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Save Congress a Seat at Hanoi: On North Korea, Sanctions, Treaties & Politics

WHO STILL BELIEVES THAT DONALD TRUMP IS THE GREAT NEGOTIATOR HE CLAIMS TO BE? Certainly not Nancy Pelosi, Chuck Schumer, or Mitch McConnell. Certainly not Kim Jong-un. Certainly not the people doing the most futile job inside the Beltway right now–writing Donald Trump’s intelligence assessments about North Korea, or of just what he persuaded Kim Jong-un to do at Singapore. Drink a toast to them. Better yet, buy them one. Many people in government now, up to and including John Bolton—he must wince daily that he ever wrote a book called, “Surrender is Not an Option”—must be living in their own private purgatories, trying to carry out their lawful responsibilities as conscientiously as any loyal public servant can in such absurd times, when speaking truthfully requires that one be either courageous or financially secure.

Leave aside the question of whether Trump’s 393-word “deal” at Singapore was specific enough to bind Pyongyang to anything of substance. Surely Trump’s advisors know that Pyongyang’s uncompromising positions in pre-talks, building more missiles, building more missile bases, building more monuments at missile bases, producing more propaganda that final victory is at hand, and producing more fissile material (enough for seven more nukes) are not consistent with a good-faith interest in disarmament. Surely they can see how Trump reacts to those who speak truthfully to him, who disturb his conceit, and who question his implausible claims about what he has achieved. And they must realize, as we head toward a second ill-advised summit, that they can’t control him. No matter what warnings they give, he will still ditch them on a whim, duck into a room with Kim alone, and walk out having given away almost everything in exchange for almost nothing without remembering half of it.

Of course, the remains of American soldiers or hostages (the latter should not have gone to North Korea in the first place) are not nothing, but if Pyongyang held them unjustly, we were already entitled to their return. Nor did their return justify a pause in our exercises that is eroding our deterrence of Pyongyang, compromising our readiness, and endangering the safety of 29,000 U.S. military personnel and their families. It is never a good bargain to risk warm blood for cold bones. Paying Pyongyang to do things it was already supposed to have done anyway, without securing our own interests first, is what we mean by “mistakes of the past.” We’ve already paid it to disarm twice, and got a nuclear North Korea for our trouble. Why is this time different? Is it because Trump is a better negotiator than all those who failed before him? It can only be different if Trump brings more leverage to talks than the diplomats who negotiated Agreed Framework I and Agreed Framework II, and–this is the part where we always flub it–spends that leverage more wisely than past presidents did.

But it is also true that Trump has–if only partially and temporarily–stuck with the thing that is at the top of Kim Jong-un’s list of demands, and that is our last best leverage: sanctions. Economists have kept a close eye on North Korea’s controlled, non-convertible currency, for which there is no viable alternative medium of exchange anyway. It has remained stable, but in the meantime, Pyongyang’s mining industry, which produces most of its foreign exchange, is collapsing. The state has taxed workers and the rural poor heavily to make up the shortfall. Last year, some of the poor began protesting those taxes and forced officials to back down. They also resist and bribe the security forces who enforce the state’s writ. There was never much to be stolen from them anyway. Kim may now be turning on the Pyongyang elites with a new round of purges and confiscations. But the elites, who cannot store their wealth in IRAs, mutual funds, or a functioning banking system, had already lost much of their wealth through a steep decline in real estate prices last year.

When we speak of sanctions “working,” we should not confuse economic impacts, which are merely a means, with changes of policy, which are the end. No economic effects will achieve the ends we seek until they raise a credible threat to the state’s political cohesion and control. The state may now see the limit where there is little else left to tax, and that will have political consequences. These are hopeful signs that sanctions can work–if Trump maintains them, and if their effects don’t fade before Trump caves.

To its credit, the Trump administration keeps saying that the sanctions will remain in place until Pyongyang disarms, or credibly starts to, depending on which statement you listen to. Let’s go with what Trump said today, that North Korea will have to take “meaningful” steps to get sanctions relief. That’s theoretically consistent with the requirements of a law whose sanctions were intentionally designated to be easier to suspend than to lift, but there is much in his words that has yet to be defined.

Trump also said that sanctions are “on in full,” but that’s demonstrably untrue. Trump already gave Kim sanctions relief before Singapore, when he stopped what looked like a very important round of new sanctions designations against its international money laundering. What people who don’t understand sanctions miss–and I count Trump among them–is that sanctions have half-lives. Block one trading company and eventually, the North Koreans will set up others. You can penalize a few small banks, but if you grant preemptive immunity to the big ones, you’ve closed the barn window and thrown open the doors. Last year, Treasury finally gave South Korean and Japanese banks the warnings it should have given Chinese, Malaysian, and Singaporean banks a decade ago. Justice Department filings clearly show that China’s banks are still laundering money for North Korea, which means that Pyongyang can still draw on its cash reserves there to some degree.

When the new U.N. Panel of Experts report is finally released, it will confirm that our financial pressure on Pyongyang is leaky and fading. As that pressure fades, so will Trump’s leverage, and so will the prospects to disarm Pyongyang peacefully, to prevent another Korean war, and to contain the global metastasis of WMD proliferation that has already reached Syria, and probably reached Iran, too. Although the administration has spent the last eight months running up the score by designating small-time targets, it has left some of Pyongyang’s biggest money-laundering networks untouched: Glocom, Pan Systems Singapore, OCN, T Systems, Malaysia-Korea Partners, Chinpo Shipping, and Shinheung Trading. It has not fined, prosecuted, or penalized the banks that hold their accounts, and it has not penalized the ports that smuggle Pyongyang’s coal and oil. That looks like a willful decision by Trump himself.

Simply put, this pressure is not maximum. I hope I’m wrong, but I doubt it will be enough to make us safe from Pyongyang’s nuclear threat, or from the terrorists who will eventually get their hands on its WMD technology. I cannot emphasize this point enough: the argument that we can coexist with a nuclear North Korea rests entirely on wishful thinking. We have a diminishing capacity to deter an all-out North Korean attack, but no means to deter limited ones like Cheonan and Yeonpyeong-do, which with only slight escalation will cripple South Korea’s economy and (given how many South Koreans still excuse or deny what Pyongyang did) undermine its political cohesion. We cannot deter its cyberattacks, its chemical weapons proliferation or use, its terrorist attacks, or its assassinations. To believe we can exist with a nuclear North Korea requires one to ignore 70 years of evidence that it will not coexist with us, and least of all, with an independent and democratic South Korea. Wishing ardently for something to be true does not make it true.

Thankfully, Congress is wiser. Thankfully, it also has the constitutional authority to either stiffen Trump’s negotiating position or nullify a catastrophically bad deal with legislation. One can only hope that knowing this will embolden Trump to walk away from a bad deal, which we can safely define as a deal whose terms are no better than the one Barack Obama struck with Iran four years ago.

The most important power Congress holds is its Article II, Section 2 authority to advise and consent on treaties, with which two-thirds of the Senators present must concur. Presidents have often avoided this ratification requirement by claiming that their “international agreements” were not treaties. But State Department guidance lists a series of factors distinguishing the two, and several of those factors point toward triggering the Treaty Clause here. For one, a prospective agreement almost certainly “involves commitments or risks affecting the nation as a whole.” For another, any agreement to lift, suspend, or pause the enforcement of mandatory sanctions would likely conflict with sections 401 and 402 of the NKSPEA and would thus require “the enactment of subsequent legislation by the Congress.” There is also the precedent that Obama’s deal with Iran required new implementing legislation to suspend CISADA sanctions. Finally, several senators have stated that a deal with Pyongyang should come to the Senate for ratification. Majority Leader Mitch McConnell has also signaled qualified support for that view, although I can see why he might have seen the product of Singapore as too vaporous, too informal, and too preliminary to bind anyone. If Trump makes more concessions at Hanoi, Congress should demand a vote.

There’s reason to believe it will. As I noted the other day, the Democrats sound even more skeptical of Donald Trump, Moon Jae-in, and Kim Jong-un than the Republicans do. In the last Congress, Senators Bob Menendez (D, NJ), Senators Cory Gardner (R, CO), and Chris Coons (D, DE) were co-sponsors of S.3142, the North Korea Policy Oversight Act of 2018. You can read the full text here. That bill discourages talk of preemptive war, reminds the President of Pyongyang’s long history of mendacity, calls for the President to keep up “maximum pressure” by pushing Pyongyang on human rights and enforcing financial sanctions, and insists on the complete, verifiable, and irreversible disarmament of North Korea before we lift them. The bill itself is a non-binding resolution, but it cites the binding provisions of the NKSPEA to argue that “there can be no sanctions relief unless North Korea has ‘made significant progress toward completely, verifiably, and irreversibly dismantling all of its nuclear, chemical, biological, and radiological weapons programs, including all programs for the development of systems designed in whole or in part for the delivery of such weapons.’” As a statement of agreed principles by rational centrists of both parties, it’s unifying and very useful.

This legislation would likely get a friendly reception from Elliot Engel, the hawkish Democrat who recently took over as Chairman of the House Foreign Affairs Committee. Some House Republicans are also asserting themselves. For example, Subcommittee Ranking Member Chris Smith and four other Republicans co-sponsored this non-binding resolution by calling on Trump to stick with demands for “complete, verifiable, and irreversible human rights improvements” in North Korea in nuclear negotiations.

Centrist Democrats and Republicans in Congress are increasingly uncomfortable with the impulsive, unilateralist, and isolationist direction of Trump’s foreign policy. That is driving them to be more assertive about their enumerated constitutional powers over foreign policy. Sanctions are one area where Congress grew increasingly assertive during the passivity of the Obama years, when the State Department’s career foreign service officers mostly had things their own way by default. By the time the North Korea Sanctions and Policy Enhancement Act passed in 2016, it was by a margin too overwhelming to veto. The same was true when Congress toughened the NKSPEA in Title III of the CAATSA. Notably, President Trump’s White House Counsel issued a signing statement raising constitutional objections to the CAATSA, but all of those objections were to provisions in Title II, which sanctions Russia. None referred to the North Korea part, Title III (you’re welcome, Constitution). As the White House Counsel certainly knows, Article I, Section 8 of the Constitution gives Congress the power to regulate and tax commerce with foreign nations. That includes the authority to sanction foreign persons and nations, provided it doesn’t overreach and violate the Bill of Attainder Clause by legislating “punishment” for a private person or an articulable list of persons. Congress can, however, legislate non-punitive sanctions, taxes, and regulations for neutral regulatory reasons. (If you think that line is fuzzy, so do lawyers who’ve studied the issue.)

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What if Trump cuts a deal without submitting it to Congress for approval? Congress has several (ahem) trump cards it could play here that go beyond non-binding resolutions of disapproval. One is to block nominees. Another is to put conditions on appropriations. A president’s power is greatest in the conduct of war and foreign affairs, which is why presidents turn abroad when their domestic powers ebb. But Congress’s power over a president is greatest when it’s putting limits on what the president can spend, and for what purpose. The State Department tends to interpret many of Congress’s mandates loosely, but appropriations is an area where every federal agency interprets the law strictly for fear of violating the Anti-Deficiency Act, a law that the Office of Management and Budget polices with the zeal of Joe Arpaio following a taco truck through a gated community.

One chip that takes from Trump’s pile is aid. Statutory prohibitions on aid to North Korea have been a regular feature of appropriations acts for years now. Section 7043(c) of the last year’s State Department appropriations bill contained a prohibition on the use of “Economic Support” funds for assistance to Pyongyang. It also banned foreign assistance to governments that–here comes the catch–the State Department determines to have contributed materially to North Korea’s hacking (Vietnam?). Naturally, there is a national interest waiver. The bill also contains a requirement that International Broadcasting Operations must sustain at least last year’s level of broadcasting hours to North Korea. The Senate’s defense appropriations bill has tighter language: “None of the funds appropriated or otherwise made available in this Act may be obligated or expended for assistance to the Democratic People’s Republic of Korea unless specifically appropriated for that purpose.”

Congress could also respond to a bad deal with a new round of sanctions. Say Trump trades a U.S. troop withdrawal for a test freeze, or gives diplomatic recognition to a regime that commits crimes against humanity, or promises to lift sanctions in exchange for a freeze in nuclear and missile tests. In that case, Congress’s best answer might be to enact a statutory criminal prohibition, modeled on the one in 18 U.S.C. 2332d, banning any financial transaction with the government or nationals of North Korea except under the narrowest humanitarian-based conditions. To this, Congress could add two amendments that would preemptively dash Kim Jong-un’s hopes to profit from his massive, slave-built tourist resorts at Samjiyon and Wonsan. It could also create a watch list of Chinese and third country banks known to have violated North Korea sanctions, and require the President to either certify that they’ve come into compliance or impose one or more sanctions from a statutory menu.

Finally, Congress’s enumerated power to organize, arm, discipline, and train the militia (Article I, section 8, clause 16) could be interpreted as giving Congress the power to tell the President that as long as we have soldiers in Korea, they will hold annual training exercises. That’s not the sort of thing Congress would meddle with in ordinary times. Ordinarily, they would let the Pentagon work this out with its allied counterparts. In this case, however, Trump has mooted that reason for restraint by unilaterally agreeing to a pause without consulting either the Pentagon or the South Korean government.

The point of this is not to wage a separation-of-powers war through the courts. Rather, it is to give Congress a seat at the table at Hanoi by putting Trump on notice–through tough-minded members, and through Trump’s own tough-minded advisors–that an impulsive, uncoordinated, and unfavorable deal will be dead on arrival. There’s just a chance that this notice might force Trump to do what he clearly did not do before Singapore: prepare, coordinate, and maximize his leverage, or else just walk away. And in the end, if (as is virtually assured) he doesn’t get a deal at Hanoi that protects our national security interests, the best way to maximize our leverage is to do just that—politely walk away with a bland statement that the talks and the sanctions will both continue. Meanwhile, OFAC, FinCEN, and the Justice Department should be locked and loaded, with their selector switches on “burst.” If the sanctions of 2016 and 2017 didn’t prevent (and may have made possible) the summits of 2018, no one should say that the maximum pressure of 2019 would prevent us getting a far better deal in 2020.

[Image credit: Senators Marco Rubio (R, FL), Cory Gardner (R, CO), and Bob Menendez (D, NJ)]

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