North Korea nightmare for American student's prank?

Story highlights

  • U.S. student sentenced to 15 years hard labor for stealing N. Korea propaganda banner
  • Danny Cevallos: American tourists need to know that their constitutional rights don't protect them in foreign countries

Danny Cevallos is a CNN legal analyst and a personal injury and criminal defense attorney practicing in Pennsylvania and the U.S. Virgin Islands. Follow him on Twitter @CevallosLaw. The opinions expressed in this commentary are solely his.

(CNN)This week North Korea sentenced an American student to 15 years of hard labor after the student was arrested for allegedly removing a political flag from a hotel.

A Human Rights Watch officials condemned the sentence in a statement: "North Korea's sentencing of Otto Warmbier to 15 years hard labor for a college-style prank is outrageous and shocking, and should not be permitted to stand."
The U.S. State Department has responded that the punishment for Warmbier, a University of Virginia student, is "unduly harsh," and called for his release. Some may think that's the least the Department of State can do. It also may be the most they can do. And that's something more Americans should be aware of.
When I was a kid, and my dad was living in Mexico, he would always offer some sage advice when I went out: "Remember," he cautioned. "Don't be an idiot. If you do something stupid, here in Mexico, you are not innocent until proven guilty. You're guilty until proven innocent." He'd lived there a while. He knew what he was talking about.
Of course, there were variations on this rule — for example, whenever his own car was stopped by the Mexican federales, it sure seemed more like Dad was guilty ... until he handed a sweaty wad of pesos to the "policia." But for the most part, his observation on justice and due process abroad was "preciso" — dead accurate.
Strangely enough, some American tourists don't seem to learn. Even after shows like Locked up Abroad or classic films like Midnight Express, there are still Americans who unwisely misbehave in other sovereign nations, unaware that their U.S. passport is not a force field or a "get out of jail free" card.
In fact, sometimes that precious passport makes a person a "mark." There were whole scams in Mexico built on this principle, designed to prey upon the ignorant tourists. One involved some local hanging around and offering to sell a joint to fraternity bros on spring break, then the local's cohort policia amigo would follow the tokers and wait for them to light up. Then the arrest — and subsequent shakedown — would begin.
Terrified tourists facing the threat of a Mexican prison were more than happy to hand over their beer pesos as a payoff to the authorities, festooned in military caps and epaulettes. The tourists would be let go with a warning, and each side considered themselves a winner. At least that's how my high school pal [name redacted] told me the extortion went down.
The point is, whether it's Estados Unidos Mexicanos, or the Democratic People's Republic of Korea, or potentially any other country, travelers are vulnerable. That's not to say that all police outside the United States take advantage of visitors, or to deny that there are corrupt law enforcement officers who might do the same in the U.S.
When compared to the U.S. legal system, defendants abroad are often guilty until proven innocent. And since most visitors to a foreign country don't study for the foreign bar exam before they go, they are easy targets for confidence men and scammers, and also others like that outside the government.
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For example, Jamaica is known as the land of Rasta and ganja. But marijuana has historically been illegal there — though it has recently been decriminalized. Travelers have been arrested for drugs, while likely expecting they were vacationing in an exotic marijuana utopia, like Amsterdam or ... Denver. Think Mexico is lawless? You may be right on several counts. But Mexico actually has strict gun laws. As some Americans have found out, if you bring your "pistola" south of the border, you'll find yourself arrested.
Tourists goof off abroad, then suddenly find themselves under arrest, and at the mercy of another sovereign. It's that manufactured, sudden imbalance of power that gives an underpaid policeman or a regime the bartering power to extract what they want from a vulnerable American..
North Korea isn't looking for a cash bribe, though. Rather, it seeks another kind of capital — political capital. And the method works just the same. When you think about it, in terms of propaganda, the plaintive cries of a bawling, penitent UVA student televised internationally is as compelling and newsworthy as test-detonating a nuke.
Certainly the public (one-hour) trial of a 21-year-old college kid and his speech at a press conference are several million dollars — or in North Korean currency, "won" — cheaper than building nuclear missiles. From an economic and political standpoint, countries with tenuous international relationships might do better to follow tourists around and wait for them to break the law, instead of investing in tanks and ballistic missiles.
If you're an American who assumes that if you're arrested abroad, the Joint Special Operations Command (JSOC) is going to land some Chinook helicopters on the jail roof and send in some Delta Force guys to rescue you, then you are sorely mistaken. And trust me, the White House is not interested in a Guantanamo prisoner exchange for some Delta Tau Chi brother who urinated on a statue of some historic liberator after too many shots of tequila.
The U.S. Department of State makes it crystal clear: a consular officer cannot demand the immediate release of a U.S. citizen arrested abroad or otherwise cause the citizen to be released. Nor will the State Department represent a U.S. citizen at trial, give legal advice, or pay legal fees and fines with U.S. Government funds. They'll maybe help you contact your parents, or give you some reading materials, but that's about it.
Obviously to most of us, stealing a banner doesn't seem like such a big deal. But stealing a flag is a crime here as well as North Korea — it's just that petty theft is not as big a deal in the States.
But obviously in this case, it's not about a 50-cent flag. It's about the symbolism. It's about making a political pawn out of a college kid who made a mistake borne of youthful indiscretion. If only the sweaty wad of pesos trick worked in the DPRK ...