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.