accountable for Otto Warmbier’s unjust imprisonment. https://t.co/MwHNCuUjyw

– Department of State (@StateDept) June 19, 2017

Presumably, they’re having a good laugh about this in Pyongyang, where crime always pays and there are never consequences. Pyongyang has been getting away with murder for 70 years; why should it be different this time when it still has three American hostages? Perhaps, at some point, the U.S. government will cease to allow Pyongyang to benefit from this tactic. It is not legally terrorism, because it is not carried out by clandestine agents or subnational groups, but it is a use of violence against innocent non-combatants with the apparent intent to influence the conduct of our government. Of course, Pyongyang has done many other things recently that do fit the legal definition of terrorism, so re-listing North Korea as a state sponsor of terrorism would be both well-justified and appropriate. (If you still haven’t read my 100-page, peer-reviewed legal analysis of the evidence, then by all means, feel free to do so now.)

The question of a travel ban will invariably be raised again. Even without legislation, the President has the authority to restrict U.S. passports to prevent them from being used by U.S. citizens and permanent residents to visit North Korea, but such a limited ban would be difficult to enforce in practice — it’s not as if the North Koreans would cooperate by turning paying hostages away just because the State Department wants them to. For reasons I’ve explained before, the President would need legislation to make a travel ban truly effective. The way to do this is to block the North Korean tourist industry’s access to the dollar system entirely. That would have the benefit of making the U.S. designation of Air Koryo more effective by closing a key legal loophole. (Air Koryo has been implicated repeatedly in the smuggling of WMD components and luxury goods, in violation of U.N. sanctions.)

An even more effective ban would include secondary immigration sanctions, by denying recent visitors to North Korea visa-free entry into the United States (section 4, below the fold). That would render North Korea’s recent investments in a ski resort, a water park, and a new airport terminal largely worthless. Yes, journalists, I wrote in a special exemption just for you — you’re welcome.

Don’t get me wrong; I’d be all for passing H.R. 2732 now. I also recognize that Congress is politically hesitant about travel bans for various reasons. The problem is that Pyongyang’s hostage-taking is now endangering other Americans, and the citizens of other countries, by interfering with the execution of a more coherent North Korea policy. In the interests of making the perfect the enemy of the good, then, I offer a text below the fold, of a travel ban that’s conditioned on the President certifying that it’s safe for Americans to travel to North Korea, and that also maximizes the effect of a ban on tourist and commercial travel to North Korea by non-U.S. citizens that is paid for in U.S. dollars. By linking the ban to the release of U.S. hostages, it gives Pyongyang a powerful financial incentive to set them free.

Finally, it’s long past time for the Senate to take up Chairman Royce’s bill, the KIMS Act, to further toughen existing sanctions on Pyongyang. That bill passed the full House 419 to 1 weeks ago. The Senate has yet to introduce it.

SEC. 1. SHORT TITLE.

[Clever acronyms are always popular, but I don’t have much talent for writing them.]

SEC. 2. FINDINGS.

[A list of 5-10 facts and statistics explaining why the legislation is needed.]

SEC. 3. AUTHORITY TO BLOCK TRANSACTIONS INCIDENT TO TOURIST AND COMMERCIAL TRAVEL.

(a) Notwithstanding section 203(b)(4) of the International Emergency Economic Powers Act of 1977 (Pub. L. 95-223) the President–

(1) may deny any license or permit authorizing any transaction incident to travel to, from, or within North Korea for tourist or commercial activities;

(2) shall deny any license or permit authorizing any transaction incident to travel to, from, or within North Korea for tourist or commercial activities, unless the President has, not more than 180 days prior to such authorization, certified to the appropriate congressional committees that–

(A) United States citizens and lawful permanent residents traveling in North Korea are not at significant risk of arbitrary arrest and detention;

(B) United States citizens and lawful permanent residents traveling in North Korea are not at significant risk of detention under conditions dangerous to the life or health of a person;

(C) no United States citizens or lawful permanent residents are reasonably believed to be arbitrarily detained or missing inside North Korea; and

(D) sufficient safeguards exist to prevent the Government of North Korea from using revenue from tourist travel for any activity prohibited by applicable United Nations Security Council resolutions.

(b) DEFINITION OF “TOURIST AND COMMERCIAL ACTIVITIES.”–For purposes of this section, the term “tourist and commercial activities” means any activity with respect to travel to, from, or within North Korea for purposes other than travel for family visits, or for humanitarian, journalistic, educational, diplomatic, consular, or official U.S. government purposes.

[Update: Thanks to a sharp-eyed reader for asking about the word “educational.” For the reasons explained here, including compliance with U.N. sanctions and the risk that we’re teaching North Korea to hack us, an educational exemption is no longer appropriate.]

(c) SUSPENSION AND TERMINATION OF AUTHORITIES.–The authority provided in paragraph (a)(1), and the requirement described in paragraph (a)(2), shall terminate at such time as the President makes the certification described in section 402 of the North Korea Sanctions and Policy Enhancement Act of 2016, Pub. L. 114-122, as amended.

SEC. 4. DETERMINATION WITH REGARD TO NORTH KOREA AS A COUNTRY OF CONCERN FOR PURPOSES OF THE VISA WAIVER PROGRAM.

(a) DETERMINATION AND REPORT REQUIRED.– Not later than 90 days after the enactment of this Act, the Secretary of Homeland Security, in consultation with the Secretary of State and the Director of National Intelligence, shall provide the appropriate congressional committees with a written determination whether to designate North Korea a country of concern for purposes of section 217(a)(12)(D) of the Immigration and Nationality Act (8 U.S.C. 1187(a)(12)(D)), along with the reasons for such determination.

(b) HUMANITARIAN AND OTHER EXEMPTIONS AUTHORIZED.–The Secretary of Homeland Security may promulgate such regulations, policies, and directives as may be necessary to exempt from the consequences of any determination pursuant to subsection (a)–

(1) any citizen or national of North Korea seeking entry or admission into the United States as a refugee;

(2) any alien seeking entry or admission into the United States pursuant to section 101(a)(15)(S) of the Immigration and Nationality Act (8 U.S.C. 1101(a)(15)(S)), and who–

(A) is in possession of critical reliable information concerning activities by the Government of North Korea, or its agents, representatives, or officials, with respect to–

(i) money laundering;

(ii) counterfeiting;

(iii) the trafficking in persons;

(iv) weapons of mass destruction, delivery systems, or related materials and technologies;

(v) the financing or proceeds of such weapons, systems, materials, or technologies; or

(vi) violations of section 1030 of title 18, United States Code;

(B) is willing to supply or has supplied, fully and in good faith, information described in subparagraph (A) to appropriate persons within the United States Government;

(3) any alien whose presence in North Korea was in accordance with activities–

(A) that appear to be subject to the exemptions described in section 208(a) of the North Korea Sanctions and Policy Enhancement Act, Pub. L. 114-122, as amended;

(B) that appear to qualify for a waiver pursuant to section 208(b) or 208(c) of such Act; or

(C) that were for humanitarian, journalistic, or diplomatic purposes.