Does the State Department think there’s a six-month statute of limitations for terror sponsorship? (Updated)

If the Congressional Research Service had its own store at the mall, you’d often find me there at 3 a.m., sleeping in my lawn chair the night before the next release, possibly in some sort of costume. The researchers are smart and genial people, and most of their work has been terrific. There also appears to be some mutuality of readership between us, because as it turns out, the latest CRS report on North Korea’s sponsorship of terrorism cites no less than three of my works in six of its footnotes (just call me the Congressional Research Service research service). Large portions of the CRS report read like a response to my various briefs supporting North Korea’s designation as a state sponsor of terrorism (SSOT). Again, it’s always a good thing to have your ideas read and considered, so I hope what follows won’t seem ungracious, but CRS’s latest left me feeling the way I felt after I watched “Phantom Menace.”

That’s because CRS appears to have followed the State Department into a serious legal error that affects the quality of the analysis that resulted. The problem only becomes evident in the conclusion of the report, where CRS argues that most of the events I’ve cited (inter alia) here and here that would support North Korea’s SSOT re-listing would “fall outside the six-month window that the State Department uses to determine governments’ placement on the lists.” That is to say, State thinks there’s a six-month statute of limitations for purposes of an SSOT listing.

Now, as we speak, I’m putting the final touches on a very extensive report on SSOT listing–its statutory history, authorities, key definitions, purposes, and conduct justifying an SSOT listing. Look for it in fine bookstores everywhere (no, not really). I re-checked the key authorities, and there is no such window. Wanna check them yourself? Look at Section 6 of the Export Administration Act (EAA), Section 140 of the Foreign Relations Authorization Act for Fiscal Years 1988 and 1989, Section 620A of the Foreign Assistance Act, and Section 40 of the Arms Export Control Act. You won’t find that window, but you will find another possible source of the State Department’s confusion: Section 6(j)(4) of the Export Administration Act. But this is a provision for rescission–in English, removal from the SSOT list–not for listing in the first instance. (There are similar rescission provisions in the EAA and the FAA).

There are other reasons to question that there’s any six-month window, not the least of which is the illogic of writing annual reports that would have to overlook the first half of the year. Not only does text of the EAA provide no support for this view, its use of the term “repeatedly” implies the opposite conclusion. Many of State’s prior SSOT justifications have cited conduct occurring years before a listing (if you doubt me, read them). North Korea wasn’t listed after the 1987 KAL bombing and then de-listed the very next year, after a six-month statute of limitations ran out. Its abductions of Japanese citizens and its harboring of Japanese Red Army hijackers were both cited as reasons for North Korea’s listing years after they occurred. (Arguably, these could be called continuing offenses; they still are.) When the State Department added Sudan to the SSOT list in 1993, it found “no conclusive evidence linking the Government of Sudan to any specific terrorist incident during the year.” And as the State Department itself once said:

The United States is committed to holding terrorists and those who harbor them accountable for past attacks, regardless of when the acts occurred. The US Government has a long memory and will not simply expunge a terrorist’s record because time has passed. The states that choose to harbor terrorists are like accomplices who provide shelter for criminals. They will be held accountable for their “guests’” actions. International terrorists should know, before they contemplate a crime, that they cannot hunker down in safehaven for a period of time and be absolved of their crimes.

Perhaps because of this erroneous interpretation, CRS largely overlooks some of North Korea’s most egregious recent acts of terrorism–its assassination plots against Hwang Jang Yop and Pak Sang-Hak, the assassination of Kim Chang-Hwan in China, the attempt to assassinate another activist in China the following day, the attempted kidnapping of a North Korean student in Paris last year, and the attempted murder of a North Korean refugee in Denmark last year. One could argue that direct, retail terrorism isn’t the “sponsorship” of terrorism, but if that’s so, it’s an obtuse evasion of Congress’s intent. And if it’s so, why has the State Department repeatedly cited Iran’s attempts to assassinate Iranian dissidents abroad to support Iran’s SSOT listing? Or the assassination of Rafiq Hariri to support Syria’s SSOT listing? Or the 1983 bombing in Rangoon, the KAL 858 bombing (the original basis for North Korea’s SSOT listing), or the abductions of Japanese citizens?

CRS’s report thereby concludes “that 2009 and 2013 seizures of North Korean shipments of chemical protection equipment to Syria were the only DPRK actions since 2008 that both (1) were recognized by official U.S. or U.N. bodies, and (2) could conceivably have met the statutory criteria for redesignation.” Now, maybe this is the lawyer in me talking–but I was under the misunderstanding that the final judgment of a U.S. District Court, or the opinion of a federal Court of Appeals, counted as “recognition” by an “official body.” (See here, here, and here.) Also, it seems unfair to count only the orders of U.S. federal courts, while overlooking the multiple convictions of North Korean agents by South Korean courts (here, here, here, and here; this and this may be relevant, too). I’m not going to argue that the South Korean legal system is a paragon of due process, but if its convictions are good enough to merit recognition by our federal courts, they’re good enough for our State Department.

Perhaps consequently, the CRS report also misses the main point of my citation of the 2009 weapons seizures in Bangkok, aboard the M/V ANL Australia, and aboard the M/V Francop—not that North Korea was shipping those weapons to Iran and Syria, but that it was shipping weapons to Hamas and Hezbollah (and maybe the Quds Force for good measure) through Iran and Syria. Begin with the U.N. Panel of Experts reports documenting those seizures and cargoes in exhaustive detail, but that’s only the first step. Then, compare those reports to the contemporary press reports informing us that those weapons (including MANPADS) were destined for terrorist end-users.

Finally, CRS argues that “a decision to redesignate the DPRK as a state sponsor of terrorism could have a significant impact on diplomacy with North Korea,” to which I ask, “What diplomacy?” Weirdly enough, CRS also cites Kim Jong Un’s byungjin policy—the North Korean policy that declares its dual pursuit of both nukes and economic development—and equates it with reform:

The Kim regime has been promoting a two-track policy (the so-called byungjin line) of nuclear development and economic development, with the latter goal partially dependent upon influxes of foreign investment.…  The DPRK could be particularly sensitive to a redesignation, which could be perceived as a threat to the potential economic gains the North Korean government expects from its byungjin policy. Therefore, those who wish to encourage North Korea’s economic reforms, in the belief that they eventually would lead to changes in the government and/or the government’s behavior, may oppose redesignating the DPRK. In contrast, those who wish to increase economic pressure on North Korea by undercutting the byungjin line may favor redesignating the DPRK.

The latter group includes both the Obama and Park administrations, which hold that byungjin is a non-starter, “a pipe dream.” Officially, our policy is that North Korea can’t have it both ways. That makes the disruption of byungjin a net positive for an SSOT listing. (This also re-raises the question of whether a capitalist, fascist North Korea is less dangerous than a socialist one. It has never been clear to me why that would be the case.)

CRS also argues that “China may be inclined to use redesignation as a pretext for opposing U.S. and South Korean efforts to increase pressure on North Korea through other means.” Like they need one. I’ve given a long series of examples of China violating UNSC sanctions here. I’m not sure why an SSOT listing would give China any needed justification to do what it has done for years.

Finally, CRS punts on the most important question of all—by what standard can we avoid calling this terrorism?

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…

It’s important to make a distinction between the Guardians of Peace’s hacking of Sony Pictures from its threats against American moviegoers. The hacking itself doesn’t clearly fit within the various legal definitions of terrorism, and there’s no precedent for State citing hacking as a basis for an SSOT listing. For reasons I won’t argue today, that’s probably a good policy. Threats against American moviegoers, on the other hand, would clearly fit both the legal definitions of terrorism and the plain meaning of the term.

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As for the impact of an SSOT listing, I’m not going to argue that the sanctions triggered by a listing would be among the strongest financial and legal tools at our disposal. Sanctions under 31 C.F.R. Part 596 would have less impact than designation as a Primary Money Laundering Concern, a sustained campaign of financial diplomacy to isolate Kim Jong Un’s access to his offshore hard currency, or a serious and sustained campaign of information operations. Still, an SSOT listing would close an important loophole in our weak sanctions against North Korea. To understand the significance of that point, however, you have to understand how weak our sanctions are to begin with. And none of this means that these policy choices would be mutually exclusive.

Maybe the most important reason for an SSOT listing is that it would reflect the truth. The State Department’s dogmatic insistence that North Korea hasn’t sponsored an act of terrorism since 1987 is–there is no other word for this–a lie, one that smacks of unaccountability and bureaucratic arrogance. Regardless of the diplomatic or legal effects of a SSOT designation, it is never acceptable for our government to lie to us. Our own federal courts have found that North Korea has repeatedly sponsored acts of international terrorism. South Korean courts have repeatedly convicted North Korean agents of international kidnappings, assassinations, and assassination attempts. A U.N. Panel of Experts has offered voluminous evidence of North Korea’s arms exports intercepted en route to Iran–arms that intelligence sources tell reporters were bound for Hamas and Hezbollah. And although the legal basis to call a cyberattack “terrorism” is questionable, threats against American filmmakers and moviegoers clearly fit the legal and commonly understood definitions of terrorism. Telling the truth always matters. So does holding people accountable for the evil that they do.

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Update: 2 Feb 2014: CRS has corrected its report to remove any references to a “six-month window.” I’ll add that when I raised the legal question with CRS, they were very classy about reexamining the law and correcting the mistake. The error was not the State Department’s, as it turns out; it was just CRS’s misreading of the Export Administration Act. Hey, I make mistakes, too! The final CRS report, however, still fails to address most of the substance that I’ve argued could be a basis for an SSOT listing. Without the “six-month window” issue, the report now leaves those omissions largely unexplained. I hope CRS will go back and examine those issues in more detail another day, in the near future.