Archive for U.S. Law

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.

~   ~   ~

Update:

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.

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.

~   ~   ~

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

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

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

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

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

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

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

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

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

~   ~   ~

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

Screen Shot 2014-09-14 at 9.51.15 AM

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

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

Screen Shot 2014-09-14 at 9.53.54 AM

[Plaintiff’s Exhibit B]

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

~   ~   ~

Update: This post was edited after publication.

~   ~   ~

Update 2: Welcome, Washington Post readers.

~   ~   ~

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

~   ~   ~

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

On Think Tanks, Propaganda, the Foreign Agents’ Registration Act, and Korea

Washington is a marvelous city for someone like me. Where else could a foreigner, an outsider like myself, do the things I was able to do?

                                          – Tongsun Park, to the House Ethics Committee, April 1978

A detailed story in The New York Times, examining grants and gifts by foreign governments to U.S. think tanks — and how those gifts influence scholars (and through them), voters, policymakers, and Congress — has caused much controversy and discussion in Washington this week. South Korea is not mentioned in the story, but it does feature prominently in this companion graphic tracking think tank contributions.

The Times also suggests that some of the strings attached to those gifts, whether expressed or (more often) implied, could violate the Foreign Agents Registration Act, which is a thing people can actually go to jail for, but as we’ll see below, seldom do.

In a Washington Post op-ed, David Post calls the story “rather nasty” and wonders what the big deal is. The Brookings Institution, one of the think tanks discussed in the story, responds that the reporter’s “characterization of a few issues is inaccurate,” but promises to “continue to review our internal policies and procedures … to make sure that we are setting the standard for think tank integrity.” A “deeply concerned” Congressman Frank Wolf also wrote to Brookings. And in a thoughtful piece for The New Republic, John Judis worries that foreign influence is corrupting our foreign policy. I’ll return to Judis’s piece a few times in this post.

There is much in the Times’s story that’s concerning, such as this:

Qatar and the United Arab Emirates — two nations that host large United States military bases and view a continued American military presence as central to their own national security — have been especially aggressive in their giving to think tanks. The two Persian Gulf monarchies are also engaged in a battle with each other to shape Western opinion, with Qatar arguing that Muslim Brotherhood-style political Islam is the Arab world’s best hope for democracy, and the United Arab Emirates seeking to persuade United States policy makers that the Brotherhood is a dangerous threat to the region’s stability. [N.Y. Times]

Guess who else has been one of the beneficiaries of Qatar’s contributions to “political Islam.”

It’s bad enough that foreign governments vie to use our armed forces as their rent-a-cops. Now, contemplate the idea that foreign governments do this even as they simultaneously subsidize threats to themselves, to the American people, and to millions of other innocent civilians.

~   ~   ~

This brings us to Korea, one of a select group of countries to have given its name to a Washington influence-peddling scandal. In 1977, years before his conviction in the Oil-for-Food scandal, Tongsun Park was “charged with 36 counts of conspiracy, bribery, mail fraud, failure to register as a foreign agent and making illegal political contributions,” after paying off 30 members of Congress to support South Korea’s interests, including by opposing a withdrawal of U.S. forces from Korea.

During the decade I’ve watched Korea policy in Washington, I’ve never seen or heard of anything remotely resembling Koreagate. I have, however, observed the extraordinary influence of the South Korean government over our Korea policy. Specifically, I’ve observed the tendency of South Korean Embassy staff and Korea-affiliated foundations to offer grants, travel, and other things of value to persons they considered influential. People I trust — both Koreans and Americans — have described efforts by the Korean Embassy to influence the agenda, content, and comment at think tank events where scholars meet, connect, and share information. At events I’ve attended in Washington and elsewhere, “Counselors” from the Korean Consulates were always present, and always watchful.

The “news” that foreign governments buy influence in Washington will not shock many people in this town, but the possibility that conduct far less egregious than Koreagate could still be illegal might. I’ve long felt that some Korea watchers should be more wary about FARA compliance. I’ve also long felt that the Justice Department should offer clearer guidance about the FARA’s limits, and that it should be more aggressive about enforcing the law against those who have crossed them.

For example, writing a confidential gossip dossier filled with personal information of obvious intelligence value about influential scholars, journalists, congressional staffers, and government officials — and then attempting to provide that dossier to a foreign embassy — certainly runs contrary to my reading of the FARA’s spirit. The Justice Department can decide whether this was legal, but I certainly found it ethically objectionable, like a Washington analogue to The Lives of Others. I’d be astonished if South Korea’s National Intelligence Service didn’t plan to use that dossier to target its subjects. But for an errant keystroke that sent that dossier to hundreds of people, none of the subjects would ever have known that a fellow citizen was reporting their vulnerabilities and personal matters to a foreign government.

Observing all of this from my anomalous position — a hobbyist Korea-watcher without professional entanglements with Korea — I’ve often thought that South Korea’s influence was so extensive that I’ve wondered how one can even do significant policy research about Korea beyond its sphere of influence. The expectations of a foreign donor, and how those expectations impact the donee’s work, have obvious potential to push a scholar into treacherous waters, both legally and ethically. I know scholars who’ve shared similar concerns with me.

~   ~   ~

Disclosures required under the FARA are supposed to be publicly available, but until recently, you had to obtain them from the Justice Department’s FARA Unit. Today, the Sunlight Foundation has begun publishing them online, although the data are still incomplete. Here is what those disclosures tell us about:

This document provides exceptionally detailed information about what individuals or companies do for their foreign clients. This could include contacting a member of Congress, a federal official or a member of the media. It also could involve producing a conference, press releases or placing op-eds. Supplemental forms also contain key information such as who registrants have contacted in the United States, payments to registrants from clients, political contributions and disbursements that are used to pay for expenses and activities. [Sunlight Foundation]

But how does South Korea compare to other nations in terms of its influence-buying? Sunlight analyzed the FARA disclosures of different nations and found that South Korea spends $3.9 million a year to influence Americans. That would put Korea first among East Asian nations, and seventh among all nations.

It would, except that even this figure is probably a wild underestimate (Israel, a country of undeniable influence, didn’t even make the list). For one thing, it excludes “diplomatic contacts by members of a nation’s embassy.” It also excludes contributions that donees either don’t have to report to the Justice Department, or simply don’t report. Finally, we may not associate FARA-reportable contributions by foreign corporations with a foreign government, even when the foreign government orchestrates them.

The FARA also has a confusing, abuse-prone exemption for “the defense of [a] foreign government” the President has deemed “vital to United States defense.” For the life of me, I can’t see the use for that.

~   ~   ~

South Korea’s FARA-registered agents include 22 governmental, consular, political, and commercial entities. They also include at least one media entity, the Korean Broadcasting System. The Korea Herald has also reported FARA contacts with the Korea Economic Institute.

The Korea Economic Institute is the most prominent FARA-registered entity in Korea policy circles. KEI is a well-connected group that serves as South Korea’s voice (and a key hub of its influence machine) in Washington. Its current head is a former congressman, and its previous head was a former senior State Department official. According to KEI’s IRS Form 990, KEI had an annual revenue of $2.3 million in 2012, but in 2013, it reported only $1.3 million in “payments to the registrant,” suggesting that (assuming Sunlight’s math is correct) many of its financials were not reported (or reportable) under the FARA. Its FARA-reported annual outlays include overhead and salaries, and support for conferences, congressional round tables, study programs, and social events for influential people, such as the Korea Society’s Annual Gala.

Despite its considerable influence on Korea policy, the Korea Society is not FARA registered, although a number of its contributions have been disclosed under the FARA, and its Chair, a former U.S. Ambassador to Korea, has disclosed contacts on behalf of Korean principals. Its contributors include KEI and a host of Korean corporations, including LG, Doosan, Asiana, SK, Hanhwa, and Hyundai, in addition to U.S. and European corporations. They also include The Korea Foundation, an organization under the substantial control of the Korean government.

Nothing in my research surprised me as much as the fact that The Korea Foundation (unlike the South Korean government, and its Embassy) also does not appear on the list of registered foreign agents, although a few of its contributions to KEI and other organizations are listed among the FARA disclosures.

That is troubling, because there is no question that the Korea Foundation is a tiger’s paw for the Korean government. It is a creation of a Korean law. Its Chair is “appointed by the President upon the proposal by the Minister of Foreign Affairs and Trade.” Its directors and officers are all appointed by the Foreign Ministry. Most of its offices abroad, with the notable exceptions of its Washington D.C. and Los Angeles offices, are co-located with Korean embassies (See Page 51 of its 2012 annual report). Its annual budget of more than $200 million (49) is funded by the Korean government and Korean corporations.

Screen Shot 2014-09-12 at 9.36.18 AM

[Figures in Korean won. W1,000 ~ $1.]

The Korea Foundation is immensely influential in U.S. policy circles. It promotes Korean culture, language, and academic exchanges, which is wonderful. It also conducts what it calls “public diplomacy,” a concept it describes in terms that strongly suggest an intent to influence policy through important people:

The Korea Foundation implements various dialogue programs to help fulfill its public diplomacy mission by providing venues for in-depth discussion among distinguished foreign figures and Korea-related specialists, and groups of next-generation leaders, expanding the community of those with a keen interest in Korea, establishing human resource networks, telling the story of Korea to the world’s peoples, and strengthening friendship with countries the world over. To enhance Korea’s public diplomacy, the Foundation organizes numerous international forums that include the participation of domestic and foreign opinion leaders from the fields of politics, economics, and academia, as well as those in the social and cultural sectors. In addition, the
Foundation supports think-tanks abroad, as well as the research projects, conferences, and publications of international organizations. (5)

Specifically, the Korea Foundation provides “support for policy-oriented research on Korea” by the American Enterprise Institute, The Brookings Institution, Berkeley’s APEC Study Center, the Center for Arms Control and Non-Proliferation, Council on Foreign Relations, the Korea Society, KEI, the Mansfield Institute, and the Wilson Center, among others (39). Here are some screenshots from its 2012 annual report.

Screen Shot 2014-09-12 at 9.29.19 AM

Screen Shot 2014-09-12 at 9.29.48 AM

The Korea Foundation has also brokered donations by Korean corporations and wealthy individuals to numerous U.S. and third-country universities, including Harvard ($570,000), Cornell ($450,000), Indiana University ($750,000), and the Deerfield Academy ($1,113,000) (48).

Screen Shot 2014-09-12 at 9.31.26 AM


In his New Republic piece, John Judis writes that “Japan and China, two of the main countries that have tried to exercise influence in Washington, have often done so through companies and foundations rather than directly through their governments.” He recounts a number of experiences with this and concludes, “In these countries, government and business often work in concert.” Clearly, that is also true of South Korea.

It is also true of North Korea, which is increasingly using corporate profiteers as levers against Seoul’s disarmament-first policy, in favor of a unilateral lifting of sanctions to allow more investment. That view seems to be gaining traction within South Korea’s ruling party, notwithstanding significant ethical and security concerns to the contrary. And if that view prevails in Seoul, its influence will be felt in Washington, too.

The Korea Foundation also sponsors congressional staff visits to Korea.

Screen Shot 2014-09-12 at 9.28.16 AM

None of this means, of course, that the scholars and think tanks that participated in Korea Foundation events allowed their work to be influenced. But having read the Times article, you may wonder whether The Korea Foundation has ever used its funding to try to control American think tanks. You don’t have to. In 2003, The American Enterprise Institute published a special Korea issue of The American Enterprise. Some of the articles in that issue questioned the return on our military subsidies to South Korea following a wave of pro-North Korean and anti-American sentiment that sometimes resulted in violence, and most of which was repulsive in some way. Shortly thereafter, the Korea Foundation withdrew its funding from AEI, and it made no great secret about why.

I can’t say how much of an in terrorem effect the Korea Foundation’s action against AEI had on other think tanks, but it seems suspect that ever since, almost no scholars of note have questioned the size or shape of U.S. Forces Korea. The only example I know of is Doug Bandow. Unfortunately, we’ve heard little from Mr. Bandow since he admitted to taking money from Jack Abramoff.

(My own belief is that U.S. Forces Korea is overdue to evolve into a command that provides air, naval, logistical, and intelligence support, as one part of a multilateral regional alliance. I’ve believed since I was a soldier in Korea that keeping U.S. ground forces there is a relic of 1960s doctrine. It puts tens of thousands of American soldiers and their families at excessive risk from a North Korean attack. American taxpayers carry too much of the burden of South Korea’s defense, and South Korea’s reliance on Uncle Sugar’s security blanket had created a false sense of security. South Korea will never be a self-confident and independent nation without greater self-sufficiency in its own defense. To achieve that, it should end its subsidies to North Koreastop cutting its defense budget, improve its missile defenses, and build a big enough Army reserve component to stabilize North Korea if the regime collapses. Also, I dislike the idea that my taxes are effectively subsiding both sides. But then, I can see why South Korea would rather not raise defense spending when having a good lobby in Washington costs so much less.)

Of course, the most effective way to influence people is through personal relationships. Indeed, The Washington Post’s report on Sunlight’s study concluded that because it’s cheaper and more effective to use long-established connections, “[t]he governments that spend the most here on hired PR are ones that typically don’t have strong established diplomatic ties.”

Not surprisingly for a culture places a high value on friendships and loyalty, Korea does that very well. In a 2007 op-ed for a Korean newspaper, one respected American scholar cited the Korea Foundation’s assistance to him and the enduring gratitude it had obviously earned, and called for the Korean government to increase its funding:

For the past ten years I have received grants from the foundation to hold conferences on Korea in the United States when I was at the Korea Economic Institute in Washington, and for the past three years to support the reports being written by the International Crisis Group’s Seoul office. The amounts were never huge, but they really made a difference for my organizations. In fact, the foundation provides the only funding that Crisis Group receives from China (excluding Hong Kong), Japan or Korea. The Japan Foundation and Sasakawa Peace Foundation will not go near projects that might offend Japan’s right wingers. Crisis Group’s report on history/territorial disputes certainly would have.

This scholar corroborates the Korean government’s politicization of the Korea Foundation when he writes, “It is well known that one president’s chief (if not only) qualification was that he had backed the right horse in the presidential election.”

Although the scholar insists that “in all of my various capacities, the Korea Foundation never once even hinted at what subjects I should write about or the opinions I should express,” at the end of his piece, he alleges that “[t]hree American think tanks have quietly complained to me that they thought their funding had been suddenly cut off for political reasons.” That op-ed was published not long after the Korea Foundation cut off funding for the American Enterprise Institute.

~   ~   ~

Since you were about to ask, North Korea also has one FARA-registered agent, Woo Park of “Korea Pyongyang Trading U.S.A.,” who appears to be the same person as Steve Park of Pyongyang Soju infamy. To further confuse you, Park was previously convicted of acting as an unregistered South Korean agent, by giving its National Intelligence Service detailed reports of his travels in North Korea. Immediately thereafter, the judge allowed Park to leave for a business trip to Pyongyang, where he was, inexplicably, not immediately shot. (Try to imagine the conversation between Park and his lawyer — you want me to ask the judge what at your plea hearing??).

Park still aspires to promote North Korean business interests here today. Want to read a translation of his MOU with the North Koreans to promote Keumgang tours to Americans? You know you do. Yes, that would be the same Keumgang where a North Korean soldier shot and killed South Korean wife and mother Park Wang-Ja in 2008. The MOU doesn’t disclose what Park is being paid, but does have this curious term:

The two sides shall not announce the nationalities and affiliations of the tourism study delegation personnel.

In other words, this foreign influence disclosure statute disclosed a nondisclosure agreement to protect the secrecy of North Korea’s finances, which it will use to buy foreign influence.

Park isn’t the only one to violate the FARA on North Korea’s behalf. In 2003, businessman and “unification” activist John Joungwoong Yai of Santa Monica pled guilty to taking more than $18,000 from North Korean agents to work on Pyongyang’s behalf.

North Korea is also a beneficiary of the influence of Chinese commercial interests. Judis adds:

… The New York Times might have also investigated another foreign contribution to CSIS. This May, CSIS, which I’ve heard from other people at think tanks to be desperately seeking funding, announced that its posh new building would house the Zbigniew Institute on Geostrategy. The institute, which may simply be a fundraising gimmick, was seeded by a large grant from Wenliang Wang, who runs Rilin Enterprises, which is headquartered in Dandong, China.

Rilin Enterprises is the largest private construction firm in China and also controls the largest port near the North Korean border. Wang has been an advisor to municipal administrations and is on Forbes list of the China’s most wealthy individuals. Says Mann, “Anyone in construction is dependent on state banks for loans. Dandong, the closest city to North Korea, is more heavily connected to the government and the People’s Liberation Army than most other cities. It is safe to conclude the guy has extensive government connections.” Is it likely, given this bequest, that this institute will air hostile views toward China?

Dandong, of course, is also a notorious hub for North Korean money laundering.

The problem of illegal foreign influence-buying is much larger than think tanks, of course, and touches both parties. A few of us will recall the massive Chinese influence-buying scandal from the 1996 campaign, when Chinese diplomats funneled money to Democratic campaigns through their agents of influence in the United States, who in turn funneled the money through destitute immigrants who often spoke little English. The scandal resulted in several jail terms and even lapped at the feet of former Vice President Al Gore.

~   ~   ~

Having said this, the application of the FARA to think tanks and scholars isn’t as clear as The New York Times would suggest. The “Definitions” section of the FARA (see 22 U.S.C. 611), defines “foreign principal” to mean almost any foreign government, person, or entity, and “agent of a foreign principal” as any person who acts as the principal’s “public-relations counsel,” “publicity agent,” or “information-service employee.” So what do those things mean?

(g) The term “public-relations counsel” includes any person who engages directly or indirectly in informing, advising, or in any way representing a principal in any public relations matter pertaining to political or public interests, policies, or relations of such principal;

There is a specific exception for news organizations, although the FARA leaves just enough room to allow, arguably, for a prosecution of an individual journalist who agrees to censor or alter the content of a news report on a foreign principal’s behalf. (And … I’ll just stop there.)

(h) The term “publicity agent” includes any person who engages directly or indirectly in the publication or dissemination of oral, visual, graphic, written, or pictorial information or matter of any kind, including publication by means of advertising, books, periodicals, newspapers, lectures, broadcasts, motion pictures, or otherwise;

This provision would probably cover bloggers and activists. So would the following one, which is also the provision that’s most likely to apply to think tanks:

(i) The term “information-service employee” includes any person who is engaged in furnishing, disseminating, or publishing accounts, descriptions, information, or data with respect to the political, industrial, employment, economic, social, cultural, or other benefits, advantages, facts, or conditions of any country other than the United States or of any government of a foreign country or of a foreign political party or of a partnership, association, corporation, organization, or other combination of individuals organized under the laws of, or having its principal place of business in, a foreign country;

The FARA then imposes certain disclosure and registration requirements on those falling within the definition of the term “agent of a foreign principal,” but contains (at 22 U.S.C. sec. 613) a number of exceptions, including this one:

Any person engaging or agreeing to engage only in activities in furtherance of bona fide religious, scholastic, academic, or scientific pursuits or of the fine arts;

“Bona fide” leaves much to the prosecutorial imagination, and neither DOJ’s public guidance nor its FARA regulations help to clarify it. My view, which obviously isn’t the view that really matters, is that research is “bona fide” if it’s objective and unencumbered by any “order, request, … direction or control, of a foreign principal.” It ceases to be “bona fide” when a foreign principal’s “order, request, … direction or control,” affects its content.

In most cases, of course, that control is only implied. Think tanks are undoubtedly mindful of how donors have reacted to the work of other think tanks and scholars. The Justice Department should be equally mindful of it. It should also clarify that point in a regulation, establishing prior conduct, such as asking a scholar to alter her work or threatening to cut funding, as a FARA-reportable event that becomes circumstantial evidence of intent to control in future cases.

The Justice Department’s FARA regulations are potentially helpful in another way, however. Under section 5.2, a “present or prospective agent of a foreign principal” can ask the Justice Department for a confidential advisory opinion about FARA requirements. The U.S. Attorneys’ Manual’s FARA guidance cites this process as one reason why FARA prosecutions are a rarity today. Another would seem to be DOJ’s practice of only going after easy wins: “millions of dollars in receipts or expenditures by the prospective defendants; ‘core’ violations of FARA with jury appeal; and evidence of willfulness.”

The FARA also provides for civil penalties, but DOJ pursued fewer than two dozen such actions in the three decades preceding 1995, when the FARA section of the Manual was last updated.

Thus, members of the public and scholars can see few signs that the Justice Department is interested in clarifying or enforcing the FARA. Meanwhile, some of America’s best intellectual assets are being overgrown with entanglements. Because of its confidentiality, the advisory opinion process, as useful as it may be for scholars, does nothing to restore public confidence.

~   ~   ~

I express no legal opinion as to whether the Korea Foundation is required to register under the FARA. I am expressing an opinion as a citizen that if it isn’t, then the FARA isn’t serving its intended purposes — to protect the objectivity of our public discourse from hidden foreign influence, and to protect public confidence in the objectivity of our scholarship. Maybe the law needs to be amended, and maybe it just needs to be enforced, but it isn’t working anymore.

Public confidence is important enough that that law recognizes and prohibits “the appearance of impropriety” by those with greater duties to the public. Here, I believe that the appearance is bad enough to demand remedies.

First, the Justice Department should amend its FARA regulations to offer clearer public guidance on the FARA’s application to scholars and nonprofits. Clearer guidance is not only necessary for scholars, but also for the consumers of their research. Specifically, DOJ should promulgate regulatory guidance on implied “direction or control” that mirrors what scholars must already be thinking as they write. It should require scholars and think tanks to report attempts by foreign agents to control their work through requests or threats to cut funding, a power Congress has given the Attorney General in section 2 of the FARA. And when foreign principals fail to meet registration requirements or willfully omit material facts, the Justice Department should enforce the law and set examples.

Second, think tanks don’t have to wait for the Justice Department to act. They can set clear guidelines for their staff, assuming they haven’t already done so. They can use central funding to insulate their scholars from foreign influences on their research. They can also be clear with donors that contributions will be accepted without conditions and encumbrances. Their publications should also voluntarily disclose their contributions from foreign principals that may have interests in the work.

Nothing, however, would be a more welcome change to Korea policy than the emergence of the Korean-American diaspora as an independent political force, with influence in both the U.S. and Korean governments. Such a force would, to be certain, maintain a strong affinity to its ancestral homeland, and continue to support its security. Just as certainly, it would diminish the influence of commercial and corporate interests in favor of security and humanitarian interests. It would be far less likely to triangulate toward the anti-anti-North Korean views of many on South Korean’s political left. And given the success with which Korean-Americans are assimilating into American society, its newer generations would increasingly reflect the interests and values of America as a whole.

~   ~   ~

Update: This post was edited after publication.

Radio Free Asia interviews me about North Korea sanctions.

Link here; hat tip to Adam Cathcart.

Senate intel bill would require report on N. Korean gulags

Yonhap points me to S.2741, the Intelligence Authorization Act for Fiscal Year 2015, introduced by Committee Chair Diane Feinstein the day before Congress went into summer recess, and a few days after the House passed H.R. 1771, the North Korea Sanctions Enforcement Act.

Section 316 of S.2741 would require the CIA to report to the House and Senate intelligence oversight committees on North Korea’s political prison camps:

SEC. 316. REPORT ON POLITICAL PRISON CAMPS IN NORTH KOREA.

(a) In General.–The Director of National Intelligence, in consultation with the Secretary of State, shall submit to the congressional intelligence committees a report on political prison
camps in North Korea.
(b) Elements.–The report required by subsection (a) shall–
(1) describe the actions the United States is taking to support implementation of the recommendations of the United Nations Commission of Inquiry on Human Rights in the Democratic People’s Republic of Korea, including the eventual establishment of a tribunal to hold individuals accountable for abuses; and
(2) include, with respect to each political prison camp in North Korea to the extent information is available–
(A) the estimated prisoner population of each such camp;
(B) the geographical coordinates of each such camp;
(C) the reasons for confinement of the prisoners at each such camp;
(D) a description of the primary industries and products made at each such camp, and the end users of any goods produced in such camp;
(E) information regarding involvement of any non-North Korean entity or individual involved in the operations of each such camp, including as an end user or source of any good or products used in, or produced by, in such camp;
(F) information identifying individuals and agencies responsible for conditions in each such camp at all levels of the Government of North Korea;
(G) a description of the conditions under which prisoners are confined, with respect to the adequacy of food, shelter, medical care, working conditions, and reports of ill-treatment of prisoners, at each such camp; and
(H) unclassified imagery, including satellite imagery, of each such camp.
(c) Form.–The report required by subsection (a) shall be submitted in an unclassified form and may include a classified annex if necessary.

Subsection (b)(1) shares a common purpose with Section 303(b) of H.R. 1771, in that it asks State to report on what, exactly, it has done to effect the recommendations of the COI report. Fortunately for State, that report shouldn’t impose a high burden of draftsmanship. In a spirit of friendly outreach to my friends at the Department of State, I’ll even suggest a text: Read more

Yonhap interviews Ed Royce, on H.R. 1771

The day after the North Korea Sanctions Enforcement Act passed the House, Royce gave an interview to Yonhap:

“We have tried every approach to engage North Korea and the only time that we’ve ever really had their attention was when we’ve used some leverage on the regime itself,” Royce said in the interview in his office shortly after the bill’s passage on Monday, referring to the BDA sanctions. [….]

Royce said that chances of the bill passing through the Senate are “very good.”

“There’s a lot of bipartisan support for this legislation,” he said. “I know the feelings of many of the senators I’ve talked with. The senators feel as we feel that this is a step that we need to take.”

But the chairman stressed the bill won’t affect humanitarian aid to the North.

“What we are looking at doing is — instead of cutting off the aid to the regime itself — cutting off the institutions that the regime uses, not only to consolidate its power over the people of North Korea and violate their rights but also the institutions they use to build up, continue to build up their nuclear weapons program and their ICBM program,” he said. [Yonhap]

I’m interviewed further down in the piece.

H.R. 1771 passes House of Representatives on a voice vote

Chairman Royce (R, Cal.) and Congressman Gerry Connolly (D, Va.) both spoke strongly in favor. No member was opposed, and no member asked for a vote. The “ayes” had it just after 3 p.m.

If there’s any aspect of this that’s bittersweet, it’s that a lot of people who worked hard for this outcome could not be there to see it because the vote was scheduled on such short notice.

Here is the version that passed the House today.

Now, on to the Senate.

~   ~   ~

Update: Jean Arthur explains congressional procedure to Jimmy Stewart in the classic “Mr. Smith Goes to Washington.”

I love that clip.

H.R. 1771 scheduled for a House floor vote on Monday

It’s on the calendar. And while I doubt there will be serious opposition in the House, we’ll need Kim Jong Un’s help to pass the Senate this year. But if not this year, next. Eventually, he’ll do something stupid, and when he does, we’ll be ready.

By itself, passage in the House would be a major symbolic victory. No one will ever be able to say there’s no alternative to standing by and watching a nation be slaughtered, strangled, and starved to death.

You hear a lot about how polarized this Congress is politically, but the Foreign Affairs Committee is a haven from that. The (relative) partisan and ideological balance in this bill’s support reflects that even in the Congress, there’s still a place where the two parties can work together. Royce himself has called our North Korea policy “a bipartisan failure.” H.R. 1771 represents a bipartisan recognition that we need a better strategy.

I can’t overstate my appreciation for so much hard work by Korean-American and other groups that mobilized to pass this bill: the Federation of Korean Associations, the North Korean Freedom Coalition, the Korean Church Coalition (which ran an outstanding event to support this bill two weeks ago), and of course, the Committee for Human Rights in North Korea.

[The Korean Church Coalition, 2014 Leadership Conference, Washington]

Finally, I can’t overstate my appreciation to Chairman Royce for delivering, and to the Foreign Affairs Committee’s talented, overworked, underpaid, and often unrecognized staff members — of both parties, and in the Asia Subcommittee — who did the hard work that made this bill possible.

Breaking: Royce will make an announcement at Subcommittee hearing today, on H.R. 1771

Once again, I apologize for the short notice. If you’re unable to attend in person, the event will be webcast live at this link. The witnesses will include Greg Scarlatoiu of the Committee for Human Rights in North Korea, Bruce Klingner of the Heritage Foundation, and Grace Jo, a very compelling and articulate young North Korean refugee who speaks fairly good English, and who recently founded the group NK in the U.S.A. The topic will be how to respond to the U.N. Commission of Inquiry report.

Update: It’s now Yonhap’s lead story – Chairman Royce will take the bill to the next step, Committee markup, in May. That’s great, but the calendar isn’t a friend. This is an election year, and when Congress goes into recess in early August, we’re all done until the lame duck session after this fall’s election. So although Govtrack’s algorithm-generated odds-making is statistically worthless, this bill will have to get through other House committees with concurrent jurisdiction, get passed on the House floor, get introduced in the Senate, get through the Banking Committee, make it to the Senate floor, get a vote there, and make it to the President’s desk soon enough to avoid a pocket veto. (I doubt he’d veto this outright.) That’s a lot to do in very little time, so it still won’t pass without a lot of backing and support.

Fortunately, the Korean-American and human rights groups have put a lot of muscle behind this bill to overcome the pressure that Royce and others are no doubt feeling from what I’ll call “vested interests.” I can’t say enough for their dedication. Kudos to Royce, and to the Republican and Democratic members who have stood behind him on this.

Also, don’t miss the video of the hearing, with very strong testimony from Greg Scarlatiou, Bruce Klingner, and Grace Jo. Finally, I hope Priscilla Koepke, Chairman Chabot’s excellent staffer, won’t mind me recognizing all her hard work putting this hearing together.

Feds investigating Rodman for violating N. Korea sanctions

HAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHA!

U.S. Commerce ** 2014-01-10 at 12.48.39 PM

You’re welcome, feds! Email me and we’ll do coffee sometime. On me.

Congress funds more broadcasting for N. Korea, online gulags database

If you can stomach some appropriations law this evening, there are a few items in this year’s Appropriations Bill that should be of interest to the OFK readership. As of this hour, both the House and the Senate have passed the bill, and the President is expected to sign it on Saturday.

Those of us who were early (and naive) enthusiasts for the North Korean Human Rights Act of 2004 have grown gray and cynical over the last decade, as we watched the State Department repeal it by disinterpretation. Few executive branch officials would disregard Congress’s limits on appropriations so casually. To do so would violate the Anti-Deficiency Act, which in extreme cases, carries criminal penalties. Even unintentional violations require onerous reporting to OMB and Congress, and can cost senior officials their jobs.

Congress’s most important authority over federal executive agencies is the power of the purse. By limiting or restricting appropriations, Congress can force federal agencies to bend to its will. That’s why appropriations and authorization acts are such important tools of congressional oversight. There are some provisions in this year’s appropriations bill that show us hints that the House in particular is growing more assertive on North Korea policy.

Several of the provisions in this year’s Act are limits designed to prevent tax dollars from falling into Kim Jong Un’s hands. Provisions like these are common in appropriations bills, although most of them weren’t in State’s Fiscal Year 2013 appropriation.

SEC. 8042. None of the funds appropriated or other wise made available in this Act may be obligated or expended for assistance to the Democratic People’s Republic of Korea unless specifically appropriated for that purpose. [Page 273]

The Fiscal Year 2013 Appropriations Act contains similar language. Everything else you’re about to see wasn’t in last year’s appropriation. For example:

SEC. 7007. None of the funds appropriated or otherwise made available pursuant to titles III through VI of this Act shall be obligated or expended to finance directly any assistance or reparations for the governments of Cuba, North Korea, Iran, or Syria: Provided, That for purposes of this section, the prohibition on obligations or expenditures shall include direct loans, credits, insurance and guarantees of the Export-Import Bank or its agents. [Page 1203]

The titles referred to are within Division K of the Act, the State Department’s annual appropriation. Title II is called “United States Agency for International Development, Title III is “Bilateral Economic Assistance,” Title IV is “International Security assistance,” Title V is “Multilateral Assistance,” and Title VI is “Export and Investment Assistance.”

If you dig into the specific provisions of those titles, however, you’ll see only the most general correlation between the actual provisions and what the titles lead you to expect there. That means if you want to know how a specific provision affects a specific program, you have to know what appropriation the program is funded from.

Next, Curtis and I are about to get some competition from the government.

SEC. 7032(i) Funds appropriated by this Act under the heading ‘‘Democracy Fund’’ that are made available to DRL shall be made available to establish and maintain a database of prisons and gulags in North Korea, including a list of political prisoners, and such database shall be regularly updated and made publicly available on the Internet, as appropriate. [Page 1252] 

You will see a similar provision in H.R. 1771, the North Korea Sanctions Enforcement Act.

Congress is increasing funds for broadcasting to North Korea, which is also provided for in H.R. 1771. For years, the Broadcasting Board of Governors has suffered from a severe lack of funding. For years, Congressman Ed Royce made it a personal priority to fix that. With respect to North Korea, the drought is about to break. This is a much-needed boost for broadcasting as we learn that the BBC (this time, I mean the British one) will not fund broadcasts to North Korea.

SEC. 7043(d) NORTH KOREA.— 

(1) Of the funds made available under the heading ‘‘International Broadcasting Operations’’ in title I of this Act, not less than $8,938,000 shall made available for broadcasts into North Korea. 

(2) Funds appropriated by this Act under the heading ‘‘Migration and Refugee Assistance’’ shall be made available for assistance for refugees from North Korea, including for protection activities in the People’s Republic of China. 

(3) None of the funds made available by this Act under the heading ‘‘Economic Support Fund’’ may be made available for assistance for the government of North Korea. [Page 1312] 

The broadcasting appropriation is significant. The amount appropriated is infinitesimal in terms of the federal budget as a whole, but generous with regard to the Board’s needs. The migration assistance could remove an excuse for China to shun refugees who cross the border, but don’t count on it persuading China’s policy to change. It’s unlikely to be used unless there’s some severe crisis in North Korea.

The last provision I’ll mention is one that doesn’t mention North Korea by name, but could affect assistance to it.

SEC. 7021.

(a) LETHAL MILITARY EQUIPMENT EXPORTS.— 

(1) None of the funds appropriated or otherwise made available by titles III through VI of this Act may be available to any foreign government which provides lethal military equipment to a country the government of which the Secretary of State has determined supports international terrorism for purposes of section 6(j) of the Export Administration Act of 1979 as continued in effect pursuant to the International Emergency Economic Powers Act: Provided, That the prohibition under this section with respect to a foreign government shall terminate months after that government ceases to provide such military equipment: Provided further, That this section applies with respect to lethal military equipment provided under a contract entered into after October 1, 1997. 

Section 7022 contains an “important to the national interest” exception, within the President’s discretion. Section 6(j) of the Export Administration Act is a reference to the list of state sponsors of terrorism. North Korea is not listed, but Iran and Syria — both major arms clients of North Korea — are.

The question then becomes what aid really is being provided to North Korea. Certainly North Korea hasn’t accepted U.S. food aid for years. That was Kim Jong Il’s decision, not President Obama’s. With respect to any miscellaneous aid or exchange programs that are getting taxpayer support, and that are funded under Title III or Title IV appropriations, their funding is done for this year. Of course, Section 8042 arguably terminates all assistance to the North Korean government, although I can imagine how a program could be structured to pay the money to some gullible NGO, which would be an easy mark for the North Koreans.

Ordinarily, appropriations acts aren’t supposed to make positive law. That’s why ad hoc appropriations are a good start, but won’t be a substitute for H.R. 1771. On the other hand, without the backing of an assertive Congress that knows how to use the power of the purse, State will ignore H.R. 1771, too.

Ed Royce’s leadership of the Foreign Affairs Committee is starting to leave its mark on North Korea policy. An important part of that leadership is Royce’s ability to work effectively with tough-minded Democrats like Elliot Engel, Albio Sires, Ted Deutch, and Tulsi Gabbard, as well as with leading Republicans like Chris Smith and Steve Chabot (who leads the Asia Subcommittee).

What’s that? Our fucking plan for North Korea, you ask? It’s called “H.R. 1771″

Update 2, 9/24: So now that I’ve noticed that I was reacting quite strongly to a seven year-old post, recently retweeted by another blogger–but still, sheesh–let me offer my apologies to Mr. Lewis for the tone of my reaction, and my compliments to Robert Gallucci for at least conceding that the old policy didn’t work.

Original Post: 

You know, Jeffrey, you ask that question with a boldness that seems to presume the absence of a ready answer. If reading the bill is too much to ask, then I’ll let Congressman Ted Deutch (D, Fla.) give you the Cliff notes version. (He’s one of 125 co-sponsors, and a respected member of the House Foreign Affairs Committee.)

P.S.  I can’t speak for others who are also of the hard-line persuasion, but I’m not against talking to the North Koreans. It’s paying them I have a problem with. So now that we’ve framed the question that way, do you or do you not support paying North Korea when almost no one believes they’ll disarm? Because if we can agree that North Korea isn’t going to disarm–and just about everyone does–then I guess talking about paying them is a plan. Now tell me what you have a plan for.

P.P.S. Maybe I can put it this way:  our fucking plan for North Korea is actually a plan for fucking North Korea. Or rather, fucking Kim Jong Un, financially speaking.

P.P.P.S. I should be clearer whose plan it really is–and of course, that would be Chairman Ed Royce. Ranking Member Elliot Engel was an original co-sponsor. In the interests of full disclosure, I helped the Committee staff with the drafting and legal advice.

I should also clarify that Jeffrey Lewis is really echoing Robert Gallucci’s question–expletives included–although he does so with apparent approval.

Update: 9/24: Please note the disclaimers here. Anything I write on this blog represents nothing more than my views as a private citizen. I don’t work for the House or any of its Committees or members. I use the possessive “our” above not because I speak for anyone else, but as one of those presumably painted with Gallucci’s broad brush as having no plan because I oppose a continuation of failed “engagement” and “Sunshine” policies.

Although I’ve often disagreed with Gallucci’s policy views, I respect his integrity and the honesty of his appraisals, such as this recent concession:

“The policy we have pursued over the last 20 years — engagement, containment, whatever — has failed to reduce the threat posed by North Korea to the security of the region,” Robert Gallucci said in a keynote speech during a security forum held in downtown Seoul.  [Yonhap]

This makes Gallucci’s criticism seem especially strange.  What good is a plan that’s no different from the one that, by your own concession, doesn’t work?

 

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

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

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

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

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

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

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

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

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

L.A. Times on Litigation Against North Korea

At the L.A. Times, John M. Glionna discusses litigation against North Korea and the efforts of the plaintiffs’ attorneys to find, fix, and seize North Korean assets. Here’s a teaser:

“Nobody pays attention unless these nations are held accountable,” said Han Kim, the son of the Chicago minister abducted by North Korea.

Meanwhile, plaintiffs’ lawyers continue their hunt for North Korean assets. “I don’t know whether we’ll ever be successful. That’s the sad part,” said Streeter. He said he charged each of four plaintiffs a $5,000 retainer but will receive no more until a judgment is collected. “But I want to see some of that money that Kim Jong Il is using to buy his yachts and his Courvoisier as payment to my clients,” he said. “I’ll take it in Courvoisier. I don’t care.”

Glionna’s quotes of the lawyers are interesting reading, though legally and substantively, there isn’t much there that you haven’t read right here, at this humble blog. In fact, several weeks ago, after Glionna read the page, he contacted me with a few questions about how the law has evolved in this area. I also put him in touch with Richard Streeter and told him how to find Robert Tolchin (at the bottom of his pleadings, published on my page). It’s all just another day in the life of an pajama-clad blogger rearranging and serving table scraps from the dead tree media.

It bears repeating that these lawyers are trying to collect tort judgments on behalf of American victims of terrorism and torture, something that’s completely consistent with what Congress intended when it amended the Foreign Sovereign Immunities Act after 9/11. Yet their primary opponent hasn’t been North Korea, which failed to offer any defense to the suits, but our own State Department. I can understand the State Department arguing to maintain its prerogative over the conduct of foreign relations before Congress passes a law. What I can’t understand is State continuing to frustrate a statute after it is passed and signed by the President, after it has become the settled law of the land — just as it did with the North Korean Human Rights Act.

I don’t make any secret of the fact that I’m rooting for Streeter, Tolchin, and their clients. It’s fair to suppose that none of the assets they levy will have been earmarked to buy baby formula. Today, the total amount of the U.S. District Court judgments against North Korea is approaching $500 million. By some estimates, that’s the same amount North Korea was earning from its overseas weapons sales every year until recently.

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

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

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

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

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

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

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

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

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

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

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

Throw the Book at Him

So I will assume that Stephen Kim, the Korean-American State Department contractor who is now being prosecuted for leaking top secret / sensitive compartmentalized information was neither employed by, nor sympathetic to, North Korea given his choice of Fox News as a recipient for his leak of information that might have revealed U.S. intelligence sources in North Korea. And having said that, I really don’t care what Kim’s specific views were, I just want to know if any foreign government put him up to this. Regardless of Kim’s views, the administration is right to throw the book at those who illegally leak classified information.

One of the most inviolable rules any civil servant, contractor, or employee must respect is that confidential or classified information must never leave the office. That’s why you’ve never seen me talk about my work, and you seldom even see me allude to it. There are exceptions, recognized by law, for revealing abuse of authority or a violation of law by colleagues, but the appropriate vehicle for those reports is to report that information to the Inspector General, not Fox News or Wikileaks.

I already regret making the comparison to Robert Kim, because I only draw it because of Stephen Kim’s ancestry, which shouldn’t matter. But among South Korea’s favorite methods for exerting its extensive influence over U.S. policy toward the Koreas is to leak reports that favor its policy goals. I emphasize that I have no particular reason to believe that Stephen Kim was working for South Korea, but Kim’s case does illustrate the danger that foreign governments will use leaks to corrupt U.S. government employees for their own purposes (and in case you’re wondering, I hold precisely the same view of Jonathan Pollard, who deserves to die in prison). Ultimately, this legitimizes suspicions of dual loyalties against loyal and honest American citizens who may bring badly needed linguistic and cultural understanding to the federal service. That means that leaks of this kind are toxic for good policymaking, for the civil service, and for society as a whole, and that the Obama Administration gets my full support for this prosecution.