Contradiction isn’t argument: A response to Doug Bandow on N. Korea and terrorism

In the years after my return from four years with the Army in Korea, I found much to agree with in Doug Bandow’s writing — up to a point. Bandow is best known — at least in the context of Korea — for arguing that South Korea can and should pay for its own defense, and that U.S. Forces Korea should withdraw. A supporter of the isolationist and semi-retired cult figure, Ron Paul, Bandow favors the withdrawal of all 28,500 U.S. military personnel from South Korea. But if we’ve learned anything in the last dozen years, it’s that ill-advised invasions and sudden disengagements can both create dangerous power vacuums. Yes, South Korea can and should pay for its own defense. U.S. ground forces could leave on a five-to-ten-year timetable and leave behind some pre-positioned equipment, and the U.S.-Korea alliance could evolve into something like our alliances with Jordan, Turkey, or Israel. That would serve the interests of both countries.

This is decidedly not Bandow’s direction. He views the total withdrawal of USFK as mood music for “initiating negotiations” with Pyongyang to improve relations. The premise of his unified theory of Korea policy, expressed in a November 2014 op-ed, is that economic engagement can still transform (rather than merely perpetuate) a state that has built its survival strategy on isolation and xenophobic hostility. In the 1990s, this idea was once the received conventional wisdom, before it failed so conclusively that it was abandoned and replaced by policy paralysis that prefers to be called “strategic patience.” At the cost of a mere $9 billion — also indirectly paid by U.S. taxpayers — the legacy of “engagement” includes no signs of political reform, but a North Korea that’s as menacing as ever, only with an effective nuclear arsenal. Bandow wanted President Obama to “talk” to North Korea, but talk about what? Since 2008, Pyongyang has refused to talk about denuclearization.

Then, twenty days after Bandow published that, this happened:

President Obama said on Friday that the United States “will respond proportionally” against North Korea for its destructive cyberattacks on Sony Pictures, but he criticized the Hollywood studio for giving in to intimidation when it withdrew “The Interview,” the satirical movie that provoked the attacks, before it opened. [N.Y. Times]

In my recent report on North Korea’s sponsorship of international terrorism, I carefully distinguished the hacking of Sony, which wasn’t a violent act and therefore not terrorism, from this:

Warning

We will clearly show it to you at the very time and places “The Interview” be shown, including the premiere, how bitter fate those who seek fun in terror should be doomed to.

Soon all the world will see what an awful movie Sony Pictures Entertainment has made.

The world will be full of fear.

Remember the 11th of September 2001.

We recommend you to keep yourself distant from the places at that time.

(If your house is nearby, you’d better leave.)

Whatever comes in the coming days is called by the greed of Sony Pictures Entertainment.

All the world will denounce the SONY.

More to come…

To argue that this isn’t an act of terrorism against the United States defies both the law and common sense. It would be inconsistent with the State Department’s own citation of threats of violent acts, cited in years of previous country reports (page 16). To offer no credible response to the most effective foreign attack on free expression in American history will assuredly invite more attempts to censor us.

Writing in The National Interest, however, Bandow not only argues against an SSOT re-listing on policy grounds, he insists that North Korea has not supported international terrorism, period:

Stanton does a lawyerly job of offering evidence that the DPRK government is a nasty piece of work. Over the last decade or so it has kidnapped and assassinated opponents, supported groups and governments opposed by the U.S. government, attacked South Korea, launched cyber-attacks, sold nuclear technology, and conducted missile and nuclear tests. What Pyongyang apparently has not done since 1987 is initiate a terrorist attack against anyone, let alone America. North Korea is an evil state, not a terrorist state. [Doug Bandow, The National Interest]

This is like telling your rabbi that you eat bacon, pepperoni, gummi bears, chitterlings, Chee-tos, meatloaf, elderberries, and scrapple … but never pork. Fortunately, my report does a better job of distinguishing which of these acts are support for international terrorism, and which ones aren’t.

To his credit, Bandow doesn’t entertain conspiracy theories or deny that North Korea was behind the “Guardians of Peace” threat. Less to his credit, he seems to have read the Cliff’s Notes instead of the full report. He offers no argument against the federal court decisions holding that North Korea abducted a U.S. resident, sold weapons and technical assistance to Hezbollah, or helped the Japanese Red Army and the Popular Front for the Liberation of Palestine carry out the Lod Airport massacre. He doesn’t deny the evidence that South Korean courts relied on to convict a kidnapper of Rev. Kim Dong Shik, or the unsuccessful assassins of Hwang Jang Yop and Park Sang Hak. He doesn’t deny the multiple shipments of arms from North Korea to Hezbollah. He doesn’t deny that North Korean clandestine agents are running around China and South Korea, jabbing poison needles into human rights activists.

Bandow doesn’t exactly argue that these things fall outside the legal definition of international terrorism, either; he just says they do. This might force us into a difficult choice between the legal analysis of three federal district court judges and a panel of the U.S. Court of Appeals for the D.C Circuit (on one hand) and Doug Bandow (on the other hand), except that as Michael Palin taught us, contradiction is not the same thing as argument.

If none of those things counts as the sponsorship of international terrorism, what does? It’s important to note that most of this conduct happened after President Bush agreed to remove North Korea from the LSSOT, and after President Bush certified that North Korea has agreed not to support acts of terrorism in the future.

Washington should not stretch the definition of terrorism past the breaking point to cover all manner of activities that are not by any normal understanding considered to be terrorism. Especially since the designation has had no practical impact on the North.

The opposite seems closer to the truth — Bandow’s definition of international terrorism is so narrow and cramped as to evade perception entirely. In my report, I noted multiple cases of Pyongyang’s nasty conduct that didn’t meet the definition, including conventional military attacks on and threats against South Korea. The proliferation of nuclear and chemical weapons technology may not fit the narrowest plausible legal definition of terrorism, but that still leaves us with the State Department’s history of citing it in its Country Reports on Iran, Syria, and other countries.

This vagueness is why I call on Congress to clarify the legal standards for an SSOT listing. To that end, I offer suggested language that is the lowest common denominator of the three statutes that define “international terrorism” and “terrorist activity.” A clearer definition should be informed by years of State Department precedent, but only where that precedent is consistent with the statutes’ language. Bandow writes that “even” I agree that the standards are vague. “Especially” would have been better. I want the law to be clear, because I’m tired of watching the State Department make a muddle of it. A deterrent is useless without clear notice to potential sponsors.

Bandow argues that a SSOT listing isn’t a very strong deterrent anyway. I agree that it isn’t nearly strong enough, but if you understand how weak U.S. sanctions against North Korea really are, you will understand that putting North Korea back on the LSSOT and triggering just the transaction licensing provisions of 31 C.F.R. Part 596 would close an important loophole in those sanctions. On pages 26 to 28, I explained which consequences of a SSOT listing would matter, and which wouldn’t. On page 99, I recommended adding to the list of options available to the Secretary of State to deter the sponsorship of terrorism more effectively, including the sort of tougher secondary financial sanctions that devastated Pyongyang’s palace economy in 2005. 

Another consequence I referred to in the recommendations, but ought to have explained in greater detail in the body of the report, is a policy under which the Securities and Exchange Commission requires securities issuers to disclose their investments in states that sponsor terrorism and abuse human rights. Of course, the latter basis is more than enough to justify imposing a requirement to report investments in North Korea, with or without an SSOT re-listing. A disclosure requirement would open investors in North Korea, including foreign corporations that issue securities in the U.S. market, to reputational harm, protests, and boycotts until Pyongyang ceases its crimes against humanity.

Bandow also frets that re-listing North Korea as a SSOT could upset the North Koreans and provoke a violent reaction.

Nor would Pyongyang necessarily remain quiescent in response to what it would see as another U.S. attack. Warned CRS, the DPRK could “respond to a redesignation by taking additional provocative actions, such as more nuclear-weapon or long-range-missile tests [8].”

I’m sure a lot of things upset the North Koreans, including (in no particular order) any level of defense relationship with South Korea or Japan; the existence of South Korean villages or warships in disputed waters; U.N. Security Council sanctions resolutions, and governments that enforce them; the granting of asylum to North Korean refugees; the making and showing of films critical of Kim Jong Un in the United States, Germany, or Myanmar; academic conferences in downtown Washington; and my report. To discard even non-kinetic policy responses because of the risk of a violent reaction may or may not be a complete preemptive surrender of all policy options. It’s for Bandow, not me, to explain what options remain, and where he would draw the line. Sanctions don’t seem to be among the options Bandow favors, either:

In January, House Foreign Affairs Committee Chairwoman Ileana Ros-Lehtinen introduced legislation to effectively reimpose the terrorism designation. Last year, the House approved Rep. Ed Royce’s H.R. 1771 [5], which proposed unilateral measures to enforce multilateral sanctions. Ros-Lehtinen’s H.R. 204 [6] is substantially more punitive. The bill’s “findings” are a veritable kitchen sink of complaints of DPRK misbehavior including “duplicity in its negotiations with the United States” and defiance of “the international community.” The measure urges the administration to relist the North as a SSOT, imposes the penalties for being listed as a SSOT, and sets numerous impossible conditions (opening North Korean prison camps to international inspection, for instance) for lifting sanctions. Almost as an afterthought, the bill bars any expenditure to open diplomatic relations. [Bandow]

But Bandow misreads H.R. 1771 (since updated and reintroduced as H.R. 757) and misunderstands its relationship to U.N. sanctions. The U.N. relies on member states to enforce sanctions with their national laws. H.R. 757’s “unilateral” sanctions are intended, in large part, to make multilateral sanctions (which are failing now) work. As I argued in detail here, both U.S. national sanctions and U.N. Security Council sanctions are essential and complementary elements of an effective sanctions program. That’s why Section 202 calls on the State Department to work with other member states to enforce U.N. sanctions consistently, Section 104 provides for secondary sanctions against member states that knowingly violate them, and Sections 401 and 402 recognize the core interests of our allies by making the return of abductees and North Korea’s nuclear disarmament prerequisites for lifting the sanctions. 

I can’t speak to the intent behind H.R. 204, but the fact that Ms. Ros-Lehtinen had a “kitchen sink” to throw in doesn’t refute a single item in her bill of particulars. Bandow also calls the opening of North Korea’s prison camps an “impossible” condition, an implicit argument for tolerating the use of our financial system to sustain the regime that runs those camps.

I actually thought Bandow’s most compelling argument was one he seems to have offered as a reductio ad absurdum:

Only Iran, Sudan, Syria, and departing Cuba currently are on the list, and none has engaged in terrorism against America, at least within normal memory. If terrorism is the actual concern, why aren’t Pakistan, Qatar, and Saudi Arabia on the list? 

Bandow doesn’t seem to be any better informed about Iran than he is about North Korea. With respect to Qatar and Saudi Arabia, however, I’d agree that both have supported (or tolerated support for) the Al-Nusra Front and ISIS. I can’t imagine that even Bandow would deny that both groups are security threats to the United States. He just holds up the law as mandating a procrustean amputation of ties with two states with which we’ve long had strong (if strained) ties, rather than offering Riyadh and Doha the same nuanced diplomacy he would have us extend to Pyongyang. Just as we exhausted diplomatic options to end North Korea’s sponsorship of terrorism, we should exhaust our diplomatic options to cut off Qatari and Saudi support for terrorists. If talks alone can’t achieve that result, page 99 of the report offers a series of “one or more the following” sanctions proposals, under which a reformed LSSOT framework would give the Secretary of State the flexibility to tailor sanctions options to the different exposures, vulnerabilities, and levels of culpability of different governments. It’s fair to say that as currently written, the law is procrustean. That’s not an argument against reforming it into something more useful.

Eventually, Bandow gets around to where he should have begun and ended — that as a policy matter, the LSSOT shouldn’t exist at all. If Bandow can offer better suggestions to fill the policy gap that would leave, I’m ready to hear them. International terrorism is the greatest security threat the U.S. faces today, and it’s a far greater threat when states arm and employ the terrorists. States are more likely to arm and employ terrorists when given effective impunity for doing so. The idea of deterring states from sponsoring terrorism is as absurd as you want to make it. By sticking to that policy argument, Bandow would have freed himself from the burden not shouldered, to argue against the inconvenient evidence of Pyongyang’s sponsorship of terrorism. That evidence was sufficient for multiple competent courts of law, and it ought to be good enough for our State Department, too.