They should be doing the opposite. The militarization of the southern border not only stigmatizes migrants and asylum seekers but also undermines core legal principles designed to protect democracy and individual liberty.

Biden and Abbott Escalate Border Deployments

Here’s what we know about the current deployments. Last week, the Biden administration announced that it is sending 1,500 active-duty soldiers to the U.S.-Mexico border for 90 days. These troops will reinforce 2,500 federalized National Guard personnel who are already at the border as part of a deployment that dates to early 2018. According to the Pentagon, these additional personnel will assist Customs and Border Protection (CBP) with “ground-based detection and monitoring, data entry, and warehouse support.” 

For his part, Abbott on Monday announced the creation of a “Texas Tactical Border Force,” a unit of specially trained Texas National Guard personnel who will “intercept and repel” migrants attempting to cross the border at various “hot spots.” Abbott has already deployed these troops to El Paso and parts of the Rio Grande Valley, where they will join several thousand Texas National Guardsmen who are already at the border as part of Operation Lone Star, a military and state police mission that Abbott launched in early 2021.

While the United States’ armed forces have a long history of operating at the U.S.-Mexico border — indeed, the border was created through U.S. military force — for much of the nation’s history their activities were ad hoc rather than routine. The military was sent to the border in response to events such as the Mexican Revolution and left once things had returned to normal. This began to change in the 1980s, as President Ronald Reagan expanded the “War on Drugs” and inserted the armed forces into federal law enforcement’s counter-drug efforts at the border. Over the next 20 years, the military’s law enforcement activities spilled over, first informally and then officially, into the realm of immigration enforcement. The military also developed administrative and organizational frameworks — chief among them, Joint Task Force North — that entrenched their involvement in the United States’ approach to immigration enforcement and border security. 

In the 21st century, as anti-immigrant sentiment has grown among large portions of the American public, presidents have begun to deploy thousands of troops to the border at a time. These mass deployments offer a more visible means of “securing the border” than the routine but comparatively small-scale military missions that characterized the military’s border operations in the 1980s and 90s. President George W. Bush began the pattern of mass deployments with Operation Jump Start in 2006, but they have persisted across the Obama, Trump, and Biden administrations. Indeed, the current federal military mission at the border was initiated by former President Donald Trump in 2018 under the name Operation Guardian Support. Yet it has been continued for more than two years by the Biden administration, which dropped the name “Guardian Support” but otherwise shows no signs of winding the mission down.

Border Militarization Undermines the Posse Comitatus Act, Stigmatizes Immigrants, and Harms the Military Itself

The use of federal military forces for law enforcement — including the enforcement of immigration laws — violates a tradition in American law and political thought that rejects military interference in civilian affairs. The Founders viewed such interference as a fundamental threat to democracy and individual liberty, and sought to guard against it through, among other provisions, the Third, Fourth, and Fifth Amendments to the Constitution. Today, this tradition is most clearly embodied by the Posse Comitatus Act, which prohibits military participation in civilian law enforcement activities except when doing so is expressly authorized by Congress. 

Unfortunately, the Act is so riddled with gaps, loopholes, and ambiguities that it poses little practical barrier to the military’s involvement in routine civilian law enforcement at the southern border. For instance, when operating in so-called “Title 32” status — i.e., under state command and control, but pursuing a federal mission and paid by federal funds — the National Guard is not subject to the Posse Comitatus Act. Most of the federal border control missions performed by the National Guard have been in this status. In addition, the law provides no clear definition of what constitutes “law enforcement.” While certain activities, such as arrest and detention, clearly fall within that term, the government has construed many other activities, such as manning surveillance posts, to constitute mere “support” to law enforcement. Finally, even for activities that are clearly barred, the blunt hammer of criminal prosecution — the only remedy provided by the Act — provides little deterrent, given that no one has ever been convicted under the law (and there have been only two prosecutions).

By normalizing the use of soldiers to patrol the border over the past 40 years, the federal government has undermined the core legal principles that underlie the Posse Comitatus Act. It has also paved the way for Abbott’s Operation Lone Star. That might seem counterintuitive, as Operation Lone Star is, on its own terms, a challenge to federal authority. Texas has brazenly attempted to take the reins on immigration policy and border security, which are exclusively federal prerogatives under the Constitution. At the same time, however, the federal government’s routine deployment of thousands of troops to the border has given Abbott a degree of cover for both his militaristic approach and his bellicose rhetoric, which frames Texas’s actions in terms of “war” and “invasion.” 

The militarization of the border also contributes to a broader stigmatization of immigrants and securitization of U.S. immigration policy. Using the military to patrol the border suggests to the American public that migrants are security threats at best, enemy combatants at worst, instead of human beings fleeing chaos and persecution in the hope of finding safety and a better life. As anti-immigrant sentiment grows, policymakers are pushed to enact more draconian immigration policies and further militarize the border. These decisions, in turn, generate still greater anti-immigrant sentiment and inflict lasting harms on migrants who are caught up in the U.S. immigration system. 

The permanent presence of troops at the border is also bad for the military. A 2021 Army Times investigation into the federal border mission revealed an operation in disarray, due in large part to rampant drug and alcohol abuse by bored soldiers stationed in remote locations. At least 16 soldiers were arrested or confined that year alone, some for charges of sexual assault and one for manslaughter. Three members of a single 1,000-soldier unit based in McAllen, Texas, died during the year — all of them in separate, alcohol-related automobile accidents. Texas Guardsmen participating in Operation Lone Star have fared no better. They have been forced to endure poor living conditions and the state’s repeated failure to pay them on time. In just 13 months between September 2021 and October 2022, ten Texas Guardsmen stationed at the border died. Five died by suicide, with four of those deaths coming in just an eight-week span in late 2021. 

* * *

Instead of doubling down on military participation in law enforcement, the Biden administration should end the current military missions at the U.S.-Mexico border and dismantle the institutional frameworks that perpetuate them. Congress should also take action to strengthen the Posse Comitatus Act. It should extend the law to cover National Guard deployments in Title 32 status, amend it to provide a clearer and more expansive definition of what constitutes “law enforcement,” and establish meaningful deterrents, such as civil remedies and an exclusionary rule for evidence obtained in violation of the law. Finally, as Operation Lone Star has shown, state constitutions and laws often lack any meaningful restrictions on a governor’s use of their state’s National Guard forces. States should consider passing laws ensuring that the use of Guard troops to enforce the law is reserved for exceptional situations.

IMAGE: Immigrants seeking asylum in the U.S., who are stuck in a makeshift camp between border walls between the U.S. and Mexico, sit as a Customs and Border Protection officer keeps watch while other migrants are lined up to be transported on May 13, 2023 in San Diego, California. (Photo by Mario Tama/Getty Images)

The post As Title 42 Comes to an End, So Should Military Operations at the US-Mexico Border appeared first on Just Security.

The Biden administration is also rolling out a new set of policies designed to address asylum claims before migrants physically reach the U.S. border. It’s created a mobile app which people can use to schedule an appointment with immigration officials and the State Department is working on plans to open regional processing centers throughout the Western hemisphere.

The new measures could upend a simple idea at the heart of a complex immigration system: that people fleeing violence and persecution have the chance to find refuge in the United States. That change has massive implications for those who live in the U.S. and those trying to reach it.

To help us understand the end of Title 42 and what comes next we have Adam Cox, Michelle Hackman, and Cristina Rodriguez. Michelle is a reporter who covers immigration at the Wall Street Journal. Adam and Cristina are law professors at NYU and Yale respectively. They wrote a book called “The President and Immigration Law.”

Listen to the podcast (transcript available as well) by clicking below.

The post The Just Security Podcast: A New Era for U.S. Asylum? appeared first on Just Security.

Last night at midnight, the federal COVID-19 public health emergency declared in February 2020 officially ended. A host of emergency measures ended with it, including the notorious Title 42 border policy. Formally issued by the Centers for Disease Control and Prevention early in the pandemic and based on a law in Title 42 of the U.S. Code, that policy has authorized immigration officials to summarily expel migrants arriving at points of entry and across the U.S. southern border. Initiated by the Trump administration, this supposed public-health measure effectively became a border-control device, used to manage record numbers of migrants attempting to enter the United States, primarily from Central and South America. While its proponents have touted Title 42 as a means to manage historic pressures on the border and the states along it, its critics have condemned it as eviscerating U.S. asylum law, which provides protection to those fleeing persecution based on certain characteristics. According to the critique, the Title 42 order permitted border agents to turn away desperate migrants fleeing violence and humanitarian calamity without any consideration of the asylum claims the law entitled them to make.

The end of the Title 42 order will not make the underlying migration dynamics disappear. Well aware of these persistent humanitarian and political dilemmas, the Biden administration has announced a series of initiatives that aim to stave off a predicted post-Title 42 surge in arrivals, while also offering a long-term vision for the future of migration across the hemisphere–a vision based on organized processes rather than crisis management.

These initiatives – which combine new restrictions on access to asylum at the border with expanded and structured routes to humanitarian protection for the nationals of select countries – would transform the reach and purpose of asylum law. In so doing, the Biden administration may well leave many vulnerable people without any avenue of protection. But it may also be reimagining asylum law and humanitarian protection to respond to challenges that bear little relationship to the concerns that animated Congress’s passage of the Refugee Act more than forty years ago. The administration may also be trying to avoid the extreme political pressures generated by vivid media images of an “overrun” border–pressures that could undo the U.S. commitment to asylum and humanitarian protection altogether.

If we put the new announcements together with a number of other changes initiated by the Department of Homeland Security (DHS) and the Department of Justice (DOJ) over the last two years, we begin to see how President Joe Biden and his administration are following in the long tradition of presidential control over immigration law to shape contemporary policy, with Congress largely missing from action. It remains too soon to judge the extent to which these changes will lead the U.S. to shirk its legal obligations, the core of which is to refrain from returning individuals to persecution or torture (the obligation of non-refoulement). But taken together, the changes do seem likely to redefine the who of refugee protection – from the desperate migrant fleeing imminent catastrophe without the ability to plan or seek protection from home, to the would-be migrant with resources, safety, and time to apply for resettlement from abroad, through processes whose details we will only fully grasp as the administration and its international partners bring them into being.

Border Policy, Starting Today

The end of Title 42 means a return to a system where border enforcement is governed by Title 8 of the U.S. Code where federal immigration law is codified, rather than by public health authorities. This shift would have two principal effects. First, it would prohibit the government from expelling arriving immigrants without an opportunity to request asylum – replacing a fast and inexpensive border enforcement policy with a much slower one that requires far more money, personnel, and infrastructure. Second, returning to Title 8 enforcement would increase the consequences for migrants who are expelled after arriving. Title 42 expulsions carried literally no legal consequences; noncitizens could and did attempt repeated entries until they were successful. Under Title 8, however, noncitizens ordered removed at the border – even those who seek admission at a port-of-entry – are barred from re-entering the United States for at least five years. Moreover, they face stiff criminal penalties if they try to re-enter illegally after being ordered removed.

The Biden administration has been touting the return of these penalties, which officials hope will deter some migrants from making the journey to the southern border. But the administration also has made clear that it doesn’t want anything like a return to the pre-pandemic system of screening migrants for asylum upon their arrival. Far more important than the termination of the Title 42 policy, then, is the administration’s wholesale creation of a new system of humanitarian protection for migrants from Central and South America.

It is easy to miss that the administration is seeking to invent what looks like a new system, because its policies consist of complicated interlocking parts that have been rolled out not only in recent months, but also over the last two years.

The “Transit Ban” Rule 

Let’s start with the piece of the strategy that seems to resurrect one of the Trump administration’s efforts to limit asylum – the so-called “circumvention of lawful pathways” rule, sometimes referred to as the “transit ban.” This policy, which just went into effect, makes arriving migrants presumptively ineligible for asylum if they didn’t first apply for protection in a country through which they passed on their way to the United States. The rule contains three exceptions: for those who used a new phone app called CBP One to schedule their asylum appointment before arriving at the border; for those who applied for and received parole before arriving at the border (including through a series of new programs the administration has launched, as described in more detail below); and for those who arrive at the border in a medical emergency, facing an imminent and extreme threat to life or safety, or having survived a severe form of human trafficking.

Many have argued that the transit ban is a terrible (and even illegal) policy because very few, if any, of the countries through which migrants pass in Central America have functioning systems of humanitarian protection. This seems plausible. But the policy would arguably be irrational even if those other systems worked well. First, if the administration truly believed that migrants should seek protection in the countries they first enter, why would it make an exception for those who use a phone app to schedule their asylum screening appointments? Second, under the current rule, a noncitizen is exempt from the transit ban only if she was actually denied asylum by a transit country. That highlights the perplexing nature of the ban: if the U.S. government truly believes that transit countries have legitimate asylum screening systems, then one might think that an asylum denial from a transit country should create (rather than eliminate) a presumption against a grant by the United States.

While these features of the rule suggest that critics may be right to question its reasonableness, in the end the ban may be more misdirection than actual policy. Unless the transit ban’s emergency exception is widely used, which remains to be seen, the policy’s main effect may simply be to channel migrants through the other protection policies that the Biden administration has recently created. Indeed, the administration’s new asylum policy may in practice be close to the following rule:

No one is eligible for humanitarian protection unless they either: (1) apply through an in-country parole process; (2) use our CBP One process to schedule an asylum interview at a port of entry.

This reality highlights the importance of understanding the administration’s new parole programs and the policy embedded in the CBP One application process.

Expanding Parole

The parole power has been part of the Immigration and Nationality Act since it was enacted in 1952 and today permits the Secretary of Homeland Security to allow migrants into the United States on a “case-by-case basis” for “urgent humanitarian reasons” or “significant public benefit.” Parole is discretionary and therefore does not confer a secure status, but it does permit beneficiaries to apply for work authorization and receive a social security number. From the moment the parole power was added to the U.S. Code, presidential administrations have used it to permit tens of thousands of would-be migrants in peril to come to the United States, many of whom Congress later gave permission to remain permanently: Hungarians fleeing Soviet oppression in the 1950s; Cubans fleeing Castro in the 1960s and again in the 1990s; Vietnamese fleeing war; Haitians, Nicaraguans, and other Central Americans fleeing the violence of the 1980s and over the last decades. The Biden administration has been no different. Building on the parole power’s long history as an instrument of immigration and refugee policy, the administration had already used parole to authorize the entry of more than 77,000 Afghans after the withdrawal of U.S. troops and more than 100,000 Ukrainians as part of its Uniting for Ukraine policy.

In recent months, the Biden administration has announced a series of parole initiatives for nations that, of late, have accounted for a large portion of asylum applicants arriving at the southern border. In October 2022, the administration launched a parole program for Venezuelans, and this January it rolled out another program for Cubans, Haitians, and Nicaraguans. In its most recent announcement, the administration has pledged to continue already existing parole programs and launch a family reunification process for nationals from El Salvador, Guatemala, Honduras, and Colombia. It also has declared the opening of processing centers in Colombia and Guatemala, perhaps with more to come, to encourage migrants to apply for parole or other forms of admission to the United States from more distant locations, before making the perilous journey over land to the southern border. Combined, these policies have the potential to shift hundreds of thousands of annual applications for entry away from that border.

CBP One and the New Asylum Queue

For those who cannot or do not use in-country processing, the other option available to migrants seeking protection is to use Customs and Border Protection (CBP)’s app to schedule an asylum interview at a port of entry. How precisely this will work remains to be determined, and reports from the border in recent months have documented numerous (to-be-expected) glitches and frustrations with the technology’s functionality. But according to changes announced last Friday, it appears that CBP One has become a numerically limited and opaque queuing system. Migrants can register in the app well in advance of requesting an interview, and then each day CBP will run a “lottery” to select those who will receive interview slots – roughly 1,000 per day now, though CBP has promised to increase capacity. CBP also has said that, in awarding interview slots, it will prioritize those who have been waiting longer (presumably measured by date of registration in the app).

Like the asylum officer rule that the administration announced last year – a rule that would have asylum officers in DHS rather than immigration judges in DOJ consider initial applications for protection – this turn to technology reflects a systems-level effort to impose order and expedition on a cumbersome, inconsistent, and under-resourced screening process that has had enormous humanitarian, logistical, and political costs. Yet the CBP One app is about more than logistics. The technology also embeds a policy of numerically limiting access to the asylum process in the United States. Plenty of previous policies – from the Haitian interdiction policies at sea begun by the Reagan administration to the Obama and Trump administrations’ “metering” policies at the land border – have taken similar tacks. But the CBP One app formalizes this quota in the technology’s operation.

Beyond Asylum

The end of Title 42 thus doesn’t mean a return to the old system where arriving migrants apply for asylum at ports of entry. Instead, the Biden administration is attempting to end that system, replacing it with processes that funnel the vast majority of migrants into either in-country processing or the CBP One app.

What does this mean for humanitarian protection?

At least two big implications follow. First, the system looks more like the numerically limited, traditional admissions model than a system of access for anyone who can meet the eligibility requirements for asylum. The parole programs will themselves be numerically limited on an annual basis, most of them explicitly so. And again, the CBP One app process, because it creates a queue, will amount to a de facto numerical limit, though this quota will ultimately depend on resource allocation decisions that will dictate the number of interviews the government will make available over time.

Second, and perhaps more important, the new system effectively changes who receives protection. The expansion of parole programs, as well as in-country processing, means that the system will prefer people because of their country of origin, their family ties in the United States, and their access to potential sponsors, making it a complement and analogue to the overseas refugee resettlement program that the government is still struggling to revive after the Trump administration eviscerated it.

And even more potentially significant still, by moving away from screening asylum seekers upon arrival toward a system of in-country processing and remote queuing through CBP One, the system is likely to favor those who live with the modicum of safety that enables them to apply for protection while still in their home country, or who can afford phone access and manage to wait however long is required for an interview slot. The latter category may be large and encompass a substantial percentage of those who have been arriving at the border in recent years. But if so, then it’s not clear that the government will have solved the problem of migrants waiting for their interviews in Mexico in precarious and unsafe conditions, straining relations with Mexico and generating images of an unmanageable border.

If the Biden administration’s strategies for managing migration seem muddled or contradictory, it is arguably because the government must advance too many objectives and respond to too many constituencies at once. There may be far more people in the world who warrant protection from persecution, war, violence, and state and economic collapse than the United States is willing to take in, even if officials within the administration would like to significantly expand the reach of the humanitarian and asylum systems. But it’s also the case that the easily exploited images of an overrun border undermine whatever political will exists within either political party, or the public at large, to resettle even the most sympathetic migrants and refugees. The legal concept of the refugee – the figure who under existing law is actually eligible for asylum – is also a very poor vehicle for managing the various movements of people the government must confront. An asylum seeker must establish a well-founded fear of persecution on account of race, religion, nationality, political opinion, or membership in a particular social group, and it is likely that only a small percentage of people appearing at the border would actually satisfy even a generous interpretation of this standard, or the terms of the Convention against Torture that are also part of U.S. law.

The Biden policies underscore that the justification and need for humanitarian protection have eclipsed the legal and bureaucratic limits of the existing asylum system. The problem in need of solution is not only the government’s potential failure to abide by existing asylum law in one way or another, but also that the law itself is outmoded as a means of addressing the humanitarian and security concerns of our hemisphere. In time-honored fashion, this administration is grappling with how to use the considerable authorities it has at its disposal to update the architecture the United States has to respond to today’s world.

The Questions Time Will Answer

The policy shifts now occurring raise many new questions: how meaningful and effective will the Biden-era transformation of humanitarian protection be? Will it result in wider-spread protection and resettlement that obviates most potential claimants’ need to brave the considerable dangers that accompany the land journey through the hemisphere to the Southern border? Will the new system, at the same time, result in the most vulnerable people, whose safety depends on fleeing without warning or preparation, being left out of the system altogether?

If well executed, the new parole and in-country processing systems could significantly expand the numbers of migrants and refugees fleeing dislocation who resettle in the United States, including for reasons not captured by the existing, narrow basis for asylum. And efforts to build bureaucratic capacity to process applicants for traditional asylum quickly and without having to rely on large-scale detention or release into the United States could still honor the nation’s commitment to non-refoulement in a politically and operationally sustainable fashion. But these are all big “ifs.”

Whatever the ultimate answers to these questions, humanitarian protection is clearly not at its end. Rather, it is becoming instead a suite of policies that augment and even replace the paradigmatic image – of the individual fleeing targeted persecution by a government or non-state actor – with a system focused on managing large-scale flows of people searching for sustainable lives beyond nations that struggle to provide them.

IMAGE: A Texas National Guard soldier stands near a makeshift migrant camp close to the U.S.-Mexico border fence on May 11, 2023, in El Paso, Texas.  (Photo by John Moore via Getty Images)

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I want to lay out the case, including some of the gruesome details, regarding Karl Linnas not because I would ever suggest that he was representative of the Estonian people or Estonian society during the years of the Holocaust. He was not. I am doing so because he and a host of other Nazi collaborators like him are very much a part of Estonia’s recent past, a past that must be confronted and cannot be ignored or glossed over. His case serves as a starting point for placing the Holocaust in Estonia into a broader historical context, especially in light of today’s International Conference 105-75-35 in Tallinn, Estonia, marking the 105th anniversary of the Republic of Estonia, the 75th anniversary of the State of Israel, and the 35th anniversary of the rebirth of Jewish life in Estonia. (See related author’s note at bottom.) The conference is organized by the Jewish Community of Estonia, an affiliate of the World Jewish Congress for which I work.

Linnas had immigrated to the United States from Germany in 1951, when he was in his early 30s, under the Displaced Persons Act, a statute enacted by the U.S. Congress shortly after the war to enable eligible European refugees who had fled from or been driven out of their countries of origin to enter the United States. The key word here is “eligible,” in that individuals who had participated in the Nazi atrocities against Jews and others during the Second World War were not covered by the Displaced Persons Act.

In his application, Linnas claimed that he had been a university student and a technical artist in Tartu, Estonia, between 1940 and 1943, that he had never served in the German military, and that he had not been a member of any political group or organization. On May 21, 1945, in Munich, Germany, and then again on August 17, 1951, upon entering the United States, Linnas twice stated in writing that he had “never advocated or assisted in the persecution of any person because of race, religion or national origin …”

Linnas then went on to live on Long Island, New York, with his family, working as a land surveyor. In 1960, he became a naturalized citizen of the United States.

A Murderous Nazi Collaborator

In fact, Linnas did not study at the University of Tartu – or anywhere else for that matter – between 1941 and 1943, and during those years he did much more than merely participate or assist in the persecution of people. In the early summer of 1941, he was an officer in the paramilitary organization known as the “Omakaitse” that assisted the troops of Nazi Germany in arresting, imprisoning, and executing unarmed civilians in German-occupied Estonia. And from August 1941 until May 1942 he was the commandant of the Tartu concentration camp.

There is no question or doubt regarding Linnas’ actions in that capacity. As I wrote in The New York Times on March 31, 1987, Linnas was a “brutal murderer” who “directed and participated in numerous mass executions of Jewish men, women and children.”

In 1979, a U.S. federal court stripped Linnas of his American citizenship on the grounds that he had lied on his visa application. In upholding an order for Linnas to be deported to the Soviet Union, which had sought his extradition and where he had previously been tried and convicted in absentia for war crimes, the U.S. Court of Appeals for the Second Circuit held that:

“Linnas’ duties as a concentration camp chief were such as to offend the decency of any civilized society. Eyewitnesses testified that Linnas supervised the transportation of prisoners from his camp to a nearby anti-tank ditch. On such occasions innocent Jewish women and children were tied by their hands and brought in their underwear to the edge of the ditch where they were forced to kneel. The guards then opened fire. The ditch became a mass grave. “There was also eyewitness testimony that Linnas on at least one occasion announced his victims’ death sentence at the side of the ditch and gave the order to fire. Linnas was also said to have then personally approached the edge of the ditch and fired into it.”

On one occasion, Linnas told a group of Jews at the camp that they would be leaving by bus for Riga in Latvia and therefore had to take all their belongings with them. The historian Anton Weiss-Wendt wrote in “Murder Without Hatred: Estonians and the Holocaust,” his book examining the Holocaust in Estonia, that “Linnas said the same thing to a little girl with a life-size doll, whom he helped onto the bus.” Later that day, Weiss-Wendt continued, a witness saw that same bus back in the camp, “yet empty; one of the guards had the doll.”

I became involved in the case of Karl Linnas in the winter and spring of 1987, when the Reagan administration was under pressure from Estonian and other émigré groups in the United States not to deport Linnas to Estonia – that is, in those days, to the Soviet Union. These groups objected on two grounds: they considered the anti-Communist Linnas and others like him to be heroic figures regardless of their collaboration with the Nazis; and they objected on principle to anyone, even a murderer, being extradited to a Soviet bloc country. Linnas’ lawyer and supporters were trying to find another country, possibly in Latin America, that might agree to give him sanctuary.

Need for Accountability

My firm position, and that of Holocaust survivors and their families generally, was that it was unacceptable for anyone who had brutally shortened the lives of thousands of Jews to be allowed to live out their days in comfort surrounded by family and friends. Linnas needed to be deported and held accountable for his crimes. “Anything less,” I wrote in my New York Times article, “would blatantly mock justice.”

On April 15 that year, the second day of the Jewish festival of Passover, I received a call from Brooklyn District Attorney Elizabeth Holtzman that the government of Panama had publicly announced that it would take in Linnas. Presumably, the expectation was that because it was a Jewish holiday, Linnas could have been spirited out of the country before anyone had the time or opportunity to object.

I called the Panamanian Embassy in Washington, D.C. from my office in New York City and succeeded in reaching the ambassador’s deputy, who told me politely but firmly that his country had agreed to grant Linnas asylum on humanitarian grounds.

When I asked why they would help a war criminal who had been committed atrocities in a Nazi concentration camp, the diplomat replied that the Panamanian authorities had not been told anything about this.

I immediately telephoned a colleague at my law firm’s Washington office and asked him to copy and hand deliver two lengthy U.S. federal courts decisions regarding Linnas to the Panamanian diplomat. I did not want the Panamanians to be able to say that no one had provided them with evidence of Linnas’ crimes.

I then traveled to Washington with District Attorney Holtzman and Eli Rosenbaum, the general counsel of the World Jewish Congress at that time, to meet with the Panamanian ambassador to the United States, who assured us that indeed, they had not previously been advised of Linnas’ true history and that his government was reconsidering the matter. By the time we left the embassy, we were assured that Panama had withdrawn its offer of asylum.

Less than a week later, on April 20, I was at New York’s John F. Kennedy Airport and watched as Linnas, 67, was put on a plane on his way to Tallinn, where he would die several months later in a prison hospital.

I felt a need to see for myself that a murderer of Jews was being brought to justice, a justice he had denied his victims 45 years earlier.

From Tolerance to Complicity

Estonia is different from other European countries, including other Baltic countries, in that it did not have a large, deeply rooted Jewish presence before the outbreak of World War II. The Jewish community of Estonia was only established in 1830, and between 4,200 and 4,500 Jews lived in the country in 1939, in contrast with more than 200,000 Jews in Lithuania and over 90,000 in Latvia. It must be emphasized here that government and civil society of the inter-war independent Republic of Estonia were extremely tolerant of their Jewish minority, and the Estonian Jewish community enjoyed substantial cultural autonomy under law after 1925.

All this changed drastically after the Soviet occupation of Estonia in 1940, followed by the German occupation beginning in 1941. An estimated 400 Estonian Jews were arrested and deported as class enemies during the Soviet occupation, and several thousand more fled as the Germans advanced eastward in the summer of 1940. Then, German SS and police mobile killing units, the so-called Einsatzgruppen, assisted by Estonian auxiliaries, methodically murdered most of the country’s remaining Jews so that by the Wannsee Conference on Jan. 20, 1942, at which the implementation of the Nazi Final Solution of the Jewish Question was formally set in motion, Estonia was the only German-occupied country declared to be Judenfrei, that is, free of Jews.

It did not remain so. In 1942, the Germans proceeded to deport tens of thousands of Jews from other parts of Europe to forced-labor camps inside Estonia, where many of them perished. As we have seen from the case of Karl Linnas, these camps were staffed by Estonians who zealously aligned themselves with the Nazi cause.

They were not alone. Many Estonian anti-Soviet — that is, anti-Communist — partisans adopted the Nazis’ toxic conspiracy theory — more accurately, false conspiracy myth — that Stalinist Bolshevism was in fact a Jewish-run and Jewish-dominated threat to both Germany and Estonia. Perhaps as a result, Estonian Jews were arrested in the summer of 1941 by members of the Estonian Omakaitse home guard or of the Estonian Security Police. Many, if not most, were executed almost immediately. Any purportedly political or ideological motivation fades rather rapidly when one realizes that children were among the murdered.

Let us also not lose sight of the fact that Estonia provided SS chief Heinrich Himmler with an Estonian SS Volunteer Brigade that eventually became a full-fledged Waffen-SS division, the 20th Waffen Grenadier Division of the SS (1st Estonian).

A Different Estonia Today

In sharp contrast, Estonia today is at the forefront of Holocaust awareness and education in Europe. Speaking at the Malmö International Forum on Holocaust Remembrance and Combating Anti-Semitism in October 2021, Prime Minister Kaja Kallas said:

“Crimes against humanity must be remembered and addressed so that future generations would know how to prevent them from happening again. The Estonian people have also suffered due to the crimes committed by totalitarian regimes and that is why we understand the victims of the Holocaust well. Learning from each lesson from history is important and as they say: those who do not remember the past live without a future. Often, however, someone’s personal experience or story is what has the largest impact – this is why we pay increasingly more attention to addressing the issue in Estonia in public spaces, exhibition halls, museums, and classrooms.”

There is little antisemitism in modern-day Estonia. The Jewish Community of Estonia enjoys strong support from its government, and we are grateful to the Estonian authorities for their support and protection of Jewish institutions in their country.

I want to commend Prime Minister Kallas and her government for their commitment to fighting manifestations of antisemitism in all parts of Estonian society. We are confident that they, working closely with the leaders of the Estonian Jewish community, will affirmatively and fully implement the pledges made in this regard at the 2021 Malmö Conference. The World Jewish Congress for its part will do all it can to help ensure that antisemitism, the hatred of Jews, is not able to spread in Estonia ever again.

Worrisome Signs

And yet, there are worrisome phenomena that we must not ignore.

What are we to make of the fact that Alfons Rebane, an Estonian army officer who fought in both the Wehrmacht’s 658th Eastern Battalion and the already mentioned 20th Waffen Grenadier Division of the SS (1st Estonian)? We know, of course, that Rebane was for many years after the war in the service of British intelligence, but that makes his glorification as a heroic figure no less troubling. As Alla Jakobson, the chairperson of the Jewish Community of Estonia, correctly noted when the plaque was unveiled in 2018, even though there is no evidence that Rebane murdered Jews, anyone who served in the SS in any capacity “is hardly worthy of commemoration.”

And by the way, Rebane was hardly some random apolitical soldier. In the 1930s, he was an Estonian military informant providing strategic information to the Abwehr, the Nazi German intelligence Service.

And then there is the bust of Harald Nugiseks in a school in the Estonian town of Bauka. Nugiseks was a decorated Oberscharführer, or squad leader, of the same Estonian 20th Waffen Grenadier Division of the SS.

We know from similar glorifications of Nazi collaborators in other European countries that they are far too frequently exploited by neo-Nazi and other extreme-right movements to promote antisemitism and other forms of bigotry and xenophobia.

In this context, it is worth noting that both Rebane and Nugiseks are prominently featured on Metapedia, an online encyclopedia that promotes fascism, neo-Nazism, antisemitism, white supremacism, white nationalism, anti-feminism, Islamophobia and Holocaust denial, among other bigotries.

Which brings us to a far-right former member of the Estonian parliament named Ruuben Kaalep, who used to be an editor of the Estonian language section of the aforementioned Metapedia encyclopedia. In one of his entries, he argued that the term “Holocaust” “is commonly used to refer to the alleged systematic extermination of Jews in World War II-era Germany,” and that “Zionists” are using these “allegations . . . to subjugate the peoples of Europe through a lasting sense of collective guilt.”

According to a 2019 article in the Eesti Ekspress, Kaalep maintains contact with a host of international white supremacist personalities like the American Richard Spencer and refers to himself as a “fascist non-Jew.”

Kaalep is dangerous for other reasons. He is a fascist who promotes fascism as a political ideology. “Supranational institutions like the EU,” he wrote in 2022, “are like parasites feeding off the life energy of a nation. When a nation is isolated from its roots it is no longer capable of resistance, then begins the actual extinction process. The Great Reset comes together with the Great Replacement.”

I focus on Kaalep because he and others like him are the symptom of a virus that in many ways is as dangerous as the Covid-19 pandemic, only there are no effective vaccines to counteract it. He reminds us that antisemitism and fascism go hand in hand – they are two faces of the same coin – and we have seen the result of this particular virus. Eighty years ago, Karl Linnas epitomized it. Today we see the same dangerous mindset in the Ruuben Kaaleps in our midst.

If we do not want the past to become prologue, we ignore him and his ilk at our peril.

(Author’s Note: This article is based on the keynote address I planned to give today at the International Conference 105-75-35 in Tallinn, Estonia, marking the 105th anniversary of the Republic of Estonia, the 75th anniversary of the State of Israel, and the 35th anniversary of the rebirth of Jewish life in Estonia. When the organizers of the conference asked me not to address the period of the Holocaust in Estonia, I declined on principle, and they cancelled the speech, which had been scheduled – and the subject of which had been known – for weeks. Just Security has agreed to proceed with the planned publication of this article based on the speech.)

 IMAGE: The only remaining survivor of Convoy 73, a train that left German-occupied France in May 1944 carrying 878 Jews, Henri Zadjenwergier (center), with Estonian Foreign Minister Urmas Paet (third from right), Defense Minister Jaak Aaviksoo (second from right) and Tallinn mayor Edgar Savisaar, as they unveil a monument in Tallinn on June 2, 2010, during a ceremony honoring the memory of hundreds of French Jews who were killed by Nazi Germany in Estonia during the Holocaust. “Here, before this memorial, I am torn with feelings of unease because I survived, and by sadness in the face of the pain of the families,” said Zadjenwergier, 83. (Photo credit should read Arthur Sadvoski/AFP via Getty Images)

The post Sustaining Renewed Tolerance in Context: Reflections on the Holocaust in Estonia appeared first on Just Security.

His case joined that of Saudi dissident and Washington Post columnist Jamal Khashoggi, gruesomely murdered in the Saudi Consulate in Istanbul in 2018, and preceded that of Belarusian journalist Raman Pratasevich, abducted by Belarus from a deliberately rerouted flight in May 2021. They are among an increasing number of examples of transnational repression — the targeting of exiles and others in diasporas by their home governments outside of the country’s borders.

The case of Leopold Munyakazi, another critic of the Rwandan government who is currently in prison there, has garnered fewer headlines or statements of support from celebrities. But in many ways, it is more emblematic of most cases of transnational repression.

Unlike Rusesabagina, Munyakazi wasn’t clandestinely kidnapped via private jet. He was returned to Rwanda by the U.S. government. Munyakazi’s targeting, which was made possible by interstate cooperation rather than a unilateral violation of sovereignty, illustrates how authoritarians can manipulate democratic governments to perpetrate transnational repression. His case makes clear that to counter this global threat, democracies have to seriously examine their own institutions.

Dangerous Speech

Leopold Munyakazi is a Rwandan linguist and trade union leader who came to the United States to participate in a conference on French literature in Atlanta in 2004. While in the United States, Munyakazi learned that he was allegedly on a list of opponents of the regime , and applied for asylum. While waiting for his claim to asylum to be reviewed, Munyakazi taught French, first at a high school and then at colleges in New Jersey and Maryland. He also became a member of Scholars at Risk, a network set up to protect scholars and defend freedom of speech by arranging temporary academic positions at universities.

As part of that program, in 2006, Munyakazi spoke about academic freedom at the University of Delaware. During his remarks, he made the controversial assertion that the 1994 genocide, in which more than 800,000 people were killed, was best understood not as ethnically driven but as a civil war stemming from long-standing social and class conflict. According to a news release on the university’s website, he said that, while he had opposed the violence, “It is quite wrong to say that genocide was committed by Hutus.”

Shortly afterward, the Rwandan government issued a warrant for Munyakazi’s arrest that became the basis of two Interpol notices. The government alleged that he had actually participated in the genocide, a charge Munyakazi denied. In parallel to their legal efforts, Rwandan officials also began working with international journalists on a story about Munyakazi, who is Hutu, and showed up at his college to interview colleagues.

These accusations eventually led to Munyakazi’s asylum claim being denied. After a winding process, his appeals exhausted, he was detained by U.S. Immigration and Customs Enforcement (ICE) in 2015 and deported in 2016.

Back in Rwanda, Munyakazi was initially convicted of genocide and sentenced to life in prison but was later cleared of that and other charges after he appealed and more testimony was collected from local witnesses. The only charge that the court upheld was that of “genocide denial”—a vague and politicized accusation that has been abused by the government to punish dissidents and political opponents. Nearly five years on, Munyakazi remains in prison.

A few months ago, the Organized Crime and Corruption Project (OCCRP) published an investigation into how Rwanda’s government has pursued its critics in the United States. The article referenced Munyakazi’s case. According to OCCRP, the Federal Bureau of Investigation (FBI) issued a classified report in 2015 warning that the Rwandan government “was using its intelligence services to spread disinformation in the United States about Rwandan asylum seekers and opposition members.” The FBI report described efforts to manipulate the U.S. immigration system and Interpol notices and stated that ICE’s investigation into Munyakazi was “almost certainly” compromised by a Rwandan intelligence agent. Nevertheless, Munyakazi was returned to Rwanda after this classified report was completed.

Manipulating Democracies

Freedom House rates Rwanda as Not Free because political opponents are repressed, media is silenced, government surveillance is rampant, protests are routinely and violently dispersed by police, and the judiciary lacks independence. President Paul Kagame has been in power since 2003, when he won an election marked by the disappearances of opposition figures and by ballot-stuffing. His main opponent, Faustin Twagiramungu, fled the country immediately after the election and has remained abroad ever since. Kagame has won re-election three times, and in 2015 the Rwandan constitution was amended to allow him to potentially remain in power until 2034.

In addition to the repressive domestic environment, Rwanda is also among the top 10 perpetrators of transnational repression in the world. The government has used all 12 of the physical and nonphysical tactics we at Freedom House track, including assassinations, assaults, renditions, Interpol abuse, mobility controls, digital threats, coercion of family members, and spyware to target people in at least 11 countries.

Munyakazi’s case illustrates an underexamined side of transnational repression: the ability of authoritarian regimes to manipulate the immigration system of a democratic country, where information provided by foreign governments can play a powerful role in determining whether a person’s case receives fair treatment. This problem stems not only from the interconnectedness of the international system but also from the inherent asymmetry of an open society trying to evaluate information provided by a closed one, which itself has a stake in the outcome.

In Freedom House’s transnational repression database, which spans 2014 through 2022, nearly 40 percent of cases involve some level of cooperation between the origin and host governments. Though most of this cooperation happens between authoritarian governments, there is also a clear pattern of cases of democratic governments assisting in the return of exiled activists and members of vulnerable diasporas.

Last year, for example, Serbia handed over a dissident to Bahraini officials on a tarmac in Belgrade, ignoring an injunction against his return issued by the European Court of Human Rights. Austria allowed the extradition of an activist back to Tajikistan in 2020. Later, Austria’s Supreme Court invalidated the extradition, but the man had already been sentenced to 20 years in prison. In 2018, Germany deported a Uyghur man to China despite his open asylum application. He is suspected of disappearing into the vast camp system in Xinjiang.

Looking Within

In order to effectively combat the reach of autocrats, the United States must build resiliency to the abuse and manipulation of its own institutions. At a minimum, this requires three things: that government agencies collect information detailing the threat posed by authoritarians to people living in the United States, that this information is effectively shared between law enforcement and immigration officials, and that people who may be targeted by transnational repression are not made more vulnerable simply by having to traverse the overburdened immigration system.

One way to accomplish this is by properly equipping immigration authorities with pertinent information about practices that some countries use to target their nationals living abroad. In the United Kingdom, for example, the Home Office prepares “country policy and information notes” to help assess claims for asylum. The reports on China and Turkey note that both governments target specific groups, including Uyghurs and suspected members of the Gülen movement, abroad. The Dutch Ministry of Foreign Affairs compiles similar reports that also note that countries like China monitor and intimidate members of targeted diaspora.

The U.S. Department of State already produces annual reports on human rights practices that document transnational repression. The 2022 report on Rwanda notes that “the country is credibly alleged to have killed or kidnapped persons, or used violence or threats of violence against individuals in other countries, for purposes of politically motivated reprisal.” A Counterintelligence Bulletin issued by the FBI in January 2022 states that “foreign government officials are almost certainly conducting transnational repression activities targeting US-based dissidents, political opponents and religious or ethnic minority diaspora members” and lists Rwanda among perpetrator governments, alongside China, Iran, and Saudi Arabia.

Clearly, verified information on transnational repression exists in the United States. The next step is to make sure this information is shared effectively among federal, state, and local officials, especially those involved in the immigration process.

Information-sharing requires strategic coordination among different agencies and institutions, a process complicated by America’s highly federalized system, in which local police, federal law enforcement, and the Department of Homeland Security do not have clearly established lines of communication with the Department of State or Department of Justice devoted to the domestic threat posed by authoritarian governments.

Complicating the picture further, the huge backlog of cases and extended wait times that characterize the U.S. immigration system exacerbates existing vulnerabilities of people who can be targeted by foreign states.  According to data compiled by the University of Syracuse, as of the end of last year, there were 1.6 million people waiting for an asylum hearing by an Immigration Court (housed in the Department of Justice) or by Citizenship and Immigration Services (housed in the Department of Homeland Security). While wait times vary, it can take as long as 4.3 years between when an asylum case is filed with an Immigration Court and when a hearing takes place. A recent study produced by the Uyghur Human Rights Project found that some Uyghurs – a predominantly Muslim ethnic minority group at high risk of being targeted for transnational repression by the Chinese government — in the United States are waiting as long as eight years for their asylum claims to be heard.

Without the security of permanent immigration status, individuals awaiting a decision on their asylum claim are in constant jeopardy of being targeted with transnational repression. Speaking out the way that Munyakazi did can attract overt targeting via Interpol notices, but because the U.S. immigration system relies on information from origin states for assessing parts of asylum claims — including by requesting official documents — authoritarian governments also have covert influence on individual applications. The longer their asylum claims remain in limbo, the longer people’s voices are silenced, and the longer they live in danger of being targeted.

Transnational repression is both a global and a local problem that brings authoritarianism to the doorstep of democracies. Combatting it requires measures to monitor physical attacks on exiles and dissidents living in the United States and elsewhere. It also requires shoring up U.S. and other countries’ democratic institutions against the influence of foreign governments that abuse international cooperation and use information-sharing to silence the voices of their critics, even long after they have sought refuge in other parts of the world.

IMAGE: US Secretary of State Antony Blinken (L) meets with Rwandan President Paul Kagame at the Presidents Office in Urugwiro Village in Kigali, Rwanda, on August 11, 2022. (Photo by ANDREW HARNIK/POOL/AFP via Getty Images)

The post How Democratic Govts Become Complicit in Transnational Repression: Another Rwanda-US Case appeared first on Just Security.

These models, while divergent, underscore the centrality of responsibility sharing arrangements in the current migration and asylum policy debate. Responsibility sharing is about broadening the circle of actors that assume responsibility for asylum seekers beyond the State of arrival through hosting or other forms of support. But although both models could be deemed progressive under certain criteria, the EU’s model for Ukraine is far superior to the U.S.-Canada model from the vantage point of asylum seekers and host States alike because it does not hinge on an asylum seeker’s initial country of entry.

The U.S.-Canada agreement also highlights the shortcomings of the prevailing approach that only considers whether third countries that accept asylum seekers turned away by countries of arrival are safe. The Biden administration terminated similar Trump-era agreements with unsafe countries while expanding the one with Canada, and United Nations High Commissioner for Refugee’s (UNHCR) guidelines on safe third country agreements similarly focus on safety. But a broader perspective, one that accounts for today’s reality of mass influxes of migrants and asylum seekers in several regions of the world, is urgently needed. Responsibility sharing arrangements should not only consider the safety of third host countries. They should pull together resources and hosting commitments from multiples stakeholders to create better conditions for asylum seekers and host countries alike.

The U.S.-Canada Agreement

During President Biden’s first visit to Canada last month, the two countries announced a hitherto confidential 2022 pact to expand the existing Canada-U.S. Safe Third Country Agreement (STCA). The U.S. Department of Homeland Security then published the rule implementing U.S. commitments to the STCA shortly after the announcement. Originally signed in 2002, the agreement allows the United States and Canada to turn away asylum seekers who cross the border at a port of entry and instead requires them to apply for asylum in their first safe country of transit. The United States is the only country designated “safe” under the Canadian Immigration and Refugee Protection Act. According to the Canadian government, “[t]he Agreement helps both governments better manage access to the refugee system in each country for people crossing the Canada–U.S. land border.”

The recently negotiated additional protocol to the agreement and its implementing measures expand the scope of the original STCA by also covering asylum seekers crossing the border irregularly. If an asylum seeker crosses between ports of entry and seeks refugee protection less than 14 days after the day of irregular entry, they will be turned back to the country from which they had crossed. This expansion appears to have been driven by Canadian pressure to stem irregular land crossings from the United States. The agreement has been heavily criticized on the Canadian side for sending asylum seekers back to the United States, where they have faced harsh treatment including detention and family separations.

U.S. willingness to enter into an expanded safe third country agreement with Canada stands in sharp contrast with the Biden administration’s position on such agreements with other countries. Shortly after coming into office, the Biden administration suspended and then terminated three agreements of this type with Guatemala, Honduras and El Salvador. Officially known as Asylum Cooperative Agreements  (ACAs), these agreements were part of the Trump administration’s attempt to relocate asylum seekers and deflect applications to third countries in central America. The three countries agreed to accept asylum seekers from the U.S., process their applications, and ratchet up their efforts to address illegal migration to the United States through their territory. In return, they were promised economic benefits.

Yet, the “benefits” came after the Trump administration significantly cut aid to the three countries to pressure them into signing the agreements. Furthermore, the agreements were widely condemned for deflecting asylum seekers to unsafe, poor countries where they had little chance of receiving adequate protection. In previous work, we argued that these agreements were a far cry from genuine refugee responsibility sharing. They were in fact regressive instruments that represent what we call “responsibility dumping” – diverting asylum seekers to less affluent, less institutionally competent, less safe countries without contributing funds or assistance to ensure their safety.

In defending policies designed to deflect migrants and asylum seekers to central American countries, the Trump administration asserted that those policies were in line with similar policies of other liberal democracies, including EU member States. Such policies, it maintained, require seekers of international protection to apply for asylum in the first safe country through which they travel. UNHCR has accepted the practice of diverting asylum seekers to “safe third countries” in principle and has focused on setting out adequacy criteria for what would count as “safe.”

The EU Model

The EU Dublin Regulations, the instrument that allocates responsibility for processing asylum claims among EU member States, do in fact enshrine a similar principle requiring protection seekers to apply for asylum in the EU member State of first entry.

Yet, the context in which the Dublin Regulations operate is entirely different than the dynamic between the United States and Central American countries. The Dublin Regulations deflect applicants from one EU country to another. Even the weakest EU member States have resources, institutions, and safety conditions that are far superior to those of Guatemala, Honduras, and El Salvador. The Dublin Regulations are therefore far less regressive in relative terms than the Trump-era approach of Asylum Cooperative Agreements.

What is more, recent experience has shown that the Dublin system collapses under pressure. The EU has now suspended Dublin’s first country of entry principle several times in favor of more ambitious responsibility sharing arrangements to address migration crises that break with the first country of entry principle. In 2015, the EU decided to centrally relocate160,000 asylum seekers from Greece and Italy and distributed them among all member States based on an objective distribution formula. And most recently, responding to the mass displacement following the Russian invasion of Ukraine, the EU activated for the first time the EU Temporary Protection Directive, a 2001 directive issued in response to the war in the Balkans to address mass influxes of individuals fleeing conflict. The EU Council granted Ukrainian nationals and others fleeing Ukraine the right to live, work, and receive benefits in any EU country – regardless of initial point of entry. Thus far, EU member States have taken in an estimated 4 million Ukrainians under the Temporary Protection Directive.

Moving the Focus from Country of Initial Entry

The new iteration of the Canada-U.S. STCA is closer to the Dublin regulations than to the Trump era ACAs with the three central American countries. Like EU member States, the United States and Canada are comparatively affluent, institutionally robust and safe countries. The STCA is therefore considerably more progressive than the Trump-era ACAs.

Nonetheless, the comparison to the EU again raises questions about the inherent effectiveness of responsibility sharing models that hinge on the country of initial entry. An emerging EU model applied in 2015 and most recently in Ukraine is indifferent to the country of initial entry. In its most generous form, the EU responsibility sharing model even allows asylum seekers to decide for themselves where to go, potentially leading to better outcomes for individuals and integration in host countries.

Responsibility sharing models that do not hinge on country of initial entry help prevent a common pattern that emerges during times of crisis: one or several countries located closer to sources of migration and mass displacement must often process the bulk of asylum claims and shoulder housing responsibilities. The result of rapid arrival of migrants to frontline countries has often been the creation of refugee and displacement camps – including closed camps, which at times prevent residents from leaving. Camps often offer inadequate conditions for migrants and have negative impact on the surrounding area, attitudes toward migrants in border communities, and their access to legal protection. The European Court of Justice recently found one such camp on the Hungarian border, the Röszke transit zone, to be an unlawful detention site because of its prison-like characteristics and the fact that migrants were effectively not allowed to leave.

Under the analytical framework that we have proposed in previous work, the U.S.-Canada safe third country agreement and recent EU asylum and migration measures are both progressive responsibility sharing models in the basic sense. They shift asylum seekers from frontline host countries to countries that are at least as affluent, as institutionally robust and (arguably) as safe. But the EU model is a far better approach because it allows for more effective and planned-out distribution of responsibility among host States. It eliminates pathologies created by the emphasis in current migration and refugee law on the point of initial entry. Perhaps the objectives of the U.S.-Canada safe third country arrangements would be better served by a deeper mutual understanding about allocating responsibility and obligations for asylum seekers. It is unlikely to be advanced by myopic focus on asylum seekers’ choice of route.

IMAGE: Canada’s Prime Minister Justin Trudeau (R) walks with U.S. President Joe Biden after welcoming him at Parliament Hill in Ottawa, Canada, on March 24, 2023. (Photo by Mandel Ngan / AFP via Getty Images)

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In truth, the Mayorkas impeachment campaign amounts to no more than this: The Trump administration used executive authority to institute a wide array of novel restrictions on immigration. The Biden administration, using the same executive authority, has reversed some (though by no means all) of those restrictions. Republicans disapprove of Biden’s partial restoration of the pre-Trump status quo on policy grounds, but more importantly they think highlighting Biden’s actions will help them in 2024. The campaign to impeach Secretary Mayorkas simply gives a face and a focus to this partisan political initiative.

That said, exposing the Mayorkas impeachment push for the cynical stunt it is requires a careful look at the constitutional and factual arguments made by Mayorkas’s pursuers.

Republicans, the Heritage Foundation and Constitutional Standards for Impeachment

A cabinet secretary is a “civil officer” subject to impeachment under Article 2, Section 4 of the Constitution, for commission of “Treason, Bribery, or other high Crimes and Misdemeanors.” The phrase “high Crimes and Misdemeanors” is not limited to indictable crimes, nor even to violations of existing statutes or judge-made caselaw. Historically, the phrase has been agreed to cover corruption; extremely severe instances of incompetence, neglect of duty, or official malpractice; abuse of power; betrayal of the nation’s foreign policy interests; and subversion of the Constitution. It is, and was intended to be, a flexible standard, albeit a stringent one that excludes ordinary policy disagreements between the executive branch and a transient majority of the House.

This is not to say that the Constitution can prevent a resolutely partisan majority of the House of Representatives from impeaching either a cabinet officer or a president simply because it doesn’t like administration policy. Article I grants the House the “sole power of impeachment,” and a decision to impeach any civil officer is generally conceded to be unreviewable by the courts. Hence, as a matter of cold realpolitik, then-Congressman Gerald Ford was correct when in 1970 he famously declared that, “An impeachable offense is whatever a majority of the House of Representatives considers it to be at a given moment in history.”

However, Ford was plainly wrong about the Founders’ understanding of “high Crimes and Misdemeanors” and about the precedent created by subsequent impeachment cases. No one now seriously disputes that impeachment, though a flexible remedy, is not available for simple policy disagreements and should be limited to very serious kinds of official misbehavior. Such misbehavior need not constitute actual crime or personal corruption, but the Constitution and historical practice demand that it involve grievous abuses of official power or grave derelictions of duty in violation of statutory commands or established constitutional norms.

A fact that should at least cause some blushes among the impeach-Mayorkas crew is that every Republican co-sponsor of the Biggs or Fallon impeachment articles who was in office during Trump’s term opposed both his impeachments, as did the Heritage Foundation and those who wrote under its auspices about those crises. Among Republicans defending Trump, the basic constitutional theme was that the phrase “high Crimes and Misdemeanors” sets an extraordinarily high bar for impeachment. Trump’s defenders argued that impeachment requires criminal conduct, or conduct akin to a crime, or at least a plain violation of a statute or otherwise settled law. Many resisted the proposition that abuse of official power could ever be impeachable and all but a tiny handful waved away the allegation in both Trump impeachments that his violations of the oath to take care that the laws be faithfully executed merited impeachment and removal.

In a remarkable display of intellectual elasticity, those demanding Mayorkas’ removal have now adopted virtually every jot and tittle of the constitutional position they indignantly rejected in Trump’s cases. The Heritage brief embraces impeachment as a flexible and expansive remedy, and goes so far as to cite as authority the House Judiciary Committee report in support of the first Trump impeachment. While I am gratified to see some Republicans reverse course and embrace a broadly correct view of the Constitution’s impeachment provisions, Mayorkas’s critics nonetheless fail to make even a colorable case for impeachment employing that standard.

The Supposed Violations of Immigration Law

The roots of the attack on Secretary Mayorkas lie in dramatic changes to immigration policy instituted under the Trump administration, which sought to severely restrict both legal and illegal immigration. The most public manifestation of this effort was Trump’s campaign for a border wall, but the real heft of the initiative lay in more than 400 executive actions covering a wide array of immigration policies.

The Biden administration has taken a more expansive view of immigration policy and has reversed a significant number of Trump’s executive actions. Executive action by one presidential administration to undo the executive action of its predecessor is not in itself illegal, unconstitutional, or even colorably impeachable. Therefore, Secretary Mayorkas’s pursuers have been obliged to allege that his actions in furtherance of president Biden’s immigration policy are not merely undesirable, but violate his oath of office to support and defend the Constitution by, in the words of the Heritage memo, “disregarding, defying, undermining, acting inconsistently with, and outright breaching the legal duties and responsibilities of his office.”

The specific allegations supporting this contention are so various and scattershot that addressing them all is beyond the scope of this article. Here I consider only the main arguments concerning “parole” of undocumented migrants and control of the southern border generally.

Immigration Detention and Parole

Every day, thousands of aliens – persons not U.S. citizens — enter, or try to enter, the United States. Such aliens fall into three very broad categories.

The first are aliens legally entitled to enter, temporarily or permanently, who are admitted as a matter of routine by immigration officers at ports of entry. These persons include “lawful permanent residents” (colloquially, those who hold “green cards”), “non-visa nationals” (citizens of designated countries who can enter the U.S. without obtaining special permission in the form of a visa), and those with visas, such as students, tourists, and those entering for business or work.

At the other end of the spectrum are aliens who have no right to enter or remain in the U.S., and not even a plausible claim to do so. In this class fall most of the migrants who try to slip across the border undetected and disappear into the interior, as well as many who overstay their visas. If caught, most such folks will be immediately expelled after a truncated process called “expedited removal,” will voluntarily return whence they came via “voluntary departure,” or will be deported following proceedings before an immigration judge.

The third class of would-be immigrants are those who approach or cross the border without a previously issued visa or other documentation entitling them to immediate entry, but who can nonetheless make at least a plausible claim to enter or remain as a refugee seeking asylum or pursuant to some other established program. Eligibility requirements for asylum or various forms of temporary legal status are specified in the Immigration and Nationality Act (INA) and in executive orders, agency regulations or program announcements promulgated pursuant to congressional delegations of authority under the INA. For example, nationals of countries designated by the Attorney General can be granted “temporary protected status” (TPS) under 8 C.F.R. §244. Whether an undocumented alien qualifies for asylum, TPS, or some other program will often not be determinable during the alien’s first contact with an immigration officer. An alien with at least a plausible claim for admission under one of these programs must apply, present supporting evidence, and obtain a determination from an immigration judge.

The immediate question in all cases of aliens with at least a colorable claim to enter or remain is what will happen to them while their claims are adjudicated. Practically speaking, there are only three options. The alien can be detained – locked up in a holding facility – while his case is processed. Alternatively, the alien can be “paroled,” i.e., released into the United States on conditions pending resolution of his application. Finally, the alien could in theory be returned to the country from which he entered pending processing of his claim. In the case of migrants crossing from Mexico, all three options are legally authorized.

Section 1225(b)(2)(A) of the Immigration and Nationality Act states that if “an alien seeking admission is not clearly and beyond a doubt entitled to be admitted, the alien shall be detained for a proceeding under section 1229a of this title.” However, 8 U.S.C. §1182(d)(5)(A) explicitly permits immigration authorities to parole “on a case-by-case basis for urgent humanitarian reasons or significant public benefit any alien applying for admission to the United States.” Finally, pursuant to 8 U. S. C. §1225(b)(2)(C), an alien entering across the Mexican or Canadian land border “may” be returned to the country from which he entered pending resolution of his immigration claims.

The interaction of these three statutory sections is at the core of the impeachment case against Mayorkas. For example, the Biggs impeachment petition and the Heritage brief both allege that §1225(b)(2)(A) makes detention absolutely mandatory and that, by permitting significant numbers of aliens with pending immigration claims to be paroled rather than be detained or returned to Mexico, Secretary Mayorkas “willfully violated” (Biggs) or “deliberately violated” (Heritage) the law. However, this argument collapses under even modest scrutiny.

Secretary Mayorkas has Lawfully Exercised his Statutory Parole Authority

Section 1182(d)(5)(A) expressly grants the executive branch power to parole aliens based on “urgent humanitarian reasons or significant public benefit.” Therefore, Mayorkas’s pursuers focus on the phrase in §1182(d)(5)(A) requiring “case-by-case” determination of parole claims. They contend that the Secretary has exceeded his statutory authority by adopting parole policies and programs applicable to groups (what they call “mass parole”) rather than treating every parole application “case-by-case.”

However, the “case-by-case” language of §1182(d)(5)(A) self-evidently does not oblige either the DHS Secretary or his subordinates to make a completely individualized and unguided determination of the humanitarian or public interests relevant to each applicant for parole. Given that tens of thousands of would-be immigrants seek parole every month, a system of individualized, wholistic, standardless parole would be systemically crippling, unfairly arbitrary, and frankly fatal to sensible immigration policy. Instead, U.S. immigration authorities in every presidential administration have systematized the exercise of §1182(d)(5)(A) parole authority by issuing executive orders or determinations by the U.S. Customs and Immigration Service or its predecessors published in the Federal Register which create standards and programs for adjudicating parole applications. Such standards and programs identify preferred and disfavored humanitarian considerations, or favor or disfavor immigrants from particular countries or regions because their parole or exclusion is determined to have the “public benefit” of furthering foreign or domestic policy interests of the United States.

Considered carefully, the position of Mayorkas’s pursuers is that the “case-by-case language” of §1182(d)(5)(A) strips the Department of Homeland Security of any authority to systematize immigration parole or harmonize parole policy with U.S. domestic or foreign policy. That is not, and never has been, the law.

Instead, the way immigration parole works – and has always worked – is that each parole application is considered in light of statutorily and administratively approved standards and programs. Those whose circumstances fit within the parameters of extant standards and programs are likely to be granted parole. Those who do not fit are unlikely to be paroled. In a system of law, this is “case-by-case” determination.

In addition, the Heritage brief lists a number of particular parole programs it casts as abuses by Secretary Mayorkas. However, each of the listed programs was expressly authorized as an exercise of §1182(d)(5)(A) parole authority serving humanitarian or public benefit purposes. Moreover, virtually none of the listed programs were launched by the Biden administration or Secretary Mayorkas. Some, such as the Haitian Family Reunification Parole Program and the Central American Minors Parole Program were Obama era initiatives. One, the Cuban Family Reunification Parole Program, began in 2007 under president George W. Bush. The Filipino War Veterans Parole Program was established under Obama in 2016, but is part of a decades-long controversy over immigration preferences for Filipinos who fought on the American side in World War II. Secretary Mayorkas’s only involvement in the foregoing programs was to restart them after the Trump administration suspended their operation. The Secretary of Homeland Security does not violate immigration law or the Constitution by employing statutorily delegated authority to implement presidential policy.

Immigration System Capacity is a Proper Consideration in Parole Policy

In exercising his undoubted parole authority, the DHS Secretary is entitled not only to adopt parole programs for particular groups, but to consider the undisputed fact that the federal government lacks the capacity to detain all aliens present in the U.S. awaiting immigration rulings. As of FY 2022, the immigration court system had a backlog of 1.8 million cases, some 750,000 of which involved asylum applications. The average processing time per case is now 855 days. ICE detention facilities currently hold about 24,000 people. During the Trump administration, they held up to 53,000.  By comparison, the federal prison system now has 157,000 inmates.  The combined state and federal prison population of the entire United States is about 1.2 million. Thus, for the federal government to detain all 1.8 million aliens with a pending immigration case would require building a new immigration-only detention system to accommodate roughly 1.75 million more people than its maximum capacity, a system twelve times as large as the entire federal prison system and 50 percent larger than all federal and state prisons combined.

The number of aliens subject to detention pending adjudication could be reduced, albeit over a period of years, if Congress approved additional resources for the immigration court system allowing it to reduce processing times. However, Congress has persistently refused to appropriate funds sufficient either to adjudicate immigration cases efficiently or to detain all those awaiting adjudication.

Practically speaking, therefore, U.S. immigration authorities have only one option for the majority of persons encountered in the interior with colorable claims for admission requiring adjudication. They cannot legally be summarily expelled and their numbers far exceed the holding capacity of U.S. immigration detention facilities. Therefore, for both “humanitarian” and “public benefit” reasons, §1182(d)(5)(A), the majority must be paroled. To impeach Secretary Mayorkas for paroling persons the government has no immediate right to expel and no physical capacity to detain is to condemn him for failing to do what Congress’s own decisions have made impossible.

The Biden Administration has the Legal Right to Terminate Trump’s “Remain in Mexico” Program

Mayorkas’s critics make a different argument about Biden administration parole policy at the Mexican border. In 2019, largely in response to the growing number of family group asylum seekers traveling to the Mexican border from Central America, Trump’s Secretary of Homeland Security, Kirstjen Nielsen, invoked 8 U. S. C. §1225(b)(2)(C) to create a new program known formally as the Migrant Protection Protocols (MPP), but popularly as “Remain in Mexico.” MPP required non-Mexican nationals seeking entry at the Mexican border to be returned to Mexico until their cases were decided by U.S. immigration authorities.  Prior to Trump, neither Democratic nor Republican presidents had made significant use of this option. Trump’s decision to employ MPP was highly controversial, both on humanitarian and foreign relations grounds. Forcing migrant families seeking asylum to wait on the Mexican side of the border created a large, vulnerable, unhoused population for which Mexico necessarily, but unwillingly, had to assume responsibility.

Nonetheless, MPP was a legal exercise of presidential authority. And one can fairly argue that it worked in the sense of discouraging Central American asylum seekers from traveling to the Mexican border and from pursuing their applications once they were returned to Mexico. However, president Biden believed that the humanitarian and foreign policy disadvantages of the program outweighed any desirable results. On the first day of his presidency, he declaredhis intention to terminate “Remain in Mexico.” In June 2021, Secretary Mayorkas issued a memorandum terminating the program.

Mayorkas’s would-be impeachers claim that termination of MPP was illegal and is itself a ground for impeachment. But that argument was recently gutted by the U.S. Supreme Court. In 2021, Republican attorneys general in Texas and Missouri sued to prevent termination of “Remain in Mexico.” They argued that §1225(b)(2)(A) requiring detention of migrants pending resolution of claims to remain is mandatory; that, notwithstanding §1182(d)(5)(A), the DHS Secretary lacks the authority to parole large numbers of persons into the U.S. on a programmatic basis; and therefore that returning migrants who cross the Mexican land border to Mexico is the only legal option if U.S. authorities have insufficient detention capacity. A Trump-appointed district judge in the Northern District of Texas bought this claim and enjoined termination of the program. The Fifth Circuit agreed. But in June 2022, in Biden v. Texas, the U.S Supreme Court overruled the lower courts.

Chief Justice Roberts’ opinion found that detention is not mandatory under §1225(b)(2)(A) because §1182(d)(5)(A) grants parole authority. Nor, said Roberts, is an administration obliged to adopt a return to Mexico policy if the government lacks the capacity to detain all would-be migrants. Roberts emphasized that the statute authorizing return across the Mexican land border is permissive, saying only that aliens “may” be returned. In short, the U.S. Supreme Court found that the Biden administration is every bit as entitled to revoke the “Remain in Mexico” program as the Trump administration was to adopt it. Remarkably, the Heritage brief in favor of impeaching Mayorkas does not even mention the Supreme Court’s opinion in Biden v. Texas.

It is true that Texas and Missouri have since returned to the same district judge and obtained a stay of the termination of MPP, this time by claiming that Mayorkas’s formal explanation of the termination failed to comply with the requirements of the Administrative Procedures Act. But the district court opinion is, at best, a tendentious reading of both the facts and the APA, almost certain to be overturned on appeal. In any case, the allegation that a cabinet secretary failed to dot the “i’s” and cross the “t’s” required by the APA is hardly the stuff of which a serious impeachment case is made.

Moreover, on Feb. 21, 2023, the Biden administration announced a new policy creating a rebuttable presumption against grants of asylum to claimants who reach the U.S. border through a third country and did not seek asylum in that country. Inasmuch as this new rule covers virtually all Central American migrants who travel through Mexico to the U.S. southern border, immigrant rights advocates are passionately protesting the policy as a de facto reinstatement of Trump’s “Remain in Mexico” scheme.

In short, the primary southern border impeachment argument of Mayorkas’s critics fails as a matter of law because the Supreme Court held that the Secretary had the legal power to terminate MPP. And it fails even as a convincing partisan smear because, in practice, the Biden administration has instituted policies governing migration from Mexico only moderately less restrictive than Trump’s.

Prioritizing Deportation of Criminal Aliens is Not an Exercise of an Improper “Dispensing Power”

Obama administration policy for aliens encountered in the U.S. interior was to focus the inescapably limited arrest, detention, and litigation resources of DHS on apprehension and deportation of recent arrivals and aliens with criminal records. Trump abandoned  this approach in favor of an undifferentiated policy of attempting to seize and deport anyone illegally present in the country. The Biden administration has essentially reverted to the Obama model, prioritizing deportation of aliens with criminal records and recent arrivals.

The Heritage brief characterizes this change in enforcement emphasis as a constitutional offense. To lend a gloss of superficial erudition to the charge, the brief nonsensically claims the Biden policy is analogous to an exercise of the “dispensing power” employed by Britain’s Stuart kings, condemned by England’s Bill of Rights in 1689, and arguably disapproved of by the Framers of the U.S. Constitution.

The Heritage authors plainly know little about the dispensing power. By roughly 1600, a dispensation was a kind of royal license to ignore an otherwise applicable statute, used primarily to give recipients commercial advantages, sometimes amounting to monopolies or favorable trade concessions.  The key point is that it was an official permission to engage in future conduct that would otherwise violate an existing law. Nothing done by Secretary Mayorkas fits that description. Changing DHS immigration enforcement priorities gives no one official permission for future violations of immigration law. Nor does it pardon past violations. It is simply an exercise of the government’s undoubted power of prosecutorial discretion. (A challenge by Texas and Louisiana to the changed Biden priorities is pending in the Supreme Court. Given the tenor of the December 2022 oral arguments, the states seem unlikely to prevail.)

One can fairly argue that Trump’s enforcement policy was preferable to that of Obama and Biden. But choosing the Obama-Biden approach is not remotely an impeachable offense.

The Claim that Secretary Mayorkas “Lied” to Congress is Unsupported

Both the Fallon impeachment petition and the Heritage brief lean heavily on the claim that Secretary Mayorkas is impeachable because he “lied” to Congress. An executive branch officer may properly be impeached if he or she has committed perjury in congressional testimony or otherwise deceived Congress by providing materially false information on a matter of consequence. But Secretary Mayorkas has done neither of those things.

The allegation of “lying” to Congress in the Fallon petition is based on a single contentious exchange between Secretary Mayorkas and Rep. Chip Roy (R-TX) during an April 28, 2022, hearing of the House Judiciary Committee. The subject was the text of the 2006 Secure Fence Act. The Act required that, within 18 months of its enactment, “the Secretary of Homeland Security shall take all actions the Secretary determines necessary and appropriate to achieve and maintain operational control over the entire international land and maritime borders of the United States.” The Act defines “operational control” as “the prevention of all unlawful entries into the United States, including entries by terrorists, other unlawful aliens, instruments of terrorism, narcotics, and other contraband.” In short, the Act, an obscure piece of performative trivia passed in the Bush administration, required that the Secretary act immediately to achieve the impossible – complete prevention of “all” illegal crossings of the U.S. border by persons or contraband. Unsurprisingly, this miracle has not yet been achieved by any administration, Republican or Democrat.

Nonetheless, Roy asked Secretary Mayorkas whether “operational control” of the border had been achieved. The Secretary imprudently said yes. Whereupon, the congressman triumphantly confronted the Secretary with a poster containing the statutory definition of this unattainable state. The Secretary mildly responded that he thought his predecessor in the Trump administration would have given the same answer. No one was in the slightest bit deceived by this bit of theatrics. As the basis for impeachment, it is comical.

Perhaps recognizing the silliness of Fallon’s approach, the Heritage brief contends that on various occasions Secretary Mayorkas has falsely said that the southern border is “secure.” That is surely a debatable assertion, maybe even an imprudently optimistic one. But anyone hearing it recognizes that it is not a categorical assertion of perfect border impermeability, but rather a claim of relative success in addressing an intractable problem. No one has been or will be deceived by the Secretary’s statements about border security.

There is No Case for Impeaching Secretary Mayorkas

All the arguments for impeaching Secretary Mayorkas boil down to expressions of disapproval of the Biden administration’s relaxation of Trump-era immigration policies. If one believes that both legal and illegal immigration are bad for the country and ought to be dramatically constrained, then one can fairly oppose Biden’s policy choices. But, at least if one seeks to remain true to established constitutional law and precedent, that opposition cannot be tortured into a case for impeaching Secretary Mayorkas.

IMAGE: U.S. Department of Homeland Security Secretary Alejandro Mayorkas listens as President Joseph Biden speaks during a meeting with governors visiting from states around the country in the East Room of the White House on Feb. 10, 2023 in Washington, D.C. (Photo by Anna Moneymaker via Getty Images)

The post Republicans Are Calling to Impeach Homeland Security Secretary Alejandro Mayorkas, Here’s Why Their Case is Bunk appeared first on Just Security.

With this strong win, why did the Biden administration, following a subsequent lower court ruling (for which DOJ recently noticed an appeal), once more ask Mexico for permission to restart the program? Did it mistakenly believe that it was required to do so – and, if so, what might this clear misapprehension signal for other immigration cases working their way through the courts?

The administration’s recent outreach to Mexico regarding MPP became public when the government of Mexico two weeks ago shut the door on working with the Department of Homeland Security (where I worked as Deputy General Counsel from 2021-2022) to reimplement the program. DHS replied to press inquiries about Mexico’s announcement by saying that its ability to implement the program “pursuant to court order” has always depended on Mexico’s willingness to accept people being returned to that country. While true, that is also beside the point: although the district court in August 2021 ordered the administration to reimplement the program, its December 2022 decision following the Supreme Court rebuke simply blocked the Secretary’s termination of the program for a third time, but ordered it to do nothing more.

There are three possible reasons why the administration pursued reimplementation of MPP.

First, the U.S. government may have reengaged Mexico hoping and expecting that it would do precisely what it did: publicly reaffirm that it has no interest in allowing the United States to reimplement the program. Such a statement may be tactically useful in pending litigation. For instance, as Mexico’s consent and close cooperation is a necessary precondition for the United States using MPP, its public opposition highlights the absurdity of the district court’s seeming obsession with obstructing the administration’s attempts to do exactly what the Supreme Court said it lawfully could do: end the program.

Second, the U.S. government may have reengaged Mexico because some in the administration actually want to restart MPP. If so, that is certainly their prerogative, but it would be a concerning development given the strong record the administration itself established to justify its decision to twice terminate the program. In October 2021, DHS Secretary Alejandro Mayorkas described MPP as resource-intensive, distracting from more comprehensive efforts to work with regional partners to manage migration effectively, and inconsistent with the nation’s values.

A final possibility is that some in the Biden administration genuinely believe Kacsmaryk’s decision compelled it to take steps to reimplement MPP, including by reengaging with Mexico. If that is the case – and DHS’s press response suggests it might be – alarm bells should be sounding. The district court’s impermissible intrusion into matters of foreign relations entrusted by the Constitution to the executive featured prominently during oral argument in the case before the Supreme Court, and was a core part of the analysis in Chief Justice John Roberts’s majority opinion and Justice Brett Kavanaugh’s concurrence. While Kacsmaryk later preliminarily blocked the administration from taking down the policy architecture undergirding MPP, he stopped well short of ordering the government to work toward reimplementing the program because the Supreme Court clearly admonished him against issuing such an order. In fact, unlike earlier in the case, Texas itself didn’t even seek such an order in the relevant court filings. If some in the administration believe they were under a court order to reengage with Mexico, that could have negative repercussions beyond the immediate case.

Late last month, for instance, 20 Republican state attorneys general filed a lawsuit in another cherry-picked Texas courtroom before Judge Drew Tipton to block a series of new measures that will allow up to 30,000 individuals from Cuba, Haiti, Nicaragua, and Venezuela to enter the United States each month through a process called “parole.” The parole processes are legally sound for myriad reasons, but perhaps the most compelling is that Congress entrusted the Secretary with the discretionary authority to determine when to grant individuals parole for significant public benefit, and that determination may be informed by matters of foreign relations entrusted by the Constitution to the executive. That is the case here.

The parole processes were developed as part of a broader set of border management and orderly pathway reforms that the administration credits with reducing border encounters of nationals from these four countries by 97 percent, and overall Border Patrol apprehensions by 42 percent. This package of reforms appears to be the result of bilateral negotiations with the governments of Mexico and Cuba, as well as multilateral talks among heads of state throughout the Western Hemisphere. The parole processes advance commitments made by the United States and 20 other countries under the Los Angeles Declaration on Migration and Protection to “expand access to regular pathways for migrants and refugees” and are designed to relieve pressure on the governments of Costa Rica, Guatemala, Honduras, Mexico, and Panama, which are all affected by high levels of irregular migration through their countries. The parole processes also were essential to securing Mexico’s agreement to accept the expulsion, return, or removal of up to 30,000 Cuban, Haitian, Nicaraguan, and Venezuelan nationals each month who likely would not otherwise have been removed from the United States because of significant repatriation challenges. In fact, the U.S. government hopes that the implementation of the Cuban Parole Process will advance ongoing bilateral talks with the government of Cuba to reactivate the Cuba Migration Accords and get the Cuban government to once again accept the repatriation of its nationals from the United States.

The Supreme Court even examined the parole authority in the MPP case, and it was in that context that Kavanaugh – the fifth vote in the case – explained in a concurrence that where a Secretary’s decision to exercise their discretionary parole authority to advance a significant public benefit is supported by a “reasonable and reasonably explained” justification involving foreign policy concerns, courts must be deferential. Looking at the statutes at issue in the case, including the statute authorizing the use of parole, Kavanaugh found no basis to believe that “Congress wanted the Federal Judiciary to second-guess the President’s Article II judgment with respect to American foreign policy and foreign relations.” The lengthy and detailed Federal Register Notices accompanying each of the four new parole processes provide just that sort of “reasonable and reasonably explained” justification.

The Supreme Court’s MPP decision, with which Justice Amy Coney Barrett concurred on the merits even as she dissented on the judgment, offers a powerful reason why the challenge to the new parole processes must be rejected quickly. And as the plaintiff states have now sought a preliminary injunction to block further implementation of these parole processes, if the district court or the Fifth Circuit do put them temporarily on hold, the Supreme Court must issue a stay to prevent these lower courts from once more erroneously dictating federal policy on matters that are entrusted to the executive, as Kascmaryk already did in the MPP litigation before the Court issued its reversal and as Tipton did more recently in the pending challenge to Mayorkas’s civil immigration enforcement guidelines.

Understanding the significance of the Supreme Court’s MPP decision is critical to understanding why the administration would be dead wrong if it believed Kascmaryk’s December ruling ever could have ordered the U.S. government to reengage with Mexico to restart MPP. But understanding the significance of the ruling also will be key for the administration to mount the strongest possible defense for the new parole policies.

IMAGE: Asylum seekers wait at a fence to cross into the United States at El Chaparral crossing port on the US/Mexico Border in Tijuana, Baja California state, Mexico, on February 29, 2020. (Photo by GUILLERMO ARIAS/AFP via Getty Images)

The post Troubling Signs in Biden Administration’s Recent Efforts to Reimplement Migrant Protection Protocols Program appeared first on Just Security.

The new transit ban would violate the United States’ protection obligations to refugees, which are long-standing and solidly based in both international and domestic law. The United States acceded in 1968 to the Refugee Protocol, which incorporates the substantive provisions of the 1951 Refugee Convention. With congressional passage of the Refugee Act in 1980, the United States aligned its federal immigration statute with the provisions of the Refugee Convention and Protocol. The cornerstone of both international and domestic law is the principle of non-refoulement, the prohibition against returning refugees to any country where their lives or freedom would be threatened.

Although the U.S. refugee statute does permit the denial of asylum to those who pass through a “safe third country” en route to the United States and do not apply for protection there, the law sets forth two non-negotiable requirements – the country of transit must not be one where the asylum seeker’s life or freedom would be threatened on account of their race, religion, nationality, membership in a particular social group, or political opinion, and the asylum seeker must have access to a “full and fair” procedure for determining claims to protection. (The United States must also have a formal agreement with the third country.)  These conditions are not met in the countries most asylum seekers travel through on their way to the United States.

The Biden administration will undoubtedly argue that because the proposed rule imposes only a rebuttable presumption instead of an outright prohibition, it is distinguishable from Trump’s legal ban and will pass legal muster. But the facts on the ground do not support even a presumption of safety and access to a full and fair procedure.

Furthermore, if the presumption of ineligibility is applied during credible fear screening interviews at the border, as part of the deeply flawed expedited removal process, it will be very difficult for asylum seekers to clear the hurdle it presents. The majority of asylum seekers navigate expedited removal without an attorney, and do not possess detailed knowledge of human rights conditions and asylum procedures in each of the countries they transited in order to make the case that they qualify for an exception. The United Nations High Commissioner for Refugees (UNHCR) has specifically recommended that “exclusion” decisions, which would include decisions such as those made on the applicability of the transit ban, not be made in accelerated procedures such as expedited removal.

All migrants arriving at the southern border have transited Mexico, and depending on their country of origin and route, they may have traveled through Guatemala, El Salvador, Honduras, Nicaragua, Costa Rica, or Panama before arriving to Mexico. With the possible exception of Costa Rica, none of these countries of transit offer the safety or access to a refugee protection system which would justify imposition of the ban.

Pervasive violence against migrants in Mexico, carried out by state as well as non-state actors, has been well-documented. The most recent U.S. State Department country conditions report noted the “targeting and victimization” of migrants, and in striking down the Trump transit ban in July 2020, the Ninth Circuit Court of Appeals cited the high levels of violence, including sexual violence, against asylum seekers in Mexico.

Even if Mexico were safe, which it is not, U.S. policies, such as Title 42, have overwhelmed its refugee system, preventing meaningful access to a “full and fair” procedure. A little over a decade ago – in 2011 – a  total of 752 claims for refugee protection were lodged; in 2021 the number had soared to over 130,000. Funding has not kept pace, and the Mexican Commission for Refugee Assistance (COMAR) lacks resources for its core operations.

The four Central American countries south of Mexico – Guatemala, El Salvador, Honduras, and Nicaragua – are even less able to pass the safe third country test. Significant human rights abuses, including extrajudicial killings, torture, and disappearances, prevail at high levels in each country. Honduras, El Salvador, and Guatemala have the highest rates of femicides (gender-motivated killings) in the world, as well as extreme violence against LGBTQ+ individuals, while the brutal suppression of political opponents to the authoritarian regime in Nicaragua is well-documented.

Furthermore, not one of the four countries has anything approaching an adequate refugee protection system. Guatemala’s system has been described as “inadequate” and cumbersome, and El Salvador’s as having “major regulatory and operational gaps.” The system in Honduras is “nascent,” and those individuals who try to access it, especially women, children, and LGBTQ+ individuals, are especially vulnerable to abuse and sexual exploitation. Nicaragua is even more of an outlier, having ceased any cooperation with the UNHCR; in 2015 it suspended meetings of its refugee determination body, the National Commission for Refugees.

This leaves Costa Rica, a country with a population of five million, and Panama, a country of four million, as remaining countries of transit for the majority of asylum seekers arriving to the United States. Although they have human rights records far superior to any of the countries discussed above, access to protection is complicated by the unique circumstances in each.

Costa Rica, with its admirable human rights record, well-established asylum framework, and history of welcoming refugees, has long been viewed as a destination country for those seeking protection. In recent years, however, it has been swamped by claims for protection; in 2021 and 2022, it was among the top four countries globally for asylum claims registered. In the beginning of 2022, the UNHCR reported just under 1.44 million asylum seekers in the United States — a country of 332 million — and 204,730 applications in Costa Rica, a country of 5 million; in other words, Costa Rica is already taking approximately 10 times as many refugees per capita as the United States. The rising numbers have overwhelmed Costa Rica’s systems, resulting in delays, difficulty accessing protection, and a rise in “xenophobic, racist, and discriminatory” attitudes. This has also led to the adoption of restrictive asylum policies, including its own “safe third country” ban, and rules that limit the right to work and freedom of movement.

In contrast to Costa Rica, a country of destination, Panama has been seen as a country of transit. Migrants enter via the Isthmus of Darién, which straddles the border of Panama and Colombia. They then travel north on the infamously dangerous route known as the Darién Gap. Panama has also experienced a dramatic rise in numbers. In the seven years from 2013 to 2020, just over 100,000 migrants entered Panama through the Darién, while in 2021 alone, the number rose to 140,000.

Panama has a refugee protection system, but the process is difficult to access. The country applies its refugee laws in an extremely narrow manner, leading Panama to have an asylum approval rate of only 1 percent, and a record of having only granted asylum to 2,500 refugees since it began hearing claims. In-country experts consider refugee status to be “the single most difficult pathway” to obtain legal status in Panama. Even those who are recognized as refugees find it difficult to integrate due to laws which prohibit non-citizens from a broad range of professions. Human rights groups have proposed and advocated for migration reform so that ultimately Panama can become a “safe harbor for . . . refugees.” However, that day has yet to arrive.

The Biden administration could be forgiven if it were totally unaware of the conditions in the countries of transit – which are either patently unsafe, or beyond capacity.  But lack of knowledge is not the case, making the administration’s actions all the more deplorable. With the planned implementation of his own version of a transit ban, Biden stands willing to outsource U.S. protection obligations to countries such as Costa Rica, which are already overwhelmed by a disproportionately high rate of asylum applications per capita, or in the alternative, to return those fleeing persecution to situations as violent as those they have fled.

But beyond the legal folly of resurrecting the ban is the shame that this administration should feel when it repudiates its international and domestic obligations, tries to offload its responsibilities to smaller countries with far less resources, and abandons not only refugees seeking protection, but its own moral high ground. One can only hope that the Biden administration will heed the call of lawmakers, faith leaders, and community groups to reconsider its plan to impose a transit ban. If it does not, it can anticipate a sustained critique throughout the notice and comment period, and beyond.

IMAGE: US President Joe Biden speaks with El Paso Mayor Oscar Leeser as he visits the US-Mexico border in El Paso, Texas, on January 8, 2023. (Photo by JIM WATSON/AFP via Getty Images)

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Values: Easier Said than Done

As the Biden administration approaches the end of its second year in office, it is time to consider whether it is delivering on its promise of pursuing a “values-based” foreign policy. While all administrations stake claim to pursuing American values, President Joe Biden came to office particularly vocal about the need to place values at the core of U.S. policy. His National Security Strategy repeats the word 29 times, with Biden stating up front that, faced with “a strategic competition to shape the future of the international order…the United States will lead with our values.” The term “values” is never precisely defined, and is sometimes preceded by “democratic” or followed by “and interests.” Values are invoked in relation to human rights, economic growth, international finance, the military, migration, and international cooperation. A bit like the air around us, values are everywhere, but hard to pin down.

At first blush, it appears that in its first two years, the Biden administration’s actions have often fallen short of its repeated lofty rhetoric about putting values first. A high-profile example would be Biden’s engagement with Saudi Arabia, despite having promised to treat it like a pariah because of Crown Prince Mohamed bin Salman’s (MBS) role in the murder of journalist Jamal Khashoggi. Biden’s famous fist-bump with MBS seems particularly egregious in hindsight, as he appears to have gotten nothing from the Saudis in return. Another example would be the administration’s handling of the migrant situation at the southern border, and in particular its shifting position on the use of Title 42’s authority to expel migrants on public-health grounds that were no longer extant.

Why is it so hard to pursue a values-based approach to foreign policy? A lot can be attributed to when soaring aspirations meet unyielding realities, both practical (how to manage thousands of migrants in a highly politicized atmosphere and with inadequate tools) and in degree of complexity (the United States has many significant, and sometimes competing, interests in Saudi Arabia). Still, some U.S. administrations appear to achieve better alignment between their foreign policy implementation and their stated ambitions to put core values first. Joseph Nye evaluated the ethics of prior U.S. administrations’ foreign policy in Do Morals Matter? Presidents and Foreign Policy from FDR to Trump (2020). Nye identifies criteria and uses his framework to evaluate presidential administrations’ ethical shortfalls and successes. He embraces the prevalent conception that the role of ethical analysis of foreign policy involves after-the-fact conclusory judgments of right or wrong, good or bad.

That approach is more helpful to the foreign policy academic than to the practitioner. We advocate a different role for ethics, not as hindsight moral appraisal, but rather as forward looking, in which ethical reasoning guides and shapes foreign policy decisions not yet made. In our collective experience as a former senior government official and ethical consultant, we believe that the United States lacks a disciplined process for ensuring that its foreign policy decisions align with its priorities and values. In what follows, we recommend a practical decision-making methodology to do just that.

Three Essential Pillars

Reviewing the record of past administrations, two elements have been essential for pursuing successful, ethical foreign policies: articulating a strategic vision and developing (and maintaining) trust with allies and adversaries. We believe a third element is also required: defining decision-making processes that align foreign policy actions with stated values.

The first element is a fully formed strategic vision that is based on values, focused on long-term objectives, and anchored in an understanding of the foreign policy context, including that of the other interested parties.

Consider the Marshall Plan, the Truman administration’s comprehensive strategy for using large-scale economic assistance to avoid economic ruin and promote development and stability in Europe. Though developed in a short period of time, the Marshall Plan was the result of multiple sets of U.S. officials debating various scenarios to ensure that the process implementing the plan would succeed, such as by allowing each European country to determine how best to use the U.S. funds provided. The Marshall Plan fit into a broader strategic vision for a liberal international order, which would promote rules-based economic global development and work as a pro-western bastion against the Soviet Union during the Cold War.

Contrast the Marshall Plan with the invasion of Iraq in 2003, which was also a deliberate and premeditated foreign policy decision, although it was launched on the faulty premise of an active Iraqi weapons of mass destruction program and based on a wholly unrealistic interpretation of the context and interested parties. The Bush administration dismissed warnings about the potential long-term negative consequences, and, beyond the initial invasion, subsequent administrations often substituted wishful thinking for hard analysis about whether they were advancing toward their stated objectives in Iraq.

The second key ingredient to foreign policy success is trust, which is essential for implementing a strategic vision. Predictability and dependability are the cornerstones of trust. Foreign policy is built on a cumulative record, not one-off transactions—the willingness of others to support U.S. policy priorities today is closely tied to its actions yesterday and behavior in general.

Unfortunately, the U.S. record on both counts has been badly tarnished in recent decades. The botched invasion of Iraq not only failed to achieve any stated objectives beyond the departure of Saddam Hussein, but its continuing trail of death, destruction, and instability has been devastating to U.S. credibility and leadership around the world. Even our closest allies openly question American reliability, particularly since the Trump administration. Regaining lost trust takes considerable time and consistent effort. As the Dutch say, trust comes on foot and leaves on horseback.

The record is at best mixed on how well different administrations have upheld the values they profess underpin U.S. foreign policy. The path from rhetorical flourish to a record of foreign policy success is long, perilous, and often obscure. It requires overcoming internal political and bureaucratic roadblocks, as well as external opposing actors and unexpected developments, without losing sight of long-term policy objectives in a flurry of daily distractions. Every administration faces the frustration that its own priorities are in constant competition with a steady flow of foreign policy matters that are not part of the plan, as other countries pursue their strategic interests, crises occur, and global developments play out. These extraneous matters may absorb huge amounts of bureaucratic time and energy, distracting from other foreign policy priorities.

For that reason, we believe there is a third essential ingredient for success that has thus far been missing in U.S. foreign policy— a structured decision-making process for ensuring that values, long-term strategic objectives, and the policy context are consistently factored into all foreign policy decisions. Such a mechanism would provide the administration with the means to keep its eye on the ball, addressing exogenous or unexpected issues that arise in a manner consistent with its strategic vision.

There are examples where Washington has dealt with new developments through the prism of its defined values and long-term objectives, with a solid understanding of the foreign policy context. The resulting action was consistent with its strategic vision and thereby enhanced the overall coherence of its foreign policy and its reputation for dependability. The Kennedy administration’s response to the Cuban Missile Crisis is a case in point, as is the George H. W. Bush administration’s approach to German reunification. In both cases, the administrations were clear about the values and principles that mattered, but also understood the context and how to address Moscow’s concerns. On the other hand, the Obama administration’s approach to Libya or the Reagan administration’s handling of Nicaragua were examples where Washington took short cuts on the respect for values and misjudged the context and other actors. The results were harmful to Libyans and Nicaraguans, as well as to the U.S. reputation, and therefore also detrimental to those administrations’ ability to pursue other policy priorities.

The U.S. government has a well-developed wiring diagram designating “who” is involved in foreign policy decisions, through a system of interagency coordination, generally led by the National Security Council (NSC). What is missing, however, is a well-defined procedure for determining the “what,” the factors under consideration in decisions. Given the fast-moving and overloaded foreign policy agenda, the absence of a methodology to ensure the quality of the decision-making substance through a consistent review of core principles can lead to myopic, transactional decisions that define national security interests too narrowly and favor short-term considerations.

A process that casts all decisions in the context of the country’s shared values and long-term interests increases the overall quality and coherence of its foreign policy. Such decision-making methodologies exist and work in the private sector.

Developing an Ethical Checklist

We recommend a decision-making framework, amounting to an ethical checklist, that is based on extensive research regarding human psychology and institutional design. Apart from the specific procedural recommendations that we make, the key is to design, adopt and practice a disciplined methodology for all decisions that is based on values and principles, as well as a deeper appreciation of the strategic policy-making context. Counting on the expertise of even the most capable foreign policy professionals is not enough. Groupthink and blind spots are inevitable even in the most well-functioning bureaucracies.

One might think a “checklist” unnecessary in a policy system that is staffed by foreign policy professionals and already requires various levels of clearances and approvals across the interagency process before reaching a decision point. But, as numerous studies have demonstrated, checklists are invaluable in ensuring the quality and integrity of processes, even among the most accomplished professionals, such as surgeons, architects, and pilots. In busy, overtaxed bureaucracies, expediency lurks at every turn—in bureaucratic cultures that promote consensus, when there is little bandwidth to consider all the angles or seek out all the necessary information, or when employees are discouraged from questioning conventional wisdom or their superiors. Less important issues requiring time-sensitive attention often crowd out identified priorities that are more complex but require no immediate action. The costs of expediency are considerable in terms of policy success and are particularly damaging to reputation, as it is often our more overarching professed values (such as environmental protection, human rights, global health), which suffer most in decision-making processes that favor short-term policy wins.

For students of the psychology of decision-making, the behaviors cited above are familiar. The human brain daily faces thousands of decisions, large and small. Left to its own devices, it will make these decisions on autopilot, often based on incomplete information at best, or misinformation at worst. Human brains seek efficiency and prefer shortcuts, hunches, and prejudices over hard work. Decisions are largely intuitive and emotional, trusting previous experience over new information. Our brains resist information that contradicts both our self-image as well as our prior beliefs and choices. We add to sunk costs, where we maintain an approach in which we have already invested heavily, even when there is information showing that it is not working. In fact, the brain will make decisions based exclusively on the information put before it at the decision point, even if it is aware of additional relevant information. Once an autopilot or near-automatic decision has been made, we build elaborate post-hoc narratives to justify it.

But the brain is also capable of making well-informed, rational decisions, consistent with settled values. There are empirically-demonstrated methods for switching from autopilot to a more deliberative information-gathering approach. For example, the Eight Key Questions (8KQ), developed over a decade ago at James Madison University, enhances university students’ capacities to analyze thorny ethical problems and act on better information. It also has been adopted in business, government and even prison systems to ensure that their decision-making processes reflect the priorities and principles of those organizations.

There are many methods for making better informed decisions. These frequently call for steps such as collecting information, identifying stakeholders, anticipating possible outcomes, and creating action alternatives. These are essential steps to take before making decisions. However, these steps are inadequate for making ethical decisions. The 8KQ process is distinctive in bringing explicit attention to ethical considerations and doing so through a collaborative question-asking method. Catalyzing conscious and non-conscious deliberation on common ethical values initiates dialogue that produces various perspectives and diverse approaches to complexity in real world circumstances.

The 8KQ critical-thinking process is based on extensive research of how the brain actually makes decisions and is designed to disrupt and interrogate quick, “biased” intuitions through reflection at the decision point. Asking questions cues deliberation. The shared values both prime and prompt conscious and unconscious attention. The all-too-common phenomenon of moral “blind spots” is mitigated by calling to mind the shared values which then focus both perception and attention on what might otherwise be ignored. Personal biases may be mitigated by diverse group processes. The tendency to rationalize immediate intuitions is challenged by questioning. These faulty decision sources, features that generate unpredictability and undermine trust, can be mitigated by consistent practice of the 8KQ question-asking strategy.

The 8KQ questions are:

Fairness: What decision results in an equitable approach, balancing all legitimate interests?

Outcomes: What actions achieve the best short and long-term outcomes for everyone?

Responsibilities: What duties or obligations apply?

Character: What actions best express a personal or collective ideal?

Liberty: What actions best respect autonomy, integrity, dignity, and choice of all involved?

Empathy: Do the actions reflect empathy and care for all parties?

Authority: What legitimate authorities should be considered?

Rights: What rights, if any, apply?

Applying the Checklist to Saudi Arabia

The Biden administration has a highly experienced foreign policy team that has made considerable efforts to reach out to countries across the globe to advance administration priorities while rebuilding trust. Secretary of State Antony Blinken speaks regularly of the importance and the complexity of pursuing a values-based foreign policy. For example, prior to Biden’s trip to Saudi Arabia in July, 2022, Blinken outlined the complexity of getting the balance right among different objectives in the U.S.-Saudi Arabia relationship, stating: “President Biden was determined that we recalibrate the relationship with Saudi Arabia and to make sure that that relationship was serving our own interests as well as our values.” Blinken went on to cite some of the ethical and policy issues in play: the murder of Jamal Khashoggi and human rights more generally, the war in Yemen, counterterrorism cooperation, protecting 70,000 Americans living in Saudi Arabia, relations with Israel, and oil production in the context of the war in Ukraine. He concluded, “we want to make sure that through the relationship we are addressing the totality of our interests… and take a comprehensive approach to Saudi Arabia as we do with any other country.”

In the end though, Biden’s visit gave MBS the legitimacy he sought from the United States, without achieving a key strategic priority for the United States—convincing the Saudis to delay an OPEC+ reduction in oil production at least until after the mid-term elections. Did the Biden team misjudge the mix of factors at play in the U.S.-Saudi relationship? Was the perception of Washington “giving up” on pursuing accountability for the Khashoggi murder worth the gamble of getting a short-term extension of OPEC+ production levels? These are the types of questions that the 8KQ is designed to raise. The process was not created with foreign policy in mind. However, it could serve as a model for a structured, questioning method to ensure values consistency over the long-term in policy development and implementation.

It is not possible in a few paragraphs to capture the breadth of reflection and interaction in an 8KQ exercise, considerations that would likely have been part of an 8KQ-type process for deciding, for example, whether Biden should have visited Saudi Arabia and met with Crown Prince Mohamed Bin Salman in July.

Under “fairness,” one might first consider the various U.S. interests, certainly those mentioned above by Blinken, but also including Iran, regional stability, and so forth. Next would come “other legitimate interests,” starting with Riyadh’s own concerns (e.g., its autonomy as an energy producer, its economic well-being, or its role in the region), but also the interests of the human rights community, Khashoggi’s family, those supporting strong action on climate change, and more. The later 8KQ questions of “liberty” and “empathy” cover similar ground but examine to what extent one understands and respects the legitimate interests and situation of other parties. By asking explicitly about “fairness,” decision-makers are prompted to explore and investigate a broad range of factors beyond short-term considerations.

The analysis of “outcomes” would review the range of possible results from the visit and which interests were advanced. For example, if Biden’s visit embraced MBS and played down the questions of human rights and the Khashoggi murder, but achieved Saudi agreement on increasing oil production and ending the war in Yemen, it would represent a negative outcome for the long-term interests of justice and respect for human rights; a significant short-term victory for Biden in managing the consequences of the war in Ukraine and its impact on the global energy markets; and a mixed outcome on Yemen, representing an important end to human suffering and destruction, but without much hope for eventual accountability for the atrocities that took place during the conflict.

The key question of “character” provides a different perspective on outcomes, analyzing whether a decision is consistent with the values and self-image one wishes to project and what impact it could have on one’s reputation with different audiences. For example, how does it affect Washington’s claim to global leadership in defending human rights and accountability when President Biden appears willing to downplay the Khashoggi murder as part of a deal on oil-production levels?

“Responsibilities” could include the president’s obligation to protect U.S. citizens overseas; laws and public commitments to uphold human rights and pursue justice, to reduce the use of fossil fuels vs. the duty to prevent economic decline and hardship at home, to reduce human suffering, or to support international humanitarian law. In parallel, the 8KQ questions of “rights” and “authorities” examine whether other legal or moral rights arise in the actions under consideration and whether there are other authorities that could be affected, such as treaties and agreements, but also political or consultative groups with significant standing, (e.g., the United Nations and NATO).

Institutionalizing Ethical Decision-Making

An 8KQ-style ethical decision-making checklist injects values, principles, and shared ethical considerations to guide foreign policy decisions and actions. The eight areas of inquiry have been identified in scholarly research as the range of moral considerations needed to form the basis of an ethical decision. It is not a means of imposing either external moral principles or specific decisions. Rather, habitually raising thoughtfully designed questions provides a disciplined, pragmatic process for ensuring that officials consider different relevant factors, including principles and commitments, before making a decision.

The proposed framework represents a dynamic approach that requires complex judgments—it is not a magic formula that produces one right answer. What represents the “most ethical” decision may be different for different people. What makes a decision ethical, however, is that it takes into account the identified areas of inquiry.

The 8KQ framework can easily be adopted in practice. The framework could be incorporated into training programs for incoming State Department and other policy and intelligence officials, as well as reinforced as part of continuing leadership training throughout their careers. Experience with university students, businesses, and other institutions demonstrates that the ethical questioning process is useful at both the individual level—when facing difficult professional or personal challenges—and at the systemic level, from human-resource management to developing and implementing complex policies.

Following the 8KQ questions would help concretize and implement the lofty goals contained in Biden’s National Security Strategy. A custom question-based methodology could be tailored to the decision-making procedures in relevant U.S. Government agencies and become the basis for consistently ethical decision-making across the Interagency. At first, it may seem either artificial or just one more hoop to jump through, but, as with all new best practices, it would eventually become second nature and produce tangible benefits. Using the ethical checklist, not only when establishing an overall policy, but also during the many big and small decisions implementing that policy over the years, would help ensure that the overall policy approach is consistent with stated values and principles, even when circumstances have changed. A formal ethical reasoning strategy could achieve the integrity in foreign policy that the Biden administration says it aims to achieve.

* * *

The objective of U.S. foreign policy will remain the defense and advancement of U.S. interests in the world. A checklist methodology does not favor a particular outcome, only well-informed, ethically-sensitive, decisions that are not skewed in favor of short-term outcomes. Adopting the framework would naturally bring all eyes back to the ball, anchoring policy decisions to the strategic vision. Like a pilot before take-off, it’s important not to have overlooked anything essential. At that point, a decision still requires policymakers to exercise sound political judgment to weigh various scenarios. Sometimes, their judgment may be to opt for a politically expedient action when there is no suitable alternative. Ultimately, if the overall result of an enhanced decision-making process is a foreign policy that gives greater emphasis to values and avoids misjudgments, misunderstandings, and blind spots, both the United States and the world will be better off. Global leadership depends upon values-driven policy and trust.

IMAGE: Close-up of a handshake of two politicians after negotiations on a blue background with a US flag. 

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