Most journalists still have no clue why Trump listed N. Korea as sponsor of terrorism yesterday

Yes, the news coverage of President Trump’s decision to put North Korea back on the list of state sponsors of terrorism was lazy and terible, but not in the ways I expected it to be.

So far, thankfully, I’ve read relatively little of the junk analysis I expected denying the extensive evidence of Pyongyang’s sponsorship of terrorism, even if some reporters were obviously winging it. Bloomberg’s reporters, for example, clearly hadn’t researched North Korea’s history of terrorism, remembered the Kim Jong-nam assassination, decided that a Google search was too much work, and quit there.

Not one article I read yesterday mentioned that Pyongyang kidnapped the Reverend Kim Dong-shik from China to North Korea and murdered him, for which a U.S. Court of Appeals found it legally liable. No one mentioned the assassination of Patrick Kim in China, or attempts on the lives of Hwang Jang-yop or Park Sang-hak, or the other examples I cited in my report. No one has ever gotten to the bottom of the axe-murder of Pastor Han Chung-ryeol. Hardly anyone even mentioned the threats that shut down “The Interview” and aborted the Steven Carell project “Pyongyang.” I saw one allusion to Pyongyang’s sale of arms to Hamas and/or Hezbollah, but no specific descriptions of it. All of these are facts of public interest to our North Korea policy.

In the end, it’s the administration that will have to explain its decision. It hinted yesterday at new sanctions today. Maybe we’ll see that explanation soon. I hope it’s a detailed bill of particulars.

Critics who knew they had no basis to oppose Trump’s decision substantively questioned the timing instead. To these people, of course, there’s never a good time to hold Pyongyang accountable for, say, using a weapon of mass destruction in a crowded airport terminal.

But the timing was a matter of law. After the assassination of Kim Jong-nam, Congress passed the KIMS Act, section 324 of which set a 90-day deadline for the Secretary of State to decide whether North Korea meets the legal criteria under section 6(j). I’ve already seen multiple examples of “experts” and journalists who asserted themselves as authorities on this subject, raised the question of timing, and apparently had no idea of the legal background to the question they raised.

President Trump flew off to Asia having missed his deadline to answer the question of whether Pyongyang sponsors terrorism. His deadline was October 31st. He understandably stretched that deadline for a few weeks while he met with his counterparts in Japan, South Korea, and China first (although I think he missed a great P.R. opportunity by failing to announce it in Japan, surrounded by the families of those abducted by North Korea). Some Trump critics — Trump critics, including me, have expressed the fear that the Constitution and the rule of law won’t contain him without “guardrails” — suggested that in this case, he should have ignored a deadline set by a nearly unanimous Congress. Or hidden his negative response behind a classified annex, which would have been a dangerous abuse of the classification authority. Or continued with the State Department’s Orwellian denials of Pyongyang’s culpability. One wonders how they’d have reacted to Trump flouting a law they agreed with.

As for the answer to the question itself, three federal courts have already answered it in the affirmative. There’s only one right answer. Had Trump answered in the negative, Congress would have excoriated his administration. The State Department’s already abysmal credibility in Congress would have collapsed. There would have been hearings and more reporting requirements. The President would have been embarrassed in a way that he appears unwilling to withstand: he would have looked weak.

Others asked why now, given North Korea’s missile testing pause? But this “pause” probably means nothing more than the fact that North Korea’s soldiers are either engaged in their annual training cycles or are out stealing corn from the farmers — the evidence of which is worth a post in itself. Pyongyang’s language, which soft-liners parse and play up when they see cherries to pick, has never been more belligerent. Wasn’t it only yesterday when KCNA threatened to murder the President?

Discuss among yourselves.

Pyongyang has also been on a belligerent streak against the soft-line government in Seoul, for those who think our tone matters.

For now, there is no opportunity to talk to Pyongyang about anything except our lifting of sanctions or our acceptance of its nuclear status. Talks on those terms don’t serve our interests and could only do them grave harm.

What may be confusing our judgment is Trump himself. We allow our judgments of some of his bad policies, or of the terrible way he communicates, to cloud our judgment of his other policies. In the case of North Korea, those policies appear to be under the sway of more serious-minded advisors in the White House, the State Department, the Treasury Department, and the intelligence community. These advisors are helping Trump do what the Obama and Bush administrations were incapable of doing — confronting a grave threat and making hard decisions. I understand that Trump challenges everyone’s objectivity, but North Korea policy is too urgent a matter for us to judge according to our tribal gag reflexes. This time, President Trump made the right call.

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Update: Oh, so you want some examples? Why not start with the single worst journalist covering North Korea for any medium today?

Yonhap’s coverage was as biased and as lacking in useful information as I’ve come to expect of it since the Korean election, and to the New York Times‘s Choe Sang-hun, it was all about dashing his own illusory hope for talks that Pyongyang doesn’t share. A good rule of thumb for New York Times reporting on Korea is that if a Times reporter wrote it, it’s “analysis” based on a weighted selection of the facts. If it’s really news, a wire service reporter wrote it.

In most other cases, the reporting simply didn’t do a very good job of explaining the issue to readers. Maybe the administration will give them an assist today. The coverage quickly drifted to how the decision would affect the prospect for negotiations, without mentioning that Pyongyang refuses to discuss denuclearization anyway.

As for the common “mostly symbolic” cliche, this began as a State Department talking point when it was flatly false. It has since been promoted to a half-truth by an exasperated Congress that imposed many of the same sanctions legislatively. I’ve already addressed the legal consequences of SSOT plenty of times (see here, here, and page 26) but what all of this discussion misses is that symbols are powerful things, and that perceptions are realities in the financial industry. A lack of strong public messaging has long been a key weakness of our North Korea sanctions effort. A modest clarification and tightening of sanctions, combined with a loud and clear public message, may seem merely symbolic to a journalist or even to a lawyer, but it’s powerfully symbolic to a banker in Hong Kong, a fund manager in New York, an insurer in London, a shipper in Dalian, or a diplomat from Luanda. Nirmal Ghosh of the Straits Times gets that, but he might be the only one who does.

Update 2: Also well worth reading is Benjamin Young’s paper on North Korea’s support for “non-state actors.”

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The Kim Jong-nam assassination was meant to terrorize, not just eliminate

As the reports suggest that the Trump administration is about to put Pyongyang back on the list of state sponsors of terrorism — from which it should never have been removed to begin with — I’m seeing some strained arguments in opposition.


[A lecturer at PUST, in case that’s relevant to you.]

Nonsense. If you just want to eliminate a rival, you “fix” his brakes and arrange a car not-accident. Or, in Kim Jong-un’s case, you take advantage of his well-known reputation as a playboy and recruit a femme fatale to lure him to a hotel room and jab him with a needle. You make it look like an overdose, a botched robbery, or a heart attack. You sure as hell don’t do it with VX nerve agent in a crowded airport terminal using multiple people who can be traced back to your embassy.

Pyongyang knows how to do a plausibly deniable assassination. In Kim Jong-nam’s case, it chose a plan so gruesome, so public, so needlessly elaborate, and so implausibly deniable that it reads like a James Bond parody. Why do that? To terrorize us, South Korea, and any past or future defectors: (1) we have WMDs, (2) we aren’t afraid to use them, (3) we don’t care about civilian casualties, and (4) if you criticize us, you will never be safe, no matter where you are and no matter how long it takes us to find you.

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Why Trump’s itinerary in Japan hints at re-listing N. Korea as a state sponsor of terrorism

Last week, Secretary of State Rex Tillerson missed a statutory deadline to decide whether to re-list North Korea as a state sponsor of terrorism (SSOT). Asked about this, State said it told members of Congress that Tillerson “expects to conclude his review and announce a decision within the month.” The Washington Times claims that “[t]here were rumors this week in the back hallways of the State Department that the administration was weighing a state sponsor designation.” National Security Advisor H.R. McMaster hinted at the outcome when he said, “A regime who (sic) murders someone in a public airport using nerve agent — that’s clearly an act of terrorism.” It helps to watch his expressions and listen to his intonations as he answers.

If this isn’t quite conclusive, the President’s itinerary and personality also offer strong indications. As I write this, the President has just arrived in Japan to begin his grand tour of Asia. This blog shies from making predictions, but I’ll offer this one: before President Trump leaves Japan, he will leave little room for doubt that Pyongyang will go back on the SSOT list, and soon. I could be wrong, but if I am, it will mean that a man that even his harshest detractors call a master showman, political opportunist, and crowd pleaser isn’t really those things after all.

[Update: It looks like I was wrong. What a shame to waste such an opportunity.]

Reason 1: Congress

I can see why the administration would risk annoying Congress by missing its deadline if it’s only waiting a few days to notify foreign governments of its decision to re-list Pyongyang. Ed Royce, the Chairman of the House Foreign Affairs Committee and author of the bill that set the deadline, wasn’t happy that the administration missed it, but Congress will probably forgive the slight if the administration practices some good diplomacy and then promptly re-lists Pyongyang.

Congress will not forgive the administration if it misses the deadline and only then says that it will not put Pyongyang back on the list. Ted Poe, who chairs the Subcommittee on Terrorism, Nonproliferation, and Trade, fired off a stream of tweets on the day of the deadline calling for Pyongyang’s re-listing. He called on Congress to pass his bill, H.R. 479, which is pending in both Houses of Congress, and which would force the State Department to review its decision again 90 days after its passage. If Congress times it right, that deadline could come several months before State’s next annual report on terrorism is due in June.

If Poe’s bill doesn’t do the trick, I could suggest an escalatory strategy: Congress could force the State Department to report, item by item, on a long list of crimes for which Pyongyang is the prime suspect, whether it believes Pyongyang committed each of those crimes, and whether each crime was an act of international terrorism. Poe could also call State Department officials back to testify before his subcommittee. This could go on forever, but it shouldn’t. The evidence is too overwhelming to deny forever.

Reason 2: Diplomacy

It’s well known that Trump gets along famously with Japanese Prime Minister Shinzo Abe. What isn’t as well known is that Abe has a deep personal history with the issue of Japanese citizens abducted by North Korea. If you know this history, you’ll also know why Trump’s visit foreshadows his decision on re-listing North Korea as an SSOT.

In 2002, after years of rumors and suspicion, Pyongyang admitted that it had kidnapped a number of Japanese citizens from their home country to use as language instructors for its spies. It is also suspected in dozens of other disappearances that it has not owned up to. The abduction issue resonates powerfully with the Japanese people. Pyongyang’s failure to come clean on other suspected abductions, most notably that of Megumi Yokota, turned public opinion strongly against it. In time, it forced the government to sever most trade relations and dismantle Chongryeon, Pyongyang’s fifth column in Japan.

Japan also leaned on its American ally to pressure North Korea to return the abductees. Before 2008, the State Department said that the abductions were acts of terrorism* and that North Korea had to return the abductees to get off the SSOT list. But in 2008, in a grasp for a nuclear deal with Kim Jong-il, George W. Bush flip-flopped and took Pyongyang off the list without securing either an admission from Kim about the remaining abductees or a clear commitment to return them. Bush’s decision, for which we can thank Condoleezza Rice and Christopher Hill, shook the Japanese government, drew strong criticism from Abe, and damaged America’s image as Japan’s loyal ally. Bush even felt compelled to call two of Abe’s successors, Yasuo Fukuda and Taro Aso, to promise that the U.S. would “never forget the abduction of Japanese citizens by North Korea.”

Bush’s decision was a diplomatic face-plant. It betrayed one of our closest allies to appease our most mendacious enemy. It gained us nothing and cost us valuable time and the leverage of the sanctions we lifted. For what it’s worth, even Hill now thinks Pyongyang should go back on the list. He also offers this “expert” opinion: “I don’t know the legal justification for putting them back on.” I doubt he knew better in 2008.

Abe has been at the center of the abduction issue since 2002, when he was former Prime Minister Junichiro Koizumi’s chief negotiator and both men flew to Pyongyang, met with Kim Jong-il, and secured the return of five of the abductees. In 2007, during a previous term as Prime Minister, Abe strongly opposed rescinding Pyongyang’s SSOT designation until it released all of the abductees. Abe raised the abduction issue in 2012 when he was again elected Prime Minister. He got nowhere with the Obama administration, so in 2014, he tried his luck with Kim Jong-un, to the detriment of Japan’s fragile alliance with the U.S. and South Korea, but without result. This year, Abe asked Trump to meet with the abductees’ families.

“When I asked … he accepted on the spot,” Abe said this week. “He promised he would do his best to rescue the Japanese abduction victims.”

Trump mentioned Megumi during his speech to the UN general assembly. “We know it kidnapped a sweet 13-year-old Japanese girl from a beach in her own country to enslave her as a language tutor for North Korea’s spies,” he said.

Megumi’s mother welcomed the reference to her daughter. “I was really surprised, but it was great, and I’m thankful to [Trump] for bringing up the issue and putting it into words in front of representatives from around the world,” she said, according to Kyodo news agency. “Every word on the issue is a chance.” [The Guardian]

I’ve long thought that pundits make too much of personal relationships between world leaders who must base their policy decisions on cold calculations of national interests, but emotions and relationships seem to matter more to Trump than they do to ordinary world leaders. Trump and Abe have clearly hit it off, the abduction issue is clearly and understandably a big deal for Abe, and Abe is now in a strong position to ask Trump for favors (unlike Moon Jae-in, who isn’t).

Trump does not strike me as one who would leave Japan quietly without giving his friend the political boost of re-designating North Korea as a state sponsor of terrorism, or at least indicating an imminent intent to do so. If he’s the master of publicity that even his harshest detractors say he is, he’ll announce it at a press conference with Abe and the victims’ families. Then, he’ll watch with satisfaction as Abe’s approval rating soars, and as Abe uses that political capital to build up Japan’s defenses.


If this opportunity hasn’t occurred to Trump, it has occurred to his advisors and his hosts. McMaster says that when Trump meets with the families, he will “bring a message of sympathy [and] empathy” and ask the world, “Do you want a regime like this to have nuclear weapons?” Former Abduction Minister Eriko Yamatani — yes, Japan created a cabinet ministry for this — raised it with Matt Pottinger, the National Security Council’s top Asia policy staffer, when they spoke recently. The administration has reportedly said it will consider the abductions when it decides on North Korea’s SSOT re-designation.

Another report, sourced to “an administration official,” says that the declaration would come after Trump’s meeting with Xi Jinping in Beijing. How foolish it would be, and how unlike Trump, to squander this opportunity to mobilize public opinion in Japan and globally. At the very least, I’d expect Trump to foreshadow his decision in a press availability or a tweet shortly before or after meeting with the families. Then, Trump can let Rex Tillerson make the formal designation later, under section 6(j) of the Export Administration Act.

Reason 3: Itinerary

No single case has personified the abduction tragedy for Japan like that of Megumi Yokota. North Korean agents kidnapped Megumi from the shores of her home village when she was just 13. The Japanese government says she scratched at the hold of the ship during her passage into slavery while weeping for her mother. Some reports say that the decades of loneliness and suffering in North Korea drove her to madness and suicide. To add to this outrage, in 2004, Pyongyang sent back what it claimed were Megumi’s ashes. These turned out to be the ashes of a completely different expendable human being. The callous cruelty of it all almost defies description.

In 2006, George W. Bush met with Megumi’s mother, Sakie Yokota. This week, Mrs. Yokota will also be among the family members who will meet with President Trump. The abductees’ families haven’t forgotten their sense of betrayal by President Bush. Just last month, Megumi’s brother called for North Korea’s re-listing as a state sponsor of terrorism. Perhaps Donald Trump scheduled a meeting with Sakie Yokota to offer her an anguished explanation of regret for the State Department’s pedantic, nuanced, but sadly unassailable legal reasoning that it was wrong before 2007 and, no, sorry, the kidnapping of your little girl on the way home from badminton practice wasn’t terrorism at all. No, I didn’t think that, either. And if not, why would Trump meet with Mrs. Yokota at all?

Reason 4: Personality

I’ve never met Donald Trump, but my impression of him is that he doesn’t have a dramatis personae, he is a dramatis personae. What he loves most — what he feeds his ego on — is the adoration of crowds, which he buys with the currency of crowd-pleasing declarations, some of them taxpayer-funded. The Japan Times, citing Pottinger, reports that Trump is familiar with Megumi’s case and instructed him “to study North Korea’s human rights violations.” That’s a lot of material for one of the busiest men in Washington to cover. Trump could employ a (ahem) full-time Special Envoy to cover that brief.

No sentient human being can know what happened to Megumi Yokota and fail to be outraged, but in Trump’s case, we have good reason to predict how outrage will influence his decision. Early in Trump’s presidency, we learned that he experiences bouts of righteous, impulsive, paternal outrage. This may have goaded him into bombing Syria. We saw this tendency again in his outrage at the death of Otto Warmbier. Trump’s critics can make a case that he’s a terrible person, but this quirk of Trump’s personality makes it harder for them to make a convincing case that he’s an entirely terrible person.

The Coverage

The news coverage of Pyongyang’s potential SSOT re-listing isn’t as terrible than it was, say, three years ago. These days, one seldom sees “experts” claim that North Korea hasn’t sponsored any acts of terrorism, which is progress, given that several federal court decisions (among others) have found that evidence to be sufficient. Both The Guardian and Fox News accurately review the history of Pyongyang’s listing and rescission. Fox’s report appears to have drawn heavily on well-researched letters from members of Congress calling for Pyongyang’s re-listing.

This doesn’t mean that the coverage has been good. Most of it fails to even summarize the overwhelming and credible evidence implicating Pyongyang in multiple international assassination attempts, terrorist threats, arms sales to terrorist groups or cyber-terrorist threats. The Voice of America is nearly alone in doing so, but Claudia Rosett offers the most detailed recitation. AP writes that “[s]anctions from a terror designation are unlikely to inflict significant, additional economic punishment,” which is not a true statement. Nor is it quite accurate to say that re-listing would be “largely symbolic,” although Congress has moved this falsehood closer to the truth over the last two years by re-imposing some (but not all) of the SSOT sanctions through legislation.

It is true that other recent actions by Congress, the Treasury Department, and the Justice Department will have far greater effects on Pyongyang’s finances than an SSOT re-listing. That includes another sanctions bill that I expect Congress to pass this year, and which will contain the toughest secondary financial sanctions we’ve seen yet. It is also true that Pyongyang’s re-listing, which seems increasingly likely to occur next week, will have powerful symbolic consequences, including by reinforcing a message to every bank, government, and tin-pot tyrant on this planet that this time, at last, we mean it.

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* Whether the abductions themselves were acts of terrorism is debatable, notwithstanding State’s pre-2007 position. North Korea’s original intent in abducting Japanese citizens was to use them as language instructors, which doesn’t meet the element that the act must be done with the intent to influence the conduct of a government or a civilian population. I could make a stronger argument, however, that the continued detention of the abductees — or their remains — became terrorism when, at least as early as 2002, Pyongyang tried to trade them for the normalization of relations with Japan, and most likely, a generous aid package. In 2014, Pyongyang again tried to use them (or their remains) as hostages to extract aid and the relaxation of bilateral sanctions.

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North Korean assassins arrested in Beijing as Tillerson’s terror sponsor decision looms

If you haven’t read my last post on this week’s deadline for the Secretary of State to decide whether North Korea has repeatedly sponsored acts of international terrorism, you may want to start there. This post will be a combination of breaking news and supplement to that post. This morning, Bloomberg News, citing a report in the Joongang Ilbo, is reporting that yet again, North Korean agents have been caught while on their way to assassinate a dissident in exile. This time, the target was Kim Han-sol, the son of Kim Jong-nam, whom the North Korean government also assassinated.

Chinese police arrested several North Koreans dispatched to Beijing on suspicion of plotting to murder Mr Kim Jong Un’s 22-year-old nephew, South Korea’s JoongAng Ilbo newspaper reported.

Two of seven North Korean agents were arrested over the alleged plot to kill Mr Kim Han Sol, whose father Kim Jong Nam was assassinated in Malaysia earlier this year, the newspaper said, citing an unidentified person familiar with North Korean issues.

Some agents are being interrogated in special facilities on the outskirts of Beijing, the paper said, without elaborating on whether the other five were arrested. China’s Foreign Ministry did not immediately respond to a faxed request for comment. [Bloomberg, crediting the Straits Times]

Let’s review the elements of “international terrorism:” To qualify, the conduct must be —

1. an act of, an attempt at, or a threat of violence,

2. that is unlawful where it was or would have been committed,

3. involves the citizens or territory of more than one country,

4. is carried out by clandestine agents or subnational groups, and

5. is done with the apparent intent* to influence the conduct of a government or a civilian population.

Subject to confirmation of the original report, that would be check, check, check, check, and check. I recently wrote about Kim Han-sol’s rescue from the apparent fear of assassination by Pyongyang’s hit squads by Cheollima Civil Defense, which looks to be the first indigenous North Korean resistance organization, though it appears to operate only outside North Korea using non-violent methods, and does not yet appear to pose a serious threat to the regime’s internal control.

For a list of recent North Korean state-sponsored attempts to assassinate human rights activists and dissidents in exile, I’ll refer you to my report for HRNK. (You don’t have to read all 100 pages. The table of contents will direct you to the appropriate section.) This week, when Thae Yong-ho testifies — under extraordinarily tight security — before the House Foreign Affairs Committee, I hope the members will ask him about this latest report. I hope they’ll ask him how reports like this make him feel about his own safety and the safety of his family. I hope they’ll ask him just what message he thinks Kim Jong-un is trying to send by dispatching these terrorists, how he intends to respond, and whether he will remain silent. What message do you suppose Secretary Tillerson will send to Thae and other North Korean dissidents in exile if he, like his predecessors, refuses to call North Korea a state sponsor of terrorism?

So, to summarize, Secretary Tillerson should re-list North Korea because —

1. North Korea has repeatedly sponsored acts of international terrorism, and the American people have an interest in having a government that tells them the truth.

2. To begin restoring the State Department’s badly damaged credibility in Congress, which suffers every time State refuses to re-list Pyongyang. In last week’s post, I cited a number of op-eds and a letter from several members of the House of Representatives calling for Pyongyang’s re-listing. I neglected to link to this letter, signed by 12 U.S. senators of both parties.

3. To send a message of support to dissidents in exile like Kim Han-sol, Thae Yong-ho, Park Sang-hak, Lee Hyeon-seo, and others.

4. To send a message to Pyongyang that we are not afraid to attach, and are determined to attach, consequences to its crimes.

5. To further tighten existing sanctions. In addition to the potential civil liability and securities law consequences I wrote about last week, there’s another important point I forgot to mention. Re-designating Pyongyang would close a loophole in our sanctions by unlocking the stricter sanctions regulations in 31 C.F.R. Part 596. That regulation unambiguously requires an OFAC license for any dollar transactions or transactions by U.S. persons with a government that’s listed as a state sponsor of terrorism.

Why does that matter? Because the existing North Korea Sanctions Regulation (NKSR) at 31 C.F.R. 510, in my view, does not do that. It hasn’t been updated since 2011 — two statutes and three executive orders ago. Instead, the NKSR prohibits “[a]ll transactions prohibited pursuant to Executive Order 13466,” 13551 (which potentially applies to anyone involved in Pyongyang’s arms trafficking, proliferation, and money laundering, but in reality only applies to a few people who’ve been designated under this EO), 13570 (which requires a license for most imports from and exports to North Korea).

But to see how vague, circular, and Kafkaesque this regulation really is, you have to see what 13466 covers: any property that was already blocked until 2008, when President Bush took North Korea off the terror list and canceled Trading With the Enemy Act sanctions. That appears to include only property that was blocked in 2008. Maybe Treasury would disagree. Then again, maybe if it tried to sanction or prosecute anyone for violating the NKSR — and with a single exception, it never has — a competent defense attorney would argue that the regulation is ambiguous on its face, and that under the rule of lenity, the court should construe any ambiguity in favor of the accused. The courts will not give Chevron deference to an agency’s interpretation of a regulation for purposes of imposing a criminal punishment. Part 510 is so vague in its wording, circular in its reasoning, and outdated in its incorporation of authorities that not even I could tell you what it really means, and reporters and government officials routinely ask me what these laws and regulations mean. Why wouldn’t a banker or trading company official in Dandong be able to make the same argument?

If our government is serious about “maximum pressure,” some clarity would be useful.

The State Department worries about how Pyongyang would react to a re-listing. There will be tantrums, paroxysms, and provocations, of course. That’s de rigeur for Pyongyang, but provocations are inevitable, for one excuse or another, regardless of what Tillerson decides. What Tillerson can better control is whether he will also face a tantrum from Congress. Regardless of which convenient excuse it may seize on, Pyongyang engages in provocations to achieve political and diplomatic aims, and tests weapons to advance technical capabilities. Our objective should be to demonstrate to Pyongyang that attacks on our interests carry real consequences. An SSOT re-listing will carry both financial and symbolic consequences.

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* Previously said “attempt.” Since corrected.

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A reader’s question causes me to clarify a few points. First, Treasury’s FAQs say that financial transactions through the U.S. with North Korea require a license. Second, EO 13570, which is appended to the NKSR en toto, bans the export of “services” to North Korea, and the case law supports the position that clearing dollar transactions through the U.S. is an export of services. EO 13722, which is not appended to the most recent version of the NKSR published by the Government Printing Office online, also contains similar language.

But that’s far from intuitive or unambiguous enough for many of the persons who might consider dealing with North Korea. Even a brief review of what financial flows the Justice Department and the U.N. Panel of Experts have exposed in recent months shows that we haven’t made this nearly clear enough to the financial industry. Perceptions can become realities. EO 13810 made it much clearer, of course, but why not make the text of the regulation itself clear? Heck, we have four sets of sanctions regulations for Iran. You’d think having one set of clear sanctions regulations for North Korea isn’t too much to ask. The relative attraction of Part 596 is that at least it’s clear to everyone. Sorry for the wonky tangent.

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Update, Nov. 4: The original Joongang Ilbo report is now available in English. It cites an unnamed source. The South Korean National Intelligence service officially says that it has no knowledge of the plot. Separately, it told KBS that Kim Jong-nam is safe in a third country and questioned the veracity of the Joongang Ilbo’s report on the basis that Kim Han-sol isn’t in China. The NIS may have sound reasons to doubt this anonymous report. It may also be under political pressure from Moon Jae-in’s cabinet to avoid implicating Pyongyang in its latest attempted act of terrorism. But the fact that Kim Han-sol isn’t in China — assuming that’s true — is probative of nothing. Regardless of where Han-sol is living, one naturally would expect the North Korean agents to transit through China. After all, most flights out of Pyongyang transit through there, many of its agents reside there, and so does most of its cash.

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Congress to Tillerson: Put North Korea back on the list of sponsors of terrorism

I won’t belabor the point of why North Korea should be on the list (well, maybe just a little). The better question is why, eight months, a nuclear test, two U.N. Security Council resolutions, and one public WMD-enabled assassination after Donald Trump’s inauguration, it isn’t already on that list. One growing line of speculation is that Tillerson, for all his unpopularity at Foggy Bottom, has gone native there. This sentiment comes from thoughtful and influential conservative members of Congress, not the sort who toss around words like “cuck” and “globalist.” And while voices of caution and experience are especially valuable in reckless times like these, the views that predominate within the State Department had become so hidebound as to contribute to the very reaction that put Donald Trump in the Oval Office to begin with.

Several factors have angered Congress into pushing for Pyongyang’s re-listing. One is the death of Otto Warmbier. Like a number of experienced congressional staffers I’ve talked to over the years, Wambier’s parents were surprised to learn that North Korea was not already on the list. I suspect that they’re even more surprised that it was not re-listed after their son’s death. I sympathize with their sentiment and agree that a re-listing would be a just result and good policy. I could offer a lawyer’s quibble that Wambier’s death may or may not have been murder or negligent homicide, but was almost certainly not an act of terrorism in a strictly legal sense, because neither clandestine agents nor subnational groups carried it out.

Kim Jong-un’s WMD testing and threats are arguably the biggest factor in Congress’s new push. But although the State Department is required to report on a state’s WMD proliferation in its annual terrorism report, I’ve argued that WMD testing isn’t legally definable as terrorism, either. Of course, this factor is a wash, considering that George W. Bush struck North Korea from the list because Kim Jong-il promised to dismantle his nuclear programs. The State Department certainly didn’t raise any pedantic legal objections to North Korea’s rescission then.

The result of this sentiment is that last week, 16 members of the House of Representatives — a fairly balanced group of Republicans and Democrats — wrote to Secretary Tillerson, calling for a re-listing. In an op-ed for the New York Times, Senator Ted Cruz adds his voice to those calls. Separately, the House has just passed, by a vote of 415 to 2, another North Korea sanctions law citing (among other factors) the risk of terrorist financing by North Korea in its findings section.

Again, I am asked: does this bill do anything we haven’t already done? Happily, yes. Although its prohibition on correspondent accounts is similar to the one added in section 312 of the KIMS Act, the new provision carries penalties that mirror those in section 206 of the IEEPA. (More concerning is that the new provision overlaps with the Treasury regulation at 31 CFR 1010.659, which already bans correspondent relationships with North Korean banks. Violations of that regulation are already punishable under 31 USC 5322, not including civil penalties that may also apply.) The section 5 reporting requirement on non-compliant banks will also add to the potential reputational harm that those banks could face. If shareholders and bond rating agencies see that a bank has been reported, it could cause them to weigh the risk of sanctions or boycotts in their financial decisions. The loss of assistance from international financial institutions for foreign governments that violate North Korea sanctions could be significant, as a number of developing UN member states — I mean you, Namibia, Malaysia, Egypt, Cambodia, Tanzania, and Angola — would not want to risk losing that assistance. Note also the fairly even partisan distribution in co-sponsorship for the new bill. Also, as a spoiler alert: this bill might just get even better when the Senate amends it.

Section 324 of the KIMS Act requires Secretary Tillerson to report back to Congress whether, in his view, North Korea has repeatedly sponsored acts of international terrorism, pursuant to section 6(j) of the Export Administration Act. His deadline is Tuesday, October 31st, and there is only one factually and legally correct answer to the question: yes. From a strictly legal perspective, Pyongyang’s assassination of Kim Jong-nam, the Sony cyberterror threats against the American homeland, its arming of Hamas and Hezbollah, and its dispatches of assassins to murder dissidents and human rights activists abroad all clearly qualify. Our allies in Japan, who want their abducted citizens back, want him to do it. The North Korean dissidents in exile who fear Kim Jong-un’s hit squads want him to do it. The Warmbier family wants him to do it. And Congress, which sees that immunizing His Porcine Majesty from the consequences of his crimes has only encouraged him to be more belligerent, clearly wants him to do it.

Civil servants often complain to me that they’re tired of being heaped with congressional mandates and reporting requirements while they’re trying to do their jobs. I sympathize. I would also predict that the mandates will continue to issue so long as the State Department disregards the collective views of a united Congress — and how often does one hear that phrase today? Eventually, the State Department will have to acknowledge that Congress isn’t going to let go of this issue. As long as State fails to respond to Congress’s will, it will continue to pay a price in time, energy, and credibility.

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Computer crime, bank fraud & money laundering: A preview of Kim Jong-un’s indictment

The Wall Street Journal is reporting that hackers employed by the government of North Korea have been implicated in yet another international bank fraud scheme using hacked SWIFT software. This time, the victim is a bank in Taiwan, and the take was $60 million, all of it laundered through accounts in Cambodia, Sri Lanka, and the United States.

In a blog post Tuesday, cybersecurity researchers at U.K. defense company BAE Systems PLC also implicated Lazarus in the Taiwanese theft, saying that tools used in the attack on the Far Eastern International Bank include those used by Lazarus in the past.

“The attack this month on Taiwanese Far Eastern International Bank has some of the hallmarks of the Lazarus group,” BAE researchers wrote.

The suspected ties to Lazarus suggest the group’s continued focus on financial cybercrimes. In addition to the Bangladesh Bank theft, the BAE researchers said the group has been targeting bitcoin and is behind attacks on banks in Mexico and Poland.

Security researchers suspect the group has links to North Korea. U.S. authorities have said that one hack also linked to Lazarus—the 2014 Sony Pictures hack—originated in North Korea. The country has denied being behind the attack.

The BAE researchers said they found further evidence of the group’s North Korea links, saying they observed infrastructure in North Korea controlling the malware used in a previous Lazarus-linked attack. Representatives at North Korea’s Beijing embassy and Hong Kong consulate weren’t immediately available for comment. [WSJ, Dan Strumpf]

Sri Lankan authorities have arrested two suspects, one of whom was trying to withdraw $520,000 (which is more than my ATM ordinarily allows me to take out before a trip to Home Depot for plywood and router bits).

That report closely follows this New York Times story on the recent history of North Korea’s cyber crimes, including the Bangladesh Bank fraud, where the North Koreans got away with $81 million, the 2013 Dark Seoul cyberattacks, the 2014 Sony cyberattack and cyberterrorist attack against the U.S. homeland (about which the United States of America did approximately diddly squat), and (consequently) this year’s the WannaCry ransomware attacks.

Earlier this year, I wrote about reports that high officials in U.S. intelligence and law enforcement agencies had found evidence implicating North Korea in recent cyberattacks. Clearly, the FBI is investigating this course of criminal conduct, which is something I presume the FBI wouldn’t do without some prospect of a prosecution. We are speaking, after all, of conduct that is highly dangerous, ongoing, and undeterred. That gives the U.S. government a powerful incentive to charge those who conspired to commit these crimes.

Which brings us to this question: Is there any real doubt as to who the real person of interest is here? Of course, the feds would need at least some proof to get a grand jury to indict. The opacity of the royal court in Pyongyang presents some obvious challenges to this, but just over a decade ago, when prosecutors very nearly indicted His Porcine Majesty’s father for counterfeiting — before George W. Bush stopped them for political reasons — they concluded that those challenges were surmountable.

“The most difficult thing is connecting evidence of criminality to a state’s leader, because there is so much deniability built in. But there isn’t a whole lot of activity in North Korea that isn’t sanctioned by the leadership, and the evidence we had already built up was very good. These cases were very doable.” The criminal cases, says Asher, were based on information from undercover agents, informants, and a vast surveillance operation. [Vanity Fair, David Rose]

If you’ve read the links above or my posts on the Sony cyber attacks, it’s apparent that our signals intelligence is part of the case that implicates state-sponsored North Korean hackers. The Justice Department has cited the testimony of defectors in recent civil forfeiture cases against North Korean funds, and at least two defectors with inside knowledge of North Korean cyber operations have spoken publicly.

But even assuming there are no defectors who testify to His Porcine Majesty’s complicity, and that the government offers no signals intelligence implicating him (which it might not want to do to protect sources and methods) the feds could still do what the plaintiffs did in their lawsuits against North Korea for the state sponsorship of terrorism — they could call experts to testify about North Korea’s system of government, command systems, and the certainty that this conspiracy must have been approved at the very top.

Then, what would the feds most likely charge? Prosecutors’ opinions inevitably vary, but here are my best guesses. I’ve linked the relevant sections in the Criminal Code so that you can read the elements yourself.

  • Count I: Conspiracy. This one is pretty much a given in most federal prosecutions now. Note that cases interpreting the federal conspiracy statute define “defraud the United States” broadly.
  • Count II: Bank Fraud. Which should be self-explanatory.
  • Count IV: Violations of the Computer Fraud & Abuse Act. This is the statute the feds use to charge computer hacking offenses.
  • Count III: Money Laundering. In plain English, the transfer, use, or spending of crime-tainted funds with intent to carry out, facilitate, or profit from one of the predicate offenses listed in subsection (c) of the money laundering statute. This is an important count, because — let’s face it — it’s not like we’re ever going to arrest Kim Jong-un short of his overthrow. The only way to hold people beyond our personal jurisdiction accountable is to shame them and seize and forfeit their funds. The indictment shames; the forfeiture count takes the money away.
  • Count V: Criminal Forfeiture. This is how we take money away from people after they’re convicted (but hold that thought for a moment).

Assuming the feds do indict, would His Porcine Majesty, a sitting head of state, be immune from prosecution in a U.S. court? I want to thank one of my Twitter followers, Shin Chang-hoon, for pointing me to this interesting discussion of that potential obstacle in the broader, global context. In the U.S. federal courts, however, there is at least one precedent for the feds successfully indicting, prosecuting, and convicting a sitting, de facto head of state. That would be Manuel Antonio Noriega, the former dictator of Panama, whom we arrested after the 1989 U.S. invasion of that country. Noriega argued his indictment on drug charges must be dismissed because he was immune from prosecution. The U.S. Court of Appeals for the 11th Circuit rejected Noriega’s argument on the grounds that the U.S. had not recognized him as the lawful head of state, and because (and this is admittedly circular) by invading Panama, and by arresting and extraditing him, the U.S. showed that it did not intend to immunize him. You can read the court’s decision here.

Yes, the potential for such prosecutions to get out of hand is obvious, but it’s hard to believe that a federal court of appeals would immunize a head of state from prosecution for straight-up international bank fraud. The key distinction is whether the prosecuted conduct consists of the acts of a head of state or “for private or criminal acts.”

Having navigated past one problem, we encounter a more difficult one: the requirement to have a defendant present for the arraignment before a prosecution can go forward. (One of my least pleasant trials was a case where I defended a man who ran away after his arraignment and before trial. Much like Clint Eastwood did not do in 2012, only more effectively, I had to defend an empty chair. The chair got three years — a good result, given the charges and the evidence.)

So, does this bring us to an Emily Litella moment?

Not quite. Admittedly, my experience in federal civilian criminal litigation is limited, but as I read the Federal Rules of Criminal Procedure and the U.S. Attorneys’ Manual, you don’t need to have custody of a defendant to indict. The statute of limitations (typically, five years) stops running when the feds indict. Then, the indictment sits on a shelf until arraignment, which starts the ticking of the defendant’s speedy trial clock. But why do that? Again, past history is instructive.

The final stage, which David Asher says President Bush had been fully briefed about, would have been the unsealing of criminal indictments. “We could have gone after the foreign personal bank accounts of the leadership because we could prove they were kingpins,” Asher says. “We were going to indict the ultimate perpetrators of a global criminal network.” “The world wanted evidence that North Korea is a criminal state, not a lot of hoo-ha,” says Suzanne Hayden, a former senior prosecutor at the Department of Justice who ran its part of the Illicit Activities Initiative. “The criminal cases would have provided the evidence. It would have been in the indictments. As with any money-laundering investigation, we would have identified the players and traced them back, from Macao to those who were behind it in North Korea.” [Vanity Fair, David Rose]

A better reason might be to charge and prosecute the third-country nationals and businesses that provide the North Korean hackers with the havens and support they require.

The feds would also have the alternative of filing a civil forfeiture case under 18 U.S.C. 981, alleging all of the same counts in a civil, in rem suit against funds that belong to Kim Jong-un, on the theory that the funds are proceeds of that conduct, or are facilitating property (such as property co-mingled with the stolen funds to conceal their origin and ownership). The advantage of that strategy is that the feds would only have to prove the forfeitability of the property by a preponderance of the evidence, and the feds would win the suit by default unless Kim Jong-un enters an appearance in federal court and intervenes in the proceeding.

In 2005, President Bush decided not to go forward with the prosecution of Kim Jong-il because it was afraid that he’d walk out of six-party talks. But of course, North Korea did walk about of six-party talks in 2008, hasn’t returned since then, and is absolutely adamant in its refusal to negotiate either a freeze or denuclearization, that concern isn’t present.

Of all the dumb things smart people tend to write about North Korea, the dumbest of them all may be the idea that what North Korea needs most is for us to teach it how to do capitalism. Over the last week, I’ve read reports of how North Korea and its officials make money through drug trafficking, racetrack gambling, tourism, and ivory and rhino horn smuggling. It runs one of the world’s more sophisticated money laundering operations using front and shell companies in Hong Kong. The last thing Pyongyang needs us for is to teach it how to make money. To Pyongyang, capitalism is not a path to reform, but a path to the enslavement of all Koreans. What Pyongyang needs to learn is an object lesson in the rule of law — that at last, its crimes will have consequences, even if some of those consequences are symbolic. And for a system of government built on symbols and myths, symbolic consequences can be some of the most powerful ones.

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Kim Jong-Un’s Moonshadow Policy is eclipsing free thought in S. Korea, and beyond

As we begin rehashing the time-worn policy arguments about responding to a nuclear North Korea, it’s useful to inform those arguments with further evidence of just how Pyongyang is leveraging its nuclear hegemony, by escalating its control over speech in South Korea. Last week, a few of us noticed that KCNA published a “death sentence” against four journalists (two reviewers and two newspaper presidents) over a review of “North Korea Confidential” by James Pearson and Daniel Tudor, asserting further that “the penalties will be enforced at an arbitrary point in time at an arbitrary point, without any additional procedure.”

President Bush removed North Korea from the list of state sponsors of terrorism on October 11, 2008. Discuss among yourselves.

I’ve posted the full text of KCNA’s threat below the fold (click “continue reading.”) The threat drew a mild condemnation from Seoul. What, do you suppose, are the odds that KCNA made this threat without the personal approval of His Porcine Majesty? No doubt, Pyongyang found the cover of the Korean edition to be provocative:

I don’t know if the reviewers would have even seen this cover. Pearson, an affable person who has done some excellent investigative journalism about North Korea’s money laundering in Malaysia and Singapore, also sent me a review copy when the book came out in English. My copy doesn’t have that cover. Other authors who’ve sent me review copies have done so by .pdf, and none of those texts showed a cover image. But then, the North Korean judicial system isn’t known for its evidentiary rigor or protections of due process.

Why else might Pyongyang target “North Korea Confidential?” It’s certainly a useful snapshot of how provincial North Korea in 2015 differed from the circa-1985 impression that most foreigners have of its society, culture, and economy, although a regular (or obsessive) Korea-watcher won’t read much there that she hasn’t read somewhere else. The book is hardly an indictment of North Korea’s political system. Pearson and Tudor don’t ignore the existence of the political prison camps or other human rights abuses, but those things aren’t the main focus of their book. They mainly focus on economic and cultural changes in North Korea since the Great Famine, and on evidence supporting the implication (of which I’m skeptical) that these things will necessarily drive political change. In their conclusion, they are “doubtful about the possibility of regime collapse” and skeptical of the proposition that “sanctions could push the DPRK to the breaking point.” They ultimately conclude that “the most likely scenario for North Korea in the short and medium term is the gradual opening of the country under the current regime.”

Of course, things don’t seem to be working out that way. Indeed, Kim Jong-Un’s greatest domestic achievement may be his success in sealing North Korea’s borders and implementing a moderately effective digital censorship regimen, perhaps with the technical assistance of well-meaning engagers here.

None of which is really my point. My point is that compared to any number of other North Korea books one can read in Korean, “North Korea Confidental” is mild stuff. It’s not half as inflammatory, subversive, or acerbic as most of what you might read at this blog, or at B.R. Myers’s Sthele Press. Having mostly finished this post last week, I decided to hold it for a few days while I emailed some other authors to ask whether their works are published in Korean. Professor B.R. Myers informs me that “The Cleanest Race” is; so is Kang Chol-hwan’s “The Aquariums of Pyongyang;” Yeonmi Park’s, “In Order to Live;” and most of Marcus Noland and Stephan Haggard’s books. All of these books are more ideologically dangerous to Pyongyang than “North Korea Confidential.” Why not them?

The key to explaining this, I think, is that the authors themselves were not the targets of this threat; the Korean journalists who reviewed the book’s Korean edition were. And here, we find the makings of a pattern and an escalation, because a reader brings to my attention that KCNA has also published this threat against centrist and right-of-center Korean media — sorry, make that “Puppet Reptile Writers.” Apologies for the long quote, but this is worth reading and archiving in full:

Pyongyang, September 1 (KCNA) — Yonhap News, Chosun Ilbo, Dong-A Ilbo, Maeil Kyongje, Munhwa Ilbo and other vicious conservative media of south Korea professing to represent the south Korean media are speaking ill of the Korean People’s Army’s resolute warning for mounting enveloping fire on Guam and the will of the Korean people to wage death-defying resistance against the U.S. and are unhesitatingly trumpeting about such rhetoric as “enhanced war atmosphere” and “creation of tensions for maintaining social system”.

A spokesman for the Central Committee of the Journalists Union of Korea in a statement Friday says this clearly proves that the puppet conservative media are made up of hack writers, servants of bellicose forces at home and abroad and group of traitors with whom we can not live together.

The Central Committee of the Journalists Union of Korea sternly declares as follows reflecting the towering grudge and hostility of the mediapersons of the DPRK against the puppet conservative media going reckless to hurt the dignity of the DPRK while pointing an accusing finger at the dignity of the supreme leadership of the DPRK:

We will sharpen the just writing brushes to defend our leader, our party and our social system and win a final victory in the confrontation with the U.S.

No matter how loudly the hostile forces may cry out, they can never check the advance of the DPRK dashing toward the bright future of humankind along the straight road of independence, Songun and socialism.

We will track down the puppet conservative reptile writers fostering discord within the nation under the auspices and at the instigation of the anti-reunification forces at home and abroad, and throw overboard all of them.

The puppet ultra-right conservative hack writers without elementary conscience as writers have to be completely stamped out. This is the unanimous will of the mediapersons of the DPRK, and this will be put into practice.

Our grime and merciless pen will sight the bases which commit hideous crimes against the DPRK by spreading misinformation about it, and beat them to pieces.

The puppet conservative media escalating confrontation with the DPRK while dare challenge the annihilating spirit of the army and people of the DPRK will never be able to evade the shower of retaliatory blows. -0- [link]

Let’s call all of this precisely what it is: terrorism. See also Pyongyang’s extraterritorial censorship of “The Interview” in the United States, Europe, and Asia. See also (in no particular order) its series of attempts between 2008 and 2014 to murder North Korean dissidents in exile, its 2012 threat to shell the offices of conservative South Korean newspapers, its 2014 threats against defector-activists who launch leaflet balloons over the DMZ, its approval of the 2015 slashing attack on the U.S. Ambassador, its 2016 threat to murder the President of South Korea, its 2017 threat to murder the ex-President of South Korea and just about anyone who angers it, and its 2017 murder of Kim Jong-Nam in Kuala Lumpur.

I offer that evidence for the benefit of anyone who is tempted to believe the palliative that we can just “learn to live with” a nuclear North Korea, to view our own acknowledgement of Pyongyang’s nuclear status as the end of this crisis, or to find reassurance in the belief that Pyongyang, having achieved nuclear hegemony at such cost, will rest contentedly within its own borders. On the contrary, from now until the end of Kim Jong-Un’s life, every book review, editorial, film, conference, and U.N. vote will be cast as a choice between the offending thoughts, on one hand, and assassination or war on the other. How much of your freedom of thought will you give up for the sake of “peace?” The problem with that question is that no one ever asks it just once.

I have written before about how the generals in Pyongyang believe they can gradually subjugate South Korea into submission and remote control by confederation, rather than attempt to occupy a country with twice its population and many times its wealth. I have written about how Pyongyang’s attempts to censor opinion in South Korea and elsewhere, including the United States and Europe, are at the vanguard of those plans, because Pyongyang knows that to control people, you must first control their thoughts. Pyongyang’s thought control takes many forms, from death threats, to hacking the email of scholars here, to threatening the organizers of conferences. So does the thought control of its simpaticos in South Korea, who use the courts to intimidate refugees, use South Korea’s oppressive libel laws to suppress parliamentary and political speech, send thugs from state-subsidized labor unions to attack their critics, and (as Roh Moo-hyun did) use selective and ideologically motivate tax audits against unfriendly newspapers. And these are just the things we know about.

It may be a complete coincidence that at this moment, Moon Jae-in and the hard-left labor unions are now using threats of criminal prosecution to assert ideological control over Yonhap and other state-owned media. Then again, it may not be a complete coincidence. Whatever this is, it is not “liberal.”

North Korea and the anti-anti-North Korean left in South Korea have many instruments for controlling the thoughts of South Koreans. Recently, I argued how various forms of censorship have gravely damaged South Korea’s liberal democracy and the quality of its political debate. Meanwhile, the fawning coverage that foreign and Korean journalists have given Moon Jae-in is enough to make Kim Jong-un envious of his treatment by KCNA. These are the journalists who are supposed to be the guardians of a free press. But at the critical moment, they are almost as derelict as (though less corrupt than) the Associated Press was when it made its Faustian bargain with the North Korean government. You won’t hear a critical word from the AP about the fact that its business partner just published a threat to murder four fellow journalists. Remember that the next time anyone from the AP makes a self-serving soapbox argument about its important role as a guardian of your freedom (which is exactly what the AP and journalists should be).

As for most foreign and Korean journalists, they’re so personally and ideologically enamored of Moon Jae-in, and so invested in the narrative of Pyongyang as David besieged by Goliath, that they’ve blinded themselves to this partial eclipse of South Korea’s freedoms. Pray that Kim Jong-Un’s Moonshadow Policy is no more successful than Kim Dae-jung’s Sunshine Policy was. You can try to reassure yourself that this is South Korea’s problem, but recent history suggests that while the path of totality will eventually cover all of Korea, the path of the partial eclipse will be global. And so far, Pyongyang’s campaign seems to be working. By the way, when was the last time you saw a movie about North Korea? I’ll bet it wasn’t made after 2014.

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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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