How to hold North Korea accountable for Otto Warmbier’s death

In North Korean prisons (at least, in those from which release is possible at all) when the guards conclude that a prisoner is about to die, they release her and send her away to die at home, so that disposing of her body will be someone else’s problem, and so that the warden can manipulate the camp’s rate of in-custody deaths downward. (Perhaps in some small way, even the wardens of North Korean prisons fear being held accountable, one day, for what they do.) The same is true when North Korean officers conclude that a soldier is about to die of starvation or tuberculosis — the army will send the soldier home to die.

So it was when North Korean diplomats at the U.N. reached out to their American counterparts to inform them that they had an American patient to dump. That the Warmbiers were able to see and touch their son one last time before he died was merely incidental to Pyongyang’s true purpose. It reminds us that Pyongyang has the means to talk to us when it decides that it’s in its interest to do so. Above all, Otto Warmbier’s death should remind us that governments that murder their own people will eventually murder ours. Pyongyang has made the hatred of Americans a national virtue. It indoctrinates its little children to hate and kill us. All that prevents it from murdering us on a greater scale is that it still lacks the means to do so.

An autopsy should now be done to determine the precise cause of Mr. Warmbier’s death, to rule out Pyongyang’s explanations of botulism or a drug reaction. Even if this explanation turns out to be plausible, however, it would not excuse holding Mr. Warmbier in Pyongyang in a coma for a year and denying him access to medical care that might have saved him. The coroner should look for evidence of what event put Warmbier into a coma to begin with, whether it was a beating, a suicide attempt, or some other cause. If prompt medical attention might have saved his life, a willful decision to deny him life-saving care would still be murder. And here, the chronology supplies circumstantial evidence of a political motive, and thus, a darker explanation:

  • Jan. 2: North Korea arrests Otto Warmbier.
  • Jan. 6: North Korea carries out a nuclear test, an event that took weeks of preparation. International condemnation follows; the U.S. calls the U.N. Security Council into emergency session.
  • Jan. 12: North Korea arrests a second U.S. citizen, Kim Dong-Chul, a humanitarian aid worker from Fairfax, Virginia.
  • Jan. 22: North Korea reveals Warmbier’s arrest publicly for the first time.
  • Feb. 5: The House introduces H.R. 757, a North Korea sanctions bill. It advances quickly through Committee to the House floor, where it passes by 418 to 2.
  • Feb. 10: The Senate passes H.R. 757 by a vote of 96 to 0.
  • Feb. 18: The President signs H.R. 757 into law.
  • Mar. 2: The U.N. Security Council approves new sanctions in Resolution 2270.
  • Mar. 15: President Obama signs Executive Order 17722, implementing the sanctions in H.R. 757.
  • Mar. 16: North Korea holds a show trial for Otto Warmbier and sentences him to 15 years’ hard labor.

In retrospect, then, Pyongyang’s “arrests” of both Otto Warmbier and Kim Dong-Chul appear to have been part of its coordinated plan to test a nuke, and to blunt a U.S. push to sanction it for doing so. It was at this point, shortly after Warmbier’s show trial, that something put him into a coma. This was when Pyongyang had the greatest motive to use Warmbier to punish the U.S. government. (North Korea’s dogma is one of collective rights and collective punishment. It does not recognize the individual as separate from the state. It would be consistent with Pyongyang’s dogma to punish one American to punish the U.S. government.) This was also when North Korea had a political disincentive against sending Warmbier home, lest it show the world a less defiant face or give up the leverage of holding one more American hostage. Shortly before Otto Warmbier passed away, the North Koreans doubled down and said that he got what he deserved.

President Trump reacted to Otto Warmbier’s passing appropriately:

Ambassador Haley said it best, however:

But it is with regard to Secretary of State Tillerson’s reaction where I might offer some help:

Presumably, they’re having a good laugh about this in Pyongyang, where crime always pays and there are never consequences. Pyongyang has been getting away with murder for 70 years; why should it be different this time when it still has three American hostages? Perhaps, at some point, the U.S. government will cease to allow Pyongyang to benefit from this tactic. It is not legally terrorism, because it is not carried out by clandestine agents or subnational groups, but it is a use of violence against innocent non-combatants with the apparent intent to influence the conduct of our government. Of course, Pyongyang has done many other things recently that do fit the legal definition of terrorism, so re-listing North Korea as a state sponsor of terrorism would be both well-justified and appropriate. (If you still haven’t read my 100-page, peer-reviewed legal analysis of the evidence, then by all means, feel free to do so now.)

The question of a travel ban will invariably be raised again. Even without legislation, the President has the authority to restrict U.S. passports to prevent them from being used by U.S. citizens and permanent residents to visit North Korea, but such a limited ban would be difficult to enforce in practice — it’s not as if the North Koreans would cooperate by turning paying hostages away just because the State Department wants them to. For reasons I’ve explained before, the President would need legislation to make a travel ban truly effective. The way to do this is to block the North Korean tourist industry’s access to the dollar system entirely. That would have the benefit of making the U.S. designation of Air Koryo more effective by closing a key legal loophole. (Air Koryo has been implicated repeatedly in the smuggling of WMD components and luxury goods, in violation of U.N. sanctions.)

An even more effective ban would include secondary immigration sanctions, by denying recent visitors to North Korea visa-free entry into the United States (section 4, below the fold). That would render North Korea’s recent investments in a ski resort, a water park, and a new airport terminal largely worthless. Yes, journalists, I wrote in a special exemption just for you — you’re welcome.

Don’t get me wrong; I’d be all for passing H.R. 2732 now. I also recognize that Congress is politically hesitant about travel bans for various reasons. The problem is that Pyongyang’s hostage-taking is now endangering other Americans, and the citizens of other countries, by interfering with the execution of a more coherent North Korea policy. In the interests of making the perfect the enemy of the good, then, I offer a text below the fold, of a travel ban that’s conditioned on the President certifying that it’s safe for Americans to travel to North Korea, and that also maximizes the effect of a ban on tourist and commercial travel to North Korea by non-U.S. citizens that is paid for in U.S. dollars. By linking the ban to the release of U.S. hostages, it gives Pyongyang a powerful financial incentive to set them free.

Finally, it’s long past time for the Senate to take up Chairman Royce’s bill, the KIMS Act, to further toughen existing sanctions on Pyongyang. That bill passed the full House 419 to 1 weeks ago. The Senate has yet to introduce it.

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One American tragedy, millions of North Korean statistics

The idea that foreign tourists in North Korea could escape the evil they help, however minimally, to propagate, was never sustainable. Tourism in North Korea reduces the physical and mental slavery of totalitarianism to a circus performance and its subjects to zoo animals. It doesn’t only endanger the tourist, it plays some unquantifiable role in sustaining that horrid system, and in endangering the lives of people from Seoul to Seattle to Aleppo by giving cash to a regime obsessed with the capacity to terrorize and destroy life. To tour North Korea is a morally shallow act for which some just punishment is warranted. That just punishment is a week in a North Korean jail, one day as a global Twitter laughingstock, and a one-way ticket back to one’s angry family and laughing friends. It was not this. There was nothing just in this.

The specifics of Mr. Warmbier’s condition were not known. His family was told that he had contracted botulism and had been given a sleeping pill, causing him to slip into a coma, according to the people briefed on the situation, who insisted on anonymity to discuss the highly sensitive matter. But American officials suspect his condition is the result of his treatment at North Korean hands, given the record of the brutal treatment of past prisoners there.

[….]

A senior American official said the United States obtained intelligence reports in recent weeks indicating that Mr. Warmbier had been repeatedly beaten while in North Korean custody. The official, who was not authorized to publicly discuss intelligence and spoke on the condition of anonymity, said there had been earlier concerns that Mr. Warmbier had died as a result of the beatings.

A second person who was involved in early discussions with North Koreans about American prisoners said Mr. Warmbier’s family at one point told friends they believed the North had killed their son. [N.Y. Times]

Let anyone forget, this was Otto Warmbier at his show trial. As lawyers say, res ipsa loquitur.

Yes, initial reports are often wrong. Rumors of dark and unknowable things from inside the world’s most opaque regime should be treated with skepticism. Mr. Warmbier is at a hospital now, where the doctors will examine him for evidence of torture. In due course, we’ll have medical evidence of what really happened, and whether Mr. Warmbier will ever walk or speak again. But clearly, the people who had him in their custody did something to him to reduce him to the comatose state in which he has lingered for a year. And whatever happened to Mr. Warmbier happened to him at a time when he was held without legitimate justification. Even allowing for differences of culture and government, there is no system of justice in which vandalizing a poster (if Mr. Warmbier did that) warrants two months in jail, much less a year and a half, much less a 15-year sentence to hard labor.

The editors of the Washington Post write that “the harm done to an innocent student is the result of North Korea’s odious practice of seizing Americans to use as political pawns.” It’s beyond serious question that Mr. Warmbier was held as a hostage, and by extension, this suggests that the charges against three other Americans in North Korean custody are also fabricated and their punishments arbitrary. 

The Post calls Mr. Warmbier’s treatment “outrageous behavior even by the standards of one of the world’s most vicious and isolated regimes,” says that “it should not go unpunished,” and calls for more sanctions, including secondary sanctions. I obviously agree with the latter statements, but not the former (we’ll turn to it later).

As to the punishment, one appropriate option would be to return North Korea to the list of state sponsors of terrorism, despite the fact that Mr. Warmbier’s torture does not meet the legal definition (it was done by a state, not by clandestine agents or subnational groups). There are plenty of other reasons, including the assassination of Kim Jong-Nam, that would make a re-designation of North Korea well-grounded in evidence and law.

And yes, Congress should enact a travel ban. Depending on how it’s drafted, an added feature of a travel ban could be to wreck Moon Jae-In’s addlebrained, sanctions-busting plans to reopen Kumgang or share the Olympics with North Korea. And yes, the Warmbier family’s lawsuit against the reckless and unethical Young Pioneer Tours, which continues to say that travel to North Korea is safe, and which has boasted that the arrests of tourists are good for business, should be an extinction-level event. 

I disagree with the Post, however, when it says that Mr. Warmbier’s treatment was “outrageous behavior” by North Korean standards. On the contrary, by North Korean standards it was entirely ordinary. The reason why tourism to North Korea is immoral is the very fact for North Koreans, brutality is an everyday fear, whether they’re market traders being extorted and beaten by corrupt MSS officers, women refugees who are beaten after being repatriated by China, women in “Kangan” Province who are raped by soldiers with impunity, or the child prisoners in places like Camp 16, where death rates may be as high as 20 percent each year.

Is Mr. Warmbier’s fate more inhumane than the slow, agonizing death of my friend Jinhae Jo’s baby brother, who starved to death in her arms so that Kim Il-Sung could have a new mausoleum and his son could have nuclear weapons? According to the U.N. Commission of Inquiry, that slow, agonizing process repeated itself perhaps two million times for North Koreans, out of our sight. For every person who starved to death from Pyongyang’s priorities, countless others were traumatized by the loss of them.

What Mr. Warmbier experienced is not even the worst treatment North Korea has meted out to foreigners in recent years. Contrast it to the kidnapping and slow starvation of U.S. resident Kim Dong-shik from China to North Korea, where he died far from his wife and children. Or Megumi Yokota, kidnapped from the shores of her home country and held in North Korea until she finally gave in to despair and committed suicide. Or the brave dissidents and human rights activists like Patrick Kim, stabbed by North Korean agents with poisoned needles.

It is as if the greater the scale of the horrors, the less they affect us. The more we ascribe them to differences of policy, nation, and culture. The more arguments we summon to dull their moral relevance. One death is a tragedy, but the death of millions is a statistic from a dying star in a distant galaxy. As we look on one tragedy, let’s remember the statistics, too.

[Statistics, buried in the hills near Hamhung, North Korea]

That will better inform us how to respond to all of these tragedies. North Korea’s is a system dedicated to the proposition that all men must submit to evil. The sooner we grasp that all of these statistics are tragedies, the sooner we will draw the appropriate conclusions about how to respond to them.

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H.R. 2732 would ban the North Korea tourist racket from the dollar system

Yesterday, Rep. Adam Schiff (D, Cal.) and Joe Wilson (R, S.C.) introduced a bill that would ban transactions incident to travel to, from, and within North Korea. The text isn’t posted on Congress.gov yet, but Schiff and Wilson have issued identical press releases describing what the bill would do:

Today, Congressmen Adam Schiff (CA-28) and Joe Wilson (SC-02) introduced the bipartisan North Korea Travel Control Act, which would require the Treasury Department to issue regulations requiring a license for transactions related to travel to, from, and within North Korea by American citizens. It also provides that no licenses may be issued for tourist travel.

“Tourist travel to North Korea does nothing but provide funds to a tyrannical regime—that will in turn be used to develop weapons to threaten the United States and our allies, as I saw firsthand on a rare visit to Pyongyang,” Rep. Wilson said. “Worse, the regime has routinely imprisoned innocent foreign civilians and used them as bargaining chips to gain credibility with the West. We should not enable them any longer—which is why it is critical to carefully regulate travel to North Korea.”  

“In recent years, there has been an increase in tourist travel to the DPRK by citizens of Western countries, including the United States,” Rep. Schiff said. “With increased tensions in North Korea, the danger that Americans will be detained for political reasons is greater than ever. Given North Korea’s continuing destabilizing behavior and their demonstrated willingness to use American visitors as bargaining chips to extract high level meetings or concessions, it is appropriate for the United States to take steps to control travel to a nation that poses a real and present danger to American interests.”

In the past, North Korea has shown a willingness to use American prisoners to seek diplomatic concessions, including securing visits from former U.S. Presidents and cabinet officials. At least seventeen Americans have been detained in the past ten years, despite the State Department strongly warning U.S. citizens against traveling to the DPRK. Currently, at least four Americans remain imprisoned. In addition to security concerns, Western visitors bring with them much needed foreign currency, especially valued in a country facing extensive international sanctions for its illegal nuclear weapons and ballistic missile programs.

It’s hard to offer too many thoughts on a bill whose text I haven’t seen, but conceptually, I agree with all of this. It’s past time to give the President authority to ban (or ban outright) tourist travel to North Korea, the proceeds of which are used for God-only-knows what (although I’m pretty sure it isn’t baby formula). If President Trump’s policy really is going to be “maximum pressure” — and I’ve seen precious few signs of that pressure so far — then this will deny His Porcine Majesty one more source of hard currency. Among other things, it will make the designation of Air Koryo far more effective than it could otherwise be, and will put sharper teeth into Executive Order 13722’s sectoral sanctions on North Korea’s transportation industry.

As I previously explained here, the President can’t sanction travel-related sanctions without special legislation like this, because of the carve-out in section 203(b)(4) of the International Emergency Economic Powers Act. Keep in mind that this ban will not only affect travel by Americans, but any travel-related transactions denominated in dollars, regardless of the nationality of the traveler or the tour company. Much of the news coverage of this bill I’ve seen, which includes the self-interested comments of tour operators, misses that point.

As you know, I have mixed feelings about those who go slumming to North Korea and do stupid things there (starting with the decision to go there at all). I’m all for letting individuals (including stupid ones) make their own decisions, up to the point when their decisions begin to harm other people. My feelings aren’t at all mixed about the unethical tour companies that lie to their customers, tell them that North Korea is a perfectly safe place to visit, and remain willfully blind to the oppression and war that their dollars are really paying for. I wish them a speedy journey to bankruptcy court.

This may be the only sanctions bill for which the State Department might say a silent prayer of thanks. Each hostage taken frustrates our diplomats, sets back efforts to carry out a more coherent policy, and ultimately raises the danger to the rest of us who are smart enough to stay out of North Korea. No, a travel ban won’t stop every imbecile from going to North Korea, but it will reduce the supply. Whoever still believes that underwriting Kim Jong-un’s regime with dollars is plausibly leading to a kinder, gentler North Korea is stuck on that belief for emotional reasons, far beyond the reach of the overwhelming evidence that it is doing precisely the opposite of this. By financing North Korea’s horrific status quo, tourism does the North Korea people more harm than good. By undermining the financial pressure on Pyongyang, tourism helps Kim Jong-un resist pressure to disarm, to change, and to make North Korea a decent place for its people to live.

~   ~   ~

Update: It now occurs to me that if this bill passes, you can forget about reopening Kumgang, at least as a dollar operation.

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The PUST hostage crisis is a fitting symbol of the futility of engaging Pyongyang

Just one week after I predicted that the misbegotten experiment known as the Pyongyang University of Science and Technology would soon be at the center of a hostage crisis, the inevitable has happened.

North Korean state media reports the country has detained a U.S. citizen — the fourth U.S. citizen being held there amid rising tensions between the two countries. The official Korean Central News Agency identifies the man detained Saturday as Kim Hak Song, an employee of Pyongyang University of Science and Technology (PUST).

He was detained by North Korea “on suspension of his hostile acts against it,” according to the news agency, and “a relevant institution is now conducting detailed investigation into his crimes.” [….]

Kim Hak Song is the second PUST staffer detained within a month. As NPR’s Lauren Frayer reports from Seoul, the first, named Kim Sang Duk, “was arrested late last month while trying to leave North Korea, and accused of trying to overthrow the government in Pyongyang. North Korean media haven’t said whether the two men knew each other.”

The other two detained U.S. citizens “are already serving prison terms, with hard labor, for alleged ‘anti-state acts’ and ‘espionage,'” Lauren adds. [NPR, Merrit Kennedy]

NBC, drawing a conclusion that’s increasingly difficult to avoid, calls the latest arrests “hostage diplomacy.” President George W. Bush removed North Korea from the list of state sponsors of terrorism on October 11, 2008. Under his successor, Barack Obama, the State Department’s official position was that North Korea has not sponsored acts of terrorism since 1987. Discuss among yourselves.

Meanwhile, this event is opening a contrast between the Trump administration’s rhetoric and its policy — after all, rhetoric is what you say (and let’s give Rex Tillerson credit for saying the right things); policy is what you actually do. For all of Donald Trump’s talk of “maximum pressure,” there still isn’t really a Trump administration North Korea policy worth speaking of. Below the secretarial level, most of the second-level appointments of the officials who turn the dials and pull the levers of policy still haven’t been made. More than 100 days into this administration, the administration has yet to take simple, discretionary executive actions like re-adding North Korea to the list of state sponsors of terrorism, issuing sanctions designations that go beyond the slow pace of the Obama administration, or suspending PUST’s Commerce and Treasury Department licenses as U.N. resolutions require us to do, preferably before the next class of hackers graduates.

Still, it’s unlikely that revoking those licenses would have prevented this crisis or its likely growth over the coming weeks as Pyongyang takes more PUST faculty members hostage. After all, anyone who still believes that economic, cultural, or scientific engagement can change Pyongyang for the better would probably still defy travel warnings, common sense, and perhaps even the law to stay in Pyongyang anyway. One could hardly invent a better demonstration of how “engagement” has failed to change Pyongyang than a hostage crisis at PUST, the largest remaining experiment in the Sunshine Policy, but anyone who was open to drawing obvious conclusions about the potential of that policy from the abundant evidence probably did so years ago — after the killing of Park Wang-ja at Kumgang, the first Kaesong shutdown, the second Kaesong shutdown, the Cheonan attack, the Yeonpyeong attack, any of the last five nuke tests, the embarrassing flops of the AP’s Pyongyang bureau and Koryolink, the failure of 20 years of international aid to end North Korea’s food crisis, or the murder of Kim Jong-nam.

The human mind arrives at its most stubborn beliefs for reasons that transcend logic, reason, and evidence. It is often the highly educated and intelligent who are, perhaps out of intellectual arrogance, the last to abandon beliefs built on a foundation of emotions. For 30 years after the end of World War II, Japanese soldiers (the last of them an intelligence officer, Lt. Hiroo Onoda) were still emerging from their jungle hideouts on islands all over the South Pacific, having refused until then to believe that the war was over. In certain parts of Washington, one still encounters equally stubborn believers in the idea that there is a kinder, gentler Kim Jong-un beneath a disposition that became obvious to the rest of us years ago. Increasingly, I find myself tempted to grab these North Korea holdouts by their shoulders, shake them vigorously, and shout, “Come out of the jungle, Lieutenant Onoda! The war has been over for 20 years!”

It is in this historical and evidentiary setting that Moon Jae-In, who commands the largest cadre of these holdouts, will begin his minority presidency of another (de facto) island in the Pacific this week — bereft of a strong popular mandate, a plausible approach to North Korea, or the support of his most important ally. One hopes that it will take less time for President Moon than Lt. Onoda to draw the obvious conclusions, but if you’ve explored his background, don’t count on it. In which case, Mr. Moon’s party could face some extinction-level losses in the National Assembly in the coming months, and will richly deserve to.

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What the Treasury Department’s blocking of Air Koryo means

Last week’s North Korea sanctions designations by the U.S. Treasury Department’s Office of Foreign Assets Control — commonly known as OFAC — go far to explain why U.N. Security Council Resolution 2321 took so long to negotiate and pass. There were many reasons why I panned the terms of that resolution last week, including new and not-improved coal export limits, and the U.N.’s failure to designate North Korea’s state airline, Air Koryo.

Friday’s OFAC designations — which block any of the targets’ assets in the United States, and more importantly, any dollar assets that move through the U.S. financial system for international transactions — plug many of the holes UNSCR 2321 left. Treasury has sent a strong signal that when China blocks swift and effective consequences for North Korea’s provocations, the U.S. is (at last, at least for now) prepared to join with its allies and go beyond the United Nations. This almost certainly means that the U.S. made no sub rosa agreement to stay its hand.

I. There was strong evidence that Air Koryo had violated U.N. sanctions for years.

U.N. reports alone provided ample evidence to support the designation of Air Koryo. For years, the U.N. Panel of Experts that oversees (non-)compliance with U.N. sanctions had called Air Koryo out for lending its aircraft to the North Korean air force for military purposes, for arms smuggling, and for suspicious financial transactions. In 2014, for example, the Panel reported that Air Koryo was, for all intents and purposes, an arm of the North Korean military, and cited NK News’s reports that Air Koryo Il-76s were sometimes repainted for military exercises and shows. It published photographs of one Air Koryo Il-76 after an air show, with camouflage still showing through the white paint of its civilian livery.

141.  As previously indicated by the Panel, Air Koryo and all airports or airfields within the Democratic People’s Republic of Korea are controlled by the Korean People’s Air Force through its Civil Aviation Bureau. Reportedly, all personnel are members of the air force and all in-country maintenance is conducted by Air Force engineering staff.  The absence of boundaries between Air Koryo and the air force was further highlighted by the 27 July 2013 military parade during which three military Ilyushin (Il) 76 flew over Kim Il Sung square (see figure XXV). [UN POE]

Then, there is this language from the 2014 report, suggesting that Air Koryo may have been running an elaborate money laundering scheme, one that foreshadows its likely sanctions evasion strategy:

178.  An example of a transaction being financed in an unusually complex manner was an Air Koryo contract in 2012 to purchase new aircraft.  Payments were structured through eight Hong Kong, China-registered companies, which asserted that they were trading partners of Air Koryo and were wiring funds they owed it. The resolutions do not prohibit the purchase of civilian passenger and cargo aircraft. The Panel, however, was dubious of the explanation that debts were the source of the funds; some companies appear to be recently formed shell companies. It also finds remarkable the coincidence of all eight firms owing significant amounts to Air Koryo at the time funds were contractually due to be paid to the seller of the aircraft. The names of shells and activities of others appear to share a connection with gold trading. The Panel is suspicious that the Democratic People’s Republic of Korea may be using or considering the use of precious metal sales on credit terms to create “accounts payable”. Such sources for funds would not necessarily show as being under its control and even could be swapped with other firms to further distance its connection and thereby better evade sanctions and enhanced due diligence by banks. [UN POE]

There were also regular reports (and photographic evidence) that North Korean officials and couriers used Air Koryo to import luxury goods and smuggle bulk cash, in violation of U.N. sanctions. The 2016 Panel of Experts report published photographs of a consignment of SCUD missile parts shipped from North Korea to Egypt aboard an Air Koryo flight. In 2015, the Panel made this conclusion:

120. Given the evidence of military use, the Panel considers that providing financial transactions, technical training, advice, services or assistance relating to the provision, maintenance or use of Air Koryo’s cargo aircraft could constitute a violation of the embargo on all arms and related materiel as defined by paragraph 10 of resolution 1874 (2009). [UN POE]

Although it’s apparent that China blocked a U.N. designation of Air Koryo in UNSCR 2321, it’s also apparent that experts appointed to the panel by other nations saw ample justification for a designation of Air Koryo, and had been pushing for one for years. Pyongyang also used Air Koryo to transport slave laborers abroad and back, including the flight that brought home 100 mutinous workers from Kuwait, almost certainly to a very dark fate. Belatedly, UNSCR 2321 expressed “concern” about this exploitation, albeit with non-binding language.

That’s why OFAC’s designation of Air Koryo, two days after the U.N. failed to do so, was anything but “unilateral.” That matters, because we will need the cooperation of other states to make Air Koryo sanctions effective. For example, South Korea’s own designation of Air Koryo will have little direct effect, because Air Koryo doesn’t fly to South Korea, but (depending on how South Korea’s political crisis resolves) South Korean diplomats may soon call on Malaysia, Singapore, Thailand, Kuwait, and other countries to join the ban. (Singapore, an important North Korean trading partner, doesn’t have its own independent SDN list for North Korea sanctions; it just adopts the U.N. list.) The EU will probably also cooperate. Even before the OFAC designation, it had banned most Air Koryo planes over safety concerns.

If anyone in this story acted unilaterally — aside from North Korea, of course — it was China, in blocking Air Koryo’s designation despite all of the incriminating evidence. I don’t doubt that China will try to help Air Koryo continue operating with Renminbi transactions, although it remains to be seen whether Chinese banks will risk handling them. But with each new North Korean provocation, China will find itself increasingly isolated and pressured to yield to the consensus. That’s how Progressive Diplomacy should work.

Now, every venue that gives Air Koryo landing rights will come under diplomatic pressure to stop doing so. Expect Air Koryo’s itinerary and Pyongyang’s tourist income to continue to ebb, but past history (more on that below) suggests that Pyongyang will find ways to keep Air Koryo flying, even if only at a punishing financial loss. Viewed that way, sanctions won’t only be costly if they destroy Air Koryo. They may be even more costly if they don’t.

II. How U.S. sanctions will affect Air Koryo’s operations.

OFAC didn’t just designate Air Koryo last Friday; it also designated its offices and all its individual aircraft — well, almost all. Compare Treasury’s list of designated Air Koryo aircraft to Table 9 from the 2015 U.N. Panel of Experts report, and you’ll see that Treasury’s list is three planes short of the POE’s list — specifically, one Tu-134 and two Il-62s. Did Treasury spare the three remaining aircraft for some reason? Did it simply lack full identifying information about them? Probably not. First, note that the three aircraft are among the oldest in Air Koryo’s fleet. A more likely explanation comes from Paragraph 117 of the 2014 POE report, which says that Air Koryo bought two of its Il-62s from Cuba in 2012 and cannibalized them for spare parts. OFAC probably saw no point in designating two old hangar queens. It’s likely that the remaining Tu-134 aged out, too.

How will the OFAC designation affect Air Koryo? Let’s start by establishing its baseline. Two years ago, the Panel of Experts offered this summary of Air Koryo’s itinerary:

139.  The numbers of air carriers operating scheduled flights and routes to or from Pyongyang Sunan International Airport remain very limited. However, the number of flights per route has changed since May 2013. The number of weekly rotations to Beijing has increased from six to eight, with five rotations operated by Air Koryo and three by Air China, the only foreign airline regularly serving the Democratic People’s Republic of Korea.  Air Koryo now also operates two weekly rotations to Vladivostok. The number of rotations to Shenyang is unchanged (twice a week), while the number to Kuala Lumpur decreased (from twice to once a week). The status of its weekly rotation to Bangkok is unknown. This flight and others to Kuwait City, Moscow, Nanjing, Shanghai and Yanji, China, are most likely operated on an ad hoc and/or seasonal basis. [UN POE]

This is not the first time the Treasury Department has designated a rogue state’s flag carrier. Treasury designated Syrian Air in 2013 for smuggling weapons, and the EU soon followed suit. Syrian Air kept flying to the Gulf states with the help of front companies, money laundering, and bulk cash smuggling. Treasury designated Iran Air in 2011, after years of U.S. export controls made it difficult for the airline to buy spare parts. In 2010, the EU banned some Iran Air craft over safety concerns. After its OFAC designation, Iran Air’s flights to Western Europe had to make fuel stops in Eastern Europe, but the airline limped along until President Obama lifted its designation earlier this year. The 1998 designation of Sudan Airways, along with “financial troubles and mismanagement,” eventually reduced it to just six working (but aging) aircraft. In 2015, the U.S. government fined EgyptAir for leasing two 737s to Sudan Airways. But then, Sudan Airways’s two-letter flight code, “SD,” has long been said to stand for “sudden death.”

This history suggests that Pyongyang will try to keep its flag carrier flying, even if at great expense and inconvenience, to show its defiance and maintain its prestige. But like Iran Air and Sudan Airways, Air Koryo was already straining to maintain a fleet of aging aircraft before its OFAC designation. If North Korea runs an airline as ineptly as it runs, say, its food supply, over time it will be forced to drop routes and flights, which Chinese air carriers will try to pick up. Currently, Air China is the only other airline with regular flights to North Korea. (Spring Airlines had expressed interest in starting flights to Pyongyang, but later shelved that plan.) These airlines will have greater dollar exposure and more reluctance to risk ferrying luxury goods or slaves. They will feel more constrained by UNSCR 2321’s mandate to inspect all checked baggage to and from North Korea for, say, bundles of cash, stashes of gold, or big screen TVs.

Air Koryo may try to collect fares and buy parts in non-dollar currencies, but past history suggests it will simply try to evade the dollar sanctions. This will come with great costs and inconveniences. As we learned from the Dandong Hongxiang indictments, it’s almost impossible to operate in the global economy without dollars, and evading dollar sanctions requires working through shady middlemen who sometimes charge commissions of more than 20 percent. The more layers of protection you want, the more middlemen you need, and each layer adds to that cost. It will be hard, but still possible, for Air Koryo to keep flying with its dollar accounts frozen and its capacity to acquire spare parts and new aircraft curtailed. (UNSCR 2321 bans North Korea from purchasing or leasing new vessels and helicopters, but not fixed-wing civilian aircraft.) The operations of a national flag carrier aren’t easily concealed. Air Koryo will have to market itself to sell seats and operate profitably. Every destination where its planes land will come under investigative and diplomatic scrutiny. 

III. How the designation of Air Koryo will affect the North Korea tourist industry.

Much of the media interest in the designation of Air Koryo has focused on how the designation will impact tourism to North Korea — specifically, tourism to North Korea by Americans and Europeans. That interest, in turn, probably derives from the inexplicably popular idea that (overwhelmingly) white people who travel to North Korea will shine their gentle, warming rays on the local savages by “open speech and simple an hundred times made plain, to seek another’s profit and work another’s gain.” ICYMI:

For some people, visiting North Korea is like dating Madonna — plodding a tired, well-worn, loveless, and morally ambiguous path that gives some people an inexplicable feeling that they’ve entered an unexplored place. Except that Dennis Rodman and countless others already did. 

Designating Air Koryo will undoubtedly reduce Pyongyang tourist revenue, but it’s hard to say by how much. Yonhap has published an estimate that in 2014, tourism poured $43 million into North Korea. Some experts have told me that estimate sounds high, but Sheena Chestnut Greitens (who is, due to unrelated developments, about to become the First Lady of Missouri) previously cited an unnamed South Korean expert’s “high estimate” of $100 million. How much of this income is from Air Koryo’s ticket sales is anyone’s guess. The overwhelming majority of tourists who visit North Korea are Chinese who may find it more convenient to fly Air China or take the train.

Air Koryo’s designation will have a greater impact on Europeans and Americans, who pay a premium to travel to North Korea. Uri Tours, one of the companies that sells group tours of North Korea to slummers, inept evangelists, prospective hostages, and other unrequited masochists turns out to be a business partner of North Korea’s missile-part-smuggling, money-laundering, slave-ferrying airline.

Uri Tours is the exclusive General Sales and Ticketing Agent of Air Koryo in the Americas. We service tourists, business travelers, corporations, foreign workers and government officials to provide expedient Air Koryo ticketing in advance of your trip. We take credit card payment and we can offer same day ticketing.

Air Koryo is North Korea’s only airline and has a history of over 50 years in flight. Air Koryo operates internationally scheduled flights between Pyongyang, China (Beijing, Shenyang and Shanghai), Russia (Vladivostok), Thailand (Bangkok), and Kuwait. It also operates charter flights to and from Malaysia (Kuala Lumpur), Singapore and a handful of other countries. Domestic flights to Mount Paekdu and Mount Chilbo (and soon Wonsan) are also operated by Air Koryo. [Uri Tours]

Uri Tours reacted to OFAC’s designation of its North Korean partner with a blog post that tells us that as of last week, it was still in the denial stage.

Do these new sanctions affect tourism?

E.O. 13722 does not prohibit U.S. persons from engaging in transactions ordinarily incident to travel to or from any country. This means that U.S. persons can travel to North Korea. You are also still permitted to book tours to North Korea with a U.S. tour operator. It is our position that Uri Tours’ travel activities are covered under the IEEPA exemptions and moreover, we were an existing tour service to North Korea before E.O. 13722 which prohibits new investment in North Korea by a U.S. person. [Uri Tours]

To unpack Uri’s “position,” begin with OFAC’s specific legal authority for the designation of Air Koryo, Executive Order 13722, which authorizes sectoral sanctions against North Korea’s transportation industry (along with mining, energy, and financial services). Taking Uri’s arguments in reverse order, it claims that because its business relationship with Air Koryo predated the OFAC designation, its relationship is not affected. But section 1(b) of EO 13722 states as follows:

The prohibitions in subsection (a) of this section apply except to the extent provided by statutes, or in regulations, orders, directives, or licenses that may be issued pursuant to this order or pursuant to the export control authorities implemented by the Department of Commerce, and notwithstanding any contract entered into or any license or permit granted prior to the effective date of this order. [EO 13722]

If Uri Tours doesn’t have a lawyer, this would be a good time to invest in one. If Uri Tours has a lawyer, this would be a good time to invest in a better one. The penalties for violating the IEEPA include 20 years in one of these

Uri also cites an OFAC FAQ, Number 464, and characterizes it as opining that Americans are free to travel to North Korea for tourism. In fact, the FAQ only provides guidance on humanitarian travel (which is exempt from sanctions under a general license that doesn’t apply to tourism). The FAQ was published on March 16, 2016, the day after the President signed EO 13722, but long before the designation of Air Koryo. It says nothing about tourist travel.

Uri makes a stronger argument when it cites our old friend, the International Emergency Economic Powers Act, which creates the legal authority for sanctions executive orders and designations, but withholds (in section 203(b)(4)) “the authority to regulate or prohibit, directly or indirectly . . . any transactions ordinarily incident to travel to or from any country.” But if Uri Tours thinks the U.S. can’t designate an airline because of section 203(b)(4), I’ve already shown you ample precedent to the contrary. Whether an individual U.S. tourist can book an Air Koryo flight is an interesting question I’ll leave to the Treasury Department to resolve in a future FAQ, but good luck booking that flight if no bank will process your fare payment. Uri’s suggestion that 203(b)(4) allows it to go right on transacting with a blocked entity seems dangerously wishful, but Uri’s legal risk isn’t my concern. It misrepresents the law at its own peril. It misrepresents the safety and ethics of travel to North Korea at yours.

Clearly, 203(b)(4) doesn’t exempt airlines from the reach of nonproliferation sanctions. Just as clearly, Treasury makes a distinction between blocking one airline’s assets and a travel ban. Do proliferation sanctions that have incidental effects on travel exceed the authority of 203(b)(4)? I’d guess not, but I’ll let OFAC answer that for itself. But then, the fact that Treasury currently lacks the authority to impose a travel ban doesn’t mean that Congress won’t simply impose one, mooting Uri’s argument. Meanwhile, travel to North Korea all you want on a Chinese airline. All that’s stopping you is your intelligence and your conscience.

~   ~   ~

In the end, the biggest winners from OFAC’s designation of Air Koryo will be Air Koryo’s passengers, and not just the slaves among them. One of them recently related his near-death experience when an Air Koryo crew ran up and down the aisle of his flight, shouting “no problem! no problem!” as the cabin filled with smoke, the plane plunged toward the earth, and the passengers wept for their dear lives. In that story, I saw a fitting microcosm of, and metaphor for, the entire North Korean condition. That was one of their newer planes, too. But if you really want to hear the definitive analysis of how Air Koryo’s designation affects the North Korea tourism industry, ask Otto Warmbier. Unfortunately, he wasn’t available for comment at post time.

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How Congress can ban tourist travel to North Korea, and why it should

Yesterday’s big North Korea headline was the news that yet another American, Wyoming, Ohio native, University of Virginia student and cretin Otto Warmbier ignored my sage advice, succumbed to his Madonna Complex, and got himself arrested in North Korea. 

The student, who had entered North Korea “under the guise” of tourism, had the “purpose of bringing down the foundation of (the DPRK’s) single-minded unity at the tacit connivance of the U.S. government and under its manipulation,” the KCNA said.

The U.S. embassy in Seoul told NK News on Friday afternoon that it was aware of the report about Warmbier, and said further comment would be later provided by Washington.

At this time of his arrest, Warmbier had been participating in a tour of the country organized by the British-owned, China-based Young Pioneer Tours company, Reuters said on Friday. […]

Other social media indicators suggested Warmbier’s interests include global sustainability and climate change. [NK News]

It’s all in a day’s work for a Swiss-educated reformer, as he opens North Korea’s doors to the world:

Arrests of American visitors to North Korea have been increasing steadily since Kim Jong Un’s succession to power, with news of the latest case coming just weeks since authorities paraded U.S. passport holder Kim Dong-cheol to foreign viewers via a high-profile interview with CNN. [NK News]

Martyn Williams tweets a screen shot of KCNA’s announcement of the arrest:

 

The Daily Mail has video of the announcement on Korean Central Television.

You may not realize that Warmbier isn’t the only American in a North Korean prison. Another American, Christian missionary Kim Dong-chul of Fairfax, Virginia, was reported as arrested in North Korea on spying charges on January 12th. Kim’s arrest hardly made the news, although his work, bringing medical aid into the northeastern city of Rason, was far nobler than Warmbier’s slumming expedition. As someone who doesn’t want the world to forget the martyred Reverend Kim Dong-shik, whom North Korean agents kidnapped from China and probably murdered, I wonder why the arrest of Otto Warmbier is a scintilla more newsworthy than the arrest of Kim Dong-chul.
kim-dong-chul

[Check out the crawler text.]
In most cases, white tourists who are arrested in North Korea are held for a few months and released, none the worse for wear and perhaps wiser. Now, consider how the North Koreans treated the Reverend Kim Dong-shik, the unquestionably courageous (though perhaps foolhardy) Robert Park, Euna Lee, and Kenneth Bae, over whom the North Koreans likely felt a certain “ethnic jurisdiction” to mistreat them. Call it North Korea’s version of white privilege. It’s all the more maddening when you contemplate the sense of entitlement that would motivate anyone to gawk upon such a miserable land as a tourist.

~   ~   ~
In retrospect, Warmbier may wish he hadn’t put himself at the mercy of such evil men, by which I obviously mean Young Pioneer Tours. In a 2013 article about the arrest of another American tourist, Merrill Newman, a Young Pioneers employee even claimed that tourist arrests are just terrific for business:

China-based tour operators that specialize in taking foreigners to North Korea say the ordeal of the 85-year-old Newman has not deterred travelers. Beijing-based Koryo Tours and Xian-based Young Pioneer Tours both have had groups in North Korea since his detention, and have more trips scheduled between now and year’s end. Koryo has not had a single cancellation; Young Pioneer had one, but insists they aren’t worried. “For every one person that cancels we probably pick up five,” says Christopher P. White, travel director for Young Pioneer. “When things like this happen, we see a surge in interest.” [Time, Dec. 1, 2013]

The arrests of Americans in North Korea are completely foreseeable, and have been a regular occurrence in recent years, despite the pleas of the State Department that Americans STAY. THE. F**K. OUT. of North Korea (not a direct quote).

The Department of State strongly recommends against all travel by U.S. citizens to North Korea (Democratic People’s Republic of Korea, or DPRK). This replaces the Travel Warning for North Korea of April 15, 2015, to reiterate and highlight the risk of arrest and long-term detention due to the DPRK’s inconsistent application of its criminal laws.

Travel by U.S. citizens to North Korea is not routine, and U.S. citizens have been subject to arrest and long-term detention for actions that would not be cause for arrest in the United States or other countries.  North Korean authorities have arrested U.S. citizens who entered the DPRK legally on valid DPRK visas as well as U.S. citizens who accidentally or intentionally crossed into DPRK territory without valid visas. The Department of State has received reports of DPRK authorities detaining U.S. citizens without charges and not allowing them to depart the country.  North Korea has even detained several U.S. citizens who were part of organized tours.  Do not assume that joining a group tour or using a tour guide will prevent North Korean authorities from detaining you or arresting you.  Efforts by private tour operators to prevent or resolve past detentions of U.S. citizens in the DPRK have not succeeded in gaining their release.

Read the entire thing if you’re even thinking about visiting North Korea, or if you’re a lawyer who represents the family of Otto Warmbier. The Warmbiers’ lawyer may also be interested in knowing whether Young Pioneers met its legal duty to warn of a foreseeable risk on its tasteful Commie-kitsch website

How safe is it?

Extremely safe! Despite what you may hear, North Korea is probably one of the safest places on Earth to visit. Tourism is very welcomed in North Korea, thus tourists are cherished and well taken care of. We have never felt suspicious or threatened at any time. In fact, North Korean’s are super friendly and accommodating, if you let them into your world. Even during tense political moments tourism to the DPRK is never affected.

See also Uri Tours, whose website said that travel to North Korea “feels incredibly safe,” after the arrest of one of its charges.

~   ~   ~
The timing of these arrests is also fascinating. North Korea deliberately chose a tense political moment to be “accommodating” to Mr. Warmbier, and to let him into its world for an extended stay. As it turns out, North Korea arrested him on January 2nd, four days before North Korea carried out its fourth nuclear test on Kim Jong-un’s direct orders

Young Pioneers sat on the news of Mr. Warmbier’s arrest for three weeks, perhaps while it ushered other American tourists through North Korea. It’s probably also true that the Obama Administration sat on the news until after the President’s State of the Union speech. In Kim Dong-chul’s case, he may have been arrested as early as last October. Pyongyang waited until after its nuke test to announce both arrests, just as it knew U.S. diplomats would be discussing new bilateral sanctions and asking the U.N. to pass a new sanctions resolution.

Mr. Warmbier’s detention comes as the U.S. seeks new sanctions at the United Nations on North Korea following its latest nuclear test on Jan. 6. Pyongyang has called its bomb test a necessary measure for self-defense and repeated its desire for the U.S. to offer a peace treaty to formally end the Korean War.

The U.S. says North Korea should first abide by its previous commitments to denuclearize.

Pyongyang has in the past used detainees to try to initiate diplomatic exchanges with Washington. In 2014, North Korea called for a high-level U.S. delegation to come and discuss the release of two Americans then under detention. [Wall Street Journal, Alastair Gale]

President George W. 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. 

~   ~   ~

As the U.S. and the U.N. seek ways to tighten the financial pressure on North Korea, they should be mindful that each year, tourism pours $43 million in cash into the coffers of a regime that may well be using that money to build nuclear weapons and missiles. Kim Jong-un may also be using tourists’ money to perpetuate what a U.N. Commission called “crimes against humanity, arising from ‘policies established at the highest level of State,’” including “extermination, murder, enslavement, torture, imprisonment, rape, forced abortions and other sexual violence, persecution on political, religious, racial and gender grounds, the forcible transfer of populations, the enforced disappearance of persons and the inhumane act of knowingly causing prolonged starvation.” 

So if American tourism in North Korea is such a policy headache for the government, why doesn’t it just ban travel to North Korea like it banned travel to Cuba for so many years? Because that would probably require an act of Congress. Most of the executive branch’s sanctions authorities come from statutes, such as the Trading With the Enemy Act of 1917, and the International Emergency Economic Powers Act of 1977, or IEEPA. Both statutes harness the Treasury’s power to block dollar-denominated transactions, which I explained in this paper for the Fletcher Security Review last year.

Unfortunately, President George W. Bush lifted TWEA sanctions against North Korea in 2008, and a carve-out in section 203(b)(4) of the IEEPA denies the President “the authority to regulate or prohibit, directly or indirectly . . . any transactions ordinarily incident to travel to or from any country.”

The authority for the Cuba travel ban, by contrast, came from the TWEA and other statutes, including Section 910 of the Trade Sanctions Reform and Export Enhancement Act. Even the broadest executive order the President has at his disposal doesn’t give the President clear authority to ban travel to North Korea (although a clever lawyer might, in theory, exploit the weasel-word “including” to reimpose TWEA sanctions without fear that Congress would object).

The greater problem is that President Obama simply lacks the will to impose tough sanctions on North Korea. Congress — and this is equally true of both Democrats and Republicans when it comes to North Korea — does not suffer from the same deficiency. If Congress wants to ban travel to North Korea, it could enact language like this, with little fear that the President would actually veto it:

———————————————————————-

SEC. ____. LIMITATIONS ON TRANSACTIONS RELATED TO TOURIST ACTIVITIES IN NORTH KOREA.

   (a) Notwithstanding section 203(b)(4) of the International Emergency Economic Powers Act of 1977 (Pub. L. 95-223) the President —

      (1) may prohibit, and many deny any license or permit authorizing, any transaction incident to travel to, from, or within North Korea for tourist activities.

      (2) shall prohibit, and shall deny any license or permit authorizing, any transaction incident to travel to, from, or within North Korea for tourist activities, unless the President has, not more than 180 days prior to such authorization, certified to the appropriate congressional committees that U.S. citizens or lawful permanent residents traveling in North Korea —

          (A) are not at significant risk of arbitrary arrest and detention; and

          (B) are not at significant risk of detention under conditions dangerous to the life or health of a person.

   (b) Tourist Activities defined.—In this section, the term “tourist activities” means any activity with respect to travel to, from, or within North Korea for purposes other than travel for humanitarian, journalistic, educational, diplomatic, consular, or official U.S. government purposes.

———————————————————————-

You’re welcome, Congress!

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Jeffrey Fowle’s mission to N. Korea no dumber than the rest of them

In this age of click-bait listicles, The Atavist has published a rare example of real journalism, in which reporter Joshua Hunt traces the story of Jeffrey Fowle from its origins (in a dream!) to its anticlimax. Fowle, you will recall, is the Ohio municipal worker who went to North Korea, “certain that God had a plan for him,” left a Korean-language Bible next to a toilet in Chongjin, got himself arrested and detained for six months, and nearly lost both his job and his wife. Later, asked if it was all worth it, Fowle answers in the affirmative.

Fowle’s master plan was as follows: (1) smuggle one Korean-language Bible through customs at Sunan Airport, (2) lug it across North Korea, in his jacket pocket, under the watchful eyes of his minders; (3) leave it in some discreet place, to be found by some random person who is totally not a Ministry of Public Security Officer tracing his every step; (4) wait for said person to experience a miraculous conversion; (5) assume that said person will propagate the transformation of the world’s most controlled society into a clandestine house church; and (6) if caught, pretend he dropped his sole link to his spiritual life accidentally.

Through sheer luck, Fowle achieves steps 1 and 2, but things come badly unglued at step 3. To buy himself time, Fowle places the Bible under a wastebasket, rendering his whole cover story (see step 6) implausible. The reader is left with an impression of a man driven more by the best of intentions than by natural gifts of intellect or common sense.

At this point, Fowle quickly learns that North Korea has a unique gift for isolating the individual — in this case, a nearly friendless man who, thanks to a combination of flawed judgments and flawed relationships, soon finds that he has no friends at all. As we’ll soon see, Fowle’s relationship with Koryo Tours turns out especially badly for him. To anyone of at least average judgment, the ethical context foreshadows this.

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Admittedly, the idea that you can change a society — especially this one — by leaving a Bible next to a toilet for the janitorial staff sounds dumb enough. It might be the perfect story for coastal elites to titter at the Bible-thumping flyover loser.

To be sure, Fowle emerges from the story as a pathetic figure, but I can’t say that his master plan sounds any dumber than more secular messianic master plans that have gained widespread elite acceptance. Behind every flawed engagement theory lurks the premise that liberal white people (or liberal Koreans) radiate magical sunbeams of love that melt icy hearts. Their assumptions about the penetration of their ideas through the elaborate defenses of the State Security Department and the Ministry of Public Security are every bit as irrational as Fowle’s, and they’ve done far more then the likes of Fowle to perpetuate the very controls they claim to be subverting, through billions of dollars in aid and profitable trade.

We see these theories expressed in shallow or self-serving arguments that tourism is changing North Korea or improving the lives of its people, or that the Associated Press can teach KCNA propagandists to be objective journalists. Who is supposed to be changing who again?

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To me, the most laughable master plans are those of the messianic capitalists — many of whom come from the political left in their home countries — who think they have a lot to teach North Korean arms dealers and money launderers about profits, international banking, and the global economy.

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Predictably, and immediately after Fowle finishes “using the toilet,” the MPS minders have traced his every step and found his “lost” Bible, complete with a (legitimately) forgotten picture of his family. At this point, Koryo Tours’ Simon Cockerell becomes the first one to interrogate the tourists, and is the one who extracts the confession from Fowle that he dropped the Bible.

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Cockerell doesn’t admit that he immediately ratted Fowle out to the North Koreans, but any reader can infer as much. Depending on who was watching, Cockerell might have pulled Fowle aside and told him to shut his mouth, but he didn’t. Instead, he effectively became a willing interrogator — effectively, just another MPS minder. Cockerell and others in his industry often argue that their presence is changing North Korea, but the opposite seems closer to the truth.

Meanwhile, Fowle continued to dig himself into a deeper hole.
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I’ll let Robert J. Samuelson close this post.

Ever since World War II, our foreign policy has rested on an oft-silent presumption that shared prosperity is a powerful and benevolent force for social stability, peace and (often) democracy. All the emphasis on free trade and globalization is ultimately not a celebration of economic growth for its own sake. It’s a means to larger ends of social cohesion and political pluralism.

In this, we have mostly projected our own domestic experience onto the world at large. Americans’ obsession with material progress — which seems excessive and even vulgar to many — is largely what has enabled us to be a multiethnic, multicultural, multiracial and multireligious society. Everyone can strive to get ahead. There’s a large common denominator. [….]

The second defect is more unnerving and dangerous. It is the true Achilles’ heel of American foreign policy: Significant blocs of humanity ignore or repudiate our faith in the power of shared prosperity. They put other values and goals first. Nationalism is one obvious alternative — Putin’s Russia being a good example. The case of China is more complicated. Although it is obsessed with economic growth, it’s also indulging a nationalistic urge to reassert itself on the global stage. [Robert J. Samuelson, Washington Post]

 

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Tourists put $43M in Kim Jong-Un’s pockets last year

Despite a string of high-profile arrests of foreign tourists recently, Darwin’s light continues to draw slummers — and record hauls of their money — into Pyongyang:

North Korea earned tens of millions of dollars from foreign tourists in 2014, around half of the hard currency it won from the lucrative inter-Korean industrial park, a researcher said Sunday.

North Korea’s income from foreign tourists is estimated at US$30.6 million to $43.6 million last year, considering about 95,000 Chinese tourists and 5,000 tourists from Western countries visited the country, Yoon In-ju of the Korea Maritime Institute said in a paper.

North Korea’s annual income from the Kaesong Industrial Complex in the North’s border town of Kaesong, accommodating 124 South Korean firms that employ more than 50,000 North Korean workers, reached $86 million in 2014. [Yonhap]

For years, the peddlers of North Korea tours have fended off moral and ethical questions about their funding of a brutal, repressive regime by saying that their contribution to Pyongyang’s finances was negligible.

Trips aren’t cheap either – four nights can cost around £1,000 excluding flights – and it is a profitable enterprise for all involved. But those working in the industry argue that the money trickling through to the government is small – and if they were to cease operations tomorrow the impact on the regime would be negligible. [The Guardian]

Few journalists ever asked the tour companies to show us their books, but now we know that tourism is, in fact, a non-negligible source of income for the regime. It’s time to take a fresh look at whether the tour companies’ payments to Pyongyang violate U.N. Security Council sanctions, which prohibit the payment of funds that “could be used” for North Korea’s WMD programs or luxury goods purchases.

“11.  Decides that Member States shall, in addition to implementing their obligations pursuant to paragraphs 8 (d) and (e) of resolution 1718 (2006), prevent the provision of financial services or the transfer to, through, or from their territory, or to or by their nationals or entities organized under their laws (including branches abroad), or persons or financial institutions in their territory, of any financial or other assets or resources, including bulk cash, that could contribute to the DPRK’s nuclear or ballistic missile programmes, or other activities prohibited by resolutions 1718 (2006), 1874 (2009), 2087 (2013), or this resolution, or to the evasion of measures imposed by resolutions 1718 (2006), 1874 (2009), 2087 (2013), or this resolution, including by freezing any financial or other assets or resources on their territories or that hereafter come within their territories, or that are subject to their jurisdiction or that hereafter become subject to their jurisdiction, that are associated with such programmes or activities and applying enhanced monitoring to prevent all such transactions in accordance with their national authorities and legislation; [….]

 

“14.  Expresses concern that transfers to the DPRK of bulk cash may be used to evade the measures imposed in resolutions 1718 (2006), 1874 (2009), 2087 (2013), and this resolution, and clarifies that all States shall apply the measures set forth in paragraph 11 of this resolution to the transfers of cash, including through cash couriers, transiting to and from the DPRK so as to ensure such transfers of bulk cash do not contribute to the DPRK’s nuclear or ballistic missile programmes, or other activities prohibited by resolutions 1718 (2006), 1874 (2009), 2087 (2013), or this resolution, or to the evasion of measures imposed by resolutions 1718 (2006), 1874 (2009), 2087 (2013), or this resolution; [U.N. Security Council Resolution 2094]

Whether the tour companies are violating U.N. sanctions, and the domestic laws of the countries from which they operate, depends on the answers to questions that regulators and reporters aren’t asking: How do these tour companies pay Pyongyang? What currencies do they use? Most importantly, where does the money go, and what is it used for? Governments have ethical, moral, and legal obligations to ask those questions, and to demand clear answers backed by credible evidence. It’s past time for U.S., U.K., and EU authorities to audit the tour companies, and to block payments by any third-country tour companies that refuse to show that they’re complying with U.N. sanctions.

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2016 Defense Authorization Act would define N. Korea as state sponsor of terrorism

On Sunday, I spotted this interesting Yonhap headline: “U.S. defense bill calls N. Korea terror sponsor.” Given my own recent work on this subject, I was curious about the effect of this provision, so I pulled up the text of the bill, H.R. 1735, the National Defense Authorization Act for Fiscal Year 2016. The versions on Thomas and Congress.gov don’t yet reflect the amendment, but clues from the Yonhap piece led me to the amendment in question, offered by Rep. Duncan Hunter (R, Cal.). The “almost identical” language of H.R. 1498 yields the amendment’s operative text.

No, the amendment would not re-list North Korea as a state sponsor of terrorism, or invoke any of the sanctions that an SSOT listing would bring; only the Secretary of State can do that. Instead, the bill creates an “Interagency Hostage Coordinator” to lead a federal interagency task force, and “coordinate and direct all activities of the Federal Government” to “secure the release of United States citizens who are hostages of hostile groups or state sponsors of terrorism.” The legislation does not define the term “hostage,” but does define “state sponsor of terrorism.” Here’s what got Yonhap’s attention:

(3) STATE SPONSOR OF TERRORISM.—The term “state sponsor of terrorism”—

(A) means a country the government of which the Secretary of State has determined, for purposes of section 6(j) of the Export Administration Act of 1979, section 620A of the Foreign Assistance Act of 1961, section 40 of the Arms Export Control Act, or any other provision of law, to be a government that has repeatedly provided support for acts of international terrorism; and

(B) includes North Korea.

The Hunter amendment isn’t non-binding “sense of Congress” language; it does something. That something, however, is to change the staffing of our hostage negotiation team by putting those negotiations under the control of a new coordinator. The amendment does not invoke any sanctions against these SSOTs, but Congress is clearly making a symbolic point here. It’s concerned about the detentions of Merrill Newman, Jeffrey Fowle, Matthew Todd Miller, Kenneth Bae, Laura Ling, Euna Lee, Aijalon Gomes, Robert Park, and others (we’ll call them “the detainees”). It wants Pyongyang to know that the unjust detentions of Americans will carry consequences. It’s fair to assume that Congress is also sending a message to the State Department that North Korea should go back on the SSOT list. All of that is good. Congress is correct about all of these things, including the fact that North Korea has repeatedly sponsored acts of international terrorism.

In another sense, however, these detentions may not be the best vehicle for pressuring State to put North Korea back on the list, especially when so many more deserving vehicles are whizzing past us. For example, the threats that drove “The Interview” from theaters across America meet the legal definitions of “support” and “international terrorism,” and would be a far better reason to re-list North Korea.

I considered, but ultimately decided against, discussing the detentions of Bae, Miller, Newman, and others in “Arsenal of Terror.” In the report, one theme I discuss extensively is the lack of a single coherent definition of “international terrorism,” although it is possible to assemble a lowest common denominator definition from three separate statutes, informed by State Department “Country Reports on Terrorism,” to the extent those reports are consistent with the statutory language. At page 96, I proposed a codified definition of “international terrorism,” ready to be inserted into the Export Administration Act, that consists of five elements.

(9) the term “international terrorism” means any act that—

(A) is unlawful under the laws of the place where it is committed;

(B) involves a violent act; an act dangerous to human life, property, or infrastructure; or a threat of such an act;

(C) involves the citizens or the territory of more than one country;

(D) is perpetrated by a subnational group or clandestine agent against a noncombatant target; and

(E) appears to be intended to intimidate or coerce a civilian population; to influence the policy of a government by intimidation or coercion; or to affect the conduct of a government.

To call these detentions “terrorism” seems iffy under two elements of this definition. First, in a place where everything that is not absolutely compulsory is absolutely forbidden,* just about any idle expression of thought is unlawful, and is a basis for arrest under “the laws of the place where it is committed.” The correct answer to this problem is not to expand the definition of terrorism in ways that will lead to perverse results in other contexts; the correct answer is to keep Americans out of North Korea (but more on that in a moment). Second, I don’t see clear evidence that North Korea’s conduct meets the intent element of (9)(E). Yes, Pyongyang was probably using the detainees as “hostages” to some degree, and I’m not alone in speculating that it was, but speculation without more isn’t evidence. Evidence might include statements by North Korea demanding specific financial or political benefits in exchange for the detainees’ release. I haven’t seen that evidence.

In pushing State to re-list North Korea, of course, Congress gets the greater truth right, which State has been getting wrong for a decade or more. As a matter of fact, law, and policy, North Korea should be back on the list, and sanctions for SSOTs should be stronger. There is also an important symbolic value in treating North Korea like a state sponsor of terrorism. Having said that, however, I’m not sure how this provision will make our negotiations more successful if it doesn’t give our diplomats more leverage. Not that anyone asked me, but I can think of another way to do that.

Under Section 203(b)(4) of the International Emergency Economic Powers Act, the President lacks the authority to ban transactions incident to tourist travel to a targeted jurisdiction. This doesn’t mean it can’t be done, however. There are tourist travel sanctions against Cuba because Congress passed special legislation to do that. If Congress really wants to put teeth into this particular provision, it could give the Hostage Coordinator the authority to recommend, and for the Secretary of State to find, that a state is uncooperative in releasing U.S. hostages detained without proper legal justification, that travel to that state presents an undue safety risk to U.S. citizens, and that a similar travel ban should apply to that jurisdiction until the hostage situation resolves.

The blocking of financial transactions incident to tourist travel would be a powerful deterrent, and strong diplomatic leverage. The language would not only cover all tourist travel by Americans, but it would also cover all tourism-related transactions denominated in dollars by anyone, regardless of nationality.

~   ~   ~

* Credit to the late Christopher Hitchens.

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Suki Kim responds to critics of her decision to go undercover

It’s ironic to read how the people at PUST–who’ve suppressed their religious, political, and moral beliefs to accommodate and assist the world’s most oppressive regime, and also, to suppress the truth about it–have challenged Suki Kim’s ethical decisions. But some of those criticisms might be more valid coming from other sources, so Kim addresses them on her web site. I can’t disagree with Kim’s justification that overt journalism has failed us.

There is a long tradition of “undercover” journalism—pretending to be something one is not in order to be accepted by a community and uncover truths that would otherwise remain hidden. In some cases, this is the only way to gain access to a place. North Korea, described only recently by the BBC as “one of the world’s most secretive societies,” is such a place. [….]

I did not break any promises. I applied to work at PUST under my real name. I was not asked to sign and did not sign any kind of confidentiality agreement, nor did I ever promise not to write about PUST.

Meanwhile, in the six decades since Korea was divided, millions have died from persecution and hunger.  Today’s North Korea is a gulag posing as a nation, keeping its people hostage under the Great Leader’s maniacal and barbaric control, depriving them of the very last bit of humanity. So what are our alternatives? How much longer are we going to sit back and watch? To me, it is silence that is indefensible.  [Suki Kim]

All valid points, but it also occurs to me that had Ms. Kim been caught, I’d probably be railing against her now, which doesn’t seem completely fair somehow. While I think Ms. Kim has told us important things about North Korea—and especially important things about the ethical compromises that some foreigners have made with its regime—I still wouldn’t advise anyone to try anything like this again.

I’d greatly prefer it if the journalists who are there now (and yes, I mean the AP) made more of an effort to report the news from North Korea objectively, rejecting the regime’s financial entanglements and editorial constraints. Failing that, they would do better to fund, equip, train, and tap into existing guerrilla journalism.

I doubt, of course, that we really know the whole story about PUST, either–who its faculty are, what they’re really doing there, who they’re teaching what to, how much money the regime makes from them, and what skills those young elites are really learning. That’s why I’ll keep my mind open just a sliver until one day, when James Kim reveals just what they were really doing there all along.

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The North Korea crazy train keeps on a-rolling

So the views of Arturo Pierre Martinez that interest me aren’t his views on Iraq, Ferguson, or even North Korea, but the views that explain him best, which were buried at the bottom of CNN’s report:

He also talked about unidentified flying objects, CIA involvement in the cocaine trade, “ultrasonic” devices that cause people to hear voices and experience bodily discomfort and how the Western news media unfairly portrayed North Korea. [CNN]

You can see a video clip here, if you care to. Martinez’s mother relates his sad history:

Martinez’s mother, Patricia Eugenia Martinez of El Paso, said their son was bipolar and earlier tried to enter North Korea by swimming across a river, only to be stopped and shipped back to the United States, where he was placed in a California psychiatric hospital.

“Then he got out,” she said. “He is very smart and he got the court to let him out and instead of coming home to us he bought a ticket and left for China. He took out a payday loan online and left for China.”

There’s nothing crazy about believing that American police, intelligence officers, or contractors who kill detainees or arrestees should face prosecution for it, that there should be strict limits on the power of government to harm even the world’s worst people to protect innocent life, or that we should be debating all of these things openly and vigorously. Which is why we are.

You don’t even have to be crazy to sympathize with North Korea, although, as one astute long-time reader wrote to me a few weeks ago, “I’ve sort of suspected for a while … that the pro-Pyongyang lobby is full of people who could really benefit from talking to someone.” Agreed.

What marks you as crazy is believing that Pyongyang is a suitable place to discuss those things. What is it about North Korea that attracts the irrational, the unstable, the dangerously naive, those who lack good judgment (see also, Item 4) … and whatever the hell you call this?

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[Getty Images]

At this point, I wouldn’t blame the North Koreans for concluding that this entire country is one big free-range artisanal freak show. There are times when I wonder myself.

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Suki Kim recalls a “good student” in Pyongyang

Writing in The New York Times, Kim recalls a young North Korean student who made her uncomfortable with his risky questions about government in America:

What I had just described was, more or less, democracy. I could not read his expression, but he thanked me and excused himself.

That evening, I discussed my growing fears about the student’s motives with my teaching assistant. There was nowhere we would not be overheard, so we took a walk around campus, hoping it would look as though we were discussing the day’s lesson, stopping occasionally to take pictures of each other. Maybe, I said, he was on a mission to earn some sort of reward by trading information about us.

“But what if that’s not the case?” my assistant asked. “What if he’s genuinely curious?”

The second possibility made us both grim. What if we were the instigators of his doubt? What if he was starting to think that everything he had known thus far was a lie? [N.Y. Times]

If the student wasn’t a counterintelligence plant, Kim would make one of the more credible cases I’ve yet seen for permissive engagement. Still, there must be other ways of reaching young North Koreans–both inside Pyongyang and beyond–that are less risky for both the teachers and the students.

To know whether the benefits of PUST are worth the risks, I’d have to know how much money PUST is pouring into the regime’s bank accounts, how many other teachers are propagating equally subversive views, how many students get to hear those views, and just how open the students really are to different forms of government. All of those things are unknowable to us.

It’s hard to imagine that PUST has a more favorable cost-benefit ratio than leaflet balloons, much less radio broadcasting.

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No, this does not mean it’s safe to go to North Korea.

Director of National Intelligence James Clapper has left Pyongyang with U.S. hostages Kenneth Bae and Preston Somerset Matthew Todd Miller, who voluntarily presented himself to the North Koreans as both a prisoner and a spy.

I’m somewhat sympathetic to Bae, who seems to have been moved to take undue risks by the suffering of the North Korean people around him. Bae has young kids, and nothing Bae did could possibly justify having his kids grow up without their father.

As for Miller, his return and the thought of his possible procreation causes me to mourn for our genetic future. If there was any quid-pro-quo for his release, it would draw immediate comparisons to Bowe Bergdahl. As if to preempt those suspicions, the State Department has already denied that there was any:

The State Department subsequently told CNN that Clapper, who visited Pyongyang as an envoy of President Barack Obama, did not make a ”quid pro quo” offer for the men’s release. [….]

“The United States will probably not admit to talking with North Korea, especially under these circumstances,” said North Korea watcher Christopher Green, also international editor at the Seoul-basedDaily NK.

“We’ll likely never be told the content of the dialogue that goes on in Pyongyang, either, unless North Korea reveals it in a fit of pique at a later date. But at the end of the day James Clapper is a very serious man, and his presence cannot be overlooked,” added Green. [NK News, Chad O’Carroll]

I report and you decide, but I’ve heard the State Department say too many things that later turned out to be false to take their word as given, and North Korea never gives anything away for free. My thoughts now turn to the U.N. General Assembly and Security Council, where U.S. leadership could make the difference between U.N. action that stalls, and action that mobilizes the world to stop North Korea’s crimes against humanity.

Of course, State could always prove me wrong, with a forceful U.S. initiative in favor of an ICC referral of Kim Jong Un.

~   ~   ~

Update: Similar thoughts here, at Korea Real Time.

~   ~   ~

Update 2: There is something about Kenneth Bae’s sister, Terri Chung, that’s so likable and down-to-earth that I hope this isn’t the last we’ll hear from her. He’s lucky to have her as a sister. She was a tremendous spokeswoman and champion for him.

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Now, that wasn’t very smart, was it, Mr. Fowle?

My working assumption about Jeffrey Fowle had been that no believing Christian would have intentionally left a Bible next to a toilet, but evidently, I was mistaken about that. I wonder whether the Bible in question was even translated into Korean, but either way, Fowle’s tactical decision to waste thousands of dollars from his modest municipal salary to nonchalantly place one Bible next to a toilet … in Chongjin puts him firmly in the same category as the South Korean missionaries who chartered a shiny new bus to Outer Talibanistan without a Pashto speaker among them.

Fowle did catch one lucky break–he has been un-fired from his job, on condition that he stay the f … stay out of North Korea, and presumably Afghanistan, Yemen, Somalia, and Syria, for good measure.

I can only hope that during Fowle’s five months in the Pyongyang Hilton, he had enough time to reconsider the merits of his strategy, and perhaps even to dissuade others from following suit. Perhaps this is the beginning of a new career as a de-motivational speaker.

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The main legacy of Fowle’s stunt—along with the “adventures” of two other American hostages—was to help North Korea extort the U.S. government, and to force our Special Envoy for Human Rights, Robert King, to spend the better part of year playing hostage negotiator instead of, say, pushing the U.N. to denounce North Korea’s oppression of Christians. Nice going, guys.

Look, if you really want to help fight religious persecution in North Korea, join The Jubilee Campaign. If you want to help slip a message into North Korea past the censors, for God’s sake, don’t go to North Korea, spend a third as much money on a vacation to Ft. Lauderdale and donate the other two-thirds to Free North Korea Radio, through the North Korean Freedom Coalition.

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Freed, fired Fowle flies to family

North Korea has released Jeffrey Fowle, one of its three American hostages. We learn this from, among other sources, an AP report — filed from Washington, following a State Department announcement.

Hey, at least AP Pyongyang got a picture of the Defense Department plane on the runway, next to what looks like one of Air Koryo’s Il-76s in camo paint.

In addition to spending five months in North Korea’s gulag lite, Fowle lost his job during his confinement. He can’t sue North Korea because of the Foreign Sovereign Immunities Act, but I do hope he at least sues the company that sold him his tour. Also, as taxpayers, we deserve our own cut of the proceeds for the cost of that flight, and for anything we paid Kim Jong Un to ransom this schlamassel out.

It was unclear whether the U.S. and the North had negotiated Fowle’s release or if the North was offered any concession from the U.S. in exchange for the release.

But State Department deputy spokeswoman Marie Harf said at a regular press briefing that she will “let the North Koreans speak for themselves about why they decided to do this, why now,” strongly suggesting that the release was a unilateral decision by the North, not a product of negotiations between the two countries. 

That’s not exactly a denial, now, is it?

The widespread view has been that the North wants to use the three Americans as leverage to reopen negotiations with Washington. Pyongyang has indicted (sic) such intentions, displaying the three before U.S. TV cameras in interviews where they asked their government in Washington to send a high-level special envoy to Pyongyang.


I see that I share a widespread view, but I promise not to make a habit of it. Anyway, let it be a lesson to good people everywhere to stay the f … to stay out of North Korea. Hat tips and thanks to several of you.

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Update: This is a denial. Secretary of State Kerry flatly denies any “quid pro quo.”

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Jeffrey Fowle just lost his job for being in a North Korean prison instead of at work.

“We had hoped this action would not be necessary,” states a letter dated Sept. 16 from Moraine City Manager David Hicks, “but in light of your continued incarceration in North Korea resulting from your (a) unilateral decision to travel to North Korea against the advice of your family and acquaintances; and (b) running afoul of North Korean restrictions on ‘anti-government’ activities, and as stated, the exhaustion of your accrued vacation time, we have to act in the best interests of the city of Moraine and its residents.” [WHIO News]

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