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

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

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

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

1. North Korea sponsors terrorism.

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

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

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

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

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

2. North Korea never really renounced terrorism.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

6. It’s easy.

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

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

7. There’s no diplomatic reason not to.

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

8. It will close some sanctions gaps.

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

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