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Why Trump can’t lift North Korea sanctions unilaterally

THE HIGHEST EXPECTATIONS WE SHOULD HAVE FOR THE UPCOMING CIRCUS IN SINGAPORE are low expectations ” that the summit breaks with, at most, a vague agreement that North Korea will denuclearize, without Trump making any concessions for such a nebulous promise. No one deserves a Nobel Prize for trading away our last chance to disarm Kim Jong-un peacefully for more lies, or for excusing Kim Jong-un from the few consequences he faces for proliferation, crimes against peace, organized crime, and crimes against humanity. And no deal Kim Jong-un will give us this year, before a smarter and tougher sanctions strategy has had time to take effect, will be a deal worth having.

In ordinary times, I’d say that a President who called the Iran deal the “worst deal ever” before withdrawing from it would never sign a North Korea deal that would make the Iran deal look like the Louisiana Purchase. But just how ordinary are these times?

In other words, nothing but logic, an understanding of history, and the advice of his wisest advisors is stopping Trump from making a deal that would put us under a permanent shadow of North Korean nuclear blackmail, put South Korea’s liberal democracy on an irreversible path to extinction-by-extortion, break the global nonproliferation system beyond repair, and make North Korea’s holocaust permanent. So far, of course, Trump’s cabinet is correctly insisting that it will demand something Pyongyang might promise, but will never deliver.

We should all hope that the word “administration” doesn’t overstate the current condition of our government too much. Demands that Pyongyang begin immediate and substantial performance on denuclearization are both reasonable and essential given past history, but I doubt Pyongyang is prepared to offer that now. And it has always operated on a strictly pay-for-play basis. It will want economic benefits that Trump has (again, correctly) said he won’t give without substantial performance by Pyongyang.

If Trump’s advisors can’t prevent a bad North Korea deal, the United States Congress might. Democrats and some Republicans in the Senate sound worried that Trump will settle for less than C.V.I.D. and relax sanctions prematurely, as Bill Clinton and George W. Bush did, as Barack Obama would have done in 2012 had he imposed any significant pressure at all, and as the aspiring Nobel Peace Prize claimants in the State Department are perennially eager to do.

Senators are now saying that they expect to have a say in the lifting of sanctions on North Korea under any deal. They should thank Ed Royce and Cory Gardner for making that possible by writing the sanctions bills that later passed both houses by veto-proof margins, and which President Obama and President Trump both signed ” the North Korea Sanctions and Policy Enhancement Act of 2016 and Title III of the Countering America’s Adversaries Through Sanctions Act of 2017.

Unlike roughly ninety percent of journalists who write about North Korea sanctions, I have some familiarity with both pieces of legislation. The NKSPEA, with small amendments in Title III of the CAATSA, imposes certain performance-based preconditions to the suspension and lifting of North Korea sanctions regarding (of course) disarmament, but also counterfeiting, financial transparency, the return of POWs, and yes, human rights.

That’s the thing about violating every basic rule and standard of civilized humanity ” it tempts the weak-minded among us to cede some of those standards, which means the more rules Pyongyang breaks, the more bargaining chips it has.

But if moral reasons aren’t enough for you, I’ll offer some more “realist,” pragmatic ones. The premise of the NKSPEA’s conditions for the relaxation of sanctions, which I previously explained here, is that we will never verify the disarmament of a closed society where every citizen lives in abject terror of the state. Without verification, there will be no lasting peace, no protection against Pyongyang’s proliferation of WMD, and no reunification except one imposed on Pyongyang’s terms. Nor will a lasting peace be possible with a state that continues to hold human life and dignity ” even of its own people ” in contempt. And if a hyper-nationalist state is willing to murder its own people by the millions, what restrains it from murdering hundreds, or thousands, of ours if it can deter us with an effective nuclear arsenal?

Nonproliferation advocates ” many of whom now devote their energy to justifying North Korea’s proliferation ” will say that these conditions make a deal impossible. I think they ” and the administration, and every other administration that came before it ” have the sequence completely reversed. Diplomacy will not disarm a regime that remains constitutionally mendacious, opaque, and hostile. Until that changes, the prospects for productive negotiations with Pyongyang approach zero. To change this, we must enforce sanctions strictly enough, and challenge its propaganda enough in the eyes of the Korean people, to bankrupt Pyongyang’s bodyguard of lies and fracture the walls it builds around its guilty secrets. Some of the members who voted for those conditions are now going wobbly on holding the North Koreans to the conditions in the law. But going wobbly on important principles is just the sort of display of weakness what shows Pyongyang that it can get away with violating any standard that obstructs its ambitions. Ultimately, that’s what got us where we are now.

Why demand steady progress on improving the conditions in its prison camps? Because verification isn’t just about where food aid monitors and weapons inspectors are allowed to go, such as the vast area to the immediate east of North Korea’s nuclear test site. It isn’t just about the uranium-smeared documents Pyongyang hands over. It’s also about what prisoners, military officers, and nuclear scientists are afraid to tell us about where to look and what to look for.

One argument I’ve heard circulated is that the President could bypass the performance-based conditions in sections 401 and 402 and waive all North Korea sanctions under the “national interest” waiver provision in section 208 of the NKSPEA, but this argument is legally spurious. The national interest waiver only permits “case-by-case” waivers from “the application of” certain sanctions in the NKSPEA that would otherwise be mandatory. This is merely a case-specific safety valve to prevent unintended consequences ” such as sanctioning foreign government officials when diplomatic efforts aren’t yet exhausted, or forcing the President to crash the Agricultural Bank of China before he imposes more moderate sanctions such as civil penalties. It would also be contrary to the clear intent of Congress, as expressed in the Committee report on the NKSPEA:

Section 401. This provision provides for a one-year suspension of sanctions, renewable for one consecutive year, if North Korea takes significant steps toward disarmament and reform, while preventing the premature relaxation of sanctions for false North Korean promises. [H. Rept. 114-392]

And why, after all, would Congress enact this provision and section 402 (the conditions for a permanent lifting of sanctions, which are intentionally difficult to meet) if Congress also intended section 208 to be a stroke-of-the-pen end run around all of this? Of course, that’s not what Congress intended at all. Interpreting section 208 this way would violate canons of statutory construction by which provisions of law should be read harmoniously, so as to make them mutually compatible, rather than in a way that one makes the other mere surplusage.

Did the President really have to agree to give Congress a vote on suspending or lifting sanctions? The legal answer is vague and unsatisfying, and potentially sets up a constitutional battle between the two political branches, but that’s a battle the President can’t win politically. Yes, in theory, Congress can sue a President to demand that he enforce a law, although it would be difficult for the suit to survive a motion to dismiss for lack of standing. That’s especially true when Congress sues a president for the failure to enforce a law.

We saw a similar deadlock form when Congress passed Russia sanctions as Title II of the CAATSA despite President Trump’s objections. President Trump couldn’t veto it, so he essentially refused to enforce it (update: though not entirely). He did, however, issue a signing statement for the Russia sanctions in Title II of the CAATSA, but not for the North Korea sanctions in Title III. Nor, for that matter, did President Obama issue a signing statement with the NKSPEA. This probably means that both presidents knew that North Korea sanctions had too much bipartisan support to oppose openly. The lack of a signing statement also means that Trump would be in an awkward position if he tried to raise constitutional objections now, almost a year after he signed the CAATSA.

Congress has also demanded the explicit right to vote on the President’s lifting of the same sanctions it authorized in the NKSPEA and the CAATSA. Congress likes to do this, but it would probably amount to an unconstitutional legislative veto.

There are other things Congress could do, of course. It could impose more sanctions on North Korea (as it did against Russia) by margins that, given the margins by which previous North Korea sanctions laws passed, would probably be veto-proof. Although Congress can’t directly sanction a specific person, company, or bank, it can force the President to report back on whether a specific person is engaging in conduct that subjects the person to mandatory sanctions. If the answer to that question is clear enough, the President may find it politically impossible to answer that question in the negative. That’s how Congress forced President Obama to designate Kim Jong-un for “severe human rights abuses” under section 104(a)(5) of the NKSPEA.

Congress can also pass new legislation to hold North Korea to standards that the President tries to relax. It should, of course, pass the North Korean Human Rights Reauthorization Act regardless of the outcome of the summit. If the administration really means what it says about keeping the pressure on until Pyongyang begins to disarm, it should revisit good work of Senators Van Hollen and Toomey on the BRINK Act. It could also take a fight over foreign policy (where President has relatively more power than Congress) and turn it into an issue of fiscal law (where Congress’s power is much greater than the President’s) by making certain funds available only to enforce North Korea sanctions, and threatening to enforce the Anti-Deficiency Act (one of the most powerful and least-known statutes in the U.S. Code) if he uses those funds for anything else. Remember Iran-Contra, anyone?  

The House could also put other conditions on its appropriations to the State and Treasury departments. The Senate could hold up nominations, many of which remain unfilled. A revolt in Congress would make the President look weak and isolated in a mid-term election year, and unable to perform on the demands that Pyongyang is certain to make. In a year when control of both houses of Congress hangs in the balance, will Republican senators really let the Democrats portray them as being both subservient to Trump and soft on North Korea? Would the likes of Ted Cruz, Cory Gardner, John McCain, Jeff Flake, Ben Sasse, and Marco Rubio simply go along with this? What of the dozens of GOP congressmen (including Ed Royce) who are now retiring, and who have little to lose by breaking with Trump? In the end, it’s politics ” not litigation ” that will make the President at least pretend to enforce the law.

That’s why a fight with Congress to loosen sanctions on North Korea creates more political trouble for the President than he needs right now. It would not only deny him any credit for a deal with Kim Jong-un, it would call his entire deal-maker credential into question. That may explain why, according to Senate Foreign Relations Committee Chairman Bob Corker, Trump has committed to submitting any North Korea deal to the Senate as a treaty for ratification. (We haven’t even discussed the fact that U.S. would have to get the U.N. Security Council to go along with relaxing sanctions, even if the Security Council is sure to be an easier sell than Congress.)

Given Pyongyang’s history of reneging, the sanctions in NKSPEA were designed to be hard to lift, but less hard to suspend in one-year increments, as long as the President certifies that Pyongyang has made progress toward the section 401 benchmarks, or whatever conditions Congress chooses to impose in special legislation, such as the legislation it passed to relax Iran sanctions in 2015. Those conditions are Congress’s way of adapting to the tendency of Pyongyang to demand, and of presidents to accept, demands that we lift sanctions and throw away our leverage before Pyongyang performs. If Trump’s advisors are smart ” and they are ” they’ll use the limitations to control the President’s impulse to show off his deal-making skills with a dubious “success.” They’ll persuade the President to use the summit to tell Kim Jong-un that there will be no sanctions relief but one-year suspensions, contingent on rapid progress toward all of those benchmarks. If that means we don’t get a deal, it also means the deal we didn’t get would only have been a stall for time, and that deal isn’t worth having anyway.

Even if there is a deal this time next week, it’s hard to see how it would last. After all, deals with North Korea seldom do. It’s hard to believe that Donald Trump would tolerate the sort of conduct that Moon Jae-in would tolerate more-or-less endlessly.

It’s one of those things that you’ll never learn if you don’t already know it: the people who run North Korea are irredeemably evil people who kill and steal just because they can. That’s why a deal between North Korea and Donald Trump would have the longevity of a ChocoPie on Kim Jong-un’s nightstand unless the President exerts and sustains more pressure than Kim can withstand. As I said of Barack Obama’s ill-fated deal with Kim in 2012, before Stormy Daniels was a household name:

Talks with North Korea are the porn shoots of diplomacy ” staged, loveless, and ultimately unsatisfying exhibitionism after which nothing endures except for the sense of self-debasement, years of awkward explanations, and possibly a painful burning sensation.

Or so I’ve heard.

Either a failure of the talks to extract prompt and substantial performance from Pyongyang, or its inevitable renege, will be John Bolton and Mike Pompeo’s opportunity to put their brands on our North Korea policy, which ought to include a rebooted sanctions policy. After all, we are still operating under a flawed sanctions policy designed by Rex Tillerson, H.R. McMaster, and the lone survivor of these principals, Steve Mnuchin. Pyongyang’s recalcitrance will be an opportunity to regroup and rebuild a smarter, more plausible, mutually complementary strategy of financial, diplomatic, and political pressure. Congress can do much to help the administration with this by helping it fund and reprioritize its understaffed and bureaucratically hobbled sanctions enforcement effort, where we have lost momentum, China has resumed its cheating, and South Korea is increasingly eager to break sanctions with “engagement” projects that would violate U.N. sanctions in letter or in spirit.

Yes, the administration wants to claim that “maximum pressure” forced Kim Jong-un back to the bargaining table. Privately, it admits what I told you months ago — that the pressure hasn’t really been maximum at all. If you just want to force the North Koreans to bargain, then apply medium pressure and sign a deal that allows Pyongyang to pretend to disarm. If you want to actually disarm Kim Jong-un, you have to make him choose between his nukes and his life. We’ll know we’ve reached that point when he takes irreversible steps toward making North Korean society transparent enough to make verification remotely possible. Thus far, we have not applied enough kilobars to bend His Porcine Majesty’s will. Doing so will require a will of our own, to bear the costs that pressure will impose in our relationships with Pyongyang’s enablers in Beijing and Seoul.

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