Rex Tillerson on North Korea

I’ve been letting confirmation hearings play in the background at the office this week, and I was able to catch enough of Rex Tillerson’s hearing to listen up at key moments. You can watch the whole thing here if you have time; it’s likely that North Korea also came up during other moments that I didn’t catch. Of course, I was keen to hear Tillerson’s views about North Korea. I was also keen to hear (indirectly) the views of the transition team members who had prepared him for his hearing. In his written testimony, Tillerson strongly criticized China for being unhelpful on North Korea.

And we must hold those who are not our friends accountable to the agreements they make. Our failure to do this over recent decades has diminished our standing and encouraged bad actors around the world to break their word. We cannot afford to ignore violations of international accords, as we have done with Iran. We cannot continue to accept empty promises like the ones China has made to pressure North Korea to reform, only to shy away from enforcement. Looking the other way when trust is broken only encourages more bad behavior. And it must end. [….]

We should also acknowledge the realities about China. China’s island building in the South China Sea is an illegal taking of disputed areas without regard for international norms. China’s economic and trade practices have not always followed its commitments to global agreements. It steals our intellectual property, and is aggressive and expansionist in the digital realm. It has not been a reliable partner in using its full influence to curb North Korea. China has proven a willingness to act with abandon in pursuit of its own goals, which at times has put it in conflict with America’s interests. We have to deal with what we see, not with what we hope.

But we need to see the positive dimensions in our relationship with China as well. The economic well-being of our two nations is deeply intertwined. China has been a valuable ally in curtailing elements of radical Islam. We should not let disagreements over other issues exclude areas for productive partnership. [Written Testimony]

Tillerson made similar verbal statements early on in the hearing.

More press reports on those comments here and here.

Senator Cory Gardner of Colorado got his turn to ask questions at 2:31:50 (sorry, no embed link). Gardner used his time efficiently, methodically pinning Tillerson down on a series of policy points: full enforcement of the North Korea Sanctions and Policy Enhancement Act, exerting more pressure on China and North Korea, the use of secondary sanctions against China, and working closely with Japan and South Korea. Gardner returned at 6:21 to raise the issue of human rights and yesterday’s designation of Kim Yo-jong, announced just minutes before, though Tillerson himself didn’t expand on that. (I’ll discuss those designations in a future post, hopefully tonight.)

Tillerson’s hearing added more pixels to our image of the Trump administration’s North Korea policy, and the policy that is taking form is a conventionally conservative one. Compare Tillerson’s comments with those of Michael Flynn during a recent visit to Seoul, where Flynn also re-committed to the alliance and to stepping up the enforcement of sanctions against Pyongyang. Tillerson is clearly smart and well-schooled in foreign affairs. When appropriate, he was willing to disagree with some of the bombastic statements of the President-Elect as a candidate. He seemed steady, independent, and well-qualified. We could do much worse. Time will tell whether he’ll be confirmed and how he performs.

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Two must-reads, via David Straub & Evans Revere

I sacrificed my blogging time for a greater cause today, but instead will direct you to the sober and terrifying analyses of two of my favorite left-of-center North Korea watchers, David Straub and Evans Revere. Both will give you a good idea of exactly where Kim Jong-un thinks his nuclear program is leading, and it doesn’t involve bargaining it away. Similar to this and this in some regards, in case you missed those posts.

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WaPo: Trump’s Asia team leans toward sanctioning N. Korea’s Chinese enablers

For now, this is mostly leaks and whispers in a Josh Rogin column, but it’s encouraging.

Behind the scenes, however, the Trump transition is preparing its own pivot to Asia. As the team that will implement that policy takes shape, what’s emerging is an approach that harkens back to past Republican administrations — but also seeks to actualize the Obama administration’s ambition of enhancing the U.S. presence in the region. Transition officials say the Trump administration will take a hawkish view of China, focus on bolstering regional alliances, have a renewed interest in Taiwan, be skeptical of engagement with North Korea and bolster the U.S. Navy’s fleet presence in the Pacific. [….]

North Korea’s nuclear and missile programs are advancing quickly, and Trump has pledged to stop them. His team is considering secondary sanctions that would apply to companies that aid Kim Jong Un’s regime, which would create another point of tension with China. The details of several of the policies are not yet fleshed out. [Josh Rogin, WaPo]

Victor Cha, who cited this humble blog in congressional testimony recently to support the point that our North Korea sanctions are far weaker than frequently described, is among those under consideration for a senior post in the team. An op-ed Cha co-wrote with Robert Gallucci in the New York Times (a key passage of which is archived here, if you’re not a subscriber) also calls for increasing secondary financial sanctions against North Korea and emphasizing its crimes against humanity by citing the U.N. Commission of Inquiry’s report. Obviously, I won’t argue with the soundness of those ideas, and I’d like to see both of them become parts of our North Korea policy.

Of course, I’ve read rumors for years that various administrations have been considering those strategies; I’ve yet to see any of them actually pursue them. And even today, I seldom disagree with what Chris Hill* writes in his op-eds, but the policy he executed was so disastrous that the distrust he created still lingers — between the U.S. and Japan, between Congress and the State Department, and between the State Department and the Treasury Department. You can even lay some of the blame for the failure of U.N. sanctions on Hill. (* Update: I have no information that Hill is under consideration for any policy post, I’m only using him as an example.)

Admittedly, policy is easier to blog about in the abstract than it is to execute in a complex world of conflicting and shifting interests. And arguably, the decision to accept the cost of some broken china to disarm North Korea is the easy one. The hard questions are about how we would use the pressure sanctions are meant to create. What strategy are sanctions meant to serve? How precisely can we target sanctions to serve that strategy and mitigate harm to the North Korean people? Are we willing to keep pursuing sanctions if the regime starts to break apart, or if South Korea veers left? When will our leverage be sufficient to restart talks, and how will we know when that time comes? Exactly what sanctions relief would we be willing to grant for what concessions? Would we grant limited sanctions relief before achieving all of our objectives and without throwing away our leverage, and how can we do that? I’ve had some thoughts on those questions.

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As Trump picks his cabinet, Congress flexes its foreign policy muscle

As we continue to watch Trump’s trial balloons float by on the selection of his national security cabinet, we still don’t know much about the foreign policy Donald Trump would have as President. On the other hand, most of Congress’s key players on foreign policy will still be around next year, and some of them have already begun to assert themselves. Committee chairs are (on one hand) pushing Trump to adopt more conventional foreign policy views, while (on the other) threatening to use their power to undermine any major policy shifts, specifically toward the Kremlin.

Some of the most powerful foreign-policy makers in the U.S. government are outside of President-elect Donald Trump’s control and are already signaling an early end to the honeymoon period over their fellow Republican’s security and diplomatic stances. [Foreign Policy, Molly O’Toole]

Ed Royce, the California Republican who conceived the North Korea sanctions bill that became law in February, and who stayed mostly quiet on Trump’s candidacy this year, will be back as Chairman of the House Foreign Affairs Committee next year. Hopefully, so will his Senate co-champion, Cory Gardner, at the helm of the Senate Foreign Relations Committee’s Asia Subcommittee. (Gardner’s rising star status was cemented this week by his selection to head the National Republican Senatorial Committee.) After some of Trump’s statements last year cast doubt on the alliance, both Royce and Gardner visited South Korea to reassure its leaders. Paul Ryan has also been supportive of the alliance.

Bob Corker, the current Chairman of the Senate Foreign Relations Committee, remains in the running for Secretary of State. Whether Corker is nominated or stays on as Chairman, he’d be a moderating influence. If Corker does leave the Senate, next in line, in terms of seniority, would be Idaho Senator James Risch, who called voting for Trump “distasteful,” but said he’d do it anyway. If congressional Republicans really want to put their stamp on foreign policy, however, they’ll pick the talented and highly intelligent Marco Rubio, who is fresh off a convincing reelection win. 

Also back at the Armed Services Committee is the newly reelected John McCain, who has joined with his close friend, Lindsey Graham, in making clear that any pivot to Moscow will face significant resistance in Congress.

“[Trump] wants to reset with Russia. Maybe he can do it, but here’s my view about Russia: They’re a bad actor in the world, they need to be reined in,” Sen. Lindsey Graham (R-S.C.) said Tuesday, adding that it would be up to Congress to let Russia “know the rules of the road pretty early,” even under a friendlier Trump administration.

“I think [Russia] should pay a price heavier than they’re paying now for what they’re doing in Syria and in eastern Europe,” Graham added. “I will consult with my colleagues what there is appetite for.”

Graham isn’t the only Trump critic who came out swinging on Tuesday on Russian involvement in global affairs. His close friend and colleague Sen. John McCain (R-Ariz.), who chairs the Senate Armed Services Committee, said that “the price of another ‘reset’ [with Russia] would be complicity in Putin and Assad’s butchery of the Syrian people. That is an unacceptable price for a great nation.” [Washington Post, Karoun Demirjian]

What can Congress do, aside from mere words? The Post’s report says that lawmakers are preparing “a battery of legislative measures to hold the line against Russia, regardless of what the president-elect tries to do.” Such as? First, words do matter, and Graham is threatening to hold “a series of hearings about Russia’s misadventures throughout the world” and cyberattacks. Although Republicans balked at holding pre-election hearings into Russia’s meddling in the election, Republicans haven’t dropped the issue, either.

“We cannot sit on the sidelines as a party and let allegations against a foreign government interfering in our election process go unanswered because it may have been beneficial to our goals for the moment,” Graham said Tuesday. 

In the House, Royce also said he would be interested in investigating Russia’s connection to the hacking incidents. “I would hope that all federal agencies are investigating,” Royce said. “If we can get evidence, it’s very worthwhile to pursue any information we have.” [WaPo]

Second, Congress can do what it did to force a reluctant President Obama’s hand on North Korea: impose mandatory sanctions. This week, the House passed the Caesar Syria Civilian Protection Act of 2016, which could force the next administration to sanction Assad’s Russian backers, among others. If the name of the bill sounds familiar, that’s because “Caesar” is the code name for the subject of a chilling Ted talk by his former CIA handler, a man who would later become a House staffer and independent candidate: Evan McMullin. Ordinarily, the calendar would make it difficult for the Ceasar Act to pass this Congress, but even Corker says “there’s going to be much more opportunity for bipartisan passage” of bills pertaining to Russia, and that lawmakers “plan to be aggressive” before the year ends. If the bill doesn’t pass this year, expect to see the same text introduced again in January.

“Regardless of perspectives on Syria, there’s some unanimity of opinion in sending a message on this kind of conduct,” House Foreign Affairs Committee Chairman Ed Royce (R-Calif.) said prior to the vote. [WaPo]

Ditto North Korea, if you’ve been watching the recent oversight hearings in the House and Senate.

Finally, Graham is promising “a package that would help our Eastern European allies better deal with the threats they face from Russia” that includes broad defense aid “to make it harder for Russia to advance beyond where they are today.” If Trump’s rhetoric on cost-sharing helps defray the cost, that aid package may be more palatable in Congress. Ed Royce thinks Trump’s public skepticism about NATO was nothing more than a “very successful negotiating tactic” to persuade NATO allies “to pay their share of the burden” in funding the alliance. Corker claims to have seen an “evolution” in Trump’s views on Russia and NATO.

If Trump can persuade Japan and South Korea to contribute more funds without harming the integrity of the alliance, I’d say all ends well, except that I have no confidence that all ends well if the left wins South Korea’s next presidential election. Another outbreak of anti-Americanism could erode congressional support for the alliance below a critical level, especially if South Korean politicians are seen as feeding or playing into that. 

Historically, the President has enjoyed great deference in the conduct of foreign policy. This Congress is already hinting that it means to push the envelope in that historic power struggle. If Trump prefers to prioritize other matters, we may see an early compromise, especially if Trump appoints a more conventional and moderate cabinet. If not, we may see a period of intra-partisan conflict and gridlock between the executive and legislative branches. If Congress prevails, the result could be a historic expansion of Congress’s power over the conduct of foreign affairs.

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FP: White House “heatedly debating” whether to enforce North Korea sanctions law

Last week, Samantha Power was in Seoul, reassuring our increasingly panicky South Korean allies that the U.S. will use “all the tools in our tool kit” to deny His Porcine Majesty hard currency and WMD materiel, and pressure him to disarm. Meanwhile, a must-read article in Foreign Policy reveals that late in the eleventh hour of his presidency, Barack Obama still hasn’t decided to use “all” the tools after all, particularly the one Congress wants him to use — secondary sanctions against Chinese banks.

Instead, FP reports, senior administration officials are “heatedly debating whether to trigger harsh sanctions against North Korea that would target Chinese companies doing business with the hermit regime, in a crackdown like the one that crippled Iran’s economy.”

Officials told FP that the approach would be similar to the sweeping secondary sanctions that were slapped on global banks handling transactions with Iran. Those sanctions are widely credited with bringing Iran’s economy to its knees in 2013 and forcing Tehran to the negotiating table over its nuclear program. [Foreign Policy, Dan De Luce]

The prime targets of the new strategy under discussion? Exactly the right ones — Chinese trading companies and banks. Open sources alone provide for no shortage of targets. We already know about the recently indicted Dandong Hongxiang. There’s also the Bureau 39-linked 88 Queensway Group; gold dealer Unaforte, which may be exporting to the U.S. in violation of Executive Order 13570; the Wanxiang Group, which may be China’s largest importer of North Korean minerals; banks like the Bank of China, which willfully helped North Korea launder money through the U.S. financial system; and other Chinese banks that turn a blind eye to their know-your-customer obligations on behalf of North Korean customers, as well as Chinese customers that help them circumvent U.N. sanctions and U.S. law.

But a decision to go after Chinese banks and trading companies that deal with Pyongyang could rupture Washington’s relations with Beijing, which bristles at any unilateral sanctions imposed on its companies or drastic action that could cause instability in neighboring North Korea. [FP]

The U.S. has told the Japanese and South Korean governments that it is focused on cutting off North Korea’s sources of hard currency, including labor exports. But with even people in Beijing speaking openly of limited military strikes and South Koreans worried about falling under the shadow of nuclear blackmail, the sense of urgency in Seoul, Tokyo, and Washington has never been greater. Trade sanctions alone will probably take much longer to work than financial sanctions, and are more likely to hurt the wrong people, thus undermining political support for stricter enforcement. Now, having let matters drift for eight years and lost the confidence of the entire Congress, the administration belatedly recognizes that things have deteriorated quickly, and that it needs a quicker strategy. 

“In the past two or so years, there’s a general appreciation that the situation has become worse and that we, the United States and the responsible nations of the world, need to up our game,” said a senior government official, who spoke on condition of anonymity. As a result, the administration is “looking at a more active and more aggressive use of the authorities” for sanctions, the official told FP. [….]

The political calendar in the United States also is shaping the internal discussions, with some officials arguing that President Barack Obama would be better placed to order the move in his final months in office, rather than leaving it to a new administration to enter into a heated dispute with China. [FP]

Since North Korea’s fifth nuclear test, Congress has put the administration under intense pressure to implement the NKSPEA more aggressively. South Korea and Japan are also pushing for the more aggressive strategy.

U.N. resolutions and new legislation adopted by Congress in February give the administration far-reaching legal authorities to block assets, file criminal charges, and cancel visas for individuals or organizations violating sanctions rules on North Korea. But so far, the administration has yet to wield those authorities in a decisive manner, taking action in a relatively small number of cases while it seeks to persuade China to take a more assertive role. [FP]

Which you already know, because you read this blog. FP also picks up on the Senate Asia Subcommittee’s aggressive questioning of the administration in its most recent oversight hearing.

Since approving new sanctions legislation in February, U.S. lawmakers from both parties have complained that relatively few companies or individuals have been blacklisted and charged.

“You have sanctioned no Chinese banks at the end of the day, and they are probably the major financial institutions for North Korea,” Sen. Bob Menendez (D-N.J.) said at a hearing last week with top State Department officials.

Republican Sen. Marco Rubio, speaking at the same hearing of the Senate Foreign Relations Subcommittee on East Asian and Pacific Affairs, accused the administration of timidity when it comes to sanctions that could antagonize the Chinese government.

“We know who these companies are. We haven’t moved fast enough on it. There’s no reason not to have moved faster. There’s plenty of targets of opportunity and plenty of information out there about them,” Rubio said. [FP]

See this link for similar bipartisan pressure coming from the House side of the Mall. So what has prevented the administration from responding to this pressure from our allies and Congress? Deference to China. 

“It could become the defining issue in the U.S.-China relationship. It could push Beijing and Washington into a very unhappy place,” said Evan Medeiros, who served as Obama’s top advisor on Asia affairs at the White House National Security Council until last year.

Pursuing Iran-like sanctions against North Korea would mean “hardcore secondary sanctions in ways that the Chinese aren’t going to like,” he said.

“But the U.S. is simply going to have to be willing to countenance friction in the U.S.-Chinese relationship that the U.S. hasn’t been willing to accept to date, because the North Korean threat is becoming too serious,” said Medeiros, now at the Eurasia Group since leaving the White House. [FP]

That is to say, so far, the White House has given more weight to the views of China — which has willfully violated U.N. sanctions for years — than to staunch U.S. allies abroad, or a united Congress.

Obama has tended to avoid confrontation with China on most issues, including over the South China Sea and economic disputes. The administration, however, did take a forceful stance against Beijing-backed cyberhacking in the United States.

“They have placed a premium on trying to manage the relationship with China in a constructive way and to contain areas of friction or competition,” said a congressional staffer. [FP]

Right. Because it would be terrible if relations broke down so badly that China started, say, unilaterally seizing huge tracts of strategic waters, rounding up and jailing dissidents, or amping up its anti-American propaganda.

De Luce reports that the administration still hasn’t made its mind up, and “may in the end opt to take a more incremental approach, avoiding a major clash with China.” Which would be typical. In fact, I wouldn’t be astonished if the administration had planted this story to pressure China to be more flexible in its negotiations over a new U.N. Security Council resolution, agreement on which is taking even longer than usual. Having said that, what a rare joy it is to read journalism like De Luce’s, which shows that the reporter took the trouble to research and understand the subject matter before writing about it.

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Sanctions talk with Steph Haggard; House hearings on N. Korea nukes & sanctions

In lieu of a full-length screed today, I’ll direct you to —

  • a more refined list of my sanctions and policy recommendations in this post, by Stephan Haggard.
  • for the sanctions geeks, the latest Treasury/FINCEN advisory, in which North Korea seizes the top spot from Iran as a money laundering risk. If nothing else, it’s a useful reminder that North Korean banks’ cutoff from the financial system — the single most important sanction yet imposed on North Korea — still hasn’t become final and taken effect. It will take some time for us to see and assess the effects of that. And if that’s not geeky enough for you, you may be interested in FINCEN’s new rules on beneficial ownership disclosure, which could impact North Korea indirectly.
  • video of today’s hearing before the House Foreign Affairs Committee’s Asia Subcommittee, featuring Victor Cha, Bruce Klingner, Sue Mi Terry, and David Albright. The big takeaway was that Chairman Salmon will propose legislation to cut North Korea off from “financial messaging services,” which either means SWIFT or whatever less responsible actors are filling that void for North Korea these days.

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Please, Kurt Campbell, save Korea (and us) from the Trumpocalypse

For conservative North Korea watchers who are rightly depressed about the intellectual and moral death of the Republican Party, let me palliate your depression with a few observations. First, parties come and go. What matters is that democracy endures. Any casual observer of South Korean politics knows that democracies can outlive the dissolution of parties just fine. 

Second, what matters to Korea policy is coalitions, not parties. On the Hill, there isn’t much of a partisan divide on North Korea policy at all these days. Democrats and Republicans are in equally hawkish moods. Just look at how they voted. Republicans have never been less united, but on North Korea policy, Congress has never been more united behind stronger pressure to force Pyongyang to disarm or perish. 

Third, Victor Cha’s sober and plausible analysis of Hillary Clinton’s North Korea policy is nothing to be particularly depressed about. Finally, take heart from the words of a man who is likely to play an important role President Clinton’s North Korea policy.

In the opening speech of the Asan Institute for Policy Studies’s 2016 Plenum, Campbell – who also works closely with presidential candidate Hilary Clinton – refuted the notion that North Korea is one of the most sanctioned countries in the world.

“I would argue that in fact there are many countries that are more heavily sanctioned than North Korea. There are a number of steps we could take that would send a much clearer message about (their) activities to gain hard currency.”

The current chairman and CEO of the Asia Group added that implementing further sanctions would also likely involve going after institutions that conduct at least some of their operations in China.

Campbell pointed to the difficulties that many negotiators had experienced when dealing with North Korea over the last 20 years, but also said the door should never be closed on negotiating.

“I would be of the view of that the U.S, South Korea, Japan and Russia should leave the door open for talks. It’s in our best interests to solve these issues diplomatically.” [NK News]

I don’t disagree with any of that. Not even the last part.

Along with sanctions, the international community should step up efforts in other areas to pressure Pyongyang to renounce its nuclear ambitions, such as supporting its refugees, a former senior U.S. official said Tuesday.

During his remarks at a foreign policy forum in Seoul, Kurt Campbell, former assistant secretary of state for Asia, also expressed his support for a five-party dialogue format involving South Korea, the U.S., China, Japan and Russia to discuss Pyongyang’s denuclearization.

“We have to step up our efforts in other areas. What we have done in the U.S. to support North Korean refugees could be substantially increased. I think our ability to send more information into North Korea could be dialed up substantially,” he said during a dinner session of the Asan Plenum 2016, an annual forum hosted by the Asan Institute for Policy Studies.

“I think more work can be done on preparing for uncertainty for friends surrounding North Korea, and I would be much clearer with Chinese interlocutors about what our expectations with respect to North Korea are going forward,” he added. [Yonhap]

Even Wendy Sherman, of Agreed Framework infamy, is now trying to sound hawkish, although I suspect that in Sherman’s case, this is election-year posturing. At a recent conference, Sherman called for the U.S. and its allies to plan for regime collapse in North Korea, something that Sherman would not have said publicly a few years ago, out of deference to the delicate sensitivities of His Porcine Majesty, and the others who share his Safe Space in Pyongyang. NK News’s Jiwon Song (previous link) misreads Sherman’s call as a call for a plan to cause the collapse of North Korea’s regime. Far be it for me to object to this notion, but Sherman is merely saying that we should plan for what may now be inevitable. Then, Song “balances” this imaginative interpretation by finding a South Korean expert who is even farther left than Sherman. This sort of “balance” belongs in the Hankyoreh or in an opinion piece, not in a news article.

I predict the greater problem will come when Pyongyang tempts us to lift sanctions for a quick deal. For all the hope one draws from Campbell’s comments, I fully expect the next administration, like this one, to continue to be hobbled by internal debates among those who want to apply pressure and let it work, and those who want to cut a deal as quickly as … as The New York Times editors would have them cut one. Here we are, just three months after the same editors endorsed H.R. 757, and now they’re saying this:

While sanctions are important and China, more than any other country, has the power to make North Korea feel their effects, sanctions alone are not enough to mitigate the threat. Backing an inexperienced and reckless leader like Mr. Kim into a corner is risky and might lead to even more dangerous responses, like aiming a weapon at South Korea or Japan, with potentially catastrophic results.

At some point, the United States, along with China, South Korea, Japan and Russia, will have to find a way to revive negotiations aimed at curbing North Korea’s nuclear program. The Obama administration earlier this year had secret contacts with the North that foundered over a disagreement on whether to focus on denuclearization (America’s priority) or on replacing the current Korean War armistice with a formal peace treaty (North Korea’s priority). But the idea of talking with the North is politically unpopular in America, and this is an election year. [Editorial, New York Times]

The Times then quotes Bob Carlin, who has advocated do-nothing freeze deals at every turn, and who has an awful track record for reading peace overtures that aren’t there into cryptic North Korean statements.

Note well, NYT: Congress passed the Comprehensive Iran Sanctions, Accountability, and Divestment Act (CISADA) in 2010. It took three years, and another sanctions law to close the CISADA’s loopholes, until your newspaper reported that sanctions had created “a hard-currency shortage that is bringing the country’s economy to its knees.” It took two more years until (for better or for worse) John Kerry inked his grand bargain. The editors of the Times show no sign of having thought through what sanctions are supposed to achieve, or how they fit into a greater strategy. Nor, for that matter, have they bothered to read the conditions for lifting those sanctions at sections 401 and 402 of Public Law 114-122.

We are very far from backing Kim Jong-un into a corner. It takes more than three months to go from “sanctions never work” to “OMG sanctions are working WE’RE ALL GONNA DIE!” Sanctions are an essential part of a policy that’s designed to weaken the cohesion, control, and survivability of the North Korean regime, in a way that presents Pyongyang with a clear choice: disarm and reform, or perish. We’ll know that the conditions are right for a diplomatic solution when Pyongyang is ready to accept fundamental transparency in its dealings with the world. It will take more than inserting a few U.N. inspectors at Yongbyon for us to know that Pyongyang has made that decision. It will mean free and nationwide access by food aid monitors. It will mean Red Cross workers in North Korea’s prison camps. It will mean the de-escalation of conventional forces, including artillery and rockets, along the DMZ. It will take more than a few months to exert the pressure needed to achieve that.

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

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

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

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

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

Or this, from a Wall Street Journal columnist:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Read the rest of the story here.

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Dems & Republicans join forces to support North Korea sanctions legislation

When it comes to North Korea policy, Washington’s most influential lobbyist has never been to Washington. He’s in his early 30s, never finished high school, chain smokes, likes to ski, loves the NBA and bondage porn, favors dark suits and mushroom haircuts, has an explosive temper and a small nuclear arsenal, and weighs as much as a village full of his malnourished subjects.

Tuesday’s nuke test may have come just in time for Congress to act before dispersing for a long election year. Now, a sanctions bill that had stalled for months is moving swiftly to the House floor, and Roll Call and Foreign Policy are quoting House Minority Leader Nancy Pelosi (D, CA) as saying that her party will support the legislation, “virtually guaranteeing” its passage “as early as next week.”

royce engek

[The leaders of the House Foreign Affairs Committee: Chairman Ed Royce (R, CA) and Ranking Member Elliot Engel (D, NY)]

Foreign Policy says the bill will be “based on” the North Korea Sanctions Enforcement Act (which, in full disclosure, I helped write):

An aide for House Majority Leader Kevin McCarthy told Foreign Policy the legislation would be based on the North Korea Sanctions Enforcement Act, a bill that passed out of the House Foreign Affairs Committee last year. The measure authorizes sanctions against banks facilitating the country’s nuclear program and the freezing of U.S. assets linked to North Korean “proliferation, smuggling, money laundering, and human rights abuses.” [Foreign Policy]

I won’t deny that the words “based on” concern me just a little, but I expect relatively few changes to the House bill — there just isn’t time for extensive ones. Whatever the changes, I just hope they aren’t harmful to the key provisions.*

The House bill is “ready to go” and could receive a vote the week of Jan. 11, Pelosi said. Because the bill has strong bipartisan support, she said it may be voted under an expedited procedure known as suspension of the rules, which requires a two-thirds majority for passage. Speaker Paul D. Ryan confirmed the House will vote on North Korea sanctions, but deferred details on the schedule to House Majority Leader Kevin McCarthy. [Roll Call]

In the Senate, where arcane rules make it difficult to move a bill without unanimous consent, things are less settled. There are two bills pending — Senator Cory Gardner’s (R, CO) strong S. 2144, and Senator Menendez’s substantively weaker S. 1747, which is largely redundant with an Executive Order President Obama signed a year ago, after the Sony cyberterrorist attack, but has hardly used. Unlike S. 2144, S. 1747 lacks mandatory sanctions, and leaves all the discretion to the President. 

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[Senators Ron Johnson, Marco Rubio, James Risch, and Chairman Bob Corker. Via]

Unfortunately, the President’s failure to respond to the Sony cyberattack last year means that he doesn’t need more discretion, he needs less of it. Kim Jong-un may not know much about Congress, but he obviously has this President figured out.

While the final form of a Senate bill remains uncertain, the Senate’s mood is on open display. Marco Rubio (R, FL), a co-sponsor of S. 2144, is calling for North Korea to be put back on the list of state sponsors of terrorism.** But of course, only a few lonely cranks — and three federal District Court judges, the U.S. Court of Appeals for the District of Columbia, and pretty much everyone of consequence in Congress — believe the evidence would support that.

“We have to do everything we can to ensure that they have less money to spend on these sorts of programs. So that’s why a state sponsor of terror, they should be returned to that list,” Rubio said in an interview with Fox Business Network. “They were once on that list. They were removed from that list as a concession. They need to be put back on,” he said. Rubio also called for measures to “go after the assets” overseas of the North’s leadership. [Yonhap]

Senator James Risch (R-ID), also a co-sponsor of S. 2144, told CNN, “I think that what is going to happen is, there are going to be some banking sanctions that they can turn the screw a little tighter on with some of the banks that they are doing business with in Asia. I have no doubt that that’s going to be looked at.” 

As Yonhap accurately divines, what Risch is calling for is a return to the strategy used against Banco Delta Asia in 2005, which “almost cut off the North from the international financial system.”

The blacklisting of Banco Delta Asia not only froze North Korean money in the bank but also scared away other financial institutions from dealing with Pyongyang for fear they would also be blacklisted. The measure is considered the most effective U.S. sanction yet on the North. [Yonhap]

Senator Kelly Ayotte, a moderate Republican from New Hampshire, called on the administration to “impose the toughest and broadest possible sanctions against North Korea and those who aid the regime’s illicit activities,” and also called the President’s North Korea policy a failure.

Senate Democrats are piling on, too.

Sen. Ben Cardin (D-Md.), ranking member of the Foreign Relations Committee, and Sen. Robert Menendez (D-N.J.) called on Congress to pass new sanctions legislation in the wake of the test. Menendez introduced legislation last year with Sen. Lindsey Graham (R-S.C.) pushing the administration for tougher sanctions against North Korea and its supporters.

Cardin and Menendez both said, separately, that the Security Council should impose its own penalties on North Korea. “Moreover, given North Korea’s actions, the United States and our allies must also take additional steps to combine effective sanctions with appropriate countermeasures,” Cardin added. [The Hill]

On Wednesday, Democratic and Republican lawmakers, including the top Democrats on the Senate Foreign Relations Committee and House Intelligence Committee, Ben Cardin of Maryland and Adam Schiff of California, pushed for punitive sanctions.

“I intend to work with my colleagues in the Senate on legislation to impose additional sanctions on North Korea and would also urge additional sanctions by the United Nations Security Council,” said Cardin in a statement. [Foreign Policy]

Senate staffers are probably debating which version of the bill they’ll ultimately pass out of the Foreign Relations Committee. Crucially, we still don’t know which version Chairman Bob Corker (R, TN) will support. The Hill quotes Corker as promising to work with Cardin, Menendez, and Gardner to “bring further pressure to bear” on the North Korean government. He might introduce his own version, or even “simply take up the House version of the bill this time around.”

This being an election year, the presidential candidates are also criticizing the President’s policy and calling for more sanctions. That means almost all of the Republicans — even Rand Paul — but not only the Republicans.

“The United States and our partners, including the U.N. Security Council, need to immediately impose additional sanctions against North Korea,” Clinton said. [Foreign Policy]

As I so often do, I agree with what Mrs. Clinton says on foreign policy. If only I could forget that she was Secretary of State for four years. If only she hadn’t coined that awful term, “strategic patience,” which still makes the State Department people wince. The Republicans will want to hang this albatross around her neck. They’d be crazy not to. Ted Cruz is already hanging it around her husband’s neck. That’s why foreign policy would have been an important issue in this election, even if the entire world didn’t seem to be collapsing into anarchy.

It’s hard to find anyone who approves of how the President has handled North Korea today. Conservatives call him weak, and his “traditional supporters” have criticized him “for not pushing harder for direct multilateral talks with North Korea and other regional partners.” Foreign Policy reports a “rare convergence of criticism” that “the size and sophistication of North Korea’s nuclear program has increased” during his presidency. The Washington Post‘s David Nakamura accuses the administration of dropping the ball and outsourcing the problem to the Chinese.

So far, so good, but then, Nakamura’s sources criticize the President for not trying hard enough to get a deal, which isn’t quite fair. As The Wall Street Journal told us yesterday, “U.S. officials say they have repeatedly tried to engage North Korea in dialogue about its nuclear program in recent months, but Pyongyang hasn’t responded to their advances.” It sounds self-serving, but the record supports that contention. Besides which, the harder American presidents try to “engage” North Korea, the worse their results tend to be.

In this climate, all the administration can really do is shift the focus to its push for tougher sanctions at the U.N. It needs a win in New York to make up for what looks like a general rout of its North Korea (non-) policy in Washington. The administration will probably announce new bilateral sanctions under existing executive orders to preempt some of the momentum in Congress, but I doubt that will appease Congress now. The administration can forget about any new diplomatic initiatives. Its goal now is to avoid a greater crisis, and to keep North Korea from sapping its credibility on other foreign policy issues.

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* For more information on how a North Korea sanctions bill would work, why it would work, why more sanctions are needed, how it could work despite Chinese obstructionism, and how similar strategies have worked against North Korea before, here are those answers. For why I care and so should you, start here, and then move to this.

** President Bush removed North Korea from the list of state sponsors of terrorism on October 11, 2008. Despite overwhelming evidence to the contrary, 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.

*** Yes, I changed the post title.

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Sen. Gardner calls on Congress to pass North Korea sanctions bill

Amid all of the slaughter and chaos sweeping over us, Senator Cory Gardner doesn’t want us to forget which government built a nuclear reactor in Syria in 2007, and that may soon be able to put a nuclear warhead on an intercontinental ballistic missile.

It is time to ratchet up the pressure. That is why I’ve introduced the North Korea Sanctions and Policy Enhancement Act. This bill would require the president to impose sanctions on people who have contributed to North Korea’s nuclear program, enabled its human rights abuses, and engaged in money laundering, counterfeiting or drug trafficking that benefits the regime.

North Korea skirts financial sanctions by setting up shell companies in countries like China. This bill would add pressure by asking the Treasury Department to designate North Korea “a country of primary money laundering concern” under the Patriot Act.

Similarly, North Korea evades U.N. embargoes on arms trafficking. This bill would authorize the Department of Homeland Security to seize any ships the regime uses for smuggling if they enter U.S. waters. It also asks the president to identify foreign ports that are not doing enough to prevent smuggling.[Sen. Cory Gardner, Wall Street Journal]

Senator Gardner’s bill, S. 2144, shares most of its content with H.R. 757, a bill introduced by Rep. Ed Royce (R., Cal.) and Rep. Elliot Engel (D., N.Y.). In several ways, S. 2144 improves on its elder sibling. Hopefully, as the bills work their way through their respective committees and chambers, they will converge in a form that combines their best elements. That needs to happen soon, because we’re already near the end of the first session of this Congress. Time is finite, and unfortunately, it seems the only person who can get the whole Congress’s attention is Kim Jong-Un.

Events may soon favor Sen. Gardner’s call, because Kim Jong-Un also doesn’t want us to forget about Kim Jong-Un. The day after the Wall Street Journal published Sen. Gardner’s op-ed, 38 North published images showing that North Korea is digging a new tunnel at its nuclear test site at Punggye-ri. Perhaps, then, tomorrow’s crisis might crowd into a few of the news cycles that have been preoccupied, lately, with the slaughter of the week. If that’s what it takes to get us toward a policy that recognizes the North Korea that is, rather than the North Korea we would prefer to believe in, so much the better.

Historically, North Korea’s nuclear tests have come every three or four years, so we’re about due. If what His Porcine Majesty most needs now is to whip up xenophobic hostility to distract his ruling class from their fears of him, and if he thinks he’s reached the limits of what Park Geun-Hye will tolerate, maybe a nuclear test is just what he needs in the short term. But if his survival depends on ready access to hard currency in his Chinese and Swiss bank accounts, in the long term, this might mean the end of him.

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The Great Engagement Debate: Stanton v. Delury at NCNK

On October 22nd, the National Committee for North Korea invited me and Professor John Delury of Yonsei University to a debate, in which we each offered three proposals for the next president on North Korea policy, all premised on a delusion of grandeur that Donald Trump really cares what either of us thinks.

The debate was held in a beautiful conference room on the top floor of the Hart Senate Office Building overlooking the Capitol. There was a great crowd — probably about 60 people. Stephen Noerper, the Senior Vice President of the Korea Society, moderated.

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Naturally, the debate became a debate about the Sunshine Policy, the Sunshine Lite Policy, and other Sunshine hybrids and mutations that have dominated U.S. and South Korean policy for most of the last 20 years. And while I could hardly agree less with Professor Delury on policy matters, I also found him to be an exceedingly likable and genial person. I’m glad to have met him, and honored to have debated him. My only regret is that there wasn’t video, but the transcript is here.

Many thanks to Keith Luse and NCNK for their kind invitation, and to Daniel Wertz for arranging this, and for his careful attention to the transcripts.

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Scott Snyder: increase sanctions, including secondary sanctions, on Pyongyang

In a new paper for the Council on Foreign Relations, Snyder has called for increasing pressure on Pyongyang through sanctions, to persuade it that it must disarm or perish:

Since defecting from Six Party negotiations on denuclearization in 2008, North Korea has pursued nuclear development unchecked by international constraints. Barack Obama’s administration has demanded that Pyongyang make a strategic choice to denuclearize and tried to build a regional consensus opposing North Korea’s nuclear efforts, but it has been
unable to halt the country’s nuclear weapons development. Instead, North Korea’s continued nuclear and missile development is designed to force U.S. policymakers to make an undesirable choice: either acquiesce to the reality of a nuclear North Korea or mobilize international support for the destabilization of the North Korean regime.

To stop the North Korean nuclear threat, the United States should take three steps. First, Washington should increase pressure on Pyongyang so that the regime recognizes its existential choice between survival and nuclear status. Second, the United States should pursue five-party talks (Six Party framework members minus North Korea) to develop a viable pathway for North Korea to survive and benefit from denuclearization. Such a regionally supported consensus on a route to denuclearization would seek to induce a debate inside North Korea regarding the costs and benefits of its pursuit of nuclear status. And third, the United States should encourage China and Russia to withdraw political support for and increase pressure on North Korea until the regime commits to denuclearization. [Scott Snyder, Council on Foreign Relations]

Read the rest on your own; it’s only a few pages long (HT: Yonhap). Whatever my small quibbles with Scott Snyder’s writings on occasion, there’s no question that he’s one of the most respected Korea scholars in Washington, and any shift in Snyder’s thinking is likely to reflect or catalyze more shifting opinions within the conventional wisdom here. I find much more to agree with in this paper than Snyder’s previous take on sanctions policy.

The paper still raises some questions. The first of these is how we can “encourage” a recalcitrant China and Russia, when both countries have engaged in a pattern of willful non-enforcement. In China’s case, I recently described that pattern in great detail. I’ll present a similar case about Russia later this week. Would Snyder be willing to go as far as taking up Andrea Berger’s call for secondary sanctions? I’d say “yes,” based on this:

The Obama administration should apply increased political and economic pressure on North Korea to convince its leaders that a nuclear North Korea is a dead-end option. The United States should work with its allies to expand sanctions to target businesses and banks that refuse to cease cooperation with North Korea. At the same time, the United States and its allies should emphasize to Pyongyang that expanded sanctions will be relieved if North Korea takes meaningful, concrete steps toward denuclearization, such as resuming cooperation with the International Atomic Energy Agency (IAEA) by allowing the return of international inspectors to the country. The United States should also remind North Korea that military provocations risk escalation that could lead to the country’s demise.

We know from past experience that whatever the objections of the Chinese government to secondary sanctions — and I was recently regaled over dinner with how furiously some of its representatives reacted to this paper, much to my amusement — historically, Chinese banks have been responsive to the threat of secondary sanctions. It’s reasonable to believe that Russian banks would respond to the same forms of “encouragement.”

Then, would Snyder focus our demands exclusively on the nuclear issue, excluding concerns about North Korea’s chemical and biological weapons, its cyber-warfare, its money laundering, its increasingly dangerous artillery rocket arsenal, and its crimes against humanity? It may be that our interests demand that Pyongyang commit to a more fundamental change of its world view than disarmament alone; after all, its expansion into uranium enrichment makes disarmament much harder to verify, especially without Pyongyang’s acceptance of much more transparency.

The human rights issue is of growing importance to policy debates in Europe and elsewhere. This also points to one flaw of the five-party formulation. The use of progressive diplomacy instead would allow us to enter talks with a coalition behind us, rather than by going straight to talks with governments that are disunited or (in the case of China and Russia) hostile to our interests.

Overall, however, Snyder’s paper is refreshingly realistic about Pyongyang’s intentions, and about the need for us to be more aggressive about curtailing them.

 

 

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House, Senate will both hold hearings on North Korea policy this week* (updated)

If you ask senior Obama Administration officials about the policy of “strategic patience” with North Korea today, they will bristle and recast it as something else, but this wasn’t the case in 2010, when former Secretary of State Hillary Clinton explained her policy in a visit to Seoul:

“What we’re focused on is changing North Korean behavior,” one senior U.S. official said. “We are not focused on getting back to the table.” “We recognize that diplomacy, some form of diplomacy with North Korea, is inevitable at some point,” another official said. “We’re really not there.” [Glenn Kessler, Washington Post]

That visit followed North Korea’s second nuclear test by a year, and North Korea’s attack on the ROKS Cheonan by a month. It clearly wasn’t working then, and it certainly isn’t working now. Expect “strategic patience” to come under attack in both houses of Congress this week.

Wednesday’s event, at the Senate Foreign Relations Committee’s Asia Subcommittee,** is entitled, “Assessing the North Korea Threat and U.S. Policy: Strategic Patience or Effective Deterrence.” Senator Cory Gardner, the Subcommittee Chair, will preside. If this speech and this resolution are any indication, the junior senator from Colorado will have some difficult questions for the Panel One witnesses, including Ambassador Sung Kim and Ambassador Robert King.

[Update: the hearing notice now says that the hearing has been postponed. I’ll update this post when the hearing is rescheduled.]

Panel Two witnesses will include Ambassador Mark Minton, President of the Korea Society, and Jay Lefkowitz, King’s predecessor as former Special Envoy for North Korean Human Rights. I confess that King’s message discipline has made me miss Lefkowitz, who was willing to stray from the party line to prevent his portfolio from being steamrolled by the State Department bureaucracy.

The hearing follows the introduction of a sanctions bill by Senator Bob Menendez (D, NJ) and Senator Lindsay Graham (R, SC), even before we’ve heard from the Chairman and Ranking Member of the full committee, Senators Bob Corker (R, TN) and Ben Cardin (D, MD). For the Senate, it will be the first major hearing on North Korea policy since March 2013, shortly after North Korea’s third nuclear test.

On Tuesday afternoon,* two subcommittees of the House Foreign Affairs Committee, the subcommittees dealing with Asia policy and nonproliferation, will hold their own hearing, “The Iran-North Korea Strategic Alliance,” a topic I addressed to a limited extent in “Arsenal of Terror.” The hearing announcement does not include any witnesses from the administration, but will include (among others) investigative journalist Claudia Rosett and Larry Niksch, formerly with the Congressional Research Service.

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In retrospect, it was North Korea’s third nuclear test in February 2013 that collapsed congressional support for “strategic patience.” Congress never showed much enthusiasm for it, but until 2013, its skepticism was mostly expressed by Republicans. Even the comically short-lived Leap Day Agreement failed to raise much organized opposition in 2012. Still, it was obvious to anyone who paid attention that the administration was paralyzed and out of ideas. Even prominent former administration officials admitted as much.

Congress’s 2013 revolt, led by the new Chairman of the Foreign Affairs Committee, Ed Royce, was bipartisan, organized, and expressed in the form of comprehensive sanctions legislation.*** Royce was joined by Ranking Member Elliot Engel, many other prominent Democrats, 147 co-sponsors in all, and eventually, the full House.

This year, the Senate has joined the House in questioning the State Department’s lack of a credible response to North Korea’s continued proliferation, to the Commission of Inquiry report, and to the Sony cyberattack and threats — in short, its apparent lack of any coherent North Korea policy whatsoever. Contrary to the concern I’d expressed last week, the controversy over Iran will not monopolize Congress’s energy for the foreseeable future after all.

This week’s hearings will likely cement congressional frustration with the administration’s policy (or lack of one). Only time will tell if that frustration, in turn, will be enough to frustrate any grasp at Agreed Framework 3.0, but it certainly won’t make it any easier.

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* If you’re reading this on Wednesday, please don’t go to the Rayburn Building this afternoon to see this hearing. It was actually held on Tuesday — sorry! I’ll link the video when it’s published on line.

**  I clarified the original post to indicate that this is a subcommittee hearing, not a full committee hearing.

*** Full disclosure.

 

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Sen. Cory Gardner just gave as good a speech about North Korea policy as I’ve ever seen

Senator Cory Gardner* of Colorado is the new Chairman of the Senate Foreign Relations Committee’s Subcommittee on East Asia, the Pacific, and International Cybersecurity Policy. When I first heard that a freshman Senator had been picked to lead such an important subcommittee, it concerned me. Delving into Gardner’s background, however, it became clear that he’s highly intelligent — he graduated from college summa cum laude, and (at least according to his Wikipedia page) speaks fluent German. He has graduated from law school (never a bad thing for a lawmaker) and served as Legislative Director for Sen. Wayne Allard (ditto). He’s also a relative moderate in a party whose image has been dominated by the likes of Rand Paul and Ted Cruz recently. So why not? An ounce of judgment is worth a pound of seniority. But then, a friend directed me to this:

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Aside from the fact that it was a torpedo, not a missile, that sank the Cheonan, that was just about pitch-perfect. It’s about as good a speech as I’ve seen any politician deliver about North Korea, and quite possibly the best articulation I’ve seen of what a better North Korea policy would be. The confidence of the Senate leaders in Senator Gardner certainly exceeds his seniority. Now I see why. I expect good things from him.

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* A previous version of this post misspelled Sen. Gardner’s first name. My apologies for the error.

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Last year’s analysis proves that this year’s analysis of N. Korea’s New Year speech will also be crap

The worst news of the day is that KCNA is working again. That means that as you read this, somewhere in northwest D.C., America’s best-credentialed astrologers are sifting through a desert of despotism for grains of glasnost.

In line with the requirements of the prevailing situation, the officers and men of the Korean People’s Internal Security Forces should sharpen the sword for defending the leader, system and people, and members of the Worker-Peasant Red Guards and the Young Red Guards should conduct combat and political training in a real-war atmosphere, thereby beefing up their combat efficiency and getting fully prepared for an all-people resistance so that they can defend their own provinces, counties and villages by themselves.

By carrying out the Party’s line of promoting the two fronts simultaneously, the defence industry sector should step up the efforts to make the munitions production Juche-oriented, modern and scientific and proactively develop and perfect powerful cutting-edge military hardware of our own style.

I have no analysis to offer of the speech itself. To the extent it means anything at all, it looks like a lot of the same old garbage to me — calls for boosting the military, sciences, and agricultural and coal production. Instead, I offer analysis of the analysis, for which last year’s effort is pretty much evergreen, and even includes some examples of past analyses that haven’t held up especially well.

Here is the part of this year’s speech that the natterers they will seize on:

We think that it is possible to resume the suspended high-level contacts and hold sectoral talks if the south Korean authorities are sincere in their stand towards improving inter-Korean relations through dialogue.

And there is no reason why we should not hold a summit meeting if the atmosphere and environment for it are created. In the future, too, we will make every effort to substantially promote dialogue and negotiations.

Here are Pyongyang’s conditions for that, which most of the natterers (or at least, the ones who will get the most media attention) will assuredly ignore.

The large-scale war games ceaselessly held every year in south Korea are the root cause of the escalating tension on the peninsula and the danger of nuclear war facing our nation. It is needless to say that there can be neither trustworthy dialogue nor improved inter-Korean relations in such a gruesome atmosphere in which war drills are staged against the dialogue partner.

To cling to nuclear war drills against the fellow countrymen in collusion with aggressive outside forces is an extremely dangerous act of inviting calamity.

We will resolutely react against and mete out punishment to any acts of provocation and war moves that infringe upon the sovereignty and dignity of our country.

The south Korean authorities should discontinue all war moves including the reckless military exercises they conduct with foreign forces and choose to ease the tension on the Korean peninsula and create a peaceful environment.

The United States, the very one that divided our nation into two and has imposed the suffering of national division upon it for 70 years, should desist from pursuing the anachronistic policy hostile towards the DPRK and reckless acts of aggression and boldly make a policy switch.

The north and the south should refrain from seeking confrontation of systems while absolutizing their own ideologies and systems but achieve great national unity true to the principle of By Our Nation Itself to satisfactorily resolve the reunification issue in conformity with the common interests of the nation.

If they try to force their ideologies and systems upon each other, they will never settle the national reunification issue in a peaceful way, only bringing confrontation and war.

And here is Pyongyang’s closing thought. Imagine yourself reading this in Chongjin or Hamhung, and try not to weep:

Last year, in the international arena, hostilities and bloodshed persisted in several countries and regions due to the imperialists’ outrageous arbitrariness and undisguised infringement upon their sovereignty, which posed a serious threat to global peace and security.

Especially, owing to the United States’ extremely hostile policy aimed at isolating and suffocating our Republic, the bulwark of socialism and fortress of independence and justice, the vicious cycle of tension never ceased and the danger of war grew further on the Korean peninsula.

The United States and its vassal forces are resorting to the despicable “human rights” racket as they were foiled in their attempt to destroy our self-defensive nuclear deterrent and stifle our Republic by force.

The present situation, in which high-handedness based on strength is rampant and justice and truth are trampled ruthlessly in the international arena, eloquently demonstrates that we were just in our efforts to firmly consolidate our self-reliant defence capability with the nuclear deterrent as its backbone and safeguard our national sovereignty, the lifeblood of the country, under the unfurled banner of Songun.

As long as the enemy persists in its moves to stifle our socialist system, we will consistently adhere to the Songun politics and the line of promoting the two fronts simultaneously and firmly defend the sovereignty of the country and the dignity of the nation, no matter how the international situation and the structure of relations of our surrounding countries may change. On the basis of the revolutionary principles and independent stand, we will expand and develop foreign relations in a multilateral and positive way, giving top priority to the dignity and interests of the country.

Readers are cordially invited to submit particularly ill-supported analysis in the comments, for dissection next year.

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In 2006, Ashton Carter called for blowing up a N. Korean missile on the launch pad

At the time, I wasn’t especially enthusiastic about the idea, and I’m still not enthusiastic about it today, but had I known then that George W. Bush and Barack Obama would let things get to where they’ve gotten today, I might have agreed with the idea of an aerial intercept.

One thing we know about Ashton Carter is that he talks a good game.

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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.

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[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.

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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).

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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.

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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.

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