Will Evidence Emerge from the Seizure Search of the Martial Law Situation Room? [Yang Nak-gyu's Defence Club]

Search and Seizure Must Be Conducted Before Concealing Martial Law Documents
JCS and Police "Additional Consultation on Search and Seizure Methods"

The police investigating the 12·3 emergency martial law incident are drawing attention to whether they will attempt another search and seizure of the Joint Chiefs of Staff building, where the Martial Law Command was established, on the 12th. The Joint Chiefs of Staff stated that they will hold additional consultations with the police because the building contains many state secrets, but there are also concerns about possible unauthorized disposal and concealment of records.

Yonhap News

The Joint Chiefs of Staff announced around 6:12 p.m. the previous day in a notice to reporters with access to the Ministry of National Defense, stating, "The search and seizure of the former Martial Law Command by the National Investigation Headquarters’ Special Investigation Unit for Emergency Martial Law was not conducted today," and added, "Further consultations will be held regarding this." The attempted search and seizure at the Joint Chiefs of Staff building targeted facilities and equipment previously used by the former Martial Law Command, not the Joint Chiefs of Staff itself. The charges include rebellion, with the main targets identified as the President’s office, the Cabinet meeting room, the Security Office, and the Joint Chiefs of Staff building. The Joint Chiefs of Staff’s command and control room housed the martial law situation room. Since this facility contains many state secrets, the Joint Chiefs of Staff plans to coordinate with the police on the search and seizure method. The Joint Chiefs of Staff stated, "The military is actively cooperating with the search and seizure."

The police’s decision to proceed with the search and seizure through consultation is due to the military’s special nature. The Criminal Procedure Act, which serves as the legal basis and procedural law for criminal justice activities including investigation, prosecution, and trial, contains provisions that restrict search and seizure in places handling national secrets.

Article 111 of the Criminal Procedure Act (Official Secrets and Seizure) states that when a public official possesses or stores items related to official secrets and reports this, the items cannot be seized without the consent of the affiliated public office or supervisory authority. However, the public office or supervisory authority cannot refuse consent except in cases where it harms the nation’s significant interests, thereby limiting refusal of investigation only to cases involving "significant national interests." Considering the nature of the Joint Chiefs of Staff as a place handling military secrets, it appears that such factors are being taken into account in this search and seizure.

However, there are concerns inside and outside the military that if the police delay the search and seizure, there may be attempts to unlawfully dispose of or conceal records. In 2018, the Defense Security Command of the Republic of Korea Army drafted a "martial law review document" during the impeachment phase of former President Park Geun-hye. The document contained response plans for scenarios such as the President’s resignation, impeachment, or emergency, as well as troop deployment plans. There were also indications of attempts to surveil civilians through a cyber-specialized team.

However, Ki Woo-jin, the former head of the 5th Division of the Defense Security Command, was accused of attempting to conceal the document by registering it as a level 2 secret produced during the Key Resolve (KR) or Ulchi Freedom Guardian (UFG) exercises. So Gang-won, a Major General and head of the 3rd Division of the Defense Security Command, and a former Lieutenant Colonel in charge of counterintelligence policy, Jeon (first name withheld), were also arrested for falsifying official documents, using falsified official documents, and electronic record offenses. Ki Woo-jin was sentenced to a fine of 5 million won in the appellate court, reversing the acquittal he received in the first trial last May.

Even if a search and seizure is conducted, there are concerns that securing evidence may be difficult due to the characteristics of soldiers using "Bihwa phones." "Bihwa phones" refer to anti-eavesdropping mobile phones mainly used by military commanders at the colonel level or above. These phones allow encrypted calls and texts and do not record conversations. Former Special Warfare Commander Kwak Jong-geun and former Capital Defense Command Commander Lee Jin-woo claimed that during the 12·3 emergency martial law, President Yoon Suk-yeol gave orders via mobile phone such as "pull out the members of the National Assembly," but it may be difficult to secure direct evidence supporting such claims.

A military official said, "The National Investigation Headquarters, the Corruption Investigation Office for High-ranking Officials, and the Ministry of National Defense Investigation Headquarters have agreed to operate a ‘Joint Investigation Headquarters’ regarding the emergency martial law incident," adding, "We plan to actively cooperate with the investigation."