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Was there a secret executive order targeting North Korea?

Recent news reports concerning the gentle treatment of A. Q. Khan—acknowledged mastermind of the world’s most extensive proliferation network for nuclear weapons technology—bring home the point that U.S. nuclear policy is a tangle of contradictions.

We ignore a proliferator like Pakistan, reward a defiant nuclear program like India’s with a legitimizing treaty, and go hammer-and-tongs after regimes like Iran and North Korea that interfere with our geopolitical objectives.

It’s difficult, if not impossible to conduct such an arbitrary, unilateral, and self-serving foreign policy through international institutions. That’s why the Bush administration has preferred to act through executive orders.


By Presidential Executive Order , we’re living in a state of national emergency.

Because the proliferation of weapons of mass destruction and the means of delivering them continues to pose an unusual and extraordinary threat to the national security, foreign policy, and economy of the United States, the national emergency first declared on November 14, 1994, must continue in effect beyond November 14, 2006. In accordance with section 202(d) of the National Emergencies Act (50 U.S.C. 1622(d)), I am continuing for 1 year the national emergency declared in Executive Order 12938, as amended.
This notice shall be published in the Federal Register and transmitted to the Congress.
GEORGE W. BUSH
THE WHITE HOUSE,
October 27, 2006. [emphasis added]


Betcha didn’t know that.

And in early 2006, the Bush administration considered issuing an Executive Order commanding the world either to be with us or against us in an effort to destroy North Korea through a financial blockade.

Betcha didn’t know that either.

Executive Orders come in various flavors: In addition to the plain vanilla Executive Order, there are National Security Presidential Directives (issued with the advice of the National Security Council), Homeland Security Presidential Directives, and Presidential Decision Directives.

Executive order authority may even be delegated to government departments, it seems.

Maybe even to John Bolton.

Betcha didn’t know that.

For the Bush administration, executive orders appear to be the preferred method for making lemonade from the cornucopia of foreign policy lemons it has on its hands.

Consider this application of executive order power in a nuclear imbroglio involving North Korea in 2003, as demonstrated by this press release from the State Department (released on April Fools’ Day! somebody at State’s got a sense of humor):

North Korea-Pakistan: Missile-Related Sanctions and Executive Order 12938 Penalties

There has been some confusion regarding the penalties that were imposed March 24 on the Pakistani entity Khan Research Laboratories (KRL) under Executive Order 12938, as amended, and the penalties that were imposed March 24 on the North Korean entity, Changgwang Sinyong Corporation under the missile sanctions law. These sanctions were for a specific missile-related transfer.

Changgwang Sinyong Corporation is a North Korean missile marketing entity and has been sanctioned repeatedly in the past for its missile-related exporting behavior. Changgwang Sinyong Corporation transferred missile-related technology to KRL. The United States made a determination to impose penalties on both Changgwang Sinyong Corporation and KRL as a result of this specific missile-related transfer. These sanctions do not pertain to any other activity, including nuclear-related ones. We informed the Congress on March 12 that the Administration had carefully reviewed the facts relating to the possible transfer of nuclear technology from Pakistan to North Korea, and decided that the facts do not warrant the imposition of sanctions under applicable U.S. laws. [emphasis added]
Released on April 1, 2003

Mmmm...the sweet smell of ”confusion”.

That’s bloody chum to a contrarian blogger like myself.

Allow me to explain:

The most egregious nuclear proliferator on the face of this planet is Pakistan, in the person of A.Q. Khan.

Khan’s network provided nuclear technology to Libya, Iran, and North Korea.

Much as President Musharraf would like to claim that Mr. Khan’s efforts were after hours and on his own dime, the North Korean transaction involved not the payment of cash to Mr. Khan’s private bank account but the delivery of North Korean No Dong missiles and technology to the Pakistan government.

Awkward.

Makes it look like the Pakistan government was proliferating nuclear weapons technology—the type of activity that, if Kim Jung Il’s experience was any guide, would provoke the formation of a worldwide alliance to destabilize and if possibly destroy the culprit’s regime, at the very least cut off its supply of cash and cognac, etc. etc. etc.

But since Pakistan is our ally in the war on terror, the nature of the transaction—and the character of the crime—were neatly reversed.

As the Bush administration saw it, the offense was North Korea’s supply of the missiles to Pakistan...and the fact that they got paid for them with nuclear weapons equipment and technology was of secondary importance.

Actually, it was no laughing matter.

The State Department had to step up and pre-emptively define the transaction as a missile purchase and sanction Khan’s laboratories itself. Otherwise, Pakistan would have been vulnerable to much more serious, legislative sanction—a total cutoff of aid under the Solarz Amendment--as a proliferator.

So the State Department made a valiant if “confusing” effort to present the sanctions against Khan’s laboratory as an ad hoc punishment for the Pakistani government’s buying the missiles—because “the end-user of the missile purchase cannot be sanctioned under the Arms Export Controls Act” (according to Nicholas Kralev’s report, Pakistan purchases N. Korean missiles, in the March 31, 2003 Washington Times)...and we’ve got to sanction somebody, after all!

So let’s just sanction this Pakistani nuclear lab over here.

There, that’s all better.

The primary public executive order governing North Korean sanctions is E.O. 12938 –the same one that establishes the state of national emergency, interestingly enough.

If I’m reading the order correctly, Treasury and State are delegated to carry this policy out. The Secretary of State makes the determination, and, when the president decides not to issue a waiver for national interest reasons, State places a sanctions notice in the Federal Register.

Kralev’s report in the Washington Times stated that the sanction against Pakistan in the North Korean missile/nuke boondoggle was enacted through a “State Department Executive Order” signed by none other than John Bolton.

Let us pause a moment to reflect on the appalling vision of John Bolton possessing executive authority to issue sanctions.

I have been unable to find another reference to State Department executive orders, which makes me hope the report was simply a misunderstanding—or a typical piece of Boltonian self-aggrandizement propagated by his eager enablers in the press.

In passing, I should point out that apparently violence was done not only to logic and common sense, but to the careers of people who tried to do their job and investigate and combat Pakistan’s proliferation activities.

Australian journalist Luke Ryland makes a persuasive case for analyst Richard Barlow, who claims he was hounded out of government because he insisted on investigating Pakistan’s proliferation activities while at the CIA and Department of Defense.

Beyond coddling Pakistan, the No Dong boondoggle highlighted another problem with implementing an aggressive strategy against North Korea—North Korea has no business ties with the United States, so any sanctions are strictly symbolic.

For this reason, Executive Order 12938, authorizing sanctions against North Korean missile exporter Changwang Sinyong Corporation from doing business with the United States for two years—when it was already doing no business with the United States at all—would not be satisfying to people of the hardline persuasion.

The Executive Order’s focus is explicitly domestic.

The significance of the E.O. is to enable what I would characterize as drive-by sanctions, broad-brush sanctions against terrorists, proliferators “and their support networks” that can be applied unilaterally and immediately by the executive branch against assets in the United States without the legal and judicial frou frou that has been rendered quaint in our ticking time bomb, mushroom-clouded smoking gun, Jack Bauer world.

But North Korea doesn’t have squat in the United States.

There’s nothing to sanction here.

So Executive Order 12938, even with its intoxicating vision of unilateral executive freedom of action, is pretty much useless.

That’s a problem.

There’s another problem.

Financially speaking, North Korea doesn’t own squat anywhere outside of North Korea.

The last North Korean bank overseas, in Vienna, was closed down under US pressure years ago.

Anything that North Korea has outside its borders that’s worth owning is in a third country bank, in some financial institution that’s not owned by North Korea, in the jurisdiction of some country that’s got its own laws and foreign policy, isn’t under UN sanctions, and—heaven forbid—might not be interested in harassing the Norks as aggressively as we are.

What to do?

How to extend U.S. reach beyond U.S. borders and U.S. corporations to attack North Korean financial activities and assets in non-Nork corporations in other countries...and do it in a way that the lack of any enabling UN resolution, potential infringement of sovereignty, and violence to the rights and protections afforded to law-abiding corporations by their home governments could be conveniently disregarded?

It’s clear that in 2005 and 2006 Section 311 of the Patriot Act emerged as a key instrument in Bush administration North Korean policy a la hardliner.

Patriot Act Section 311 is a provision originally designed to allow the U.S. government to sanction foreign banks and jurisdictions for deficiencies in their anti-money laundering (AML) regulations and practices overseas by threatening a cutoff of their access to the US banking system.

In general, the Treasury Department has been doing the Lord’s work on money laundering, primarily targeting the drug dealers who try to park hundreds of billions of illegal revenues in U.S. banks and, when they can’t do that, hunt for lax, lazy, and greedy banks overseas.

Patriot Act Section 311 gives Treasury a powerful weapon—the ability to deny foreign banks free access to the U.S. banking system if it is worried that terrorists and criminals could exploit their weak controls and indifferent enforcement to gain access to the world financial system and move money with impunity.

The unilateral power to cut off uncooperative foreign banks from the U.S. financial system was apparently irresistibly attractive to the hardliners, who, in my view, misappropriated the process to the application of coercive diplomacy against banks and countries willing to do business with North Korea.

After the first Patriot Act Section 311 investigation against a North Korea-related target—Banco Delta Asia—was announced in September 2005, officials of the Treasury Department’s Office of Terrorism and Financial Intelligence (OTFI) criss-crossed the globe serving notice on banks in places like Mongolia, Vietnam, Singapore, and Bulgaria that their current or potential involvement with North Korea made them vulnerable to US designation as banks of potential money laundering concern.

However, Patriot Act Section 311 investigations and regulations are meant to hassle banks and regulators. They are not a particularly appropriate tool for pursuing depositors—that’s supposed to be a job for local enforcement once the appropriate AML laws and practices are in effect.

Forcing foreign banks to cut off ties with a particular depositor in the absence of UN sanctions and local due process is an infringement of sovereignty and legally dicy for the foreign bank and its government.

The threat of a Patriot Act Section 311 investigation is a drastic—but not particularly efficient or fair--instrument of coercive diplomacy.

To compound these structural problems, judging by the public record, it looks like the anti-Nork dossiers assembled by OTFI were long on assertions, allegations, innuendo, and intimidating chest-thumping...and short on proof.

In other words, I wouldn’t be surprised if the anti-North Korea initiative emerged as an impediment to the trust and close cooperation between Treasury and foreign governments that characterizes the global AML effort against criminals and terrorists.

So I’ve always wondered if another, secret Executive Order would be necessary to authorize this awkward, antagonistic, and risky process—one tasking Treasury to disregard the legal, logical, and diplomatic headaches and selectively apply the threat of Patriot Act Section 311 investigations against banks that were doing any business with North Korea.

After all, if there wasn’t some explicit tasking in an Executive Order, how else can one account for Treasury, a branch of the famed Bush administration unitary executive, openly defying the State Department and stated U.S. policy for four embarrassing months on the repatriation of North Korean funds from Banco Delta Asia?

Another reason I wouldn’t be surprised by the existence of a secret Executive Order targeting foreign financial ties with North Korea is because apparently we came thisclose to getting it issued publicly.

I stumbled across this interesting report in the January 27, 2006 Chosun Ilbo :

The U.S. is readying fresh sanctions against North Korea over the regime’s alleged financial crimes that will be significantly more severe than the ones already in place. Raphael Perl, a congressional researcher in charge of tracking Pyongyang’s drug dealings and counterfeiting, said Friday authorities completed a rough draft of an executive order that would stop any financial firms involved in transactions with North Korea from conducting business in the U.S.

That will mean all banks, brokerage houses and insurance firms and refers not only to illegal transactions but to any financial deals with the North, Perl told the Chosun Ilbo on the phone. Once the regulations are finalized, “the message to financial institutions operating in the U.S. will be that the time has come for them to choose between the U.S. or North Korea,” he added.

...

But under the draft order, almost all finance companies would be effectively prohibited from doing business with North Korea. That would also affect international financial institutions outside the U.S. and thus deal a heavy blow to North Korea’s overseas trade.
In Perl’s reading, financial institutions would have a choice whether they are with or against the U.S., but given the importance of their U.S. interests, it would in effect force most major international firms to stop dealing with the North. (emphasis added)

An executive order of this sort, coming after the announcement of the Banco Delta Asia Section 311 investigation for deficient money laundering controls in September 2006, would represent a significant escalation.

It would be moving beyond regulatory activity initiated ostensibly to protect the US financial system to the overt use of domestic U.S. regulatory power to coerce foreign corporations and governments to modify their activities outside US jurisdiction in order to further US foreign policy goals.

Recently, I had the pleasure of speaking with Mr. Perl, who stated that he recalled the interview but the reporter a) didn’t speak English very well b) didn’t understand the sanctions process c) wanted to get a big story and d) got it all wrong.

Hmmm.

Despite Mr. Perl’s denial, I would have to say that the story sounds credible.

Why?

Because, for the hardliners, something more was needed.

Because direct U.S. sanctions against North Korea weren’t coming close to inducing the systemic crisis in Kim Jung Il’s regime that would place the hardliners crowing triumphantly on top of the North Korean dunghill.

North Korea provides no high value targets for traditional, direct sanctions under U.S. law and Executive Order 12938.

And the U.N. had demonstrated no interest in systemic sanctions beyond the targeting of North Korean entities directly involved in Pyongyang’s nuclear, WMD, and missile programs.

If one assumes that the Bush administration was impatient with global footdragging on the matter of axis of evil charter member North Korea:

...and was frustrated by the fact that any financial attacks on North Korea would have to occur in third-party jurisdictions...

...and the key jurisdictions included China and Russia, who have very little interest in extending North Korea sanctions beyond those carefully and narrowly defined by the U.N. Security Council...

...and the only effective way to compel immediate, concerted action by these countries would be through the threat of crippling their financial institutions...

...I would not be very surprised if somewhere there wasn’t an executive order of some sort authorizing the application of PA Section 311 to create a financial crisis in North Korea...

...and that this order would be secret because it would involve the misuse of the U.S. regulatory apparatus as an instrument of coercion against countries that are, if not our allies, at least according to our laws, not hostiles.

That’s probably why the Treasury Department went through all sorts of contortions to deny the obvious—that its Office of Terrorism of Financial Intelligence was circling the globe trying to force every tiny bank and half-assed country to cut off its banking ties with Pyongyang with the threat of a Patriot Act Section 311 sanction.

Because we were sanctioning our own friends and allies, not the North Koreans.

That looks a lot like economic warfare—ironically, against the very countries we were purporting to defend against North Korean efforts to undermine their financial and criminal laws.

Considering there was talk of citing North Korean economic warfare—those shaky counterfeiting allegations—as a casus belli, I would guess we wouldn’t be keen to announce our own doctrine of economic warfare--against third countries--in order to get at North Korea.

Unfortunately, I don’t think an unpopular campaign of unilateral global covert economic warfare against North Korea worked all that well.

China and Russia apparently defied the U.S., Kim Jung Il cobbled together an atomic bomb despite the partial financial blockade, engagement promptly became the order of the day in North Korean affairs, and the BDA investigation became little more than an embarrassing impediment to America’s North Asian diplomacy.

Of course, the trademark of a genuine Bush administration policy is that when an initiative of dubious effectiveness and legality runs into trouble, the first and easily obeyed impulse is not to backtrack and concede that critics might have a point; it’s to double-down with some middle-finger escalation.

So, in contrast to the appearance of restored normality in North Korean diplomacy, I’d like to put in my two cents’ worth concerning the presidential finding authorizing CIA destabilization campaign against Iran blessed by Elliott Abrams and Steven Hadley and ostentatiously leaked to ABC’s The Blotter:

The sources, who spoke on the condition of anonymity because of the sensitive nature of the subject, say President Bush has signed a "nonlethal presidential finding" that puts into motion a CIA plan that reportedly includes a coordinated campaign of propaganda, disinformation and manipulation of Iran's currency and international financial transactions.

I think the implication of this finding—and its leak—have been misunderstood.

When one recalls that the main U.S. initiative against Iran has been to isolate the regime financially through Treasury’s Office of Terrorism and Financial Intelligence—the same bunch that went after North Korea—and things haven’t been going all that great, the indication here is that hardliners feel they need a better way of winning hearts and minds.

The effective threat here is, I believe, “manipulation of...international financial transactions” e.g. that some Swiss bank is going to wake up one morning and find that the CIA has hacked into its mainframe and erased a few million dollars from an Iranian account.

The Swiss aren’t supposed to like it, and the Swiss government isn’t going to like it either. But it’s supposed to convince them that the risks of handling Iranian money has been upgraded from “reputational” to “operational” and it’s better not to handle any Iranian money at all.

It would also be a sign that a lot of banks and jurisdictions have not been sufficiently responsive to Bush administration jawboning on Iran backed up by Patriot Act Section 311 threats, and the hardliners want them put on notice through a pointed leak that Elliott Abrams will be rummaging through their mainframes and twisting their testicles as punishment.

If our Commander in Chief harbored any moral qualms about extralegal financial sabotage against the financial institutions of our friends and allies, I’m sure the plan’s architects whispered that the threat would be sufficient to peel financial institutions away from Tehran...or maybe just one publicized demonstration of the Death Star would be sufficient to bring the world financial community to heel...

...after all, that’s how it worked with BDA...

...didn’t it?

Well, it didn’t work that way.

Despite hardliner claims, it appears the Patriot Act Section 311 campaign against North Korea sputtered to an ignominious conclusion as Pyongyang’s nuclear capability and Chinese good offices became the driving forces in North Asian diplomacy.

It’s an interesting paradox.

To the hardliners, as the need to compromise with the U.N., our allies, Congress, international practice, and our laws is stripped away by executive order, they can ascend to the pinnacle of objectivity and make the tough calls with absolute clarity, ruthlessness, and will.

But to the rest of us, it looks more like the Bush administration has fallen into an ever-deepening pit of delusion, shielding its deliberations under executive privilege and its actions behind executive orders, not because these policies demand absolute secrecy and freedom of action, but because they are profoundly flawed policies promoted by self-serving and unrealistic bureaucrats...

... and we would be a lot better off if these disastrous tactics could be made to wither away under the light of day and the harsh scrutiny of logic, law, and common sense.

The lazy reliance on Executive Orders to enable the pursuit of policies that were not just unpopular and illegal but fundamentally flawed may very not only define the Bush administration approach to North Korea diplomacy, but its entire legacy.