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American Legal Dilemmas and Korean Elections


In 2002, the operation of the ROK-U.S. Status of Forces Agreement (SOFA), which triggered, in turn, the body of laws and procedures governing the U.S. military justice system, placed the U.S. in a position where its resolution of a legal issue likely had a substantial impact on the outcome of a ROK presidential election. In 2007, the operation of the ROK-U.S. extradition treaty again placed the U.S. in a position where its resolution of a legal issue appeared to have the potential to sway the outcome of yet another ROK presidential election. This article describes both chains of events, focusing on the critical junctures where U.S. officials made decisions demanded by each legal process, and argues that legal decisions in such charged and volatile circumstances should hew to three criteria: decision-making based on the intrinsic merits of a case, without regard to external consequences; following settled procedures; and ensuring the maximum level of transparency permitted by those procedures.

Mark Kulish is a first-year M.A. student at SAIS, concentrating in Korea Studies. He earned his B.A. in History at Yale University and his law degree at the University of Colorado School of Law. He served for many years in the U.S. Army, Judge Advocate General’s Corps, in Germany, Italy, and Korea. From 2006 to 2008, he was detailed from the Department of Defense to the Department of State, Office of the Legal Adviser. Just before coming to SAIS, he served for four years as the military judge for all Army courts-martial in Korea and Japan.