Daniel J. Kritenbrink
Assistant Secretary of State
Bureau of East Asian and Pacific Affairs
U.S. Department of State
2201 C Street, NW
Washington, DC 20520
July 25, 2023
Dear Assistant Secretary Kritenbrink:
We previously have corresponded concerning the current travel ban restricting U.S. citizens from traveling freely to the Democratic People’s Republic of Korea (DPRK). See our letter, dated September 6, 2022, attached. We appreciate your letter to us, dated September 22, 2022, responding to our concerns.
We take this opportunity to further our discussion and request achievable changes in the current ban on travel to the DPRK. As set forth in our September 6 letter, we believe there are many reasons justifying an end to the travel ban at this time, or, at the very least, modifications to the ban to support bona fide humanitarian and democracy-based initiatives and people-to-people engagement, with little risk to those who would travel. We ask that the State Department end the travel ban at this time. To the extent the ban is based on concerns that U.S. citizens will be unlawfully detained, mistreated, or held hostage, we believe the empirical evidence strongly suggests otherwise. Since the early 1990s, U.S. humanitarian organizations safely sent hundreds of aid workers to North Korea, including outside of the capital city of Pyongyang. From 2000 to 2017, an estimated 6,000 Korean Americans traveled to North Korea, many seeking to reunite with family members from whom they became separated due to the Korean War. Out of these thousands, only 20 known U.S. citizens have been detained in or deported from North Korea. Additionally, prior to the institution of the 2017 travel ban, hundreds of U.S. citizens lived and worked as residents in the DPRK – none of whom were detained. These people-to-people exchanges and humanitarian activities are crucial to advancing the U.S. national interest and building trust with North Korea, but have been largely halted as a result of the 2017 travel ban.
In the absence of terminating the travel ban, at a minimum we propose two modifications to the Department’s Special Validation Passport (SVP) policy that has been applied for travel to the DPRK. First, we believe it would be sensible to align the SVP policies for the DPRK more closely with the NGO-related general license in the North Korea Sanctions Regulations (NKSR), set forth at 31 C.F.R. Part 510, and administered by the Department of the Treasury’s Office of Foreign Assets Control (OFAC). Such a modification would more fully reflect existing U.S. policy towards the DPRK, and support the important objectives of the NGO and humanitarian communities that are the intended users of OFAC’s humanitarian exemption.
A second and related point is that we believe the Department’s SVP policy for the DPRK should explicitly allow travel for the purpose of constitutionally protected speech (a concept already reflected in part in OFAC’s NKSR), and, in particular, for the purpose of democracy-building and people-to-people initiatives. In light of the strong constitutional protection associated with the right to travel, we believe travel that is associated with First Amendment free speech in aid of such initiatives is compelling. We believe that now is the time to consider appropriate amendments to the SVP policies to make them a more coherent part of the overall U.S. regulatory structure for the DPRK, and also more fully reflective of U.S. laws and values.
Section 510.512 of OFAC’s NKSR authorizes NGOs to provide services to the DPRK for enumerated categories of not-for-profit activities, including those relating to humanitarian, democracy building, non-commercial development, and environmental protection purposes. As you know, numerous organizations are engaged in these areas in the DPRK.[1] However, the Department’s SVP “national interest” policy is more limited, only explicitly applying to journalists, Red Cross representatives, or others whose travel is “justified by compelling humanitarian considerations”, which we understand has been applied primarily for life-saving assistance for civilians.
Given that the U.S. government has authorized NGOs, through the NKSR, to provide the listed types of services in 31 C.F.R. section 510.512, U.S. citizen NGO personnel need to be able to travel to the DPRK to responsibly plan, implement, and monitor those authorized activities. Therefore, a more explicit alignment between the SVP policies and the OFAC general license is appropriate, helpful to humanitarian policy objectives, and sensible. To the extent that NGOs engaged in OFAC-authorized activity cannot have their representatives travel to the DPRK, two detrimental outcomes will result:
(1) humanitarian aid organizations will continue to be deterred from engaging with the DPRK, to the detriment of long-term U.S. policy interests, not to mention the interests of the DPRK people who receive support from these programs, and
(2) for those organizations that maintain their in-country activity despite this seemingly counterproductive regulatory obstacle, it will become harder to properly plan, implement, and monitor effectiveness and results, thereby impeding well-managed humanitarian activity in the DPRK.
Accordingly, we believe that U.S. policy and associated regulations or State Department guidance for the DPRK should explicitly allow travel when it relates to OFAC-authorized activity. This should include activity authorized under section 510.512, as well as other activities that are authorized under or exempt from OFAC’s NKSR (e.g., as discussed below, activities relating to the exchange of “information or informational materials,” an exemption from the NKSR, which is grounded in First Amendment protections). The Department could consider implementing this policy alignment in a simplified manner by, for example, putting out guidance on its website explaining that activity that is lawful under the NKSR would be deemed to be “justified by compelling humanitarian considerations” for the purpose of SVP authorization.
While we believe that aligning the SVP policy with the NKSR in this way would be an important step, there is an additional category of activity that in our view should — in fact, in our assessment, must — be explicitly covered by the SVP policy: travel to the DPRK for the purpose of engaging in constitutionally-protected speech. When the State Department has no particular safety-related concerns about a specific SVP requester whose travel purpose would be to engage in constitutionally-protected speech, those requests should be granted, and this policy should be made explicit. Not only is it our considered view that this is what would be consistent with U.S. constitutional law,[2] we also believe that allowing U.S. citizens to travel to the DPRK to engage in peace advocacy and other forms of protected speech would further U.S. policy interests in the region by allowing the local populations and government representatives to witness the diverse views and freedom of expression that governments can permit.
Section 510.213 of the NKSR already exempts activity relating to the importation and exportation of “information or informational materials,” as well as any “personal communication that does not involve the transfer of anything of value.” Congressional action codified this policy into U.S. law in 1988 and 1994, and it is clear that over the past three decades, this exemption has not undermined – and in fact has been an important and positive feature of – U.S. embargo policies towards countries like the DPRK. Congress enacted this exemption despite agency objections, in large part due to concerns about sanctions regulations restricting constitutionally-protected rights, and out of a fundamental belief that people-to-people contacts and the free flow of information are key foundations of U.S. foreign policy, even when there are national security concerns. In other words, Congress’ bold action in enacting these “Berman Amendment” exemptions to U.S. sanctions won the day based on an acceptance of modest short-term risks in the interest of positioning U.S. policy for longer-term success in the DPRK and other comprehensively sanctioned countries.
An example of important people-to-people contact that is not currently permitted under the SVP policy is family reunions. An estimated 100,000 Korean Americans with family members in the DPRK have not seen or heard from their loved ones in decades. While the South and North Korean governments have facilitated 21 reunions and 7 video reunions since they began implementing family reunions in 1985, Korean Americans with family members in the DPRK have been left out of this process entirely. Days before his election, President Biden pledged “to reunite Korean Americans separated from loved ones in North Korea for decades.” The United States has a moral obligation to facilitate these reunions as quickly as possible, as time is running out, especially for elderly Korean Americans.
Another example of a currently prohibited activity is a peacebuilding trip, such as the one in 2015 when American women traveled to the DPRK for a peace symposium and peace walks with North Korean women. It is not clear that such a trip would fall within the current and more limited “compelling humanitarian considerations” policy and therefore may not be given an SVP authorization. Even if the Department ultimately granted such an authorization under the existing language of the SVP, on its face the policy as stated does not appear to allow this type of travel as it is not directly tied to “humanitarian” (i.e., immediately life-saving) purposes. Therefore, would-be SVP requesters are deterred from even engaging with the Department for this type of trip. This example underscores the importance of explicitly listing the various policy grounds that would allow the Department to issue SVP authorizations. This type of peacebuilding trip is consistent with the travelers’ constitutional rights, and with the NKSR’s exemptions for informational exchanges.
We believe restricting such travel is inconsistent with the constitutional rights of U.S. citizens, and, equally important, acts as an impediment to U.S. foreign policy interests through engagement.
The longer that these types of human contact and free expression are restricted by the Department’s SVP policies, the more distance grows between our U.S. and DPRK societies. Isolation may increase the risks associated with misunderstanding, atrophying of relationships, and the ultimate erosion of any trust that remains or can be achieved in the bilateral relationship. While the Department has to date been focused on the immediate national security-related risks of travel, we assert that the time has now come, particularly if the travel ban will not be subject to a sunset in the near future, to more fully weigh the risk of years-long restrictions on travel to humanitarian efforts supported by the Treasury Department’s NKSR, and the longer-term risks to U.S. foreign policy interests rooted in engagement and value leadership.
Finally, and returning to trust, the current U.S.-DPRK diplomatic relationship appears to be in stasis, which in turn has paralyzed the goals of regional stability and containing nuclear proliferation. The equities of the engagement stand-off could be changed with one or more low-level signals from the State Department. One such signal would be to let the travel ban expire, or in the alternative to implement the policy changes proposed above, and make these known to DPRK counterparts. Reforming existing SVP policies would be low-hanging fruit, and a politically palatable way to serve U.S. interests that could create momentum for desired engagement.
We thank you for your careful consideration of our views and proposals, and urge that changes be made in the interests of humanitarian support, democracy building (even if a long road), and people-to-people engagement, all of which we believe are core objectives of our government vis-à-vis the DPRK.
Sincerely,
Individual Signatories
Christine Ahn, Executive Director, Women Cross DMZ & Co-Coordinator, Korea Peace Now!
Elizabeth Beavers, Quincy Institute, Vice President of Public Affairs
Mickey Bergman, on behalf of Governor Bill Richardson Center for Global Engagement
Cathi Choi, Director of Policy & Organizing, Women Cross DMZ & Co-Coordinator, Korea Peace Now! Grassroots Network
Abigail Disney, filmmaker, philanthropist and social activist
Rick Downes, President, Coalition of Families of Korean & Cold War POW/MIAs
Suzy Kim, Amnesty International USA (South) Korea Country Specialist
Orin O’Brien, Double Bass, New York Philharmonic (retired)
Kee B. Park, MD. Lecturer, Harvard Medical School
Jack Rendler, Amnesty International USA Country Specialist for North Korea & Founding Member, International Campaign to Stop Crimes Against Humanity in North Korea
Chahee Stanfield, Founder and Executive Director, National Coalition for Divided Families
Gloria Steinem, author and activist
Ann Wright, US Army Colonel and US Diplomat (retired), Veterans for Peace
Organizational Signatories
National Association of Korean Americans
Korea Peace Now
Korean American Peace Fund
Mennonite Central Committee U.S.
The United Methodist Church, Church & Society
The United Methodist Church, Global Ministries
The Peace Committee, the Korean Association of the United Methodist Church
Veterans for Peace
Women Cross DMZ
CC:
Kurt Campbell, National Security Council Coordinator for the Indo-Pacific
Wendy Sherman, Deputy Secretary of State
Kin Moy, Principal Deputy Assistant Secretary, East Asia and Pacific Affairs Bureau
Sung Kim, US Special Representative for North Korea
Enclosures
[1] Unfortunately, many such NGOs are compelled to seek specific licenses from OFAC, even when conducting activities falling within the scope of Section 510.512, due to the potentially broad but in any case highly ambiguous restriction in Section 510.512 on “partnerships and partnership agreements” with DPRK government parties.
[2] Aptheker v. Secretary of State, 378 U.S. 500 (1964) (restrictions on the right to travel must be narrowly tailored and justified by a compelling government interest); Kent v. Dulles, 357 U.S. 116 (1958) (right to travel abroad is a fundamental right that is protected by the Due Process Clause of the Fifth Amendment); Bauer v. Acheson, 106 F. Supp. 445 (D.D.C. 1952) (although the conduct of foreign affairs is within the discretion of the Executive Branch, such conduct must not be in conflict with any individual’s constitutional rights).
