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Justice for Rev. Kim Dong Shik: Court orders N. Korea to pay $330M in damages

Asher Perlin, the lawyer who argued and won the case against North Korea at the Court of Appeals on behalf of Rev. Kim Dong Shik’s family, writes in to direct me to this news:

An Israeli NGO announced on Monday that a US federal court in Washington, DC has granted it a historic $330 million default award judgment against North Korea in a civil damages trial for wrongful death, torture and kidnapping.

The judgment, only announced Monday, but written on April 9, included $15 million dollars each to the son and brother of Reverend Dong Shik Kim, presumed dead, as well as $300 million in punitive damages. [Jerusalem Post]

In 2000, Rev. Kim was in China helping North Korean refugees who had escaped from their homeland. North Korean agents kidnapped Rev. Kim and dragged him across the border. He’s believed to have died of starvation at a North Korean military base near Pyongyang. In 2005, the South Koreans caught one of the kidnappers, charged him with Rev. Kim’s kidnapping, and convicted him of the crime.

In August 2013, a District Court found that the evidence was insufficient to prove that North Korea killed Rev. Kim after the North Koreans hustled him over the border (undoubtedly, under the noses of Chinese border guards) and dismissed the case. Kim’s family appealed, and last December, the Court of Appeals reversed the District Court.

Shurat Hadin Director Nitzana Darshan-Leitner said, “The district court was holding us to a standard that no family, who had a loved one kidnapped and murdered by an outlaw regime like North Korea could ever satisfy.”

“Virtually no one has ever returned from the camps and been able to testify about the fate of individual Korean prisoners. This is an important human rights decision that will be utilized in all political abduction cases going forward. We are proud that an Israeli NGO was able to assist this family of a Korean priest living in the US … during this holiday season.” 

The NGO also said that the US should re-add North Korea to the US State Department’s watch list, from which North Korea was removed in 2008 during a period of warming of relations.

Perlin said the court “sent a message that repressive regimes cannot exploit their repression to gain advantage in US courts.”

He added that “the fact that all witnesses were either murdered, imprisoned or are in grave fear of retaliation by the DPRK regime should not immunize North Korea from liability.”  [Jerusalem Post]

President Bush removed North Korea from the list of state sponsors of terrorism on October 11, 2008. The Obama Administration’s official view is that North Korea is “not known to have sponsored any terrorist acts since the bombing of a Korean Airlines flight in 1987.” Discuss among yourselves.

Rev. Kim’s kidnapping is just one example of North Korea’s sponsorship of terrorism, along with multiple assassination attempts directed at defectors and dissidents, several shipments of weapons to Hamas and Hezbollah, threats against American moviegoers, and an attempt by North Korean hackers to cause malfunctions in the reactors of South Korean nuclear power plants.

The $330 million judgment now sits alongside $378 million awarded to the victims of the 1972 Lod Airport massacre (and their children), and $69 million to survivors of the U.S.S. Pueblo. That’s a total, so far, of $777 million in compensatory and punitive damages, but it’s not a grand total.

Last July, U.S. District Judge Royce Lamberth found North Korea provided training, technical assistance, and rocket components to Hezbollah, and held that the North Korean government was liable for the attacks. A Special Master is deciding and apportioning the damages North Korea owes to each plaintiff.

Now, the hunt begins for North Korean assets to levy to satisfy the judgment, which may be the more challenging part of the Kim family’s pursuit of justice. I wish Mr. Perlin good hunting.

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Rev. Kim Dong Shik’s family is appealing the dismissal of its lawsuit against N. Korea

… at the U.S. Court of Appeals for the D.C. Circuit. You can read the appellants’ briefs at this link, and I previously posted the original pleadings here. The District Court dismissed the suit for lack of evidence of torture, despite the fact that at least one North Korean agent was convicted of the kidnapping in a South Korean court. For background information on Kim’s abduction from China and murder in North Korea, see this link.

Victims of terrorism and torture are allowed to sue foreign sponsors of terrorism, including foreign governments, in U.S. courts under an exception to the Foreign Sovereign Immunities Act.

In 2005, then-Senator Barack Obama signed a letter comparing Rev. Kim to Harriet Tubman and Raoul Wallenberg, and promised to oppose removing North Korea from the list of state sponsors of terrorism unless it accounted for Rev. Kim, which it never has. In 2008, when President Bush announced his decision to remove North Korea from the list of state sponsors of terrorism, presidential candidate Barack Obama supported the move, saying this:

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.

Today, the Obama Administration’s official view is that North Korea is “not known to have sponsored any terrorist acts since the bombing of a Korean Airlines flight in 1987.”

In 2007, President Obama said, “[O]ne of the enemies we have to fight — it’s not just terrorists, it’s not just Hezbollah, it’s not just Hamas — it’s also cynicism.” I don’t know about you, but President Obama’s cynicism about terrorism has certainly made me more cynical.

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12 March 2010: On the Potential for Social Unrest, Arms Trafficking, and Kim Dong Shik’s Widow Brother and Son Sue North Korea

Here’s a very long, and very interesting report on the potential for social unrest in North Korea, from a North Korean’s perspective.

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The story
on how North Korea exports arms is worth a longer post than I have time to write today.

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Kim Jong Il’s banker Ambassador to Switzerland is retiring. Hmmm.

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A U.S. District Court has issued a summons for the Foreign Minister of North Korea. I’ll have much more to say about this another day, but the interesting point here is that the widow younger brother and son of Rev. Kim Dong Shik have indeed sued the North Korean government for his abduction and murder, something I’ve long been asking people who know Mrs. Kim to urge her to do.

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South Korea still doesn’t know the identities of the four South Koreans that North Korea claims to be holding.

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Remember him? Robert King says something: “We will continue to press human right issues as we’ve done in the past.” You know, it’s that “in the past” part that sucks all the credibility out of the entire promise.

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The President of Brazil is a hypocritical ass.

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Who Remembers Kim Dong Shik? Answer: The Washington Post, Barack Obama, and Condoleezza Rice

Regular readers know that I’ve been a persistent critic of politicians of both parties who would  politicize and trivialize two  essential and  long-standing principles of American national security policy:  the intolerance of state terrorism, and the intolerance of proliferation.  North Korea’s refusal to be bound by any norms of  human civilization tempts a certain  class of politician to simply exempt North Korea from those principles.  Notwithstanding President Bush’s hawkish and mostly empty  words, his administration is about to  do exactly that  for  the dubious political rewards of a deal that won’t disarm  North Korea.   

You will also  recall that in this recent post, I published a letter containing Barack Obama’s signature, in which Obama  and other members of the Illinois congressional delegation  promised to oppose de-listing North Korea as a state sponsor of terrorism until North Korea accounts for Rev. Kim, whom its agents are believed to have kidnapped in China in 2001.  (I invite anyone to correct me if I’m wrong, but I believe I’m the first to have published it.)   Rev. Kim is believed to have died under interrogation  [Update: Another theory has it that they starved him to death].  His body is still in North Korea.  North Korean agent Ryu Young-Hwa* was convicted of taking part in  the crime and sits in a South Korean jail today.   

An appeasement-loving  press corps has mostly suspended its withering criticism of George W. Bush  on North Korea,  in spite of  his unprincipled betrayals regarding Kim Jong Il’s human rights atrocities.  That’s why it’s doubly unexpected see any of them scrape Barack Obama’s hair off of  their tongues long enough to  speak of  his first broken promise:

In January 2005, Sen. Barack Obama (D-Ill.) and other Illinois lawmakers co-signed a letter to North Korea’s ambassador to the United Nations, describing Kim as a “hero” and demanding answers from North Korea about his whereabouts. The signatories warned that they would oppose North Korea’s removal from the U.S. list of state sponsors of terrorism — long a goal of the government in Pyongyang — until a “full accounting” of Kim’s abduction was provided.

But the case of the only North Korea abductee with U.S. connections has been largely forgotten as the Bush administration has pressed ahead on a diplomatic deal to end North Korea’s nuclear program. The State Department has all but ignored the pleas of lawmakers and Kim’s wife for greater attention to the case. And the presumptive Democratic presidential nominee no longer believes that North Korea’s removal from the terrorism list should be conditional on information about Kim.  [Washington Post, Glenn Kessler]

There’s a personal irony here for me.  Last February, I attended this  panel discussion  at a synagogue in northern Virginia  that featured  Kessler, Mark Mazzetti of the New York Times, and NPR’s Don Siegal.   The subject was  North Korea’s suspected nuclear proliferation to Syria.  I didn’t mention this before because I wanted to do some research first, but at the Q&A session at the end of the event, I specifically asked Kessler about Rev. Kim’s case in the context of removing North Korea from the list of state sponsors of terrorism.  Had you been there, you’d have agreed that Kessler  seemed dismissive and uninterested in the question of Rev. Kim and  the implications of his abduction — or any other abductions —  for North Korea’s terror de-listing.  When I related the facts of Rev. Kim’s case, Kessler’s reaction was nonplussed, and he seemed unfamiliar with it.  I asserted, and Kessler disputed, that congressional action would be necessary for de-listing North Korea (in fact, such action is Congress’s prerogative, only if it objects to the de-listing). 

Now that more congressional action — successful or otherwise — to  oppose that de-listing  seems imminent, I hope Kessler will have enough class to award me the argument.  As for Kessler’s implicit concession of  the significance of this story, I’m frankly so astonished  by Kessler’s decision to cover this story and cover it accurately that I’ll waive any claim on that.

* By an unfortunate coincidence, one of Rev. Kim’s kidnappers shares  a common first name with his  widow.

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Sens. Gardner, Rubio & Risch to introduce new North Korea sanctions bill (updated)

The new bill was revealed in this column by Josh Rogin, and includes a link to the full text. The bill, which still has no number, will be the Senate’s second version of the North Korea Sanctions Enforcement Act, following the introduction by Senators Menendez and Graham of S. 1747 in July.

Both bills follow the lead of Ed Royce and Elliot Engel, the Chairman and Ranking Member of the House Foreign Affairs Committee, who introduced H.R. 757 in January. H.R. 757, in turn, is the successor to H.R. 1771, which Royce and Engel introduced back in April of 2013, and which passed the full House on a voice vote, with 145 co-sponsors, in July of 2014, but died when the last Congress ended. All three bills share the same title and most of the same content. Despite its all-Republican co-sponsorship, Gardner-Rubio-Risch takes a middle way between those versions, with some important differences and improvements. Collectively, the three bills suggest growing congressional momentum for the NKSEA, which would legislate the most important shift in our North Korea policy since the 1994 Agreed Framework. Here’s Rogin:

Now that Iran sanctions are on the verge of being rolled back, Congressional attention is turning to increasing and tightening sanctions on North Korea, a country with a growing nuclear weapons program and that continues to threaten and provoke the international community.

Oct. 10 marks the 70th anniversary of the founding of the Workers’ Party of Korea, and Western governments are concerned that Kim Jong Un will mark the holiday by launching a rocket or satellite, or even detonating a nuclear bomb for the fourth time. There’s new activity at  North Korea’s nuclear test site, but nobody really knows what, if anything, the country is planning to do next. [Josh Rogin, Bloomberg]

This, children, is how you eventually attract the wrong kind of attention from Congress. Quoting Gardner:

“This bill actually puts teeth into a policy that has been lacking in action,” he said. “All we are doing right now is talking about what North Korea shouldn’t be doing and following it up with a few cherry-picked sanctions here and there. But that’s not stopping North Korea.”

Of course, the bill is a long way from becoming a law, but support for sanctions against rogue regimes is usually high in Congress, Gardner argued. Even if the bill is enacted, it gives the president national security waivers that could be used to avoid imposing sanctions. In that case, however,  the administration would have to explain its inaction.

Following the cyberhack of Sony last year, the Obama administration did use executive orders to sanction 10 North Korean officials and three state-run organizations, including the country’s intelligence service.  The White House indicated that there would be other non-public responses. North Korea was already one of the most sanctioned countries in the world.

And Rogin was doing so well, right up until that last sentence. If you’re an OFK regular, just skip to the next paragraph. If you’re not, no, North Korea is not one of the most sanctioned countries in the world. The Treasury Department’s financial sanctions against North Korea — the ones that really matter, even more than U.N. sanctions — are not remotely comparable to our sanctions against Iran or Syria, and they’re arguably weaker than our sanctions against Belarus or Zimbabwe.

Gardner also wants to legislate sanctions on any person, organization, or government that has “materially contributed” to North Korea’s nuclear, ballistic missile, WMD or weapons programs, even in an advisory capacity. That could implicate Iran, but Gardner says that shouldn’t affect the Iran nuclear deal, which lifts many sanctions on Tehran.

Royce, with his good policy instincts and his determination to win and maintain bipartisan support in his committee, rightfully deserves the credit for sparking and leading this rebellion in Congress, and for proposing a credible alternative to years of soft-line policies and non-policies that have failed, conclusively.


For now, both H.R. 757 and the new Senate bill are the most likely to pass their respective chambers, although we still haven’t heard from Senator Bob Corker, the Chairman of the Foreign Relations Committee, who will have the final word on what goes to the Senate floor. Because the House and Senate bills are different, the bills that pass would then be referred to a conference committee for the resolution of their differences, before both chambers pass an agreed text and send it to the President’s desk.

What’s good about the new bill:

  • It makes the Special Envoy for Human Rights in North Korea report directly to the Secretary of State. This is a good step forward for advancing the stature of the position, which had recently been swallowed up by the East Asia Bureau’s agenda. There are, however, always ways to get around provisions like this. Regardless of the bill’s mandate, State can still dictate who gives the Special Envoy her assignments of work, where she sits, or who writes her performance evaluation.
  • Section 302, “Strategy to Promote North Korean Human Rights,” is an important and an excellent addition. It requires the President to make the promotion of human rights in the North a greater diplomatic priority, and to build alliances, coalitions, and public support for a stronger approach to the problem.
  • The bill retains the all-important element of personal accountability for Kim Jong-Un and his key minions, requiring that they be individually designated, and that their personal assets be blocked, specifically for their human rights abuses. Which is apparently something that U.N. Special Rapporteur Marzuki Darusman welcomes, in light of the paralysis in the U.N. Security Council:

55. In addition to a possible referral to the International Criminal Court, the Security Council, as encouraged by the General Assembly, should consider the scope for effective targeted sanctions against those who appear to be most responsible for acts that the commission deemed to constitute crimes against humanity. While the Council has yet to consider taking action on the matter, the Special Rapporteur welcomes the steps that some Member States have begun to take on a bilateral basis in that direction.

  • Section 305 is the new bill’s single best contribution. It calls on the State Department to work diplomatically to end other countries’ repatriation of North Korean refugees, and their use of North Korean slave labor (see the same U.N. report for more information about this practice).

What could be better:

  • Unlike the House bill, the findings lack any reference to North Korea’s sponsorship of terrorism, probably as a palliative to State Department objections. (For new readers, I’ve compiled and published the evidence of North Korea’s repeated sponsorship of terrorism here. That evidence was good enough for three federal district courts, one federal appellate court, and at least one South Korean court. Why not State?)
  • All three bills (Correction: the new bill and H.R. 757) lack some of the more creative funding provisions to use forfeited North Korean property to pay for humanitarian programs, or authorizing the use of blocked North Korean assets to fund carefully monitored food aid programs. (I almost forgot: Menendez-Graham kept them.) There’s a perfectly good argument that those provisions are best dealt with in authorization and appropriations acts instead of a sanctions bill, but let’s remember that the one goal that both sunshiners and hard-liners espouse is the transformation of North Korean society. Empowering North Koreans who share that goal is an important part of a broader policy.
  • The new bill lacks H.R. 757’s detailed transaction licensing provisions. With the removal of mandatory blocking of all property of the North Korean government (see Section 104(c) of H.R. 757) the careful regulation of dollar transactions with Pyongyang becomes particularly important. This should be a high priority for resolution at the conference committee.
  • I’d like to put in a word for the Connolly Amendment, proposed Rep. Gerry Connolly (D, Va.). It adds “significant progress in planning for unrestricted family reunification meetings” as a condition for suspending the sanctions. I hope that will survive in the final bill that emerges from the conference.
  • The rationale for the new exception in Section 106 for the importation of goods is difficult to understand. I see no appetite in either Congress or the executive branch for importing more goods from North Korea; in fact, it was none other than Barack Obama who signed Executive Order 13570 in 2011, severely restricting those imports, and many in Congress seethe with bitter hostility toward Kaesong.
  • Arguably, the enhanced inspection authorities in Section 205 should also apply to persons designated under Section 104(b), such as for arms trafficking, and not just 104(a).
  • Section 207’s call for travel advisories will do nothing to dissuade gullible people from visiting North Korea. A stronger approach would have been to authorize Treasury to ban transactions incident to travel while Americans were arbitrarily detained there.
  • I wish the lifting provision in Section 402 said “U.S. persons” instead of “U.S. citizens,” so that it would cover the Rev. Kim Dong Shik.

Unlike the House’s H.R. 757, both Senate bills remove the mandatory blocking of all property of the North Korean government. Unlike Menendez-Graham, the new Gardner-Rubio-Risch bill puts the key word “shall” back into Section 104(a), which is only logical; the whole logical structure of the bill is based on tiered, conduct-based sanctions. Having two distinct sets of discretionary sanctions with different penalties never made much sense; it just replaced “shall” with “may” to please the State Department. The new Senate bill steers a compromise position that I believe is a sound approach. If the next President enforces Gardner-Rubio-Risch as written, and also takes advantage of the new authority of Executive Order 13687 when necessary, there will be sufficient authority to strand the regime’s offshore billions, while avoiding unintended consequences on North Korea’s poor.

This isn’t a perfect bill, but it’s a very strong one. It’s the work of some of our brightest senators, including freshman rising star Cory Gardner, and Marco Rubio. (At the risk of speaking out of school, I’ll tell you that Rubio personally read every word of a previous version of the bill, clearly understood it, and made many intelligent edits and comments to it. Many members of Congress would simply have relied on their staffs.) Where the new bill is less strong than the House version, it makes smart compromises and leaves room to strengthen the sanctions after future provocations. A combination of all three pending bills, taking the best elements of each, would be an important step forward to slowing Pyongyang’s proliferation, and toward shifting North Korea’s balance of power away from the men with the guns and the food, toward those without.

~   ~   ~

Update: The bill is introduced, and has a number: S. 2144. More reporting via Yonhap, The Hill (see also), the Sunshine State News, and the Denver Post. I wasn’t able to attend yesterday’s hearing, but you can see video of it here. (Some sources are calling the bill the “North Korean Sanctions and Policy Enhancement Act,” but that’s not the title that shows on the text I have.)

On a related note, the U.N. Security Council is also exploring what sanctions on North Korea it will strengthen if His Corpulency goes ahead with a missile test, which it apparently isn’t going to do on October 10th, but as Bruce Klingner notes, it eventually will do. The U.N.S.C. members’ current focus seems to be on expanding the luxury good sanctions, and the U.N.’s laughable list of prohibited exports certainly leaves much room for improvement. While I certainly endorse that approach, I also think they should be looking at blocking North Korean air and maritime shippers, including Air Koryo, whose history of dual use has attracted the attention of the U.N. Panel of Experts. In theory, if North Korea had to depend on foreign shippers for its trade, it would have a harder time, say, hiding missiles under sacks of cement, or MiGs under sacks of sugar.

Latest word, however, is that the launch pads are empty. Who knows, of course, what Pyongyang’s intentions ever were, but I wonder if the warnings dissuaded Pyongyang from going through with it, at least for now.

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Contradiction isn’t argument: A response to Doug Bandow on N. Korea and terrorism

In the years after my return from four years with the Army in Korea, I found much to agree with in Doug Bandow’s writing — up to a point. Bandow is best known — at least in the context of Korea — for arguing that South Korea can and should pay for its own defense, and that U.S. Forces Korea should withdraw. A supporter of the isolationist and semi-retired cult figure, Ron Paul, Bandow favors the withdrawal of all 28,500 U.S. military personnel from South Korea. But if we’ve learned anything in the last dozen years, it’s that ill-advised invasions and sudden disengagements can both create dangerous power vacuums. Yes, South Korea can and should pay for its own defense. U.S. ground forces could leave on a five-to-ten-year timetable and leave behind some pre-positioned equipment, and the U.S.-Korea alliance could evolve into something like our alliances with Jordan, Turkey, or Israel. That would serve the interests of both countries.

This is decidedly not Bandow’s direction. He views the total withdrawal of USFK as mood music for “initiating negotiations” with Pyongyang to improve relations. The premise of his unified theory of Korea policy, expressed in a November 2014 op-ed, is that economic engagement can still transform (rather than merely perpetuate) a state that has built its survival strategy on isolation and xenophobic hostility. In the 1990s, this idea was once the received conventional wisdom, before it failed so conclusively that it was abandoned and replaced by policy paralysis that prefers to be called “strategic patience.” At the cost of a mere $9 billion — also indirectly paid by U.S. taxpayers — the legacy of “engagement” includes no signs of political reform, but a North Korea that’s as menacing as ever, only with an effective nuclear arsenal. Bandow wanted President Obama to “talk” to North Korea, but talk about what? Since 2008, Pyongyang has refused to talk about denuclearization.

Then, twenty days after Bandow published that, this happened:

President Obama said on Friday that the United States “will respond proportionally” against North Korea for its destructive cyberattacks on Sony Pictures, but he criticized the Hollywood studio for giving in to intimidation when it withdrew “The Interview,” the satirical movie that provoked the attacks, before it opened. [N.Y. Times]

In my recent report on North Korea’s sponsorship of international terrorism, I carefully distinguished the hacking of Sony, which wasn’t a violent act and therefore not terrorism, from this:

Warning

We will clearly show it to you at the very time and places “The Interview” be shown, including the premiere, how bitter fate those who seek fun in terror should be doomed to.

Soon all the world will see what an awful movie Sony Pictures Entertainment has made.

The world will be full of fear.

Remember the 11th of September 2001.

We recommend you to keep yourself distant from the places at that time.

(If your house is nearby, you’d better leave.)

Whatever comes in the coming days is called by the greed of Sony Pictures Entertainment.

All the world will denounce the SONY.

More to come…

To argue that this isn’t an act of terrorism against the United States defies both the law and common sense. It would be inconsistent with the State Department’s own citation of threats of violent acts, cited in years of previous country reports (page 16). To offer no credible response to the most effective foreign attack on free expression in American history will assuredly invite more attempts to censor us.

Writing in The National Interest, however, Bandow not only argues against an SSOT re-listing on policy grounds, he insists that North Korea has not supported international terrorism, period:

Stanton does a lawyerly job of offering evidence that the DPRK government is a nasty piece of work. Over the last decade or so it has kidnapped and assassinated opponents, supported groups and governments opposed by the U.S. government, attacked South Korea, launched cyber-attacks, sold nuclear technology, and conducted missile and nuclear tests. What Pyongyang apparently has not done since 1987 is initiate a terrorist attack against anyone, let alone America. North Korea is an evil state, not a terrorist state. [Doug Bandow, The National Interest]

This is like telling your rabbi that you eat bacon, pepperoni, gummi bears, chitterlings, Chee-tos, meatloaf, elderberries, and scrapple … but never pork. Fortunately, my report does a better job of distinguishing which of these acts are support for international terrorism, and which ones aren’t.

To his credit, Bandow doesn’t entertain conspiracy theories or deny that North Korea was behind the “Guardians of Peace” threat. Less to his credit, he seems to have read the Cliff’s Notes instead of the full report. He offers no argument against the federal court decisions holding that North Korea abducted a U.S. resident, sold weapons and technical assistance to Hezbollah, or helped the Japanese Red Army and the Popular Front for the Liberation of Palestine carry out the Lod Airport massacre. He doesn’t deny the evidence that South Korean courts relied on to convict a kidnapper of Rev. Kim Dong Shik, or the unsuccessful assassins of Hwang Jang Yop and Park Sang Hak. He doesn’t deny the multiple shipments of arms from North Korea to Hezbollah. He doesn’t deny that North Korean clandestine agents are running around China and South Korea, jabbing poison needles into human rights activists.

Bandow doesn’t exactly argue that these things fall outside the legal definition of international terrorism, either; he just says they do. This might force us into a difficult choice between the legal analysis of three federal district court judges and a panel of the U.S. Court of Appeals for the D.C Circuit (on one hand) and Doug Bandow (on the other hand), except that as Michael Palin taught us, contradiction is not the same thing as argument.

If none of those things counts as the sponsorship of international terrorism, what does? It’s important to note that most of this conduct happened after President Bush agreed to remove North Korea from the LSSOT, and after President Bush certified that North Korea has agreed not to support acts of terrorism in the future.

Washington should not stretch the definition of terrorism past the breaking point to cover all manner of activities that are not by any normal understanding considered to be terrorism. Especially since the designation has had no practical impact on the North.

The opposite seems closer to the truth — Bandow’s definition of international terrorism is so narrow and cramped as to evade perception entirely. In my report, I noted multiple cases of Pyongyang’s nasty conduct that didn’t meet the definition, including conventional military attacks on and threats against South Korea. The proliferation of nuclear and chemical weapons technology may not fit the narrowest plausible legal definition of terrorism, but that still leaves us with the State Department’s history of citing it in its Country Reports on Iran, Syria, and other countries.

This vagueness is why I call on Congress to clarify the legal standards for an SSOT listing. To that end, I offer suggested language that is the lowest common denominator of the three statutes that define “international terrorism” and “terrorist activity.” A clearer definition should be informed by years of State Department precedent, but only where that precedent is consistent with the statutes’ language. Bandow writes that “even” I agree that the standards are vague. “Especially” would have been better. I want the law to be clear, because I’m tired of watching the State Department make a muddle of it. A deterrent is useless without clear notice to potential sponsors.

Bandow argues that a SSOT listing isn’t a very strong deterrent anyway. I agree that it isn’t nearly strong enough, but if you understand how weak U.S. sanctions against North Korea really are, you will understand that putting North Korea back on the LSSOT and triggering just the transaction licensing provisions of 31 C.F.R. Part 596 would close an important loophole in those sanctions. On pages 26 to 28, I explained which consequences of a SSOT listing would matter, and which wouldn’t. On page 99, I recommended adding to the list of options available to the Secretary of State to deter the sponsorship of terrorism more effectively, including the sort of tougher secondary financial sanctions that devastated Pyongyang’s palace economy in 2005. 

Another consequence I referred to in the recommendations, but ought to have explained in greater detail in the body of the report, is a policy under which the Securities and Exchange Commission requires securities issuers to disclose their investments in states that sponsor terrorism and abuse human rights. Of course, the latter basis is more than enough to justify imposing a requirement to report investments in North Korea, with or without an SSOT re-listing. A disclosure requirement would open investors in North Korea, including foreign corporations that issue securities in the U.S. market, to reputational harm, protests, and boycotts until Pyongyang ceases its crimes against humanity.

Bandow also frets that re-listing North Korea as a SSOT could upset the North Koreans and provoke a violent reaction.

Nor would Pyongyang necessarily remain quiescent in response to what it would see as another U.S. attack. Warned CRS, the DPRK could “respond to a redesignation by taking additional provocative actions, such as more nuclear-weapon or long-range-missile tests [8].”

I’m sure a lot of things upset the North Koreans, including (in no particular order) any level of defense relationship with South Korea or Japan; the existence of South Korean villages or warships in disputed waters; U.N. Security Council sanctions resolutions, and governments that enforce them; the granting of asylum to North Korean refugees; the making and showing of films critical of Kim Jong Un in the United States, Germany, or Myanmar; academic conferences in downtown Washington; and my report. To discard even non-kinetic policy responses because of the risk of a violent reaction may or may not be a complete preemptive surrender of all policy options. It’s for Bandow, not me, to explain what options remain, and where he would draw the line. Sanctions don’t seem to be among the options Bandow favors, either:

In January, House Foreign Affairs Committee Chairwoman Ileana Ros-Lehtinen introduced legislation to effectively reimpose the terrorism designation. Last year, the House approved Rep. Ed Royce’s H.R. 1771 [5], which proposed unilateral measures to enforce multilateral sanctions. Ros-Lehtinen’s H.R. 204 [6] is substantially more punitive. The bill’s “findings” are a veritable kitchen sink of complaints of DPRK misbehavior including “duplicity in its negotiations with the United States” and defiance of “the international community.” The measure urges the administration to relist the North as a SSOT, imposes the penalties for being listed as a SSOT, and sets numerous impossible conditions (opening North Korean prison camps to international inspection, for instance) for lifting sanctions. Almost as an afterthought, the bill bars any expenditure to open diplomatic relations. [Bandow]

But Bandow misreads H.R. 1771 (since updated and reintroduced as H.R. 757) and misunderstands its relationship to U.N. sanctions. The U.N. relies on member states to enforce sanctions with their national laws. H.R. 757’s “unilateral” sanctions are intended, in large part, to make multilateral sanctions (which are failing now) work. As I argued in detail here, both U.S. national sanctions and U.N. Security Council sanctions are essential and complementary elements of an effective sanctions program. That’s why Section 202 calls on the State Department to work with other member states to enforce U.N. sanctions consistently, Section 104 provides for secondary sanctions against member states that knowingly violate them, and Sections 401 and 402 recognize the core interests of our allies by making the return of abductees and North Korea’s nuclear disarmament prerequisites for lifting the sanctions. 

I can’t speak to the intent behind H.R. 204, but the fact that Ms. Ros-Lehtinen had a “kitchen sink” to throw in doesn’t refute a single item in her bill of particulars. Bandow also calls the opening of North Korea’s prison camps an “impossible” condition, an implicit argument for tolerating the use of our financial system to sustain the regime that runs those camps.

I actually thought Bandow’s most compelling argument was one he seems to have offered as a reductio ad absurdum:

Only Iran, Sudan, Syria, and departing Cuba currently are on the list, and none has engaged in terrorism against America, at least within normal memory. If terrorism is the actual concern, why aren’t Pakistan, Qatar, and Saudi Arabia on the list? 

Bandow doesn’t seem to be any better informed about Iran than he is about North Korea. With respect to Qatar and Saudi Arabia, however, I’d agree that both have supported (or tolerated support for) the Al-Nusra Front and ISIS. I can’t imagine that even Bandow would deny that both groups are security threats to the United States. He just holds up the law as mandating a procrustean amputation of ties with two states with which we’ve long had strong (if strained) ties, rather than offering Riyadh and Doha the same nuanced diplomacy he would have us extend to Pyongyang. Just as we exhausted diplomatic options to end North Korea’s sponsorship of terrorism, we should exhaust our diplomatic options to cut off Qatari and Saudi support for terrorists. If talks alone can’t achieve that result, page 99 of the report offers a series of “one or more the following” sanctions proposals, under which a reformed LSSOT framework would give the Secretary of State the flexibility to tailor sanctions options to the different exposures, vulnerabilities, and levels of culpability of different governments. It’s fair to say that as currently written, the law is procrustean. That’s not an argument against reforming it into something more useful.

Eventually, Bandow gets around to where he should have begun and ended — that as a policy matter, the LSSOT shouldn’t exist at all. If Bandow can offer better suggestions to fill the policy gap that would leave, I’m ready to hear them. International terrorism is the greatest security threat the U.S. faces today, and it’s a far greater threat when states arm and employ the terrorists. States are more likely to arm and employ terrorists when given effective impunity for doing so. The idea of deterring states from sponsoring terrorism is as absurd as you want to make it. By sticking to that policy argument, Bandow would have freed himself from the burden not shouldered, to argue against the inconvenient evidence of Pyongyang’s sponsorship of terrorism. That evidence was sufficient for multiple competent courts of law, and it ought to be good enough for our State Department, too.

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N. Korea’s support for slashing of U.S. Amb’r might be state sponsorship of terrorism

Yonhap and The Washington Post are reporting that North Korea’s official “news” agency, the Korean Central News Agency or KCNA, has expressed its support for an extremist’s slashing of U.S. Ambassador Mark Lippert yesterday, calling it “a just punishment.” You won’t find those words in the English version of KCNA’s report, whose headline is a dry, “U.S. Ambassador Attacked by S. Korean,” although you will see that KCNA spelled the Ambassador’s name “Report.” The Korean-language headline of the same article, however, translates to something like, “Act of just punishment for war-crazy America.” Here’s a screenshot of the original Korean.

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KCNA has as bad a reputation for malware infections as Tijuana has for infections of other kinds, but if you’re willing to risk it, here’s a link. You’ve been warned.

The linguistic disparity looks like another case of KCNA code-switching for Korean- and English-speaking readers, in the same way it chose not to translate its most racist attack on President Obama. KCNA must assume that English speakers won’t notice, and that Korean speakers won’t care (which says a lot about what kind of Korea KCNA believes in). I’ve pasted the full English-version KCNA article below the fold. Here are some excerpts:

Kim Ki Jong, representative of the Uri Madang, a civic organization demanding peace against war, suddenly stormed with a knife Mark, shouting the south and the north must be reunified and he is opposed to a war. [….]

He didn’t stop shouting slogans opposing war and the U.S.-south Korea joint military exercises, being walked away by police.

Because you can’t really say you love peace unless you’ve slashed a diplomat’s face for it.

KBS, CBS, MBC and other broadcasting services of south Korea reported the news, screening Mark shedding blood from his face and wrist. The AP and other foreign news agencies promptly aired the breaking news.

This is my cue to remind you that the AP is a business partner of KCNA, through two memoranda of agreement that the AP refuses to disclose. According to leaked drafts, however, the AP agreed to “serve the purpose of the coverage and worldwide distribution of policies of the Worker’s Party of Korea and the DPRK government.”

CNN, quoting south Korean media as reporting Kim was opposed to the joint military exercises, said that his remarks were prompted by his anti-American feelings.

The puppet police are strictly guarding U.S.-related facilities allegedly to cope with emergency.

The recent case amid mounting anti-Americanism reflects the mindset of south Korean people censuring the U.S. for bringing the danger of a war to the Korean peninsula through the madcap saber-rattling. -0-

President Bush removed North Korea from the list of state sponsors of terrorism on October 11, 2008. The Obama Administration’s official view is that North Korea is “not known to have sponsored any terrorist acts since the bombing of a Korean Airlines flight in 1987.” Discuss among yourselves.

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Ambassador Lippert’s wounds were ghastly:

Surgeon Jung Nam-sik of Yonsei University Hospital, speaking at a televised briefing, said 80 stitches were needed to repair Lippert’s facial wound, which was more than four inches long and one inch deep. The cut did not affect his nerves or salivary gland, the surgeon said. Lippert also suffered significant knife wounds to his left wrist while apparently struggling to push off his assailant.

The ambassador is expected to be able to use his hand after four weeks of treatment, but due to tendon damage, a more complete recovery will take longer because of the loss of sensation in his little finger, his doctors said. [N.Y. Times]

According to the doctors, “it will take several months for Mr. Lippert to recover full use of his injured fingers.” If there’s anything fortunate about this ugly incident, it’s the fact that it happened in the world’s plastic surgery capital. It’s never a good thing to have your face slashed by a knife-wielding extremist, but if it happens, there’s no better place to get reconstructive surgery than Seoul. The attack must have been horrifying for Lippert and his wife. That Pyongyang would support this openly tells you plenty about its easy, casual embrace of crimes that cause human suffering.

The attack will mean the end of Lippert’s brave walks through Seoul without bodyguards, but if anyone in the State Department reads this, I hope they’ll encourage the Ambassador to go right back onto the streets, scars and all — with bodyguards — as a vivid reminder of what Kim Ki-Jong’s ideology stands for. As soon as he feels well enough, of course.

Kim sounds like the sort of left-nationalist whose ideology was at its apex when I was in Korea, as I described it in my congressional testimony years ago. That sentiment has since ebbed, although latent extremism is a hard thing to poll. South Korea wants us to see this as an isolated incident, which, strictly speaking, it is today.

Kim Ki Jong

[Kim Ki-Jong at a protest at the U.S. Embassy in Seoul, one year ago]

That wasn’t always the case. In 1989, left-nationalist thugs occupied U.S. Ambassador Donald Gregg’s residence, occupied the U.S. Information Service building in Seoul, and tried to burn down the U.S. Cultural Center in Gwangju. In 2006, others blocked former Ambassador Sandy Vershbow from going to an interview.

There is a small-but-significant constituency in South Korea that agrees with Kim Ki-Jong’s sentiment, if not necessarily his methods. Some commenters at the far-left, U.S.-based Minjok Tongshin are expressing their support for the attack. (Yes, I’m assuming that some of them are South Koreans.) One even compares Kim Ki-Jong to Yun Bong-Gil, who orchestrated an anti-Japanese bombing in 1932, and who is considered a national hero in South Korea. The intersection of nationalism and socialism is an especially ugly place.

Other commenters disagree with Kim’s violent methods. Overall, the vast majority of Koreans will be repelled by the attack.

~   ~   ~

Having established that the reports of North Korea’s support for the attack are accurate, let’s examine the legal significance of that support. Under Section 6(j) of the Export Administration Act, the Secretary of State may designate a state as a sponsor of terrorism if he finds that the state has “repeatedly provide[d] support for acts of international terrorism.” There are no authoritative definitions of “support” or “international terrorism” for purposes of a SSOT listing, but we can get a good idea of what those words mean from the various definitions of “terrorism” scattered around the U.S. Code, and in the case of “support,” from other, less authoritative sources.

We’ll take the simpler question first. Was the attack international terrorism? Based on the facts reported so far, pretty clearly so. It was a premeditated, violent, politically motivated attack by the head of a violent, extremist subnational group (it calls itself Uri Madang) against a noncombatant target. The attacker knew where and when Lippert would be speaking and may have had a hand in inviting him to breakfast. His political motive was to protest annual U.S.-Korean military exercises. Targeting an ambassador makes the attack international terrorism. As such, it would meet the definitions at 22 U.S.C. 2656f and in the Criminal Code, at 18 U.S.C. 2331(1). It would also meet the definition of “terrorist activity” in the Immigration and Nationality Act, which is the definition the State Department uses to designate Foreign Terrorist Organizations.

Also, Kim reportedly told the police, “Today I committed a terrorist act.” So there’s that.

The question of “support” is the harder one. Although KCNA’s statement certainly fits one plain-usage meaning of “support,” as far as we know, the support was only post-hoc, verbal support. There’s no evidence that KCNA has ever referred to Kim Ki-Jong or “Uri Madang,” the group he led before today. On the other hand, Kim had visited North Korea six times, which is pretty rare for South Koreans who aren’t involved in some kind of cross-border business venture. Kim even tried to build a Kim Jong-Il* monument in Seoul. It seems unlikely that the North Koreans could have failed to take an interest in him by his third visit, but that’s just my speculation.

By itself, KCNA’s statement of support doesn’t prove that North Korea encouraged, facilitated, or planned the attack. But what does “support” mean, legally? The answer isn’t clear. There are only two places where anyone wrote anything in official sources approximating a definition. One of them is a (non-binding) 1989 congressional report, quoted here. That report lists some categories of conduct that would qualify, including providing materials, money, training, sanctuary, or planning or directing attacks. KCNA’s post-hoc verbal support isn’t any of those things, but that list isn’t exclusive.

A more authoritative source is this section of the Foreign Relations Authorization Act for Fiscal Years 1988 and 1989 (the same section that defines “international terrorism,” as codified in Title 22). It doesn’t, strictly speaking, define “support” — no statute does that — but it does describe conduct that the State Department is required to report in its in annual Country Reports on Terrorism. That conduct includes political support. That suggests Congress wanted State to consider conduct that falls short of material support, but which nonetheless encourages terrorism. And a fair reading of KCNA’s reaction to the attack on Ambassador Lippert would be, “More like this, please.”

Did the North Koreans say anything before the attack that could be viewed as inciting it? Well, read this and this from Pyongyang’s Rodong Sinmun from a few days ago and ask yourself how Kim Ki-Jong would have interpreted it. For example:

The whole Korean nation and the peace-loving people all over the world are required to resolutely check and frustrate the anti-DPRK nuclear war drills by the U.S. and south Korean puppet group that harass the peace and stability on the Korean peninsula and in its vicinity.

Rhetoric like this is common in North Korean propaganda. We have no way of knowing whether Kim Ki-Jong even read this, of course. It’s technically illegal to read the Rodong Sinmun in South Korea. Regardless of whether you believe Pyongyang incited this attack, however, it pretty clearly means to incite the next one.

Is there any precedent for the State Department considering the mere incitement of attacks to be the state sponsorship of terrorism? There is. State’s 1991 Country Reports on Terrorism cited Saddam Hussein’s call for “all of his terrorist allies to attack coalition targets, frequently through announcements on Iraq’s Mother of Battles radio.” The 1997 report (among others) cited the Ayatollah Khomeini’s offer and broadcast of a bounty for the first guy to kill Salman Rushdie for writing “The Satanic Verses.” The 2009, 2010, and 2012 reports cited Syria’s hosting of al-Rai radio, a pro-Baathist radio station that “transmitted violent messages in support of terrorism in Iraq.” So there’s ample precedent for State to consider incitement of violence as the state sponsorship of terrorism. And it’s certainly not above Pyongyang to directly incite the very sort of act that Kim Ki-Jong committed:

Screen Shot 2015-03-05 at 11.36.54 AM

Could State re-list North Korea as an SSOT because of its approval of an attack on a U.S. Ambassador? The legal standards are vaporous, but yes, it could. There isn’t much evidence that Pyongyang actually caused this incident or intended for it to happen, although its statement today encouraged more like it. The incitement of terrorism was enough to justify the SSOT listings of Iran, Iraq, and Syria. It could justify a re-listing of North Korea.

Should State re-list North Korea as a SSOT for expressing its support for this attack? No. State should re-list North Korea as a state sponsor of terrorism because of its multiple attempted or completed assassinations of activists and defectors in China and South Korea. It should re-list North Korea because of its long relationship with Hezbollah, in which North Korea helped Hezb dig a tunnel system, and was caught shipping it two boatloads and one plane-load of weapons, including MANPADS. It should re-list North Korea because of its threat against audiences for “The Interview,” right here in the United States. It should re-list North Korea for the kidnapping and murder of the Reverend Kim Dong Shik, for which Barack Obama personally promised, in writing, to oppose removing North Korea from the list to begin with.

All of those things meet any reasonable interpretation of what “support for international terrorism” means. Of course, if none of those things was enough for our State Department, I don’t suppose this will be, either.

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* A previous version of this post said Kim Il-Sung. Since corrected.

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Travel in N. Korea “feels incredibly safe,” says tour company whose customer just got 6 years hard labor.

In a proceeding that took just 90 minutes — about as long as most arraignments I’ve done — North Korea’s “Supreme Court” has sentenced American tourist Matthew Todd Miller to six years of hard labor for “entering the country illegally and trying to commit espionage.” The AP omits the State Department’s easily accessible finding that North Korea’s “judiciary was not independent and did not provide fair trials,” but adds the amusing detail that Miller waived his right to a North Korean lawyer.

It also adds the interesting and new (to me) details that Miller “admitted to having the ‘wild ambition’ of experiencing prison life so that he could secretly investigate North Korea’s human rights situation,” and “claimed, falsely, that his iPad and iPod contained secret information about the U.S. military in South Korea.” Or so say the North Korean “prosecutors.”

It isn’t clear what gave Miller the notion that he would be housed in the same conditions as North Korean political prisoners, but it’s a safe bet that he won’t be gassed to test a chemical weapon, forced to dig his own grave and beaten to death with a hammer, killed for trying to eat a guard’s whip or eating chestnuts off the ground, or drowned in a waste pond. Or raped and murdered. Or made to race next to a modern-day “parachutist’s wall” for the amusement of his guards.

Also, I wonder who’ll break it to Miller that someone else has already written a book about conditions in North Korea’s Gulag Lite, the North Korean analogue to a “country club” prison.

In prison, Miller will join fellow American Kenneth Bae. A third American tourist, Jeffrey Fowle, has not yet been formally tried and sentenced. The Rev. Kim Dong Shik, a lawful permanent resident whom North Koreans abducted from China and brought to North Korea in 2000, is unavailable for comment.

The consensus view of North Korea’s motive for sentencing Miller to hard labor, rather than giving him a good smack on the side of his head and putting him on the next flight out, is that it is political. That is, Pyongyang is using its American hostages to force the U.S. government into talks about aid, diplomatic recognition, sanctions relief, and de facto recognition of North Korea as a nuclear state. As even the AP concedes, “North Korea has a long history of attempting to use American detainees to win attention and concessions from Washington, which insists Pyongyang must give up its nuclear ambitions before relations can be normalized.”

President Bush removed North Korea from the list of state sponsors of terrorism on October 11, 2008. The Obama Administration’s official view is that North Korea is “not known to have sponsored any terrorist acts since the bombing of a Korean Airlines flight in 1987.” Discuss among yourselves.

~   ~   ~

This morning, out of curiosity, I went to the web site of Uri Tours,* the company that sold Miller his overpriced tour of North Korea, and found this:

Screen Shot 2014-09-14 at 9.51.15 AM

[Plaintiff’s Exhibit A, accessed September 14, 2014.]

The U.S. State Department takes a very different view of whether travel in North Korea is safe:

Screen Shot 2014-09-14 at 9.53.54 AM

[Plaintiff’s Exhibit B]

Imagine a company in America selling asbestos pajamas with “feels incredibly safe!” printed on the packaging. Gleeful personal injury lawyers would line up outside the store with clipboards to sign the purchasers’ families up for contingency-fee retainer agreements.

Perhaps an equally lucrative strategy would be to do the same at the Capital Airport in Beijing, at the gate where the Air Koryo flights leave for Pyongyang. Off-hand, I can’t think of a case of a company as negligently — even fraudulently — inducing a customer into buying an unsafe product without adequate safety warnings. The American Bar Association has written about the potential liability of travel agents** to their customers for placing them in dangerous situations:

The travel agent is considered the legal agent of the travel service provider for the product that is sold. That is, the travel agent is employed by or acts on behalf of the transportation companies. However, the recent growing trend is for courts to find that agents owe a fiduciary duty to the customer, that is, the travel agent is the legal agent of the customer, as well as being the legal agent of the provider of travel. This dual agency status of being an agent for both the traveler and the provider of travel has continued to grow as travel agencies have relied less and less on the business customer and more on the leisure market.

Generally, in the United States, a travel agent is liable for injuries caused to the traveler if the agent did not act with due diligence in investigating the safety of the provider of travel that is acting as its principal. Potential travelers in the leisure market (as opposed to business travelers) rely on the travel agent’s expertise and special knowledge of the cruise ship or hotel or resort that they are booking. In this situation there is a higher standard of care owed by the travel agent to the customer.

Of course, Miller’s alleged acts would be appear to be those of an unstable person. Could Uri be held liable for under such circumstances? If Uri owed Miller a fiduciary duty, it might have had a duty to make reasonable inquiries about his mental stability and his intentions on arriving in North Korea, and to refuse to sell tours to a person likely to endanger himself. Uri Tours, which seems to betray its own concerns about liability, is saying that it made those inquiries:

Uri Tours, the New Jersey-based company that organized Miller’s trip, said they assisted him in designing a custom tour. [L.A. Times, Steven Borowiec]

Well …. You can’t deny that Miller is now experiencing an aspect of life in North Korea that few tourists will ever see. Miller is, or so the usual cliches go, getting “a rare glimpse” and “exclusive access” to an places that few Westerners will be allowed to see. Indeed, ever since the AP gained exclusive access to Pyongyang, it has been relatively rare for them to write about that aspect of life in North Korea.

I could go on: Miller’s visit has opened new doors for foreigners in North Korea! (… and then locked them securely behind him). His visit has resulted in new diplomatic contacts! (… through the Swedish protecting power.) He has made new people-to-people contacts! (… through the food tray slot in his cell door.) He has given North Koreans new insight into life in America! (His interrogators report that we’re decadent, unpatriotic, and mentally unbalanced.)

Uri Tours chief executive Andrea Lee said that as a result of Miller’s arrest and detention, the company has instituted new measures to more thoroughly screen passengers before their tour. She said Uri Tours now routinely requests secondary contacts from prospective travelers and reserves the right to contact those references to confirm facts that are in question.

I can hardly wait to see what “new measures” Uri Tours will take to protect the safety of its customers. Not sending them to North Korea comes to mind. Meanwhile, the deceptive assurance that travel in North Korea is safe remains on Uri’s site, months after Miller’s arrest.

“Although we ask a series of tailored questions on our application form designed to get to know a traveler and his/her interests, it’s not always possible for us to foresee how a tourist may behave during a DPRK tour,” Lee said via email, using the initials for the nation’s formal name, the Democratic People’s Republic of Korea.

Or, a court could find that tours of North Korea are, in light of past history, so inherently dangerous as to impose even greater legal duties on Uri and other tour companies.

No doubt, Uri had its customers sign liability waivers. Having reviewed dozens of such waivers and researched how state law treats them, I have a dim view of the legal protection they provide. While a signed waiver might be helpful to Uri’s defense, it would not provide a complete defense, especially if a court found that Uri’s warnings were negligent or knowingly deceptive.

I can already see the TV commercials: Have you been sentenced to hard labor in North Korea? Call the law firm ….

But of course, when Americans book tours of North Korea, Americans are the least likely to be the ones who suffer for it. You really have to be a soulless imbecile to do something as morally negligent as putting dollars into Kim Jong Un’s pocket.

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Update: This post was edited after publication.

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Update 2: Welcome, Washington Post readers.

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* In Korean, “Uri” means “our,” and in contemporary Korean society, has a strong ethno-nationalist connotation. For example, “Uri” was also the name of the left-wing nationalist political party of former President Roh Moo Hyun, who held office from 2003 to 2008, and who increased aid to North Korea dramatically. In his memoir, former Secretary of Defense Robert Gates described Roh as “anti-American” and “a little crazy.” In 2009, Roh committed suicide by leaping to his death from a cliff.

~   ~   ~

** Because North Korea is no longer listed as a state sponsor of terrorism, it is immune from suit under the Foreign Sovereign Immunities Act, even for acts that are transparently meant to use Americans as hostages to win diplomatic concessions. It would lose this immunity and become subject to suit, if it is re-listed as an SSOT because of its detentions of American citizens.

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A hero, buried in the State Department’s memory hole

In case you were wondering, no, I’m still not over that whole North Korea / state-sponsor-of-terrorism thing.  The Weekly Standard has helped me nurse this old grudge by printing my fisking of the State Department’s latest annual country reports on terrorism.  I’ll give you the first paragraph and let you read the rest on your own:

Even after a year of North Korean nuclear and missile tests, this year’s State Department “Country Reports on Terrorism” makes the risible claim that North Korea is “not known to have sponsored any terrorist acts since the bombing of a Korean Airlines flight in 1987.” It would appear that State’s definition of “acts of terrorism” no longer includes international assassinations, threats against foreign media, or arms sales to terrorists—all of which North Korea has done during Barack Obama’s presidency.  Indeed, no one has refuted State’s assertion more convincingly than Obama himself.

Kim Dong Shik 2Regular OFK readers will remember that President Obama preemptively refuted State’s obtuse assertion–one so ignorant of the facts that it must be willfully so–when he signed this letter in 2005 protesting North Korea’s disappearance of the Rev. Kim Dong Shik.  The shelf life of Senator Obama’s promise was just three years, but let’s be fair about this–Obama’s predecessor didn’t perform any better at keeping his promise to another abductee’s family; he was just more careful to make his promise less explicit.

Sadly, the Kim family’s pursuit of justice suffered another setback recently.  A District Court judge has dismissed a suit by his family against the government of North Korea for his abduction and disappearance (hat tip).

The result is disappointing but understandable.  Courts must impose rigorous standards of evidence to render judgments, particularly when other nations will be expected to honor those judgments.  Ordinarily, the courts lack jurisdiction to hear tort claims against foreign countries, but after 9/11, Congress created an exception to the Foreign Sovereign Immunities Act for acts of terrorism and torture.  In Rev. Kim’s case, there would have been sufficient evidence of North Korea’s responsibility for the abduction; after all, two North Korean agents were convicted for it in South Korean courts (opens in pdf).  After that, however, the evidence that Rev. Kim was actually tortured fades behind North Korea’s walls of night, fog, and fear, and we must rely on hearsay accounts from defectors.  I can understand why a court might demand more. One hopes that if more reliable evidence ever arises, the action can be revived.

Of course, none of this gets State off the hook, because the evidence of North Korea’s involvement in Rev. Kim’s kidnapping is more than sufficient for State’s purposes, and transnational kidnapping of a political opponent is about as clear an example of terrorism as you could think of for purposes of this definition.  Yet the finest minds in your State Department would have you believe that North Korea hasn’t sponsored any acts of terrorism since 1987.

Rev. Kim, Hwang Jang YopPark Sang-Hak, and Patrick Kim were not available for comment.

Recent history has made me deeply uncomfortable with the very idea of martyrdom–and particularly religious martyrdom–but Rev. Kim’s quiet, selfless, peaceful, and principled self-sacrifice was heroic.  It deserves to be remembered by Koreans and Americans alike.  It deserves better than the burial in a shallow, unmarked memory hole it got from our State Department and our last two presidents.

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Good Sanctions and Bad Sanctions

Weeks before North Korea’s latest nuclear test, it was clear that the political climate surrounding North Korea policy was ready for a big shift away from honor-system diplomacy and toward tougher sanctions.  This test is likely to mean a major legislative push here in Washington — not just to punish North Korea, but to craft and enact sanctions that attack the regime’s structural weaknesses, with the intent of either coercing its disarmament or destroying it.  For all the tension that will prompt in the short term, it is the only plausible non-military path to a long-term solution.

Republicans in Congress will start by pushing to re-list North Korea as a state sponsor of terrorism.  Opponents of such a move are fond of arguing that this would be be motivated by factors unrelated to terrorism, but those people either don’t know the facts or are hiding them.  It was the Bush Administration that de-listed North Korea for political reasons, in spite of North Korea’s refusal to acknowledge, end, or renounce its past and ongoing terrorism.  Opponents of re-listing North Korea should read the legal definition of “international terrorism” at 18 U.S.C. 2331, and then explain why the abduction and murder of the activist and rescuer, the Rev. Kim Dong Shik, doesn’t count.  Or the attempted assassination of defector-dissident Park Sang-Hak.  Or the attempted assassination of defector-dissident Hwang Jang-Yop.  Or all of those other poison needle assassination attempts against human rights activists North Korea’s agents were behind, whether in China or South Korea.  Or its calls for its supporters to slit Lee Myung Bak’s throat, or its threat to shell the Blue House.  Or its threat to shell the offices of newspapers that criticize the regime.  I could go on, and on.  North Korea has never sponsored more terrorism in its dreadful history than in the period since George W. Bush removed it from the list of state sponsors of terrorism on October 11, 2008.

This is only a start. I also expect to see a much broader, more comprehensive sanctions effort aimed at North Korea’s proliferation and money laundering, certainly in Congress and perhaps

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North Korea’s New Terror Wave

You probably heard somewhere that President Bush removed North Korea from the list of state sponsors of terrorism on October 11, 2008, to reward it for promising to completely, verifiably, and irreversibly give up its nuclear weapons. You probably also know that I did not favor this decision, to put it mildly. First, North Korea never acknowledged or apologized for its past and continuing acts of state-directed terrorism, such as the abduction and murder of Rev. Kim Dong Shik, its support for Hezbollah, or its failure to fully account for foreign abductees. Second, the latter concern meant that de-listing North Korea would cause grave damage to our relations with our Japanese ally. Third, by the summer of 2008, North Korea’s compliance with Agreed Framework II was on a clear track toward repudiating the very commitments that the de-listing was meant to reward: North Korea had already been caught building the Syrians a nuclear reactor, had failed to deliver a complete declaration of its nuclear programs, was stalling on verification, and was turning over samples that were smeared with highly enriched uranium, even as it continued to repeat the lie that it had no HEU program. And given all of that has happened since 2008, President Obama’s failure to reverse President Bush’s decision was legally wrong, bad diplomacy, and irreconcilable with a credible counter-terrorism policy. There is also the matter of its inconsistency with then-Senator Obama’s promises to oppose de-listing if North Korea failed to account for Rev. Kim and keep its Agreed Framework II obligations.

Even so, proponents of de-listing could still say in the summer of 2008 that North Korea’s sponsorship of terrorism was at historically low levels, at least compared to its own past history, at least as long as they could overlook North Korea’s use of its state media to terrorize the governments and populations of other states. After all, North Korea’s threats of nuclear force were so frequent before and after the listing that it’s hard to say that its removal from the terror list coincided with a measurable increase in that trend.

In other important ways, however, the de-listing of North Korea as a sponsor of terrorism has coincided with an alarming increase in the North’s willingness to arm terrorists, terrorize its neighbors, and send its agents abroad to murder its critics. Certainly before President Bush de-listed North Korea, we had not seen anything like North Korea’s sale of weapons, including man-portable surface-to-air missiles, to terrorists, at least in open sources. Before 2008, the idea that the North would torpedo a South Korean warship or shell a South Korean fishing village to punish it for cutting off aid would have been unthinkable. Those attacks transformed the military stalemate on the Korean peninsula from one of mutual deterrence and stalemate to one of limited war and failing deterrence.

In 2008, North Korea was not known to have attempted to assassinate any of its critics abroad since its assassination of Lee Han-Young in Seoul in 1997. But last July, two agents of the North Korean ruling party’s Reconnaissance Bureau were arrested and pled guilty to attempting to assassinate high-level defector Hwang Jang-Yop, a needless and reckless act given that Hwang was 87 at the time. (He died of natural causes a few months later). It wasn’t the first attempt. Before her October 2008 conviction, North Korean spy Won Jeong-Hwa unsuccessfully attempted to assassinate “a South Korean military officer in Hong Kong using an aphrodisiac laced with poison,” and “tried to but failed to meet and assassinate Hwang.” Won was also carrying poisoned needles, which she was ready to jab into “South Korean intelligence agents” when ordered to do so. In other words, the North was probably planning the first of its recent wave of assassinations in the South at the very time it was demanding that the Bush Administration de-list it as a sponsor of terrorism.

It is useful to remind ourselves that “international terrorism” is a word that means something. The U.S. Criminal Code defines it this way:

As used in this chapter –

(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; [18 U.S.C. sec. 2331]

Since 2008, poisoned needles seem to have become the North Korean terrorist’s weapon of choice. We’ve seen a wave of actual and abortive needle attacks in recent weeks:

A South Korean missionary died in the Chinese border city of Dandong last month after suddenly collapsing, a South Korean official said Friday. The 46-year-old missionary, identified by his family name Han, fell to the ground while foaming at the mouth as he waited for a taxi in the city’s downtown area on Aug. 21, according to the official of the South Korean Consulate in the northeastern Chinese city of Shenyang. [Yonhap]

The death follows a separate attack in which a South Korean activist — also working in northeast China — says he was stabbed with a poison-tipped needle, the Korea JoongAng Daily reported. The unidentified man said he had been stabbed in the waist with a poisoned needle after leaving a sauna in the province of Jilin, before collapsing in the street and being rushed to the hospital, the paper said. He had reportedly been openly protesting against the North’s regime.

The [South Korean] foreign ministry said it did not know whether there was any North Korean involvement in the two incidents, but its diplomats had asked Chinese authorities to ensure the safety of South Koreans near the North’s border. It said Chinese police conducted an initial autopsy but found no traces of poison. They proposed a second one but Kim’s family wanted to go ahead with cremation. The consulate “has strongly requested the related organization in the Chinese government to ensure the safety of South Koreans in border regions, and plans to take necessary measures to prevent further incidents from happening,” its statement said. [AFP]

Given the obvious suspicions about China’s candor, it’s unlikely we’ll ever know precisely what happened to these two men, but South Korean investigators aren’t the only ones who suspect the obvious suspect:

Tim Peters, a Seoul-based Christian activist, said he had a “very strong suspicion” but no evidence that the missionary who died had been poisoned by the North’s agents. He told AFP the victim had been involved in evangelical work among North Korean refugees, an activity that was taken extremely seriously by the regime.

Peters founded Helping Hands Korea, an organisation involved in evangelising and giving general assistance to refugees from the North who cross into northeast China. Asked if missionaries were in fear of such attacks, he said: “There’s a kind of sobering awareness that this is always lurking in the shadows. It’s part of the price one pays for doing missionary work in this area.”

South Korean pastor Kim Dong-Shik was kidnapped in Yanji in January 2000 and taken to North Korea, according to Seoul authorities. [AAP]

And now, South Korea’s National Intelligence Service says it has foiled a poison-needle plot against Park Sang-Hak, the leader of Fighters for a Free North Korea, a/k/a The Balloon People:

South Korea has arrested a North Korean agent who plotted to assassinate an outspoken anti-Pyongyang activist with a poison-tipped needle, the intended victim and a news report said Friday. The agent, identified only as An, was in possession of the needle and other weapons at the time of his arrest, Yonhap news agency said. The target of the apparent plot, the latest of several blamed on Pyongyang, was activist Park Sang-Hak, who is involved in launching cross-border propaganda leaflets fiercely critical of the North’s regime. [….]

An, a former North Korean special forces commando aged in his 40s, came to the South in the late 1990s as a defector but disappeared several years ago, according to Yonhap. After resurfacing in the South in February, An sought to meet Park. But Park, alerted by the anti-espionage agency, said he did not show up for a meeting with An at a subway station in southern Seoul on September 3. “An told me by phone that he was to be accompanied by a visitor from Japan who wants to help our efforts. But then I was told by the NIS not to go to the meeting due to the risk of assassination,” Park told AFP. “Following advice from intelligence authorities and police, I don’t see any strangers these days.” [AFP]

The anniversary of 9/11 is a fitting occasion to ask the extent to which we’re prepared to overlook the use of terrorism by foreign governments. North Korea was originally de-listed to induce it into nuclear disarmament, something that almost no one now believes North Korea will ever do. If de-listing was really about diplomatic and political calculations, no one really believed that counter-terrorism was one of its major policy goals. But shouldn’t it matter that since North Korea’s de-listing, it has increasingly relied on terrorism as an instrument of national policy to serve its political objectives?

As ordinary citizens, of course, we have little influence over such arcane questions of foreign policy. But one way to register your opinion effectively would be to contribute to Park Sang-Han’s Fighters for a Free North Korea through the North Korean Freedom Coalition.

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Pueblo Plaintiffs Hunt for North Korean Assets in Treasury’s Files

When the survivors of the U.S.S. Pueblo, joined by the widow of their captain, sued North Korea for the horrific torture they endured in 1968, the real question wasn’t whether they were entitled to compensation, it was whether they could ever collect any. North Korea, as it has done with all of the other suits against it in U.S. federal courts, refused to respond to the suit after being duly served at its U.N. mission. Consequently, the court entered a $68 million judgment for the plaintiffs (by contrast, North Korea has been litigious in the British courts).

hawaiian-good-luck-sign.jpg
The Hawaiian Good Luck Sign

I’ve periodically reviewed the public court records regarding each of these cases. My most recent review of the docket of Massie v. Democratic People’s Republic of Korea today indicates that Richard Streeter, who represents the Pueblo plaintiffs, is now poring through a trove of information turned over by the Treasury Department’s Office of Foreign Assets Control, or OFAC, about North Korean assets within American jurisdiction. This information is largely a matter of speculation to those of us whose access is limited to open-source information. Here, OFAC claims that public disclosure would be prohibited by the Trade Secrets Act. But as it has done in similar previous cases, OFAC agreed to share information about blocked North Korean assets with Streeter, subject to a protective order. Here’s some text from OFAC’s unopposed motion for that protective order:

OFAC has agreed to provide plaintiffs with certain information responsive to the subpoena, pursuant to the terms of the attached proposed protective order.1 Without a protective order, the release of this information might violate the Trade Secrets Act (“TSA”), 18 U.S.C. § 1905, which imposes criminal penalties for the disclosure of information falling within its terms without appropriate authorization of law. Thus, while OFAC does not waive any right, privilege, or immunity to which it may be entitled with respect to any further response, it respectfully requests that, in light of the prohibitions of the Trade Secrets Act, the Court authorize its disclosure of information responsive to plaintiffs’ subpoena via the attached proposed protective order.2

OFAC explains why the information must remain protected from public disclosure:

Here, the information OFAC is willing to disclose was provided to it pursuant to 31 C.F.R. § 501.603, which requires financial institutions and other holders of blocked property to file reports with OFAC within ten business days of 4 Case 1:06-cv-00749-HHK Document 16 Filed 10/05/09 Page 4 of 6 the blocking of the property, as well as annually. The requirement is “mandatory,” see id., and “[r]eports filed are regarded as privileged and confidential. Id. subsection (a). In the absence of a protective order, disclosure of information submitted to OFAC under § 501.603 would adversely affect OFAC’s administration of its programs relating to terrorist financing and economic sanctions, which depends in large part on OFAC’s ability to maintain the confidentiality of the information submitted to it.

This implies, but doesn’t necessarily mean, that there are assets within OFAC’s reach to satisfy the judgment. Note also that according to public court records, Streeter filed a writ of garnishment, presumably for something. This does not mean, however, that whatever assets there may be are subject to attachment. In fact, OFAC has carefully reserved its position on whether any blocked assets are subject to attachment under the Foreign Sovereign Immunities Act. One hopes that the government of this country will not frustrate the pursuit of justice by those who suffered so much to defend that same country. With Treasury now revitalizing its own hunt for North Korean assets to block, the various plaintiffs with claims against North Korea may have access to more attachable assets.

While this is an interesting glimpse at Streeter’s strategy, we’ll have to wait and see whether he manages to collect any of Kim Jong Il’s yacht money. Meanwhile, this is one more complication and disincentive for anyone contemplating new business transactions with Kim Jong Il’s regime.

Related: The Calderon-Cardona plaintiffs, who recently won that massive $378 million judgment against North Korea, filed a similar protective order, as agreed with OFAC, just last week. The court has also permitted them to register their judgment in other jurisdictions, noting cryptically that although the protective order prevents them from disclosing where the North Korean assets are, they aren’t within the District of Puerto Rico.

Meanwhile, the family of the Rev. Kim Dong Shik has also won a default against North Korea. Even so, the Foreign Sovereign Immunities Act requires a plaintiff to prove the liability of the defendant to the court’s satisfaction. No hearing date has been set, but it looks like it could happen this month.

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President Obama Goes Wobbly on North Korea

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 –

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:

 

[Voice of America]
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 better 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.

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If This Isn’t the State Sponsorship of Terrorism, What Is?

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.
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    For North Korean Spies, Sending Refugees to the Gulag Is Entry Level Work

    While most of my allotted blogging time has been consumed by following the Cheonan Incident, several other k-blogs covered the story of one “Kim,” a South Korean, who volunteered in 1999 to work for North Korean intelligence, hunt down and rat out defectors hiding in China, and send them blissfully off to death, or a fate worse than. He also agreed to spy on activists helping the refugees, and on the South Korean military. “Kim” has since been arrested by the South Korean authorities in Seoul:

    Mr Kim, 55, was recruited by North Korea during an illegal visit to China in the late 1990s, Yonhap quoted prosecutors in Seoul as saying. He received espionage training in Pyongyang in 2000 before being sent to China as an agent to hunt defectors, they said. But he left China after an accomplice was jailed there. He was arrested as he arrived back in South Korea. Officials said the case was being investigated to see whether Mr Kim had any further accomplices engaged in spying.

    Seoul prosecution spokesman Oh Se-in told AP news agency Mr Kim had denied the charges. Mr Oh said Mr Kim had violated South Korea’s National Security Law, which prohibits nationals from engaging in activities which could benefit Pyongyang or having unauthorised contact with North Koreans.

    This AP report contains more interesting details about “Kim:”

    The 55-year-old man, who was arrested last week and who denies the charges, is accused of taking up the spy job after meeting a female North Korean agent in 1999 in China’s eastern Shandong province, where he was believed to be engaged in drug trafficking, the official said on condition of anonymity because an investigation was ongoing.

    The man, surnamed Kim, allegedly traveled to Pyongyang in 2000 for 15 days of spy training and received US$10,000 (S$13,904) and 2 kilograms of narcotics from the North, the official said.

    The suspect was sent back to China and started abducting South Korean activists who were helping North Koreans defect from their impoverished, authoritarian homeland. The kidnapped Koreans were sent to the North in cooperation with the female agent, the official said.

    The man also kidnapped North Korean defectors hiding in China and forced them back to the North. He also tried to gather information on South Korean intelligence officers operating in Chinese towns near North Korea, the official said.

    “Kim” is only the latest of several North Korean spies known to have worked on Chinese soil, some of them more openly than others. The Ilshimhue spy ring, which penetrated to unknown depths into South Korea’s former leftist goverment, met its North Korean handlers in a safe house at 3089 Dongxuhuayuan, 18 Shuangqiaodong-lu, Zahoyang-qu, on the outskirts of Beijing.

    It stands to reason that North Korea isn’t repatriating all those refugees across Chinese territory by itself; China must be complicit in permitting the North Korean spies to operate on its soil. Certainly North Korean spies couldn’t have abducted Rev. Kim Dong Shik, who was confined to a wheelchair, and transported him across the Chinese-North Korean border without the Chinese authorities knowing. Certainly the reference to “Kim” “abducting South Korean activists” suggests that he could be a third suspect in Rev. Kim’s abduction, an issue that even captured the sadly ephemeral interest of President Obama.

    The abduction of Rev. Kim is now the object of a multimillion-dollar lawsuit in a U.S. federal district court. Thus far, one North Korean agent has been convicted in a South Korean court of taking part in Rev. Kim’s abduction, and another was being questioned on suspicion of involvement before this story broke. (The latter suspect, apparently a North Korean native who went rogue and defected, does not appear to be the same person as “Kim.”)

    These three are not the only North Korean agents who’ve worked in China, only to turn up in South Korea later. There is also Ma Young Ae, who became the object of controversy among other defectors, who questioned her truthfulness when she applied for asylum in the United States in 2006, claiming persecution by South Korea’s then-leftist government. Ma, an admitted “former counterintelligence agent” for North Korea, has told the New York Times that “she did undercover work in China before she defected in 1999.” That’s a year too early to know about Rev. Kim’s abduction, but not too late to describe the North Korean agents’ modus operandi, or to have met “Kim,” the spy.

    Ma continues to be a controversial figure today. This blog post identifies Ma as one at least two accusers who claim that the Rev. Chun Ki-Won attempted to coerce sexual favors from her (more here, at TMH). Frankly, given all of the baggage with Ms. Ma’s reputation and her admitted links to North Korean intelligence, I can only say that someone is lying. Rev. Chun may be a hero who has, for obvious reasons, become the target of a regime-orchestrated smear campaign. He may be a scoundrel using his position to gain fame and sexual satisfaction, but if he is, he’s certainly chosen a strenuous and dangerous way to get what’s easily available in any South Korean city for a modest and negotiable fee, and virtually no risk of arrest or prosecution. Rev. Chun could also be both of those things — a hero and a scoundrel. Chun does have a reputation as showboat, but no one but Rev. Chun and his accusers knows the truth about the other accusations. Chun is also a survivor who has outlasted plenty of other activists who got caught. This implies a personality attracted to risk, but it also implies one that doesn’t make stupid mistakes, either. Knowing the good that Rev. Chun has demonstrably done for many other people, I’m inclined to ask for more credible evidence than Ma Young-Ae can offer before I deny him the benefit of the doubt. I profess no knowledge about the credibility of the other accusers, but as a defense attorney, I’ve seen multiple accusations against a single subject dissolve under cross-examination.

    Finally, there is the case of Won Jong-Hwa, who was arrested in 2008 after sexually seducing and collecting information from male South Korean officers:

    Won Jong Hwa, 35, is suspected of collecting information, including photographs and locations of key military installations and weapons systems, partly by offering sexual favors to military officers. One of her lovers, identified as a 26-year-old army captain, was detained for offering classified information to Won even after he found out she was a North Korean spy.

    After obtaining information in South Korea, Won handed it over to North Korean agents in China. She frequently traveled to China and delivered to North Korean intelligence agents there the name cards of more than 100 South Korean officers, whose e-mail accounts are said to have been hacked into from China.

    Won was first dispatched to China, where she was commissioned to kidnap North Korean refuge-seekers in China for repatriation, and South Korean businessmen to the North.

    In a bid to reach Seoul, Won married a South Korean worker in China, disguising herself as a Korean resident in China. She divorced her husband immediately after entering the South in October 2001, and falsely reported to Seoul’s authorities that she was a defector from the North, according to investigators.

    I blogged about Won’s case at the time of her arrest and conviction, and when a lieutenant who became one of her lovers was sentenced. Won was recruited by the North Korean regime at a time when she was facing a potentially harsh punishment for stealing zinc. In 1999, she also got her start working in China spying on refugees until she was reassigned to South Korea. At that point, she claimed to have had a change of heart and defected to the South.

    Via Andrei Lankov, North Korea has a very long history of spying on and abducting its enemies. One of the lessons from the case of “Kim” and others like it is that North Korea’s ideology continues to appeal to a hard core of sympathizers in South Korea. Another is that not all who claim to be defectors are what they represent themselves to be. It’s not a reason to stop accepting defectors, but it is a reason to vet them carefully and remain open to following the evidence in some convoluted directions.

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    Delayed, But Not Denied: American Victims Sue North Korea

    Until recently, I did not know that there are three pending federal lawsuits against North Korea in the U.S. federal court system, not counting the $69 million verdict won last year by the lawyers representing the surviving crew members of the U.S.S. Pueblo. After hearing that other suits might be pending, I signed up for my very own PACER account and did some searching, and sure enough. Interestingly, although these documents are all publicly available, the newspapers haven’t reported on them in much detail, and I don’t believe anyone else has published these documents.

    That’s why I decided to put this page up — to follow pending civil litigation against North Korea, to track efforts to satisfy and collect judgments against its regime, and to aggregate reports of foreign investment in North Korea that may be amenable to levy and garnishment by plaintiffs. Although foreign governments are ordinarily immune from suit in U.S. courts, one recent amendment to the Foreign Sovereign Immunities Act strips that immunity from states for their sponsorship of terrorist acts, and another provides for a civil cause of action by victims of terrorist acts. Whatever your feelings about the subject, the intent of Congress is clear, and it seems to me a peculiar form of madness to suggest that noncombatants who are the victims of unlawful violence should not have lawful and nonviolent remedies.

    So far, North Korea’s response has been to ignore the lawsuits, so the multimillion-dollar default judgments are piling up. Which leads to the interesting part of this: collecting these judgments. The obvious sources are entities with debts or obligations to North Korea and which also have financial interests in the United States. In some cases, it is also possible to seek enforcement of U.S. judgments in foreign courts, just as U.S. courts often enforce foreign judgments.

    My objective in publishing these legal documents on the Web is broader than simply putting this information out there for the public’s information. It is also to aggregate news reports that may be of interest to plaintiffs with unsatisfied judgments about North Korean assets that can be found, intercepted, levied, and garnished. I do not conceal my hope that their success at holding North Korea accountable will deter potential investors and their banks from investing in North Korea.
    _________________________________________________

    Kim v. Democratic People’s Republic of Korea
    U.S. District Court for the District of Columbia, Case No. 09-00648, The Honorable Richard W. Roberts

    kim-dong-shik1.jpgThe brother and son of the Rev. Kim Dong Shik are suing North Korea for his kidnapping from China and subsequent murder. Rev. Kim was a lawful permanent resident of the United States who lived in the Chicago suburbs. In 2000, Rev. Kim was deeply moved by reports of North Koreans fleeing persecution and starvation in North Korea, only to be hunted down and repatriated by Chinese police. He traveled to northeastern China to do what he could to help the North Korean refugees there. North Korean government agents found him, kidnapped him on Chinese soil, and carried him back across the Chinese-North Korean border. (Naturally, the Chinese noticed nothing out of the ordinary when a wheelchair-bound U.S. resident with an other-than-skeletal build was taken from their territory and across their border.) Here’s a quote from the Complaint:

    24. When Reverend Kim refused to adopt the Juche ideology he was punished by being deprived of all food by his jailers, who were officers, employees and agents of defendant North Korea.

    25. Reverend Kim died as the result of starvation and the torture inflicted upon him during his imprisonment by officers, employees and agents of defendant North Korea.

    26. Although the exact date and location of Reverend Kim’s death are not known, his remains are believed to be in People’s Army Camp 91, a garrison in Sangwon, a suburb on the outer skirts of Pyongyang.

    South Korean courts have convicted one North Korean agent in Rev. Kim’s kidnapping; another was recently reported to be under investigation.

    In 2004, then-U.S. Senator Barack Obama of Illinois signed a letter to the North Korean mission to the United Nations, promising that he would oppose removing North Korea from the list of state sponsors of terrorism until North Korea accounted for Rev. Kim and returned his remains to his family. Presidential candidate Barack Obama broke that promise on 2008, when he announced his support for President Bush’s decision to remove North Korea from the list to reward North Korea for what amounted to non-performance on its promise to verifiably give up its nuclear weapons program.

    State Department negotiator Christopher Hill was later asked by a Washington Post reporter whether he’d received a letter from Mrs. Kim, asking for Hill’s assistance in bringing Rev. Kim’s remains home for a funeral and burial. Hill denied receiving the letter, only to have this blog publish photographs of Hill receiving the letter from Rep. Ileana Ros-Lehtinen. Hill is now the U.S. Ambassador in a sleepy diplomatic backwater called Baghdad.

    The North Koreans haven’t made an appearance to defend the suit. The plaintiffs recently translated their complaint into Korean and served it on the North Koreans. The attorney for the plaintiffs filed a proof of mailing with the court on January 21, 2010. The defendants have 60 days to answer. Tick, tock.

    Case Documents:
    * First Amended Complaint and Lien of Lis Pendens
    * Plaintiff’s Status Report
    _________________________________________________

    Massie v. Government of the Democratic Peoples’ Republic of Korea
    U.S. District Court for the District of Columbia, Case No. 06-00749, The Honorable Henry H. Kennedy

    pueblo-crew-middle-finger.jpgSurviving crew members of the U.S.S. Pueblo and Rose Bucher, the widow of the skipper, Cdr. Lloyd Bucher, sued for the horrific torture the crew endured at the hands of the North Koreans in 1968. Here’s an excerpt from the court’s findings of fact and conclusions of law:

    72. Like most other hostages, Massie was dragged out of his room and beaten with weapons ranging from belts, boards, boots and buckles. He had his arms pulled back and a two by-four placed though them. He was then beaten in the stomach and kicked on his shoulders and arms. He also had to hold a chair over his head until he couldn’t hold it any more. Then he was kicked. See Tr. 109, April 21, 2008. The hostages were beaten so badly that the torture rooms were covered in blood. Each succeeding hostage was forced to clean up the blood of the preceding hostage before having their own blood spread over the walls and floor for the next hostage to clean up. See id. at 108.

    The North Koreans did not appear to defend their conduct, so on December 30, 2008, the court entered a default judgment for the plaintiffs in the amount of $65,850,000, almost four times the price of these sweet yachts Kim Jong Il tried to buy last year, as opposed to, say, grain or infant formula. The plaintiffs are now in the process of finding, attaching, and levying North Korean assets to satisfy the judgment. On February 18, 2010, the court entered a writ of garnishment; however, the document is not available online (it’s probably sealed) so I can’t tell you whose assets were garnished, or for how much.

    Case Documents:
    * Complaint
    * Findings of Fact and Conclusions of Law (Consider yourself warned)
    * Judgment
    _________________________________________________

    Kaplan v. Hezbollah
    U.S. District Court for the District of Columbia, Case No. 09-00646, The Honorable Richard W. Roberts

    north-korean-weapons-iran.jpgPlaintiffs allege that they were injured by Hezbollah rocket attacks on Israel sue North Korea for assisting Hezbollah with military training, assistance in digging a network of underground bunkers, and supplying it with weapons via Iran (Sound familiar? Not even a little?). Here’s an excerpt from the complaint:

    Working in concert with the Islamic Republic of Iran (“Iran”), North Korea provided rocket and missile components to Hezbollah. North Korea sent these rocket and missile components to Iran where, pursuant to a prior agreement between Iran, North Korea and Hezbollah, they were assembled and shipped to Hezbollah in Lebanon. These rocket and missile components were intended by North Korea and Hezbollah to be used and were in fact used by Hezbollah to carry out rocket and missile attacks against Israeli civilian targets.

    Most of the damages alleged are psychological, but not all:

    34. On July 13, 2006, at approximately 14:30, plaintiff Michael Fuchs was driving his car in Safed when a rocket filed by Hezbollah at Safed struck nearby. Massive amounts of shrapnel penetrated Fuchs’ car and caused him severe injuries. Fuchs lost large quantities of blood, lost consciousness and was rushed to the intensive care unit of Rebecca Ziv Hospital. Fuchs’ throat was slashed as a result of the explosion and his right hand remains completely paralyzed. Fuchs has been permanently disabled. He is unable to work and relies on intensive and expensive medical treatments on an on-going basis. As a result of this rocket attack Michael Fuchs suffered severe physical, psychological, emotional and financial injuries.

    But was it a North Korean rocket? The complaint doesn’t say, and that’s an apparent weakness in the case for causation. That said, I’ll be the last to say that an injustice was done if North Korea loses a few million dollars (real ones) in this case. There’s compelling evidence that North Korea is supplying arms to Iranian-backed terrorists who intentionally target civilians. What’s more, the Israeli law firm behind this suit has also been assisting with both of the other pending complaints listed on this page.

    The plaintiffs are in the process of serving their complaint on the North Koreans and filed an affidavit of foreign mailing with the court on February 25, 2010. So far, North Korea’s lawyers haven’t showed up to defend the case.

    Case Documents:
    * Complaint
    * Answer to Court’s Order to Show Cause
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    Calderon-Cardona v. Democratic People’s Republic of Korea
    U.S. District Court for the District of Puerto Rico, Case No. 08-01367, The Honorable Francisco A. Besosa

    the_lod_massacre.jpgIn 1972, the Japanese Red Army (JRA) and the Popular Front for the Liberation of Palestine (PFLP) carried out a terrorist attack at Lod Airport, Israel that killed 26 people, 17 of them religious pilgrims from Puerto Rico (Wikipedia says 24 dead and 78 injured). One of those killed was Carmelo Calderón-Molina, a 77 year-old father of eight. The terrorists shot him the heart while he was trying to protect others. He died at the scene. One of his daughters was listening to the radio when she heard it announced that her father had been killed. She had to tell her brothers and sisters that their father had been murdered. Although it’s fairly well known that North Korea has long sheltered and supported the JRA, the complaint alleges that North Korea also helped the PFLP:

    43. The North Korean government trained members of the PFLP and other terrorist organizations in the 1960s and 1970s, and this training was conducted in, among other places, North Korea, Lebanon, and the People’s Democratic Republic of Yemen (a.k.a. South Yemen, a state in present-day southern Yemen that united with the Yemen Arab Republic in 1990 to form the current Republic of Yemen).

    44. In September 1970, George Habash, PFLP’s leader, traveled to North Korea where he met with North Korean officials and received assurances of North Korean support for the PFLP. During this visit, which occurred under the auspices of the North Korean government, George Habash was introduced to nine senior members of the JRA terrorist leadership who were being sheltered by and operating in North Korea.

    45. As a result of this meeting between George Habash and the JRA leadership, an agreement was reached whereby the PFLP and JRA would cooperate in future joint terrorist attacks and propaganda efforts.

    46. Thereafter, North Korean government instructors provided guerilla warfare training and other expert advice and guidance on terrorism to members of the PFLP and the JRA in the PFLP’s training bases in the Beka’a Valley in Lebanon.

    The trial concluded on December 3, 2009. North Korea did not make any appearance or present evidence. The court ordered the plaintiffs to present the court with proposed findings of fact and conclusions of law by March 4, 2010, but the deadline has been extended by an unknown number of days. Assuming the plaintiffs meet that deadline, the court is likely to enter a default judgment against the North Koreans.

    A previous action by the same plaintiffs, making similar allegations, was filed in the District of the District of Columbia, on April 24, 2006, and voluntarily dismissed on April 11, 2008. It may be that the plaintiffs wanted to re-venue the case for the convenience of their clients and witnesses. The new suit was filed on March 27, 2008.

    Case Documents:
    * Complaint
    * Motion for Entry of Default Judgment
    * Docket Note of Trial, Part 1
    * Docket Note of Trial, Part 2

    Update: The court awarded the plaintiffs $78 million in compensatory damages and $300 million in punitive damages on July 15, 2010. You can read the decision here.

    _____________________________

    North Korea has never acknowledged, apologized for, admitted, or paid compensation of any of these acts. President Bush removed North Korea from the list of state sponsors of terrorism on October 11, 2008, to reward North Korea for promising to give up its nuclear weapons program. On May 26, 2009, North Korea conducted its second test of a nuclear weapon. On February 3, 2010, President Obama decided that he would not restore North Korea to the list of state sponsors of terrorism.

    North Korean Foreign Trade:
    Here is where I’ll continue to aggregate news reports about companies doing business with North Korea. This isn’t my advice to anyone to do anything; it’s just a collection of links, mostly to news reports that report on particular foreign investments in or business partnerships with North Korea. It’s still a work in progress, but you can see that.

    China South Korea Sweden Switzerland
    -Tonghua Steel & Iron -Hyundai Asan
    -Woori Bank
    -Noko Jeans -Exotix
    United Kingdom United States
    -The Koryo Group
    -The Chosun Fund
    -Remote Lands

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    Ten Years Later, South Korea Questions Suspected North Korean Agent in U.S. Resident’s Kidnapping

    kim-dong-shik.jpgThe Reverend Kim Dong Shik, a U.S. lawful permanent resident, was kidnapped from China by North Korean agents 10 years ago today. Rev. Kim was there helping North Korean refugees. Somehow, the North Koreans managed to carry Rev. Kim back across the Chinese-North Korean border without any interference from our friends the ChiComs, despite the fact that Rev. Kim was wheelchair-bound (do wheelchairs even exist in North Korea?).

    Years later, rumors emerged to the effect that Kim was tortured to death and buried on a North Korean military base. Kim’s American widow and children have just two modest requests — to know what happened to Rev. Kim, and for the return of his body so that they can hold a funeral and visit his grave.

    At first, American politicians seemed sympathetic to the Kim family. In January 2005, the entire Illinois congressional delegation (Mrs. Kim lives in the Chicago suburbs) signed a letter to the North Korean government stating that it would oppose removing North Korea from the list of state sponsors of terrorism until it accounted for Rev. Kim. The letter compared Rev. Kim to Harriet Tubman. One of the signatories was then-Senator Barack Obama. By then, a suspected North Korean agent, Ryu Young-Hwa, was pending trial in South Korea, accused of having been one of Rev. Kim’s captors. Ryu was convicted in April 2005 and is still serving a prison sentence.

    The North Koreans never did account for Reverend Kim’s fate, but in June 2008, President Bush announced that he was removing North Korea from the list anyway. Then-candidate Obama flip-flopped and announced his conditional support for the removal. Bush’s North Korea negotiator, Christopher Hill, had brokered the deal to remove North Korea from the list. The Washington Post later asked Hill about a letter sent to him from Rev. Kim’s widow, Esther, asking for Hill’s help to bring Rev. Kim’s remains home. Hill denied having received the letter, but a reader later provided me photographs of Hill receiving it directly from Rep. Ileana Ros-Lehtinen.

    Almost everyone has now forgotten about Rev. Kim Dong Shik, although the story of his final weeks on this earth continues to unravel. This week, we learn that South Korea is questioning another suspect in his kidnapping:

    Do Hee-yun, head of the Seoul-based Citizen’s Coalition for Human Rights of Abductees and North Korean Refugees, told the JoongAng Ilbo that a former North Korean spy who “played a principal role” in the kidnapping of Reverend Kim is being interrogated by South Korean authorities. According to Do, the ex-agent, named Kim, wasn’t staying at the official North Korean refugee shelter Hanawon, but instead was at another facility for investigation. The ongoing investigation should shed some new light on Reverend Kim’s abduction.

    On Jan. 16, 2000, he was kidnapped in Yanji, China, and was forced into North Korea. Kim had helped about 13 North Korean refugees in China to move to South Korea in November 1999.

    Pyongyang ignored Seoul’s demand for Kim’s repatriation. The pastor reportedly refused to cooperate with the North Korean investigators who wanted to record Kim’s entry as a voluntary one. South Korean intelligence said Kim weighed just 35 kilograms (77.2 pounds) at the time of his death in February 2001, due to torture and malnutrition. But little has been known so far of the North Korean government’s involvement in the kidnapping, and of specific details of how Kim ended up in Pyongyang.

    Another defector reported Kim, the agent, to South Korean authorities. Other defectors also apparently identified “Kim” as a North Korean agent.

    “Based on Jeon’s testimony, the former agent grabbed Reverend Kim by the arm and pushed him into a taxi,” Do said. “Before handing him over to North Korea, the ex-spy took away his cell phone and $1,000 in cash. These are some specific details.

    Human rights groups held memorial rallies for Rev. Kim today in Seoul. If you have any pictures or descriptions, please e-mail them or leave a comment.

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