The Inexplicable Prosecution of Sue Mi Terry

Last week, the United States government indicted Sue Mi Terry, widely recognized as “one of the world’s foremost authorities on North Korea. . . an all-star analyst who is widely respected in the field of Korea studies,” for, well, being Sue Mi Terry.

The case alleged against Terry looks paper thin, practically nonexistent, and if there’s no more to it than what’s alleged in the Indictment there’s a strong likelihood that she will prevail when all is said and done. But vindication, for all its psychic virtues, will come, if at all, only after Terry has paid a terrible price. According to the New York Times, she has been placed on unpaid leave as a Senior Fellow at the Council on Foreign Relations. She also faces millions of dollars of attorneys’ fees that could pile financial ruin on top of the destruction of her professional reputation.

Terry served as a senior CIA Korea analyst from 2001 to 2008. After leaving the CIA, Terry has held a number of prestigious governmental and private posts, including serving as a senior official of the White House National Security Council (“NSC”) under presidents George W. Bush and Barack Obama, as a Senior Fellow for Korea Studies at the Council on Foreign Relations, and as a director at the Wilson Center. She is regularly quoted in print and on the web as an expert on US relations with North and South Korea and has made numerous television appearances.

It’s safe to assume that Terry’s contacts include pretty much everybody that counts in the world of Korean foreign policy. Three of those contacts were South Korean diplomats working in official governmental positions in the United States. One was a Minister for the South Korean Mission to the United Nations. Two others were diplomats at the South Korean Embassy in Washington, D.C. According to the Indictment, these three individuals were in fact South Korean intelligence officers operating under diplomatic cover.

The charge against Terry centers around her dealings with these three intelligence officers. From the Indictment alone, one might think that these three individuals dominated and controlled Terry’s entire professional and personal life, but that’s misleading. As one of the most connected and sought-after professionals in the foreign policy establishment, Terry’s views are likely informed by discussions with dozens, perhaps even hundreds of government officials, former government officials, academics, journalists and policy experts all over the world.

Before summarizing the charges against Terry, it is important to note what the Indictment does not allege:

• The Indictment doesn’t claim that the government was unaware that the three diplomats were also intelligence officers, or that Terry concealed their true positions. To the contrary, it makes clear that Terry herself “identified” the three individuals as intelligence officers in interviews with the FBI beginning in 2014;
• The Indictment doesn’t accuse Terry of stealing or passing any classified documents or information to the South Korean officers;
• The Indictment doesn’t accuse Terry of espionage;
• The Indictment doesn’t charge Terry with conspiring to commit any illegal act;
• The Indictment doesn’t accuse Terry of advocating any position contrary to official United States policy;
• The Indictment doesn’t accuse Terry of acting in the interest or for the benefit of our bitter adversary, North Korea. To the contrary, Terry is a fierce critic of the North Korean government, and last year co-produced a film, Beyond Utopia, documenting the inhumane conditions under which North Koreans are forced to live and the harrowing attempts to escape those conditions.

Rather, Terry is charged with violating the Foreign Agents Registration Act (“FARA”), which requires any person acting in the United States as “an agent of a foreign principal” to register with the Attorney General.

In other words, Terry is criminally charged for neglecting to fill out a form identifying herself, most likely incorrectly, as an agent of the government of South Korea.

Nothing in the Indictment supports branding Terry as an agent of the South Korean government. The Guidelines published by the FARA Unit of the Department of Justice, the office that administers the Act, certainly don’t support such a characterization. For instance, the Guidelines say that in cases where the political activities in question align with the person’s own interests, it is unlikely to be shown that the person was acting as an agent of a foreign principal, as opposed to on his/her own behalf. Likewise, a person who is persuaded on a matter by a foreign principal and then advances that position is unlikely to be found to be an “agent” of the foreign principal.

Sue Mi Terry has a decades-long history as an independent, vocal, highly acclaimed Korea expert. Writing an article titled “A Korea Whole and Free: Why Unifying the Peninsula Won’t Be So Bad After All,” the first act the Indictment alleges as evidence of her “agency” because the South Korean government allegedly paid her to write it, hardly qualifies as a departure from the world view Terry has expressed hundreds of times during her government and private service. The same can be said of her congressional testimony on “North Korea’s Perpetual Provocations: Another Dangerous, Escalatory Test,” and “Countering the North Korea Threat: New Steps in U.S. Policy,” and every other example cited in the Indictment of articles written or testimony given. There is nothing even remotely out of line with the views that Terry has been aggressively expressing in public for decades.

Moreover, the Indictment is highly misleading in describing the public opinions expressed by Terry. It conveys the false impression that Terry obediently did the bidding of the South Korean government. The truth is far different.

During the ten-year period in question, Terry was often a vocal and harsh public critic of the South Korean government and its then-president, Moon-Jae-in. Terry repeatedly criticized Moon for his naïve belief that North Korea’s dictator, Kim-Jong-un, was a “young and candid” strategist with whom he could negotiate denuclearization. She commented publicly that “we are smoking something” if we think North Korea denuclearization is achievable. When Moon announced plans to reopen the Kaesong Industrial Complex, Terry pushed back vigorously, warning that the South Korean government “should not reopen the Kaesong Industrial Complex despite the controversy over how it was suspended by President Park, whether it was properly or improperly closed.” Terry also repeatedly criticized President Moon’s attempts to negotiate directly with North Korea to declare an end to the Korean War, calling the attempts “ill conceived” and insisting that “The Moon administration just needs to realize that they’re just not going to be able to appease the North.” And Terry has repeatedly chastised the South Korean government for not doing enough to prioritize human rights abuses in North Korea. Dozens of other examples of Terry’s criticism of the South Korean government could be cited.

In other words, nothing Terry said or did during the ten-year period in question demonstrated a deviation from the policy views that she has openly advocated throughout her entire career. The fact that some – but not all – of those views were also advocated by the government of South Korea isn’t surprising. Shared beliefs on some issues don’t magically turn Terry into an “agent,” especially in light of the fact that Terry and the South Korean government publicly disagreed about other issues.

The most serious allegation against Terry is that she disclosed to South Korean officials the details of a “private group meeting” with the U.S. Secretary of State at the Department of State building in Washington D.C. Characterization of the meeting as “private” is curious, given that this so-called “private” meeting included not only State Department staff, but “five Korea policy experts.” The meeting was allegedly “off the record.” If true, Terry’s disclosure of what was said at the meeting was, at most, a breach of professional etiquette. There is no allegation that Terry obtained or disclosed any classified information that was discussed at the meeting, and the presence of five non-governmental “Korea policy experts” establishes conclusively that nothing revealed by the Secretary of State was meant to be confined only to governmental officials with security clearances. According to a statement by Terry’s attorney, reported in the New York Times and elsewhere, Terry has not had a security clearance for over a decade, and therefore has no access to classified information.  

Apparently aware of the thin substance of their case on the merits, the Indictment attempts to paint a picture that Terry was bought and paid for by South Korea. It charges that over a ten-year period from 2013 to 2023 Terry was “rewarded with luxury goods,” treated to a handful of meals, and “accepted” contributions totaling $37,000 to a think tank that she founded in Washington D.C.

The three “rewards” that Terry allegedly received over a ten-year period were a coat and two handbags that, collectively, amounted to less than the cost of an entry-level Birkin bag; being taken to lunch or dinner on a handful of occasions; and “accepting” donations, not to her personally, but to a think tank with which she was affiliated. The government attempts to make a mountain out of this molehill by cloaking it in overblown language. Gifts are not just gifts, but “rewards.” Handbags and coats aren’t just handbags and coats, but “luxury goods” and “designer” items. Restaurants aren’t just restaurants, but “upscale” and “Michelin-star” venues. Officials of the South Korean government aren’t just government officials, they’re “handlers.”

Terry has already paid a terrible price as a result of this indictment. In addition to losing her job at the Council on Foreign Relations, Terry has been falsely branded as a spy. The BBC reported on the Indictment under the headline, “Ex-CIA analyst charged with spying for South Korea.”  False – Terry has not been charged with spying. USA Today led with “Former White House Employee, CIA analyst accused of spying for South Korea, Feds Say,” and accused Terry of disclosing “U.S. government secrets” to South Korean intelligence officers. False and false again. The Indictment makes no such allegations.

The Department of Justice appears to be prosecuting Sue Mi Terry for expressing the relatively non-controversial, anti-North Korea, pro-U.S. positions she has taken consistently throughout her entire career, and for accepting over a ten-year period – as a private citizen, not a government employee – a handful of gifts from grateful South Korean officials.

Saying that all Terry needed to do in order to avoid all of this was to fill out a form is not an acceptable position. It is a dishonest, cowardly way out. Nobody should be forced to falsely declare that they are an agent of a foreign government when in fact they are not.   

Moreover, the danger here goes far beyond the persecution of one individual. The government should not be in the business of criminalizing the normal work of journalists, scholars and commentators whose opinions are rightly informed by developing relationships with countless sources, some of whom are necessarily officials of foreign governments.

Why the Department of Justice is doing this remains a mystery. I don’t have inside information from either the DOJ or Sue Mi Terry, and I don’t know the full story of what’s behind this case. My analysis is based on the four corners of the Indictment and the information I have been able to glean from open public sources.

What I do know, however, is that if DOJ prosecutors don’t have a whole lot more than what they have alleged in the Indictment, they are likely to suffer the same humiliating defeat they suffered when they brought ill-conceived FARA charges against Greg Craig and Tom Barrack, and they will have trashed the reputation and career of a highly respected foreign policy expert for no good reason.