hankyoreh

By Kim Jung-pil and Lee Jeong-yeon, staff reporters

Until the National Intelligence Service (NIS) cited “conspiracy to overthrow the government” on its search warrant for Unified Progressive Party lawmaker Lee Seok-ki, the charge had been a “dead letter” charge that had not been used in years. “It was seen as something out of the Yushin era [the government of President Park Chung-hee during the 1970s], and there were just a few lines about it in the criminal law textbook,” said a source with prosecutors, who spoke on condition of anonymity.

Now that the NIS has trotted out the troubling charges, attention is turning to how much evidence it uncovered to support the charges of plotting an insurrection and whether the charges can actually be applied.

■ A serious plan and the ability to pull it off?

According to accounts on Aug. 29 from prosecutors, the NIS, and politicians, Lee, 51, is being charged with conspiracy to overthrow the government by forming an underground organization. The NIS search warrant gave the initials of an organization called “RO,” or a so-called “mountaineering group.” The claim is that around 130 people gathered at a religious building in Seoul’s Hapjeong neighborhood last May to plot an overthrow of the system by destroying oil and communications infrastructure. The people in question are also said to have sung North Korean revolutionary songs such as “Song of the Red Flag.” The NIS is charging them with conspiracy to carry out an insurrection according to the Criminal Act, and praising and inciting the enemy according to the National Security Law.

While it is unclear for now how much evidence the NIS has collected, criminal law experts were cautious about the possibility of charging Lee and others with conspiracy to overthrow the government as the facts stand now.

For the charge to stand up in court, it first has to be proved that the individuals had a specific plan with insurrection as a goal. In other words, it takes more to charge someone with “conspiracy” than evidence that they proposed some action. The person also has to be capable of executing the plan. For charges of insurrection, the accused has to have the goal of occupying a portion of national territory and incapacitating national systems and/or institutions. In other words, if they had planned to destroy South Korean infrastructure in the event of a North Korean invasion, they would also have to have the goal of interrupting the functioning of the Constitution, as well as determination and ability to carry it out. In the case of a riot, they would have to plans and capabilities to seize a particular region.

“Charges of conspiracy wouldn’t hold up if it were just about someone telling a friend as a joke, ‘Let’s go hold up a bank,‘” said Lee Ho-jung, a professor at Sogang University law school. “For charges of conspiracy to carry out an insurrection to apply, a person needs to have a detailed plan and capabilities. We’ll have to wait to see what other evidence the NIS found, but it doesn’t really seem possible in common sense terms for them to be capable of inciting an insurrection in a country as strongly defended and policed as South Korea.”

A Seoul-area judge concurred with the wait-and-see-approach.

“As far as whether it was conspiracy or just an attempt to increase the size of the party, they’ll need to examine the statements made at the meeting and look for concrete details, sincerity, and feasibility,” the judge said on condition of anonymity. “They’ll also have think sensibly about whether it’s possible in this day and age to talk about inciting an insurrection, or whether you could reasonably expect this group of 100-odd people to overthrow the state.”

And with sources confirming that statements about “readying weapons for a state of emergency” and “striking communications and oil facilities” did not come from Lee, questions about the identity and capabilities of the organization continue to grow.

Another part of the story that doesn’t add up is the NIS’s decision not to apply the clause in the National Security Law that forbids the formation of anti-government organizations. An organization capable of devising a plot to overthrow the government would be by definition an anti-government organization, and yet the NIS has not made those allegations.

The punishment stipulated in the law for establishing an anti-government organization is much more severe than for conspiring to overthrow the government. According to the National Security Law, the leader of an anti-government organization can be sentenced to life imprisonment or the death penalty. But under the Criminal Act, conspiracy to overthrow the government can lead in three or more years of incarceration. In this last case, the sentence can be reduced or waived if the violators turn themselves in.

This means it is possible that the NIS has not yet obtained the charter or the code of regulations followed by the organization Lee and others are accused of forming, or that i no such charter or code actually exists.

It appears that the “RO” that the NIS wrote on the search warrant was not the actual name of an organization, but rather a general acronym used to refer to a ‘revolutionary organization’.

It is also possible that the NIS may have made this allegation to take advantage of the shock value of the phrase “conspiracy to overthrow the government.” The NIS could have added the charge of insurrection to the search warrant even though there was not adequate evidence to support such a charge.

A source with the prosecutors said in condition of anonymity, “It is important not to let excitement over the term ‘conspiracy to overthrow the government’ push us in the wrong direction.”

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