On North Korea policy, the opinion pages suddenly read like posts from this blog

Since January’s nuclear test, I have noted with satisfaction the signs that Washington’s consensus on North Korea policy has taken a decisive turn toward views I’ve advocated at this site for years. This week, OFK readers have been sending me a great deal of better-placed commentary about North Korea, asking me, “Did you write this?” I swear I didn’t write, for example, this Washington Post editorial, published yesterday:

What is needed is a return to the only non-military strategy that brought results: sanctions that strike at the regime’s inner circle. Mr. Kim and his cronies are still managing to import luxury goods from China, in spite of a U.N. ban; they still use Chinese banks to do business with the rest of the world. Those links could be curtailed if North Korea, like Iran before it, were designated as a money launderer and U.S. sanctions were slapped on Chinese banks and other businesses that supply weapons and luxury goods.

Pending U.S. sanctions legislation, already passed by the House and scheduled for a Senate floor vote this week, would mandate these steps, while providing the administration with some flexibility. It should pass, and Mr. Obama should sign it. [….]

Both China and North Korea must see that they will pay a mounting price for what, to the United States, should be Mr. Kim’s intolerable steps toward a nuclear arsenal. “Strategic patience” is no longer a viable option. [Washington Post Editorial]

Or this, from a Wall Street Journal columnist:

Groundhog Day was last week, but North Korea’s ballistic-missile test on Sunday may have you feeling you’ve seen this one before. First the weeks of rumors, then the launch, next the emergency session at the United Nations—and then nothing. The pattern will continue until the U.S. stops running its North Korea policy through Beijing. [….]

Though President Obama calls North Korea “the most sanctioned” nation on Earth, he’s wrong. The U.S. lists Iran and Burma as countries of primary money-laundering concern, a designation it doesn’t apply to Pyongyang despite its counterfeit-currency racket. The U.S. has applied harsher human-rights sanctions against Congo and Zimbabwe, never mind the tens of thousands of political prisoners in Pyongyang’s labor camps.

Treasury Department officials have argued for stronger measures, on the model of the highly effective sanctions the U.S. imposed on Macau’s Banco Delta Asia in 2005 that forced banks to suspend business with Pyongyang. But National Security Adviser Susan Rice has opposed the move for fear of upsetting U.S. relations with Beijing.

The House last month overwhelmingly passed the North Korea Sanctions Enforcement Act, mandating action against entities and individuals tied to illicit weapons programs, luxury-goods imports, counterfeiting and drug trafficking. The White House has hinted that it doesn’t oppose the bill, and the President might sign it if it passes the Senate. But the bill’s effectiveness depends on the Administration’s willingness to squeeze North Korean financing by punishing the Chinese banks through which the Kim regime moves its money. [….]

China isn’t likely to squeeze its client unless it sees the U.S. and its allies doing more to isolate the North on their own. Such a policy would seek to end the regime through sweeping financial sanctions that prevent the Kim family from financing the tools of their tyranny, from weapons to whiskeys, and that impose stiff penalties on their enablers abroad. The strategy of begging China has been a failure. [WSJ, Review & Outlook]

Or this, from the Chairman of the Senate Foreign Relations Committee:

This week the U.S. Senate will join the U.S. House of Representatives in passing legislation that sends a strong bipartisan message: North Korea is a serious threat to U.S. national security and our current approach is a failure.

The North Korea Sanctions and Policy Enhancement Act of 2016, which we expect to become law in the coming weeks, will provide the executive branch with a more robust set of policy tools to confront the threat posed by the rogue regime in Pyongyang. And while there is no “silver bullet” solution to the North Korea policy challenge, the United States must undertake a more proactive approach toward North Korea to address its nuclear and ballistic missile programs and human rights abuses against its own people.

The Senate bill represents the best of our bipartisan foreign policy tradition and builds upon legislation passed in the House of Representatives to expand and tighten enforcement of sanctions for North Korea’s destructive activities.

he bill requires the Obama administration to investigate sanctionable conduct. This means working to expose those involved in supporting North Korea’s human rights abuses, proliferation of weapons of mass destruction, and activities undermining cybersecurity — marking the first statutory framework for sanctions in response to the growing North Korean cyberthreat.

Importantly, it also targets for investigation those who back these activities through other means, such as providing the regime with industrial inputs such as coal, or luxury goods that serve as a valuable source of hard currency to fund North Korea’s nefarious activities. The President then is mandated to sanction any person found to have materially contributed to, engaged in or helped to facilitate these actions. [….]

Some North Korea watchers assert that Beijing doesn’t have the leverage that many U.S. officials contend it has over Pyongyang’s behavior. But that’s simply not true. [Sen. Bob Corker, CNN.com]

I welcome all of this unreservedly, and if this means I’ve directly or indirectly influenced these views, then that’s all I’ve ever wanted from this jihad of mine. It is an unfamiliar feeling to an insurgent to be overtaken by the mainstream. Still, it would be an error for any American to take credit for it. This tipping point is really the work of the most effective lobbyist in this town, a morbidly obese high school dropout and NBA fan who has never been to Washington and barely speaks English.

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Senate Foreign Relations Committee agrees on, passes North Korea sanctions bill

Last week’s big news was that the Senate Foreign Relations Committee, the last real legislative obstacle to a North Korea sanctions law, reached a compromise and unanimously approved a tough new version. Both Republicans and Democrats gave supportive statements before and after the vote:

“We have a bill that, in many respects, is stronger than the House bill,” said the Senate committee’s top Democrat, Ben Cardin of Maryland. “What we do is put pressure on not just the government, but on those who want to do business with North Korea — if they do in these areas, there will be sanctions imposed.”

The House bill requires the president to investigate and sanction persons and entities contributing to North Korean weapons of mass destruction, money laundering, censorship or human rights abuses.

The Senate bill adds provisions targeting North Korea’s sale of minerals and precious metals, a major source of hard currency. Corker said the legislation also places a greater emphasis on Pyongyang’s human rights record.

“I think we’ve enhanced it [the House bill] significantly,” Corker said. “It takes into account other issues that we have with North Korea, not just the nuclear testing, but also some human rights issues.”

Cardin stressed that the sanctions legislation would not affect international aid to Pyongyang.

The bill “is not aimed at all at humanitarian needs,” he said. “The North Korean people are in desperate need. We regret that the country doesn’t spend its resources on its people.” [VOA]

You can read Corker and Cardin’s official joint statement on the legislation here.

I’ll agree that the Senate bill is not only stronger than the House version but also stronger than what I’d expected. Under the compromise bill, the sanctions in sections 104(a) (for conduct such as proliferation and human rights abuses) and 104(c) (blocking all North Korean government assets) are now mandatory. Under the Menendez bill, 104(a) was discretionary and 104(c) didn’t exist as such. Under the Gardner bill, 104(a) was mandatory and 104(c) was discretionary. 

Marcus Noland should be pleased that section 302 of the new bill requires the administration to implement a diplomatic strategy to combat North Korea’s use of overseas slave labor, and that section 304 may well trigger mandatory sanctions against its use.

The Foreign Relations Committee has posted its amendment-in-the-nature-of-a-substitute on its website, although you have to put it together with some helpful amendments, proposed by Democratic Senator Ed Markey of Massachusetts, to get the full text. According to Senator Cory Gardner, the Colorado Republican who led the charge for this legislation, the full Senate will probably vote on it in the next two weeks.

Because the House and Senate bills are not identical, the House will have to act next to put the legislation on the President’s desk. It will probably vote on the Senate bill, rather than taking it before a Conference Committee. I’ve been told by a source I trust that President Obama has signaled that he won’t veto the bill. 

Here ends the good news. I promise you that all the other news is dreary, but I’ll save that for tomorrow’s post.

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Senate sanctions bills pick up new co-sponsors

It may be of no more than symbolic value at this point, with intense behind-the-scenes discussions ongoing over a bipartisan compromise bill, but symbols do matter, and a few more senators have lined up behind different versions of the North Korea Sanctions Enforcement Act in the Senate.

One of the Senate bills, S. 2144, has picked up Republicans David Perdue and Johnny Isakson of Georgia, Tom Cotton of Arkansas, Steve Daines of Montana, Mark Kirk of Illinois, Kelly Ayotte of New Hampshire, John Cornyn of Texas, Orrin Hatch of Utah, Roy Blunt of Missouri, Shelly Moore Capito of West Virginia, Pat Roberts of Kansas, and Mike Rounds of my home state, South Dakota. Kirk’s co-sponsorship is interesting, in that he has a background in naval intelligence and is a recovering North Korea engager.

Senators Cory Gardner of Colorado, Marco Rubio of Florida, and James Risch of Idaho were original co-sponsors of S. 2144, which makes a total of 15.

Meanwhile, the Menendez-Graham bill, S. 1747, has picked up two more Democratic co-sponsors, Dick Durbin of Illinois and Michael Bennet of Colorado.

Absent some unanticipated delay, the Foreign Relations Committee is expected to mark up a bill on Thursday. Interestingly, the schedule shows that they’ll be considering a 2015 version of the House bill, “with an amendment.”

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In The Weekly Standard: Ed Royce’s Bipartisan Coup Against a Bipartisan Failure

If President Obama ends up signing a North Korea sanctions bill in the next 30 days — and at this point, I don’t know what interest he has in vetoing one — it will effect the biggest change in our North Korea policy since the 1994 Agreed Framework. That, in turn, will have been due to years of principled dissent and patient, bi-partisan coalition building by Ed Royce, the California Republican who chairs the House Foreign Affairs Committee.

A certain, too-prevalent type of Republican who sees all Democrats as enemies could learn a few things about winning policy arguments from a man who defied his own party for conservative principle, and yet had the strategic sense to see Democrats, including some very liberal ones, as allies to be won over.

Read the rest of the story here.

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WaPo: Senate Foreign Relations hopes to mark up N. Korea sanctions bill next Thursday.

Via the Washington Post this morning, we’re still pretty much where I said we were last week, but at least we have an expected date for a committee markup. The Senate is still trying to work out a bipartisan compromise between Senator Bob Menendez’s (D, NJ) weaker S. 1747 and Cory Gardner’s (R, CO) tougher S. 2144, rather than voting on the House bill that passed last week “with huge bipartisan support.”

While the House and Senate bills contain generally the same sanctions options, there are differences between them — key among them that a compromise Senate measure is likely to leave more decision-making authority in the president’s hands and carve out more humanitarian assistance protections than the House bill.

Senate Foreign Relations Committee Ranking Member Ben Cardin (D-Md.) said in an interview while there was “nothing fundamentally wrong with the House bill,” he would like to tackle human rights in North Korea more comprehensively.

The House bill would only serve as a backup if the Senate can’t work out one outstanding issue between the its two measures, Chairman Bob Corker (R-Tenn.) said Wednesday.

“I’m 99 percent sure it will be a Senate bill,” Corker said, adding his committee will likely consider the measures during a Jan. 28 markup. [WaPo, Karoun Demirjian]

There is more pressure for the Senate to get its act together this time. Demirjian notes that in contrast with the House, which also passed a similar antecedent to its recent sanctions bill in the 113th Congress by a voice vote, the Senate “dropped the ball” on moving its own bill in the last Congress. It notes that “working through a separate bill may slow down the pace with which Congress responds to the latest nuclear provocation from Pyongyang.”

But Senate leaders stressed they have every intention of moving North Korea legislation quickly this month.

If the negotiations process falls apart, Corker said, “we still have the House-based text we could take up and certainly pass with a strong bipartisan majority.” [WaPo]

From what little we know here, it sounds like the negotiations are headed in the right direction.

Menendez said last week the compromise bill should feature “a mix of mandatory and discretionary sanctions” and added on Wednesday that he expected the final list would be a combination of the two.

If I’m guessing this right, the Senate is thinking of retaining the mandatory sanctions in Section 104(a) and making the sanctions in Section 104(c) discretionary, and perhaps even conforming that subsection to the text of Executive Order 13687. That would be a reasonable compromise that would keep the bill tough while preserving a structure that would be easy to amend and toughen in response to future provocations.

The bills also differ in what kinds of cybersecurity threats would be sanctioned, and emphasis put on North Korea’s minerals industry — a unique feature of Gardner’s bill.

The measures also approach human rights and humanitarian activities differently, with Menendez’s bill going the furthest to ensure that humanitarian aid and assistance receives special protection from enhanced sanctions, which is a key concern for some Senate Democrats. [WaPo]

Judging by some of the off-line discussions I’m having, the Senate really is working actively on this, with some of the most conservative and some of the most liberal senators taking leading roles. One issue I can confirm Senate staff are giving careful consideration is the shape of the humanitarian waivers and exemptions, such as those you can see in Section 207 of the House bill. That’s an important issue, deserving all the careful draftsmanship the world’s greatest deliberative body can muster.

From my vantage, this continues to be a case of a hawkish and mostly united Congress — yes, I really said “united Congress” — pitted against an administration that can’t decide what to do, and has decided to do nothing. For example, while Senator Gardner is criticizing the President for not mentioning North Korea in his SOTU speech, Gardner’s own toughness finds a serious competitor in this letter from Senator Ed Markey, a liberal Massachusetts Democrat, to the Secretary of State.

Here’s hoping that the final shape of the Senate’s bill is worth the wait.

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N. Korea sanctions bill passes the House 418-2, Senate seeks compromise bill

By now, you’ve probably read the news about last night’s lopsided vote. Interestingly, it was the Democrats, not the Republicans, who were unanimous in their support. The two dissenting votes were Justin Amash and Thomas Massie, both isolationist Republicans from the Ron Paul mold. 

Dissent may be patriotic, but it’s never beyond some well-deserved ridicule.

[Reminder: The views expressed on OFK are the author’s alone.]

You have to hand it to Nancy Pelosi for running a tight ship. In the end, even Charles Rangel and Barbara Lee voted “yes.” John Conyers didn’t vote. 

Here’s a link to the final bill the House passed.

Today, all eyes turn to the Senate, which has very little time to reach unanimous consent on its own bill in this election year. The good news is that all of the right senators — with the exception of Harry Reid, so far — are saying that it’s a priority:

Senate Majority Leader Mitch McConnell (R-Ky.) said Tuesday that the upper chamber will soon take up sanctions legislation against North Korea after the country claimed it detonated a hydrogen bomb.

“Sen. [Cory] Gardner has been working on a North Korea sanctions bill. We anticipate it will come out of the Foreign Relations Committee very soon, and I intend to schedule floor time on it shortly,” he told reporters.

The Republican leader met with Gardner, a Colorado Republican, and Sen. Bob Corker (R-Tenn.), the Foreign Relations Committee chairman, on the issue earlier Tuesday. [The Hill]

Said Corker:

“We have members on our side, and the other side, that have bills here, so we’re going to go through it methodically,” Sen. Bob Corker (R-Tenn.) told reporters.

Sen. Ben Cardin (D-Md.) added, separately, that two proposals have been introduced in the Senate — one from Sens. Lindsey Graham (R-S.C) and Robert Menendez (D-N.J.) and another from Sen. Cory Gardner (R-Colo.) — and that he’s already had “some conversations with [with Corker] to make sure we have one bill.” [….]

Corker said that while the briefing with the administration didn’t specifically focus on what sort of sanctions Congress should impose, he added, “I think they believe that action by Congress would be helpful.” [….]

“I think we’re working with Senator Gardner, who has a bit of a different version, to reconcile it, and see if we can bring it to the chairman in a bipartisan effort,” the New Jersey senator said. [The Hill]

Both Corker and his Democratic Ranking Member, Ben Cardin, insist that action in the Congress should not be a substitute for action in the U.N. Security Council. They’re right, of course. U.N. sanctions and member state national sanctions work best in concert with each other. U.N. sanctions unite member states and help smooth out international enforcement gaps, but they have no force of law unless the member states enact and enforce sanctions of their own. All of the sanctions bills on the table now stress that by calling for the State Department to step up its diplomatic game.

Sen. Bob Corker, R-Tenn., chairman of the Senate Foreign Relations Committee, said he expected the Senate to vote on a measure to sanction North Korea soon, though he emphasized that the United Nations should also act.

“We’ve got to step up our game, be proactive and I think you’re going to see Congress over the next short period of time taking its steps, but it’s my hope the international community and our administration will be much more bold,” Corker told reporters following a closed briefing with officials from the State and Defense departments and Office of the Director of National Intelligence. [The Examiner]

Now that a sanctions bill has passed the House, the administration seems to have softened its line on whether Congress should meddle.

Corker also said the witnesses were open and said the administration “is probably more open in this case to Congress taking action and putting in place a toolkit to deal with this issue.”

Sen. Ben Cardin, D-Md., also said he expected Congress to take action against North Korea.

“It’s important that the [United Nations] Security Council takes action, we hope that they will. It’s also important for the United States to show international leadership to strengthen our sanctions regime against North Korea. So I think you’ll see action,” he said. [The Examiner]

The comments followed a classified Senate hearing on North Korea’s nuclear capabilities.

“I think they believe action by Congress could be helpful,” said Senate Foreign Relations Committee Chairman Bob Corker (R-Tenn.), emerging from a meeting on North Korea with administration officials. “It’s my sense anyway that Congress taking action on this issue could be beneficial and I think you’re going to see that happen.” [WaPo]

All of which gives hope that the Senate will get its act together, reach a compromise, and pass a bill out of Committee. Once that happens, I doubt the bill will attract opposition in the full Senate. What’s less certain is what the Senate’s compromise bill will look likeHaving reviewed both Senate bills, compared them to the House version, and had some discussions with Senate staff, my guess is that the Senate won’t just pass the House bill. Its own negotiations are probably too delicate for that. Senators will want to add their own language on diplomacy, human rights, human trafficking, and funding of humanitarian programs. That’s what’s supposed to happen when bright minds add good ideas. But the final content of the Senate bill will be 80 to 90 percent of the same DNA as H.R. 757.

My greater concerns are, first, that some of the Senate language in Section 104, the key enforcement trigger, lacks the coherence of what the House ultimately passed, and even (accidentally) leaves out the mandatory sanctions for arms trafficking. I don’t expect that to be controversial or difficult to fix.

Second, the National Committee for North Korea asked for some amendments to the language because of its fear that the House version could adversely affect humanitarian programs. Unfortunately, those requests came three months too late for consideration in the House markup. Myself, I think the concerns are overblown. The humanitarian waivers and exemptions in Section 207 of the House version are broad enough to deal with all of them, particularly if Treasury gets off the dime and starts working on implementing guidance now, assuring bankers that transactions in food and medicine are safe to handle, as it belatedly did with Iran. But NCNK’s recommended amendments were also conscientious, well written, and harmless to the bill’s effectiveness. In that case, if we all share the same concerns and goals, why not compromise? For whatever my view matters, I hope the Senate takes most of them aboard, and have said so to the right people.

Third and finally, one of the two competing Senate bills has mandatory sanctions for the worst conduct — proliferation, human rights abuses, money laundering, etc. — and one does not. In a perfect world, Congress could defer such matters to the President’s discretion, but this isn’t a perfect world. President Obama won’t use the discretion he has, and his predecessor, George W. Bush, threw his away because he didn’t know how to use sanctions as part of a comprehensive policy or a competent negotiation process. That gives Congress the responsibility to help the President lead. The fact that such targets as Chinpo Shipping, KNIC, NADA, Unit 121, Ri Chol, 88 Queensway, Hwang Pyong-so, and Kim Jong-un himself haven’t been designated by now — yet Robert Mugabe, Alexander Lukashenka, and Bashar Assad all have been — shows you just what’s wrong with this picture.

It’s as if someone in the State Department secretly granted Kim Jong-un transactional immunity, or (more likely) just decided to outsource the problem to our Chinese frenemies. I can’t quite explain it.

The only real opponent now is the calendar. It’s entirely possible that the House and Senate could both act, their attention spans could expire, and they could both disperse to their respective campaigns before they get agreed language through a conference committee. Certainly the Senate bill could make the House’s good bill even better. Each of the pending Senate bills contains endemic language that I hope to see in the final version. I’m sure you could find hundreds of people in this town who would express their own subjective opinions in that regard. The greatest danger now is that the perfect will become the mortal enemy of the good.

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House Subcommittee Chair calls for re-listing North Korea as a terror sponsor

poeLast month, I posted video of a hearing before the House Subcommittee on Terrorism, Non-proliferation and Trade, where Chairman Ted Poe of Texas and Ranking Member Brad Sherman of California grilled a hapless State Department official about North Korea’s sponsorship of terrorism, and why North Korea wasn’t listed. State’s performance at the hearing wasn’t just bad, but exceptionally so. Poe and Sherman were both visibly exasperated with State’s stonewalling, and seemed convinced that State was ignoring the law. Now, Poe has put his views in writing, listing the justifications for a re-listing at length:

Pyongyang has known links to the tyrannical regimes in Tehran and Damascus, and there have been several instances in the past decade in which North Korea’s two Middle Eastern clients transferred North Korean arms to Hezbollah and Hamas. In 2009 alone, three North Korean arms shipments were seized by UAE, Israeli, and Thai authorities.

In all three cases, press reports indicated that the arms were bound for terrorist groups. In July 2014, Western security sources told media outlets that Hamas brokered an agreement to purchase communications equipment and artillery rockets from the Kim regime. Sure enough, North Korean anti-tank guided missiles surfaced in Gaza that same year.

But weapons sales are not the whole picture of North Korea’s ties to terrorist groups – there is growing evidence of Pyongyang’s advisory role to these violent organizations. Press reports in 2014 suggested that North Koreans advised Hezbollah in the construction of tunnels in Southern Lebanon in 2003-2004. Israeli military commanders believe that North Korea also provided logistical advice on Hamas’ tunnel network which it infamously used to attack Israeli civilian populations.

North Korea is also still a major proliferator of weapons of mass destruction. Its ongoing collaboration on ballistic missiles with Iran, the world’s number one state sponsor of terrorism, is well known. According to reports the two countries are presently working on the development of an intercontinental ballistic missile that could allow North Korea to deliver a nuclear warhead far beyond its shores. [Fox News]

If I have one regret, it’s that Poe didn’t raise North Korea’s kidnapping and assassination plots against human rights activists and exiled dissidents in China and South Korea. But when the evidence for a state’s sponsorship of terrorism is extensive enough to fill a 100-page report, you can’t fault a man for not being able to squeeze it all into one op-ed.

Poe’s call adds to other prominent members of Congress of both parties who want North Korea re-listed, including Congresswoman Ileana Ros-Lehtinen and Senator Robert Menendez.

Meanwhile, we’re approaching the first anniversary of North Korea’s cyberterrorist threats that forced a stupid movie called “The Interview” out of theaters all over America. It was the first time in U.S. history that a foreign government successfully used terrorism against the American people, in their own country, to censor our freedom of expression. The Obama Administration’s response so far has been to sanction ten low-level arms dealers and three other entities that the Treasury Department had already sanctioned previously. A year later, I still wonder when our President will keep his oath to preserve, protect, and defend the most important freedom guaranteed to us under our Constitution.

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Congress to hold hearings on N. Korea & terrorism, human rights, nukes this week

The first hearing, entitled, “The Persistent North Korea Denuclearization and Human Rights Challenge,” will be held Tuesday at 10 a.m., before the full Senate Foreign Relations Committee. The witnesses will be Sung Kim, the State Department’s Special Representative For North Korea Policy And Deputy Assistant Secretary For Korea and Japan, and Robert King, State’s Special Envoy For North Korean Human Rights Issues.

The second hearing will be before the House Foreign Affairs Committee’s Subcommittee on Terrorism, Nonproliferation, and Trade, on October 22nd at 2 p.m. It will be entitled, “North Korea: Back on the State Sponsor of Terrorism List?” 

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(Coughs, clears throat, looks down at shoes.)

The witnesses will be Sung Kim and Ms. Hilary Batjer Johnson, State’s Deputy Coordinator for Homeland Security, Screening, and Designations. 

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Pro-North Korean group denies that it’s under investigation for tax evasion

According to the UPI, which in turn cites reports from Yonhap and SBS, one of America’s most infamous and influential pro-North Korean groups is under investigation “for tax evasion and political activities that violate U.S. tax laws.”

The nonprofit Korean American National Coordinating Council in New York is under investigation according to local Korean American and diplomatic sources, but it was unclear which government agency was conducting the full-scale investigation, South Korean news agency Yonhap reported.

The investigation also is the first reported case of a probe into a group that previously has expressed views sympathetic to the Pyongyang regime. [UPI, Elizabeth Shim]

That’s more than a mild understatement.

Investigators arrived on Thursday at the office of KANCC in the Interchurch Center building near Columbia University to begin their query, South Korean television network SBS reported.

A New York-based diplomat who spoke to Yonhap on the condition of anonymity said the organization was under investigation because of an alleged violation – and that U.S. investigators were probing other organizations that have expressed pro-Pyongyang sentiments.

The mere expression of pro-Pyongyang sentiment, without more, is protected by the First Amendment, and would not be a basis for a criminal investigation in the U.S., but is illegal in South Korea. I wonder if that means our “diplomatic sources” are South Koreans. Clearly, the report doesn’t tell the whole story, but then, KANCC’s president was unavailable for comment when the story broke. He was in North Korea for the big Liberation Day celebrations.Screen Shot 2015-08-18 at 9.02.20 PM

[KANCC President Yoon Kil Sang in Pyongyang last week. Front row, fourth from left]

KANCC has since posted an angry denial of Yonhap’s story, calling it a malicious lie and a total fabrication, threatening a libel suit, and demanding an apology. KANCC denies having been searched or even contacted by the feds. It claims that it merely advocates for human rights, peaceful reunification, and meetings of separated families. As early as 2003, after KANCC arranged for Suki Kim to travel to North Korea, its then-President, Michael Hahm, took exception to her characterization of it as “US-based organization of pro–North Korea activists.” (Kim’s story is well worth reading.)

I don’t know if KANCC is really under investigation or what for, and they’re innocent of tax evasion or any other crime until proven guilty. What’s incontrovertible is that KANCC is, at the very least, strongly sympathetic to North Korea. Its contribution to the North Korea human rights discourse has been to publish claims that the whole issue is a fabrication and a “racket,” criticizing the establishment of a U.N. human rights office in Seoul, and arguing that the world’s greatest human rights violator is (of course) the United States. Its relations with Pyongyang are, to use the Rodong Sinmun‘s quaint term, “compatriotic.”

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The reports don’t specify why the feds might be interested in KANCC’s political activities, but this public database has posted some of its tax returns online.* On its 2013 return, which is marked “open to public inspection,” KANCC claimed tax exemption as a 501(c)(3) nonprofit, and described its work this way:

TO EXERCISE AND PROTECT THE PRIVILEGES AND INTEREST OF THE RESIDENTS OF KOREAN-AMERICAN COMMUNITY IN THE NEW YORK, NEW JERSEY, CONNECTICUT AND TRI -STATE AREA, TO FOSTER A HEALTHY INTEREST IN THE CIVIC AFFAIRS OF THE COMMUNITY

Section 501(c)(3) grants tax-exempt status to organizations “operated exclusively for religious, charitable, scientific, testing for public safety, literary, or educational purposes, or to foster national or international amateur sports competition,” but limits their ability to engage in political campaigning, lobbying, or — here’s the kicker — “carrying on propaganda.” Now, words don’t always mean in law what they mean in daily usage, and you should not read anything in this post as a legal opinion. I’m not a tax lawyer, and you can parse or stretch a legal definition of “propaganda,” but as far as the daily use of the term goes, I know propaganda when I see it:
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Post after post praises Kim Il-Sung, sows anti-American conspiracy theories, or generally portrays North Korea as an earthly paradise. The content consists almost entirely of pro-Pyongyang tracts, republished propaganda from Uriminzokkiri and KCNA, and assorted maniacal batshite (“Kim Il Sung, Iron-willed Commander,” “Pyongyang Mass Rally Marks Day of Struggle against US Imperialism,” “Information Songun politics Beneficial to People,” and “Zionist-Anglo-Saxon Caliphate vs BRICS“). Also, don’t miss the letter, published on KANCC’s site, that compares the U.S. to Josef Mengele and Unit 731.

What I did not find on KANCC’s web site is much evidence of its “civic affairs” work.

Interestingly enough, KANCC’s web site also caught the attention of the New York Times back in 2003, for its many “selections from the writings of the Great Leader, as Kim Il Sung is known, and his son, Kim Jong Il, the Dear Leader.” KANCC’s then-President, Rev. Michael Hahm, told the Times he was “not happy with the site,” and that it was “run independently out of the group’s Washington office,” which did not return the reporter’s calls. And yet the web site doesn’t seem to have changed much in the last 12 years.

UPI’s report claims the feds are also looking into KANCC’s contacts with North Korean officials, including a visit to the North Korean U.N. mission “on the first anniversary of Kim Jong Il’s death in 2012 to deliver condolences,” and a possible attempt to contact members of Foreign Minister Ri Su Yong’s entourage during a visit to the U.S. last year.

These things, by themselves, would not necessarily violate U.S. law, either, although there are legal restrictions on contacts with foreign officials, which the Justice Department helpfully summarizes here. One of these is the Foreign Agents Registration Act, which requires “publicity agents” and “information-service employees” acting “subject to the direction or control of a foreign government or official” to register with the Justice Department. I can’t say one way or another whether KANCC is acting under Pyongyang’s direction or control; perhaps it’s just independently sycophantic. According to DOJ records, however, it isn’t FARA registered.

On the other hand, there’s no question that KANCC officials have met with senior North Korean officials. KANCC’s 2013 tax return lists one Yoon Kil-Sang as the President of KANCC. For your reference and identification, here are two photos of Yoon from KANCC’s web site. The Korean Central News Agency lists a “Yun Kil Sang” as a frequent visitor to Pyongyang leading delegations of “Koreans in the U.S.”** The most recent such report is dated last Friday.

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In the KCNA photo below, Yoon is on the left, and Kim Yong Nam, President of the Presidium of the DPRK Supreme People’s Assembly, is on the right. Pyongyang doesn’t usually give this kind of photo op to ordinary tourists or community activists.

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[Peace activism!]

Also, here’s Yoon (second from right) at the Liberation Day rally in Pyongyang.

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Here’s video grab of Yoon at a big North Korean rally at the DMZ (see this link for the Boston Globe‘s report on that rally).

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Unless my eyes deceive me, that’s also him in the center of the image below, wearing sunglasses and a black windbreaker, at a propaganda rally at Mt. Paektu, Kim Jong-Il’s mythical birthplace.

Yoon

[Let’s carry out Kim Il-Sung and Kim Jong-Il’s reunification philosophy!]

This KCNA report from January quotes Yoon praising His Porcine Majesty:

Kim Jong Un’s Personality Praised by Overseas Koreans Pyongyang, January 16 (KCNA) — Overseas Koreans are praising the personality of the dear respected Kim Jong Un as a great man. [….]

Overseas Koreans said in general that they felt “kind-heartedness” and “high-spiritedness” from Vice-Chairman Kim Jong Un when they were received by him after paying their respects to the bier of Kim Jong Il, chairman of the DPRK National Defence Commission, displayed at the Kumsusan Memorial Palace, the article noted, saying:

Yun Kil Sang, chairman of the Federation of Koreans in the U.S., said: His image gave other persons something comfortable. It gave a dignified yet gentle impression. When I looked at his face, I could feel that his hand shaking was based on warm sincerity, not casual manner.

KANCC’s officers were also behind this “open letter” to President Obama, calling on him to lift sanctions against North Korea, normalize relations with it, and (sit down for this) sign a peace treaty with it. The letter is dated December 2014, the same month President Obama accused North Korea of being behind the Sony hack and terrorist threat. The letter is signed by Moon J. Pak, as “Senior Vice President” of KANCC, and was posted on KANCC’s web site. It was also published by the rabidly pro-North Korean blog Minjok Tongshin, whose publisher, Roh Kil-Nam, is the recipient of the coveted (by some) Kim Il-Sung Prize, has a degree from Kim Il Sung University, and had visited the Workers’ Paradise a whopping 62 times as of last October.

According to this site, Pak’s open letter was also published as a full-page color ad in the New York Times last March. An ad like that could easily have cost $200,000. That’s about triple what KANCC reported to the IRS in total revenue in 2013 ($71,650, including $15,050 in “program service revenue, including government fees and contracts”) and $70,178 in expenses, leaving about $1,500 net. KANCC’s balance sheets and past tax returns report between $50,000 and $80,000 in gross income and almost no net. A group calling itself “Korean-Americans for Peace for the U.S.A. & North Korea & South Korea” lists 66 individual donors who supported the ad. The first three names are KANCC officers Yoon, Moon J. Pak (the author), and Michael Hahm. The letter also references a Korean-Americans for Change PAC, which reported total receipts of $7,650 to the Federal Election Committee in 2008. Did these individual donors really scrape together 200 grand for this ad? Hey, anything’s possible. KANCC reported no foreign donations on its 2013 return, and I have no evidence to the contrary, but I’ll never underestimate its influence again.

The point of this post isn’t to argue that KANCC violated its tax-exempt status or any other law. If there’s any substance behind UPI’s report, the legal process will decide that. Furthermore, most Americans would agree that the IRS shouldn’t target nonprofits for tax enforcement because it disapproves of their political views, although any law that grants tax exemption to the likes of KANCC is overdue for an amendment. My point is simply to document what KANCC stands for, and to illustrate why one should be wary of accepting self-serving claims of innocent peace activism at face value. The First Amendment protects your right to lick the feet of murderous totalitarians all you like, but it isn’t an exemption from the scrutiny and criticism of your fellow citizens for the repellent and — to use an archaic term I inexplicably cling to — unpatriotic views you express while doing so.

~   ~   ~

* The tax return is filed under the name “Korean American National Council Inc.,” but lists the same employer ID, and exactly the same income and expenses, as this balance sheet for the Korean American National Coordinating Council. Both list Kil Sang Yoon as President or “in care of name.” The tax return for the Korean National Council, Inc., gives an address of “475 Riverside Drive, Room/Suite 1369,” New York. The balance sheet gives an address of “475 Riverside Dr Ste 1368,” New York.

** There is an actual organization called the “Federation of Korean Associations, U.S.A.” It most certainly is not pro-North Korean.

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Senators Graham, Menendez introduce companion to N. Korea Sanctions Enforcement Act

Senators Lindsey Graham (R, SC) and Robert Menendez (D, NJ) introduced the bill, numbered S. 1747, last night. I haven’t had a chance to read the full text yet, but from my initial read, it looks similar to S. 3012, which Senator Menendez introduced in the 113th Congress.

Like S. 3012, S. 1747 makes the designations in Section 104(a) discretionary, rather than mandatory. The problem with that approach is that so far, President Obama has exercised his discretion to sanction North Korea as little as possible. The State Department has been patently dishonest in its refusal to hold North Korea accountable for its terrorist threats against Americans, to say nothing of its terrorist attacks against human rights activists and dissidents in exile.

Also like S. 3012, S. 1747 retains key provisions to fund the enforcement of the legislation in a time of shrinking budgets, and to fund humanitarian and human rights promotion programs, using assets forfeited from those who violate the prohibitions in section 104. That language was stripped out of the current House version, probably due to inter-committee jurisdictional drag. If only for keeping that important language in the conversation, S. 1747 is a welcome opening bid from the Senate.

Overall, S. 1747 is an imperfect but a good bill, and an important, bipartisan step toward putting a sanctions enforcement bill on the President’s desk this year. Like Senator Gardner’s S. Res. 180, S. 1747 sends a clear message to the President, urging him to abandon the old, failed approach of North Korean exceptionalism–of refusing to hold North Korea accountable for its threats, attacks, crimes, and atrocities lest we spoil a mood that exists only in the collective imagination of Foggy Bottom.

I wouldn’t assume that S. 1747 is the last bill we’ll see in the Senate before the August recess, either, despite Congress’s present preoccupation with Iran. Senator Corker (R, TN), the Chairman of the Foreign Relations Committee, hasn’t spoken yet.

In the end, I’m confident that Congress will merge what’s best about both bills in the Conference Committee, hopefully this fall. Unless the President vetoes the bill, at great political cost to himself, that bill would re-shape North Korea policy around a two-track policy of sanctioning the regime in Pyongyang, and engaging the North Korean people. If diplomacy has any prospect of success–a prospect that now rests on the fragile reed of Kim Jong Un’s temperament–it lies in an approach that gives our diplomats enough leverage to win concessions to improve human security for the North Korean people, for the region, and for us.

 

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Sen. Gardner introduces resolution calling for tougher sanctions against N. Korea

It would seem that his speech the other day had a purpose — this. I couldn’t have written it any better myself. Yes, it’s only a resolution, but its clear intent is to gain wider support for policies that a Senate version of the North Korea Sanctions Enforcement Act would enact into law. It’s also the latest sign that Congress wants North Korea back on the list of state sponsors of terrorism, and that in the battle to change North Korea policy, a second front has opened in the Senate. It will be interesting to see who joins as a co-sponsor, particularly among the Democrats.

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GAO: State Dep’t must step up diplomacy to enforce N. Korea sanctions

The General Accountability Office has released a new report on the enforcement of sanctions against North Korea. The report, requested by Senate Foreign Relations Committee Chairman Bob Corker, will probably influence the contours of the Senate’s version of the North Korea Sanctions Enforcement Act. You can read the full report here and a summary here, and listen to a podcast here.

The report correctly points to a key flaw in the enforcement of the sanctions that exist now — a lack of financial intelligence. The reasons for this, however, are multi-layered. The report explains some of those underlying reasons, but not all of them.

Agency officials cited obtaining sufficient information about North Korean persons to be their greatest challenge in making sanctions determinations. Most North Korea–specific sanctions authorities require a determination that a person engaged in a specific activity…

. However, officials said that gathering information on the activities of North Korean persons and personal identifying information can be difficult because of the nature of North Korean society, whose citizens are tightly controlled by the government. Without sufficient information, the United States could mistakenly designate and therefore block the assets of the wrong person, particularly one with a common surname. [GAO 15-485, p. 14]

Executive Order 13,687, signed by President Obama on January 2, 2015, could do much to improve the enforcement of financial sanctions against North Korea, because it is status-based, rather than conduct-based. This would relieve State and Treasury, particularly the overworked staff at the Office of Foreign Assets Control, of the burden of assembling evidence that specific North Korean entities had engaged in categories of conduct prohibited by Executive Orders 13,382 and 13,551, the executive orders under which most North Korean entities are designated today.

“Could” is still the operative word, however. Of the 13 entities designated under Executive Order 13,687, three were already designated, and ten others were individual arms dealers who’ve no doubt returned to Pyongyang and had their places taken by ten other North Korean arms dealers. It’s doubly disappointing to see the administration fail to harness EO 13,687’s potential at a moment of possible political instability in Pyongyang, when our leverage over Kim Jong Un is greatest. The GAO report fails to make recommendations about designations under EO 13,687.

GAO also overlooks another financial intelligence shortcoming — the lack of any broad and detailed requirement to report financial transactions with North Korea to OFAC, except for those incident to imports and exports to or from the United States. And even this doesn’t cover foreign subsidiaries of U.S. companies.

Because sanctions are most effective when enforced multilaterally, the U.N. Security Council’s sanctions resolutions should also be bringing in a wealth of shared financial intelligence about how and where North Korea does its prohibited business. They aren’t, and that’s a problem of political will. Other U.N. member states aren’t making the reports they should be making to the U.N. Panel of Experts (as noted in this post, and this one). Many more of them would if the State Department made it a priority to encourage member states to make them, or to help build capacity in those states that can’t (page 29). GAO found State’s answers about this to be lacking in specificity:

State Department officials informed us that the United States has offered technical assistance to some member states for preventing proliferation and implementing sanctions. However, they were unable to determine the extent to which the United States has provided specific assistance aimed at ensuring that member states provide the UN with the implementation reports it needs to assess member state implementation of UN sanctions on North Korea. [GAO 15-485, p. 30]

State has also failed to press China, Russia, the EU, and other states to harmonize their lists of designated “persons,” or to define simple terms like “luxury goods,” as Section 201 of the NKSEA calls for. GAO should have said more about this, but actually spent more time talking about Uganda’s violations of the resolutions than China’s.

This brings us to another important reason for the slowness of sanctions enforcement — the two usual suspects, Russia and China. Because the U.N.’s sanctions committee operates by “consensus,” either country can hold up a designation indefinitely (see diagram on page 22 for an explanation of the procedure). That’s why it took a full year after the Panama weapons seizure for the 1718 Committee to designate Vladivostok-based Ocean Maritime Management. Even when the U.N. does designate a party, such as Korea Ryonha Machinery Joint Venture Corporation, China and Russia continue to allow that party to operate on their territory. GAO should have mentioned this, too.

GAO’s overall conclusion, however, is correct. State needs to devote more diplomatic resources to getting other member states to implement and enforce UN sanctions. This is the kind of language GAO uses when a government agency isn’t doing enough:

GAO recommends the Secretary of State work with the UN Security Council to ensure that member states receive technical assistance to help prepare and submit reports on their implementation of UN sanctions on North Korea. [GAO 15-485, p. 31]

Failing that, Treasury should impose secondary sanctions on “persons” that flout the resolutions by continuing to buy weapons from North Korea, by failing to block the assets of designated entities, and by failing to carry out “enhanced monitoring” of North Korean transactions. That’s what H.R. 757 will do, and that’s why H.R. 757 is needed. As GAO’s report notes, the panel has no enforcement authority. But because North Korea is still using the dollar system, the U.S. government does:

The panel also identified that in most cases the investigated transactions were made in United States dollars from foreign-based banks and transferred through corresponding bank accounts in the United States. The panel’s 2015 final report indicated that North Korea has successfully bypassed banking organizations’ due diligence processes by initiating transactions through other entities on its behalf. The panel expressed concern in its report regarding the ability of banks in countries with less effective banking regulations or compliance institutions to detect and prevent illicit transfers involving North Korea. [GAO 15-485, p. 27]

There is also the more basic issue of manpower. Treasury either needs more staff at OFAC to collect and act on North Korea-related financial intelligence, or it needs to re-prioritize some of the staff it has working on other sanctions programs.

I also caught some inaccuracies in its report. On Page 7, GAO implies that the Iran, North Korea, and Syria Nonproliferation Act (INKSA) sanctions Pyongyang’s trade in luxury goods. Feel free to read the INKSA yourself, deep within the fine-print notes at the bottom of the International Emergency Economic Powers Act. If you can find any reference to luxury goods there, you may redeem the citation of that language for the carbonated grain-based beverage of your choice. In fact, the INKSA is narrowly focused on the proliferation of WMD technology. The U.S. government does have luxury good sanctions in the Commerce Department regulations, but administrations can always rescind or amend regulations — perhaps in exchange for false promises to disarm — after a process of public notice and comment. Statutes can only be repealed by an act of Congress.

Table 3 on Page 19 says that four North Korean entities are sanctioned under Executive Order 13619, which blocked the assets of “persons” threatening the peace, security, and stability of Burma. This didn’t sound familiar to me, so I control-F’ed by my way through the SDN list (which sounds vaguely erotic, but isn’t) and found no references to any North Korean entities sanctioned under the Treasury’s Burma sanctions (SDN Code, “Burma”). In fact, EO 13619 doesn’t even have an SDN index code, because it relaxes (rather than imposes) sanctions on Burma. I wonder if GAO meant to refer to some other executive order. If so, I can’t imagine what other executive order that might be.

The same table also claims that a total of 86 North Korean entities have been designated, but this number includes some double designations (for example, the 13 “persons” designated under EO 13,687 are added to those designated under EO 13551 and 13382, despite the fact that some of these are the very same entities). I actually count 73, excluding aliases. My count assumes that “persons” designated under the INKSA are also designated under EO 13,382 (SDN Code, “NPWMD”).

Appendix I contains a chart comparing North Korea sanctions to Iran sanctions. The chart could have been a very useful tool, but because it reduces broad categories of sanctions to a binary “X” rather than breaking them down by type and degree, it ends up being more misleading than informative, suggesting a parity that does not exist. It overlooks some of the most important sanctions, including special measures under Section 311 of the USA PATRIOT Act (Iran, yes; North Korea, no), comprehensive transaction licensing requirements (ditto), terrorism-related sanctions (ditto), tourist travel sanctions (Cuba, yes; North Korea, no), and the blocking of assets belonging to the government and its top officials (Belarus, Zimbabwe, Syria, and Russia, but not North Korea).

Worst of all, the chart contains an “X” indicating that there are human rights sanctions against North Korea. This is also misleading. Not one single North Korean person or entity has has been sanctioned for human rights violations (again, in contrast to most of the top leaders of Belarus, Syria, and Zimbabwe). The only possible basis for this claim is the fact that EO 13,687 — the one POTUS signed on January 2nd — finally refers to human rights, along with a host of other evil things Kim Jong Un is doing.

What GAO’s report really tell us, then, is that the administration hasn’t prioritized the enforcement of North Korea sanctions. The lesson for Congress is that if it wants that to change, it will have to force the administration’s hand through legislation and oversight.

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We are all North Koreans now

As far as I know, I didn’t liberate a single North Korean during my four-year tour with the Army in South Korea, although I’ve argued their distant and forgotten cause ever since I came home. The crimes of Kim Jong Un were still distant just five weeks ago, when Professor Lee and I, writing in The New York Times, sounded a lonely warning about Kim’s efforts to censor his critics in the South with terror and violence, writing that “[c]aving into blackmailers merely begets more blackmail.” To some, that probably seemed absolutist, even hyperbolic. It should seem more prophetic now.

One morning this week, I awoke to the realization that the rights I’m arguing for are my own—in my own home, and in my own neighborhood. Here, in America. In the suburbs of Washington, D.C.  Today, in a very small way, we are all North Koreans. Most of us have spent the last several decades ignoring the men who oppress North Koreans. Now, in a small but incalculably important way, the same men have oppressed us. Here is the FBI’s statement about the Sony hack, and the terrorist threats that followed it:

As a result of our investigation, and in close collaboration with other U.S. government departments and agencies, the FBI now has enough information to conclude that the North Korean government is responsible for these actions. While the need to protect sensitive sources and methods precludes us from sharing all of this information, our conclusion is based, in part, on the following:

– Technical analysis of the data deletion malware used in this attack revealed links to other malware that the FBI knows North Korean actors previously developed. For example, there were similarities in specific lines of code, encryption algorithms, data deletion methods, and compromised networks.

– The FBI also observed significant overlap between the infrastructure used in this attack and other malicious cyber activity the U.S. government has previously linked directly to North Korea. For example, the FBI discovered that several Internet protocol (IP) addresses associated with known North Korean infrastructure communicated with IP addresses that were hardcoded into the data deletion malware used in this attack.

– Separately, the tools used in the SPE attack have similarities to a cyber attack in March of last year against South Korean banks and media outlets, which was carried out by North Korea.

We are deeply concerned about the destructive nature of this attack on a private sector entity and the ordinary citizens who worked there. Further, North Korea’s attack on SPE reaffirms that cyber threats pose one of the gravest national security dangers to the United States. Though the FBI has seen a wide variety and increasing number of cyber intrusions, the destructive nature of this attack, coupled with its coercive nature, sets it apart. North Korea’s actions were intended to inflict significant harm on a U.S. business and suppress the right of American citizens to express themselves. Such acts of intimidation fall outside the bounds of acceptable state behavior. The FBI takes seriously any attempt—whether through cyber-enabled means, threats of violence, or otherwise—to undermine the economic and social prosperity of our citizens. [FBI Press Release]

The feds sound very confident about their conclusions:

Intelligence officials “know very specifically who the attackers are,” said one individual familiar with the investigation, who like others spoke on condition of anonymity because the case is ongoing. [Washington Post]

As with the Cheonan incident, it’s almost as if North Korea wants everyone to know it did it, while leaving just enough doubt to let its apologists do their work. That strategy worked well for them in South Korea, which never responded to the two deadly attacks on its territory in 2010. Why should Kim Jong Un believe that attacking us would lead to different results? That’s one reason why I’m so glad the President said something about the importance of protecting free speech:

“We cannot have a society in which some dictator someplace can start imposing censorship here in the United States,” Obama said. “Because if somebody is able to intimidate folks out of releasing a satirical movie, imagine what they start doing when they see a documentary that they don’t like or news reports that they don’t like.

Obama said he wished Sony had “spoken to me first,” adding: “I would have told them, ‘Do not get into a pattern where you get intimidated by these criminal attacks.’ ” [Washington Post]

Well, depending on who you believe, maybe they did. Still, that’s a welcome change, coming from the President who asked YouTube to take down “The Innocence of Muslims,” and whose Justice Department hustled Nakoula Nakoula off to jail to appease the whooping loonies who dominate the Middle East’s political culture today. But not to worry—the CEO of Sony Pictures says he’s “considering some sort of release on the Internet.”

I’ve never been much of a George Clooney fan, but he’s one of the few people in Hollywood with the spine to stand against North Korea’s terrorism:

“We’re talking about an actual country deciding what content we’re going to have,” he told Deadline. “This affects not just movies, this affects every part of business that we have.”

“What happens if a newsroom decides to go with a story, and a country or an individual or corporation decides they don’t like it? Forget the hacking part of it. You have someone threaten to blow up buildings, and all of a sudden everybody has to bow down. [CNN]

Our attention now turns toward what President Obama will do. Let’s hope it exceeds my low expectations, and Pyongyang’s:

Even in my myopic world view, these attacks raise far weightier questions than what our North Korea policy should be. The President’s response must be enough to restore U.S. deterrence of North Korea, and the confidence of our artists, media, journalists, and lowly bloggers that our government will protect them from the world’s petty despots:

“We will respond proportionally,” Obama said, “and we will respond at a place and time that we choose.”

U.S. officials have made clear for several years that they have a range of diplomatic, economic, legal and military options at their disposal in response to cyberattacks. Those steps might include indicting individuals believed to be behind the attack, asking like-minded states to join in condemning the intrusion, and if North Korea persists, undertaking a covert action to dismantle the computer systems used in the operation. [Washington Post]

I’ve already written here about what that response should include. One of those possible responses seems almost inevitable, now that Senator Bob Menendez has asked Secretary of State John Kerry to put North Korea back on the list of state sponsors of terrorism. It’s difficult to see how he could avoid doing that, given the destructive power of the attack, its chilling effect on free speech, and the extensive evidence that North Korea was already sponsoring terrorism even before this incident.

“The United States condemns North Korea for the cyber-attack targeting Sony Pictures Entertainment and the unacceptable threats against movie theaters and moviegoers,” he said in written statement.

“We encourage our allies and partners to stand with us as we defend the values of all of our people in the face of state-sponsored intimidation,” Kerry added.

Separately, State Department spokeswoman Jen Psaki said U.S. and Chinese officials had met in Washington and Beijing to discuss the issue, adding that: “Both China and the United States agree that conducting destructive attacks in cyberspace is outside the norms of appropriate cyber behavior.” [Yonhap]

As is customary among journalists, The New York Times and Reuters printed the standard-issue, off-the-record-senior-State-Department-official talking point that North Korea sanctions are maxed out, without bothering to read the sanctions. This talking point sometimes comes without any citation of authority whatsoever, and sometimes cites “experts” who appear not to have ever read a sanctions regulation. When I pointed out to these Bloomberg reporters that they’d cited a cybersecurity expert‘s analysis of a legal question–and that the analysis was wrong–I received a polite and interested reply, suggesting that the reporters genuinely intend to research the question. In the case of Reuters, in particular, the propagation of this false narrative is disappointing, because most of the Reuters reporters I follow check their facts painstakingly before publishing them.

The Wall Street Journal’s Jonathan Cheng and Jeyup Kwaak did a better job:

On the financial front, the U.S. has wide latitude to target the North’s financial capabilities and its links to the global banking system, says Joshua Stanton, a Washington, D.C. lawyer and blogger who has advised the U.S. House of Representatives’ Foreign Affairs Committee on North Korea sanctions legislation.

Mr. Stanton says the U.S. can designate the North’s banking system as a money-laundering concern, add the country back to a list of state sponsors of terrorism, and move toward blocking U.S. tourism to the North.

“Our North Korea sanctions are weaker than our Zimbabwe sanctions,” Mr. Stanton said in an interview. “All of the top officials in the government of Zimbabwe have their assets blocked, and none of the top officials in the government of North Korea do.” [….]

“The single biggest thing that we can do is to designate the country as a primary money-laundering concern,” Mr. Stanton says, which he says would block the regime from conducting dollar-denominated transactions through the U.S. financial system, as its institutions can now do.

“That would have a very big impact on North Korea—banks around the world are very reputation-conscious,” he says, and would shy away from conducting any transactions with institutions tied to Pyongyang.

Some defectors from North Korea say Pyongyang has learned from the Banco Delta Asia sanctions, and now keeps much of its money outside the traditional banking system, which could limit the impact of such a move.

Mr. Stanton also notes that U.S. sanctions list just 63 North Korean ships, companies and individuals, far fewer than those for Myanmar or Cuba. He also says that U.S. Congress could start moving legislation that would impose similar restrictions blocking U.S. citizens from traveling to North Korea and spending money. [Wall Street Journal, Jonathan Cheng and Jeyup S. Kwaak]

Bruce Klingner of the Heritage foundation was also battling against this myth:

Oh, and for the record:

A North Korean U.N. diplomat said Pyongyang had nothing to do with the cyber attack. “DPRK (North Korea) is not part of this,” the diplomat told Reuters on condition of anonymity. [Reuters]

I think I speak for all of humanity when I sincerely hope this isn’t all Barack Obama’s pretext to advance Joe Biden’s cryptic plot to dominate North Korea’s vast riches of coal, meth, and refugees.

One thing that seems far more likely today is that the House and Senate will make North Korea sanctions legislation a higher priority. Even before the FBI fingered North Korea for this attack, and before President Obama announced his outreach to Cuba, Senator Menendez introduced a sotto voce version of the North Korea Sanctions Enforcement Act, S. 3012. That bill is too weak to be worth passing in its current form, but it’s structurally similar enough to what the House passed last year that it should be viewed as a serious opening bid and a welcome step toward a good compromise.

A friend on the Hill told me yesterday that in terms of seizing Congress’s attention, the events of this week are the equivalent of “two or three nuke tests.” A Chinese Security Council veto of U.N. human rights sanctions–sanctions that were just recommended by the full General Assembly–should be the equivalent of another. At an exceptionally formative moment, Congress’s attention has been focused on North Korea. The administration is distinguishing North Korea from Cuba, is almost certainly considering new sanctions, and has probably just scrapped its plans for Agreed Framework 3.0. If a bipartisan, centrist consensus concludes that the agony of North Koreans is no longer a problem we can treat as remote and irrelevant, and that it’s time to discard the failed solution of appeasement, we will have reached an inflection point in our North Korea policy.

One avenue of response I hope the President won’t overlook is that information warfare works both ways. Certainly, carefully targeted sanctions can play an important part in defunding and disrupting the regime’s capacity to censor and oppress its people. Symbolically and practically, however, no response–not even sanctions–would do more to alter North Korea than to wage a quiet, non-violent war against its information blockade. It is difficult to imagine that despite all of America’s innovative potential, it still lacks the means to bring free speech to the people of North Korea, and to help them find their own way to rid themselves of the accursed men who tread them–and us–down.

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If N. Korea hacked Sony and threatened us, here’s how we should respond

The New York Times, quoting “[s]enior administration officials,” is reporting that “American officials have concluded that North Korea ordered the attacks on Sony Pictures’s computers.”

Senior administration officials, who would not speak on the record about the intelligence findings, said the White House was debating whether to publicly accuse North Korea of what amounts to a cyberterrorism attack. Sony capitulated after the hackers threatened additional attacks, perhaps on theaters themselves, if the movie, “The Interview,” was released. [N.Y. Times]

The Times report doesn’t say whether the feds also think North Korea was behind the threats that caused Sony to pull The Interview from theaters, but North Korea certainly is profiting from the perception that it was responsible for them. Today, another studio made the cowardly decision to kill a Steve Carell film that would have been set in North Korea.

Nor would this be the first time North Korea has used terrorism to censor The Interview. It has already used its kidnappings of Japanese citizens to censor the film’s closing scene:

Japan, where Sony is an iconic corporate name, has argued that a public accusation could interfere with delicate diplomatic negotiations for the return of Japanese citizens kidnapped years ago.

The administration’s sudden urgency came after a new threat delivered this week to desktop computers at Sony’s offices warned that if “The Interview” was released on Dec. 25, “the world will be full of fear.”

“Remember the 11th of September 2001,” it said. “We recommend you to keep yourself distant from the places at that time.” [N.Y. Times]

That’s one example of how negotiations with North Korea can be worse than no negotiations with North Korea. Separately, the Times reports on Sony’s internal debates about censoring The Interview, in a simpering kowtow to North Korea’s threats.

Disturbed by North Korean threats at a time when his company was already struggling, Sony’s Japanese chief executive, Kazuo Hirai, broke with what Sony executives say was a 25-year tradition. He intervened in the decision making of his company’s usually autonomous Hollywood studio, Sony Pictures Entertainment.

According to hacked emails published by other media and interviews with people briefed on the matter, he insisted over the summer that a scene in which Mr. Kim’s head explodes when hit by a tank shell be toned down to remove images of flaming hair and chunks of skull. [….]

At one point in the tug of war over the script, Mr. Rogen weighed in with an angry email to Ms. Pascal. “This is now a story of Americans changing their movie to make North Koreans happy,” he wrote. “That is a very damning story.” [N.Y. Times]

I’m not sure what would leave me more speechless–a direct, brazen attack on our freedom of expression in our own country; the cowardice of Hollywood, Sony, Japan, and the theater chains; or the idea that the U.S. State Department agreed to review scenes from The Interview, thus putting a stamp of government censorship (or endorsement) on the film.

Or, maybe it’s the argument of an irredeemable imbecile named Justin Moyer, who defends North Korea’s reaction in a blog post at The Washington Post, without condemning its hacking, threats, violence, or use of its Japanese hostages. Moyer even writes, “If a future North Korean missile test, naval exercise, trip across the DMZ or future act of terror is blamed on ‘The Interview,’ Rogen can’t say he didn’t have fair warning.” Say what? I look forward to Moyer’s explanation of why Hitler had every right to be upset about “The Great Dictator,” or why Charlie Chaplin had “fair warning” about the Sudeten Crisis and Kristallnacht.

Whether the evidence ultimately proves North Korea responsible for this or not, petty despots everywhere have learned how to censor what the rest of us are allowed to read and see, and not only in America. I can’t help wondering whether Pyongyang, in turn, learned it from the Innocence of Muslims affair. These events have vast implications for our freedom of expression. Arguments about the film’s artistic merit have no place in this discussion. Parody, including tasteless parody, is at the core of how we express our views on matters of global public interest.

The breach is expected to cost Sony Pictures tens of millions of dollars as the company rebuilds its computer network, conducts a forensic investigation of the attack and deals with the legal fallout, including potential lawsuits from employees. It could also have an effect on the film industry’s creative choices.

“I’ve got to believe that this will spook anybody from considering making the North Koreans bad guys in a film,” movie producer Bill Gerber said. “Unless you were dealing with something that was fact-based and very compelling, it might not be worth it.” [L.A. Times]

This time, will our President stand up for our freedom of expression unambiguously? That would require him to act swiftly and firmly against those found to be responsible. Unfortunately, the Times‘s reporters end an otherwise excellent report with the tired, cliche falsehood that the President has no options because “[t]he North is already under some of the heaviest economic sanctions ever applied.” Pish-posh. I don’t know how many times I have to say it–people who write about sanctions should read them first. People who’ve read the sanctions know they’re weak.

Here, then, is a brief list of things the President could do in response, assuming the evidence shows that North Korea was responsible.

1. Put North Korea back on the list of state sponsors of terrorism. One of George W. Bush’s great, unsung foreign policy failures was his failed nuclear deal with Kim Jong Il, under which he relaxed sanctions and removed North Korea from the list. North Korea’s de-listing marked the beginning of a period during which North Korea escalated its sponsorship of terrorism, including threats, assassinations, and arms shipments to terrorists.

2. Ask the Senate to follow the House’s example and pass the North Korea Sanctions Enforcement Act, to remedy the weaknesses in our North Korea sanctions.

3. Sign an executive order blocking the assets of North Korean state entities responsible for censorship inside North Korea itself. That executive order could be modeled on one that already applies to Iran.

4. Sign a new executive order blocking the assets of entities found to have knowingly perpetrated, attempted, or supported hacking, cyber-attacks, or cyber-espionage against U.S. targets. That order could be modeled on existing executive orders that target the perpetrators and sponsors of terrorism and WMD proliferation.

5. Ask the Director of National Intelligence to compile a report on China’s support for North Korean hackers, release the unclassified portions to the public, and consider either a criminal prosecution or a civil forfeiture action to attach and seize the assets of any Chinese entities hosting, harboring, or supporting North Korea’s hackers.

Sony, of course, should release and promote The Interview in its original, uncut form. Theaters should show it. Newspapers should stop printing Sony’s hacked e-mails, except as they pertain to North Korea’s attempts to suppress the film. Artists should expose and criticize the cowardly decisions of studios to censor criticism of North Korea, and any other government. Courts should exclude Sony’s hacked e-mails as evidence in litigation. And individual citizens who love freedom of speech should give to Thor Halvorssen’s Human Rights Foundation, which plans to send copies of The Interview into North Korea by balloon.

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Update:

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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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H.R. 1771: A response to Stephan Haggard

Stephan Haggard has published the second of two comments on H.R. 1771, the North Korea Sanctions Enforcement Act, at KEIA’s blog, following Bruce Klingner’s first post on the subject. Haggard and I have a history of genial disagreement about North Korea policy, but I find much more in this thoughtful and well-considered post to expand on than to argue with. Haggard has obviously read and understood the legislation before opining about it. (Marcus Noland, Haggard’s co-author at Witness to Transformation, has also commented on the legislation, at about 37 minutes into this audio.)

Among our perhaps narrowing differences, Haggard clearly has more reservations than I do about the impact of sanctions on nominally “legitimate” North Korean commerce:

One concern, however, is whether the legislation has intentionally or unintentionally blurred the line between WMD-related and commercial trade. The justification for doing so is arguably legitimate. In such a highly centralized regime, it is difficult if not impossible to draw the line between illicit and commercial activities. Nonetheless, to date the international community has sought to draw such a line, and for several reasons. [KEIA Blog]

What follows will merely expand on what Haggard acknowledges — that Pyongyang itself has blurred that distinction. Somehow, Pyongyang has found the financial means to finance its WMD programs and its brutal security forces, and although its finances are opaque, ostensibly lawful commerce such as mining almost certainly plays a key role in paying for it. Under its byungjin policy, Pyongyang asserts the intention of having it both ways, enriching itself economically while still developing an effective nuclear arsenal. H.R. 1771 seeks to force Pyongyang to choose between those priorities, without harboring any illusions about which alternative Pyongyang will choose, at least initially. But we’ll return to sub-topic that later in this post.

H.R. 1771 isn’t the first recognition of North Korea’s co-mingling of legitimate and illicit funds. Two months before H.R. 1771 was introduced, the U.N. Security Council adopted Resolution 2094 (2013), which also recognized the risk that North Korea misuses both commerce and consular activities. The resolution responded by “targeting the illicit activities of diplomatic personnel, transfers of bulk cash, and the country’s banking relationships,” and by requiring “enhanced monitoring” of “assets or resources, including bulk cash, that could contribute to” Pyongyang’s weapons programs. This language builds on Resolution 1718 (2006), which required member states to “ensure that any funds, financial assets or economic resources are prevented from being made available” to persons involved in breaking sanctions.

Then, In March of 2013, one month before H.R. 1771 was introduced, the Treasury Department sanctioned the Foreign Trade Bank of the DPRK, a bank that was heavily involved in financing nominally legitimate trade, transactions with humanitarian NGOs, and also, according to the Treasury Department, “transactions on behalf of actors linked to its proliferation network.”

Like H.R. 1771, Treasury’s action and the Security Council’s language acknowledge that North Korea, like all money launderers, hides its illicit transactions within otherwise lawful commerce. It also uses the proceeds of that commerce to finance more illicit activities. Its objective is to make the lawful and the unlawful as indistinguishable and inseparable as possible. Like Hamas, Hezbollah, and Al Qaeda, Pyongyang also shields its financial lifelines by entangling them with humanitarian activities—activities that are only necessary because of Pyongyang’s deliberate misuse of money that should be spent on food, and which it could easily disentangle from its proliferation by allowing humanitarian NGOs to bank elsewhere.

In practice, the targeting of some of these North Korean entities will require a careful, case-by-case weighing of costs and benefits based on good financial intelligence. That is why Section 207 of H.R. 1771 provides generous exemption and waiver provisions to avoid doing further harm to North Korea’s food supply, beyond the harm already being done by Kim Jong Un’s crackdown on market activities and cross-border smuggling.

I share more of Haggard’s concern that China will intensify its efforts to help Pyongyang evade sanctions:

One of the perverse effects of the post-2003 sanctions efforts is that North Korea has become increasingly dependent on China; my estimates with Marc Noland suggest that China may account for as much as 70 percent of the DPRK’s total trade. This growing dependence has had the odd consequence of reducing the influence of sanctions as trade has shifted toward the weakest links in the sanctions chain. China probably provides fewer direct supports than is commonly thought, but it remains strongly committed to a strategy of deep economic engagement with the country. It is possible that firms and particularly banks conducting business with North Korea will reconsider, and that is a good thing. But we should not have exaggerated expectations; there are plenty of firms and financial institutions that will continue to ply this trade, and we are unlikely to get much sympathy from Beijing in tracking them down. To the contrary, the Chinese government has already signaled its concern about the use of secondary sanctions and has shown little inclination to use the economic leverage over North Korea that it quite obviously has. Will this legislation make cooperation with China on North Korea easier or harder?

There’s little question that China will try to frustrate the enforcement of H.R. 1771, just as it has tried to frustrate the enforcement of every other effort to sanction North Korea. What distinguished the brief Banco Delta Asia episode from every other such effort, and contributed to its widely acknowledged success, was the Chinese government’s relative powerlessness to blunt it. Recent experience suggests that this hasn’t changed, although China’s willingness to sacrifice its own interests for Kim Jong Un’s may have waned since the purge of Jang Song-Thaek.

China’s adoption of state capitalism has enriched it, through the creation of businesses and parastatals that are highly dependent on global trade and the international financial system. It’s not surprising that a mixed economy has also had a mixed response to sanctions. At the state level, China routinely overlooks U.N.-mandated sanctions. China’s banks, on the other hand, have been highly sensitive to any veiled threat by Treasury to sanction banks that do business with North Korean money launderers and proliferators. We first saw this in 2005, shortly before Banco Delta Asia, when The Wall Street Journal reported that the Bank of China was under investigation for laundering North Korean funds. The report caused the Bank of China to spurn much of its North Korea business. Remarkably, even after Agreed Framework 2.0 in 2007, it still refused to help move $25 million in illegally derived funds back to Pyongyang, despite the express requests of the U.S. and Chinese governments.

As recently as May of 2013, two months after Treasury sanctioned the Foreign Trade bank and a little more than a week after the introduction of H.R. 1771, China’s four largest banks — the Bank of China, the Industrial and Commercial Bank of China, the China Construction Bank, and the Agricultural Bank of China  — all halted money transfers to North Korea. Other, smaller Chinese banks, like the Bank of Dandong, continued to move money for Pyongyang, and at the lowest reaches of the financial ecosystem, North Korean money launderers still operate in Guangdong with impunity, and more discreetly, in places like the British Virgin Islands. Enforcing sanctions is like mowing the lawn. If you don’t do it regularly, things grow back quickly, and it’s the weeds that will thrive the most. Unlike mowing the lawn, you can’t take a uniform approach to different enforcement targets.

That is why H.R. 1771 was designed to be scaleable, allowing harder sanctions for smaller banks that the financial system wouldn’t miss, and more subtle sanctions for larger banks that have historically been highly sensitive to reputational risks. Securing compliance at all levels of the financial ecosystem will require a great deal of hard work by financial investigators and lawyers, and a new demonstration of Treasury’s determination to deter such conduct, both in China and in other countries.

Post-BDA, and since the ascent of Kim Jong-un in particular, North Korea has also sought to diversify its trade, investment and financial links. The KPA and its associates have developed relationships with financial entities that are not concerned with access to the U.S. market, both in China and outside it; Russia will be particularly interesting to watch in this regard but there is also the open field of the Middle East. Throughout, the legislation recognizes that the administration will need to conduct a vigorous diplomacy to close the loopholes created by the fact that some firms and financial institutions will not be deterred by secondary sanctions.

Without question, North Korea’s response to Banco Delta Asia has been to decentralize its hard currency operations overseas. Recently, North Korean senior defectors have provide some direct evidence of this to bolster the suspicions of the U.N. Panel of Experts. One obstacle to untangling this is the laxity of U.S. sanctions against North Korea, which do not require the licensing of most financial transactions like investments, loans, and other transfers. (See 31 C.F.R. 510.201, which bans proliferation-related transactions, imports from North Korea, and little else, and compare that to the corresponding breadth of the Iran and Cuba sanctions regulations). This deprives Treasury of valuable financial intelligence that could help it enforce a sanctions program more effectively, if the President ever directed it to do so.

Even so, it’s probable that North Korea still remains dependent on a relatively small number of key overseas financiers, abetted by a few unethical banks that are still willing to violate the intent of U.N. Security Council sanctions (by “relatively” small, I’m comparing my best guess to the hundreds of persons and entities designated by Treasury for financing Iran or various terrorist organizations; just 62 North Korean entities are designated today).

Of course, there’s nothing new about rogue regimes, terrorists, and drug lords hiding their money. With determined enforcement, it took Treasury three years to bring Iran’s relatively large, diverse, and interconnected economy to the brink of collapse, and about five to force Burma to free Aung San Suu Kyi. Bankrupting a terrorist organization with a low overhead was far more difficult, but within ten years, even Osama Bin Laden died bankrupt and isolated, cloistered with his wives and his extensive library of pornographic videos. There’s more overhead required to run a country with a population of 23 million and a million-man mechanized army, even if one runs it into the ground. This can’t be done with briefcases full of cash. Given Pyongyang’s relatively fragile links to the global economy — its chief exports are coal, meth, and refugees — one could realistically believe that sanctions would create significant leverage as quickly as they did in the case of Iran.

Without question, this will be harder today than it would have been if pursued with determination in 2007. But to suggest that the absence of a single weak link like Banco Delta Asia means that there are no others is to ignore the vulnerability of Pyongyang’s own banking system. One alternative would be to simply shut that system down entirely and force Pyongyang to work through responsible foreign banks, as Section 207(d) of H.R. 1771 contemplates. As Haggard says, correctly:

The outside world has a strong interest in encouraging reform and opening of the North Korean economy, to shift its strategic orientation away from the byungjin line of trying to pursue economic development and nuclear weapons simultaneously. If this legislation were to have the effect of encouraging deeper economic integration, it would be through an initial phase of even greater isolation, autarchy and external controls.

I agree with this, but I believe we’ve gotten the sequence wrong. Reform won’t be possible until North Korea accepts transparency and broad interaction with the outside world, and those prerequisites clearly don’t exist yet. The consequence of shutting down the North Korean banking system would be to force North Korea to rely on foreign banks. Responsible foreign banks that apply stringent transparency and compliance requirements on North Korea’s business transactions could extract some degree of financial transparency from Pyongyang — I’m suggesting something like receivership — that would force it to spend its money more wisely and humanely. Naturally, Pyongyang would never accept this until it was cornered directly over the trap door to Hell.

Another question is whether the sanctions will have the broader strategic effect of moving the North Koreans toward serious negotiation of its nuclear program. I am extremely dubious. Proponents of such sanctions point to BDA as a success in gradually bringing North Korea back to the table after its nuclear test in October 2006. But this assessment confuses a tactical move with the failure of the broader get-tough policy of the first Bush administration, which probably contributed to North Korea’s determination to go nuclear in 2006 in the first place. The incremental progress made during 2007-8 rested on the lifting of the BDA sanctions and extending offers of assistance as well.

This may be my only point of sharp disagreement with Haggard. The history suggests that Pyongyang began a determined pursuit of nuclear weapons in the late 1980s, continued that pursuit despite nuclear disarmament agreements with Bill Clinton and George W. Bush, and after Barack Obama asked Kim Jong Il to unclench his fist in 2009. Since then, North Korea has tested two more nukes and broken another disarmament deal. The revelation of North Korea’s uranium enrichment program is strong evidence of the continuity of North Korea’s intent. It also suggests that what happened in 2007 and 2008 was not progress at all, but the premature relaxation of pressure before North Korea’s disarmament was verified.

The point is a general one. The paradoxical feature of sanctions is that they rarely have the direct effect of forcing the target country to capitulate. The HR 1771 sanctions will have effect only when coupled with strong statements of a willingness to engage if North Korea showed signs of interest in doing so. The legislation provides plenty of sticks; the administration will have to continue to articulate the prospective carrots in a way that is credible. Strong sanctions legislation makes that difficult to do if the legislation places a series of binding constraints on the president’s discretion. Why negotiate with the U.S. if there is no return from doing so?

The experiences of 2007 and 2008 explain those binding constraints. If H.R. 1771 represents a vote of no confidence in the Obama Administration’s North Korea policy, sections 401 and 402 represent a vote of no confidence in the State Department, after its premature relaxation of sanctions against North Korea, Burma, and Iran. The United States has gotten good at using sanctions to gain diplomatic leverage. It has had a much poorer record of using that leverage to achieve its interests.

It’s fair to notice that Barack Obama wasn’t President in 2008. Is it also fair to constrain him over the actions of Bush’s State Department? I think it is, because the number of holdovers from one administration to another belies the essential continuity of both policies. Another long-standing sore point in Congress is its perception that the State Department has failed to enforce the North Korea Human Rights Act as intended. To a great extent, then, these sections not only express Congress’s distrust of North Korea, but its concerns that the State Department has abused its discretion and requires more limits. In future budgets, it wouldn’t surprise me to see this reflected in more fiscal limitations on how the State Department spends its appropriations.

Haggard is pessimistic that Kim Jong Un will ever give up his nuclear weapons voluntarily, and it’s a pessimism I share. It’s entire possible that only a coup or some kind of crisis will make effective diplomacy possible, but it will certainly require extraordinary leverage — leverage we don’t have today.

The longer North Korea refuses to disarm, the more assets and income streams Treasury will identify, block, and cut off. The loss of access to his offshore wealth will leave Kim Jong Un unable to sustain his own lifestyle, advance his WMD programs, pay his ruling elite, or feed his military and internal security forces. His mechanized military will degrade for lack of spare parts, fuel, and ammunition. The capabilities, discipline, and cohesion of his military and internal security forces will degrade until they are unable to suppress internal dissent. One beneficial effect of this would be to degrade the regime’s capacity to suppress markets, track cell phones, seal the borders, and block remittances and information from abroad. It’s possible that sanctioning the “palace” economy will help the gray-market people’s economy to flourish again.

In due course, these developments will also begin to destabilize the core of the regime. That may cause China to reassess its North Korea policy, enforce U.N. sanctions, and pressure Kim Jong Un to disarm diplomatically. Failing this, it may seek to euthanize the Kim Dynasty to preserve its greater interest in stability on the Korean Peninsula.

Alternatively, the regime’s financial isolation and political destabilization could cause other senior officials to prevail on Kim Jong Un to change his policies, or to remove him from power in favor of more rational leadership. The question today — so many years after our last good options evaporated — is which crisis we’d rather deal with. One is a North Korea with an effective nuclear arsenal, the willingness to proliferate it to others, a proven disregard for human life, and a dangerously impulsive leader. The other will require us to confront the tension attendant to fracking the Kim Dynasty into something we can deal with. Haggard and I will probably never give the same answers to that question, but he makes honest, objective, and compelling arguments about things policymakers must pay careful attention to as they implement a tougher new policy. In the end, however, one does not derive a clear sense of what strategy Haggard believes would be more likely to achieve our interests, which may explain his conscientious ambivalence about this legislation.

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Update: A reminder that the views I express here, including my inferences about the views of others, are mine alone.

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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.

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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.

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** 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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