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

[Update: If I had known when I wrote this that the North Koreans would torture and, for all practical purposes, kill Otto Warmbier in custody, I’d have written this post very differently. Frankly, I’m ashamed to reread it today, and can only ask you to understand that at the time, I had every reason to expect that this young man’s misadventure would end as anti-climatically as other arrests of foreigners in North Korea had ended until that time, and as anti-climatically as my own youthful misadventures in Africa, the Middle East, and Asia ended. My deepest sympathies go to the Warmbier family. Otto and his family obviously didn’t deserve that.]

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

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

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

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

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

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

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

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

 

KCNA has just run the English-language story on arrest of U.S. student Otto Warmbier for “hostile acts” pic.twitter.com/jD5D9qnu4P

– Martyn Williams (@martyn_williams) January 22, 2016

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

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

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

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

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

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

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

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

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

How safe is it?

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

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

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

 

North Korea wants bargaining chips as it prepares for political fallout from its nuclear test. No coincidence arrested student is American.

– Martyn Williams (@martyn_williams) January 22, 2016

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

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

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

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

President George W. Bush removed North Korea from the list of state sponsors of terrorism on October 11, 2008. Despite overwhelming evidence to the contrary, the Obama Administration’s official view is that North Korea is “not known to have sponsored any terrorist acts since the bombing of a Korean Airlines flight in 1987.”

Discuss among yourselves.

~ ~ ~

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

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

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

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

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

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

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

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

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

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

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

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

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You’re welcome, Congress!