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950 FEDERAL SUPPLEMENT, 2d SERIES
rigorous definition of that term adopted in
the FSIA. DPRK’s failure to respond to
the complaint or to respond to any of the
congressional inquiries regarding Reverend Kim’s fate, in part, obscures the precise details of Reverend Kim’s treatment
following his abduction by DPRK agents.
Moreover, the widely feared nature of
DPRK repression appears to force those
individuals who may know details about
Reverend Kim’s whereabouts and treatment to convey such information sparingly
and anonymously. See, e.g., Do Hee–Youn
Decl. ¶ 2 (describing ‘‘network of individuals that have supplied TTT information concerning North Korean matters’’ and explaining ‘‘many of these individuals are
kept confidential to ensure their safety
from potential retribution against them by
the North Korean government’’). Unfortunately for plaintiffs, no D.C. Circuit opinion appears to allow such circumstances to
lessen the plaintiffs’ exacting burden of
proof.
Here, the declarations of the plaintiffs
and Butler reflect no actual knowledge of
how Reverend Kim was treated in the
DPRK. The South Korean court decision
convicted a DPRK agent of abducting Reverend Kim, but does not refer to Reverend Kim being tortured. The congressional resolutions and correspondence sought,
but did not provide, details about Reverend Kim’s treatment. The State Department reports discussing abuse in DPRK
prisons and media speculation that Revered Kim died provide no first-hand accounts detailing his treatment. The reports from Human Rights Watch and the
United Nations provide no first-hand accounts of Reverend Kim’s mistreatment
and do not detail the frequency or duration
of the acts of torture at the prison camps.
The Kirkpatrick book excerpt recounts information docketed in this case but adds
no first-hand information about Reverend
Kim’s treatment, or any details about the
nature or severity of his torture, or the
frequency or duration of any acts of torture or the parts of his body at which they
were aimed or any weapons used to carry
them out. Two of plaintiffs’ declarants, Do
Hee–Youn and Yoshikuni Yamamoto, recounted hearsay reports that Reverend
Kim was tortured and died. The declarants did not, though, reveal the sources of
the reports, specify their bases of knowledge, or provide useful details about the
nature and severity of any torture.
The experts in this case describe conditions at an established and extensive system of penal colonies where the DPRK
regularly holds abductees and political
prisoners, and opine that reports from defectors stating that Reverend Kim was
tortured and is either still in custody or
has died as a result of his treatment are
credible. However, Hawk does not report
that the prisoners he spoke with had personal knowledge of Reverend Kim’s treatment. Hawk also does not describe the
nature or severity of the torture Revered
Kim suffered, or the frequency or duration
of acts of torture upon him or the parts of
the body at which they were aimed or any
weapons used to carry them out. Likewise, Downs does not identify the sources
he deems credible upon whom he based his
opinion that Reverend Kim probably died
as a result of deliberate torture and malnutrition. He does not reveal their bases
of knowledge about Reverend Kim or say
whether he has spoken with them. Nor
does Downs provide details regarding the
severity of Reverend Kim’s beatings.
Price constrains us from employing discussion about the abuses generally in these
camps to show that mistreatment of Reverend Kim occurred that rose to the level
of torture under the TVPA. As the plaintiffs have not satisfied the requirements of
the FSIA, subject matter jurisdiction is
lacking.