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Trading  | April 28, 2018

Just hours after President Trump once again hinted that talks between the US and North Korea could still fall through even as progress is slowly being made on the logistics of what would be a historic summit, the Washington Post reported that the family of Otto Warmbier – the 22-year-old American student who died last year after being arrested and sentenced to 15 years of hard labor in North Korea, purportedly for stealing a propaganda poster – has filed a lawsuit against the Hermit Kingdom in a federal court.

The lawsuit is similar in many respects to high-profile litigation against Iran and Saudi Arabia that have recently been given the green light by federal judges. And like those cases, it has the potential to seriously complicate relations between the US and North Korea at a particularly delicate time.

In addition to asking for a sizable monetary reward, the lawsuit reveals new details about the circumstances of Warmbier’s death, including a chilling description of his condition upon his return to the US last year, more than 17 months after his initial detainment.

The family, which hails from Cincinnati, is being represented by McGuire Woods. The lead attorney in the case, Richard Cullen, also represents Vice President Mike Pence. However, both Pence and President Trump have made it clear that they’re not involved with the case – at least not directly.

In their lawsuit, Fred and Cynthia Warmbier said their son traveled to the North in Dec. 2015 as part of a program run by Young Pioneer Tours, “a China-based operator that catered to Westerners.”

Otto, according to the complaint,“believed this was an opportunity to understand how people lived in one of the only closed societies in the world.” But when the group attempted to depart after five days, Otto was detained at the Pyongyang airport “without explanation.” Four days later, the North conducted a successful test of a nuclear hydrogen bomb.

Warmbier was used as leverage in the rogue nation’s geopolitical disagreements with the United States, according to the lawsuit.

The legal filing states that North Korean officials forced Warmbier to make a false statement in which he confessed to invented accusations that he was operating as a spy connected to the CIA. He was released 17 1/2 months later in a deep coma, blind, deaf, with a wound on his foot and damage to his teeth, the lawsuit states.

When his parents met him at the Cincinnati airport, Warmbier “had a shaved head, a feeding tube coming out of his nose, was jerking violently and howling, and was completely unresponsive to any of their efforts to comfort him.” North Korean officials disavowed responsibility, asserting that Warmbier had contracted botulism.

The lawsuit asks for a monetary award to be determined by the court for punitive damages related to Warmbier’s mistreatment and death, and the emotional suffering of his family. The money could come from a fund, created by Congress in 2015 and administered by the Justice Department, to compensate victims of state-sponsored terrorism.

The White House has said it supports the lawsuit.

Three American prisoners remain in North Korea, and securing their release was one of the topics discussed during Secretary of State (then CIA Director) Mike Pompeo’s clandestine journey to meet with North Korean leader Kim Jong Un over Easter weekend. And during their meeting at Mar-a-Lago last week, Trump and Japanese Prime Minister Shinzo Abe discussed 13 unresolved cases of Japanese citizens who were kidnapped by North Korean spies in the 1970s and 1980s. Many South Koreans have also been abducted by the North since the Korean War armistice was signed in 1953.

Those who were watching may remember that President Trump introduced Fred and Cynthia Warmbier, Otto’s parents, during this year’s State of the Union address. The president has since shifted away from his aggressive rhetoric toward the North, even going so far as to describe Kim Jong Un’s behavior as “honorable” as recently as Thursday morning.

In the suit, the Warmbiers allege that their son was used as an unwitting pawn in a geopolitical chess game between the North and the US.

As the suit begins to wend through the US legal system, observers will be watching to see if it has any impact on US-North Korea relations. The North, which is struggling with a sinking economy choked by a series of increasingly intense sanctions adopted by the UN Security Council and unilaterally by the Trump administration, might balk at paying a sizable penalty if the case succeeds – even though those same conditions have been widely credited with forcing the North to the table. KJU even went so far as to declare a suspension of the North’s nuclear and missile tests last weekend (though as we noted, he might have an ulterior motive).

And since these types of federal cases typically take years to resolve, the outcome of the case could hang over the talks between the two countries, further complicating an already incredibly fraught negotiation between the two historical adversaries. 

We’ll be watching to see if the suit figures at all into a meeting planned between South Korean President Moon Jae-in and Kim set for Friday morning – a meeting that is widely seen as a preamble to Kim’s meeting with the US.

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