South Korea Should Release Former U.S. Ambassador Morse Tan

The United States and the Republic of Korea have stood shoulder to shoulder for more than seventy years. Forged in the crucible of the Korean War, the alliance rests upon far more than mutual defense. It is grounded in a shared commitment to constitutional government, individual liberty, and the rule of law.

That is why the recent treatment of former United States Ambassador-at-Large for Global Criminal Justice Morse Tan deserves careful attention, not only because Ambassador Tan is an American citizen and former senior diplomat, but because the legal principles implicated extend well beyond one individual.

According to publicly reported information, South Korean authorities are pursuing possible criminal defamation proceedings against Ambassador Tan arising from public statements concerning President Lee Jae Myung. Police referred the matter to prosecutors, and authorities imposed and later extended an exit ban preventing him from leaving the country while the matter remains pending. Whatever one thinks of Ambassador Tan’s public statements, the issue presented here is whether a democratic ally should employ criminal process and an exit ban against an American scholar and former United States ambassador for engaging in political expression.

In a constitutional democracy, disagreement is ordinarily answered with more speech—not criminal prosecution.

The proportionality of the government’s response should concern every nation committed to democratic liberty. Criminal investigations, travel restrictions, and prolonged legal uncertainty are extraordinary governmental powers. Their use against political expression inevitably raises questions about whether the state’s response is necessary and proportionate to any legitimate interest. Those concerns are heightened because South Korea has voluntarily accepted international legal obligations protecting freedom of expression.

The Republic of Korea is a State Party to the International Covenant on Civil and Political Rights. Article 19 guarantees the right to seek, receive, and impart information and ideas of all kinds. While the Covenant recognizes that reputation may justify certain restrictions, those restrictions must be prescribed by law and demonstrably necessary and proportionate. The burden rests squarely on the government. Nowhere is that burden greater than when the state seeks to restrict political expression concerning public officials or matters of public concern.

The United Nations Human Rights Committee, the body charged with interpreting the ICCPR, has repeatedly emphasized that public officials should tolerate greater criticism than private citizens and has urged states to consider decriminalizing defamation altogether. General Comment No. 34 further warns that restrictions on political expression require especially careful justification and that criminal penalties can chill public debate. That is precisely the danger here. The question is whether criminal prosecution, particularly when coupled with an exit ban imposed upon a foreign citizen and former senior diplomat, is a proportionate response to political expression. For allies committed to liberal democracy, that question matters.

Diplomatic comity is built upon mutual respect between sovereign nations committed to the rule of law. That principle counsels exceptional restraint before employing criminal process against a former senior official of an allied government whose alleged offense arises from public commentary concerning political affairs. South Korea remains one of America’s closest friends in Asia. Its remarkable constitutional development since democratization has rightly earned international respect. Precisely because of that reputation, friends should be willing to speak candidly when important liberties appear vulnerable.

The deeper issue is not merely treaty compliance. Article 19 of the ICCPR and the First Amendment of the United States Constitution reflect a common principle rooted in the Anglo-American constitutional tradition: government exists to secure liberty, not to supervise political opinion. The rule of law does not empower the state to silence disfavored voices. It limits the state so that truth may be pursued through open debate, public reason, and the free exchange of ideas.

This principle reaches beyond positive law to first principles. It rests upon the enduring understanding that every person possesses inherent dignity, conscience, and moral agency that precede the authority of the state. Government therefore does not create the freedom to speak; it recognizes and secures a liberty that already exists. Political expression cannot become a privilege granted—or withdrawn—by those holding political power. A constitutional republic must not transform political disagreement into criminal liability.

The South Korean government should immediately lift the exit ban and permit Ambassador Tan to return to the United States. Doing so would strengthen its standing as a constitutional democracy committed to liberty, proportionality, and the rule of law, rather than one dependent upon criminal process to answer political disagreement.

The ultimate question is larger than the fate of one distinguished scholar and former diplomat. It is whether free societies will continue to trust the marketplace of ideas—or increasingly enlist the criminal law to referee political disagreement. The measure of a constitutional democracy is not how it treats speech with which it agrees. It is how it responds to speech it finds unwelcome. Free nations thrive when governments trust liberty more than coercion. South Korea should once again demonstrate that confidence by permitting Ambassador Morse Tan to return home.