The silver lining in State’s 2016 terrorism report: at least they quit lying to us

The State Department published its 2016 Country Reports on Terrorism today, and contrary to the evidence, the law, and my predictions, Secretary Tillerson did not re-list North Korea as a state sponsor of terrorism. I won’t repeat all of the reasons why I believe that this was the wrong decision; you can read the blog post here, or the 100-page, peer-reviewed report hereIf I wrote an update to the longer version — and perhaps State’s report is a reason to do that — I could add more recent evidence that would support a re-listing, but it should be obvious by now that State isn’t basing its decisions on the evidence or the law. 

In no sense is this report a serious examination of the evidence that Pyongyang sponsored terrorism in calendar year 2016. Its four terse paragraphs (which you can read below the fold) do not mention the still-unexplained axe-murder of Pastor Han Chung-Ryeol, who had aided North Korean refugees in China; reports that it ordered the assassination of prominent defector Ko Young-hwan in South Korea; its promotion of the accomplished terrorist Kim Yong-Chol to manage its relations with Seoul; its call for the murder of South Korea’s then-President; or any of its threats to nuke pretty much everyone. 

Mind you, this makes 2016 a slow year for terrorism from North Korea, compared to how 2017 is going so far.   

At the same time, the administration isn’t boxing itself in, either. State’s report dryly recounts the narrow legal basis for President Bush’s decision to remove North Korea from the list of state sponsors of terrorism on October 11, 2008 (discuss among yourselves) and then skims the wave tops of some of the lesser reasons why perhaps it just might be re-listed: it harbors Japanese Red Army hijackers, holds Japanese abductees, does not cooperate with counterterrorism efforts, and has failed to address concerns about terrorist financing and money laundering. It offers no arguments or justifications that would contradict a decision to re-list Pyongyang tomorrow.

Thankfully, the report also spares us the flagrant, oft-repeated lie that North Korea is not known to have sponsored acts of terrorism since 1987, something the State Department had repeated in these reports for years and that may have been the single worst thing about them.

Next year’s report may be more telling. Then, State will have to address Pyongyang’s February 2017 murder of Kim Jong-Nam’s face (and the rest of him) with VX in that airport terminal crowded with parents, grandparents, babies, and children, and its claim of a universal and plenary right to murder whoever, wherever starting with former President Park Geun-Hye.

The State Department is fond of saying that an SSOT listing of North Korea would be purely symbolic. As I say whenever I hear this, symbols can be powerful things, and no regime places a greater value on symbols than the one in Pyongyang, whose very survival rests on symbols, myths, and illusions that hold its subjects in awe of those who rule over them. State’s decision will also be symbolic of the reasons for Americans — and their elected representatives — to withdraw their confidence from the U.S. Department of State. That withdrawal of confidence is already evident in the Congress, which will continue to push State to explain a decision that its officials could not defend under competent congressional questioning. Fittingly, Congress’s answer will likely be to make State’s analysis increasingly “symbolic” (or irrelevant) by legislating the very consequences, and withdrawing the discretion, that State refuses to apply itself.  

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N. Korea just threatened to kill S. Korea’s ex-president & any of its critics anywhere

Here at OFK, we collect small bits of North Korea trivia, such as the fact that President Bush removed North Korea from the list of state sponsors of terrorism on October 11, 2008, and the related fact that the State Department’s official position is that North Korea has not sponsored acts of terrorism since 1987.

Discuss among yourselves.

In other news, the official North Korean “news ” agency, KCNA, has just published a call by the North Korean government for the extradition of former South Korean President Park Geun-Hye and the former head of South Korea’s National Intelligence Service to Pyongyang, where it has been decided, in absentia, that they are to receive “capital punishment” over an alleged plot to assassinate Kim Jong-Un.

1. We declare at home and abroad that we will impose death penalty on traitor Park Geun Hye and ex-Director of the puppet Intelligence Service Ri Pyong Ho and their groups, criminals of hideous state-sponsored terrorism who hatched and pressed for the heinous plot to hurt the supreme leadership of the DPRK.

Further on, I’ll examine how North Korea defines terrorism, but it may be helpful to begin with a more rigorous and predictable definition. For an act to be terrorism under U.S. law, it must —

  1. be unlawful under the laws of the place where it is committed;
  2. involve a violent act; an act dangerous to human life, property, or infrastructure; or a threat of such an act;
  3. be perpetrated by a subnational group or clandestine agent;
  4. be directed against a noncombatant target; and
  5. appear 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.

Although this definition is based on American law and precedent, most civilized nations define the term in similar ways. (Good luck finding an internationally agreed definition of terrorism, for reasons that should be obvious.) Also, that Ms. Park has been found guilty and sentenced to death in absentia without so much as prior notice of a trial might raise a procedural concern or two for the extradition hearing.

Just as I predicted, as Pyongyang perfects its nuclear capability, it is growing more aggressive and more extraterritorial with its threats (in this case, through the use of journo-terrorism).

IS men, to say nothing of Park Geun Hye and Ri Pyong Ho group, can never make any appeal even though they meet miserable dog’s death any time, at any place and by whatever methods from this moment.

The south Korean authorities should hand Park Geun Hye and Ri Pyong Ho group, organizers of the hideous international terrorist crimes, over to the DPRK without delay under international convention and laws and regulations.

The south Korean authorities have to judge themselves what adverse effect their act of shunning this crucial demand related to the dignity of the supreme leadership of the DPRK will have on the future north-south relations.

But KCNA does not stop here. It also threatens to “ferret out” Park and Ri “wherever they might be on the earth” and “mercillessly cut their dirty bodies to pieces.” 

The supreme leadership of the DPRK is a symbol of the dignity and might of the DPRK and it represents the life and destiny of the army and people of the DPRK.

It is the resolute will of our army and people regarding it as their life to safeguard the headquarters of the revolution to ferret out those keen on hurting the security of the DPRK supreme leadership wherever they might be on the earth and mercilessly cut their dirty bodies to pieces.

Clearly stipulated in the DPRK Criminal Code is that all those who organized, took part or pursued state-sponsored terrorism targeting the supreme leadership of the DPRK are subject to criminal prosecution irrespective of nationality and that no statute of limitations is applicable to such crime.

Just to be clear, then, Pyongyang is threatening to send its agents to South Korea to murder and dismember the former president of the Republic of Korea. And as you know by now, because you’ve stopped to read the links with which I’ve laboriously braced this argument, North Korea has sent assassins to commit murders in the South before. They’ve been caught and pled guilty in South Korean courts.

We officially declare that if the U.S. and the south Korean puppet forces again attempt at state-sponsored terrorism against the supreme leadership of the DPRK, we will track down those who organized, took part in and pursued the plot and carry out the summary execution of them without advance notice under wartime law.

But at least Pyongyang is only threatening those who take part in or plot “attempt[s] at hideous state-sponsored terrorism targeting the supreme leadership of the DPRK.” Except that on further research, we soon learn that North Korea has defined “terrorism” and “state-sponsored terrorism” to include everything from parody to criticism to legislation to the enforcement of UN sanctions. My  search of news reports, the S.T.A.L.I.N. archive, and the excellent KCNA Watch Twitter feed yielded the following examples:

  • In 2014, Pyongyang accused the United States of “agitating terrorism” for allowing Seth Rogen to make “The Interview,” a stupid movie parodying His Porcine Majesty.
  • In July 2016, it accused South Korea of terrorism for granting asylum to the Ningpo 12, as it was obligated to do under the Refugee Convention.
  • In March of this year, it accused Seoul of terrorism for alleged surveillance and blacklisting of its domestic political opponents — something that would be authoritarian and worthy of condemnation by someone with more stature that the government of North Korea on such topics, but would not qualify as terrorism (the acts are not violent, and to not appear to be intended to influence the conduct of civilians through intimidation).
  • In May, it called defensive military exercises and sanctions (presumably including those approved by the U.N. Security Council) terrorism.
  • In June, it accused the CIA and the South Korean National Intelligence Service of “state-sponsored terrorism” for allegedly planning preemptive strikes against North Korea (which would be an act of war by uniformed, conventional forces and a catastrophically terrible idea, but not terrorism).
  • At other times, it’s hard to tell what Pyongyang is even calling terrorism.

My guess, however, is that the specific pretext for Pyongyang’s latest threat is its claim from May 13th, that the CIA and the NIS “hatched a plot to commit a state-sponsored terrorism targeting the supreme leadership of the DPRK by use of bio-chemical substance.” Now, to state the obvious, I am … skeptical of this claim. I could cite many examples of Pyongyang lying flagrantly, but the most obvious one is its claim that the NIS kidnapped the Ningpo 13 (because that claim was tested in court and rejected, or so we can safely assume despite the confidentiality of the proceedings, because the women were granted asylum). The alleged modus operandi also sounds suspiciously like Pyongyang’s own assassination of Kim Jong-Nam, news of which spread rapidly inside North Korea and shocked even North Koreans. Now, with the rising reaction to the death of Otto Warmbier, Pyongyang might be projecting to change the subject.

For the sake of argument, however, let’s assume that Pyongyang’s allegation is true. If so, a plot to slime His Porcine Majesty with some toxin might qualify as terrorism under certain circumstances. The North Korean allegation suggests a violent act that could only be perpetrated by clandestine agents, so assume we meet those elements. If the alleged attack was meant to disrupt a military command structure during hostilities it would not meet the intent element, but let’s assume that this was to be a political murder by stealth. This might qualify, except that Kim Jong-Un isn’t a noncombatant; he’s the commander of North Korea’s military junta. So the merits of the “terrorism” claim would depend on whether this alleged plot was to be carried out for strictly political purposes or to disrupt military command and control as part of an armed conflict. (Suspend your disbelief that North Koreans would be terrorized, as opposed to ebullient, as the demise of His Porcine Majesty.) Of course, as peace treaty advocates point out unceasingly, North Korea is technically still at war with both the United States and South Korea. As they tend not to point out so unceasingly, Pyongyang itself as repeatedly repudiated the 1953 Armistice.

For the same reason, it wouldn’t be terrorism (but would be an act of war) if Pyongyang assassinated Moon Jae-In for the purpose of disrupting South Korea’s military command structure in the course of armed hostilities. It would certainly be terrorism if Pyongyang made good on its threat to assassinate Park Geun-Hye, who is now a private citizen, in her own home. Furthermore, it is also terrorism to threaten to assassinate Ms. Park, and it’s most likely terrorism when Pyongyang says this:

Whether such crime is committed within the territory of the DPRK or outside it, we will mercilessly carry out the punishment in the name of our people in field by our style merciless punishment measure.

We make it clear once again that those who dare challenge the dignity of the supreme leadership of the DPRK should never hope of staying alive under the sky.

We do not hide that should the U.S. and the south Korean authorities defy this warning and challenge our resolute measure, they will be made to pay a dear price in an irresistible physical way.

Those dare challenging the sun of the sky can never evade divine punishment.

Pyongyang appears to be claiming the right to kill any person in any place of its choosing, for conduct that it defines broadly enough to cover anyone from a stoner filmmaker to the Secretary of Defense to a human rights activist to the Chairman of a Committee of Congress. What it all sounds like more than anything else is a pretext for the next unconscionable, murderous outrage Pyongyang is already premeditating, and that it will subsequently get away because it always gets away with everything. As Professor Lee and I predicted before and after the Sony cyberterrorist threat, our failure to respond to North Korea’s attacks on our freedom of speech would draw more and bolder attacks on our freedom of speech. That prediction is coming true. To a small but growing degree, we are all living under the shadow of Kim Jong-Un’s censorship. In that small, yet profoundly disturbing way, we are all North Koreans now.

And so, I am left to ask this: if North Korea holds our political system in contempt and means to disrupt it, why don’t we show more determination and creativity in disrupting North Korea’s own political system? With North Korea’s refusal to negotiate or coexist peacefully, and the madness of war, our options for averting nuclear war in Korea increasingly narrow down to empowering the North Korean people to end Kim Jong-Un’s misrule. What else is even remotely plausible now? And whatever the cost, if Kim Jong-Un must die so that freedom of speech can live, I know what choice I’d make.

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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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To prevent a larger hostage crisis, shut PUST down now — all of it.

The news that North Korea arrested its third American hostage over the weekend ought to change the shape of our discussion about PUST, the Pyongyang University of Science and Technology.

Kim Sang-duk, a U.S. citizen and professor at the Yanbian University of Science and Technology (YUST) in Yanji, China, was detained in North Korea on Saturday at Pyongyang’s Sunan airport, a source familiar with the case confirmed to NK News on Sunday.

Chan-Mo Park, current chancellor of the Pyongyang University of Science and Technology (PUST), said that Kim and his wife had been on his way back to China after teaching a class in International Finance and Management at the university.

“Professor Kim Sang-duk was arrested on the way out of the country yesterday (22nd),” Park told NK News over email. “From what I heard, he is being investigated for the matters that are not tied to the PUST.”

Kim joins two other U.S. citizens in detention there, 22-year-old Otto Warmbier and 62-year-old Kim Dong Chul, both of whom are serving sentences of hard labor of 15 and 10 years respectively.

An earlier report from South Korea’s Yonhap News Agency reported that Kim is a 50-something Korean-American. [NK News, Oliver Hotham]

I’ve previously written that the Commerce Department should review PUST’s licenses for scientific and technological training while leaving its medical training programs intact for now. (The same should go for OFAC’s licenses for PUST’s financial transactions with Pyongyang.) That’s not only because the experiment itself has failed. Nor is it only because PUST has been changed by Pyongyang more than it has changed Pyongyang. It’s not even because of the danger that PUST may be training North Korean hackers, although that would be a good enough reason by itself. It’s because resolutions that our U.N. Ambassador voted for require us to suspend that training pending a review.

“11.  Decides that all Member States shall suspend scientific and technical cooperation involving persons or groups officially sponsored by or representing the DPRK except for medical exchanges unless:

(a) In the case of scientific or technical cooperation in the fields of nuclear science and technology, aerospace and aeronautical engineering and technology, or advanced manufacturing production techniques and methods, the Committee has determined on a case-by-case basis that a particular activity will not contribute to the DPRK’s proliferation sensitive nuclear activities or ballistic missile-related programmes; or

(b) In the case of all other scientific or technical cooperation, the State engaging in scientific or technical cooperation determines that the particular activity will not contribute to the DPRK’s proliferation sensitive nuclear activities or ballistic missile-related programmes and notifies the Committee in advance of such determination; [UNSCR 2321]

In plain English, this language creates three categories of scientific cooperation: medical exchange, which is fine; nuclear science and the other items in 11(a), which must full-stop pending immediate 1718 Committee review; and “all other” scientific and technical cooperation, which member states are obligated under 11(b) to review to ensure they will not contribute to banned programs (note the shifting of the burden). The 11(b) review is also subject to the “suspend scientific and technical cooperation … unless” clause; thus, 11(b) requires us to suspend “all other” scientific or technical cooperation pending that review. That the U.S. government still hasn’t acted on this can only be due to the slow pace of the Trump administration’s appointments and its consequent inattention to the problem.

As far as PUST’s medical training goes, that can continue in Yanbian or other locations outside North Korea for reasons that ought to be obvious now. The other danger that has now come into clearer focus is that the other Americans on the PUST campus will also become hostages. Admittedly, as Ron White says, “You can’t fix stupid,” and the stupidity of intelligent people can be the most stubborn kind. Some of PUST’s administrators and instructors will stay in Pyongyang even if we do revoke those licenses, just as some tourists will find ways to go to North Korea even if Congress finally gets around to banning tourist travel there. What is increasingly worrisome is this question: if Pyongyang is willing to take athletes and diplomats from Malaysia hostage, despite Malaysia being a friendly country, why would Pyongyang hesitate to take any American hostage, no matter how good her intentions?

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Thomas Massie: useful idiot for Assad & Kim Jong-un, embarrassment to us all

Last year, Massie, along with fellow Republican isolationist Justin Amash of Michigan, was just one of two members of the entire U.S. Congress to vote against sanctioning Kim Jong-un (as noted yesterday, even Bernie Sanders sent a statement of support from the campaign trail in New Hampshire).

This week, Massie was one of three votes against a resolution condemning North Korea’s ballistic missile launch (the others being Amash and Walter “Freedom Fries” Jones). He was the only vote against a bill that would push the State Department to re-add North Korea to the list of state sponsors of terrorism, following the nerve agent attack at the Kuala Lumpur Airport that killed Kim Jong-nam, and for more acts of terrorism before this than I need repeat here. Now, following the Syrian government’s horrific nerve gas attack on its own people, and for the third time this week, Massie has again made himself an embarrassment to his party, to the Congress, to his country, and to history:

Massie’s words had the remarkable effect of uniting Twitchy and Salon in outrage against him. Had he stopped at asking questions about the purpose and strategy behind direct U.S. intervention, I’d have no quarrel with him (I still have questions of my own). It is Massie’s denialism and apologetics for crimes against humanity, and for those who perpetrate them, that disqualify him. Republicans should disown and primary him. Democrats should tell me where to mail my check to their nominee to unseat him.

[link]

But at least give Massie credit for consistency. Amash and Freedom Fries voted against the resolution condemning North Korea’s missile launch, but for the bill calling for North Korea to be re-added to the list of state sponsors of terrorism. If you can see any consistency between those two votes — much less with Amash’s 2016 vote against sanctions — my comments are open.

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WSJ: Feds may indict North Koreans in Bangladesh Bank fraud

This story just gets more interesting by the day:

Federal prosecutors are building cases that would accuse North Korea of directing one of the biggest bank robberies of modern times, the theft of $81 million from Bangladesh’s account at the Federal Reserve Bank of New York last year, according to people familiar with the matter.

The charges, if filed, would target alleged Chinese middlemen who prosecutors believe helped North Korea orchestrate the theft, the people said.

The current cases being pursued may not include charges against North Korean officials, but would likely implicate North Korea, people close to the process said. [Wall Street Journal, Aruna Viswanatha and Nicole Hong]

Traditionally, robbery has meant theft by means of force or intimidation. I thought this case sounded like a better fit for bank fraud until I read the Criminal Code section on bank robbery, which is much broader than the common law definition and covers the whole life cycle of the criminal course of conduct.

The FBI’s Los Angeles Field Office and the U.S. Attorney’s Office for the Central District of California have the lead, which means the indictments would most likely issue in the Central District of California (and consequently, the Ninth Circuit). It’s not an ideal place to pick venue if you’re the government. The USAO for the Southern District of New York is also investigating other bank fraud cases it suspects of being the work of the same North Korean hacking group, known as “Lazarus.”

As I noted in my report on North Korea’s sponsorship of terrorism, the U.S. government thinks the Reconnaissance General Bureau (which is designated by both U.S. Treasury and the U.N. Security Council) did the Sony cyber attack. Recent reports have also linked the code used in the Bangladesh fraud to the code used in the Sony attack. That would make the RGB a prime suspect in both attacks, which means it would have been a violation of the International Emergency Economic Powers Act (IEEPA) for anyone to knowingly engage in dollar transactions with the RGB’s agents after August 30, 2010, when that agency was first designated.

If charges are filed against alleged middlemen in the Bangladesh theft, they are expected to be similar to charges unsealed in September against a Chinese businesswoman, Ma Xiaohong, some of these people said.

That makes sense. The “Chinese middlemen” could be charged with violating the IEEPA and money laundering whether the feds can pin the bank fraud on the North Koreans or not. Here’s my post on the Ma Xiaohong/Dandong Hongxiang case, with links to the indictment and the civil forfeiture complaint.

There is, apparently, a “minority view” among the feds that the North Koreans may have sold the code to third parties without being directly involved. Depending on the evidence, that might still be a crime — most likely conspiracy to commit bank fraud or a violation of the Computer Fraud and Abuse Act, or aiding and abetting one of those crimes. That might even be a smarter charging strategy.

The report also says the Treasury Department may freeze the assets of those under investigation (I’d guess under Executive Order 13722, implementing the NKSPEA, or EO 13757, Obama’s eleventh-hour cyber executive order).

A decade ago, the feds were ready to indict North Korean officials for counterfeiting, but political pressure from the State Department got the case shelved — permanently. That was the George W. Bush administration. I don’t get the impression that the Trump administration would do any such favors for Kim Jong-un.

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Top NSA official attributes attempted $1B bank heist to North Korean hackers

The story of the Bangladesh Bank/SWIFT heist has gotten much more interesting of late. Now, not only do we have a senior U.S. intelligence official attributing it to a government, we learn that the North Koreans tried to steal nearly ….

A senior National Security Agency official appeared to confirm that North Korean computer hackers were behind a multi-million dollar heist targeting Bangladesh’s central bank last year.

Computer hackers attempted to steal $951 million, but only got away with $81 million, some of which was later recovered. After the theft, security firms quickly pointed the finger at North Korea. Other experts disputed that finding. But on Tuesday, NSA Deputy Director Rick Ledgett appeared to say North Korea was the culprit during a cryptic exchange at a Washington forum.

Speaking at an Aspen Institute roundtable, Ledgett pointed out that private sector researchers had linked the digital break-in in Bangladesh to the 2014 hack on Sony Pictures, which the U.S. government attributed to Pyongyang.

“If that linkage from the Sony actors to the Bangladeshi bank actors is accurate — that means that a nation state is robbing banks,” Ledgett said. “That’s a big deal.” [Foreign Policy]

To be clear, this isn’t U.S. government attribution, and there’s no explanation here of why Ledgett thinks the North Koreans were behind the theft, but Ledgett is described as a “30-year veteran” of the NSA who is due to retire later this year. Such a person wouldn’t ordinarily make that statement unless (1) he believed it, and (2) he was fairly certain the agency management was OK with him saying it in a public forum. In fact,  I think we’re all going to be hearing much more about why people think North Korea is now the only government that robs banks. What I’m also hoping we’ll find out is what bank accounts the money ended up in.

By attacking a bank and making off with large sums of money, North Korea can evade sanctions and obtain foreign currency, but so far, that effort has not delivered serious dividends for Pyongyang.

North Korea: tactically brilliant and strategically moronic since 1948. By the way, don’t expect SWIFT to publicly admit that its software was hacked. Standard behavior for any corporate victim of a cyberattack is to refuse to comment, or even to deny. They’re more worried about their reputations for systems security than in helping to punish hackers and hold them accountable. In most cases, hackers don’t have reputations to protect. When the hacker is a government, however, it has far more to lose by being accused of bank fraud.

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Ted Cruz introduces Senate bill to re-list N. Korea as a state sponsor of terrorism

Ted Cruz, who has emerged as a leading advocate for a harder line against North Korea, has introduced a Senate companion bill to Rep. Ted Poe’s bill, calling for North Korea’s re-listing as a state sponsor of terrorism. According to a press release from Senator Cruz’s office,* Cruz’s bill has six original co-sponsors: Sens. Thom Tillis (R-N.C.), Dean Heller (R-Nev.), Lisa Murkowski (R-Alaska), Marco Rubio (R-Fl.), Dan Sullivan (R-Alaska), and Cory Gardner (R-Colo.).

Compared to the House bill, the Senate bill has a shorter list of North Korean conduct justifying a re-listing, relying almost exclusively on conduct in which U.S. or South Korean courts found the North Korean government responsible for acts of international terrorism. The obvious exception is that the Cruz bill raises the murder of Kim Jong-nam with VX, a persistent nerve agent, in that crowded airport terminal in Kuala Lumpur, which would be the first state-sponsored terrorist attack with a weapon of mass destruction.

The bills also differ in their approaches. The Cruz bill (still no number, but here’s the text) simply asks the Secretary of State to make a determination whether North Korea has repeatedly sponsored acts of international terrorism. The Poe bill (H.R. 479) forces the administration to go through a series of alleged North Korean acts, and then say whether (1) North Korea did it, and (2) whether it’s international terrorism.

Both bills, however, omit the case of the Rev. Kim Dong-shik, a lawful permanent resident of the United States with a family in Illinois, whom North Korean agents kidnapped from China in 2000, and starved or tortured to death (or both) a few months later. In that case, the U.S. Court of Appeals for the D.C. Circuit held that, despite the fact that there were no direct witnesses to Rev. Kim’s death inside North Korea, the evidence was still sufficient to support a judgment against the North Korean government (case number 13-7147), and remanded the case back to the District Court. The District Court then entered a $330 million judgment for Rev. Kim’s family (case number 09-648). In 2005, of Rev. Kim’s kidnappers, Ryu Young-Hwa, was caught and convicted by a South Korean court for his role in the kidnapping. He was sentenced to ten years in prison. Click here to see where Senator Obama signed a letter promising that he would not support removing North Korea from the list until North Korea accounted for Rev. Kim’s fate. Click here to see where presidential candidate Obama reneged on that promise.

Overall, however, both bills make a strong case in favor of a decision that ought to have been made years ago as a matter of the evidence, the law, and the policy reason behind the list — to discourage and deter states from sponsoring terrorism. Indeed, as I argued here, North Korea never convincingly renounced terrorism and never should have come off the list to begin with.

The bills aren’t identical, so there are two ways to reconcile them. If one of the bills passes its respective chamber, the other chamber can pass that bill and send it to the President (easier, and overwhelmingly more likely for a simple bill like this). If both chambers pass their respective bills, they could resolve the differences at a conference committee. The most likely alternative, however, is that the Secretary of State will put North Korea back on the list before either chamber passes its bill. When Congress this clearly wants the Secretary of State to take an action within his discretion that’s well justified by fact, law, and policy, the Secretary of State usually takes that action. John Kerry might not have wanted to do this as a matter of policy, but I doubt Rex Tillerson shares that view. Now that Tillerson is back from his visit to Seoul and Beijing, I’d guess that diplomatically speaking, the decks are clear for this.

While I’m on this topic, I have a few things to say about former State Department official Joseph DeThomas’s 38 North post, arguing against a re-listing. DeThomas starts by conceding that the VX attack on Kim Jong-un might have been an act of state-sponsored international terrorism, which goes a step beyond what another former State Department official said here:

Daniel Benjamin, who served as the US State Department’s counterterrorism coordinator under the Obama administration, says the murder lies in a “gray zone.”

While the suspected use of the deadly VX nerve agent is within the legal parameters of designating the North as a terrorist state, Mr. Benjamin told Voices of America, assassination by itself cannot be interpreted as an act of terrorism. 

“So this is a very unusual case,” said Benjamin, now director of the Dickey Center for International Understanding at Dartmouth College. [Christian Science Monitor]

Well. If directing your diplomats and clandestine agents to murder a nonviolent political critic with a persistent nerve agent in an airport terminal crowded with mothers, fathers, babies, and children in a friendly country doesn’t qualify as international terrorism, your definition needs some adjustment.

DeThomas then muses whether North Korea’s sponsorship is “repeated,” a question he could have resolved easily with more careful research. He’s welcome to mine, in fact, but he did cite Bruce Klingner’s excellent summary, which is more than sufficient. But DeThomas’s argument really comes down to this:

However, strategically, there should be no rush to designate Pyongyang. In the larger regional context, the North Korean issue does not need any additional ignition points. Tensions are already running high on the North Korean missile front with its tests of ballistic missile strikes on Japan and with both US and Japanese sources floating stories about preemptive military options to deal with it, not to mention the somewhat more rapid deployment of THAAD than outside observers expected. [….]

While Pyongyang may richly deserve the designation as a state sponsor of terrorism, it would be no sin to follow a deliberative pace in the designation process. A little over a hundred years ago, a state sponsored international terrorist political assassination in a strange city far away lit a spark among major powers that were absorbed in other domestic and international concerns. They unwittingly followed the logic of their responses to the assassination into a global war totally disproportionate to the crime. That war led to the fall of three empires, the death of millions and the end of Europe’s golden age. In the current environment on the Korean peninsula, taking a few weeks or months to sort things through on a terrorist designation will play to the US long-term advantage. [Joseph DeThomas, 38 North]

In other words, let’s not call North Korea a sponsor of terrorism because we’re terrorized. One could make the same argument about the military exercises underway now — those certainly rile Pyongyang. So does the enforcement of U.N. sanctions. So does accepting North Korean refugees and defectors. So does enforcing U.N. sanctions. So does seizing its smuggling ships. So does missile defense. And most of all, so does talking about human rights in North Korea — another issue the State Department spent years trying to downplay or sideline. If all discussions about North Korea policy begin and end with “let’s not rile them,” and if every potential North Korean victim is Archduke Franz Ferdinand, the message Pyongyang will hear is, “Send Gavrilo.” It’s only one example of what Marcus Noland calls “North Korean exceptionalism,” the unique excusal of North Korea from the standards of civilized humanity. If Pyongyang isn’t willing to disarm and you’ve exempted it from consequences that rile it, then your policy is paralyzed at “strategic patience.”

Lest I be accused of taking the views of two former officials as speaking for a department they no longer represent, let’s add this atrocious performance by a State Department witness at a congressional hearing. And for years, the State Department’s argument against a re-listing was, simply stated, a lie: that North Korea is “not known to have sponsored any terrorist acts since the bombing of a Korean Airlines flight in 1987.”

If the State Department now searches in angst for reasons why its influence (and budget) are diminishing in Washington, the opinions of DeThomas and Benjamin are as good an illustration as any. Based on conversations I’ve had with State Department people (in settings that weren’t appropriate for attribution) Foggy Bottom overwhelmingly opposes re-listing North Korea. State Department officials have told me to my face that North Korea doesn’t sponsor terrorism, despite the overwhelming evidence that it does (and there is no excuse for them not to know this). In some cases, they apply a conveniently narrow definition of “international terrorism” that’s at odds with past State Department precedent and with the legal definitions of the term. Or, they say that re-listing North Korea would be merely symbolic.

But if a re-listing would be merely symbolic, why do its opponents think North Korea would care so much? (DeThomas makes both arguments without reconciling the tension between them.)

The first answer is that a re-listing would be financially significant. It would require U.S. representatives to oppose benefits for North Korea from international financial institutions. It would trigger stronger financial sanctions and close an important loophole left by the Treasury Department’s failure to update and republish the outdated North Korean sanctions regulations a year after the passage of the NKSPEA. It would strip North Korea of its immunity from suit for its acts of terrorism. It would trigger SEC “material riskdisclosure requirements for companies that issue stocks and have investments in North Korea, which would trigger divestment by companies fearing shareholder protests.

A second and more significant answer is that North Korea is a state built on symbolism, and on propagating the idea that it holds the world in awe and terror. It tells its people that the world lives in awe and terror of their leaders to send the message that they should live in awe and terror of their leaders. It sends that message because it gives a terrorized, deprived, and shrunken people a reason to draw a sense of esteem, even greatness, from the state that oppresses them. North Korea is obsessed with the power of symbols because it is built on the power of symbols that maintain that awe and terror. That’s why Pyongyang denounced my report with such venom. That’s why it reacted so strongly to “The Interview.” That’s why KCNA is filled with tributes from Juche Study Societies in Equatorial Guinea, Burkina Faso, and Northumberland. It cannot afford for its subjects to know that the world views its leader with contempt and ridicule.

Lastly, re-listing matters because North Korea has repeatedly provided support for acts of international terrorism. Americans should not allow their government to lie to them. That principle may be the most important one at stake here.

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N. Korea, Lazarus & SWIFT: Are the white hats closing in? (Update: SWIFT cuts off remaining N. Korean banks)

In the last month, major news stories about North Korea have bombarded my batting cage faster than I’ve been able to swing at them. I’d wondered when I’d have a chance to cover Katy Burne’s detailed story in the Wall Street Journal about the empty half of the SWIFT glass — that despite its recent decision to disconnect three U.N.-designated North Korean banks, it’s still messaging for banks that are sanctioned by the Treasury Department, but not by the U.N.:

The U.S. Treasury-sanctioned banks that remain on Swift include the state-owned Foreign Trade Bank of the Democratic People’s Republic of Korea, the country’s primary foreign-exchange bank; Kumgang Bank; Koryo Credit Development Bank; and North East Asia Bank, according to people familiar with the network. A search on Swift’s website listed active bank identifier codes for the institutions as of Monday.

The U.S. designated for sanctions the Foreign Trade Bank in 2013, saying it facilitated weapons of mass destruction programs in North Korea. The other three were sanctioned in December as the U.S. targeted entities it said supported the North Korean government and its weapons programs following the Asian nation’s September 2016 nuclear test.

The apparent sanctions gap raises questions about how easily North Korea could move currency through alternative banking channels, something the U.N. said it has been known to do in the past through fronting companies. [….]

While based in Brussels and regulated by Belgian authorities, the company intersects daily with U.S. financial institutions, processing tens of millions of payment instructions, including through a large facility in Culpeper County, Va. [WSJ, Katy Burne]

I won’t sugar-coat this; the fact that these dirty and important (to His Porcine Majesty) banks can still use SWIFT is a major hole in our sanctions, and whether Congress and the administration are willing to close it will be a test of how serious they are about stranding Pyongyang’s money.

I can understand some of SWIFT’s likely arguments against that, mind you: first, SWIFT has earned much good will from Treasury for favors it has done them on terrorist financing; second, there may be other potential providers of the same service that may be less responsive to U.S. legal pressure. Fair enough, but whoever takes up that slack in SWIFT’s wake should be sanctioned to swift extinction (yes, intended). For a list of North Korean banks indicating which ones are designated by the U.N. and the U.S., see this post, and scroll down.

Meanwhile, Symantec now claims it has additional evidence that the hacker group Lazarus, which it had previously linked to the robbery of the Bangladesh bank using hacked SWIFT software, is responsible for that attack, and more:

A North Korean hacking group known as Lazarus was likely behind a recent cyber campaign targeting organizations in 31 countries, following high-profile attacks on Bangladesh Bank, Sony and South Korea, cyber security firm Symantec Corp said on Wednesday.

Symantec said in a blog that researchers have uncovered four pieces of digital evidence suggesting the Lazarus group was behind the campaign that sought to infect victims with “loader” software used to stage attacks by installing other malicious programs.

“We are reasonably certain” Lazarus was responsible, Symantec researcher Eric Chien said in an interview.

The North Korean government has denied allegations it was involved in the hacks, which were made by officials in Washington and Seoul, as well as security firms.

U.S. Federal Bureau of Investigation representatives could not immediately be reached for comment.

Symantec did not identify targeted organizations and said it did not know if any money had been stolen. Nonetheless, Symantec said the claim was significant because the group used a more sophisticated targeting approach than in previous campaigns.

“This represents a significant escalation of the threat,” said Dan Guido, chief executive of Trail of Bits, which does consulting to banks and the U.S. government. [Reuters]

Further down, the report suggests that one or more Polish banks may also have been hit, but “Reuters has been unable to ascertain what happened in that attack.” The headline having promised evidence of attribution to North Korea, however, the text of the story itself left me wanting more. It’s not news that Symantec has linked Lazarus to North Korea; Symantec did that almost a year ago. Nothing in Reuters’s report adds evidence to that attribution.

Nor does this story suggest that there’s enough evidence for the feds to act against Lazarus, although it does hint that the FBI is investigating. Jurisdiction shouldn’t be an issue in the Bangladesh case; money moved through the New York Federal Reserve Bank. Attribution is the real question. Depending on what they can prove, the feds would have many potential charging options, including bank fraud, wire fraud, the Computer Crime and Abuse Act, racketeering, and money laundering. Furthermore, there are anti-hacking provisions in both the NKSPEA (section 104(a)(7)) and Executive Order 13722, which means that if the feds could find any of Lazarus’s money, or any assets of Lazarus’s co-conspirators — regardless of whether those assets can be traced to any of these specific acts — the Treasury Department could freeze them, and the Justice Department could forfeit them.

And needless to say, the indictment of a state actor would be a big deal, for a lot of reasons.

So far, I don’t see enough in the open sources to support that, but it’s good news that the white hats are working diligently on this. If they can attribute this to senior officials in the North Korean government — most likely, within the Reconnaissance General Bureau — then it would be our legal basis to go after the RGB’s assets, which we’ve recently learned include some sophisticated and global commercial operations. This story bears close watching.

~   ~   ~

Update:

Reuters is reporting that SWIFT will disconnect the remaining North Korean banks:

SWIFT, the inter-bank messaging network which is the backbone of international finance, said it planned to cut off the remaining North Korean banks still connected to its system, as concerns about the country’s nuclear program and missile tests grow. SWIFT said the four remaining banks on the network would be disconnected for failing to meet its operating criteria.

The bank-owned co-operative declined to specify what the banks’ shortcomings were or if it had received representations from any governments. Experts said the decision to cut off banks which were not subject to European Union sanctions was unusual and a possible sign of diplomatic pressure on SWIFT. [Reuters]

Now that SWIFT has gotten itself right with Jesus, I would like to implore everyone, everywhere to lay off SWIFT. It’s absolutely true that if we turn SWIFT into a political surrogate for our sundry political conflicts, the world’s dirtiest banks will just take their business elsewhere. That’s not a trend we want to encourage. SWIFT has usually been a responsible member of the financial community, sometimes at great cost to itself.

My argument all along has been that (1) North Korea deserves to be an exception to that rule because (2) North Korea is a unique threat to the financial system — not to mention, to all of humanity — as documented in (3) seven U.N. Security Council Resolutions, a Patriot Act 311 determination, and a call for “countermeasures” by the Financial Action Task Force. You can’t say that about any other country on earth right now — not even Iran. I can’t reconcile messaging for North Korean banks with any of those authorities. And if any competitor tries messaging for the FTB, it’s especially important that the Treasury Department should have the authority to obliterate them (which is why Congress should still proceed with something like the BANK Act).

Having said all that, I wouldn’t be too quick to assume that diplomatic pressure was the main reason for this most welcome decision. “Operating criteria” could mean a lot of things, but it’s a slightly better fit with “massive global bank fraud” than it is with “diplomatic pressure.” If there are more developments in the Lazarus investigation than the Reuters report makes apparent, and if those developments convinced SWIFT that it had unwittingly helped the North Koreans defraud its more reputable clients by sharing its software with them — and their hackers — that would be a perfectly good (and equally plausible) reason for SWIFT to have cut the North Koreans off.

Yet again, the North Koreans are tactically brilliant criminals. And yet again, they’re strategically moronic. It’s a rare and happy day when someone finally holds them to account for it.

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Malaysia holds the upper hand in its hostage dispute with North Korea

Three weeks ago, Malaysia was one of North Korea’s most important trading partners — a haven, hub, and way station for its arms trafficking, money laundering, and slave labor. Money has long been the limiting reagent in Pyongyang’s experiment with phobocracy. It’s now clear that Kim Jong-un will soon pay a heavy financial and diplomatic price for the badly botched murder of his half-brother, Kim Jong-nam with a persistent nerve agent in a crowded airport terminal in Kuala Lumpur last month. (I’ve described this as the first case of international terrorism using a weapon of mass destruction.)

The Malaysian investigation quickly implicated eight North Koreans, including a diplomat. Three of those men are still hiding in the North Korean Embassy. North Korea, with ghoulish obsession, demanded the repatriation of Kim Jong-nam’s body. Malaysia refused to release it without a DNA sample from a relative confirming the identity of the deceased. North Korea condemned the Malaysian investigation as biased, Malaysia expelled the North Korean ambassador, and North Korea expelled the Malaysian ambassador. And then, this happened:

Pyongyang, March 7 (KCNA) — The Protocol Department of the DPRK Foreign Ministry, at the request of a relevant organ, on Tuesday informed the Malaysian Embassy here of its decision to temporarily ban the exit of Malaysian citizens in the DPRK until the safety of the diplomats and citizens of the DPRK in Malaysia is fully guaranteed through the fair settlement of the case that occurred in Malaysia.

It expressed hope that the Malaysian Embassy here and the Foreign Ministry of Malaysia would fairly settle the current case as early as possible from the goodwill stand of setting store by and developing the bilateral relations.

In this period the diplomats and citizens of Malaysia may work and live normally under the same conditions and circumstances as before. -0- [KCNA]

Call the ACLU and petition the Ninth Circuit — Kim Jong-un just issued a #muslimban! Malaysian Prime Minister Najib Razak responded in kind:

[link]

The Malaysian government’s ban doesn’t just affect diplomats. The PM said “all North Korean citizens” and he meant it.

Deputy Prime Minister Datuk Seri Ahmad Zahid Hamidi made the announcement today in an immediate reaction to Pyongyang’s ban against Malaysians from leaving North Korea.

“As a response to foreign minister of North Korea, the Home Ministry via Immigration has released an immediate ruling that not one officer in Malaysia is to leave the country. “This is effective immediately to all exits of immigration nationwide,” he told a news conference here.

Ahmad Zahid also said the Cabinet will meet this Friday and discuss if it is to sever all ties with North Korea. He reiterated that Malaysia will not tolerate being accused of a murder conspiracy without proof.

“We have no intent to take any reciprocating action. But after this has been done by a country with diplomatic ties with Malaysia outside of the normal conventions of bilateral relationships, Malaysia is forced to take a similar action as they have manipulated the murder case here.

“We want to send a clear message, ‘Don’t point fingers at us and don’t look down upon Malaysia as (a) sovereign nation,” he said. [Malay Mail Online]

Reports that Malaysian diplomats were burning documents at their embassy in Pyongyang give you a good idea where that decision is headed. The Malaysian government is also reviewing trade relations with North Korea and was expected to make a decision by the end of the week.

“We don’t intend to retaliate but this is what must be done when a country that has diplomatic relations with Malaysia acts outside diplomatic norms,” Deputy Prime Minister Ahmad Zahid Hamidi said Tuesday. “We want to send a clear message — do not point fingers at Malaysia and do not belittle Malaysia’s standing as a sovereign country that has carried out investigations professionally.” [Bloomberg]

Eleven Malaysians are now trapped inside North Korea, some of them at Sunan Airport. Three are embassy employees, six are their family members, and two are humanitarian aid workers for the World Food Program. (I wonder if the Ministry of State Security will send an officer to literally bite their hands, to perfect the metaphor.) There are about 300 North Koreans in Malaysia, including 170 coal miners laboring in brutal conditions in Sarawak. Authorities there are awaiting orders from K.L. about how to respond.

At this point, it’s useful to cite an authoritative definition of “hostage.” Legally, the U.S. Criminal Code only prohibits hostage-taking involving U.S. nationals, but otherwise defines “hostage taking” as “to detain another person in order to compel a third person or a governmental organization to do or abstain from doing any act as an explicit or implicit condition for the release of the person detained.” That sounds like what both governments are doing at this point, with two exceptions — the two North Korean non-diplomats who are hiding inside the North Korean embassy in Kuala Lumpur, and who are wanted by the police for questioning in the Kim Jong-nam murder investigation.

The common reaction to this, even in Malaysia, is to call it a “tit-for-tat.” My immediate reaction was also to view both sides as guilty of hostage-taking and violating the Vienna Convention, which guarantees diplomats freedom of movement and immunity from criminal prosecution. On closer examination, however, the Malaysians might have a case that their action is a lawful “countermeasure,” a doctrine with some basis in customary international law (start at Article 49).

But what the law allows isn’t necessarily the best policy, and I tend to think the Malaysians are going about this all wrong by lowering themselves to Pyongyang’s level. Their best leverage, after all, would consist of a series of perfectly legal acts. Begin with the fact that among some of those 300 North Koreans, not all of them likely want to go back to Pyongyang. That would go double for the ones who are involved in botching the hit on Kim Jong-nam. Regardless of whether the Malaysian government has a legal right to prevent the departure of the North Koreans — and their ban is probably disproportionate, if understandable — holding North Koreans as effective hostages isn’t their best form of leverage by a long shot.

Instead, the Malaysian government should initiate a series of criminal investigations of North Korean activities in Malaysia for violating U.N. sanctions, and start seizing property that belongs to the Reconnaissance General Bureau, Korea Mining Development Corporation, and other U.N.-designated entities. That approach has the advantages of being (a) perfectly legal, and (b) much more concerning to Pyongyang than actions that affect its citizens, who are all deemed more-or-less expendable anyway. To further increase the pressure on Pyongyang, Malaysia could guarantee each departing North Korean a lengthy unmonitored interview with the U.N. High Commission for Refugees, affording each departing North Korean the option to defect instead. Rewards and asylum could be offered to those who provide information leading to an arrest or conviction. Imagine the pressure that would put on Pyongyang. It might even be a useful experiment in how to negotiate with Pyongyang from strength.

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N. Korea just killed a guy with one of the WMDs that caused us to invade Iraq … in a crowded airport terminal, in a friendly nation.

Last night, Malaysian police revealed that Kim Jong-nam’s killers murdered him with VX, the deadliest of the nerve agents. I had hypothesized before that the killers almost certainly acted on orders from His Porcine Majesty. Saddam Hussein’s suspected possession of stockpiles of VX was at the core of our justification for invading Iraq. This time, the case doesn’t rely on grainy satellite photos or shadowy, unnamed sources. (And this time, an invasion is also the wrong answer to the problem; the right answer is a combination of financial constriction, the use of diplomacy to isolate Pyongyang, and political subversion, but let’s not get ahead of ourselves.) Here, in no particular sequence, are some assorted thoughts on what we’ve learned since yesterday, and what could happen next.

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The next time someone tells you that human rights are a side issue or a distraction from more important issues, please punch that person in the nose.

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The revelation that North Korea used VX has caused justifiable outrage in Malaysia and around the world. There were many Malaysians studying accounting, finance, and agriculture where I attended law school. All of them impressed me deeply with their maturity, wisdom, and strict moral values. I was most recently reminded of this when Kenneth Sng, a student from Singapore (which is culturally similar to Malaysia and separated from it at the end of British colonial rule) gave the introduction at a Republican debate last October.

As a student, I formed close friendships with some of the Malaysians. This is a conservative society that takes law, public order, public safety, and integrity very seriously. That attitude isn’t just a function of the state’s authoritarianism or a remnant of the British legal tradition, the common ancestor of our own legal system. It is a necessity for keeping the peace in a society with a history of ethnic and religious conflict. As Sumisha Naidu documents on her Twitter feed (keep scrolling), this has caused public outrage and protests in Malaysia. Members of a youth group delivered a protest letter to the North Korean embassy. There’s now a safety scare about the use of the terminal. It’s hard to believe that this incident will pass without serious damage to the relationship between North Korea and Malaysia. It could end with the deportation of a large number of slave laborers and money launderers.

~   ~   ~

How did the North Koreans get the VX into Malaysia? Judging by reports that the police (1) arrested a North Korean chemist and (2) later found a stockpile of chemicals in a condo, I’d guess they produced it locally. The other possibility being discussed is that they smuggled it in a diplomatic pouch, though this seems less likely to me.

~   ~   ~

Not surprisingly, I’ve gotten a lot of questions recently about the legal standard for putting North Korea back on the list of state sponsors of terrorism. By the time you read this, I’ll be at work, so I’d refer any questions to my long-form report, or this post, which predicted that North Korea would go back on the list sometime between Groundhog Day and Memorial Day. At this point, it wouldn’t surprise me if that happened before 5 p.m. today. In the latter post, I noted that the criteria in Section 6(j) of the Export Administration Act are so loose that Donald Trump could re-designate North Korea with a retweet. So, hold my beer and watch this!

[Retweet at your own risk, and mine.]

Both Congress and the South Koreans are becoming increasingly vocal in calling for a redesignation of North Korea. So would a redesignation do anything? Yes, it would, as I explained here, mainly by invoking the financial transaction licensing requirements in 31 C.F.R. Part 596, which are far stricter than those in the North Korea Sanctions Regulations at 31 C.F.R. Part 510. It would also lift North Korea’s sovereign immunity from civil liability for terrorist acts. Granted, the passage of the NKSPEA preempted some of the consequences of a re-listing, but we couldn’t get all of them done at once. Any policymakers looking for tougher options should start with Ted Cruz’s letter to Steve Mnuchin. If that’s still not enough for you, e-mail me.

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For days, theories swirled that the poison was anthrax, which made no sense to me, given that anthrax has an incubation period of at least a day. You will note (because I can’t help reminding you) that in Wednesday’s post, I correctly predicted that the poison would probably turn out to be some kind of nerve agent. I derived this from the fact that the poison was applied to, and absorbed through, the victim’s skin, and the symptoms that followed: blurred vision, eye pain, headache, seizures, and death within minutes. (My long-term memory being better than my short-term memory, I recalled most of these symptoms from my Army years as the soldier’s cue to administer atropine.) All of the nerve agents have similar symptoms, so I didn’t venture a guess as to which one was used.

~   ~   ~

The CDC classifies VX as a persistent chemical agent. It takes several days to break down, and even one droplet can kill. To use such a deadly chemical in an airport terminal crowded with civilians — with babies and little children who crawl on floors and put their mouths on armrests, with young mothers who rolled their suitcases into the restrooms the assassins used — is breathtakingly contemptuous of human life and public safety in a friendly nation. It would not surprise me at all if reports began to emerge that other people who traveled through that terminal and touched contaminated sinks, handrails, or furniture also experienced symptoms of exposure.

There are reports that the two attackers slimed Kim Jong-nam with their bare hands. Why didn’t that kill them, too? According to the CDC, “any visible VX liquid contact on the skin, unless washed off immediately, would be lethal.” (Emphasis mine.) At least one of the women did wash her hands immediately after the attack.

Malaysian police said one of the women also “suffered [the] effects” of VX exposure and was vomiting after the attack. Initial reports said that one of the women wore a glove, but the Washington Post’s Anna Fifield says that isn’t so. Because VX can be a binary compound formed by mixing two separately inert chemicals, it’s also possible that each of the two women applied one of those chemicals.


Another possibility is that the North Koreans who plotted and coolly observed all of this from a nearby restaurant may well have assumed (and preferred) that the poison would kill them. The North Koreans made careful preparations for the escape of their own men, and no apparent plans for the escape of the two women.

~   ~   ~

Maybe the North Koreans were sure they wouldn’t get caught. For whatever reason, they seemingly gave no attention to concocting a plausible cover story. The attack itself went off without a hitch, but because it was needlessly and hopelessly elaborate, the getaway fell apart. By using a persistent chemical agent, they also raised the risk that that police would identify the agent, the composition of which suggests more sophistication than a non-state actor would ordinarily possess. The North Koreans aren’t very good at judging foreign reaction to their outrages. Perhaps history has taught them that the reaction will always be a lot of words amounting to nothing. Perhaps His Porcine Majesty’s advisors are afraid to caution him or tell him no. Still, I can’t imagine they expected their plot to be exposed as quickly and publicly as it was.

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The man who wouldn’t be king: the short, happy life of Kim Jong-nam

Kim Jong Nam, the estranged older half-brother of Kim Jong Un, North Korea’s leader, was killed in an attack at Kuala Lumpur airport, Malaysian police confirmed on Tuesday, in an apparent assassination.

The 46-year-old was assaulted by a woman who covered his face with a cloth laced with liquid as he was waiting for a flight to Macau, said Fadzil Ahmat, a Malaysian police official. He was confirmed dead after being taken to hospital. [Financial Times]

The kindest way to remember Kim Jong-nam may be as a man who was never cut out to be a tyrant. This must have been obvious from the circumstances of his fall from primogeniture — he was caught entering Japan on a fake passport on his way to Tokyo Disneyland. Maybe he never wanted the job, and maybe it was his downfall that caused him to reflect on the circumstances of his countrymen. He was neither a hero nor a martyr, although he later wrote a book criticizing the rule of his half-brother (whom he claimed he never met). Although there were rumors of a previous attempt to assassinate him by staging a car accident, Kim Jong-nam never really seemed interested enough in politics to call a dissident, either. He seemed interested in being happy. And any man who abstains from the opportunity to enslave others ought to be remembered fondly for that alone.

Friends who said they’d met Jong-nam and found him to be, against all odds, nice — which is to say he was affable, approachable, and spoke good English. His son, Kim Han-sol certainly seems like a nice kid. After doing an interview in which he criticized the regime’s human rights abuses, he went into hiding. My heart goes out to him, not just for the sadness he must feel at the loss of his father, but for the terror that he must feel for his own safety now. (Kim Jong-nam also had a daughter, who lives in Macau.)

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The propagation of terror is surely one of the reasons why Kim Jong-un committed this act of fratricide. I don’t know that for a fact, of course, but as Mark Tokola asks, “Cui bono?” Someone in the U.S. government who probably knows things I don’t “strongly believes” Kim Jong-un did it. I can’t think of another logical explanation.

(Update: Malaysian police have arrested a North Korean man, Ri Jong-chol, a chemistry specialist, in connection with the murder. Incredibly, Ri kept a Facebook page that says he graduated from Kim Il-sung University in 2000, a school in Massachusetts in 2010, and had been studying in Kolkata, India. He liked Dave Mraz, Ha Ji-won, and was “interested in men,” unusual things for a North Korean who surely knew he was being monitored closely to admit openly. In other words, an engagement success story! Dagyum Ji of NK News reports that Malaysian police are also seeking four more North Korean suspects: Ri Ji Hyon, 33; Hong Sang Hac, 34; O Jong Gil, 55; Ri Jae Nam, 57, all of whom entered Malaysia in late January or early February, and who appear to have made a clean getaway to Pyongyang. Police are also seeking another North Korean, Ri Ji U, and two other unidentified men “believed to be North Koreans” for questioning.)

I don’t think there’s any question that it was murder, either, although the reports still can’t agree on exactly how Kim Jong-nam was done in. Surveillance video shows two women doing the deed and then fleeing in a taxi. (Update: Watch the video at this link.) In contrast to the Financial Times’s account, other reports say they sprayed poison on his face or that they jabbed him with one or more poison needles. Even the police weren’t sure yesterday afternoon. Both versions would be half-true if one chloroformed him and one jabbed him. (Update: from the grainy CCTV video, it looks like “LOL girl” reached around Kim Jong-nam from behind and put a cloth over his face.)

The news of the investigation is developing quickly, and there are many conflicting or unverified accounts of suspects being pursued, arrested, or dead. Malaysian authorities say they have arrested this woman, who was carrying a (possibly fake) Vietnamese name and passport.

The Sydney Morning Herald reports that police have also arrested another woman from Burma (Update: One woman with a Vietnamese passport, one Indonesian woman, her boyfriend, and this North Korean man, a chemist who attended high school in Massachusetts, Kim Il-Sung University, and a grad school in Kolkata, India). NK News says they may be pursuing up to five other suspects. The Joongang Ilbo suggests Kim Jong-nam may have been lured to Malaysia by a romantic relationship with one of the women. This may be one of the killers.

This report, which quotes an unnamed Japanese official, says she and her accomplice are both already dead. (Update: wrong; they’re both alive and under arrest. The best compilation of solid evidence of how the attack unfolded and who the attackers are is actually at this Facebook post. Although the women are apparently claiming that they thought they were only playing a prank on Kim Jong-nam, the video shows “LOL girl” striking quickly and Kim Jong-nam struggling. I don’t buy it.) In the past, RGB agents have been under orders to kill themselves before being taken alive, although not all of them have followed through with those orders in recent years.

Whatever the precise facts turn out to be, this was obviously an elaborate plot that unfolded over the space of months, if not years. Bloomberg quotes Lee Cheol-woo, chairman of the intelligence committee in South Korea’s National Assembly, as saying the murder didn’t have its impetus in recent events, but was simply the successful conclusion of a longstanding fatwa. Still, it’s difficult to believe that the plotters would have gone through with it without a final go-ahead from Pyongyang, from the very top.

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In recent years, poison — specifically, needles spring-loaded with neostigmine bromide — have been the standard M.O. for the Reconnaissance General Bureau of the Workers’ Party of Korea, or RGB. Starting on page 59 of my report on North Korea’s state sponsorship of terrorism, I describe five such assassinations and foiled attempts since 2008. If you accept that the evidence will likely show that the North Korean government did the hit on Kim Jong-nam, this was a clear-cut case of international terrorism.

There are at least three statutory definitions of terrorism, all of them inconsistent and imperfect for reasons I discussed in my report, starting on page 5. If one makes a lowest common denominator of these definitions and sifts through a few decades of State Department reports for interpretive precedent, it’s possible to write a legal definition of international terrorism that consists of five elements:

  1. It must be unlawful under the laws of the place where it is committed;
  2. It must involve a violent act; an act dangerous to human life, property, or infrastructure; or a threat of such an act;
  3. It must involve the citizens or the territory of more than one country;
  4. It must be perpetrated by a subnational group or clandestine agent against a noncombatant target; and
  5. It must appear 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.

Of the first three elements there’s no doubt, and Kim Jong-nam was a noncombatant. If the killers are caught, they were probably agents of the RGB, which employs women as clandestine agents to hunt down refugees in China, and as assassins. The terrorist acts of state actors through their clandestine agents can be a basis for a SSOT listing; in fact, it was two bombings by the RGB that caused the U.S. to put North Korea on the list in 1988. The Secretary of State has the discretion to find that North Korea has repeatedly provided support for acts of international terrorism. He doesn’t need a federal appeals court to tell him that (although one has, and my report also cites several other district court decisions).

As to the regime’s apparent intent, its motives must have been political. Kim Jong-nam had criticized his brother’s regime and predicted that it wouldn’t last. As Dennis Halpin explained, he was the best alternative successor to the family bloodline if China needed a North Korean Pu Yi, a possibility Kim Jong-un couldn’t allow. The most important reason to kill Kim Jong-nam was to warn Thae Yong-ho and others like him, who have been defecting in greater numbers. Pyongyang sees that surge of defections as a threat to its survival. It must want to send a message to Thae Yong-ho and others that they aren’t safe anywhere, even if they’re under government protection (in Kim Jong-nam’s case, China’s).

In one sense, those theories explain the assassination of Kim Jong-nam logically, but in another sense, it all seems illogical. Kim Jong-un must have known that this act of fratricide would shock South Korean voters in an election year, at a time when opinions are still unstable. He must have known that the odds were already high that the Trump administration would put his government back on the list of state sponsors of terrorism, triggering additional sanctions. He must have known that the evidence would lead back to him, further discrediting a naive and sympathetic commentariat that tried to sell us the image of Kim Jong-un as a Swiss-educated reformer, while encouraging more subsidies and investments to finance and sustain his rule. He certainly knew that assassinating someone under Chinese protection would irritate (but not alienate) his most important ally. But then, Pyongyang’s business model has long involved a curious combination of obsession with, and disregard for, world opinion.

Thus, if the reports are mostly accurate and the investigation validates a few reasonable inferences, this would be a clear-cut case of international terrorism, not that more evidence is needed to support a re-listing. Returning North Korea to the list of state sponsors of terrorism is both legally justified and good policy. It’s not just out of regard for Kim Jong-nam’s defiantly passive life that we should do it, but to protect more heroic men and women like Park Sang-hak, Thae Yong-ho, Hyeonseo Lee, and potentially dozens more would-be defectors who must be wondering if America will stand by them if they take the risk of crossing the line.

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The Commerce Department should review PUST’s export licenses for North Korea

Last week, several news outlets reported that representatives of PUST, the Pyongyang University of Science and Technology, are in the United States, seeking support to expand their curriculum in North Korea. PUST didn’t say what kind of support it seeks, but recent reports suggest that PUST has lost donors and had to slash its budget. PUST is probably looking for money. Donors, however, would be wise to keep their checkbooks closed until the Commerce Department and a U.N. Panel of Experts review precisely what PUST is teaching the North Koreans.

1. PUST needs to give better answers to charges it’s training North Korean hackers.

PUST teaches its mostly male, entirely elite students what their government wants them to learn. PUST trains doctors and nurses, and without knowing more, that’s probably unobjectionable. But PUST also teaches information technology subjects that could be a baseline for training hackers, such as those who hacked Sony Pictures and made terrorist threats against theaters showing “The Interview.” (North Korea both denied and applauded the attacks.) Subsequently, two defectors claimed that PUST is indeed training North Korean hackers. PUST denies the claim, but without the ability to track its alumni through some of the most secretive parts of North Korea’s government, it’s hard to see how PUST could possibly know this, one way or another.

If PUST is training North Korean hackers, it’s probably doing it pursuant to a license from a the U.S. Commerce Department. Without knowing exactly what PUST is exporting to North Korea, it’s impossible for me to say which of those exports are controlled by the Commerce Department, but the list of items that may require export licenses includes software, information security, telecommunications, and computers, and PUST has admitted that it operates pursuant to Commerce Department licenses. It’s past time for the Commerce Department to review those licenses, and (at a minimum) revoke those related to information technology. The continuation of some of those programs may well violate both U.S. law and U.N. Security Council resolutions.

2. U.S. law imposes mandatory sanctions for cyber-related activities.

Ethan Epstein’s post at The Weekly Standard raises another potential legal issue for PUST: the new sanctions law, and the executive order, section 104(a)(7) of which imposes mandatory sanctions on any person who facilitates North Korean hackers, and section 104(a)(8), which bans the export of software for the use of North Korea’s ruling party.  What I can’t say is exactly what North Korean entities PUST is dealing with and how those entities are linked to North Korea’s hacking operations. The government should investigate, and until it gets satisfactory answers, it should suspend PUST’s IT-related licenses.

3. The latest U.N. resolution requires the suspension of scientific and technical cooperation with North Korea, pending U.N. or U.S. government review.

If North Korea is using PUST to train hackers, it wouldn’t be the first time a scientific or academic engagement program came under suspicion of misuse for nefarious purposes. There was the time that North Korea’s aerospace agency tried to join the International Astronautical Federation, until the U.N. Panel of Experts pointed out that Federation might have given Pyongyang access to sensitive missile-related technology. Or the Indian institute that trained North Korean rocket scientists. Or the Russian institute that hosted North Korean nuclear scientists to conduct joint research, including one who is sanctioned by name. Or the program sponsored by Syracuse University that may well have taught the North Korean security forces how to digitally watermark and trace documents smuggled into North Korea on USB drives. But surely, an exchange program to help North Korea grow food couldn’t have sinister purposes? But yes, even a Swiss-funded project, ostensibly to teach North Korea how to make bioinsecticide, turns out to be perfectly suited to produce biological agents. All of which may explain why the U.N. Security Council adopted this provision late last year:

“11.  Decides that all Member States shall suspend scientific and technical cooperation involving persons or groups officially sponsored by or representing the DPRK except for medical exchanges unless:

(a) In the case of scientific or technical cooperation in the fields of nuclear science and technology, aerospace and aeronautical engineering and technology, or advanced manufacturing production techniques and methods, the Committee has determined on a case-by-case basis that a particular activity will not contribute to the DPRK’s proliferation sensitive nuclear activities or ballistic missile-related programmes; or

(b) In the case of all other scientific or technical cooperation, the State engaging in scientific or technical cooperation determines that the particular activity will not contribute to the DPRK’s proliferation sensitive nuclear activities or ballistic missile-related programmes and notifies the Committee in advance of such determination; [UNSCR 2321]

I read this language to require the U.S. government to suspend PUST’s scientific and technical cooperation with North Korea pending a full review. Whether you agree that that’s required by the letter of the resolution, that position is certainly consistent with the resolution’s spirit. Suspending PUST’s Commerce Department export licenses, and any licenses it has been granted by the Treasury Department’s Office of Foreign Assets Control, are the most obvious ways to effect that suspension.*

PUST wanted to “open a door to the outside world for the future leaders,” but as this blog has chronicled for more than a decade, this theory hasn’t worked so well in practice. Sixteen years after its founding, PUST admits that its staff “avoids talking about politics and religion in the classroom.” (Update: According to this report, PUST actually started teaching students in 2010.) For those who’ve read Suki Kim’s memoir of her experiences at PUST, that’s an understatement. She describes a suffocating, Orwellian environment where the air is thick with fear for one’s self, and for the others one might incriminate with a careless expression of free thought. PUST’s furious reaction to Ms. Kim’s book — revealing its own efforts to vicariously censor her on Pyongyang’s behalf — lent further credibility to her account.

So it always goes with those who engage Pyongyang, thinking they’ll change North Korea; it always works the other way around — there are no exceptions. Invariably, they must enlist as Pyongyang’s propagandists, censors, or financiers, or they must leave. Every wide-eyed engager predicts a Pyongyang Spring, but in Pyongyang, it’s always Groundhog Day.

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* I edited this paragraph after publication.

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Update, 2/9: Two readers forwarded me links to Korean press reports that PUST spent donated funds on building a Juche research center and a Kim Il-sung monument on campus.

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Why North Korea will go back on the list of state sponsors of terrorism this year

As I write, Yonhap is reporting that North Korea may be fueling up two ICBMs for a test. Meanwhile, in Washington, Texas Republican Ted Poe has already shaped one part of the likely response to that. Poe isn’t one to back down from a fight — not with leukemia, and not with North Korea. He’s back at the helm of the House Subcommittee on Terrorism, Nonproliferation, and Trade, where one of his first acts this year was to reintroduce a bill that would call for the State Department to re-list North Korea as a state sponsor of terrorism. (The text still isn’t published at post time, but here’s a previous version.)

Specifically, the bill puts a series of North Korean acts before the State Department and asks it whether (1) North Korea did that thing, and (2) whether that thing meets the legal definition of terrorism. Because federal courts have already said “yes” to both of those questions for several of those things, there’s really only one right answer to the question of whether North Korea has, as section 6(j) of the Export Administration Act puts it, “repeatedly provided support for acts of international terrorism.”

For reasons I’ll explain in the rant that follows, North Korea’s exclusion from the list of state sponsors of terrorism has long irritated me. My guess is that I’ll soon have one less thing to rant about, because I’d assess the chances of North Korea going back on the list this year as above 90 percent — most likely, sometime between Groundhog Day and Memorial Day. I’m not revealing any insider knowledge, mind you, but you don’t need to be a weather man to know enough to bring your parka to Fargo in February. Kim Jong-un is going to do a lot of provocative things this year, and putting North Korea back on the list is not only an obvious response, it’s legally well-justified. Let’s start with the obvious.

1. North Korea sponsors terrorism.

Three years ago, I decided I’d had my fill of “experts” writing that North Korea doesn’t sponsor terrorism without having made any apparent inquiry into the evidence or the law, so I sacrificed my Christmas leave to write a hundred-page, peer-reviewed report laying that evidence out, analyzing the legal standards for listing a government as a state sponsor of terrorism, and applying North Korea’s recent conduct to that standard. I’m not going to repeat that entire report here, but I should probably at least give you a taste of it: in the last ten years alone, North Korea has armed terrorists, sent hit teams to murder defectors and dissidents, held the kidnapped citizens of other countries as prisoners, harbored hijackers, launched cyber attacks against newspapers and nuclear power plants, and threatened movie theaters across the United States with terrorist attacks if they showed a film parodying Kim Jong-un. For which, Barack Obama did approximately nothing.

Pause, for a moment, on that last point. Never in U.S. history has a foreign dictatorship so successfully chilled Americans’ freedom of expression in their own country, although Muslim supremacists also managed to get a public apology, an arrest, and de facto censorship of “blasphemous” speech that’s also at the very core of what the First Amendment protects. So, have you seen any good movies about North Korea lately? Neither have I, and it’s not for lack of suitable material. That should scare you, because as Obama himself said before doing approximately nothing:

“We cannot have a society in which some dictators someplace can start imposing censorship here in the United States because if somebody is able to intimidate us out of releasing a satirical movie, imagine what they start doing once they see a documentary that they don’t like or news reports that they don’t like.” [CNN]

That’s pretty typical Obama: a good, decent, and intelligent man articulating important principles eloquently and then failing completely in their defense and implementation.

Of course, no amount of evidence of North Korea’s sponsorship of terrorism will be enough to persuade people who oppose re-listing North Korea for policy reasons. Doug Bandow, for example, pretty obviously saw the report, and just as obviously didn’t read it. But then, Bandow’s policy views on North Korea — he favors immediate bilateral negotiations with Kim Jong-un, the lifting of sanctions, and a total U.S. withdrawal from South Korea — aren’t likely to have much support on Capitol Hill, or (from the looks of the confirmation hearings) in the new administration. As far as the strength of the evidence against North Korea goes, if it’s good enough for multiple federal district court judges and one federal court of appeals, it’s good enough for Doug Bandow, or would be if the evidence mattered to him at all.

2. North Korea never really renounced terrorism.

President George W. Bush announced the decision to remove North Korea from the list of state sponsors of terrorism on June 26, 2008, in exchange for Kim Jong-il’s promises to dismantle his nuclear weapons programs (by law, the decision became effective on October 11th of that year). The results of that bargain speak for themselves, but let’s not get ahead of ourselves.

By law, there are two conditions to remove a state from the list of state sponsors of terrorism, both of them ridiculously easy to beat. First, the Secretary of State has to certify that the state has not “provided any support for international terrorism during the preceding 6-month period.” That’s six whole months of good behavior! Second, he has to certify that the government has “provided assurances that it will not support acts of international terrorism in the future.” Presumably, then, North Korea gave the State Department another one of its pro-forma statements that it opposes terrorism, a term it defines in an extraordinarily strange way.

What North Korea never actually did to get George W. Bush to rescind the designation, of course, was renounce terrorism in a minimally convincing way. It never sent the Japanese Red Army hijackers back to Japan to face trial. It never returned any foreign abductees, including the dozens of Japanese or South Koreans it kidnapped from the soil of their own home countries. It never accounted for its kidnapping of the late Rev. Kim Dong-shik, despite then-Senator Barack Obama’s written, signed promise that he’d oppose North Korea’s rescission from the list until it did. Which you can read for yourself right here.

Not only has North Korea never admitted, acknowledged, or apologized for its past acts of terrorism, within a year after being removed from the list, it was caught red-handed on at least three occasions shipping arms to Iran, probably for the use of Hezbollah, Hamas, and/or the Quds Force.

At this point, it’s tempting to get into a semantic discussion about what “sponsorship” and “terrorism” even mean, except that I’ve already done that in my long report. I’ve even suggested new definitions to clarify the law (which actually contains multiple definitions, all of them mutually inconsistent and imperfect for their own reasons).

Lawyers look to the text of the law first, and then to precedent to help them apply the law when it isn’t clear. As you’ll see in my report, some of North Korea’s conduct clearly fits the legal definitions and some of it doesn’t. When the law itself isn’t clear, we turn to examining what conduct the State Department used to justify the listing of other countries as sponsors of terrorism in previous annual reports. Merely building a nuclear weapons program probably doesn’t meet the legal standard, so logically, dismantling (or promising to dismantle) a nuclear program isn’t a renunciation of terrorism, either. In other words, removing North Korea from the list in 2008 wasn’t really about terrorism. That opened the list itself to charges that it was politicized.

3. North Korea should have gone back on the list when it broke its bargain.

Congress was never happy about President Bush’s rescission of North Korea’s listing in the first place. Legally, it can stop a rescission by passing a resolution within 45 days, but in 2008, the Bush administration announced the rescission just as Congress was leaving for summer recess, which as you’ve guessed by now, is longer than 45 days. Neat trick, right? Except that Congress never forgot that.

At the time President Bush announced that decision, both candidates for the 2008 presidential election, Barack Obama and John McCain, said that if North Korea didn’t follow through on its promises to disarm, they would re-list North Korea (see page 51). Well, guess what? North Korea tested a nuke four months after Barack Obama took the oath of office, and Obama never did re-list North Korea.

In other words, North Korea was put on the list for things that clearly fit the legal definitions of terrorism (the 1983 Rangoon bombing and the 1987 Korean Air Lines bombing), but was taken off the list for promising not to do things that didn’t really fit those definitions. Admittedly, I’ll wince a little when the Trump administration re-lists North Korea for something that, in all probability, won’t exactly fit the definition, but at least I’ll take comfort from the fact that the evidence is otherwise overwhelming, and the error will be harmless. 

Of course, the usual suspects will rend their garments and wail: “No fair! A nuclear test isn’t terrorism!” To which I’ll say, “Where have you been hiding since 2008?” Every year since then, State Department reports have printed the flat-out lie that “North Korea is not known to have sponsored acts of terrorism since … 1987.” At least, I’d think they were lying if I really thought they even knew what the truth was.

4. Both Democrats and Republicans in Congress want North Korea back on the list.

Did I mean to suggest that senior officials in the U.S. Department of State might have been clueless about the evidence of North Korea’s sponsorship of terrorism? Yes, I do. If you doubt me, just watch this hapless State Department official freeze like a deer staring into Judge Poe’s fog lamps at a hearing in 2015, as Poe waved one of those federal court decisions at her that found North Korea liable for sponsoring terrorism. It’s probably the single worst performance I’ve ever seen by a committee witness in all the years I’ve been watching Congress. Pretty clearly, Poe and Sherman weren’t appeased. They had plenty of follow-up questions, and introduced the first version of the current bill shortly thereafter.

Because this is a new Congress with plenty of time to pass legislation, and because North Korea is going to piss Congress off within the next few months — or hours — the new version of Poe’s bill will almost certainly pass on a voice vote. In recent years, calls to re-designate North Korea have become increasingly bipartisan. That’s been especially true since the 2014 Sony cyberterrorist attacks, when Bob Menendez, the New Jersey Democrat who then led the Senate Foreign Relations Committee, added his name to the list of those calling for North Korea to go back on the list. Traditionally, Senate Democrats have been the State Department’s best procedural backstop to prevent bills from becoming law, but on North Korea, today’s Senate Democrats are often just as hawkish as the Republicans. Just watch them in action. They aren’t about to sacrifice themselves for Kim Jong-un.

5. North Korea is about to piss Donald Trump off.

You don’t even have to read the headlines to know this. North Korea always provokes new U.S. or South Korean leaders as they’re forming their governments and policies. Whether this extortionate strategy works is less important than whether North Korea thinks it will. Pyongyang provoked Barack Obama, Lee Myung-bak, and Park Geun-hye, and all signs are pointing to it trying the same with Trump. As Evans Revere paraphrases what they’re thinking in Pyongyang today, “We are willing to risk nuclear war to achieve our goals, are you?”

Personally, I think they’re about to make a grave miscalculation. I don’t give free advice people I despise, but if I’m right about Pyongyang right now, Kim Jong-un will act as much out of impulse as design, and none of the people in Pyongyang who are reading this will dare tell him not to. But if you are reading this from Pyongyang, feel free to try your luck.

6. It’s easy.

There’s no act of Congress necessary to re-list North Korea. All the Secretary of State would have to do is sign a one-page letter invoking section 6(j) of the Export Administration Act. If a pissed-off POTUS is looking for something nasty to do to Kim Jong-un the same day he has the red mist, this is the easiest thing to pull off the shelf.

(A diabolical afterthought: Donald Trump could arguably re-list North Korea in less than 140 characters: “North Korea has repeatedly provided support for acts of international terrorism.” You’re done, and you still have room for the “#MAGA” hashtag! Section 6(j) of the Export Administration Act controls the listing “process” and criteria … such as they are. The law doesn’t require any particular format or an act of Congress, and unlike the rescission process, there are no delays built in. Yeah, yeah, I know 6(j) says the Secretary of State makes that determination. Wanna argue that POTUS lacks the authority the Secretary of State has? If a memo is good enough, why isn’t a tweet? If a tweet is good enough, why not a retweet? If you find that process to be just a bit too … spontaneous, well, maybe now I can convince you (as I argued in my report) that Congress should have a greater say in it. Meanwhile, if you think you can bait the Commander in Chief into retweeting North Korea back onto the list, I’ll hold your beer while you do it. Also, I’ll buy your next one.)

7. There’s no diplomatic reason not to.

If you’ve watched any of the confirmation hearings for Secretary of State, Secretary of Defense, CIA, of U.N. Ambassador, these people don’t sound like they have Joel Wit’s number in their Rolodexes, and they don’t sound terribly interested in Agreed Framework 3.0. Ironically, that makes an agreement more likely, not less. I don’t know if that’s reason for woe or optimism until I see how hard Trump is willing to push Kim, how long we’re willing and how much we’re able to build up our leverage, and what deal we might eventually make. Whatever the answer to those questions, this isn’t the year for it, and neither is next year.

8. It will close some sanctions gaps.

For years, the State Department has told reporters that re-listing North Korea would be “symbolic,” and for years, reporters — the same reporters who uncritically repeated the twaddle about North Korea being under heavy sanctions — printed that without questioning it. A year ago, when our North Korea sanctions were much weaker than that are now, a re-listing of North Korea would have made a bigger difference than it would make now that Congress has passed a law strengthening sanctions.

But that doesn’t mean that a re-listing wouldn’t close some important gaps. First, it would trigger 31 C.F.R. Part 596, meaning that banks would have to apply for a Treasury Department license to process dollar transactions on North Korea’s behalf. That would be extremely powerful by itself. Just ask BNP Paribas, which paid a multi-billion-dollar settlement for violating similar requirements on behalf of Iran, Cuba, and other countries subject to that sort of licensing requirement. Second, it would trigger SEC rules requiring corporations to disclose their investments in North Korea in public filings. That, in turn, could trigger a North Korea divestment movement by NGOs (I know this sounds contradictory, but I expect to be surprised how many companies invest in North Korea and issue securities in the U.S.) Third, it would require U.S. diplomats to oppose benefits (like loans) for North Korea from international financial institutions. Fourth, it would mean that U.S. victims of North Korean terrorism could sue North Korea for its acts of terrorism. None of those sanctions are in effect now, and each would do significant financial damage to North Korea.

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Hacked again

For the last several weeks, North Korea-watchers in Washington have been warning each other about suspicious attachments and spoof messages. I was starting to feel ignored, envious, and unimportant until Friday, when a friend warned me that my site was blocked by his office’s anti-malware software.

I don’t have the sophisticated defenses that big institutions do, but fortunately, I have an excellent hosting service. The last time this happened, they recommended a subscription service that cleans up malware injects. Between the hosting service and the security service, they cleaned out the malware and helped me get everything back to normal with minimal inconvenience and impact on functionality.

I suppose this is an occupational hazard of blogging about North Korea. All of which is a roundabout way of saying, “Be careful out there.”

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N. Korea calls for murder of S. Korean President, State Dep’t still doesn’t think it sponsors terrorism

“When he eventually came to power, there was no book which deserved more careful study from the rulers, political and military, of the Allied powers. All was there….” – Winston Churchill, on Mein Kampf

History, which is diplomacy in the past tense, is littered with examples of despots who made their intentions clear, but whom journalists and diplomats in free nations have blindly refused to take at their word. So it was that in the late 1930s, the journalist and future U.S. Senator Alan Cranston published an unauthorized and unsanitized edition of “Mein Kampf,” leaving in the anti-Semitism and war threats that Goebbels’s Propaganda Ministry had excised for its foreign readers. Hitler sued Cranston in a Connecticut court for a copyright infringement. The court enjoined the publication of Cranston’s translation and denied the American people a warning from history in the future tense. In our time, when North Korea’s hatred and war threats are accessible to any citizen with an Internet connection, we have no such excuse for our own denial of Pyongyang’s intentions.

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On October 11, 2008, just over a year after Pyongyang was revealed to have built a nuclear reactor in a part of Syria that is now controlled by ISIS, President Bush struck it from the list of state sponsors of terrorism. The rescission was a reward for Kim Jong-il’s commitment to “complete, verifiable, and irreversible” dismantlement of its nuclear program. For which we are still waiting.

Since 2008, North Korea has sent hit teams to assassinate North Korean exiles and human rights activists. On several occasions, it was caught shipping arms to Iran for the use of its terrorist clients, including Hezbollah, and possibly the Quds Force and Hamas. Last month, Arab media published evidence that Pyongyang sold anti-aircraft missiles to the Izz ad-Din al-Qassam Brigades, the military wing of Hamas. In 2014, Pyongyang’s cyber army, which operates from the Chilbosan Hotel in downtown Shenyang, presumably with the full knowledge and assent of the Chinese government, threatened terrorist attacks against American movie theaters that blocked the release of a crappy movie called “The Interview,” and hacked into South Korean nuclear power plants. 

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

In recent years, Pyongyang has also used its state media as an instrument of terrorist threats, an endemic genre I sometimes call “journo-terrorism. In most cases, the threats have come from the Korean Central News Agency, an organ of the Propaganda and Agitation Department, whose assets have been blocked by the Treasury Department since March for its role in censoring freedom of information and freedom of the press. In 2012, KCNA threatened South Korean media which published criticism of its government with artillery attacks. It also published a series of banners with lurid calls for the murder of then-South Korean President Lee Myung-bak.

Screen Shot 2016-09-06 at 7.08.45 AM

Since 2012, KCNA has also been a partner in journalism with the Associated Press, pursuant to a memorandum of agreement the AP refuses to release, despite multiple calls by other journalists to do so.

After a run of vehemently racist, sexist, and homophobic slurs that never quite ended, KCNA is back to making death threats against South Korea’s presidents. Today, its target is Park Geun-hye, South Korea’s first female president. KCNA is unlinkable and very nearly unreadable, but I did so you don’t have to. I’ve pasted excerpts of the key language below the fold, along with some tweets by The Wall Street Journal‘s Jonathan Cheng.

For good measure, I’ve also added some of its more sexist language (just in case Gloria Steinem is reading), war threats (in case the “peace treaty” crowd is reading), and reaffirmations that it will never give up its nukes (in case the 38north crowd is reading). Click “continue reading” below and judge for yourself.

As you read this language, remember that words like these can have real consequences. In 2006, years before Park’s election to the presidency, a deranged assailant angered over a criminal investigation slashed her throat and came within less than an inch of inflicting a fatal wound. Last year, a pro-North Korean activist slashed the throat of U.S. Ambassador Mark Lippert with a razor, an act that a KCNA commentary subsequently applauded as “a just punishment.”

In that context, there’s little question what Pyongyang expects the more extreme elements of its substantial cadre of sympathizers in South Korea to do. The question now is whether the U.S. government will overlook Pyongyang’s threats and calls to murder the democratically elected head of an allied state that it is bound by treaty to defend from North Korean attacks.

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N. Korea’s biggest a**hole shoots Vice-Premier, sends second-biggest a**hole to weed the fields

Here at OFK, stories about kremlinology are usually page two material. Too often, we’ll read reports that some official or minor celebrity has been executed, only to read a year later that the target has risen like Lazarus from the KCNA crypt. As a general rule, the closer a story about North Korea is to the center of the power structure, the less I tend to believe it. Which is why I didn’t even tweet the report yesterday that His Porcine Majesty executed the former agriculture minister and a senior education ministry official with an antiaircraft gun. 

Still, I’m marginally more likely to believe reports from the semi-official news agency Yonhap about this particular type of story, where it’s marginally less likely than most sources to run with stories that turn out to be false. 

So, with those caveats dispensed with, Yonhap quotes an anonymous “Seoul official” as saying that His Porcine Majesty sent Vice-Premier Kim Yong-jin to the firing squad last month for being an “anti-party and anti-revolutionary element,” which, in reality, could mean about anything, but probably means he did something very bad. Kim Yong-jin does not make an appearance in the OFK archives, which may mean nothing more than the fact that he never attracted my attention.

But one person who makes many appearances in the OFK archives is Kim Yong-chol, who according to the same Yonhap story, was sent “to a rural farm for one month of reeducation starting in mid-July” for abuse of power and showing a “’heavy-handed’ attitude.”  Far be it for me to defend an a**hole like Kim Yong-chol, but isn’t that written into the job description?

Since January, Yong-chol’s job has been to head the United Front Department. Immediately before that, however, he headed the Reconnaissance General Bureau, North Korea’s external spy agency. As such, Kim Yong-chol was responsible for the 2010 Cheonan and Yeonpyong Island attacks, the 2014 Sony cyberterrorist attack, the 2015 land mine attack, and a whole series of assassination attempts against South Korean human rights activists and North Korean dissidents in exile.

You can read all about it in my report, “Arsenal of Terror,” which is not available in bookstores.

Kim Yong-chol’s d**k moves also come in the more petty variety. A year and a half ago, when DNI Director James Clapper visited Pyongyang on a hostage-fetching mission, Yong-chol invited Clapper to dinner, only to present him with a bill for his meal. For reasons I’m sure are unrelated to this, Kim Yong-chol was designated by the Office of Foreign Assets Control for a second time right about that time (he was first designated in 2010). Not reported is whether Clapper actually paid the bill, or whether the Treasury Department is investigating.

For more rumors about the latest purges in Pyongyang, The Joongang Ilbo has you covered.

All of which leaves me with two questions. First, do you suppose when a pezzonovante like Kim Yong-chol is weeding peas in the hot July sun, he’s thinking about how deeply sorry and humbled he is, and how much he loves and respects his morbidly obese thirtysomething boss who earned his chops in front of a Playstation? Neither do I.

Second, if Andrei Lankov is right, and the fear of purges is the main reason (or more probably, one important reason) why so many North Korean diplomats are rushing for the exits, will this push more diplomats, officials, bankers, and money launderers to reconsider their return travel plans?

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House Committee marks up bill calling for N. Korea’s re-listing as a terror sponsor

Last month, when it was introduced, I wrote about H.R. 5208, the House bill that would require the Secretary of State to acknowledge some of the extensive evidence — including final U.S. federal court judgments — of North Korea’s sponsorship of terrorism, and to go on the record as to whether North Korea has repeatedly provided support for acts of international terrorism. Yesterday, the House Foreign Affairs Committee took the next step on H.R. 5208, approving it in a committee markup. You can watch the whole markup on video:

At 35 minutes in, Rep. Ted Poe (R, Tex.), the bill’s author, speaks powerfully for the bill’s passage. Chairman Royce (R, Cal.), Ranking Member Engel (D, N.Y.), and subcommittee Ranking Member Brad Sherman (D, Cal.) also spoke in favor of the bill.

The bill that emerged from that markup, as an amendment in the nature of a substitute, is tighter than the original.* The committee staff’s challenge was that there is so much evidence of North Korea’s arms sales to terrorists, terrifying cyberattacks on civilian targets, and plots to kill or kidnap dissidents and activists abroad, that the bill could easily have been 20 pages long. As a rule, a bill’s speed through Congress is inversely proportional to its length. 

After some technical corrections, the bill will go to the Speaker’s office for placement on the congressional calendar. This being an election year, the odds against that would seem rather long, although I’m not quite as pessimistic as the Associated Press’s correspondent. If His Porcine Majesty acts up again, Congress might just reach for the first heavy object to throw at him, and this bill is now within easy reach. Given the bipartisan support for H.R. 5208 in yesterday’s markup, and the reversed polarity of Hillary Clinton espousing much tougher rhetoric on North Korea than His Orange Majesty, this one doesn’t seem so likely to cleave along partisan lines.  

Frankly, I’m pleasantly surprised that the markup went (1) forward and (2) smoothly despite this being an election year, with all the complications that brings (a truncated congressional calendar and the inevitable partisan divisions). Yet the full Committee’s Ranking Member, Elliot Engel, and the subcommittee’s Ranking Member, Brad Sherman, both spoke in favor of the bill. Engel also called Bush’s 2007 Agreed Framework II “a bad deal.” So even if H.R. 5208 doesn’t pass this Congress, much like H.R. 1771, we’re likely to see it again in the next Congress as bipartisan support for it builds.

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Another bill that was marked up yesterday also deserves attention — H.R. 5484, the State Sponsors of Terrorism Review Enhancement Act. The bill makes some necessary procedural reforms to the SSOT rescission (de-listing) process by (1) increasing Congress’s time to review a rescission from 45 to 90 days, and (2) requiring the President to certify that the state hasn’t supported terrorism for two years (currently, that period is a ridiculously short six months). You can read more about how the SSOT rescission process works at page 29 of my report

An additional provision, providing for a congressional resolution of disapproval of a SSOT rescission, could run into constitutional problems. I caught this issue immediately, and later saw that at the 38-minute mark in the markup, so did Rep. Alan Grayson (D, Fla.)). Chairman Royce correctly noted that there are similar provisions in existing laws, although Grayson responded that those provisions haven’t yet been challenged in court.

Grayson is something of an enigma. He has earned a well-deserved reputation for his bombastic rhetoric and personal conduct. Even Harry Reid loathes him openly. But Grayson has also earned my grudging respect for his intellectual rigor. He reads every word of every bill sent to him, and sometimes, he catches serious legal defects in them. (If Grayson would raise those issues privately instead of in full committee hearings, he might be more effective.) Also, despite Grayson’s own abrasive personality, his staffers are some of the nicest people on the Hill.

Despite the problem with one of its provisions, H.R. 5484 makes necessary reforms. Back in 2008, I wrote about my frustration with the ridiculously short congressional review process for SSOT rescission, when the Bush administration and the State Department cynically announced North Korea’s rescission from the terror list just before the summer recess in a presidential election year, which effectively nullified the 45-day review.

The biggest surprise about this bill is its author — Republican Ted Yoho of Florida. Yoho has a reputation as an isolationist and is a made member of the Ron Paul-inspired Republican Liberty Caucus. He was one of the few GOP members of the Foreign Affairs Committee who wasn’t among the 147 co-sponsors of H.R. 1771, the predecessor to H.R. 757. Two Liberty Caucus members, Tom Massie (R, Ky.) and Justin Amash (R, Mich.), were the only votes against H.R. 757. Clearly, then, not even all Liberty Caucus members agree with Doug Bandow‘s policy objections to the list of state sponsors of terrorism.

H.R. 5484 stands almost no chance of passing in the current Congress. Ranking Member Elliot Engel didn’t oppose it, but he expressed discomfort that it could tie the administration’s hands in the future, and noted that the administration was opposed to it. Even so, the pressure for reforms to the terror listing process will continue to build as long as Congress thinks the State Department is abusing its discretion.

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* The legislative counsel will make a technical correction of the repeated language about one of the attempted hits on Hwang Jang-yop.

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