Designation of N. Korea’s propaganda agency could mean trouble for AP Pyongyang

Yesterday, a reader — he can identify himself if he chooses to do so — asked me an excellent question that had not occurred to me: what are the implications for the Associated Press’s Pyongyang Bureau of the Treasury Department’s designation of North Korea’s Propaganda and Agitation Department for censorship? From Treasury’s Wednesday press release:

OFAC has designated the Workers’ Party of Korea, Propaganda and Agitation Department (the “Propaganda and Agitation Department”) as an agency, instrumentality, or controlled entity of the Government of North Korea. The Workers’ Party of Korea has full control over the media, which it uses as a tool to control the public. The Propaganda and Agitation Department also engages in or is responsible for censorship by the Government of North Korea. Each month, the Propaganda and Agitation Department delivers party guidelines explaining the narrative that all broadcast and news reporting plans must follow. The North Korean media must follow all Party guidelines. The Propaganda and Agitation Department is also the primary agency responsible for both newspaper and broadcast censorship.

The designation was compelled by NKSPEA § 104(a)(4), which requires the President to designate any person who “knowingly engages in, is responsible for, or facilitates censorship by the Government of North Korea.” Yesterday’s executive order translates this as follows, in section 2(a)(vi):

Sec. 2. (a) All property and interests in property that are in the United States, that hereafter come within the United States, or that are or hereafter come within the possession or control of any United States person of the following persons are blocked and may not be transferred, paid, exported, withdrawn, or otherwise dealt in: any person determined by the Secretary of the Treasury, in consultation with the Secretary of State:

[….]

(vi) to have engaged in, facilitated, or been responsible for censorship by the Government of North Korea or the Workers’ Party of Korea;

Critically, section 2(a)(viii) of the E.O. clarifies that a designation also includes persons who are “owned or controlled by, or … have acted or purported to act for or on behalf of, directly or indirectly, any person” designated under the new executive order. That means that if an entity is designated, its subsidiaries, sub-agencies, officers, and employees are designated, too.

The nexus to AP didn’t occur to me until my reader raised it, but a few moments of googling brought me to this post by Michael Madden at 38 North. Can you read the second box from the left?

How about now?

Uh-oh. So, if that’s true, the designation of the Propaganda and Agitation Department is also a designation of KCNA, the Korean Central News Agency, the world’s least credible news agency. The same KCNA that AP signed its still-undisclosed MOUs with, establishing its Pyongyang Bureau, and detailing two North Korean minders journalists to report for it.

Well, maybe if the AP has an OFAC license, it can be grandfathered in, right?

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

No such luck, then. But if the AP doesn’t pay KCNA any money, there’s no need for a license. Only, when is the last time North Korea gave anything away for free? Also, the draft AP-KCNA MOU Nate Thayer obtained certainly suggests that money has changed hands. AP denies the authenticity of the draft, but it hasn’t released the signed, final MOU, either. Maybe this would be the time to do that.

Or, maybe one of OFAC’s new general licenses covers AP. I guess if any of them is a fit, it would be General License Number 7, which says:

(2) This general license does not authorize:

(i) The provision, sale, or lease of telecommunications equipment or technology; or

(ii) The provision, sale, or lease of capacity on telecommunications transmission facilities (such as satellite or terrestrial network activity).

Um….

So, to summarize: The executive order blocks persons who are designated for engaging in censorship on behalf of the North Korean government. It also blocks persons or entities who are owned or controlled by those who are designated and blocked. Treasury designated the Propaganda and Agitation Department, and there’s publicly available, credible evidence that the Propaganda and Agitation Department controls KCNA. If that evidence is correct, KCNA is also blocked, and no U.S. person may transfer funds to KCNA. If AP had an OFAC license before yesterday, the new executive order voided it. Also, none of OFAC’s general licenses appear to apply here.

I see three options for the AP: either (1) AP gets an OFAC license (or general license) to keep paying KCNA; (2) North Korea lets AP run a bureau for free of charge; or (3) AP closes its bureau and visits Pyongyang when something interesting happens, just like it did before 2011, when its North Korea coverage was actually better. Also, AP can’t fly any more North Korean “journalists” and propagandists to New York for Kim Il-sung commemorative photo exhibitions. Section 4 of the E.O. bars designated entities’ employees from the United States.

Or, the AP can find a business partner in North Korea that isn’t censoring North Koreans’ rights to free expression, committing crimes against humanity, running guns, or proliferating WMDs. The legal obstacles to this would seem significant, given the breadth of the executive order’s blocking of all interests in property of the government of North Korea.

460. Can U.S. persons do business with entities in North Korea?

No. Unless authorized pursuant to a general or specific license from OFAC and/or BIS, the new E.O. prohibits new investment in North Korea by a U.S. person and the exportation or reexportation, from the United States, or by a U.S. person, of any goods, services, or technology to North Korea. [Published on 03-16-2016]

By now you may be wondering: Josh, are you really devious enough to have induced a nearly unanimous Congress and the President of the United States to get the AP kicked out of Pyongyang because you despise the secrecy and corruption of its dealings with Pyongyang? Tempting as it is to tent my fingers and declare in a serpentine Montgomery Burns hiss, “Now I am become death, the destroyer of worlds,” I swear I’m not. I do admit that when we drafted the legislation that became H.R. 757, it was my idea to make censorship a basis for designation. But although this is a new idea for North Korea — there was no comprehensive North Korea sanctions law before H.R. 757 — it’s not a new idea for Earth. Other states (Iran, Syria) have been sanctioned for censorship before, just like other states (but not North Korea) had been sanctioned for human rights violations before. I just stole the idea from the people who drafted those sanctions, because like most Americans, including at least 418 members of Congress, 96 senators, and the President of the United States, I hate censorship.

But mostly, I assumed OFAC would issue a general license for journalistic activities in North Korea, as it did for Cuba, Iran, and other sanctioned countries. AP has a bureau in Tehran, despite censorship sanctions that apply to Iran’s government. And maybe AP will get one for its Pyongyang bureau, too.

But I’d be lying if I denied that this thought had crossed my mind: if the AP experiment fails because of this, it would be for the good of journalism and humanity, and also, it couldn’t happen to nicer people. 

Some people will say that the withdrawal of the AP would be a setback for efforts to open up North Korea. Those people will be wrong. It would really be a setback for the co-option and corruption of our news media by genocidal totalitarians who want to buy down press criticism. The AP didn’t change North Korea; North Korea changed the AP. KCNA didn’t start broadcasting truthful and objective news because the AP came to Pyongyang. AP came to Pyongyang and promptly abandoned its principles, submitted to North Korean censorship, and broadcast a stream of North Korean propaganda, fakery, hostage videos, and vox populi interviews with obvious (to me) plants to hundreds of millions of people around the world. And called it “journalism.”

And for what prize did AP sell its soul? Nothing newsworthy that was exclusive, and nothing exclusive that was newsworthy. It failed to confirm or refute credible reports of a famine in South Hwanghae Province in 2012, just an hour’s drive from Pyongyang. Or any of the dozens of rumors of purges or prolonged disappearances by North Korean generals, or of Kim Jong-un himself. Or about North Korea’s deplorable crimes against humanity, as the world’s attention turned to them so belatedly.

Or, that time an apartment building fell down—what, ten minutes away from its bureau?—possibly killing hundreds of people, when the AP never even reported from the scene. A Rimjingang reporter risked his life to take clandestine photos and predict this disaster. NK News found imagery online and published time-lapse photography of the building vanishing from the Pyongyang skyline … from a thousand miles away. And then, last year, when the most famous hotel in Pyongyang caught fire, the AP, just ….

Journalism is about asking uncomfortable questions, digging for the truth and telling it, and unmasking lies. Whatever the AP is doing in Pyongyang, it isn’t journalism. That’s why OFAC could grant AP a license, but shouldn’t. It’s why if the AP has any shame, it won’t even ask for one. It will silently acknowledge what the rest of us have said for years, collect as much of its dignity and its equipment it can, and drive them to back across the DMZ to Seoul.

~   ~   ~

Update: Oh, and the Propaganda and Agitation Department is headed by Kim Jong-un’s sister, Kim Yo-jong, whom some Korea-watchers expected to be designated individually (she wasn’t).