1

1 BEFORE THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA
2

3 CYNTHIA WARMBIER, individually .

and as personal representative .
4 of the estate of OTTO WARMBIER, . Case Number 18-CV-977
and FREDERICK WARMBIER, .
5 individually and as personal .
representative of the estate of .
6 OTTO WARMBIER, .
.
7 Plaintiffs, . Washington, D.C.
. December 19, 2018
8 vs. . 9:02 a.m.
.
9 DEMOCRATIC PEOPLE'S REPUBLIC .
OF KOREA, .
10 .
Defendant. .
11 - - - - - - - - - - - - - - - - -

12
TRANSCRIPT OF EVIDENTIARY HEARING
13 BEFORE THE HONORABLE BERYL A. HOWELL
UNITED STATES DISTRICT JUDGE
14

15 APPEARANCES:

16 For the Plaintiffs: RICHARD CULLEN, ESQ.

McGuire Woods LLP
17 800 East Canal Street
Richmond, Virginia 23219
18
BENJAMIN HATCH, ESQ.
19 EMILY REBECCA GANTT, ESQ.
McGuire Woods LLP
20 101 West Main Street, Suite 9000
Norfolk, Virginia 23510
21

22 Official Court Reporter: SARA A. WICK, RPR, CRR

U.S. Courthouse, Room 4704-B
23 333 Constitution Avenue Northwest
Washington, D.C. 20001
24 202-354-3284

25 Proceedings recorded by stenotype shorthand.

Transcript produced by computer-aided transcription.
 2

1 C O N T E N T S

2
WITNESSES FOR THE DIRECT EXAMINATION
3 PLAINTIFFS

4
Frederick Warmbier 14
5
Greta Warmbier 43
6
Austin Warmbier 52
7
Cynthia Warmbier 60
8
David Hawk 86
9
Sung-Yoon Lee 108
10

11

12 EXHIBITS RECEIVED

13
Plaintiffs' Exhibits 1 through 15 3
14

15

16

17

18

19

20

21

22

23

24

25
 3

1 P R O C E E D I N G S

2 (Call to order of the court.)

3 THE COURTROOM DEPUTY: Matter before the Court, Civil

4 Action Number 18-977, Cynthia Warmbier, et al., versus

5 Democratic People's Republic of Korea.

6 Counsel, please come forward and identify yourselves for

7 the record.

8 MR. HATCH: Good morning, your Honor. May it please

9 the Court, Ben Hatch, on behalf of the Warmbiers. With me at

10 counsel table, Richard Cullen, Rebecca Gantt, and Katie Leo.

11 THE COURT: Welcome.

12 MR. HATCH: May I introduce the clients as well, your

13 Honor?

14 THE COURT: Yes, of course.

15 MR. HATCH: Fred and Cindy Warmbier.

16 THE COURT: Welcome to D.C. and my courtroom.

17 All right. Do you want to begin by moving in all of your

18 exhibits?

19 MR. HATCH: Yes. Thank you, your Honor. At this time

20 I would move in Plaintiffs' Exhibits 1 to 15 that have been

21 tendered to the Court.

22 THE COURT: All right. And that motion is granted.

23 (Plaintiff Exhibits 1 through 15 received into evidence.)

24 MR. HATCH: Your Honor, so we make sure we are clear,

25 as I said at the status conference, it's our view that the other
 4

1 affidavits that were in support of our motion are also in the

2 record. Of course, if the Court would like me to move them in

3 evidence technically today, I can.

4 THE COURT: No, they're already a part of the record.

5 Sometimes in default judgment proceedings, the issues can be

6 resolved solely on the papers. There are some cases, though,

7 where I think the public has a right to be informed about all of

8 the evidence that the judge is seeing, and the best way to do

9 that is in a public hearing. And that's part of the reason I

10 granted your request for an evidentiary hearing, although even

11 in your papers you recognize that it was not necessarily

12 required unless the Court needed additional evidence.

13 I know that you plan to introduce some additional evidence

14 to establish the subject matter jurisdiction of this court to

15 exercise jurisdiction over the sovereign of North Korea, and I

16 look forward to hearing that.

17 So why don't you call your first witness, unless you have

18 other preliminary matters to take up.

19 MR. HATCH: May I give a brief opening statement as

20 well?

21 THE COURT: Yes, you may.

22 MR. HATCH: Thank you, your Honor.

23 And your Honor, let me say on behalf of the Warmbiers that

24 we appreciate the opportunity to come before the Court today and

25 present evidence in support of our complaint and in support of

 5

1 seeking justice for Otto Warmbier. And we believe that the

2 evidence will show that Otto was detained, held hostage,

3 tortured, and killed by North Korea.

4 If I may, and hopefully the Court has it before it, this is

5 the Warmbier family. I want to introduce you to them. The

6 parents, Fred and Cindy Warmbier, who I just introduced; Fred

7 second from the left and Cindy on the right. They have three

8 children. Otto is the tallest there, second from the right,

9 Austin on the left, and Greta in the middle. And they come from

10 the Cincinnati, Ohio, area.

11 Let me tell you a little bit about Otto Warmbier, who was

12 an extraordinary young man. He was their eldest son, born in

13 1994. He was salutatorian, prom king, and homecoming king of

14 his high school. He attended the University of Virginia, where

15 he was pursuing education in the McIntire School of Commerce.

16 He was a young man with a bright future who was dedicated to

17 bringing people together and seeing all sides. And I think the

18 Court will hear evidence about that today.

19 We thought it would be important for the Court to see,

20 because I know we've tendered to the Court the so-called

21 confession that was released by North Korea, which includes

22 statements of Otto. And this was a piece of evidence that the

23 Court has now admitted as one of our exhibits that was not in

24 our prior filing, but we thought it would be important for the

25 Court to see Otto speak before he went to North Korea. So these

 6

1 are not the entire salutatorian speech, but a couple of clips

2 from that speech.

3 (Video recording played.)

4 MR. HATCH: That's Otto. And now I would like to talk

5 a little bit about North Korea. What do we know about North

6 Korea? It is a U.S.-designated State Sponsor of Terrorism that

7 had long been on the list. At the time of the events in the

8 complaint, it was not on the list, but it was subsequently

9 relisted in November of 2017, and it remains on the list today.

10 North Korea has, among other things, a long history of

11 detaining Americans for political ends, a history of torturing

12 detainees, including Americans, and routine human rights abuses

13 that have been widely recognized by the United Nations and by

14 the U.S. State Department. And those include torture. That

15 torture is an established feature of the interrogation process

16 in North Korea.

17 I would like to lay out for the Court a bit of the timeline

18 you will hear information on today.

19 On December 29th, 2015, Otto, a healthy young man, visited

20 North Korea on a tour to experience a different culture and a

21 way of life, and I think the Court will hear evidence about some

22 other trips he took today, similarly finding other people that

23 you wouldn't come across in your normal life and trying to learn

24 from those people.

25 On January 2nd of 2016, North Korea seized Otto at the

 7

1 airport as his tour group was in the process of departing. On

2 the 22nd of January, North Korea announced that it had detained

3 Otto for a, quote unquote, hostile act against the state.

4 And on February 29th, they released a televised

5 confession -- we put that in quotes -- by Otto. And then in

6 March of that year, North Korea tried and sentenced Otto to 15

7 years of hard labor.

8 Now, I know the Court has previously the televised

9 confession. This is not the whole thing, but it's a few clips

10 of it. And I'm going to publish it now, with the Court's

11 permission, and then some witnesses will reference it from time

12 to time rather than playing it during the witness's testimony.

13 THE COURT: You may proceed.

14 MR. HATCH: Thank you.

15 (Video recording played.)

16 THE COURT: I've asked our IT person to come up.

17 MR. HATCH: Oh, thank you, your Honor.

18 THE COURT: Because I've listened to this. It's much

19 clearer than what you're showing.

20 Why don't you move on, and then we can --

21 MR. HATCH: I will move on. Thank you, your Honor. I

22 appreciate the technical assistance. We will come back to that.

23 All told, North Korea would detain Otto for approximately

24 18 months. During that time, his parents were not allowed to

25 communicate directly with him. And I think the Court will hear
 8

1 evidence of the impact that that had on them and the family.

2 Coinciding with the period in which Otto was detained and

3 held, North Korea continued to develop its nuclear and ballistic

4 missile capabilities, which were strongly opposed by the United

5 States.

6 For example, four days after detaining Otto, North Korea

7 announced the successful test of a nuclear hydrogen bomb, and

8 his trial was held on the day that sanctions imposed by

9 President Obama against North Korea became effective.

10 Otto's return. After not hearing about their son for that

11 18-month period, the Warmbiers find out that he's finally coming

12 home, but they're told that he's not well. Nothing could

13 prepare them for what they saw, though. When they boarded that

14 plane -- and the Court will hear about it today -- they found

15 their son in a severely brain-damaged state and much distress.

16 He had a scar on his foot, and his teeth had been changed. They

17 were displaced. And the Court has affidavits with respect to

18 that as well. But he was completely changed from the young man

19 who went into North Korea. And sadly, tragically, he passed

20 away a week later at the age of 22.

21 North Korea told -- sent a document back with him that

22 Dr. Kanter, who is another affiant discussed, that said that

23 Otto had contracted botulism, as some explanation for his

24 condition. But the doctors have refuted that as a likely

25 diagnosis or anything that could have caused the condition that

 9

1 they found Otto in.

2 I will briefly touch -- I know the Court is very familiar

3 with this. Our complaint is under the Foreign Sovereign

4 Immunities Act, 28 U.S.C. 1605(A). And we charge that North

5 Korea is liable for Otto's torture and death by hostage taking,

6 torture, and the extrajudicial killing of Otto. It's brought by

7 Fred and Cindy in their own right and also on behalf of Otto's

8 estate. And we have four claims under 1605(A): For wrongful

9 death and survival, intentional infliction of emotional

10 distress, and assault and battery.

11 Briefly, the four elements of 1605(A) that we present

12 evidence on, that North Korea was designated as a State Sponsor

13 of Terrorism as a result of the allegations in our complaint;

14 the plaintiffs are and were U.S. nationals; that North Korea's

15 treatment of Otto constituted hostage taking, torture, and

16 extrajudicial killing. I will note that any one of those

17 showings, I believe, is sufficient under the law for our

18 complaint to merit judgment. Certainly, we believe there's

19 evidence to support all three in this case.

20 In brief, hostage taking is the seizure or detention in

21 order to compel a third party to do or abstain from doing any

22 act. And the Court will hear expert testimony, as well as lay

23 testimony, on that today.

24 Torture is the infliction of severe mental or physical pain

25 and suffering for punishment, to obtain a confession, or to

 10

1 intimidate or coerce. And if we are able to play our video, I

2 think the Court may see the different aspect of Otto.

3 And then extrajudicial killing is the deliberated killing

4 not authorized by a previous judgment pronounced by a regularly

5 constituted court, affording all appropriate judicial

6 guarantees. We don't plan to present additional evidence on

7 this today unless the Court has any questions, but the complaint

8 was properly served on North Korea.

9 THE COURT: I think the record is complete on that.

10 Having consulted with Mr. Cramer, do you think that you can

11 play --

12 MS. GANTT: I think we're going to try to play it

13 directly from Trial Director, but we need to exit the opening.

14 So we can do that at the end or --

15 MR. HATCH: I will come to it at the end in that case,

16 if it please the Court.

17 THE COURT: All right.

18 MR. HATCH: Just briefly, your Honor, I don't intend

19 to recap our motion for judgment, but I did want to note a few

20 points that I think are in that that I think will inform and

21 bear on testimony that the Court will hear today.

22 Those include the affidavit of Robert or Bob Collins. He

23 was an expert or is an expert regarding North Korea

24 interrogation tactics and the treatment of Otto. According to

25 Mr. Collins, torture is a routine and commonplace tool used by

 11

1 the North Korean MSS and MPS interrogators and prison officials

2 to gain confessions. A crime of the nature of which Otto was

3 accused is, in fact, the ultimate crime in North Korea and set

4 the stage for him to receive unusually harsh treatment, even by

5 North Korea standards.

6 His speech at the press conference, what we refer to as the

7 confession, purporting to confess to the alleged crime was most

8 likely dictated to him in advance and the product of torture and

9 that one method of torture that North Korean interrogators have

10 applied is using pliers or other tools to rearrange teeth. The

11 application of electric shocks is another very common method of

12 torture used in North Korea. And the repeated overcharge of

13 electricity through an electrode placed on the body, such as the

14 foot, can cause substantial wounds.

15 And under extreme pressure to succeed, interrogators would

16 have become infuriated and threatened and turned on Otto and

17 suffocated him or otherwise caused him to stop breathing, only

18 to be forced to revive him. This could possibly have happened

19 several times.

20 And then, of course, the Court has the affidavit of

21 Dr. Kanter, the treating physician at the University of

22 Cincinnati Medical Center, who observed a scar on the top of

23 Otto's left foot of at least two inches in diameter and opined

24 that for the severe brain injury that he observed Mr. Warmbier

25 to have occurred, blood flow to the brain would probably have to

 12

1 be stopped or significantly reduced for about five to 20

2 minutes, and that Otto had not contracted botulism in North

3 Korea that would have caused respiratory failure, and that he

4 died as a result of the brain injury that occurred in North

5 Korea, and the condition was not a result of natural causes.

6 Just briefly, we also have the affidavits of two of the

7 treating dentists from before Otto went to North Korea who

8 provided the Court with information that Otto's teeth had not

9 been in the condition they were observed to be in when he was

10 returned, and that according to Dr. Dock, the sort of change

11 would typically be caused by some sort of impact, and according

12 to Dr. Williams, that some force was obviously applied to them,

13 in his opinion.

14 Okay. What will the Court hear today? Evidence regarding

15 the torture, hostage taking, and extrajudicial killing of Otto;

16 evidence regarding the Warmbier family's successful efforts to

17 have North Korea redesignated as a State Sponsor of Terrorism;

18 evidence regarding the harm the Warmbiers suffered from the loss

19 of their beloved Otto; and evidence regarding North Korea's

20 repeated violations of human rights in support of claims for

21 punitive damages and the appropriate amount thereof.

22 What the Warmbiers seek, your Honor, the Warmbiers quite

23 simply seek justice for Otto. North Korea has served only

24 falsehood and denial. They have never admitted to what they've

25 done. And so the Warmbiers petition this Court to make a

 13

1 judicial finding based on facts and evidence that North Korea

2 took Otto hostage, tortured him, and killed him. They seek

3 compensatory damages for the loss of their beloved son, and they

4 seek punitive damages so that North Korea does not do to any

5 other family what they did to the Warmbiers.

6 Thank you, your Honor.

7 THE COURT: Thank you. Could you -- I know that there

8 are a lot of guests here this morning. Who is everybody who is

9 here, if you know?

10 MR. HATCH: Your Honor, if I could ask first, we have

11 family members of Otto, if they could stand.

12 THE COURT: That is a big family. Okay. Welcome.

13 MR. HATCH: We have several of Otto's friends and

14 classmates from the University of Virginia who have come to

15 attend. If you could stand. Thank you.

16 I believe we have some of Otto's high school classmates in

17 attendance. If you could stand.

18 THE COURT: Welcome.

19 MR. HATCH: Thank you. And then friends of Fred and

20 Cindy Warmbier, friends of the family. Would you please stand.

21 THE COURT: All right. Okay. I'm sure it's very

22 helpful to have the support of family and friends.

23 All right. You may proceed.

24 MR. HATCH: Thank you, your Honor. We will endeavor

25 to play the video, and then we will call our first witness.
 14

1 THE COURT: How much of the video are you playing?

2 MR. HATCH: It's about four minutes, your Honor.

3 (Pause.)

4 MR. HATCH: Your Honor, maybe if we can have some

5 additional time, and we will play it after the recess.

6 THE COURT: Mr. Cramer, we will call you at the recess

7 so you can come and work your magic.

8 MR. HATCH: Thank you, your Honor.

9 We call Frederick Warmbier.

10 FREDERICK WARMBIER, WITNESS FOR THE PLAINTIFFS, SWORN

11 DIRECT EXAMINATION

12 BY MR. CULLEN:

13 Q. Good morning, Mr. Warmbier.

14 A. Good morning.

15 Q. Would you state your name and tell the Court a little bit

16 about yourself and your background.

17 A. My name is Fred Warmbier. I'm 58 years old. I'm married

18 to Cindy Warmbier. I have -- we have three children: Otto,

19 Austin, and Greta. And I own a small metal finishing company in

20 Cincinnati, Ohio.

21 Q. Tell the Court a little bit about your family. And we're

22 going to show the picture of you all, but tell the Court just a

23 little bit about the family unit.

24 A. For me, family has always been a safe place to go, and I

25 think it's the same way for our kids. We always tell each other
 15

1 we love each other when we talk, and we -- I try to be a good

2 listener for my kids and try to be positive and just somebody

3 that they can trust and talk to. And that's been the

4 relationship since they were young kids, and it continues today.

5 Q. How did the three kids get along as they were growing up,

6 Otto being the oldest and then a brother next, Austin, and then

7 a little sister?

8 A. They seemed to get along well.

9 Q. You're under oath, Mr. Warmbier.

10 A. Otto set the bar pretty high. I think there were some --

11 not challenges, but again, they -- we all loved each other, but

12 we got on each other's nerves, but I think that's part of it.

13 Q. Was Otto a good big brother?

14 A. Yeah. You couldn't help but love Otto. He was sweet,

15 kind, caring. He was a good boy, a fine young man he developed

16 into.

17 Q. So earlier in the case, do you remember preparing an

18 affidavit and that affidavit was filed with the Court?

19 A. Yes, I do.

20 Q. Is that affidavit still true and accurate, to the best of

21 your ability?

22 A. Yes, it is.

23 Q. So there came a time when Otto traveled to North Korea as

24 an offshoot of a program from the University of Virginia where

25 he went to China. Would you tell the Court a little bit about
 16

1 that, the planning for that.

2 A. Sure.

3 Q. Maybe we will publish the picture of Otto, Exhibit

4 Number 6.

5 A. Throughout most of high school, Otto was -- he really -- he

6 would study for five to six hours a day, and he would play

7 soccer. He was kind of a homebody.

8 When he went to the University of Virginia, we saw these

9 travel opportunities there with the school, and I said -- I

10 suggested to him that, you should take advantage of these, after

11 you get out of school you're going to work, and we're supportive

12 of that. And he was curious. He's adventurous. So it was just

13 a fit. He and his mom visited Cuba, and he's been to Ecuador.

14 So he just kind of developed into this -- he became more

15 adventurous and curious.

16 He was now going to be on a J-term with the University of

17 Virginia to Singapore and Hong Kong. And one of the university

18 professors had mentioned that his son had visited North Korea

19 and that it's safe; there are tour groups that you go in with.

20 And Otto had brought that up to Cindy and I, and it's what he

21 wanted to do, and he had earned the right to do these things.

22 And so we supported his decision.

23 Q. Okay. When was the first time you found out that something

24 was wrong with regard to his being over there and not coming

25 back?
 17

1 A. Otto was supposed to call us when he landed in China after

2 his trip to North Korea. And this would have been, I believe,

3 January 2nd. And Cindy got nervous. There's a day delay there.

4 So it's kind of hard to work out a timeline. She was pretty

5 certain that he did not make the flight. And we were out of

6 town as well. We did a timeline of it, and we both kind of

7 became convinced that he wasn't in China.

8 Q. Were you matching up your time with the time in Asia?

9 A. Yes, because of the time difference there in North Korea.

10 And so we just -- I just wanted to make sure we were -- we

11 needed to be worried. So we then came home the next day, and it

12 was about 11:00. We got an e-mail from -- we had e-mailed the

13 tour group.

14 Q. You e-mailed them, and they responded?

15 A. They did, and they had said, nothing to worry about, Otto's

16 been detained at the airport, he was taken out of the line, it's

17 certainly a misunderstanding, the president of the tour group is

18 with him, he'll be on the next flight out.

19 Q. What were you feeling at that point?

20 A. Nervous, concerned. But at that point we had to trust

21 them. We didn't understand that there's only three flights a

22 week out of North Korea. So we didn't really have all the

23 facts, and we assumed that everything would be okay.

24 Q. What happened over the next few days?

25 A. I believe it was on Wednesday that we then were told by the

 18

1 tour company that Otto was taken to the hospital and the

2 president of the tour company is back in China and pretty much

3 it was out of their control at that point in time.

4 Q. How did that make you feel, that Otto was on his own now?

5 A. Terrified, and the fact that they told us he was taken to

6 the hospital. And shortly after that, we received a call from

7 the State Department.

8 Q. What did the State Department say?

9 A. They asked us if Otto, if our son took medication. And we

10 said no, and then that was the beginning of, are you aware that

11 your son's been taken by the North Koreans, and, we are now.

12 And that began this journey that we are here today.

13 THE COURT: Excuse me. Did you ever speak to the

14 president of the tour company who was there at the time?

15 THE WITNESS: Yes.

16 THE COURT: Was he able to shed any more light on

17 precisely what happened?

18 THE WITNESS: No. I don't know if I trust anything he

19 said. So it was all these assurances that everything was going

20 to be okay and that there's just a misunderstanding. So it

21 started with that, and three days later, Otto is in the hospital

22 and that it's out of their control, you need to talk to the

23 State Department. So I'm not sure I believe anything they say.

24 THE COURT: Proceed.

25 MR. CULLEN: Thank you, your Honor.

 19

1 BY MR. CULLEN:

2 Q. You said Otto was first held back on January the 2nd. How

3 long was it before North Korea made any announcement about Otto?

4 A. That would have been January 22nd.

5 Q. And that was -- what happened on the 22nd?

6 A. They announced that Otto had been arrested for whatever,

7 the crimes against the state or --

8 Q. How did that make you feel?

9 A. Well, we were advised by the State Department early on that

10 they're going to want something for Otto and so if we go public

11 that is going to raise the stakes here, so it's best to let

12 North Korea do whatever it is they're going to do. They assured

13 us they wouldn't hurt Otto and that everything would be okay.

14 So for the 20 days that we waited or so, it was really

15 tough. My dad was 85, and he knew Otto was in North Korea. And

16 he would call and say, where's Otto, what's going on with Otto?

17 Well, he's back at school. So our friends, we couldn't say

18 anything. So it was very stressful even before the

19 announcement.

20 And then after the announcement, we did not fully

21 understand what that meant at that point, and we were now doing

22 weekly calls with the State Department. The University of

23 Virginia had put us in touch with various diplomats. So they

24 were kind of advising us on, okay, so this is a normal routine.

25 The common theme was, they want something, they're going to use
 20

1 him, and then this will all end. People were doing timelines

2 about, okay, when will Otto be home?

3 And that really scared me and Cindy, because you were

4 trying to take this really unstable -- they're shooting nuclear

5 weapons. They're threatening to destroy Washington, D.C., and

6 yet people are saying that the timeline says that Otto, based on

7 history, will be home in six months. So it really unnerved

8 Cindy and I when we listened to that, because this was not

9 following any typical pattern in our life.

10 Q. And then things got worse in February. We were going to

11 show the video of the so-called confession. I know that if your

12 Honor will permit me to lead the witness a little bit here, you

13 didn't want to watch the whole thing, but your attorneys asked

14 you to read transcripts of that, and I think you've seen part of

15 it.

16 What was your reaction to the video of Otto giving his

17 statement?

18 A. It was -- I couldn't watch it. It was not Otto. He was

19 completely manipulated. His confession, which respectfully is

20 the equivalent of a Nazi show trial, he was forced to confess.

21 It was a complete fabrication.

22 Q. Tell the judge -- you're making conclusions, your opinions,

23 which I understand. But why are you saying that?

24 A. That it was a complete fabrication?

25 Q. Yeah.
 21

1 A. Because when I signed the affidavit, I had to swear that I

2 was telling the truth. So I had to take statement by statement

3 that Otto made.

4 For example, he said that he practiced stealing street

5 signs at the University of Virginia and that he put the street

6 signs --

7 Q. Under his bed?

8 A. -- underneath his bed. So when I had to go take Otto's

9 belongings home from the University of Virginia, there were no

10 street signs.

11 In addition, he said that he was working with the

12 Friendship United Methodist Church.

13 Q. In your hometown?

14 A. In our hometown of Wyoming, Ohio. And he said that they

15 donated $10 million to the Obama campaign. And he said that he

16 was working with Mrs. Webb, and Stefan Webb is in the courtroom

17 now. And I had to call Stefan, and I had to ask him, was

18 Otto -- you might think it's nonsense, but this is what they

19 forced Otto to do. And so I asked Stefan, and he said, no, no,

20 we're not -- my mom didn't do this. And then I apologized to

21 him, and he said, well, you don't have to, my mom always told --

22 Otto was great friends with Stefan, that if you ever get into

23 trouble, Otto, you can use my name.

24 So everything about his confession was a complete and total

25 fabrication, made up for the benefit of the Kim family and the
 22

1 North Korean regime.

2 Q. Did he appear to be under duress to you?

3 A. Completely, because he had to be. And it was so hard for

4 me, because people would send me links to this and say, did you

5 see this? It's like it was a sport. Cindy and I at this point,

6 we know what's happening, and we know that our son -- this is

7 not about Otto, it has nothing to do with Otto. It's about he's

8 a pawn, he's a political prisoner, everything about it. And we

9 see this, and we just felt that this was not good.

10 Q. We're going to move on and talk about his being a hostage

11 and a pawn in a minute. But real quickly for the Court, was his

12 appearance different? Did you notice how he was holding

13 himself, his hands, the way he gestured?

14 A. Yeah. I think where it became perfectly evident was on the

15 sentencing and after -- the confession was -- that was a

16 separate --

17 Q. Yes.

18 A. And keep in mind the context of this. He was sentenced.

19 There were more sanctions. And Cindy and I --

20 Q. This is now in March?

21 A. Yes. And Cindy and I, we understood this. We heard all

22 this. So we -- and then when we saw him being sentenced to 15

23 years' hard labor and he walked out of there and his hands were

24 curled and the soldier pushes Otto, he is completely distraught

25 and distressed. They had started -- they were full force

 23

1 physically, mentally, emotionally, and spiritually abusing him

2 at this point. We knew it, and Cindy and I knew they were going

3 to kill him at this point. And he was abandoned, and he knew

4 it. And I watched my son, who was a fine young man, turn into a

5 hardened adult who knew his fate.

6 Q. When did you next see Otto?

7 A. At Lunken Airport.

8 Q. On his journey home?

9 A. When he was brought home to our family.

10 Q. We're going to talk about that in a minute. But I would

11 like to ask you whether or not you were ever permitted to

12 communicate directly with Otto or Otto with you during his

13 period of captivity.

14 A. No. We were totally abused by the North Korean regime.

15 They ignored every request we made to see Otto. No, no.

16 Q. Did there come a time --

17 THE COURT: Could you slow down for just a second?

18 How did you communicate requests to see Otto?

19 THE WITNESS: Through the State Department.

20 THE COURT: Do you know how -- then what happened?

21 THE WITNESS: Sure. So the State Department would

22 then -- early on, we were told, you can send e-mails to Otto,

23 they'll go to the State Department, and then the State

24 Department will look at them, and then they will send them to

25 the Swedish ambassador in Pyongyang, and he will deliver the

 24

1 e-mails. We never received any communication from Otto via that

2 channel.

3 Then in June of 2016, we were told by the State Department

4 that the North Koreans had told them that Otto is now a prisoner

5 of war and a war criminal and he will no longer receive any

6 correspondence.

7 THE COURT: That was in June 2016?

8 THE WITNESS: Yes.

9 BY MR. CULLEN:

10 Q. How did that make you feel? How did it make Cindy feel, in

11 your observations, and how did you deal with the children about

12 that?

13 A. What our feelings were and what we experienced was a little

14 different. So the State Department, I said, what does this

15 mean? Well, we don't know what this means.

16 So North Korea was never held accountable for their words.

17 So we were left to our own devices. We're numb at this point,

18 and we've been in shock now for six months. There's bombs going

19 off, threats going off. They're holding our son. And so

20 there's -- we're losing hope at this point. There is no hope;

21 there is no hope.

22 Q. So I want the Court just to hear a little bit about the

23 fact that you were instructed not to talk about this publicly or

24 even with friends or extended family. Would you just tell the

25 Court about that and how that impacted?

 25

1 A. Sure. Very early on, it was pointed out to us that they're

2 going to want something for Otto, and the more we make this

3 public, the more it's going to cost, quite frankly.

4 So some of the challenges for our family was, after

5 January 22nd when it became public that North Korea was holding

6 Otto, then we would go to -- one morning, Cindy and I went to

7 the bakery, and we're sitting there drinking coffee. And a

8 neighbor comes up, and he sits next to us, and he engages in

9 small talk. And we know what he's going to do. And the next

10 thing you know, he's saying, so tell me about Otto, have you

11 heard from him, are you getting mail from him. So that was

12 just -- really stressed us out, because our thoughts were, what

13 if the North Koreans find out, doesn't this guy know that my son

14 is being held by -- and of course he did, and he was only trying

15 to be nice.

16 But I had episode after episode where we would go out, and

17 it's like oh, my God, I hope they don't ask us about our son,

18 for fear of what the North Koreans would do if they found out,

19 because we knew what their record was.

20 So we lived in fear for this entire time, afraid to really

21 speak out or discuss it with anyone.

22 Q. You were afraid they would kill him if --

23 THE COURT: Excuse me just a second. Were you

24 communicated with by the State Department by one individual in

25 particular or multiple people from the State Department?

 26

1 THE WITNESS: We initially started with a desk person,

2 and then over time, we would ask for meetings with Ambassador

3 Sternloff, who is the Swedish ambassador. We met with him. We

4 asked to meet with the special convoy in North Korea. That

5 would have been Robert King. We met with him. And we

6 eventually also talked to Secretary Kerry and met with him. So

7 we pretty much did as much as we could with the State

8 Department.

9 THE COURT: And I appreciate that, I guess, the advice

10 you were getting from all of these different people, both from

11 the U.S. State Department and from representatives of other

12 countries, was the same basically, don't say anything publicly?

13 THE WITNESS: Yeah. For example, I would ask the

14 Swedish ambassador, how often do you ask for Otto? And then he

15 said, well, I don't want to upset the North Koreans, so I ask

16 weekly. And it just seemed like everybody was kowtowing to the

17 North Koreans.

18 THE COURT: One thing that has puzzled me -- I read

19 about this in various affidavits -- is for a dictator that runs

20 North Korea who seems somewhat concerned about his public

21 profile and the profile of North Korea, why wouldn't it be

22 embarrassing to have people complaining about North Korea's

23 behavior so that publicity, rather than being encouraged, is

24 discouraged by U.S. State Department and representatives of

25 other countries? Do you understand that?

 27

1 THE WITNESS: I think it raises the stakes. We don't

2 have diplomatic -- I was told we don't have diplomatic relations

3 with North Korea. So it's incredibly difficult to communicate

4 with them, and therefore, it's a convoluted mess to try to talk

5 with them.

6 In hindsight, would we have done things differently? Yeah,

7 we would have climbed from the mountain tops and just went

8 crazy.

9 THE COURT: Is that the advice you would give to other

10 people who may face similarly unfortunate circumstances, despite

11 what our government or other governments might say?

12 THE WITNESS: Yes. But here's the problem with that.

13 While Otto -- while they had Otto, our family was held hostage.

14 And if you say anything, the threat is, they're going to hurt

15 him.

16 So I've met with the defector community, and they are

17 hesitant to speak out from the mountain top because of the fear

18 of what will happen to their family members. And it's a very

19 real fear.

20 So yes, I think -- we're here because we don't fear North

21 Korea anymore. They've done the worst they can do. They're

22 cowards. This is the behavior of a coward. So we know from our

23 experience. But because a lot of the people that are affected

24 by this -- for example, the three hostages that were released,

25 they were taken right -- two of them were taken before Otto was
 28

1 released and then they were released after Otto. Their family

2 had contacted me and said, can you help me? And they said, we

3 can't speak out; we have family members in North Korea. So

4 that's a real fear.

5 BY MR. CULLEN:

6 Q. I want to pick up with something the judge said. I think

7 it would be instructive to talk specifically about your visit

8 with Secretary Kerry at the Department of State after Otto was

9 sentenced and what he said to you in terms of needing to wait

10 for a message from North Korea that they want something for

11 Otto.

12 A. Yes. Cindy, Greta, and myself, we had a meeting with

13 Secretary Kerry at the State Department. And he was gracious,

14 and he was very candid. It didn't take long where he said, I

15 doubt if Otto did anything, they want something for Otto, and

16 I'm willing to work with that; however, we have to wait for them

17 to contact us. Then we talked about other nuances as it relates

18 to North Korea and the difficulties they have in dealing with

19 North Korea. But he said his first mission is to protect the

20 citizens that are held abroad and to bring them home, and that

21 was his priority, and that he was waiting for North Korea to

22 call.

23 The whole theme of this experience for our family was we

24 kept waiting for the phone call. Cindy and I would wait up at

25 night. We were told by the State Department, Otto's going to

 29

1 call you, it's going to be from North Korea, and they will

2 generally, because of the time difference, call at night.

3 So of course, we're by our phones at night and waiting for

4 the phone call that never came.

5 Q. So just going back quickly, Senator Kerry said they want

6 something, and you felt, I think you've said, that Otto was a

7 pawn in this.

8 I would like quickly, your Honor, just to go through a

9 timeline. And I'm going to ask Mr. Warmbier what his reaction

10 is to some of the things that were happening geopolitically and

11 to Otto.

12 So we know that on January 2nd, he's detained. On

13 January 6th, North Korea claims it conducted a successful

14 nuclear hydrogen bomb, and there's outrage in the international

15 press. Two weeks later, North Korea news service reports that

16 Otto has been arrested, and the news breaks in the U.S.

17 Less than two weeks after that, they fire a long-range

18 rocket. A week later, or a little over a week later, President

19 Obama signs into law North Korea sanctions. A week after that,

20 North Korea forces Otto to confess in a televised press

21 conference.

22 On March 3rd, Kim threatened preemptive nuclear strikes,

23 and a week later, North Korea fired two Scud missiles. Five

24 days later, President Obama signs an Executive Order imposing

25 sanctions on North Korea, and the very next day, Otto attends
 30

1 his hour-long trial and is convicted of state subversion and

2 sentenced to 15 years of hard labor.

3 What jumps out at you when you see those things that

4 happened?

5 A. We lived through it. We were devastated. We knew what was

6 happening. We knew he was a hostage, a pawn, a political

7 prisoner. And then he was left alone with these people and

8 abandoned in this country. We knew this was going to have a

9 horrible outcome. So I'm sure that the shock was setting in

10 then for us.

11 THE COURT: You've said a couple of times that you

12 felt that Otto was abandoned. Do you mean abandoned by official

13 Washington?

14 THE WITNESS: I mean abandoned by me, abandoned by the

15 world, abandoned by Washington, yeah. And again, I do. I'm

16 sad, and I was hopeless. I couldn't do anything. When you're

17 being told we don't have diplomatic relations, we're waiting for

18 them to call, and they're shooting off nuclear weapons and

19 threatening your country, it's like, well, I think we should be

20 talking to these people.

21 BY MR. CULLEN:

22 Q. Fred, you got a fateful call in June of 2017, a year and a

23 half after Otto's trip. Would you tell the Court about that

24 call, and then we will walk through the next final days of

25 Otto's life.
 31

1 A. Austin and I were in Mansfield, Ohio, and doing some

2 training. And we had met Ambassador Yun, and he approached us

3 around January of 2017.

4 THE COURT: This is the new administration?

5 THE WITNESS: The new administration, yeah, but he had

6 worked with the old one. He just said, look, my priority is to

7 bring Otto home. So that was fine. We had heard that before.

8 We had pretty much become numb to that. I wasn't very hopeful

9 at this point.

10 And out of the blue in June, I get a call from him at 10:00

11 at night. And he says, Fred, I have bad news for you, Otto's in

12 a coma. And I start pacing, and I don't know what to do. My

13 mind is racing. And I said, my God, we've got to help him,

14 we've got to bring him home. And he said -- and my voice is

15 getting loud, and I'm feeling crazy, like I've never felt before

16 in my life, like my head is -- the fear is going -- it's just

17 crazy.

18 So then the -- Sullivan, Deputy Secretary Sullivan --

19 Q. Secretary of State.

20 A. -- gets on the phone and he yells into the phone that Otto

21 has been in a coma since 2016. And I was stunned and deflated.

22 He's dead; he's dead. They've killed him. He's in this dirty

23 third-world country. I don't even know if you can call it that.

24 And he's been in a coma since 2016.

25 And I told them, I'm through with you, I've have it,
 32

1 anything you have to talk to me, say it through the media. And

2 he said, you can't do that, we can't do that. And I said, why?

3 And he said, because the North Koreans have told us that if you

4 mention Otto in the media, they won't release him.

5 Q. This is on that call?

6 A. On that call, absolutely, absolutely. So then I --

7 Q. You were with Austin; Cindy wasn't with you. Did you call

8 Cindy?

9 A. We did; I did.

10 Q. Tell us about that call.

11 A. I think she almost expected it, but I was so sorry that I

12 had gotten this call, and it was very impersonal, which is fine.

13 But then I call Cindy, and I have to tell her, and I'm just

14 crying, and I'm apologetic that Otto's in a coma. She was

15 stoic, and it was almost as if she expected this phone call.

16 It's about a three- or four-hour drive, and I said, we're going

17 to drive home now. That was the beginning of the last chapter

18 of Otto's life.

19 Q. When did you finally see Otto?

20 A. I saw him at the airport.

21 Q. Would you like a glass of water?

22 A. I think I do, yeah.

23 MR. CULLEN: Your Honor, we have about 10 more

24 minutes.

25 BY MR. CULLEN:
 33

1 Q. So he's going to be flown home to Cincinnati; correct?

2 A. Yeah, but there was -- it was not that simple.

3 Q. Understood.

4 A. But that was the intention.

5 Q. So tell us about that.

6 A. On the way home, Senator Portman had called us, and he

7 advised us that you really can't talk to the press right now,

8 this is not going to work if you do.

9 So when we got home, we had 10 days of, again, we're being

10 held hostage. We can't say anything about this. We can't tell

11 anything. And Otto's in a coma in North Korea. And we're

12 hoping that they release him, but there's no guarantee.

13 And so ultimately, it wasn't simple, but they worked it

14 out. I'm sure there were some -- one of the things that

15 Ambassador Yun told me is when they met Otto at the hospital, he

16 was surrounded by North Korean guards, and he said they were

17 really thugs and bullies, and they actually had the audacity to

18 pardon Otto. So they went through this nonsensical political

19 process with a brain-dead young man. They made statements like

20 they were -- that they followed all standards and procedures in

21 his care and that he was being reformed through labor.

22 Again, it's North Korea. He's been in a deteriorating

23 vegetative state for over a year, and you still make the comment

24 that you're reforming him through labor.

25 So eventually, it was, okay, Otto's going to be flown in

 34

1 and --

2 Q. Tell us about the trip and about meeting him at the

3 airport.

4 A. The hospital now took over, and we were working out details

5 with them. They called and said, okay, I want you to drive down

6 to be at the airport at this time. And I told them, my son's

7 brain dead, I can't drive. And so they said, we'll get the

8 local police guy, we know him, and he'll drive your family down.

9 So we did. We waited in the waiting area and --

10 Q. Who all was there?

11 A. It was Cindy, myself, Greta, and Austin and then the

12 medical team and then Senator Portman and his wife Jane. And

13 then --

14 Q. Did you know them, or did you come to know them during

15 the --

16 A. Both. My dad is a military veteran, and he would -- he has

17 a military Jeep. He would drive Senator Portman in the 4th of

18 July parade. But I didn't know him well, and I've gotten to

19 know him through this experience.

20 Q. And Senator Brown, I understand, too?

21 A. Well, yeah, Senator Brown has been very helpful to our

22 family. And they both worked very hard for the State Sponsor of

23 Terror designation.

24 Q. And we will get to that. So you're at the airport. I

25 understand some of the UVA friends are tracking the flight.

 35

1 A. Yes. So they tracked it on flight tracker. We saw it come

2 over Alaska. Then we heard it. There's a lot of people there,

3 and there's cranes set up with cameras, and they're trying to

4 get this on film. Some of our neighbors are holding up signs,

5 "Welcome home, Otto."

6 So the plane lands, and it's very loud, and the engines are

7 still running. The medical team says that they will go on

8 first, and we can go on.

9 So they're on the plane for maybe a few minutes, and they

10 come down, and we're at the bottom of the tarmac. And they say

11 we can go on and see Otto.

12 Q. I know this is hard, but tell the Court about the next 10

13 or 15 minutes.

14 A. We went up the stairs to the plane, and it's noisy, but we

15 hear these loud inhuman sounds. And I'm thinking -- I'm not

16 thinking this is Otto. And we get to the top of the stairs, and

17 there's a couple still medical people. Otto's jerking

18 violently, and his eyes are bulging out, and he has a shaved

19 head, and he's -- there was no -- the tragedy for me is I had no

20 connection to Otto at this point.

21 Q. You mean he didn't recognize you? When you say "no

22 connection," what do you mean?

23 A. It was the love and the -- the last time I saw him, I

24 hugged him and told him I loved him, and that was gone. He was

25 a vegetable. There was no -- and he was flailing around. It

 36

1 was tragic. I got on my knees, and I hugged him. There's

2 nothing there. Here is my son who is 6 foot 2, 180 pounds, and

3 just a vibrant, loving, kind person, and now he's been reduced

4 to this animal. And there's no connection.

5 It's hard to explain when you're a parent and you haven't

6 seen your son, he's been taken, and you see him 17 months later,

7 and he's not -- he's not in a coma. He's -- it's very

8 traumatic. And I'm sorry that my kids had to go through this.

9 Q. Tell us about that. Where was Cindy and Greta and Austin?

10 A. We came onto the plane together. And then when Greta and

11 Cindy saw his condition, they completely ran away. They ran

12 down the tarmac. And Austin and I stayed there, and Austin was

13 stoic and really -- and I knew I needed to do something, and I

14 got down on my knees, and I hugged him and just -- there was

15 just no connection there.

16 So we stayed there -- and he had a UVA shirt on.

17 Q. Wasn't that nice.

18 A. To me, it was almost like the North Koreans thought this

19 was going to make up for the condition that he was in, that I

20 would feel good.

21 Q. They dressed him in a UVA T-shirt.

22 A. UVA T-shirt, so this was good. There was nothing good

23 about this. There was nothing good about their treatment of

24 Otto. There was nothing good about the return of Otto except he

25 would be with us.

 37

1 Q. So you had to get him in an ambulance and drive to the

2 hospital.

3 A. We did. So that was a chore in itself, because we went

4 down, and it was not easy to get the stretcher off of the

5 airplane. So they had to go to the other side and build this

6 little ramp. So then I'm watching my son, who is strapped in

7 this thing, and he's my son, and I see him go down this ramp,

8 and he's really -- to North Korea, he was a piece of meat, and

9 they just took this human connection from me, from my son. It

10 was just really hard to see that.

11 We get down, and Cindy and I had decided she would ride

12 over in the ambulance with Otto. And she was there, and I said,

13 we've got to do this. I think both of us were in such shock at

14 what we had saw and dealt with that we couldn't do it. She was

15 laying down.

16 Q. Laying down where?

17 A. She was on the tarmac on her hands and knees trying to get

18 composed. So we get up. We hug. And I say, he needs us.

19 There was a decoy ambulance and a real ambulance, and -- so she

20 went over to the ambulance and knocked on the door, and she got

21 in the ambulance and rode with him to the hospital.

22 And everybody now is saying, Otto, you're at home, it's

23 good, Otto, your family's here. It's that kind of a situation.

24 Q. So he's admitted to the hospital.

25 Would you publish 7 and 8.

 38

1 So did you notice things about Otto in addition just to the

2 condition you've described? We've heard scar. We've heard

3 teeth. Would you tell the Court about that.

4 A. Yes. Over time -- it happened pretty quickly. I was just

5 relieved to have Otto home. So I think with any child, you

6 just -- you don't look for their deformities or things like

7 that. And so it -- but after a couple of days, I started

8 realizing that he's got this large scar, which I took a picture

9 of. And his teeth were just misshaped. It was horrible. So we

10 made note of that.

11 But I want to point out that we have purposefully not made

12 these things public, because we want to remember Otto the way we

13 knew Otto, not the Otto that the North Koreans want the world to

14 see.

15 Q. What did the doctors tell you about his condition, and was

16 there hope?

17 A. So I'm still -- I don't -- Otto's eyes, when we met him on

18 the airplane, they were bulging. He was jerking. I was afraid

19 to ask questions. I didn't know that Otto was blind, that he

20 was deaf, that his brain had been deteriorating for over a year.

21 So we had a meeting with them, and it was the candid talk

22 where they pointed out -- and they knew I didn't get it -- you

23 know Otto's blind.

24 Q. So did the family --

25 A. And I didn't know that, because I didn't want to know that.

 39

1 Otto was my hero, and I'm Otto's hero. So it took me a while to

2 accept these things.

3 Q. And then so there was a meeting of the family and a

4 decision that it was of no use to prolong the agony?

5 A. Well, Otto wouldn't want to live this way, and we knew

6 this. And Cindy was helpful, because I was sort of in denial.

7 And then it was clear that his brain has -- I know what severe,

8 severe brain trauma is now, and I didn't know it before this.

9 And so it was clear that Otto's not getting better.

10 And then in the hospital over however many days we were

11 there, his fever would spike up to 104, 105, and they would put

12 big fans in the room to cool him down. And then his oxygen

13 saturation rate would go down to 80 or -- and so we knew that

14 this -- that our son was incredibly sick and he wasn't getting

15 better.

16 Q. And he wasn't the Otto that you --

17 A. No, but he's our Otto.

18 Q. Right. So the decision was made with the advice of the

19 doctors?

20 A. It was.

21 Q. And Otto died?

22 A. Yeah, Otto passed away. It didn't take him long. My

23 father passed away the same year, the same month that Otto was

24 in North Korea. My dad passed away in April of 2017, I believe.

25 And so he was 85. When we made a decision to -- he had fallen,

 40

1 and when we made a decision to end his care, he lived longer

2 than Otto. Otto was that sick. It was tragic.

3 Q. Did North Korea ever give an explanation for Otto's

4 condition, or did anyone from North Korea ever express remorse

5 or regret or apologize?

6 A. No. They said his condition, I think in the papers, was

7 botulism. But no, no. North Korea could care less what the

8 Warmbier family thinks.

9 Q. Fred, you've told me that -- I don't know if you did it

10 orally, loudly, but you made a promise to Otto before he died?

11 A. I did. So when we watched Otto die and pass away, I made a

12 commitment to him that I was going to -- I was going to stand up

13 to these people who did this to him, and I was going to do

14 everything in my power to seek justice for him.

15 Q. So moving along, you retained a law firm. You looked into

16 it. And you learned that surprisingly, I think, to everybody

17 that North Korea was not a State Sponsor of Terrorism at the

18 time; is that correct?

19 A. Correct. And Cindy and I were -- we didn't know the

20 process to begin with, but then to hear that they weren't on the

21 State Sponsor of Terror was shocking. We couldn't find anybody

22 who thought they weren't.

23 Q. To me, somebody without any experience, what you and Cindy

24 did has been incredible. If you would quickly tell the Court

25 the different people, Republicans, Democrats, Independents, who

 41

1 rallied to make certain that because of Otto's death they would

2 be listed as a State Sponsor of Terrorism, so that's in the

3 record?

4 A. Sure. We had a lot of support for our efforts, and they

5 were completely bipartisan. We met with the House Foreign

6 Affairs Committee, Vice Chairman Engel and Chairman Royce, and

7 they were very -- we were allowed to present in front of them.

8 They sent a letter through their committee and with other

9 supporters to the President, asking him to designate North Korea

10 as a State Sponsor of Terror.

11 We also worked with the Senate, with Senator Brown and

12 Senator Portman, and Governor McAuliffe was also very

13 supportive.

14 Q. A Virginia -- University of Virginia connection?

15 A. Yes. He was very supportive of our efforts. So they all,

16 once they knew what we were looking for, they helped make this

17 happen.

18 Q. You met with the Vice President's office and people at the

19 State Department as well?

20 A. We did. I'm not sure if we met at the State Department or

21 not. We probably did.

22 Q. I think I was with you. You did.

23 A. Deputy Sullivan. I'm sorry. Yeah, we did; we did.

24 Q. And then as a result of those meetings, North Korea,

25 specifically because of Otto's death, was listed as a State

 42

1 Sponsor of Terrorism?

2 A. They were. We were advised of that.

3 Q. All right. We're wrapping up, Fred, but I think it's

4 important, as difficult as it's going to be, for you to tell the

5 Court what's it been like for you and your family without Otto

6 in it.

7 A. Well, it's a void that you can't imagine, and I hope most

8 don't have to. The good thing is I have a great family, and so

9 I have two other children that need my attention and love. And

10 Otto's not there. And so what it's like is, it doesn't end, but

11 it's important to know that it's a part of our life, and we're

12 here to make a difference for Otto's death.

13 And then we also -- when this started, we were all -- we

14 considered ourselves happy and positive people. And I told our

15 family early on, I said it's important that we are able to

16 continue to be who we are.

17 So the testament to Otto is that we want to be happy and

18 positive people. We, obviously, have had tremendous

19 difficulties in dealing with this, and the -- and we still are

20 waking up from this event. Over time, it seems to be getting

21 better.

22 I miss Otto. I'm going to be buried next to Otto, and

23 that's a good thing.

24 MR. CULLEN: That's all of the questions, your Honor,

25 except one final one.

 43

1 BY MR. CULLEN:

2 Q. What do you want from this lawsuit?

3 A. Well, when Otto passed away and I made the commitment to

4 him that I was going to do whatever it took to hold these people

5 accountable for what they did to him, I'm here to ask the United

6 States of America and this Court to do justice for Otto.

7 MR. CULLEN: No further questions, your Honor.

8 THE COURT: Thank you.

9 THE WITNESS: Thank you.

10 THE COURT: You are excused.

11 MR. HATCH: Greta Warmbier.

12 GRETA WARMBIER, WITNESS FOR THE PLAINTIFFS, SWORN

13 DIRECT EXAMINATION

14 BY MR. HATCH:

15 Q. Good morning. Could you state your name for the record.

16 A. Greta Jane Warmbier.

17 Q. Thank you. Greta, you may not know this, but sometimes in

18 court filings, we have referred to you as a minor. But did you

19 recently have your 18th birthday?

20 A. Yes. On November 16th, I turned 18.

21 Q. Is this the first time you've ever had occasion to testify

22 in court?

23 A. Yes.

24 Q. And why did you want to come testify today?

25 A. I think that my whole family, myself included, really wants

 44

1 some closure for Otto. And I know that -- I was 15 when Otto

2 was taken. So I was just starting high school. And going

3 through high school on its own is hard enough, especially when

4 your brother is being held hostage in North Korea. And I think

5 that we all feel like we've lost so much, and we want to get it

6 back for Otto.

7 Q. Can you just give the Court a bit of a sense of how your

8 relationship was with your big brother?

9 A. Yeah. So Otto was six years older than me. So it was

10 quite an age gap, but it was so fun for me especially. I was

11 the younger sister. He called me the princess who got

12 everything she wanted. But it was super fun. I would do

13 anything I could to be able to spend time with Otto.

14 He was always on the couch studying, and he had, like, ESPN

15 on in the background, which I learned to hate. But it was fun,

16 because I would be there sitting there with him, and I loved it.

17 And he sat on this one specific corner in the couch. Whenever

18 he would get up, I would go sit on it, just, like, have his spot

19 for a little bit. And he would come back, and I knew I would

20 have to give it up again.

21 But it was just so awesome to be able to spend time with

22 him because he was somebody everybody looked up to. You would

23 go somewhere, and they would be like, how's Otto, what's Otto up

24 to, because you knew it was just something remarkable always.

25 Q. Were there any examples or special things that you would do

 45

1 with Otto or he would do for the family that you can share with

2 the Court?

3 A. All the time. So Otto had this routine. Every other day,

4 he would go to the local gym, the Wyoming rec center, and lift

5 weights. And then on his off days, he would run five miles

6 around Wyoming. He would always want someone to go on this run

7 with him. I, of course, would go, I don't want to run five

8 miles with you, sorry, but I do want to spend time with you. So

9 I would do my little run behind him, and he would wait on the

10 corners and made sure I knew where to turn. And so those little

11 times I spent with him were awesome.

12 One time, the summer between fifth and sixth grade, I was

13 at honor choir in Columbus, Ohio, so two hours away from home.

14 I was incredibly homesick, so tired of singing, and I just

15 wanted to go home so bad. Of course, my parents were, like, no,

16 you've got to stick through it; if you can get through this, you

17 can get through anything.

18 So Otto was like, Grets, I will come up and get you; I'll

19 drive; I'll pick you up. And of course, my parents wouldn't let

20 him, but just knowing that he would do that for me was so

21 comforting. And then I knew I could get through it, because I

22 would be home with him and everything would be okay soon.

23 Q. Thank you. Can you tell the Court what Otto's plans were

24 for his future after graduation from UVA, that sort of thing?

25 A. Yeah. So he knew he wanted to be on Wall Street and work

 46

1 with finance, be a hedge fund manager. So he was super into

2 that. He took so many classes in school to prepare for it and

3 also worked outside on his own. He took Morningstar online

4 courses. He took linear algebra on his own. This was all in

5 addition to the work he was doing at the University of Virginia.

6 He was always studying, reading, working to reach his goal,

7 which was to be on Wall Street, which he did have an internship

8 for, which would have lined up to a job.

9 Q. Now I want to turn to your experiences when you learned

10 that Otto is in North Korea and not coming back. Can you just

11 tell the Court about how you learned about that.

12 A. Yeah. So it was our winter break of my freshman year in

13 high school. I was 15. We were on vacation, and Otto should

14 have gotten back from North Korea. So it was kind of like,

15 well, he missed his flight, that's fine, I guess. So as my dad

16 mentioned, we get, like, an e-mail from the tour group. They

17 said, we called your home phone, that was the emergency contact,

18 and we told you something was up. We said, okay, obviously, we

19 didn't get it.

20 So we find out that he was taken at the airport and that

21 everything was okay because someone was staying behind with him

22 and that it was nothing really out of the ordinary. But they

23 said they would give us more specifics in an e-mail at a certain

24 time, and we were going to be on a flight home then.

25 Q. Was someone staying behind supposedly from the tour group?

 47

1 A. Yes.

2 Q. Okay. Please continue.

3 A. And so we're on this flight. We know that we have the

4 e-mail but we can't get it, because we're up in the air. We

5 land at CVG in Cincinnati. It is a Sunday night at midnight. I

6 have school that Monday morning at 7:50, and there's nobody in

7 the airport. It's completely vacant. There's a restaurant that

8 my dad gets out of his iPad and says, everybody needs to sit

9 down. We unfold the chairs that are stacked up on the table,

10 and he reads us this e-mail. And it's just -- it's the

11 strangest situation ever. He's reading us this e-mail in this

12 empty airport.

13 It basically says Otto has been taken hostage, we don't

14 know why, and that we can't say anything about it. And so I had

15 to go to school that day and every day after it, not say

16 anything to my friends, not say anything to anybody until it

17 came out in the news, which was January 22nd.

18 So I went the whole month of January like that. And it was

19 just kind of like, your friends know something is up, but you

20 can't say what's up. So you've got to keep so much to yourself.

21 And it's so hard and being 15 and having to do that and having

22 to grow up so fast.

23 Q. Can you tell the Court -- there was all this time after

24 he's held when he's still in North Korea. And can you just give

25 the Court your impression of how the family's life changed from
 48

1 how it had been during that time you were waiting to get Otto

2 back?

3 A. Yeah. So, we're a fun family. We go do stuff together.

4 We do fun things. And it kind of felt like our life was on

5 hold. We didn't really travel anywhere. I knew not to bug my

6 parents because they were always working on trying to bring him

7 home. And I didn't want to worry them about anything, like any

8 of my trivial matters, when their son was in North Korea.

9 So I had to keep a lot to myself, which was hard. And I

10 know my parents, they were always worrying. And it was sad,

11 because our family was so happy and so positive and just, like,

12 had a good impression of the world, and this has kind of tainted

13 that for us.

14 Q. I want to take you to when Otto came back home. And you

15 were there at the airport that night; is that right?

16 A. That's correct.

17 Q. And did you know anything about what to expect, what his

18 condition was before you saw him?

19 A. Yeah, so I kind of -- like, I always like to have a

20 positive outlook on things. So I'm like, he's in a coma, he

21 will be asleep, we're just going to wait for him to wake up. So

22 nobody really gave me any expectations for what -- I didn't know

23 what a coma really was. I thought he was just going to be

24 asleep.

25 So I was absolutely and utterly shocked when I saw him. We

 49

1 were waiting at Lunken Airport, like my dad said, and the plane

2 landed, and they said we could go on up. It was kind of like, I

3 didn't know what to expect. It was the happiest moment of my

4 life; I was going to see my brother again. I was ecstatic. I

5 couldn't wait to tell him about everything he had missed,

6 because everything had changed in my life. Those are, like, the

7 most important years of your life, like, at that time. And so I

8 had gotten my braces off. I had gotten my first boyfriend.

9 There were so many things I wanted to tell Otto, what classes I

10 was taking, what colleges I was going to look at.

11 He was the person I went to for every single piece of

12 advice. Austin also, no offense, but Otto knew; he had been

13 through everything and had done everything right up to this

14 point, it seemed like.

15 So I get on the steps to go up. I'm the last one in. And

16 I hear noises. And I'm like, what is that? And it's like

17 screaming, crying, moaning, like the scariest noises you could

18 hear. And then I get up, and I see him strapped down, and his

19 arms are all curled and mangled, and his head is shaved. He has

20 a feeding tube. He's wearing a diaper. And he's just like

21 jerking, jerking, violently.

22 I can't even watch him. I scream, I love you, I love you,

23 Otto, and I run off, because it's so hard to see. Instantly, I

24 feel so guilty, because what I saw I thought was a monster and I

25 was scared of him, and I felt so bad, because I shouldn't be

 50

1 afraid of Otto. That was just so hard for me to see, because

2 it's not Otto, and I don't know who they gave back and dressed

3 up as Otto, but it's not him.

4 Q. How was your parents' reaction that night?

5 A. So they were shocked, too. My mom had to run off with me.

6 My dad, I think he tried to hold it in for the whole family, but

7 obviously, it was so hard to do. My mom rode with him to the

8 hospital. We all went to the hospital that night. And they

9 said, you guys just rest, there's a lot of tests that needed to

10 be done before you can even, like, go in and see him.

11 And I -- and then eventually, we were able to go in and see

12 him, and it was so hard for me, because I would want to, like,

13 hug him, but I would be scared to, because it wasn't, like, the

14 Otto I knew. So I would talk to him, and then we found out that

15 he was deaf, and so he wasn't hearing anything I was saying. I

16 was like, should I keep talking to him? And it made me feel

17 better to talk to him.

18 It was so sad, because he had no senses, and you would clap

19 in front of his face, and he wouldn't even flinch. It was like,

20 how can they do this to someone, and how can they return him

21 even if they do. It was almost like, should they have even

22 given him back; was it even worth it.

23 Q. Did you ever see any recognition on his face when you would

24 talk to him, any response to you?

25 A. None at all. The nurses, one said she heard him laugh
 51

1 once, but the doctor said there's no way. But I hope that,

2 like, maybe somehow he was hearing me talk. They said don't say

3 anything about North Korea, don't say anything about hostage,

4 torture, killing, or anything. Just say welcome home, Otto,

5 you're in Cincinnati, your family is here. But nothing went

6 through. It was like talking to a brick wall.

7 Q. And just finally, can you give the Court a sense, the

8 family's life after Otto passed, how has it changed as a result

9 of these experiences for you and for the family?

10 A. Yeah, I think that overall, the whole thing has been hard,

11 because people were scared to say anything to us. And the

12 media, like, of course, you're not supposed to read it, but you

13 have to, because how can you not? And it was so hard to see

14 what people said. Like, even the local coroner said that they

15 had excellent treatment of Otto, and you were like, okay, well,

16 why is he dead?

17 So it was hard, but I want to be here today because we need

18 this closure, and I don't want to be the family of Otto

19 Warmbier, because we're so much more than that. I think Otto's

20 legacy is important, but we also -- he would want us to have

21 that closure and the justice, because we -- on the way here in

22 the airport, someone came up to us and said, are you Otto's

23 family? Yeah, we are, but we're so much more than that.

24 MR. HATCH: Thank you, your Honor. No further

25 questions.
 52

1 THE COURT: Thank you. I think we're going to take a

2 10-minute break, and then we will come back in 10 minutes.

3 (Recess taken from 10:29 a.m. to 10:41 a.m.)

4 MR. HATCH: Your Honor, sometimes, third time's a

5 charm, and I hope our video is ready. We've tested it.

6 Hopefully, the sound is good, if now is a good time for the

7 Court to play it.

8 THE COURT: This is fine.

9 MR. HATCH: Thank you.

10 (Video recording played.)

11 MR. HATCH: Thank you, your Honor.

12 THE COURT: Do you want to call your next witness?

13 MR. CULLEN: Austin Warmbier.

14 AUSTIN WARMBIER, WITNESS FOR THE PLAINTIFFS, SWORN

15 DIRECT EXAMINATION

16 BY MR. CULLEN:

17 Q. Austin, for the record, would you please tell the Court

18 your name and where you're living now and what you're doing.

19 A. I'm Austin Wolfgang Warmbier. I'm 20 years old, and I

20 study biochemistry at the Ohio State University in Columbus.

21 Q. And you are Otto's younger brother, only brother?

22 A. Only brother, correct.

23 Q. How old were you when Otto left for his trip?

24 A. I would have been 17 years old.

25 Q. Okay. I just want the Court to get an idea of how Otto was
 53

1 as the big brother and your relationship with him, if you can

2 relate how he interacted with both you and your sister.

3 So I will start by asking whether you all were close, and

4 if you have some anecdotal evidence that the Court would find

5 helpful.

6 A. Absolutely. My brother was three and a half years my

7 senior, and he was about six years my little sister's senior.

8 So my relationship with him, he mostly led by example through

9 me. He didn't directly teach me as much, per se, as more just

10 showed me by, you know, allowing me to observe him and see how

11 he did what he did so well, which was -- growing up, he was a

12 model child. He could not have been better, and he was just the

13 perfect role model for me to have.

14 Q. Did he have a lot of friends?

15 A. Oh, yeah, absolutely.

16 Q. Was he a leader?

17 A. Absolutely. It was brought up before, he was the prom king

18 and homecoming king, and you don't get that way by not having a

19 lot of friends.

20 Even that being said, he wasn't just a popular guy. People

21 genuinely liked him because he was such a nice and just kind,

22 caring person. I remember I saw a Facebook post shortly after

23 his death of someone in the marching band. It was a beautiful

24 post that said it didn't matter if you were in the marching

25 band, you know, a jock, or a nerd, in the hallway Otto would

 54

1 always greet you with a smile, and he would always say hello.

2 Q. Why do you think that was?

3 A. It was just who he was as a person. I don't think he knew

4 any other way to be.

5 Q. What about as a big brother to Greta?

6 A. To Greta? To Greta, he was more of the stereotypical big

7 brother. She brought up that he offered to pick her up from the

8 choir camp. He was much more protective of her. Yeah, he

9 called her the princess and that sort of thing, but he was more

10 of the standard brother to her.

11 Q. So you told us the story about your 15th birthday. I

12 thought the Court might appreciate hearing that.

13 A. Absolutely. As a child, I loved pretty much anything with

14 a motor on it. When I was six, I got into go-cart racing. I

15 loved cars, anything like that, and Otto always knew that. And

16 on my 15th birthday, which in the state of Ohio you're allowed

17 to get your temporary permit at 15 and a half, but on my 15th

18 birthday, we got in the car. I was a freshman in high school.

19 He was a senior in high school. He looks over at me and goes,

20 it's your 15th birthday, do you want to drive to school? He let

21 me drive. I had never driven a car, didn't know how to use turn

22 signals. Like, that was one of the best memories of my life, is

23 the first time I got to drive a car.

24 Q. What was he like with your mom and dad, first in high

25 school and then when he went off to college?

 55

1 A. In high school, he was the model child. I can't remember a

2 single time they yelled at him.

3 Q. Was he really that good? You keep saying that.

4 A. No, no. I mean, you can ask my mom. She's up next. But

5 there was not a single time I can remember that he got yelled at

6 or chastised by them.

7 Q. What about you?

8 A. Oh, yeah; oh, yeah. I made up for it.

9 Q. Tell us a little bit more about the relationship with mom

10 and dad and when he went off to UVA.

11 A. Absolutely. When he went off to college, obviously, being

12 eight hours away, there was that distance, and the freshman

13 year, they kind of had their struggles with just growing apart a

14 little bit. After probably the end of first semester of

15 freshman year, they had established a really good relationship,

16 and he would talk to my father on the phone all the time. He

17 would talk to my mom on the phone all the time. He would go on

18 vacations with us. Even though he was eight hours away at

19 school, he figured out how to balance that with being -- with

20 still being a part of the family.

21 Q. Is it fair to say that in addition to being his father,

22 Otto and your father were friends and buddies?

23 A. Absolutely. Once he hit college, obviously. Growing up, I

24 wouldn't say that was the case. My father was definitely more

25 of a father. Once he hit college, if you heard my dad talking

 56

1 on the phone with Otto, you would have thought he was talking on

2 the phone with a friend, not his kid.

3 Q. So the hard part is talking about the return, and we're

4 going to talk about that just for a little while.

5 A. Okay.

6 Q. The Court has heard a lot about it, but I think it's

7 important to hear it from you. And I was taken by the fact that

8 you're thinking of a medical career and your perspective. So we

9 would like to go into that.

10 So you were at the airport?

11 A. I was.

12 Q. And you heard the plane, and you saw it land. Just tell us

13 in your own words what you remember.

14 A. Absolutely. So the plane landed, and the medical team went

15 on, and they just checked and made sure it was okay for us to go

16 on. And then they said it was okay for us to go on.

17 So I believe my dad went first, then me, then my mom, and

18 my little sister. As we're going up the steps, we hear his

19 guttural howling. We had been told before that he was in a

20 coma, but I guess North Korea's definition of a coma is

21 different than ours. I viewed his eyes would be closed, he

22 would be asleep, he would be peaceful, he would just be laying

23 there. You get one foot into the aircraft, and you can just

24 hear this howling and screaming. And then you get onto the

25 aircraft, and you see him, and he needs to be restrained because

 57

1 he's moving around, and he's screaming and yelling.

2 Like Greta said, my mom and my little sister immediately

3 ran off.

4 Q. Stop right there. What were you thinking when you saw him?

5 A. I immediately went into shock, but my first reaction was

6 just to stay strong for my family and to stay strong for him.

7 So I actually -- he had a shaved head. So the first thing that

8 I said to him was, your haircut looks terrible, and I tried to

9 keep it light, and I tried to treat him like I would have

10 treated my brother.

11 Q. So you had talked about some of the things you noticed

12 about him.

13 A. Yeah. So it almost appeared that he had chewed a hole

14 through his bottom lip, I believe. Obviously, his teeth were

15 completely rearranged. He had the enormous scar on his foot.

16 His hands were -- I'm told it is because his tendons were

17 atrophying, but his hands would pull themselves in, and he would

18 clench his fists extremely hard, to the point where they had to

19 put little gloves on him so he wouldn't cut his palms with his

20 hands. And his legs were bent for that same reason. He would

21 sit with his legs curled up and his feet curled up at these

22 horrific angles that did not look natural.

23 Q. This is now in the hospital?

24 A. In the hospital, yeah. But you could even see evidence of

25 that on the plane.

 58

1 Q. You probably -- as somebody who is taking pre-med courses,

2 did you have a feeling about how this was going to end?

3 A. Yes. So on the plane, I actually -- there was a

4 neurologist on the plane who had gone to pick him up. And he

5 was extremely optimistic. He had said that he had seen, I don't

6 know, recognition or something, although that was clearly not

7 the case.

8 So my first initial reaction was okay, there's something

9 wrong, but maybe -- and at the time I was -- I had just finished

10 my freshman year of college as a biochemistry major. So I

11 really didn't have any medical knowledge. But it was my

12 thinking that okay, there's something wrong, but he's still

13 alive, like we can reverse the damage or we can fix this,

14 because he was still alive, still breathing. His eyes were

15 still open. I didn't fully understand the extent of his brain

16 damage.

17 Q. What happened over the next couple of days in terms of his

18 end-of-life decision?

19 A. So over the next couple of days, immediately, he was

20 whisked off to the hospital and given a battery of tests. And I

21 believe it was the next afternoon/evening that my parents had a

22 meeting with his team of doctors, and then after that, they

23 called me. It just became increasingly clear that, number 1, it

24 was not going to be fixed and, number 2, that he was going to

25 pass away.
 59

1 Q. How did you feel about that?

2 A. So on the aspect that it wasn't going to be fixed, if it

3 wasn't going to be fixed and he wasn't going to pass away, if we

4 were going to continue to have -- if I was going to continue to

5 have Otto like that, that would have been 10 times more painful

6 than --

7 Q. Him dying?

8 A. Yeah, absolutely. So in a way, him dying gave me closure,

9 and I knew he wasn't suffering anymore.

10 Q. So I understand you were asked to give the eulogy at your

11 brother's funeral?

12 A. Yeah, I was.

13 Q. Part of what I've heard you said, I think, is important for

14 this proceeding. And just in a few seconds, just tell the Court

15 what it was that you said, why you wanted to say it, and what

16 the loss of Otto means to you for the rest of your life.

17 A. Okay. In my eulogy, similar to on the plane, I wanted to

18 keep it light. So I started off with how Otto made my life

19 miserable, because he did. He set an example that, for me, was

20 impossible to attain. So in that aspect, he made my life a lot

21 harder, but then he also made my life wonderful. I had a super

22 hero for a big brother that, you know, was an amazing role

23 model. So in that aspect, he made my life amazing.

24 And then I went on to talk about what I was going to lose

25 with him. He wasn't at my high school graduation. He won't be

 60

1 at my college graduation. My kids won't know their Uncle Otto

2 and that sort of thing. But having him as a role model growing

3 up and just the experience that he gave me, that changed me as a

4 person completely. In a way, I bring him with me everywhere.

5 So my kids will know their Uncle Otto through the changes he's

6 brought about in me.

7 MR. CULLEN: Thank you.

8 THE WITNESS: Thank you.

9 THE COURT: Thank you. You're excused.

10 THE WITNESS: Thank you.

11 MS. GANTT: Cynthia Warmbier.

12 CYNTHIA WARMBIER, WITNESS FOR THE PLAINTIFFS, SWORN

13 DIRECT EXAMINATION

14 BY MS. GANTT:

15 Q. Please state your full name for the record.

16 A. Cynthia Jane Warmbier.

17 Q. Can you tell the Court a little about yourself and your

18 family?

19 A. I used to think I was the luckiest person in the world.

20 And then I thought I was the most cursed person in the world.

21 Fred and I got married at 30. I was giving up on marriage,

22 and then I met him. And then at 32, I lost my dad, and I got

23 thyroid cancer. And Fred was really questioning marrying me at

24 that point. And we just said we're not going to let this define

25 us.
 61

1 So when I was given the okay at 35, I got pregnant, and I

2 had Otto. And it was like it was the best, you know, going

3 through what I went through and then having Otto. I stopped

4 work, even though we were worried about insurance because I was

5 preexisting. And I just thought, you know, I'm going to -- we

6 can live conservatively, I'm just going to stay home.

7 And then at 38, I had Austin, and then at 41, I had Greta.

8 And I thought, this is perfect. I've got three kids, three

9 healthy, beautiful kids.

10 And that tells about me.

11 Q. Why did you decide to bring this lawsuit?

12 A. I'm a fighter. I'm going to stand up for evil when I see

13 it, and there's nothing more evil than North Korea, if they

14 could do this.

15 Q. Can you talk a bit about what your son Otto was like.

16 A. Yeah. I used to tell Otto, you've surpassed anything we

17 could have wanted for you. He was just so driven. And I

18 worried a little, because, you know, he was driven. The guy

19 never stopped. But he just had big dreams. He just -- he saw

20 the world differently. He saw it as -- in only a positive

21 light. I learned so much through him about dealing with people.

22 Like was said, he was nice to everybody, and he just didn't

23 have, like, set ideas. He had a real open mind to things.

24 So he wanted to explore, and once he got out of Cincinnati,

25 it was evident. So he took a lot of school trips and started to

 62

1 have a love for travel before -- like Fred said, before he knew

2 he would have to work 80-hour weeks.

3 Q. We will talk about the trip that you all took together a

4 little bit later. But can you talk about what your relationship

5 was like with Otto's friends?

6 A. Well, Otto always -- if he had a friend, he would keep it.

7 He would keep that friend. You know how you sometimes outgrow

8 friends? Otto never looked at it as I'm outgrowing my friends.

9 His Cincinnati friends, he kept. His UVA friends, he kept. The

10 people, neighbors, neighbors would tell me, Otto, no matter if

11 he's jogging down the street, which is normal, he would stop and

12 talk to us. People loved Otto. He was a lovable, goofy guy.

13 Q. What does the presence of his friends today mean to you?

14 A. Well, just so you know, they came from all over to his

15 funeral, to the unveiling a year later, and then to here. But

16 what good friends they were.

17 Initially, we had to tell them, you cannot talk about this

18 to anyone. And to tell a college kid you can't say anything --

19 and they were being contacted by all the media, and they refused

20 interviews. The only kid that gave an interview to the media

21 wasn't even a friend of Otto's. So that just told me how much

22 they cared. It wasn't about them and their 30 seconds of fame.

23 It was about doing what was right for Otto.

24 And we told them, we've been told that if we say the wrong

25 thing, they're going to take it out on Otto, so don't say

 63

1 anything, definitely nothing that North Korea can construe as an

2 insult. So even when we were allowed to write letters, I said,

3 don't say anything political, don't say anything they can

4 misconstrue.

5 And they were great about it. They wrote him letters, as

6 hard as it is for a college kid to handwrite a letter. And we

7 just went on this journey together.

8 Q. How old would Otto be if he were alive today?

9 A. Last Wednesday, he would have been 24.

10 Q. Did Otto ever get into trouble at home or UVA?

11 A. No.

12 Q. Did he do well at UVA and enjoy being in the academic

13 environment?

14 A. He did. There's a gentleman here from the University of

15 Virginia, one of the deans, and he came with President Sullivan,

16 and they did something rare. They awarded Otto his diploma

17 because after two years he had enough credit hours to get an

18 economics degree. So he got that. He didn't get the comm

19 school degree, but they came to our house and presented us with

20 this beautiful framed diploma.

21 And he was in the investment club there, and he was in a

22 fraternity, and he was thriving. But he didn't always -- he got

23 lots of no's, but he handled them. He even tried volunteering

24 to do free taxes, and he got turned down for that. So he had

25 his share of learning no's. And he had a lot of job interviews

 64

1 before he got the internship, and they were all no's. So he was

2 learning what the world was like.

3 Q. Did he ever have any significant mental -- I'm sorry,

4 medical or dental issues before he went to North Korea?

5 A. No, no. He was one of those kids that never missed a day

6 of school. They stopped giving awards for that at the high

7 school because they said that was sending a bad message that you

8 should go with a fever. But Otto never missed school. He loved

9 it.

10 Q. Did he ever have braces?

11 A. He was the only one of the three that didn't. His top and

12 bottom were perfectly straight.

13 Q. What are some of your fondest memories of Otto, the two of

14 you together, or seeing him do things?

15 A. Well -- oh, this is great. So Otto, it's not enough that

16 he would get straight As. He had a tutor, because he wanted to

17 understand more about learning. So he had a tutor who was,

18 like, 10 years older than Otto who had multiple degrees. And

19 Otto would meet with him every week, and I would come with him.

20 This started when he was in double advanced math. So he had to

21 take, I think, geometry in the eighth grade. And so we got a

22 tutor. Then it was the same tutor throughout until about 11th

23 grade when he finally said enough.

24 But this picture is -- we went to the wedding of his tutor.

25 We had fun together. He was just fun, sweet, never said -- you
 65

1 know those things where kids slam doors. I think the maddest he

2 ever got was when he didn't get into any Ivy League, and he

3 found that all out on the same day. And he went up to his

4 bedroom, which was on the third door, closed himself in for a

5 good eight to 10 hours, and came down, and he was okay after

6 that. I think that was the maddest he ever was, that he heard

7 all those rejection letters on the same day.

8 Q. Were the two of you close?

9 A. Yes, yeah. So I stopped work with Otto. Fred and I were

10 the youngest. I didn't have any experience really raising kids.

11 So I just kind of threw myself into it. So we had lots of time

12 together. We did everything, you know, everything from the

13 museum centers to playgrounds to swimming lessons. We just did

14 it all.

15 And it continued on. It continued on. I used to lie down

16 with him at night until it wasn't really accepted anymore. He

17 let me go, even though it wasn't cool, to all his soccer games

18 and his intermural basketball games. He wasn't embarrassed of

19 us. He was proud of us.

20 Q. Did you go watch him at choir as well?

21 A. Oh, yeah. In choir, he's the only kid in eighth grade

22 choir who is actually singing. Everybody else was mouthing the

23 words. He didn't care what people thought, you know, and he

24 wanted to sing.

25 It was so funny. We'd see him up there just singing as

 66

1 loud as he could, and all his friends would maybe look at him

2 and then maybe attempt to sing, but they didn't know the words

3 like he did. He was a role model to everybody.

4 Q. Did Otto like to travel?

5 A. Well, we probably put the bug in him. I would talk about

6 when I was in college I did the semester abroad. And then when

7 the kids got old enough, we started taking more family trips.

8 Fred was never a beach person. So we would do more of the

9 hiking. We did a couple Europe trips.

10 And he just -- when he went to the University of Virginia,

11 he heard President Sullivan talk about we all need to have this

12 global view of the world. And then he went to the Galapagos.

13 He went to Israel with the University of Virginia.

14 And then the summer before, before North Korea, he asked me

15 if I wanted to go to Cuba with him. And I said Otto, we don't

16 speak Spanish. He goes, I know someone from the University of

17 Virginia, he will tell me how to do it. And we did it, and it

18 was such a great experience with him. We walked all over Cuba.

19 It was a Friday, early evening, and we passed a temple. He

20 said, mom, let's go in. He could tell I was intrigued. We went

21 in. They were just going to start Friday night Sabbath service.

22 And we're not religious, but he knows I'm Jewish and Fred is

23 Catholic, and he would respect both of our religions, even

24 though we were pretty much nonpracticing.

25 And we went into this Spanish-speaking service where I

 67

1 really didn't know a lot, but I knew some of the songs. So

2 about halfway through -- it was going on pretty long -- I said,

3 Otto, let's go, you know, we only have a few days here in Cuba.

4 And he's like, no, mom, we have to stay to the end, it's not

5 right to leave. And that was just Otto. Even if it

6 inconvenienced him, he had this strong sense of right and wrong.

7 Q. Is this picture of the two of you on that trip?

8 A. So Cuba's known for their old cars. So you would take

9 these taxis, and we had the taxi driver -- you can see, like

10 where he was a friend with Fred, he was very protective of me.

11 I had to have parathyroid surgery in January, and I was finally

12 feeling good because all of my levels were getting back, and I

13 wasn't tired. He just was really protective of me. It was more

14 than a son. He was like one of those older sons that cared

15 about his mom and just kind of wanted to protect her.

16 So when he said in that video that he had to be there for

17 his mom, he really meant that. I think he was worried about not

18 being there for all of us, as much as for himself.

19 Q. Do you know why he was interested in traveling to North

20 Korea?

21 A. I think it was the same reason of Cuba. He just -- I think

22 he thought he had such a narrow view of the world, that he

23 needed to see how other people lived to appreciate what he had.

24 And he also liked people, and I think he wanted to see -- he

25 wanted to see a world outside of what he was used to. I don't

 68

1 know if he wanted to change it or understand it, but it was

2 important to him.

3 Q. We've heard about how you all first found out that

4 something was wrong. Can you just talk about what you did

5 during those first couple of weeks, what they were like for you?

6 A. Well, so we did get a call really early from the State

7 Department. Her name was Linda. And she was going to be our

8 contact, and she informed me --

9 Q. Do you remember her last name?

10 A. McFadyen. And she informed me that this usually follows a

11 process, and that everyone always comes home, and that if we did

12 things a certain way, it would make his detainment easier.

13 So she would say, if possible, you're going to be inundated

14 with press, don't talk to them when it comes out. But we were

15 still hoping early on. She gave us hope that he would be

16 released before a confession. So it's like we didn't know right

17 away. It was like -- it came in stages.

18 So I said, can you send the Swedish diplomat to the airport

19 and try to have him stay there and ask to have Otto released

20 into his custody? So one of the Swedish diplomats, the

21 assistant to the head diplomat, went to the airport and tried

22 just, I guess, looking at them to encourage them to release

23 Otto.

24 So she told me he spent like 24 hours there and nothing

25 happened. So that was the first -- the first time we realized

 69

1 this wasn't going to be right away released like we had hoped.

2 So at this point in time, we're reaching out to other

3 people, too, as well as State. Fred's brother was a retired

4 Navy Seal. So Fred called him and tried getting that info from

5 them what they recommended. And we would read expert opinions

6 and read about different detainees, as they called them then

7 rather than hostages. And they'd say things like, you know, we

8 did something wrong, repent for their sins, and then they would

9 be released. So that was what we were told, that Otto would do

10 a forced confession, apologize, and then be escorted out of the

11 country, deported, deported.

12 So that was our next hope. But as you know, and let me not

13 forget this, shortly after they took Otto, they started -- some

14 nuclear device was set off, test, three days later. Then

15 ballistic missiles, short range, long range. Oh, my God, every

16 time we turned on the radio, we would hear what North Korea had

17 done, and we would be like, oh, my God, there's going to be a

18 war. And I thought, the first thing they'll do is kill Otto.

19 Q. Did you have any advance warning before Otto's confession

20 in February?

21 A. So Linda, she would have weekly phone calls with us. She

22 told us she was going to have weekly phone calls with us, and

23 then if there wasn't any information, it would be twice a month.

24 So I think we were still getting weekly calls, and she told

25 us, you know, wait for the nighttime calls, because Otto will
 70

1 call, and they will tell him what to say to you, and write it

2 down, because that's going to tell us what they want.

3 So the phone rang in the middle of the night. We were

4 hoping it was Otto, and it was Linda. And she said, we were

5 told there's going to be TV coverage of Otto coming soon.

6 Q. Did you watch the confession?

7 A. I watched parts of it. So for me, from the day Otto was

8 taken, I was always thinking about what he was feeling. I would

9 try to internalize what he was feeling so that I could just

10 imagine what he was feeling, to kind of be there with him

11 because I wasn't there with him. So I'd picture that language,

12 the North Korean language being spoken loud and him not being

13 around any English-speaking people. And I'd picture him not

14 having warm clothes, not being able to brush his teeth. First,

15 I was only picturing those things. And that was hard enough.

16 But then when we started sanctioning North Korea, I knew

17 they were going to take it out on Otto. That was all they had.

18 So I started reading about what they did to some people and

19 imagining the worst. People would say -- I can't tell you how

20 many times a day, they would say, we're praying for you, we're

21 praying for you, we're praying for Otto.

22 Q. Did you receive also a middle-of-the-night call in advance

23 of his sentencing and trial in March?

24 A. Yes, the same thing. And this -- sanctions had just been

25 put on the country, economic sanctions or freezing of assets the

 71

1 day before the trial. So they call us -- oh, by the way, let me

2 go back to his confession.

3 Linda said, oh, I've never seen a confession like this,

4 this was done to a big audience, and Otto did everything so

5 well, they'll like that.

6 Q. That was Linda who said that?

7 A. Yeah.

8 Q. Did she compare it to North Korea's treatment of past

9 American prisoners?

10 A. She said Kenneth Bae, who was the last one who was held two

11 years, his was not like this. This is a much bigger audience.

12 And she'd also always say to me, we don't want Otto to seem too

13 important to North Korea, because they will ask for more if he

14 seems important.

15 So at this point in time, she said to me, they know Otto's

16 important. And I thought, that can't be good.

17 Q. How did Otto appear to you in the trial and sentencing

18 clips that were released?

19 A. Well, in the confession, Otto had a friend whose dad was a

20 psychiatrist at the VA, and he told us that Otto did not look in

21 shock and that he was very hopeful. He didn't say anything like

22 that after the sentencing. Otto shuffled out. He was ashen

23 white. He looked drugged to me, and he looked really bad and

24 just hopeless, like he knew he was going to get some serious

25 treatment.
 72

1 Q. What was your reaction to seeing your son like that on TV?

2 A. So I went upstairs where my bedroom is, and I curled up in

3 a ball.

4 Q. Were you able to communicate with Otto at any point before

5 his sentencing?

6 A. No.

7 Q. And how about after he was sentenced?

8 A. We had that brief window where Linda told us we could send

9 letters and that they would be e-mailed through the State

10 Department to the Swedish diplomat, and the Swedish diplomat

11 would hand carry them to the Minister of -- not security,

12 because they couldn't get to the Minister of Security. So it

13 was the minister before security, because they said Otto was

14 under Ministry of Security. So everything had to go before

15 maybe the Minister of the State or something, but it wasn't

16 Security. So it was like a handoff to handoff to handoff.

17 But I asked his friends, I asked people that knew him well

18 if they would start writing him letters, because Linda said that

19 really got Kenneth Bae through it, was him receiving the

20 letters.

21 So Greta, Austin, and I would write weekly or daily

22 letters. We had to keep them positive, couldn't make anything

23 inflammatory, couldn't talk about the fraternity that they might

24 view as something negative, anything they could misconstrue.

25 So we did that until -- now, realize, this whole time, we

 73

1 are making about monthly visits to Washington, D.C., meeting

2 with whoever would see us at the State Department, meeting with

3 both Senator Portman and Senator Brown. And the governor of

4 Ohio, who back then was Kasich, was calling us. Everybody was

5 putting us in touch with experts and people they thought would

6 help. They said the only way this works out is going through

7 State. So we were reassured that we were doing things correctly

8 by going through the State Department.

9 When we went down in June, it could have been our fourth or

10 fifth trip, and that was when they had sanctioned -- right

11 around that time, they had sanctioned the leader of North Korea.

12 And I said to someone above Linda who was meeting with us, you

13 just killed Otto. And they said, oh, no, they never equate this

14 to something political. They said up and to this point that

15 Otto must have done something, and we're like, there's no way,

16 but whatever.

17 So Linda, who is now feeling very concerned, she says she's

18 always brought everyone home, recommended that we meet with

19 Secretary of State Kerry.

20 Q. This is the June/July time frame?

21 A. Yes. So that was our next visit.

22 Q. And what happened at the meeting with Secretary Kerry?

23 A. Secretary Kerry, the first thing he said was, Otto didn't

24 do anything, North Korea wants something; when they tell us, we

25 will do it.
 74

1 Q. Going back to the letters that you all sent to Otto, did

2 you ever receive anything back from Otto that indicated that he

3 had received anything you all sent?

4 A. No. In fact, we had a friend who was in China send him

5 books, because Linda would say, he'll be really bored, he won't

6 be doing anything. So through DHL, the only one that delivered

7 into North Korea, we sent a couple care packages through China

8 until -- now, realize, at some point in time, I don't remember

9 when, but after Otto was kept, they stopped allowing trips into

10 North Korea, the State Department, because they said it seems

11 like people could be detained for no reason. So they were

12 becoming aware through Otto that the game was changing.

13 Q. Did the State Department say whether they thought Otto

14 would actually serve his full 15-year sentence?

15 A. They said he would not, and that if he was in poor health,

16 we would know. They would either hospitalize him, or if he was

17 in bad enough health, they would send him home.

18 Q. And that was based on their past experiences?

19 A. Correct. There was a gentleman who had fought in the

20 Korean War who had a heart problem who they had detained who,

21 once they realized the extent of his health problems, they

22 immediately sent home. So they were certain that if anything

23 happened to Otto, we would know.

24 Q. And over the next months after Otto was sentenced, what

25 were your interactions like with your community at home and your
 75

1 family?

2 A. Well, we still had -- Austin was a senior, and Greta was a

3 sophomore, I think. And so we tried keeping things as really

4 normal for them, because this was as bizarre as it could be

5 anyway.

6 But I didn't want to be around people that knew me, because

7 I didn't want -- the look in their eye was either of worry,

8 fear, or curiosity. I was so sick of being hugged. So I would

9 go to grocery stores in different communities. I wouldn't go

10 to -- I'd hardly go to any events at the school.

11 And then like when I went to Austin's high school

12 graduation, I'm thinking about Otto's high school graduation.

13 There's just the constant connection, because it's a small

14 community. People care. People were always asking, have you

15 heard from Otto, have you heard from Otto? They couldn't

16 believe it that you could be held and not hear and not know

17 anything and no one see him.

18 We were constantly reaching out to Senator Portman and

19 Brown to try to get them to do things that maybe were separate

20 from State. So Senator Portman was offering to go to North

21 Korea through the UN mission. We were being as creative as we

22 knew how to be without upsetting the apple cart. We had to play

23 our hand very close, and we had to watch everything we said.

24 So talk about being paranoid. They're paranoid, and we

25 were paranoid. They made us paranoid.

 76

1 Q. "They" being --

2 A. North Korea.

3 Q. Did you have trouble sleeping during this time?

4 A. Yeah. Both Fred and I, you know -- at night sometimes is

5 when I would think about what would be happening to Otto, you

6 know. And I'd look up weather in North Korea. I'd look up what

7 time it was. I'd try to do anything to connect myself with

8 Otto. But I didn't feel anything, and I knew if he was okay,

9 I'd feel something. I didn't feel anything.

10 Q. Before you found out that Otto was unhealthy, what were

11 your expectations for your future with Otto?

12 A. Well, so as time went on -- Fred always said, Otto is so

13 strong, he'll be fine, because he's Mr. Positive. Right? Otto

14 can get through this, he's physically fit, mentally fit. Over

15 time, I'm like, oh, he's going to need some serious counseling

16 over this. And I was like, oh my gosh, they're going to break

17 his spirit, and his spirit is so wonderful. But never, never

18 dreamed what they did to him.

19 Q. What was your reaction when you first heard that he was in

20 a coma?

21 A. I want to go back to January, when -- so in January when we

22 met with Ambassador Joe Yun and he goes, I'm going to be very

23 abrupt with you all because I know you're mad at the State

24 Department, because we felt they weren't being very, as they

25 can't be, totally upfront with us. So it was kind of

 77

1 uncomfortable because he was trying to win us over, and Fred was

2 very close to it. And he just kept assuring us that he was

3 going to make it his point -- he had just been switched over to

4 North Korea, and he was going to make it his point to either

5 resolve this with Otto or retire. And I believed him.

6 But at the end, I got mad, and I said, you know, it just

7 hit me like a lightning bolt, we don't even know if Otto is

8 alive. No one's seen him. No one's heard from him. You don't

9 know where he's being kept. I don't know if he's alive.

10 And that must have sunk in to Ambassador Yun, because I

11 think -- he says, I'm going to get back to you within a week or

12 two, I promise.

13 Q. And then in June 2017, you heard that Otto was in a coma?

14 A. Yes. Ambassador Yun -- how it was slowly coming out was,

15 Ambassador Yun or someone else from the State Department, but I

16 think it was Joe Yun, went there to see the hostages. I think

17 then they had a total of three or four.

18 Q. Americans?

19 A. Americans. And they let him see everyone but Otto. And so

20 Joe came back, and they told him, you have to go to the UN

21 mission in New York. So he went to the UN mission in New York,

22 and I'm pretty sure that was the discussion they had. It came

23 from them. And then some time thereafter, he called Fred, it

24 probably was that night or that day.

25 Q. And what was your reaction to hearing the news?

 78

1 A. Ambassador Yun said he was going to do everything in his

2 power to bring him back. So we tried, you know -- once again, I

3 kept thinking, I have to take care of myself, because when Otto

4 comes home, I can't be a mess for him to see, I have to be

5 strong. I have to take care of myself, I'll fall apart later.

6 So I always managed to do that. Like Fred said, we just managed

7 to keep it together. And we tried to keep it positive. We told

8 the kids, you know, Otto's in a coma.

9 And then we thought, with Western medicine -- we had no

10 idea how long he had been in a coma. It could have been a few

11 days, for all we knew. We thought, with Western medicine, we're

12 going to do anything in our power to get him healthy, get him

13 back.

14 Q. Can you talk about when you first saw Otto at the airport

15 in Cincinnati?

16 A. So we were sitting -- okay. So the day Otto was coming

17 home -- they didn't know for sure they could get Otto out of

18 North Korean air space. So once they flew him over Japan, they

19 must have somehow let Senator Portman know, because he called

20 me, and he says, you know -- they were making arrangements now.

21 They wanted to know which hospital, and Senator Portman was

22 making arrangements for us. They had sent over a medevac plane

23 and crew to pick him up.

24 So Senator Portman was on the phone to me saying about what

25 time Otto was getting home. And I asked him -- I said, so

 79

1 Otto's in a coma. And I must have gone on the Internet and

2 known that there could be brain damage. So I said to Senator

3 Portman, how much brain damage is there? And he said,

4 significant.

5 So we go to the airport and wait. Senator Portman and his

6 wife is there. Jen Jackson from University Hospital, she was in

7 charge of nursing and administration there. She was there. And

8 there were two -- a trauma surgeon and a neurologist there. And

9 then the plane landed, and Ambassador Yun came out. And I went

10 up to him to hug him, because at this point I absolutely loved

11 this man. He brought Otto home. And he was crying. I had no

12 idea why he was crying, but I thought he was just so happy or so

13 emotional over this reunion. But then when I saw Otto, I knew

14 why he was crying.

15 And they tried to reassure us, the medevac team, but it was

16 so bad. So, Otto's eyes were open, but they looked like someone

17 who had seen a concentration camp. I used to -- in Sunday

18 school, they would show us, I have no idea why, the Holocaust

19 movies. And that's what Otto's eyes looked like. But he was

20 fed. They kept his weight up with IVs. And he didn't have bed

21 sores. So you know, they felt that they had returned him in

22 good condition. We fed him. We turned him. We kept him 15

23 months in this state. And they actually said that they weren't

24 sure why Otto's condition deteriorated at home.

25 Q. And once you saw Otto on the plane, did you still have hope
 80

1 that he could recover like you did before?

2 A. There was no way.

3 Q. Is this Otto being carried off the plane?

4 A. It is.

5 Q. So he was being carried to the ambulance, and you rode with

6 him in the ambulance to the hospital?

7 A. So Jen, the nurse, was going to ride to the hospital, and

8 Fred said, I'm not going to go, even beforehand, and he would

9 stay with Greta. So when I got off the plane, I sit down,

10 because it's like everything's spinning. I thought I was going

11 to pass out.

12 And then I go in the car with Fred and Greta, and I tell

13 Jen, I can't, I'm going to pass out or throw up or both. And I

14 could tell she was like mad, and I got that. It was wrong. So

15 I said to Fred, I'm going to go in that ambulance, and I did.

16 Q. Did you talk to Otto in the ambulance ride over?

17 A. I did a little. The doctors were -- they told me what to

18 say. I kept saying, I'm so sorry I wasn't there, Otto, I'm so

19 sorry we couldn't bring you home sooner. And the doctors said,

20 don't say that to him, just say positive things, like you're

21 home now, we love you, you're home, everything's okay now. So I

22 just kept saying that probably to myself, too. I kept saying,

23 Otto, you're home, you're home.

24 Q. Did he show any recognition of you or what you were saying?

25 A. No.
 81

1 Q. Did you spend a lot of time with Otto in the hospital?

2 A. I did. I didn't -- I said to everyone -- I didn't mind. I

3 felt bad for Greta and Austin. I said, Otto's been alone too

4 long, I'm going to spend every moment here. And you know,

5 people would relieve me to take showers or to get a meal, but I

6 felt really good about that.

7 And then it was so great. Austin was so right. He was the

8 one that treated Otto like the old Otto. And he got in bed with

9 Otto, which I loved. We were all, I think, scared of Otto. He

10 was like a monster. Our beautiful boy had turned into this

11 monster. But Austin, Austin put sunglasses on him because we

12 didn't like looking at his eyes, and he got in bed with him, and

13 he would talk to him just like normal. That was so great. That

14 helped all of us.

15 And then I started following the game plan, realized I have

16 to treat Otto like Otto. So he loved rap music, one of his

17 awful traits. So I played that for him. And I would just read

18 or sit there with him.

19 Q. Did you talk to him at the hospital also?

20 A. I did, you know. I didn't know what to say because I

21 didn't want him upset. I didn't think he could understand

22 anything I said. The doctors put him through a battery. Like

23 Greta said, they clapped in front of him. They did every test

24 to see if there was any -- any type of response.

25 And they did a second set of scans, and they said the brain
 82

1 had deteriorated since the first set of scans. So if they had

2 released him, maybe there would have been a chance right away,

3 but they didn't give him the opportunity.

4 Q. And what did you all decide to do with Otto's care after

5 meeting with the doctors?

6 A. Well, I knew Otto was all about his mind, and this was not

7 a quality of life he would have wanted. So we talked to the

8 doctor about what we could do, and the doctors, they totally

9 agreed with us. They just said, there is no quality of life

10 here. Otto couldn't do anything for himself. There was no

11 recognition. He couldn't move. He couldn't eat. He couldn't

12 go to the bathroom. And then he would scream out in pain. It

13 sounded like that to me. They said it was just reflexes, but to

14 me, it sounded like he was screaming out in pain. So I wasn't

15 sure he wasn't in pain. It was nothing, nothing that he would

16 have wanted for himself or for us.

17 Q. Did North Korea ever give you an explanation for Otto's

18 condition?

19 A. Well, Ambassador Yun told us that he had to -- to get Otto

20 out of the country, he had to sign a piece of paper saying they

21 were releasing him in good condition. Otherwise, they wouldn't

22 release him. It got really dicey at the hospital there. They

23 were really getting concerned. The plane was like running, and

24 Ambassador Yun was at the hospital trying to get him released.

25 So he said, I signed it, but it doesn't mean anything.

 83

1 So I think they brought that up when they heard about the

2 suit, that the doctor had signed that he was in perfect health

3 and that they didn't understand why we weren't grateful for him

4 being released.

5 Q. So they never apologized for what they did to Otto?

6 A. No.

7 Q. And did Otto's medical team agree with one explanation

8 North Korea did offer of botulism?

9 A. They said there was no way that was botulism.

10 THE COURT: How was it communicated to you that the

11 North Koreans attributed Otto's condition to botulism? How did

12 you learn that?

13 THE WITNESS: That is a good question. I'm not sure

14 if Senator Portman told me that or -- I don't think it was

15 Ambassador Yun. I think it was Senator Portman telling me that,

16 that it was botulism, or telling the doctors that and then I

17 overheard that.

18 So that was their diagnosis, that it was a botulism and a

19 sleeping pill, that they had taken him out to a good meal, and

20 he had gotten food poisoning, and they gave him a sleeping pill

21 to fall asleep.

22 BY MS. GANTT:

23 Q. Since Otto's death, have there been any times or events

24 that have been particularly difficult for you?

25 A. Every day. But like Greta said, we're not going to be

 84

1 victims. If anything, I want to make them feel victimized. I'm

2 not going to ever be quiet about what they did to Otto, because

3 that's what they want. That's how they do it, from fear, from

4 people being afraid to talk. But there's nothing more they can

5 do to Fred and me and to Greta and Austin, not as long as we

6 don't go there, and we're not going there.

7 Q. And how did North Korea's actions change the future that

8 you had imagined for you and your family?

9 A. Well, I did live a lot through Otto's successes and through

10 Austin's and Greta's. I think, you know, not having a career,

11 putting the career on hold and staying at home, you know, you

12 tend to do that, which is a problem. So a lot of how I

13 identified myself was through -- is through my kids.

14 So I had to redefine who I was and really work on that,

15 because so much of my dreams had just been taken away, being the

16 grandma, the wedding, his -- I didn't go to his college

17 graduation, his first job, moving to New York. I wanted to

18 visit him in New York, all that.

19 And we're older. I'm 59. I wanted Otto there for Greta

20 and Austin as the older brother.

21 Q. Can you tell the Court about the necklace you're wearing

22 today?

23 A. Well, Chris in the audience has a tattoo of this. Otto's

24 art teacher was asked to make a design. He took 2D art, even

25 though he wasn't an artist. He wanted to use that part of his

 85

1 brain. And that teacher really ended up really getting to know

2 Otto and liking him, because she taught him all about art. He

3 had never been interested in art. And this is his name. So she

4 designed it for a tattoo. And she brought me a book of his

5 artwork framed from that class, and that's how I got to know

6 her. She said, you know, I'm not going to get a tattoo, but I

7 would like a necklace. So she took me to a local jeweler who

8 designs necklaces and made this, and I wear it all the time.

9 And I just kind of -- when I think bad thoughts that I know

10 Otto wouldn't want me to think, you know, I just rub it. So I

11 know he doesn't want me to torture myself. I know that. So I

12 can't let myself think those thoughts, even though it's really

13 hard not to think what the heck did you do to my kid.

14 Q. What do you hope a judgment in this case would do?

15 A. Okay. So there's evil in this world. It's North Korea.

16 I'm sure there's more evil, but I have faced evil, and I -- if I

17 have to give up my sacrifice to tell people that you have to do

18 something about this, I will. You cannot let this regime get

19 away with this. I mean, they do it to their own people. They

20 did it to my son. They do it to the Japanese. They did it to

21 his stepbrother. We cannot turn a -- you know, and their charm

22 offensive, that they're misunderstood victims, that without

23 nuclear weapons they'll be taken out of power.

24 You know, they control the dialogue in every situation.

25 They controlled our dialogue the whole time. We have to react

 86

1 differently. We can't just give them a slap on the wrist. We

2 can't. We have to say Otto is more important than you; as an

3 American, we value our kids, we value them more than you staying

4 in power.

5 MS. GANTT: I have no further questions, your Honor.

6 THE COURT: Thank you. You're excused.

7 And your next witness?

8 MS. GANTT: David Hawk.

9 MR. CULLEN: Your Honor, can we approach real quick?

10 THE COURT: Yes, of course.

11 (Bench conference.)

12 THE COURT: Yes?

13 MR. CULLEN: This gets real graphic about what they

14 did to people. Can the Warmbiers go outside?

15 THE COURT: Absolutely.

16 (End of bench conference.)

17 DAVID HAWK, WITNESS FOR THE PLAINTIFFS, SWORN

18 DIRECT EXAMINATION

19 BY MS. GANTT:

20 Q. Please state your name for the record.

21 A. David Ray Hawk.

22 Q. What is your current job?

23 A. I'm a consultant on international human rights.

24 Q. And do you work with certain organizations?

25 A. I do. Right now, I've been working on a number of reports

 87

1 for a governmental organization called the Committee on North

2 Korean Human Rights.

3 Q. And do you also teach?

4 A. I do. I teach courses on international human rights,

5 currently at the University of South Florida, previously at City

6 University of New York.

7 Q. Can you give the Court a summary of your professional

8 background?

9 A. I've worked in the field of international human rights for

10 going on 50 years. In the past at various times, I've been the

11 executive director of Amnesty International in the United

12 States, and I've also been a UN human rights official in charge

13 of the Cambodia office of the UN High Commissioner for Human

14 Rights.

15 And then I've spent a lot of time documenting and analyzing

16 first the Khmer Rouge genocide in Cambodia and then the

17 massacres in Rwanda and, since 2001, since 2002, the political

18 prison camp system in North Korea and other North Korean human

19 rights violations.

20 Q. Have you ever provided testimony regarding North Korean

21 human rights abuses?

22 A. I have, yes, to Senate -- the U.S. Senate committees and

23 also to a variety of panels at the United Nations.

24 Q. And have you submitted affidavits in court ever regarding

25 North Korea?
 88

1 A. I have, yes.

2 Q. And in what case was that?

3 A. Oh, in addition to this case, there was a case involving a

4 Korean pastor by the name of Reverend Kim who was also held,

5 detained in North Korea.

6 Q. Have you written articles and reports regarding North

7 Korea?

8 A. Oh, yes, many over -- well, basically since 2003.

9 Q. And can you just highlight for the Court a few of the most

10 applicable ones for this proceeding?

11 A. The report that I first did was called "Hidden Gulag,"

12 which examined -- was really the first systematic and

13 comprehensive examination of the different systems of political

14 imprisonment in the DPRK. That was then -- there was a second

15 edition of that in 2012.

16 There have been a series of reports on different prison

17 camps, different penitentiaries, and then most recently, last

18 year, there was a major publication called "Parallel Gulag" on

19 the additional system of imprisonment for both criminal and

20 political prisoners.

21 Q. And what types of primary sources do you look to for

22 information to prepare these reports?

23 A. Primarily, interviews with North Korean refugees who are

24 now residing in South Korea who themselves have been imprisoned

25 or detained in one of the different varieties of detention

 89

1 facilities in North Korea. So the most -- the starting point is

2 with the testimony of former prisoners who have either been

3 released or, in several cases, escaped and then fled to China

4 and then made it to South Korea.

5 Because North Korea is such a closed and secretive place,

6 no human rights investigator can possibly go there and gain

7 access. So we rely on the first-person and eyewitness

8 testimony, and then we seek to corroborate their testimony by

9 using satellite photographic images of the prison camps and the

10 penitentiaries.

11 Q. About how many former prisoners do you think you have

12 spoken to directly?

13 A. Easy, 50.

14 Q. And have your reports such as "Hidden Gulag" been cited by

15 other organizations?

16 A. Yes. They've been cited in the U.S. Congress, by the U.S.

17 State Department, and by a variety of UN investigators and

18 bodies, and then by other NGOs and by various scholars.

19 Q. Did you receive any compensation for the affidavit that you

20 prepared in this case?

21 A. Not for the affidavit.

22 Q. And are you receiving any compensation for your time here

23 for this hearing?

24 A. Yes, for the travel and hotel expenses and the days

25 involved.
 90

1 MS. GANTT: Your Honor, I believe Mr. Hawk's CV and

2 affidavit are already in evidence. At this time I would tender

3 Professor Hawk as an expert in North Korea, including its

4 policies towards detainees.

5 THE COURT: Yes, his testimony will be accepted as

6 expert testimony.

7 MS. GANTT: Thank you, your Honor.

8 BY MS. GANTT:

9 Q. Mr. Hawk, can you please provide a brief overview of the

10 three North Korean -- the three types of North Korean detention

11 facilities that you outlined in your affidavit?

12 A. The first kind would be called in Korean kwan-li-so, which

13 is often translated into English as a political prison camp or

14 as a concentration camp. There had been initially a dozen of

15 them. They were consolidated into half a dozen huge facilities,

16 holding scores of thousands of prisoners located in the

17 mountains and the valleys of central and north North Korea,

18 where people were sent without any judicial process whatsoever,

19 for mostly lifetime imprisonment at forced labor in the mines

20 that are in the mountains, or in logging, timber-cutting in the

21 mountains, or agricultural or livestock raising in the valleys

22 between the mountains.

23 Around the turn of the millennium and still in the 1990s,

24 the estimates are that there were 150,000 to 200,000 persons

25 held in the kwan-li-so prison camps without any judicial process

 91

1 whatsoever, and they were being held in incommunicado detention,

2 allowed no correspondence with the society outside the prison

3 camp.

4 And one of the most remarkable phenomena of repression with

5 this prison camp system was they imprison not only the suspected

6 wrongdoer and wrong thinker, but the suspected real or imagined

7 wrongdoer or wrong thinker, including up to three generations of

8 that person's family. So the whole family, including children

9 and grandchildren, were put in the prison camps to work at

10 forced labor for the rest of their lives.

11 That's what filled up those prison camps to those sorts of

12 numbers. This part was started by Kim Il-sung in the late '50s

13 after the Korean War, and he instituted this feudal practice of

14 guilt-by-association three-generation imprisonment. We think

15 that it is less in use these days under Kim Jong-un. So we

16 believe that the prison population, people who were imprisoned

17 in the '50s, '60s, '70s are dying off, and that the population

18 in these prison camps has diminished. The range estimated

19 presently is about 80,000 to 120,000.

20 The second type is called in Korea kyo-hwa-so. And

21 these -- some of them are prison camps. More of these appear

22 like a penitentiary with a campus of buildings, residence, and

23 work units surrounded by high walls, barbed wire, guard towers,

24 where people are sent to after a judicial process of sorts,

25 certainly not one that would meet international standards for

 92

1 due process or fair trial. But these people are charged with

2 crimes under the DPRK criminal code and criminal procedure code.

3 They have a semblance of a trial, after which they are sentenced

4 for a set term. They serve their term, and after that, they are

5 released.

6 So that would be -- what's important to realize about the

7 DPRK criminal code is that it has a very long list of acts that

8 have been criminalized that are basically political actions and

9 that would not be regarded as crimes. There was also the murder

10 and rape and robbery, the sort of normal crimes, but there's a

11 very large number of crimes against the state, crimes against

12 the government. So there are people in those prisons who are

13 also, by international standards, political prisoners, people

14 who have been deprived of their liberty for reasons that aren't

15 permissible under contemporary international law.

16 And then both of these detention systems have feeder

17 detention facilities for detention immediately after arrest for

18 interrogation or for detention while being transferred to one of

19 the penitentiaries. So in Korean, they're called ka-mok or

20 ku-ryu-jang, jip-kyul-so, ro-dong-dan-ryeon-dae.

21 So people are -- the children or grandchildren of people

22 who are being sent to the big prison, kwan-li-so prison camps,

23 won't be detained at all. They're just picked up from school,

24 taken back to the family home, get their belongings, and with

25 the rest of their family, they're trucked to the prison camps.

 93

1 But otherwise, the principal wrongdoer or the person who has

2 been picked up by the regular police would go through a

3 situation of detention and interrogation while they decide what

4 to do with them. And those situations can last months. It can

5 go sometimes very quickly, but they also hold people for months

6 and months until they are satisfied with their confession and

7 with the information that people may be providing.

8 Q. Are you familiar with the definition of torture under

9 United States law?

10 A. Yes, I am.

11 Q. And are you also familiar with the definition of torture

12 under international law?

13 A. Yes.

14 Q. And does torture occur at these facilities you've described

15 under those definitions?

16 A. Yes, in all three. There is more systematic and

17 regularized torture in the initial places of detention and

18 interrogation. The systematic torture in the penitentiaries and

19 prison camps is more for the violation of prison camp

20 regulations or failure to meet production quotas in the forced

21 labor. It's not as routine and systematic as it is in the

22 interrogation and initial detention facilities, although you

23 have to keep in mind that in the prison camps and in the

24 penitentiary system, people are provided with food rations that

25 are so low that they're deliberately more or less kept on the

 94

1 verge of starvation. There's a lot of malnutrition.

2 So the conditions under which they are held could be --

3 well, are, by the international definition, which is a very

4 interesting one and one that I think is important for this

5 particular case, is cruel, inhuman, and degrading treatment or

6 punishment. And that applies to everyone who is in the prison

7 camps and penitentiaries. But what's normally thought of as

8 systematic torture is practiced more in the feeder facilities.

9 Q. So you said that at the interrogation phase, I believe you

10 described torture as routine in North Korea?

11 A. That's the way people who have been through it describe it.

12 THE COURT: Mr. Hawk, if I can interrupt you for a

13 second. Given the -- what you know about the judicial process

14 there, are most criminal prosecutions resolved with a

15 confession? I mean, is there systematic torture because that's

16 related to the number of confessions that are obtained, or do

17 they have a system like we do, where there's proof presented

18 beyond a reasonable doubt without the defendant ever having to

19 speak?

20 Do you understand my question?

21 THE WITNESS: Sort of.

22 THE COURT: Here, a person doesn't have to speak if

23 they're accused of a crime, and the government has to present

24 proof.

25 You have talked about confessions as a regular part of

 95

1 their criminal process. Is it a regular part of their criminal

2 process that criminal prosecutions are resolved typically on a

3 confession by the defendant?

4 THE WITNESS: Yes.

5 THE COURT: And does that help explain why there is

6 systematic torture at the initial detention and interrogation

7 part of the criminal process there?

8 THE WITNESS: I believe so. But it's also important

9 to note that some people -- the North Koreans who are sent to

10 the kwan-li-so camp are not charged with any offense. They

11 don't know, and they spend a lot of time trying to figure out

12 what it is they said or did that brought such suffering to

13 themselves and their family. But people who are going through

14 the hyo-hwa-so system are -- there's usually a confession

15 involved --

16 THE COURT: And based on what you know about the case,

17 wasn't Otto Warmbier going through this latter process as

18 opposed to the political process, to the extent that there's a

19 difference in North Korea between the two?

20 THE WITNESS: Yes, he was clearly being interrogated,

21 and they wanted a confession from him. And he was obviously in

22 his testimony scared for his life if he didn't confess to

23 hostile acts taken on behalf of the U.S. government.

24 THE COURT: You can proceed.

25 MS. GANTT: Thank you, your Honor.

 96

1 BY MS. GANTT:

2 Q. Can you give examples of the methods of torture that North

3 Korea applies in these facilities that would not leave a

4 long-lasting physical mark on someone?

5 A. Yes. One of the common methods of torture and pain

6 infliction during the initial detention and interrogation

7 periods is to string prisoners up by their wrists from the bars

8 in the cells, just with their toes off the floor. And unless

9 that permanently breaks a limb, there would not be scars after

10 that. It would be black and blue, but that would heal.

11 Another very common practice is to have people kneel or

12 squat with an iron or wooden bar behind their legs, which will

13 cut off your circulation and become excruciatingly painful. But

14 unless the circulation stops for so long that the -- an

15 amputation is required, that would not leave scars.

16 Another practice in the prison camps and penitentiaries is

17 to put people in a very, very small box so that they can't stand

18 up or lie down and stretch out, but keep people cramped up like

19 that for several days. And again, that won't leave a mark.

20 And even a lot of the -- there's also sort of beatings, and

21 sometimes prisoners lose their teeth or have scars from the

22 old-fashioned kinds of beating. But a lot of that involves

23 punishments and suffering that would not leave permanent scars.

24 Q. Do these facilities have high -- other than the initial

25 feeder facilities, are there high mortality rates?

 97

1 A. Yes. Because people are not provided with adequate food

2 rations, even for a sedentary job, let alone mining or timber

3 cutting, so that people who are malnourished are doing hard

4 labor. So there are a lot of industrial accidents in the mines

5 and in the forests. They're mining the old-fashioned way, with

6 picks and shovels, and they're felling trees with axes and saws

7 that two guys pull back and forth. And they're malnourished and

8 overworked people. They become susceptible to diseases. So the

9 rates of detention, in fact, are very high.

10 Q. Of mortality?

11 A. Sorry, yes.

12 Q. Are you familiar with the definition of extrajudicial

13 killing under United States law?

14 A. Yes, I am.

15 Q. And does North Korea commit extrajudicial killings?

16 A. As defined in U.S. law, yes.

17 Q. What other organizations have recognized the human rights

18 abuses by North Korea that you've just described?

19 A. Well, the U.S. Congress, the United States Department of

20 State, a list of UN officials and UN experts and UN committees

21 and UN bodies, including and most particularly the General

22 Assembly, where every year since 2014 the United Nations General

23 Assembly member states have voted by overwhelming margins to

24 recommend to the Security Council that North Korea, possibly

25 including Kim Jong-un himself, be referred to the International

 98

1 Criminal Court, because a series of their gross violations of

2 internationally recognized human rights constitute crimes

3 against humanity as defined in contemporary international law.

4 Q. And are those crimes attributed to him because these human

5 rights abuses are the product of -- and torture are the product

6 of state policies in North Korea?

7 A. Well, torture is one of them. So is extrajudicial

8 execution. So is arbitrary detention. So is enforced

9 disappearances. These are all different violations that are

10 perpetrated in the DPRK that constitute crimes against humanity

11 under the statutes of the International Criminal Court.

12 Q. And those are policies of the state and North Korea?

13 A. Oh, yes. There's no question they're being carried out by

14 both of the different police forces, the Ministry of Public

15 Security and the Ministry of State Security. Both engage in

16 these -- both police forces engage in these practices.

17 Q. Does North Korea acknowledge the human rights abuses that

18 have been acknowledged by all of these other organizations?

19 A. No. It has steadfastly denied any human rights violations.

20 They had a stock phrase which for decades they used officially

21 in the UN but also the North Korean diplomats would in the

22 corridors, coffee shops at the UN, would say that there is no

23 human rights issue or problem in our country. The fuller

24 version of it is, there can be no human rights problem in our

25 country which is dedicated to people-centered socialism. So

 99

1 there can be no human rights issue under our people-centered

2 socialism. That was their standard political line, formal and

3 informal.

4 After the -- 2014, when the highest-level UN investigation

5 that's possible by a procedure called a Commission of Inquiry

6 found that a series of these violations constituted crimes

7 against humanity and that finding was overwhelmingly endorsed by

8 the other governments around the world, the North Koreans

9 changed their political line a bit and say that the human

10 rights -- it's a human rights racket kicked up by hostile -- the

11 United States. That's their current language of denial.

12 Q. And do they allow any inspections or visits of their

13 facilities by international human rights organizations?

14 A. No. And the UN, the special rapporteur on the situation of

15 human rights in North Korea, of whom there have been three of

16 them, they can serve for six years, requests every year the

17 invitation to visit North Korea. And every year, it's denied.

18 In the early '90s, North Korea received a visit from

19 Amnesty International and apparently showed them some sort of

20 exemplary detention facility, but Amnesty then published a

21 report which said even that did not meet international norms and

22 standards, after which they've not allowed Amnesty back in the

23 country. And they don't allow UN officials or they don't allow

24 the International Commission of the Red Cross, the ICRC, to have

25 access to detention facilities at all.

 100

1 Q. Are you familiar with the facts of Otto Warmbier's

2 condition in detention in North Korea, such as they are now?

3 A. Pardon?

4 Q. Are you familiar with the facts of Otto Warmbier's

5 condition in detention in North Korea as they are known?

6 A. Yes.

7 Q. And how did you become familiar with that?

8 A. Well, I follow the news accounts, as I follow the news

9 accounts of arrests and detention of foreigners. That often

10 gets newspaper stories. The arrests of North Koreans generally

11 do not. So I follow those stories when they appear in the

12 press. And then, of course, I saw the televised confession that

13 the North Koreans themselves put out.

14 Q. Did you also review the medical and dental affidavits in

15 this case?

16 A. I have, yes.

17 Q. If a North Korean had been accused of a crime like Otto's,

18 what would have been their likely penalty?

19 THE COURT: Mr. Hawk, would you like a throat lozenge?

20 THE WITNESS: No, let me try to go on.

21 If -- Otto was accused of removing a poster, a propaganda

22 poster. If it was an image of the leadership, Kim Il-sung, Kim

23 Jong-il, Kim Jong-un, if it was an image of the leadership or a

24 quote from the leadership or a mention of the leadership and if

25 it was defaced in any way whatsoever by a North Korean, quite

 101

1 possibly the result would be execution.

2 BY MS. GANTT:

3 Q. In your opinion, was Otto subject to torture when he was

4 held in North Korea?

5 A. Yes.

6 Q. And what is the basis of that opinion?

7 A. The condition in which he appeared in his forced confession

8 and the condition he was in at the time of his release.

9 Everybody just uses the word torture and then the laws

10 against torture. In -- when the convention against torture was

11 passed in the mid-'80s, the full title of the convention against

12 torture is actually the convention against torture and other

13 forms of cruel, inhumane, or degrading treatment or punishment.

14 No one uses all of those words all the time. But the reason

15 that it's articulated that way is to avoid the problem on

16 torture that they have with the genocide as it was defined in

17 1948 after the Nuremberg tribunals, where you say torture or

18 genocide, and then you have a debate, was it really genocide, or

19 a debate, was it really torture? And so as to make that --

20 those sorts of debates, as silly as they are, the full title

21 includes the terminology "other forms of cruel, inhumane, or

22 degrading treatment or punishment."

23 Otto Warmbier, in his televised confession, was already

24 seriously degraded, and the condition he was in after 18 months

25 of detention was deterioration to the point of death. They got

 102

1 him out of there just before he would have died in detention,

2 and he was severely degraded.

3 And by the international standards, you know, that's --

4 from serious to severe degradation would qualify as a violation

5 of the international law. With respect, as I can tell, from the

6 American law, if it's the infliction of mental or physical pain,

7 it's -- he looked like he was fearful for his life in the

8 confession, and it's inconceivable that he could end up in the

9 condition that he was without the infliction of -- when he was

10 released, without having mental and physical pain that got him

11 into that severely comatose condition.

12 Q. Is it your opinion that his confession was forced by North

13 Korea?

14 A. Surely, yes.

15 Q. Did North Korea allow access -- the access to Otto that it

16 was supposed to as a signatory to the Vienna Convention on

17 Consular Relations?

18 A. No. And this is actually quite important. Under the

19 Vienna Convention on Consular Relations, where you don't have

20 diplomatic -- where you don't have an embassy, where you don't

21 have normalized diplomatic relations, one country can ask

22 another country to look after its affairs. "Supporting power"

23 is the terminology. And the United States has long had Sweden,

24 which has an embassy and an ambassador in Pyongyang, to look

25 after American affairs in the absence of U.S. ambassador and

 103

1 consular officials. The Vienna Convention states quite clearly

2 that the supporting power, which in this case is Sweden, should

3 have access to persons who are under detention.

4 Now, the Swedish consular had access to Otto once

5 immediately after his confession. But it's not that you only

6 can meet once. If the DPRK had not violated their legal

7 obligations under this convention, the Swedish embassy officials

8 would have met with or had access to Otto when he first entered

9 into a coma. They would have seen his situation. They

10 certainly would have informed the North Korean foreign ministry

11 that the foreigner, the American under detention, was in a

12 situation of deteriorating health.

13 So had -- in my opinion, had not DPRK failed to fulfill its

14 legal obligations under that convention, his illness would have

15 been -- become known to the international community, or at least

16 to members of the international community, at a time when

17 obtaining more adequate hospitalization may have made a

18 difference.

19 Q. In your opinion, was North Korea responsible for the

20 extrajudicial killing of Otto?

21 A. Yes.

22 Q. And what is the basis of that opinion?

23 A. On being returned after being held for 18 months in their

24 detention facilities, he was essentially brain dead.

25 Q. And was he -- the extrajudicial killing definition

 104

1 references a judgment that affords all the judicial guarantees

2 which are recognized as indispensable by civilized people.

3 Does North Korea apply that generally, or did it to Otto?

4 A. No, no, of course not. His -- that was -- what he went

5 through was a show trial, was an old-fashioned Stalinist show

6 trial.

7 As I understand this situation, he may have entered a floor

8 of the hotel that was not open to foreigners. So he may have

9 violated a regulation. But that's not what they charged him

10 with or forced him to confess to. He was charged with

11 committing hostile acts on behalf of the U.S. government.

12 Q. And does is it surprise you that North Korea has not

13 acknowledged torturing Otto or causing his death?

14 A. No. I would be shocked and astonished if they did anything

15 of the sort.

16 Q. Are you familiar with the definition of "hostage taking"

17 under United States law as well?

18 A. Yes.

19 Q. Does North Korea use American prisoners as hostages?

20 A. Indeed so.

21 Q. And how do they do so?

22 A. Well, there have been -- over the last decade or so, not

23 even going back to the cases of the American Navy men who were

24 held as hostage in the late '60s when their ship was seized

25 until the U.S. government, Kissinger and Nixon, apologized for

 105

1 invading North Korean waters, which as soon as -- they had to

2 make that confession to get the men released finally. And of

3 course, as soon as the men were released, they rescinded their

4 admission of guilt.

5 But there have been a number of Americans who have ended up

6 in detention for a variety of reasons. Perhaps, the two

7 journalists reportedly crossed the stream that is the border

8 between China and North Korea and ended up on the North Korean

9 side of the middle of the river and were picked up by the North

10 Korean police and held as hostages. They were reporters who

11 were working for Vice President Gore's radio programs. So you

12 thought maybe perhaps they wanted former Vice President Gore to

13 come over to Pyongyang to retrieve these hostages. But no, they

14 insisted it couldn't be the vice president. It had to be former

15 President Clinton.

16 So there are other Korean Americans who, for one reason or

17 another, some of whom were doing humanitarian aid projects, some

18 of whom were trying to do missionary-type projects in North

19 Korea, and they've been -- they were taken and seized by the

20 North Korean police and held as hostages until high-level U.S.

21 officials, either formerly or presently, came to Pyongyang to

22 obtain their release.

23 Most recently, prior to Secretary of State Pompeo bringing

24 back three, it was during the Obama years Jim Clapper, who was

25 the head -- James Clapper, who was the head of U.S. intelligence
 106

1 who went to Pyongyang to bring back other Americans who had been

2 held and detained as hostages until the high-enough-level U.S.

3 official, current or previous, would travel to Pyongyang to

4 satisfy the North Koreans.

5 Q. And is it your opinion that Otto was seized and detained by

6 North Korea in order to induce the United States to take some

7 action?

8 A. Yes, I believe that his case fits in with these other

9 situations of Americans who, for one reason or another, found

10 themselves in detention in North Korea and were held -- they

11 were held as hostages.

12 Q. Were North Korea and the United States communicating during

13 the time of Otto's detention?

14 A. Not to my knowledge. This was during a time of the U.S.

15 policy called "strategic patience." And the negotiations with

16 the North Koreans had ended several years previously on

17 something called the failure of the leap year, leap day

18 agreements for the end of -- leap day at the end of February.

19 That broke down after a month or two, six weeks, I think.

20 After that, there was no further negotiations. Certainly,

21 there were no further negotiations, but I don't believe there

22 was even much by way of conversations through something that

23 they use a lot called the New York channel, where the deputy

24 permanent rep from North Korea acts as a de facto American

25 ambassador so that officials from the State Department go up to

 107

1 New York to meet with North Koreans who are attached to the

2 North Korean mission to the UN. But to my knowledge, there were

3 not discussions taking place through that channel at that time.

4 Q. So if a high-level official from the United States had come

5 over, that would have served North Korea's goals of opening

6 dialogue between the two countries?

7 A. I believe so. It certainly fit that pattern. But then the

8 North Koreans realized Otto was on the verge of death and

9 decided they needed to get him out of the country before he died

10 in detention, which would be harder for them to explain.

11 So at that point the state security services that were

12 holding Otto informed the North Korean foreign ministry, who

13 then made arrangements, I believe initially, through the New

14 York channel for the U.S. to come over and obtain the body

15 before it was deceased while in detention.

16 Q. In your opinion, does North Korea care about its

17 international reputation with respect to human rights?

18 A. Actually, it does, yes.

19 MS. GANTT: I have no further questions, your Honor.

20 THE COURT: Thank you. Mr. Hawk, you're excused.

21 How long do you think the last witness will be?

22 MR. HATCH: Maybe 30 to 40 minutes.

23 THE COURT: We will just all have a very late lunch.

24 MR. HATCH: All right, your Honor. We call Professor

25 Sung-Yoon Lee.
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1 SUNG-YOON LEE, WITNESS FOR THE PLAINTIFFS, SWORN

2 DIRECT EXAMINATION

3 BY MR. HATCH:

4 Q. Can you please state your full name for the record.

5 A. Good afternoon. Sung-Yoon Lee, last name L-e-e.

6 Q. Thank you. Can you tell the Court what your current job

7 is, sir.

8 A. I'm a professor of Korean studies, with a concentration on

9 the Korean peninsula and northeast Asia, China, and Japan, at

10 the Fletcher School of Law and Diplomacy at Tufts University,

11 near Boston, Massachusetts.

12 Q. Thank you. And do you teach -- as a part of your professor

13 role, do you teach any courses that are related to North Korea?

14 A. I do. Since 2009, I have taught a semester-long course

15 called North Korean State and Society. I believe it was the

16 first ever, the only semester-long course at the graduate school

17 level in the United States.

18 And I also teach a course on South Korea, the politics of

19 the Korean peninsula, also a course on U.S.-east Asia relations

20 since 1945 to the present.

21 Q. And the Court has your CV, but can you just summarize your

22 professional background for the Court, please.

23 A. I'm a native Korean speaker. I use Korean primary sources,

24 as well as English primary sources, to study, to write about,

25 and to teach about U.S. policy toward North Korea, North Korea's
 109

1 strategic calculated provocations, its hostage-taking tactics.

2 I teach about North Korea's human rights violations. And

3 occasionally, I have the high honor of testifying at

4 congressional hearings and advising senior elected leaders in

5 the United States government.

6 Q. Thank you. And can you just give the Court a sense what

7 testimony you've given before Congress and what advice you've

8 given to high levels of the government?

9 A. In 2013, Ed Royce, Congressman Royce, with bipartisan

10 support by his Democratic colleagues in Congress, pioneered an

11 effort to devise and to pass into law what is the first and

12 only -- well, the first tough sanctions legislation against

13 North Korea. So as of 2016, there was not a single U.S.

14 sanction law on North Korea. Contrary to the prevalent -- the

15 pervasive myth out there, U.S. sanctions against North Korea,

16 against the North Korean state have been quite lax, not tough at

17 all compared with U.S. sanctions against several countries until

18 2016, when this law took effect.

19 And I was invited to testify at the House Foreign Affairs

20 Committee on the necessity, the need for such a tough sanctions

21 legislation and to try to clamp down on North Korea's

22 multivarious illicit activities, like proliferation of weapons

23 of mass destruction, counterfeiting U.S. dollars, the production

24 and sale of drugs like opium, heroin, and meth. At the state

25 level, North Korea exhibits characteristics that are unique for

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1 any state in the modern era. For the state to be behind such

2 illegal activities is unprecedented.

3 Q. And you've been here and seen the testimony that came

4 before. Is Congressman Royce the same congressman Mr. Warmbier

5 testified about?

6 A. Yes. Moreover, I've had the honor of advising in person

7 Senator Bob Corker, chairman of the Senate Foreign Relations

8 Committee -- Relations Committee, as well as the President of

9 the United States.

10 Q. Thank you. Have you written any articles regarding North

11 Korea?

12 A. I've written several, perhaps close to 100, on North

13 Korea's calculated policy of provocations, as well as

14 post-provocation peace ploys. I see -- I look for specific

15 patterns in history in looking at the unique, specific. I look

16 for general patterns of North Korean behavior. And I do discern

17 such patterns of calculated provocations and then following up

18 with a charm offensive which usually is able to compel North

19 Korea's major adversary, the United States government, into

20 assuming that North Korea is an amenable, reasonable power with

21 which the U.S. can do business, conduct denuclearization talks.

22 And such an assumption and return to negotiations has always

23 entailed bigger and bigger concessions, both political and

24 economic concessions, given to the North Korean regime.

25 Q. And just briefly, in your studies of North Korea, including

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1 their treatment of individuals and detainees, what types of

2 sources do you look to to build your knowledge and

3 understanding?

4 A. I actually have a substantial amount of primary sources

5 from North Korea, and that's because in the '70s North Korea

6 very freely, generously sent, mailed North Korean propaganda,

7 government statistics and books, treatises, purportedly written

8 by the founder, the state founder and the grandfather of the

9 current leader, Kim Il-sung, as well as by his son, the father

10 of the current leader, Kim Jong-un, who was the heir apparent at

11 the time. And North Korea sent books and articles to various

12 academics in the United States.

13 And I inherited the collection of one Gregory Henderson,

14 who taught at the Fletcher School in the '70s and 80s. Gregory

15 Henderson is a pioneering first generation Korea scholar. His

16 book on the Korean traditional political culture, the hierarchal

17 system called "Korea: The Politics of the Vortex," published by

18 Harvard University Press 50 years ago in 1968, is still widely

19 considered as the most excellent single-volume study in the

20 English language on Korean political culture.

21 Q. Okay. And with respect to treatment of detainees, do you

22 also study accounts of defectors or former prisoners of North

23 Korea?

24 A. I do.

25 Q. Is that a commonly utilized tool in the field to understand

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1 the conditions in North Korea?

2 A. I believe not. I can only speak for myself, but I think

3 many North Korea watchers and experts come from various

4 different fields, proliferation, security, foreign policy, with

5 very little background in Korean culture and history and don't

6 have a good foundation on Korean history, what has happened in

7 the past. Not to suggest that knowledge of the past ensures

8 correct assessment of the present, but I think it is a handicap

9 if you don't know history. If you don't know history, what

10 happens in the now comes across as unprecedented, unique, even

11 without parallel, and I think that's a common fallacy. So I

12 look for precedents in my assessment, analysis of current

13 affairs.

14 Q. And I take it, does your research and study include North

15 Korea's policy and state interests?

16 A. Absolutely, especially vis-a-vis the United States.

17 Q. Other than having your travel and lodging expenses paid

18 for, are you receiving any compensation for your testimony

19 today?

20 A. Despite the plaintiffs' kind, generous offer, I've declined

21 any monetary compensation. I believe that this case, if I may

22 speak frankly, perhaps transcends the tragedy felt, experienced

23 by the Warmbier family. I think there is a sociointernational

24 ramification, implication of this potentially milestone case.

25 So I'm very honored to have this opportunity to speak the truth

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1 in this honorable court.

2 MR. HATCH: Your Honor, I tender Professor Lee as an

3 expert on North Korea, including North Korea's state policies

4 and its treatment of individual detainees.

5 THE COURT: Yes, Professor Lee will be accepted as an

6 expert.

7 MR. HATCH: Thank you, your Honor.

8 BY MR. HATCH:

9 Q. Professor Lee, I would just like to start, while you're

10 taking a sip of water there, and can you tell the Court, here in

11 the United States, I think many of us are used to separation of

12 powers and an independent judiciary. Can you tell the Court how

13 North Korea's government, including its judiciary, is

14 structured?

15 A. Your Honor, please stop me if I become too verbose, but I

16 think it's helpful for me just to lay out in brief some unique

17 characteristics of North Korean state and society.

18 North Korea is unique in many ways. I just mentioned it is

19 the only country in the modern era that, as a matter of state

20 policy, produces and sells drugs, produces and sells fake famous

21 U.S. brand cigarettes like Marlboro, that have been found in 13

22 different states across the United States as of 2005.

23 North Korea has gulags, political prisoner concentration

24 camps. It's the only country in the present to operate such a

25 political prisoner camp system.

 114

1 North Korea is also unique in that historians on both the

2 left and right of the political spectrum agree that North Korea

3 is the most advanced, most perfected totalitarian state in world

4 history, that is, the capability, the ability of the state to

5 coerce, to control, to terrorize people, to invade their private

6 realm, to have random midnight inspections to see if there are

7 any unauthorized visitors. In North Korea, you need a special

8 travel permit to go from one town to the next town over. This

9 degree of control of the population the world has never seen

10 before.

11 Moreover, Kim Jong-un is the supreme leader. In Korean

12 culture, Korean history, the man on top has always held supreme

13 power, the Korean kings of the past. And much of what David

14 Hawk mentioned, guilt by association, you know, family members

15 across three generations ending up in concentration camps along

16 with the accused, this is very much part of Korean tradition,

17 Korean culture. North Korea has taken this to an extreme and

18 has perfected its means of terrorizing the people.

19 So to try to answer your question, North Korea has no

20 independent judiciary. North Korea has the semblance. It dons

21 the cloak of democracy and being a normal state, but it's really

22 very, very different from our understanding, our tableau, of how

23 a normal state operates.

24 Q. And just at a high level, what has North Korea's track

25 record been with respect to the human rights of people it

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1 detains in its systems for alleged crimes or for other reasons?

2 A. Well, information out of North Korea admittedly is quite

3 thin, but we have now over 32,000 North Korean escapees who have

4 resettled in South Korea, and the stories that they tell are

5 compelling. They are consistent. We have North Koreans from

6 all different areas of North Korea telling a consistent story,

7 that it is a life of extreme deprivation and repression, and it

8 lends credibility to the narratives, testimony, also former

9 prisoners in the horrific gulags, as well as more conventional

10 detention facilities, that confessions are coerced.

11 And this is very much, again, in Korean tradition, the

12 first thing that a magistrate would say under the monarchy 100

13 years ago would be, You know and you will admit your wrongdoing,

14 your crime.

15 Surprisingly, even in South Korea, which is a thriving

16 democracy, in many judgments rendered in criminal cases, if the

17 accused confesses to his alleged crime, he will get a lighter

18 punishment. And often, it's mentioned in the judgment, despite

19 the availability, credibility of the evidence at hand, the judge

20 would occasionally -- quite frequently, pardon me, quite

21 frequently say so and so, the accused, showed no remorse, did

22 not confess to his crimes.

23 What I'm trying to say is the coerced confession, the show

24 trial and confession that we've seen, is very much a staple mode

25 of operation in the North Korean system.

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1 Q. You might have heard the judge ask a question earlier about

2 confessions in the system. So in your opinion, the confession

3 is an important part of the case for the state itself?

4 A. Absolutely, and I see many historical parallels between the

5 treatment and the response by the crew of the USS Pueblo and

6 Otto Warmbier. Of course, the crew, 82 sailors who were held in

7 captivity for 11 months, from January 1968 to December 1968,

8 they were treated to horrific physical and mental punishment,

9 abuse, torture. And they were forced to sign, write confessions

10 of committing the crime of espionage, spying on North Korea.

11 And in these frequent confessions, the crew became

12 creative, and they would use a word called paean, p-a-e-a-n, to

13 refer to the North Korea leader and the system, and they would

14 read: We paean great leader Kim Il-sung; We paean the

15 Democratic People's Republic of Korea. And the North Koreans

16 looked the world up in the dictionary and were very pleased with

17 its definition, we admire, worship.

18 And also, the crew would send out signals they were doing

19 all this under duress when they were forced to pose for photo

20 ops in their uniforms. They would sit there with their middle

21 finger extended under their chin or over the table. And this

22 was a sign to the United States government that they were forced

23 to undergo these bogus show photo ops. And when the North

24 Koreans asked what they were doing with their middle finger

25 extended, the crew very creatively replied that this is a,

 117

1 quote, special Hawaiian good luck charm.

2 So we see Otto making up stories. There's so many

3 inconsistencies in the confession, how his family, his father

4 barely makes enough money to support his family. At the 7:51

5 mark of the video, I remember Otto mentioning, quote, I was

6 desperately in need of a car to drive to my summer job, when he

7 was to work in Manhattan on Wall Street. His parents seeing

8 that would clearly understand that he's under duress.

9 So I see the historical parallels of the North Korean state

10 abusing U.S. detainees and the detainees doing their best to try

11 to send out a message to the outside world.

12 Q. And I know you've related to me, and can you relate to the

13 Court, in the case of the Pueblo and that creative explanation

14 they gave for the middle finger, was that -- did that

15 explanation hold up, or were they found out at some point, and

16 what happened?

17 A. Unfortunately, a very popular U.S. weekly magazine carried

18 an article explaining the double entendre, the hidden message,

19 and thereafter, the crew was treated to even more cruel physical

20 punishment.

21 Q. Now, has -- you've related the history. Has North Korea

22 itself ever acknowledged that it mistreats detainees?

23 A. Never. And North Korea was first placed on -- designated

24 as a State Sponsor of Terrorism in the wake of two North Korean

25 agents planting, leaving a timed bomb in the overhead bin of a

 118

1 Korean airline, civilian aircraft, on November 29th, 1987, in an

2 effort to deter athletes and tourists from visiting South Korea,

3 North Korea's main rival Korean state, when South Korea was the

4 host in 1988 Summer Olympics. The plane took off from Baghdad.

5 It stopped in Abu Dhabi, and the two North Korean agents, posing

6 as father and daughter with fake Japanese passports, they got

7 off the plane. The plane went on towards Thailand and blew up

8 mid-air. Everyone on board, 115 people, were killed.

9 Naturally, the authorities looked for the two people who

10 got off the plane, tracked them down, and the two North Korean

11 agents, as they were ordered to, trained to, they tried to

12 commit suicide by eating cyanide capsules. The elderly man was

13 successful in his suicide attempt, died. The woman was not

14 successful. She was taken to South Korea, interrogated, and

15 they confessed that this act of terrorism was ordered personally

16 by Kim Jong-il, the heir apparent and the father of the current

17 leader.

18 And even in such cases where there is ample evidence, a

19 North Korean agent confessing, and even before that, in 1983, a

20 bomb went off at the Martyr's Mausoleum in Rangoon, Burma, for

21 the visiting South Korean head of state, South Korean president.

22 The bomb went off prematurely before he arrived on the scene,

23 but his officials, including the foreign minister, were there.

24 It led to the death of 17 high-ranking South Korean officials

25 and four Burmese. The North Korean agents were apprehended

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1 immediately thereafter and confessed.

2 But in all these cases, North Korea adamantly denies any

3 culpability, any knowledge, any involvement, and actually

4 deflects the blame on the United States. So the fact that North

5 Korean authorities have denied any kind of wrongdoing in the

6 case of Otto Warmbier is consistent with their lies, strategic

7 deception, denial, and deflection in the past.

8 Q. I want to ask you a series of questions about hostage

9 taking, which is at issue in this case. First, let me ask, are

10 you familiar with the definition of hostage taking under U.S.

11 law?

12 A. Yes, I am.

13 Q. In your affidavit, you say that North Korea has

14 historically used American prisoners as a means of furthering

15 strategically timed foreign relations goals. Can you say what

16 you mean by that, tell the Court what you're talking about

17 there?

18 A. So Mr. Hawk mentioned the case of Laura Ling and Euna Lee,

19 two young American journalists, ethnic Asian background, who

20 work for Current TV in San Francisco, in part owned by former

21 Vice President Al Gore. They were detained by force in an

22 extrajudicial way. North Korean border guards ran into the

23 Chinese border, into Chinese territory, and physically dragged

24 the two young women back into North Korea in March 2009.

25 Now, as we recall, in 2009, this is early in the Obama

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1 Administration, when President Obama -- when then-candidate

2 Senator Obama said in 2008 during the campaign that he would be

3 willing to meet with dictators, Iran, North Korea, and so on,

4 many North Korea pundits assumed that North Korea would behave,

5 would not resort to provocations and try to take advantage of

6 that overture once Barack Obama had been elected.

7 North Korea doesn't operate that way. When North Korea

8 sees a weakness, uncertainty, a young, inexperienced U.S.

9 president dealing with an unprecedented international crisis,

10 two very costly, unpopular wars in Iraq and Afghanistan, that's

11 when North Korea comes out swinging historically.

12 And I can provide other examples. So in March, North Korea

13 had a very good added layer of security by detaining U.S.

14 citizens as North Korea did. In April -- April 5th, when

15 President Obama made his first foreign visit overseas, which was

16 to Europe, and just hours before he was to give his first major

17 foreign policy speech in the Czech Republic on a world without

18 nuclear weapons, North Korea, what does it do? It fires off a

19 long-range missile for the first time in three years. The

20 previous event was on December 12, 2012.

21 And then the next month, in May, North Korea conducts the

22 nation's second nuclear test. The first came in October,

23 October 9th, 2006. So in three years -- it had been three

24 years. And North Korea did this test, nuclear test, on

25 May 25th, which was Memorial Day in the United States. North
 121

1 Korea shows a propensity to resort to a major provocation on

2 both American national holidays, as well as theirs and

3 occasionally the Chinese. Why? Because the impact is much

4 greater. The psychological pressure is much greater, pressure

5 to respond, to come up with a response, and the response usually

6 means, after a hiatus, a decent interval, return to

7 negotiations, with bigger concessions in tow.

8 So 2009, we can see that North Korea had an added incentive

9 in hostage taking, and when President Bill Clinton flew into

10 Pyongyang in August that year, that created this mirage, in my

11 view, this illusory hope on the part of the U.S. government that

12 North Korea was willing to change, become more amenable to

13 negotiations. There was the false expectation that now we could

14 conduct normal business with North Korea.

15 And in December, early December 2009, the U.S. Special

16 Representative for North Korea policy, Ambassador Stephen

17 Bosworth, former ambassador to South Korea, flew into North

18 Korea for talks.

19 So I see calculated provocation, hostage taking as North

20 Korea is preparing for a major provocation like its first

21 nuclear test in three years, its first long-range missile test

22 in three years.

23 And the same goes all the way back to the '50s and the

24 '60s, the seizure of the Pueblo, January 23rd, 1968; a commando

25 raid with the express purpose to assassinate the South Korean

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1 president two days before that, on January 21st, 1968; killings

2 of South Korea civilians later in the year.

3 And also early in the Nixon administration, on

4 Kim Il-sung's birthday, April 15th, North Korean jets attacked

5 and shot down in international airspace a U.S. spy plane 90

6 miles off North Korea's coast, clearly in international

7 aerospace, on Kim Il-sung's 57th birthday, April 15th, killing

8 all 31 servicemen on board.

9 North Korea knows when to push the envelope, because North

10 Korea read international environment correctly. The United

11 States in 1968 is bogged down in the war in Vietnam, is afraid

12 of having to prosecute two costly wars simultaneously in east

13 Asia, therefore most unlikely to retaliate with military force

14 or with any kind of even financial pressure.

15 So North Korea is very good at this.

16 Q. Okay. Can I -- and I'll ask my question slow. Can I try

17 to summarize a couple elements of that? One is, I understand

18 you to say they engage in provocations, and provocations can

19 include hostage taking, but also, you know, nuclear detonations,

20 assassinations, that type of thing; is that right?

21 A. Yes. Hostage taking, many people say, is a propaganda

22 victory, especially when the high-profile former U.S. president

23 comes to free them.

24 But it goes beyond that. North Korea thinks two steps

25 ahead of such conventions. For North Korea, what's more

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1 important in eventually perhaps releasing the prisoner, U.S.

2 prisoner, is that it really resets the stage, instills in the

3 United States that North Korea is now a reasonable party and

4 is -- now thereby, U.S. is compelled into making more economic

5 and political concessions.

6 So it's a very crafty game they play. Hostage taking has

7 a -- serves various purposes for the North Korea state.

8 Q. And I want to -- and so in releasing a hostage, they can

9 make them look like they've given something and can make the

10 negotiations --

11 A. We've seen that with Secretary Pompeo, who came back with

12 three U.S. detainees in May this year, also when former

13 President Jimmy Carter won the release of a Boston resident,

14 Aijalon Gomes, who was detained from January to August 2010.

15 But in my view, these are false expectations. North Korea

16 is doing, by releasing U.S. prisoners at a time of its own

17 choosing, something that they never should have done anyway,

18 detain U.S. prisoners. So there's the illusion of a fake

19 concession, but that's very much in North Korea's interest to do

20 that, to put on that kind of charade.

21 Q. And can you -- one piece of this as you've relayed it,

22 North Korea will often have a former high-ranking U.S. official

23 or present official come over. Can you just tell the Court,

24 what value does that give the regime at home? You mentioned the

25 word propaganda. How is that useful to them as propaganda?

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1 A. In the tradition of Chinese empires, North Korea says

2 unabashedly, quite frankly, that this is a tributary mission.

3 In the past, China, as the center of the universe as a

4 predominant power, would exercise tributary relations. The

5 smaller tributary states would pay homage to the Chinese emperor

6 and then be rewarded.

7 So North Korea says a high-profile visit or visit by a

8 high-profile U.S. government official is a tributary mission in

9 recognition of the virtual greatness of their great leader.

10 But North Korea, the regime, does not suffer from a

11 credible uprising or challenge to its rule. Burnishing its

12 credentials is of great utility, but it is not essential.

13 What is more of utility, of greater utility to the North

14 Korea state, again, is to compel the United States to negotiate

15 from a position of weakness and to have the false expectation

16 that things can improve from this point on. So hostage taking

17 is a very well-honed craft, a tool of North Korea's diplomacy.

18 Q. If North Korea is actually taking these Americans you've

19 described into custody for political purposes, why would it

20 bother to give them, in some cases, a trial and have the

21 confession? Why does it even bother with those steps?

22 A. Mr. Hawk mentioned that North Korean officials say very

23 boldly, unabashedly, that there are no human rights problems in

24 their country. And North Korea is unique. It's the only

25 country in the world that says, We are a paradise, workers'

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1 paradise, everything is perfect, we have nothing to envy. So

2 there is, I guess, an internal need to maintain that kind of

3 illusion that North Korea is a high-functioning free nation

4 based on the principles rule of law. So North Korea goes

5 through that charade.

6 And of course, the formal name for North Korea, Democratic

7 People's Republic of Korea, DPRK, the word "democratic" is in

8 there. So North Korea puts on show trials. North Korea

9 maintains the semblance of normalcy.

10 But as the UN Commission of Inquiry on Human Rights in the

11 DPRK, Mr. Hawk mentioned, published in February 2014, states the

12 nature, gravity, and scale of crimes against humanity committed

13 at the highest level of state reveal a state that has no

14 parallel in the contemporary world. North Korea is the world's

15 leading, the best qualified candidate for indictment at the

16 Hague, at the International Criminal Court for crimes against

17 humanity.

18 Q. Are you familiar with the timeline of Otto Warmbier's

19 detention --

20 A. I am.

21 Q. -- by North Korea?

22 A. Yes.

23 Q. And is that because you followed, you learned it through

24 this case or because you followed the events at the time they

25 were actually occurring?

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1 A. I followed the events at the time.

2 Q. In your opinion, did North Korea seize and maintain custody

3 of Otto in order to further its policy goals?

4 A. I do.

5 Q. And do those policy goals include compelling a third party

6 like the United States to do or abstain from doing an act as an

7 explicit or implicit condition for the release of Otto?

8 A. Certainly. And as it was mentioned earlier, Otto was

9 detained on January 2nd, 2016. 2016 was an election year in the

10 United States. So there's some uncertainty. And North Korea

11 had not tested a nuclear device in three years. And four days,

12 just four days after detaining Otto Warmbier, North Korea

13 conducted a nuclear test on January 6th, which is two days shy

14 of Kim Jong-un's birthday. And then a month later, on

15 February 7th, North Korea conducted a long-range missile test

16 for the first time in three years. And also, later in the year,

17 on September 9th, which is Nation Founding Day in North Korea,

18 DPRK founding day, North Korea conducted another nuclear test.

19 North Korea conducted its first submarine launch, ballistic

20 missile test, on April 24th of that year.

21 So North Korea had been planning to conduct various

22 provocative weapons tests all along, and to have a young

23 American detainee would have provided North Korea not only with

24 an added layer of security, a security blanket, but have a

25 useful pawn with which North Korea could compel the U.S.
 127

1 government, not only not to punish North Korea in any meaningful

2 way, but to make more concessions once North Korea changes its

3 tune and calls for talks with the United States.

4 Q. Have you viewed the video released by North Korea that

5 includes the supposed confession by Otto?

6 A. I have.

7 Q. In your judgment, what was North Korea attempting to

8 accomplish through that confession?

9 A. Well, as valiantly as Otto tried to signal that he's saying

10 all this under duress with all those inconsistencies, the

11 Friendship United Methodist Church having $42 million in his

12 bank and how Otto himself is expected to pay for half, $200,000,

13 for his younger siblings' college education and so forth, it was

14 amply evident to me in that Otto was forced to repeat "hostile

15 U.S. policy." That's a North Korean staple stock phrase,

16 "hostile U.S. policy." He mentioned that phrase three times.

17 He mentioned, of course, the CIA putting him up to this, this

18 was an act, a crime against the DPRK, against the North Korean

19 state.

20 So in doing so, North Korea raises the stakes for the

21 United States. North Korea sends the message that North Korea

22 is quite serious it wants a serious compensation, concession

23 from the United States. It really paints the U.S. into a

24 corner, as North Korea is preparing to conduct various weapons

25 tests. So it's, in a perverse manner of speaking, very rational

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1 for a country like North Korea to resort to such extrajudicial

2 tactical maneuverings to detain an innocent U.S. prisoner.

3 Q. I want to go back over a couple of things and make sure I

4 understood you. In your opinion, is the fact that if they could

5 tie Otto's actions supposedly to the U.S. government, that that

6 creates a stronger hand for them to play in holding him or

7 releasing him than, for example, someone who crossed the border,

8 you know, illegally, or some other offense that's not tied to

9 the U.S. government?

10 A. Yes.

11 Q. And I think you had mentioned that you recognized certain

12 words that Otto spoke as words from the regime. Can you talk

13 about some of the words that you noticed particularly?

14 A. Well, I mentioned U.S. hostile policy. That's quite

15 evident. And there were other misnomers that carry Korean --

16 intrinsically Korean connotation. I just mentioned the notion

17 that he would be, Otto would be as the eldest child responsible

18 for subsidizing, for helping out on his younger brother and

19 sister's college education. That's considered the virtue

20 traditionally, historically, in Korea, in both South Korea and

21 North Korea. The eldest child is often expected to make great

22 sacrifice so that his younger siblings can have an opportunity

23 to attend college and so on, to really make financial

24 contribution to the family. So I'm sure that's a North

25 Korea-imposed material in Otto's confession.

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1 Also, the way Otto mentioned U.S. administration

2 repeatedly, U.S. administration, DPR Korea instead of DPRK, or

3 the Democratic Republic of Korea. These are North Korean

4 conventions. There were many strange phases, like "my quietest

5 boots for sneaking" and so forth. These are all clumsy North

6 Korean contraptions, in my view.

7 So there's no doubt in my mind that this was a coerced

8 confession under great duress, perhaps even threat of death.

9 Q. And again, I think that gets me into the next topic I

10 wanted to cover with you, which is questions related to torture.

11 Are you familiar with the definition of torture under U.S.

12 law?

13 A. Yes.

14 Q. And you are familiar with the facts of Otto's condition

15 such as they are known; right?

16 A. Yes.

17 Q. And that includes reviewing some of the other affidavits

18 submitted by doctors in support of our motion for judgment?

19 A. Yes.

20 Q. Okay. In your opinion, was Otto subject to torture while

21 held by North Korea?

22 A. It is far more likely than not, in my view, yes.

23 Q. And in summary fashion, what's the basis for your opinion

24 in that regard?

25 A. Because this is not only a routine method of interrogation,

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1 using torture, physical and mental pressure, physical abuse and

2 mental pressure to extract confessions from both North Korean

3 prisoners and foreign nationals, but I would venture to even

4 make the point to argue that North Korean interrogators would

5 have found it unpatriotic not to use torture to get what they

6 want. That is, to make a conscientious or any kind of decision

7 for any reason not to resort to torture in trying to coerce a

8 confession from a prisoner of high value would be something

9 tantamount to treason.

10 Q. Even if the person would confess otherwise, it might be

11 treason to not use torture. Why is that?

12 A. Because torture is such a staple of North Korea's state

13 craft. It is widely used and condoned. There is no taboo.

14 There are no moral qualms to using torture. North Korea has

15 shown, the state has shown little regard for human life. In

16 that landmark UN report that I mentioned, 372 pages long, it

17 details -- the report details North Korea's crimes against

18 humanity, which of course has a statutory definition under

19 Chapter 7 of the Rome statute of the International Criminal

20 Court, widespread systematic attack against the civilian

21 population with knowledge of the attack, with intention. What

22 kinds of attacks? Enslavement, murder, extermination, forcible

23 deportation, transfer of population, disappearance of person,

24 torture, restriction of -- severe restriction of civil liberty,

25 crimes of a sexual nature, attacks against various political

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1 groups or groups based on gender, religious, ethnic backgrounds

2 and so on, and apartheid.

3 The report comes out with a novel definition of crime

4 against humanity. Quote, knowingly causing prolonged

5 starvation, deliberate mass starvation. And it makes a

6 compelling case with evidence in that report, pages 144 to 208.

7 My point here is, the North Korean famine that killed

8 upwards of 2 million people in the late 1990s was a man-made,

9 man-enforced famine. That shows you the North Korean state

10 shows no regard for human life. So to use torture on its

11 prisoners who are very useful to the state or who may have said

12 something wrong about the state is standard practice.

13 Q. As a part of your basis -- I think you said it before, but

14 I just wanted the record to be clear -- your observations of the

15 coerced statement, as you described it, that Otto was made to

16 give by the North Koreans?

17 A. Absolutely.

18 Q. I want to ask you, you've referenced a couple of times the

19 history and your knowledge of sanctions that have historically

20 been imposed. Are you familiar with the history of U.S. and

21 international sanctions against North Korea?

22 A. I am.

23 Q. And I think you described earlier that those really began

24 in what time frame in terms of a ramp-up of sanctions in the

25 more recent time frame?

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1 A. Right. Until 2016, to give you just one example, if I may,

2 the number of designations, blacklistings by the U.S.

3 government, when it came to North Korea as of 2015, there were

4 fewer than 50 entities, which means individuals as well as

5 agencies. 800 in the case of Russia, 600 in the case of Iran,

6 over 160 in the case of Myanmar, over 160 in the case of Cuba.

7 The entire government, including the head of state and his wife,

8 of Zimbabwe have been designated for human rights violations.

9 50 North Korean entities, 42 actually.

10 So U.S. sanctions on paper and in practice against North

11 Korea were very weak until 2016, until President Obama signed

12 into law U.S. Sanctions and Policy Enhancement Act of 2016.

13 So North Korea knew of the sanctions legislation that

14 eventually passed virtually unanimously, unanimously in the

15 Senate and with just two objections in the House in

16 February 2016. So again, having Otto as a political pawn would

17 have been in North Korea's interest as it was preparing for

18 various weapons tests and as the U.S. was gearing up to enforce

19 sanctions against North Korea for the first time ever in a

20 meaningful way.

21 Q. Thank you. And since those sanctions in 2016 that you

22 described, have there been additional sanctions imposed by the

23 United States, whether on North Korea as a state or on

24 individuals within North Korea?

25 A. Yes, there have been two more legislations, tough sanctions

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1 laws on North Korea passed, also executive orders, also

2 designations, supplemental designations, blacklistings of North

3 Korean officials and entities by the Treasury Department, as

4 well as by the State Department.

5 Q. And has there been any recent sanctions of individuals that

6 have been associated with Otto Warmbier?

7 A. Most recently, on December 10th, so last week, on the

8 occasion of the 70th anniversary of the proclamation by the UN

9 General Assembly of the U.S. Declaration of Human Rights,

10 December 10th which is known as Human Rights Day, on the 70th

11 anniversary, the U.S. government designated three high-ranking

12 North Korean officials of human rights violations and explicitly

13 mentioned Otto Warmbier as the rationale for that designation of

14 December 10th, 2018.

15 Q. Thank you. And in addition to sanctions imposed by

16 Congress or by the Executive, are you familiar that there has

17 been prior cases in U.S. federal court that have involved award

18 of compensatory and punitive damages against North Korea?

19 A. I am.

20 Q. And do those include cases related to the Pueblo incident,

21 which you've described, and Mr. Kim's case that Professor Hawk

22 also described?

23 A. Yes, I'm familiar with both cases. In the case of Reverend

24 Kim Dong-Shik, his surviving family sued the DPRK, and they were

25 awarded $330 million in both compensatory and punitive damages.

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1 Q. And after all those sanctions and all those awards from

2 courts, in your opinion, has North Korea's conduct with respect

3 to the treatment of individuals and human rights continued?

4 A. It has continued and, in my estimation, shall continue in

5 the foreseeable future unless the DPRK is presented with a

6 credible deterrent, a credible hefty fine, unless the U.S.

7 government is able to send a strong message to North Korea that

8 such hostage taking, abuse of civilians, weapons provocations,

9 and so on must stop. Unless there's a financial disincentive,

10 North Korea will just do what it has over the past seven

11 decades.

12 North Korea is poor, but the government is not poor. They

13 have money to build nukes. They have money to build

14 intercontinental ballistics missiles. So unless there is a

15 credible deterrent in the form of non -- I advocate nonlethal

16 deterrents. Unless North Korea is presented with a credible

17 financial disincentive, this kind of behavior, I believe, shall

18 go on.

19 THE COURT: Do you have any information that North

20 Korea pays attention to judgments issued by courts in the United

21 States?

22 THE WITNESS: Your Honor, North Korea, for us living

23 in a free society, North Korea is occasionally a curiosity,

24 occasionally a compelling challenge, an issue, oftentimes a

25 laughing stock. They're such a strange combination of medieval

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1 morays and buffoonish bellicosity, we laugh at them, we

2 patronize them.

3 To North Korea, on the other hand, reading the United

4 States, it's a matter of life and death. It's a matter of

5 survival. They're very crafty. We continually tend to

6 patronize North Korea, underestimate North Korea. But even in

7 the foreign ministry in the North Korean government, Kim Jong-un

8 traveled to the United States, met with Secretary Pompeo in May

9 and met with President Trump on June 1st of this year. He's

10 been doing this for 30 years. This is a serious job, reading

11 the United States, ascertaining U.S. intentions, the political

12 environment.

13 So North Korea is very, I would say, keenly aware of, has

14 arguably greater knowledge of the United States than the U.S.

15 has of North Korea.

16 BY MR. HATCH:

17 Q. If I could just follow up on that question, are you aware

18 if North Korea has made any public statements or issued any

19 statements in relation to what happened to Otto Warmbier or

20 events since Otto's return, his death, or their listing as a

21 State Sponsor of Terrorism?

22 A. I am. I think North Korea was taken aback, and we see

23 North Korea behave in a very sensitive way when there is a

24 high-profile condemnation of its human rights violations. And I

25 think North Korea was caught offhand to learn that the family,
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1 the parents of Otto Warmbier were brave enough not to resort to

2 self-censorship, silence, which would be the easier course, but

3 actually to summon the courage to sue the DPRK. I think North

4 Korea was surprised by that, and we see North Korea resorting to

5 denial, denial that North Korea did anything wrong in the way it

6 treated Otto.

7 MR. HATCH: Thank you. No further questions, your

8 Honor.

9 THE COURT: All right. You're excused. Thank you.

10 MR. HATCH: Your Honor, I have two quick housekeeping

11 matters.

12 THE COURT: Yes.

13 MR. HATCH: Number 1, I know the Court had asked

14 Ms. Warmbier a question about finding out about the botulism

15 issue. And the Court's question may have been how -- it was how

16 did Ms. Warmbier find out, but I just want to point out, in

17 Dr. Kanter's affidavit, which is part of our filing, on

18 paragraph 13, he relates that there was a medical certificate,

19 which is actually dated in June 2017, so very recent to Otto's

20 return, that indicated food poisoning, parens, botulism, as the

21 cause of his condition. I wanted to point that out.

22 THE COURT: Thank you for that reminder. When I asked

23 the question, I was trying to remember where had we learned

24 about the allegation of botulism. All right. Thank you.

25 MR. HATCH: Last, your Honor, a point you asked last

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1 Friday at the status conference about Mr. Collins, and I said he

2 was overseas. And I found out last night, actually, that he is

3 here in the area. He traveled over for another purpose. And so

4 we had some communications. We're not able, given the lack of

5 foreknowledge of that, to bring him here today before you, but I

6 didn't want you to think I had misspoke last -- I didn't know he

7 was going to be here this week when I spoke last week.

8 THE COURT: Thank you for that clarification. And I

9 think we've had plenty of expert testimony, plus the

10 declarations already in the record.

11 You said something about putting into evidence some medical

12 records at our status conference on Friday. Are you still

13 planning on doing that?

14 MR. HATCH: Your Honor, may I have a moment to confer

15 with the client -- or Mr. Cullen?

16 MR. CULLEN: Your Honor, the testimony would be that

17 the bill from the hospital, the gross bill from the hospital

18 would be about $100,000 and that there was insurance coverage

19 that covered part of that, and I think the hospital, as its

20 right to do, negotiated downward.

21 My understanding, at least in Virginia under the collateral

22 source rule, that the $100,000 would be the amount, regardless

23 of the fact that there were insurance proceeds that paid some of

24 it, the policy being it's the damage -- what are you going to

25 do, give the insurance benefit or give the damage to the

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1 plaintiffs. And it would be $100,000.

2 In all candor, that's an approximate amount. If your Honor

3 would like us to submit something in writing giving you the full

4 amount, we can do that.

5 THE COURT: It's up to you. It's your claim.

6 MR. CULLEN: Thank you.

7 THE COURT: So you can support the evidence in the way

8 you think is most appropriate. But there was zero evidence in

9 the record. That's why I brought it to your attention.

10 MR. CULLEN: Thank you, your Honor. I understand.

11 THE COURT: All right. With that, is there anything

12 else you would like to cover before I close the hearing?

13 MR. HATCH: Unless the Court has any questions, that

14 concludes the evidence we plan to present today. We appreciate

15 the opportunity to present the evidence and the Court's time.

16 THE COURT: Thank you. I think the evidence presented

17 in a U.S. court straight from people who are free to speak is

18 important evidence, not only for this judge in resolving this

19 case, but as Professor Lee said, I think it's important to have

20 a judicial record of it for broader purposes as well.

21 With that, the Warmbiers have my greatest condolences. You

22 are all excused.

23 (Proceedings adjourned at 1:36 p.m.)

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1 CERTIFICATE OF OFFICIAL COURT REPORTER

3 I, Sara A. Wick, certify that the foregoing is a

4 correct transcript from the record of proceedings in the

5 above-entitled matter.

9 /s/ Sara A. Wick February 12, 2019

10 SIGNATURE OF COURT REPORTER DATE

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