These bills – which are opposed by groups including the National Asian Pacific American Bar Association, where I previously served as Policy Director and continue to advise – raise significant concerns regarding the balancing of national security equities against civil liberties, federal preemption grounds, and present a host of unintended consequences with the potential to harm the economies of affected states. Opponents of these bills have described such legislation as a revival of unconstitutional anti-Asian land laws — a class of law once called “alien land laws” — and an ongoing threat to the civil rights of all Asian Americans, regardless of ethnic background.

Did You Say “Asians” or “Agents”?

On May 8, 2023, Florida Governor Ron DeSantis signed into law SB 264, which bars “foreign principals” — defined as government officials, members of political parties, and anyone domiciled in certain countries of concern (China, Russia, Iran, North Korea, Syria, Venezuela, and Cuba) from purchasing any agricultural land or any property within 10 miles of a military installation or critical infrastructure. The law also specifically bars any Chinese foreign principals from purchasing any real estate whatsoever in the state, with limited exceptions for residential property by those lawfully present in the United States. Upon enactment, DeSantis proclaimed, “I’m proud to sign this legislation to stop the purchase of our farmland and land near our military bases and critical infrastructure by Chinese agents.”

The legislation, however, far exceeds the purchase of strategically important land by “Chinese agents.”  With few exceptions, anyone domiciled in China – regardless of non-affiliation with the CCP – is barred from purchasing real estate in Florida. Unlike Russians or Syrians, Chinese citizens are singled out and prohibited from purchasing non-residential property, even land nowhere near a military base. There are carveouts for dual U.S. citizens and green card holders, but other lawfully present Chinese nationals face further restrictions.  Violations could result in forfeiture and criminal penalties.

If part of the intent of the Florida legislation is to thwart the viability of adversarial authoritarian regimes, the law’s blanket prohibition on real estate acquisition by any member of any political party from the named countries works against this. While potentially deterring single party regimes such as China and North Korea from investing in Florida, SB 264’s terms would also place restrictions on Venezuelan opposition leader Juan Guiado (who was recently spotted in Miami) and Russian dissident Alexei Navalny.

Florida is not alone in ramping up legislation to ban Chinese residents and others from purchasing real estate.  Sponsors from both parties, including in California and New York have introduced drafts, and bills have advanced quickly in Texas, Louisiana, South Carolina, and Alabama presenting many of the same scoping problems. For example, SB 91 in Louisiana prohibits the leasing of immovable property to any citizen of China within 50 miles of a military facility, unless they hold a green card. Thus, lawfully admitted Chinese citizens present on student or employment visas studying or working at Louisiana State University would not be able to even rent an apartment in Baton Rouge, which houses an armed forces reserve center. Louisiana’s House companion bill, HB 537 now contains exceptions for residential property, but would still restrict sales or leases of commercial property to foreign investors. While the latest version also does not apply to “lawfully present” immigrants, a prior draft only excepted valid visa holders, which would have barred most refugees, asylees, and asylum seekers, all of whom are authorized to live and work in the United States, from renting business space. (Refugees often enter the country using State Department issued transportation letters or boarding foils, which are not technically visas, and asylees are authorized to live and work in the United States by immigration judges or the Department of Homeland Security, not generally through visas). Legislation may prevent many of these vulnerable persons, like the 63 Chinese Christians who fled religious persecution in China or others escaping political oppression in Russia, Iran, Cuba, and Venezuela, from establishing roots.

Unintended Economic Pitfalls

When first introduced, HB 537 banned any person or entity “subject to the jurisdiction of a foreign adversary” from purchasing or leasing real estate. This would have potentially swept up anyone who does business in, resides in, has assets in, or even visits one of the named countries. For example, foreign-based energy companies operating in Louisiana, who may have subsidiaries, stakes in joint ventures, or other interests in countries such as Russia or Venezuela, could technically be “subject to the[ir] jurisdiction” and would not be allowed to purchase or lease office space in the state under the introduced version.

In an amended draft, the language was changed to “connected with a foreign adversary.” However, the definition of “connected with a foreign adversary” included persons “contracted by” foreign states. While U.S. and other energy companies have largely exited Russia due to its attack on Ukraine, others remain in the Caspian pipeline consortium with Russia. Furthermore, U.S.-based and foreign oil and gas companies like Chevron still maintain significant operations in places such as Venezuela.  While this provision was later amended, it illustrates the risk for business actors.

The Florida law bars entities, whether state owned or not, that are headquartered or incorporated under the laws of foreign adversaries from purchasing farmland or land near critical infrastructure. This calls into question whether Miami’s billion dollar Brickell City Centre project, led by Hong Kong based Swire, would violate the new law. Smithfield Foods, the world’s largest pork producer, and the AMC Theatres, the world’s largest theatre chain, are also both owned by Chinese investors.

Origin Story One: Concerns Over Large Scale Land Transactions in Texas and North Dakota

While the downing of a Chinese spy balloon in March 2023 underscored the ongoing espionage threat posed by China, two erstwhile land transactions in Texas and North Dakota have been widely cited as the impetus for the raft of anti-Chinese land laws.

In 2016, Chinese billionaire entrepreneur Sun Guangxin began purchasing nearly 140,000 acres of land in southern Texas to build a wind farm that would feed directly into the state’s electrical grid. The transaction raised eyebrows due to Sun’s ties to the CCP and his former military service with the People’s Liberation Army (PLA). In 2020, the proposal was vetted by the federal interagency Committee on Foreign Investment in the United States (CFIUS), which is comprised of representatives from 16 U.S. departments and agencies, including Treasury, Justice, Commerce, Defense, Energy, and Homeland Security. CFIUS is tasked with reviewing, and if appropriate, blocking certain covered commercial transactions that could jeopardize national security. (CFIUS jurisdiction was expanded by the Foreign Investment Risk Review Modernization Act of 2018 (FIRRMA) to include real estate transactions located in proximity to sensitive governmental facilities.)

The Trump Administration, through CFIUS, ultimately declined to block the transaction even though the project was located within 50 miles of Laughlin Air Force Base, the largest training facility for Air Force pilots in the country. In response, in June 2021, Texas Governor Greg Abbott signed the Lonestar Infrastructure Protection Act (LSIPA) which barred Chinese, North Korean, and Russian companies from entering into agreements affecting infrastructure, effectively killing the project.

Similarly, in North Dakota, Chinese investment in a corn mill, originally welcomed as an economic boon, was scuttled after concerns were raised that the 370 acre farm, located near the Grand Forks Air Force Base, could be a staging ground for espionage, and a threat to the American food supply. Plans by the Chinese Fufeng Group to build the mill were also reviewed by CFIUS, which in December 2022 declined to exercise jurisdiction after determining that “greenfield” investments were not covered transactions, which generally require a foreign entity to take over control of a U.S. business, and that the nearby base was not on a designated list of particularly sensitive facilities. The decision was criticized by the North Dakota’s senators, who requested an opinion by the Air Force which later claimed that the Fufeng project “presents a significant threat to national security.” Senator Marco Rubio, Vice Chair of the Senate Select Committee on Intelligence, blasted CFIUS, calling the transaction “dangerous and dumb.” The fate of the project was sealed when the Grand Forks City Council voted to terminate the deal in the wake of the Air Force letter.

On May 5, 2023, the Treasury Department, seemingly in response to the outcry over the Fufeng and Texas windfarm controversies, issued a notice of proposed rulemaking to add the Grand Forks and Laughlin Air Force Bases and six other military installations to the list of facilities that would be covered under the real estate provisions of CFIUS.

Proposed Legislation Is Disproportionate to the Perceived Threat

When SB 264 passed in Florida, the state’s agriculture commissioner hailed its enactment, stating “food security is national security.” Similarly, HB 379 was introduced in Alabama in order to “protect our agricultural interests and military facilities.” Despite legislators’ focus on protecting the American farmland, the U.S. Department of Agriculture (USDA) reported that, as of December 2020, Chinese investors held slightly less than one percent of foreign-held agricultural acreage, well behind Canada which held the largest amount at 32% or 12.4 million acres and investors from the Netherlands, Italy, United Kingdom, and Germany, who collectively held 12 million acres or 31 percent of foreign-owned land. In total, foreign investors reported holding interests in nearly 37.6 million acres (2.9 percent) of all privately held farmland and 1.7 percent of all land in the United States. Chinese owners held only 352,140 acres.

According to the National Agricultural Law Center, at least 21 states have already enacted legislation to limit foreign ownership of farmland, with states such as Iowa having near absolute restrictions on the books since the 1970s. Since 1978, the USDA has required that foreign ownership of agricultural land be registered with the agency pursuant to the Agricultural Foreign Investment Disclosure Act.

Much of the current legislation goes far beyond farmland. The Florida law prevents any Chinese citizen domiciled in China (except for U.S. citizens or green card holders) from purchasing any real estate, anywhere in the state, irrespective of whether the property has any agricultural or strategic value. For certain Chinese visa holders and asylees already in the United States, there are exceptions to purchase a single residence, but the property is limited to two acres and cannot be within five miles of any military installation, potentially ruling out much of Tampa Bay, home to US CENTCOM, and MacDill AFB; and preventing many lawfully admitted Chinese residents from buying a condo in downtown Miami, given the two Coast Guard stations located there.

In Alabama, before a last minute Senate amendment re-focused HB 379 on governments and government officials, the bill restricted those domiciled in China from buying within a 10-mile radius of a military base or any “critical infrastructure,” which is defined to include any airport, refinery, electric plant, or wastewater treatment facility. So, for example, a Chinese citizen enrolled at the University of Alabama on a student visa would not have been able to buy a condo in Tuscaloosa, which has two water treatment plants within five miles of the campus, and those on employment-based visas couldn’t have purchased a home in Birmingham, Huntsville (home to the state’s largest Asian American population), or in Montgomery, home to Maxwell Air Force Base.

Constitutional Challenges and the Potential for Discriminatory Enforcement

If the legislation is an excessive response to legitimate policy concerns, what are its real goals? Critics of anti-Chinese real estate legislation have argued that such laws violate the Constitution’s Equal Protection clause of the 14th amendment as they single out persons for adverse treatment based on national origin and would not survive strict scrutiny, and that provisions of these laws would violate the Fair Housing Act, which bars discrimination in any transactions related to residential housing. Indeed, just this week, a group of Chinese citizens who lawfully reside in Florida, sued the state alleging violations of both.

Lawmakers around the country have defended against allegations that their bills are unconstitutional, discriminatory, or promote anti-Asian racism, in part, by pointing to federal determinations of adversarial nations. For example, Alabama’s HB 379 originally targeted only Chinese citizens, but a Senate amendment changed the bill to instead blacklist officials from a list of “foreign countries of concern” (China, Russia, North Korea, and Iran), and others on the Treasury Department’s OFAC sanctions list. Legislation introduced in South Carolina and Louisiana is tethered to 15 C.F.R. §7.4, which lists foreign governments or foreign non-government persons that have “engaged in a long-term pattern or serious instances of conduct significantly adverse to the national security of the United States” as determined by the Secretary of Commerce.

While the “People’s Republic of China” is not explicitly listed in the text of either the Louisiana Senate or South Carolina bills, lead sponsors have specifically cited to stopping China as the primary motivation. New Jersey’s Doug Steinhardt introduced a bill that would bar any foreign government or person from buying agricultural land in the Garden State, without naming names, but declared his legislative intent to “stop the Chinese Communist Party from establishing strategic control over sprawling tract of our farmland.” When DeSantis signed SB 264, he made no mention of Russian oligarchs purchasing condos in Miami, but instead issued a press released headlined, “Stop CCP Influence.”

By contrast, Utah’s HB 186, signed into law in March 2023, also does not explicitly mention “China,” but appears more narrowly tailored to barring real estate purchases by “restricted foreign entities” rather than individuals. A “restricted foreign entity” is defined as “a company that the United States Secretary of Defense is required to identify and report as a military company” under section 1260H of the National Defense Authorization Act of 2021. This list is limited to companies known to be operating in the United States, and that are owned or controlled by the PLA, are Chinese defense contractors, or are tech companies that receive funding through the Chinese military apparatus.

What remains to be seen, even with facially neutral legislation, is how such laws will be enforced, including whether Asian Americans of any heritage may face additional unwarranted scrutiny in real estate transactions by sellers, realtors, lenders, or others seeking to comply with the laws, based on impermissible factors such as names or appearance. At a Louisiana house committee hearing, the sponsor of HB 537 explained that if there was “reasonable suspicion” that a buyer could be connected to a foreign adversary, that should trigger additional scrutiny and “investigation” – but would that suspicion be precipitated merely by a purchaser being Chinese-American? Or even Asian American? The potential for untoward, unjustified scrutiny based on perceived race or national origin would have devastating consequences for innocent Asian Americans seeking the American dream.

An Ounce of Preemption

As discussed above, the federal CFIUS process already scrutinizes transactions, including of real estate, that could jeopardize national security. The CFIUS regime raises questions as to whether state laws purporting to protect military facilities and combat the influence of foreign adversaries named by the federal government may be preempted by federal equities under the Constitution’s Supremacy clause. The Supreme Court has already ruled that federal power supersedes state attempts to legislate in traditional areas of federal domain: foreign relations and immigration.

A state law may be preempted by a federal statute that contains an express preemption provision, or when states attempt to exercise jurisdiction in areas where the federal authority is exclusive, such as foreign relations, or when state laws conflict with, or stand as an obstacle to federal interests. In Arizona v. United States, the Supreme Court struck down several provisions of Arizona’s SB 1070, which among other things, made it a state crime for non-citizens to fail to register with the federal government and to work without authorization – both of which the Court found to be matters within the exclusive jurisdiction of the federal government. When Massachusetts attempted to impose its own sanctions regime against Burma by barring state entities from buying goods or services from companies doing business with Burma, the Supreme Court struck down that law on federal preemption grounds, as an obstacle to the president’s authority both to conduct diplomacy as the commander-in-chief saw fit, and to deploy the federal sanctions regime with discretion in furtherance of the administration’s foreign policy preferences. Furthermore, the Court noted that the Massachusetts law conflicted with the federal regime as its scope differed from federal sanctions, and “penalized individuals and conduct that Congress excluded.”

Professor Kristen Eichensehr has argued that CFIUS would preempt state laws such as the LSIPA, used to undo the Texas windfarm project. Eichensehr noted that the Texas infrastructure law could be preempted as it imposes restrictions in the name of national security that differ from federal law, which, under CFIUS, allows a review of individual transactions, not a blanket ban, and that CFIUS allows parties to negotiate and mitigate risk whereas the LSIPA does not provide any flexibilities.

From a policy standpoint, a patchwork of state laws purporting to protect federal facilities and enjoin foreign governments may undermine the federal executive’s ability to conduct foreign policy with one voice. Additionally, how would states (or realtors or lenders wary about facilitating barred transactions) identify specific national security risks or individuals who may be actual agents of foreign adversaries? While CFIUS relies on the investigative and analytical power of multiple federal agencies, including the Department of Defense and the intelligence community, states do not possess such tools. Notably the LSIPA’s list of barred countries that pose a threat to infrastructure is not based on a federal source, but is determined by the governor of Texas.

Federal Responses

In response to this torrent of state bills, Congressional Asian Pacific American Caucus (CAPAC) Chair Representative Judy Chu and CAPAC Housing Task Force Chair Representative Al Green yesterday introduced the Preemption of Real Property Discrimination Act to preempt discriminatory state laws, which Chu previously noted “harken back to nativist anti-Asian alien land laws in the 19th and 20th centuries after Chinese immigrants first arrived here, and later, a xenophobic suspicion of Japanese Americans during World War II that also led to their blanket incarceration.”

It is not just states, however, but her congressional colleagues who are attempting to legislate in this area: several bills in Congress would also bar foreign governments and citizens from purchasing property in the United States. On the Senate side, S. 1136, the “Not One More Inch or Acre Act” introduced by Senators Tom Cotton and Katie Britt, would bar any citizen of China, or any entity subject to Chinese jurisdiction, from purchasing real property in the United States, with the notable exception of refugees or those granted asylum, who have typically been barred under various state legislation. Representative Chip Roy has sponsored H.R. 344, the “Securing America’s Land for Foreign Interference Act,” which would direct the president to take necessary actions to prevent the purchase of land by CCP members or entities under the control or influence of the CCP.

Origin Story Two: Restrictions on Asians Owning Land Have Been Part and Parcel of American History

Unfortunately, the United States has seen this movie before. Authors on Just Security wrote last year about the pattern of anti-Asian discrimination and purported facial neutrality under the pretext of national security legislation on the 80th anniversary of Executive Order 9066, which targeted Japanese-Americans and Japanese nationals in the United States during World War II. While that may be the most famous example of anti-Asian discrimination in the United States, it is only one of many.

Florida’s newly-enacted ban on Chinese purchasers of real estate is an ironic twist to a saga that only five years ago, saw it become the last state in the union to strike discriminatory “alien land laws” from its books. In 2018, Florida voters finally removed language that had been enshrined in the constitution since 1926 which read, “all natural persons … are equal before the law and have inalienable rights, among which are the right to enjoy and defend life and liberty, to pursue happiness, … and to acquire, possess and protect property except that the ownership, inheritance, disposition and possession of real property by aliens ineligible for citizenship may be regulated or prohibited by law” (emphasis added).

The term “aliens ineligible for citizenship” was, as late property law Professor Keith Aoki wrote, “a disingenuous euphemism to disguise the fact that the targets of such laws were first-generation Japanese immigrants.” Indeed, in 1922, the Supreme Court ruled in Ozawa v. U.S. that naturalization was “limited to free white persons and aliens of African nativity,” leaving immigrants of Asian descent unable to gain citizenship. Historically, American immigration statutes had predominantly targeted Asians for exclusion – from the enactment of the earliest laws such as the Page Act of 1875 (barring Chinese women from entry) and Chinese Exclusion Act of 1882.

California enacted its first alien land law in 1913, and then in 1920 added further limitations on lease-holding. Similar laws were passed in Washington, Oregon, Idaho, Montana, Arizona, New Mexico, Texas, Kansas, Louisiana, Missouri, and Minnesota, Wyoming, and Florida. The rationale for these laws, in addition to suppressing economic competition, was, according to Aoki, the perceived threat of Japan’s growing industrial strength, its imperial military aspirations, and the projection onto Japanese immigrants of an image of disloyalty as a “fifth column … waiting to be activated at the emperor’s command.”

California’s alien land law was overturned in 1952 by its state Supreme Court, which held in Sei Fuji v. State of California that it violated the 14th amendment and was:

obviously designed and administered as an instrument for effectuating racial discrimination, and the most searching examination discloses no circumstances justifying classification on that basis. There is nothing to indicate that those alien residents who are racially ineligible for citizenship possess characteristics which are dangerous to the legitimate interests of the state, or that they, as a class, might use the land for purposes injurious to public morals, safety or welfare.

This ruling followed on the heels of the U.S. Supreme Court’s 1948 decision in Oyama v. California which held that California’s alien land laws abridged the 14th amendment rights of U.S. citizens of Japanese descent.

Prognosis

Conventional wisdom holds that it is the CCP that is in the business of taking away people’s property rights. As the nation heads into a presidential election year, fear mongering by state legislators may continue and more anti-China messaging bills may be introduced and passed barring Chinese and others from buying homes. With the Asian American community having just experienced a rise in hate crimes and bias-motivated incidents in the wake of false scapegoating over COVID, the deluge of anti-China legislation exacerbates long held perceptions of Asian Americans as perpetual foreigners, who hold loyalty to their ancestral homelands rather than the United States.

These laws on their face may make superficial efforts to distinguish between persons of Chinese ancestry and the CCP, but they also equate all Chinese denizens with foreign agents, and imply they pose national security threats regardless of lack of party or state affiliation. In a country where a Chinese American like Vincent Chin was murdered by disgruntled autoworkers who believed he was Japanese, or Sikh Americans were targeted after 9/11, technical distinctions will not allay concerns of racial profiling. Still, grassroots efforts to mitigate harms and narrow scoping do appear to be working in some places. In the United States, unlike in China, the people can – and should – actually do something about problematic laws by apprising legislators of the economic, reputational, and constitutional perils of these bills.

IMAGE: Florida Gov. Ron DeSantis speaks during a press conference held at the Florida National Guard Robert A. Ballard Armory on June 07, 2021 in Miami, Florida, announcing the signing of two bills including SB 264. (Photo by Joe Raedle/Getty Images)

The post With New “Alien Land Laws” Asian Immigrants Are Once Again Targeted by Real Estate Bans appeared first on Just Security.

In collecting some of these statements and launching this collection, Just Security is providing an invaluable resource to all Americans, and others beyond, who still seek a more holistic understanding of January 6th, and who want to explore what the sobering conclusions of the Select Committee might mean for the future of our democracy. 

First and foremost, these statements help to place the insurrection as part of a dark, American tradition of mob violence that has repeatedly tried to nullify the electoral triumph of multiracial coalitions and attack governments that support equal rights for Black Americans. Statements such as those from Professors Carol Anderson, Kellie Carter Jackson, Kate Masur, Gregory Downs, and Kathleen Belew, provide historical analysis and specific examples—ranging from Reconstruction to the modern white power movement—that demonstrates the continuity between January 6th and previous vigilante attempts to beat back progress toward a more inclusive and racially equitable America.

Other statements, like those from leaders at prominent, nonpartisan institutes like the NAACP Legal Defense Fund, Brennan Center, States United Democracy Center, and Campaign Legal Center, explain how this history of racial violence and disenfranchisement is intimately bound up in President Trump’s Big Lie, which singles out largely non-white cities as centers of voter fraud and has since been used as a justification for further restrictions on voting rights that disproportionately impact Black and Brown citizens. Related analyses we received explained how key actors in the insurrection were motivated by a toxic brew of racism, homophobia, misogyny, xenophobia, and conspiracy – the same beliefs that continue to motivate acts of mass violence and intimidation across the country. In a statement from the Institute for Constitutional Advocacy and Protection (where I now work), Professor Mary McCord explains how January 6th also fits into a yearslong trend of increased mobilization by unlawful private paramilitary groups, which have continued to evolve since the attack. 

Even more broadly, these assorted statements give a global perspective on the anti-democratic coalition that burst forth on January 6th. Leading experts on authoritarianism and fascism, such as Professors Ruth Ben-Ghiat, Jason Stanley, and Federico Finchelstein, remind us of the stakes of January 6th as a moment when vigilante violence and authoritarian schemes converged to assert control over democratic society, as we have seen replicated, in one form or another, throughout history to catastrophic effect. This moment of autocratic consolidation was enabled by a broader acceptance of political violence by mainstream politicians and their supporters, a phenomenon that is elucidated by experts like Rachel Kleinfeld and Professors Liliana Hall Mason and Nathan Kalmoe.

These statements can also help to shine a light on some of the less-examined elements of the broader story of January 6th, such as explanations of the role of Christian Nationalism and anti-government extremism in the attack, the FBI’s persistent failures to adequately address the threat of far-right violence, the crisis of extremist radicalization within the U.S. military, and the proliferation of violent, conspiratorial content on alternative social media platforms like Parler. Taken together, these expert analyses should help us reject narrow explanations for the insurrection, especially the kind that  attempts to whitewash the violent extremism we saw on that day and try to sweep over the true, violent potential of the movements that fueled it.

The legacy of January 6th remains a fiercely contested issue, and it is vitally important that supporters of American democracy still speak loudly and clearly about the realities of that day. This collection will help us do just that, by providing explanations about why the insurrectionist forces have lingered on in our national life, through continued threats of political violence and anti-democratic instability. Over two years after the attack, groups like the Proud Boys continue to menace local governments and LGBTQ+ individuals, while an openly vengeful Trump embraces the insurrectionists and demonizes the same minority communities that are now in their crosshairs. 

Seen in this light, January 6th never ended. 

We are in the midst of the latest retelling of a very old, very dangerous story of authoritarianism and violence that both America and the world has seen before. That makes it all the more important for us to push for accountability whenever and wherever we can, and to guard against the resurgence of political violence as the next national election looms ever closer.

I hope that experts will continue to submit their statements to Just Security (email address) so that it can create as complete a repository as possible. Although they were not all incorporated into the work of the Select Committee, these statements give essential context to complement the factual narrative contained in the committee’s final report and underlying documents. As shocking as that narrative remains, it is even more terrifying when examined in this wider lens. Because of this, I know the collection will foster a deeper understanding of the insurrection and illuminate its most difficult lessons, which is the best way to ensure that January 6th is remembered as a wake-up call to the bipartisan alliance that saved American democracy, and not as the triumphant first chapter of an extreme coalition eager to destroy it.

Editor’s note: The expert statements on this topic are listed below and also available at Just Security’s January 6th Clearinghouse. 

1. Carol Anderson (Charles Howard Candler Professor, African American Studies, Emory University)
   “The Role of White Rage and Voter Suppression in the Insurrection on January 6, 2021″
   Expert Statement
2. Anti Defamation League
   “Extremist Movements and the January 6, 2021 Insurrection”
   Expert Statement 
3. Heidi Beirich (Co-Founder and Executive Vice President, Global Project Against Hate and Extremism)
   “The Role of the Proud Boys in the January 6th Capitol Attack and Beyond”
   Expert Statement
4. Kathleen Belew (Associate Professor of History, University of Chicago)
   Expert Statement
5. Ruth Ben-Ghiat (Professor of History, New York University)
   “Strongmen Don’t Accept Defeat: The January 6th, 2021, Assault on the Capitol as an Outcome of Donald J. Trump’s Authoritarian Presidency”
   Expert Statement
6. Bright Line Watch
   John Carey (John Wentworth Professor in the Social Sciences, Dartmouth College), Gretchen Helmke (Thomas H. Jackson Distinguished University Professor, University of Rochester), Brendan Nyhan (James O. Freedman Presidential Professor, Dartmouth College) and Susan Stokes (Tiffany and Margaret Blake Distinguished Service Professor, University of Chicago)
   “The Destructive Effects of President Trump’s Effort to Overturn the 2020 Election”
   Expert Statement 
7. Anthea Butler (Geraldine R. Segal Professor of American Social Thought, University of Pennsylvania)
   “What is White Christian Nationalism?”
   Expert Statement
8. Kellie Carter Jackson (Michael and Denise Kellen ‘68 Associate Professor of Africana Studies, Wellesley College)
   “Understanding the Historical Context for White Supremacist Violence in America in Tandem with the Events of January 6, 2021”
   Expert Statement 
9. Katherine Clayton (Ph.D. Candidate, Stanford University), Nicholas T. Davis (Assistant Professor, The University of Alabama), Brendan Nyhan (James O. Freedman Presidential Professor, Dartmouth College), Ethan Porter (Assistant Professor, George Washington University), Timothy J. Ryan (Associate Professor, The University of North Carolina at Chapel Hill) and Thomas J. Wood (Assistant Professor, The Ohio State University)
   “President Trump’s Rhetoric Undermined Confidence in Elections Among His Supporters”
   Expert Statement
10. Michael German (Fellow, Brennan Center for Justice, New York University School of Law)
    “Why the FBI Failed to Anticipate Violence at the U.S. Capitol on January 6th, and How to Prevent it From Happening Again”
    Expert Statement 
11. Philip Gorski (Frederick and Laura Goff Professor of Sociology and Religious Studies, Yale University)
    “White Christian Nationalism: The What, When, How and Where.”
    Expert Statement 
12. Jared Holt (Resident Fellow, Digital Forensic Research Lab, Atlantic Council)
    Expert Statement
13. Aziz Huq (Professor of Law, University of Chicago Law School) and Tom Ginsburg (Professor of Law, University of Chicago Law School)
    “Statement on the January 6, 2021 Attacks and the Threat to American Democracy”
    Expert Statement
14. Michael Jensen (Associate Research Scientist, START), Elizabeth Yates (Assistant Research Scientist, START) and Sheehan Kane (Senior Researcher, START)
    “Radicalization in the Ranks: An Assessment of the Scope and Nature of Criminal Extremism in the United States Military”
    Expert Statement 
15. Rachel Kleinfeld (Senior Fellow, Carnegie Endowment for International Peace)
    “The Rise in Political Violence in the United States and Damage to Our Democracy”
    Expert Statement
16. Samantha Kutner (Proud Boys Research Lead, Khalifa Ihler Institute), Bjørn Ihler (Co-Founder, Khalifa Ihler Institute), and C.L. Murray (Khalifa Ihler Institute and Lecturer in Criminology, University of North Carolina Wilmington)
    “Function Over Appearance; Examining the Role of the Proud Boys in American Politics Before and After January 6th”
    Expert Statement
17. Liliana Mason (Associate Professor of Political Science, Johns Hopkins University), Nathan Kalmoe (Associate Professor of Political Communication, Louisiana State University), Julie Wronski (Associate Professor of American Politics, University of Mississippi) and John Kane (Clinical Assistant Professor, Center for Global Affairs, New York University)
    Expert Statement
18. Kate Masur (Professor of History, Northwestern University) and Gregory Downs (Professor of History, University of California, Davis)
    “Our Fragile Democracy: Political Violence, White Supremacy, and Disenfranchisement in American History”
    Expert Statement
19. Mary McCord (Executive Director and Visiting Professor of Law, Institute for Constitutional Advocacy and Protection, Georgetown University Law Center)
    Expert Statement
20. Jennifer Mercieca (Professor, Department of Communication, Texas A&M University)
    Expert Statement
21. Suzanne Mettler (John L. Senior Professor of American Institutions, Cornell University) and Robert C. Lieberman (Krieger-Eisenhower Professor of Political Science, Johns Hopkins University)
    “How Four Historic Threats to Democracy Fueled the January 6, 2021 Attack on the United States Capitol”
    Expert Statement 
22. Janai Nelson (President and Director-Counsel, NAACP Legal Defense and Education Fund, Inc.)
    Expert Statement
23. Trevor Potter (Founder and President, Campaign Legal Center)
    Expert Statement
24. Candace Rondeaux (Director, Future Frontlines, New America), Ben Dalton (Open Source Fellow, Future Frontlines, New America), Cuong Nguyen (Social Science and Data Analytics Fellow, Future Frontlines, New America), Michael Simeone (Associate Research Professor, School for Complex Adaptive Systems, Arizona State University), Thomas Taylor (Senior Fellow, New America) and Shawn Walker (Senior Research Fellow, Future Frontlines, New America)
    “Investigating Alt-Tech Ties to January 6”
    Expert Statement
25. Mike Rothschild (Journalist and Author)
    “Regarding The Role of QAnon in the Events of January 6th and Beyond”
    Expert Statement
26. Andrew Seidel (Constitutional Attorney, Freedom From Religion Foundation)
    “Events, People, and Networks Leading Up to January 6” and “Attack on the Capitol: Evidence of the Role of White Christian Nationalism”
    Expert Statement
27. Peter Simi (Professor of Sociology, Chapman University)
    “Understanding Far-Right Extremism: The Roots of the January 6th Attack and Why More is Coming”
    Expert Statement
28. Southern Poverty Law Center
    Michael Edison Hayden (Senior Investigative Reporter and Spokesperson, Intelligence Project), Megan Squire (Senior Fellow, Intelligence Project) Hannah Gais (Senior Research Analyst, Intelligence Project) and Susan Corke (Director, Intelligence Project)
    Expert Statement 1
    Cassie Miller (Senior Research Analyst, Intelligence Project) and Susan Corke (Director, Intelligence Project)
    Expert Statement 2
    Michael Edison Hayden (Senior Investigative Reporter and Spokesperson, Intelligence Project) and Megan Squire (Deputy Director for Data Analytics and OSINT, Intelligence Project)
    Expert Statement 3
29. Jason Stanley (Jacob Urowsky Professor of Philosophy, Yale University) and Federico Finchelstein (Professor of History, The New School)
    “The Fascist Danger to Democracy Represented by the Events of January 6, 2021”
    Expert Statement
30. Amanda Tyler et al (Executive Director, Baptist Joint Committee for Religious Liberty, and Leader, Christians Against Christian Nationalism Initiative)
    “Christian Nationalism and the January 6, 2021 Insurrection” – Report
    Expert Statement
31. Wendy Weiser (Vice President for Democracy, Brennan Center for Justice, New York University School of Law)
    Expert Statement
32. Andrew Whitehead (Associate Professor of Sociology, Indiana University–Purdue University Indianapolis) and Samuel Perry (Associate Professor of Sociology, University of Oklahoma)
    “What is Christian Nationalism?”
    Expert Statement
33. Christine Whitman (Former Governor, New Jersey), Steve Bullock (Former Governor, Montana), Jim Hood (Former Attorney General, Mississippi), Tom Rath (Former Attorney General, New Hampshire), Trey Grayson (Former Secretary of State, Kentucky) and Frankie Sue Del Papa (Former Secretary of State, Nevada)
    Expert Statement

IMAGE: Pro-Trump protesters gather in front of the U.S. Capitol Building on January 6, 2021 in Washington, DC. (Photo by Jon Cherry/Getty Images)

The post Introduction to Expert Statements on Democracy and Political Violence, submitted to January 6th House select committee appeared first on Just Security.

The experts found “systematic shortcomings in medical expertise, equipment, treatment and accommodations at the Guantánamo Bay detention facility and naval station.” The communication also served as a reminder of the government’s responsibility to provide “adequate redress and reparation for any human rights abuse and other international law violations committed in the delivery of detainee healthcare.” 

Disclosure of the experts’ communication came on the heels of an article in Just Security by Mort Halperin and Steve Xenakis (the latter is a retired brigadier general and psychiatrist) explaining the legal and moral imperative of providing torture rehabilitation – and adequate medical care more generally – to the men still detained at Guantanamo. This article highlights an aspect of the problem that arose at a recent military commission hearing: the closely tied roles of trauma and culture, and the astonishing hypocrisy with which Guantanamo’s medical care system approaches them. In short, culturally competent medical care, including to the extent possible care provided by independent medical experts of the detainees’ nationalities, is needed at Guantanamo now.

Trauma and Culture in Guantanamo’s Medical Care System

In February, two medical expert witnesses testified in the latest pre-trial hearings in the USS Cole bombing case: Dr. Sondra Crosby, an expert on torture and trauma, and Guantanamo’s senior medical officer (SMO). (Note that the SMO is different from the Chief Medical Officer, a position Congress established several years ago that reports outside the Guantanamo chain of command.)

Dr. Crosby testified about torture methods that Abd al-Rahim al-Nashiri, the defendant, was subjected to while in CIA custody from 2002 to 2006, with a particular focus on “rectal feeding” in 2004. Carol Rosenberg at the New York Times called it the “most detailed public account of the procedure, from a medical perspective” to date.

The SMO followed. He testified he is currently treating Mr. Nashiri for “active issues,” and was informed, when taking on his role, that his patients were subjected to “CIA enhanced interrogation.” However, he was unaware of the methods Mr. Nashiri was subjected to because after reviewing Mr. Nashiri’s medical history, he found no records from when Mr. Nashiri was in CIA detention, and “no evidence that anyone on the Guantanamo medical staff took a trauma or torture history of him” when he arrived there in 2006. 

Failure to ask about and document such a history is a clear, and now longstanding, violation of the applicable standard of care, born of continued secrecy around CIA torture, that cuts across the detainee population. To prepare his testimony, the SMO reviewed external sources such as the 2014 Senate Torture report, an ICRC report, and previous statements, including Dr. Crosby’s. 

His testimony was filled with other admissions that were at once significant, ironic, and outrageous, including that he was not trained in treating torture survivors, and “he received no specific cultural sensitivity training for this assignment ‘on how to treat Muslim men.’”  

The SMO’s testimony was significant because no government official has publicly confirmed that culturally competent medical care, recommended by independent medical experts  as required for adequate treatment, is not available at the detention center. It was ironic and outrageous because, in the early stages of the so-called War on Terror, the U.S. government used knowledge of Islam and cultural norms to torture and otherwise torment Muslims, but in the over 20 years since apparently has not considered it relevant to their medical care. 

It’s commonly known that religious beliefs and cultural norms were weaponized against Muslim men in Abu Ghraib, Bagram, and Guantanamo. A list of authorized tactics by then Secretary of Defense Donald Rumsfeld included removal of religious items and forced shaving of facial hair. Qur’ans were burned and defaced. Olive oil labeled a “culturally sensitive material,” was used to lubricate tubes for force-feeding. Underpinning these specific torture and cruel treatment techniques, Islamophobia was institutionalized — courses at military schools taught officers Islam is their enemy. A 2012 military investigation into the burning of Qur’ans in Bagram found “troops were exposed only to about an hour-long PowerPoint presentation about Islam,” prior to deployment to Afghanistan. 

On more than one occasion, independent medical experts have emphasized the importance of culturally competent care for treatment of detainees. It is also referenced in Article 30 of the Third Geneva Convention, to which the United States is a party, which states, “prisoners of war shall have the attention, preferably, of medical personnel of the Power on which they depend and, if possible, of their nationality.” 

The ICRC commentary to Article 30 explains that “medical personnel of the same nationality… may … increase the availability, and potentially also the quality, of medical services…” as they would “have expertise in the treatment of endemic diseases unfamiliar to the Detaining Power or where being of the same cultural background may help to manage prisoners’ mental health conditions.” It also notes that “medical personnel of the same nationality as the prisoners may help create trust” between the detaining Power and prisoners. Given the role of U.S. military medical personnel in the torture of many detainees at Guantanamo, and the trust deficit it created, it would be wise for the government to heed this recommendation.

In 2009, three behavioral health professionals in Guantanamo’s Joint Medical Group published an article in which they acknowledged how difficult it is to understand and manage health conditions without cultural context. “[T]he acceptance of Western diagnostic formulation among the detainees is low,” they wrote, “and its appropriateness debatable. At times a patient’s presentation is inconsistent with any formulation using the traditional diagnostic criteria found within the Diagnostic and Statistical Manual of Mental Disorders-IV… and some individuals appear unable or unwilling to accept Western terminology.” For example, certain mental illnesses – as understood by detainees – are caused by ‘jinns,’ or supernatural beings and spirits, which “in the Muslim imagination… occupy a shadow world.” The authors explained that: 

“mental health providers have had to learn a great deal about the various cultures the detainees come from… [The providers] have access to an Imam and cultural advisor for consultation, are provided mentoring as needed from mental health providers who have already served in GTMO and incorporate culturally specific training into staff education.”

All of that may be true as far as it goes, but none of it meaningfully addresses the problem. Neither the Imam nor the cultural advisor are qualified medical providers and detainees come from many more cultures than the two could represent. Moreover, information the two would need to provide adequate advice and consultation – specifically about detainees’ torture – was, and still is, mostly classified. 

Even if these limitations were somehow resolved, “access” to the Imam and cultural advisor doesn’t mean that military medical professionals would actually get from them the information that they need. This is, to some extent, a structural problem. The Imam and cultural advisors (like Guantanamo’s medical staff) have to balance “dual loyalties” to their employer and to their profession, the latter as it relates in particular to moral, ethical and humane treatment.  When the employer is engaged in extra-legal detention of men it long-branded “the worst of the worst,” this can be a near impossible line to walk. For example, former Imam Captain James Yee believes that his legal troubles, which included criminal charges of espionage, spying, and aiding the enemy– stemmed from advocating for humane treatment of detainees. All criminal charges against Yee were later dropped due to lack of evidence; he was reprimanded on minor non-criminal charges and honorably discharged. On the other end of the spectrum, long-time cultural advisor of Middle Eastern descent, Zak Ghuneim, accused detainees of participating in hunger strikes to “discredit the US.” In 2007, he called “complaints of prisoner mistreatment ‘baloney.’” 

And even if there was cultural training and staff education in 2009, the current SMO’s testimony that he did not receive any cultural sensitivity training means there is clear problem at Guantanamo today. 

How to Solve the Problem of Culturally Competent Medical Care

The UN experts recommended the U.S. government “ensure a human-rights-based and gender- and culturally sensitive approach to the provision of health care services to all detainees…” They further offered technical support to assure compliance with international law. 

The Biden administration needs to understand that there have been – and continue to be – real, human consequences of the decision not to call torture what it is. But it is also not too late to begin to correct the failings of the Bush, Obama, and Trump administrations before it. The Department of Defense, working with both interagency experts on culturally competent medical care and – to the extent possible – independent medical experts of the detainees’ nationalities, can begin to provide culturally appropriate medical care at Guantanamo now, including for those whose cultural beliefs were used as implements of torture. Medical staff can, and must, take medical histories that include the torture and other traumas detainees were subjected to, and can do so in culturally appropriate ways that inform ongoing and future treatment. 

Of course, while it is necessary and required, just culturally competent medical care is not sufficient to adequately address the U.S. government’s long-term dehumanization of the men at Guantanamo. As Xenakis and Halperin explained, the government is also obligated to provide torture rehabilitation. And General comment No. 3 on the implementation of article 14 of the Convention against Torture requires that effective rehabilitation services and programs established by State parties consider a victim’s culture. It specifically provides that “culturally sensitive collective reparation measures shall be available for groups with shared identity.” 

The participation of independent medical experts is pivotal in this process. Their role should not be minimal, it is the only solution to the quagmire the government has created by involving military medical personnel in the torture and trauma of detainees and weaponizing culture. U.S. military medics who are Arab, Middle Eastern, Muslim, and South Asian, while helpful, may face challenges in building trust and navigating dual loyalties. 

All of this must be done with the sense of urgency appropriate to the task – a failure to do so only lends credence to the view that dehumanization, racial and cultural injustice, and willful blindness of past wrongs are acceptable to the Biden administration and the U.S. military.

IMAGE: A physical therapy room for older detainees is seen at the US Guantanamo Naval Base on October 16, 2018, in Guantanamo Base, Cuba. (SYLVIE LANTEAUME/AFP via Getty Images)

The post The Role of Culture in Torture and its Absence in Guantanamo’s Medical Care System appeared first on Just Security.

The United Nations (U.N.) International Independent Expert Mechanism to Advance Racial Justice and Equality in the Context of Law Enforcement visits the United States today from 24 April – 5 May 2023. One of the Expert Mechanism’s objectives during this visit is to “offer recommendations to support the Government’s efforts in combating structural and institutional racism, the excessive use of force, and other human rights violations by law enforcement and the criminal justice system against Africans and people of African descent.”

In the United States, people of African descent and other people of color are subjected to police brutality that terrorizes ordinary civilians and, if incarcerated, are more likely to experience prison conditions that may amount to torture. In line with its commitments under international law, the Biden administration must prioritize addressing this urgent human rights crisis.

The Militarization of the Police

In the United States, people of color are disproportionately harmed, killed, and threatened by militarized police violence – a form of violence that greatly expanded after the 9/11 terrorist attacks. Even when engaged in peaceful protest, Black people and their allies are often confronted by police and federal forces wearing militarized riot gear and riding in armored vehicles, wielding tear gas, rubber bullets, and stun grenades. This police militarization reinforces the longstanding association of blackness with criminality in the United States. This association manifests across all levels of interactions between Black Americans and law enforcement and the criminal justice system: Black Americans are disproportionately subjected to “stop and frisk” policies; and they are arrested, convicted, sentenced (and sentenced to harsher punishments), and incarcerated at higher rates than White people who commit similar crimes. And police killings of unarmed Black Americans exacerbated and enabled by police militarization, are so high that, according to one study, “[f]or young men of color, police use of force is among the leading causes of death.”

Police militarization involves the perpetual infliction of or threat of violence against civilians in everyday life, which meets the threshold for many definitions of terrorism. Military-grade technologies cause serious and lasting physical injuries and trauma to victims. One Black man who participated in a peaceful protest in Minneapolis in the summer of 2020 suffered a “fractured nose, a fractured forehead, many tiny breaks around his left eye socket and cheek bone, [and] a ruptured eyeball” from a stun grenade thrown by police. This violence, alongside institutionalized racial injustice, places all people of color at risk of potential arbitrary police brutality and discriminatory criminal justice practices. Militarized police violence communicates to people of color the message that they are not safe, even when engaging in legally protected peaceful protest. This creates the “intrusion of fear into everyday life” that scholar Michael Walzer argued was one of the central moral wrongs of terrorism.

Terrorism is also defined as motivated by the pursuit of a political or ideological agenda, and the increasing militarization of policing in black and brown communities is often ideological. Regardless of the motives of individual law enforcement officers, the violent impact and arbitrary use of police militarization on people of color stems from (and reinforces) the criminalization of blackness that has its roots in the white supremacist ideologies of slavery and Jim Crow.

Recognizing that police militarization is a form of terrorism is crucial to recognizing the severity and scale of human rights violations suffered by people of color in America.

The Biden administration must take steps to acknowledge and address police violence as a form of terrorism. Recent legislation that would increase transparency about police purchases of military equipment is a promising first step, although past efforts, such as a bipartisan police reform bill in 2021 that would have curbed police militarization, failed due to lack of support from Republican senators.

But the vulnerability of people of color to human rights violations at the hands of law enforcement is only part of the picture: Because Black Americans are incarcerated at disproportionately higher rates than White Americans due to entrenched forms of institutional and structural racism in the criminal justice system, they are disproportionately vulnerable to torture in American prisons and jails.

Prison Torture

In Texas, prisoners are engaged in a hunger strike protesting solitary confinement. A jail in Mississippi is the subject of numerous allegations of the sexual and physical assault of inmates. Last year, inmates in Alabama went on strike, a prisoner died in solitary confinement in Louisiana, three officers at Rikers in New York attacked an inmate, and a report found that male prison officials assaulted women inmates in at least two-thirds of U.S. prisons.

These are not cases of “bad apples,” or a few poorly run prisons. Instead, these cases are indicative of the widespread systematic torture of inmates in U.S. prisons through the use of solitary confinement, the toleration of sexual assault, and the combined impact of mass incarceration and the deprivation of basic human needs including food, warmth, and human contact. These intentional practices and policies inflict severe physical and psychological pain and suffering on inmates that may meet the definition of torture.

Solitary Confinement

Nearly 50,000 people are held in prolonged solitary confinement in U.S. prisons. In some cities, the majority of people in solitary confinement are people of color. Human rights organizations agree that solitary confinement is torture, and there are decades of evidence of its devastating effects on victims. Yet, despite numerous legal challenges, solitary confinement continues to be used in U.S. prisons and jails. The persistent refusal of U.S. courts and political leaders to acknowledge solitary confinement as a form torture represents an intentional choice to inflict torture on U.S. inmates, the majority of whom are people of color.

But even inmates not placed in solitary confinement do not escape torture in U.S. prisons. The intentional toleration of sexual assault, and the combination of mass incarceration and degrading and dehumanizing prison conditions combine to inflict severe physical and psychological pain and suffering.

Sexual Assault

Sexual assault (perpetrated by other inmates and by guards) is so common in U.S. prisons that it is the subject of jokes and threats by police officers and is referenced in popular culture. It is taken for granted that inmates might be raped and abused. And, as with solitary confinement, prison sexual assault is rarely described as torture, even though sexual violence is a recognized form of torture. Instead, victims of prison sexual assault are often disbelieved and mocked.

But the sexual assault of inmates is not inevitable. It doesn’t “just happen.” The prison conditions that make inmates vulnerable to sexual assault are the result of intentional choices. Funding for prisons, the design of prison bathrooms, the placement of cameras, staffing levels, access to medical treatment, and reporting mechanisms all affect inmates’ vulnerability to sexual assault. Sexual abuse is therefore common in American prisons and jails because it is allowed to occur. The toleration of sexual assault reinforces the belief that sexual assault just happens, and further entrenches degrading attitudes toward victims of prison sexual assault.

Mass Incarceration and Prison Conditions

The deplorable conditions in many American prisons are well documented: inmates routinely experience overcrowding and are denied access to adequate medical care, food, warmth, air-conditioning, and contact with friends and family. Even prior to the rise of mass incarceration, prison conditions such as these were the subject of protests during the 1960s and 1970s. Yet, despite decades of activism, little has changed. Taken individually, the conditions described above don’t seem like forms of torture. But the combined impact of these conditions is a form of torture. The combination of poor medical care, a lack of heating and air conditioning, overcrowding, exposure to violence and sexual assault, and restrictions on communication with friends and family causes suffering and isolates inmates. As with the toleration of sexual assault, these prison conditions are the result of strategic choices and reveal the political and social indifference to the ongoing torture of prison inmates.

People of color are disproportionally represented in U.S. jails and so, while all inmates are vulnerable to torture, Black Americans are disproportionately vulnerable to torture because of the multiple ways in which institutional and structural racism permeates every aspect of the criminal justice system. This is a human rights crisis and a gross violation of America’s commitment to the prevention of torture.

***

Understanding the scale and severity of human rights violations in America requires recognizing how all levels of the criminal justice system – from police stops to sentencing and incarceration – are structured by entrenched institutional racism that inflicts a form of terrorism and torture on Black Americans and people of color. Identifying the human rights violations resulting from this institutional racism as terrorism and torture is a necessary first step toward the Expert Mechanism’s goal in providing recommendations for the Biden administration to begin to address the problem. Failing to acknowledge the scale and severity of these human rights violations would demonstrate a serious moral disregard for the ongoing suffering of people of color and African descent. Promoting American values abroad requires first upholding them at home.

IMAGE: Reverend Al Sharpton speaks during a news conference at Mason Temple: Church of God in Christ World Headquarters in Memphis, Tennessee, on January 31, 2023 in response to the killing of Tyre Nichols by five Memphis Police Department officers. (Photo by SETH HERALD/AFP via Getty Images) 

The post The War From Within: Racial Injustice in the US Prison System appeared first on Just Security.

A newer version of the “ambassador’s receptions” commercial aired in 2011. A few adjustments were made: the voice-off is now a woman (still with a posh British accent) who reminds us that “there’s always something magic about the ambassador’s receptions.” The overall atmosphere of refined elegance, now in a black-tie Christmas party, remains as a key component of the commercial (although there is an attempt to bring a bit of racial diversity to the ad with one close-up shot of a Black couple).  Then comes the signature move: a head signal of “the ambassador” (again a white man) to his butler (again an older white man wearing an elegant butler’s uniform) to walk around the guests offering the tray of the iconic golden chocolate tower. 

These are, of course, caricatures of the diplomatic world. But they do reflect something that has always been in the collective imagery: diplomacy being depicted as (mostly white) men wearing ties in elegant receptions sipping wine; the idea that diplomats are aristocrats, living in a world that is very far away from the realities of the people they are supposed to represent and serve. 

Countless historical photos of key moments in diplomacy replicate this very pattern. With or without wine, it is always the same composition: a group of (mostly white) men, wearing suits and ties, either bowties or neckties (take, for example, the photo capturing the signing ceremony of the Kellogg-Briand Pact, of the 1945 San Francisco Conference, or of the 1998 Rome Conference for the establishment of the International Criminal Court to name but just three small examples). The constant seems to be always the lack of diversity: gender diversity, racial diversity, and cultural diversity. 

Thankfully, throughout the years things have started to change. Being a diplomat myself (and having attended a good number of receptions, none in which I have ever encountered a golden tower of Ferrero Rocher), I have been witnessing a generational change in how we do diplomacy and in what diplomacy looks like. Although we are far from done, gender equality and inclusivity continue to break old paradigms. Diplomatic photos now show more women and more racial diversity. 

However, almost as a rule, every time we see men, we see neckties. That small piece of clothing has done an incredible job in consolidating itself as a symbol of formality, respectability, and, most important, power. It is almost an indispensable piece of an implicitly agreed upon uniform. So perhaps it is time we take a closer look at that little knot.   

The Tie: A Military Remanent and a Symbol of Social Status

We owe neckties to Croatia. As an article from the Dubrovnik Times explains, “The modern necktie traces back to the time of the Thirty Years’ War when Croatian mercenaries from the Croatian Military Frontier in French service, wearing their traditional small, knotted neckerchiefs, aroused the interest of the Parisians.” 

Indeed, neckties are a remanent of an old military uniform. The link to their origin can be found in their name: since the French call the Croats (Hrvati) “Croates”, they called the necktie “cravate” (“corbatas” in Spanish, which also sound very much like “croatas”, the demonym). It was the French, excelling always in their good taste, who turned the necktie into the modern fashion accessory it is today.  

Uniforms have also been a symbol of social status. In every culture there has been a direct relationship between wardrobe and hierarchy: from the penachos of the Aztec tlatoanis, to the yellow robes of emperors in Imperial China, to the use of purple by bishops and archbishops in the Roman Catholic Church. 

Today, the tradition of wearing a uniform, a symbol as well of patriarchy, continues. Military uniforms have also given way to “civil” uniforms. And colonialism by the western world contributed to the consolidation of a particular type of uniform. Many countries, including my own (Mexico, former colony of Spain) had diplomatic uniforms, resembling European military uniforms (some still do and use them in official ceremonies like the Presentation of the Letters of Credence). And having considered both the military and diplomacy predominantly masculine affairs in our patriarchal societies, the male uniform of hierarchy and status transitioned to the civil space in the form of a suit and a tie. The coined expression “power suit” denotes confidence and dominance, discipline and respect, seriousness and authority. Power. 

In the long and rocky journey to gender equality, women have also turned to the power suit, especially in politics, as a tool to break the glass ceiling. The premise is that a female leader wearing a pantsuit (think for example of Theresa May, Angela Merkel, Hillary Clinton, or Kamala Harris) is perceived as someone who can exercise authority and power, someone who can also wage war if necessary (another vice of our toxic masculinity, the recourse to violence). In other words, a woman who can exercise the same authority as a man. 

This Is Not an NGO

The suit-and-tie combo has unquestionably consolidated itself as the global formal attire for business, politics, and diplomacy par excellence. This means that, without being told to do so, men automatically put on a suit and a tie to go to work. This is done almost as a reflex. No explanations needed; it all goes without saying. 

The abnormal behavior in the world of global diplomacy is to not wear a suit and a tie. When this happens, an explanation is required: it is a workshop, and the dress code is “business casual”; work is being conducted in a hot humid place and a fresher attire (like a guayabera) is allowed; or simply, it’s “casual Friday”. If no explanation is given for an unwarranted change in behavior, things go wrong. Wearing a tie, however, should be exclusively a fashion choice, not a work requirement. But in old school diplomacy, the lack of a tie can be interpreted as disrespect, rebellion, informality, lack of responsibility. 

I have witnessed plenty such examples, from colleagues from other countries who have told me that their ambassadors do not allow them to remove the tie “under any circumstance”, to an ambassador who, whenever he saw a colleague not wearing a tie, asked if he now worked for an NGO. I found this NGO reference particularly interesting. It seems to suggest that in the mindset of old-fashioned civil and diplomatic service, the people who work for NGO are generally rebellious, given their tendency to question governmental action or inaction. They are so allergic to anything institutional, the argument goes, that they can’t even put on a tie. How can they be in the room where formal and serious decisions are made?

I myself, in my capacity as Legal and Sanctions Coordinator of Mexico during our last tenure as an elected member of the Security Council (2021-2022), was once asked to leave the Security Council chamber at the U.N. Headquarters by a member of the Secretariat for wearing a guayabera (it was summertime) and brown leather shoes that have a white rubber sole (very popular these days), which he described as “sneakers.” Not only did I not leave the room, but my ambassador complained about this incident with the then President of the Council. By the way, there are no rules regarding attire in the U.N., neither in the General Assembly Rules of Procedure nor in the Security Council’s. It is amazing how a piece of fabric (or the absence of it) can distract us from the issues that really matter.  

Ironically, while an apparent high level of formality is, if not required, at least expected to be sitting at the U.N., for many around the world it is that formality that alienates us diplomats from reality. “What do those (mostly) men, wearing suits and ties, sitting at that horseshoe table in an elegant New York building know about what the people in Haiti or Afghanistan or Mali or Myanmar are going through?” many ask. Formality, represented in suits and ties, reinforces the perception of distance and aristocracy in diplomacy.      

Rolling Up Our Sleeves

In contrast, whenever people are working, getting down to business and actually getting things done we say that they have “rolled up their sleeves,” an expression understood to mean “to prepare to work hard.” By this logic, hard work is done without a tie. 

Even politicians literally roll up their sleeves whenever they want to portray a working image, when they travel to villages hit by natural disasters, for example, or while campaigning on the road. Tieless politicians holding a microphone or stretching hands with their sleeves rolled up: an image of proximity to the people; a disposition to work hard. Also, an image that tends to be criticized as “populist” in politics. 

Political campaigning aside, the truth is that it is easier and more comfortable to do hard work without a tie around the neck. Together with many other colleagues, we recently spent almost 40 hours straight negotiating a treaty on the conservation and sustainable use of marine biodiversity in areas beyond national jurisdiction at the U.N. (for more details about those long hours see this New Yorker piece), without leaving the building, without sleeping and powering through with the few items we could find in the building’s vending machine. As those grueling hours went by, ties started to come off in conference room 6. We got the job done. 

A Case for Diversity

When I glance at the U.N. General Assembly chamber in plenary sessions, it strikes me how homogenous the room looks, despite being filled with people from 193 different countries and cultures. There are exceptions, of course. For example, nowadays members of African Group have decided to wear their national attires on Fridays. But the rule continues to be the suit and tie uniform. And a uniform, by definition, aims for uniformity. And uniformity trumps diversity. 

This seems counterintuitive given the task of multilateral diplomacy. Diversity and inclusion must always be a key component of our work at the U.N. These values also enhance the richness of the collective. 

Beyond the physical comfort, rigid structures and instructions give way to more open conversations. Out of the box thinking emerges and creative solutions to challenging problems are found. 

It also allows for a more personal connection, an element which is key in diplomacy. Our job as diplomats is to engage in conversation, to talk to each other, to listen and try to understand other viewpoints, to exercise empathy and to build agreements on this basis. The more you can connect with your counterparts, the more chances for success. 

As we move forward in achieving gender equality and racial diversity, we must also take up cultural diversity. And what we wear is also a reflection of our culture. I advocate then for a new era of tieless diplomacy. One in which we leave (heavily patriarchal) uniforms behind, we see and recognize each other for who we are, we roll up our sleeves and get to the hard work of achieving the objectives of multilateral diplomacy: the right for the peoples of the world to live in peace.  

IMAGE:  Members of the Security Council rise for a moment of silence during a meeting concerning the war in Ukraine at United Nations headquarters on February 24, 2023 in New York City. (Photo by Michael M. Santiago/Getty Images)

The post A Case for a Tieless Multilateral Diplomacy appeared first on Just Security.

• Criminal misconduct in efforts to overturn the 2020 presidential election.
• Racism as a driver of efforts to overturn the popular vote in different parts of the country and in fueling some of the organized groups and individuals who attacked the Capitol.
• The apparent intelligence and law enforcement failure and the Committee’s perspective on it.
• The pressure campaign on state election officials to deviate from their legal obligations, and
• The role of social media in propagating false claims about the election and serving as a mechanism to plan acts of violence.

With so much at stake for American democracy, the January 6th Report provides the public an opportunity to reflect on persistent threats to the rule of law, elections, racial justice, and freedom from political violence.

1. White Supremacists, White Nationalism, Plus Anti-Government Extremists

The January 6th Report does well to make explicit one of the drivers of the efforts to overturn the election: racism. That includes but is not limited to white nationalism, a political project which is a particularly sinister and dangerous manifestation of white supremacist ideology.

The racist dimension is a theme that has been presented most powerfully by Chairman Bennie Thompson (D-Miss.) in his remarks at the opening and the closing of the Committee’s public hearings. “I’m from a part of the country where people justify the actions of slavery, the Klu Klux Klan, and lynching,” Rep. Thompson said in the first hearing. “I’m reminded of that dark history as I hear voices today try and justify the actions of the insurrectionists on January 6th, 2021.”

Racism helped propel post-election efforts to disenfranchise voters in major urban areas in Georgia, Michigan, Pennsylvania, and elsewhere; helped galvanize the concerted disinformation campaign against Black election poll workers Ruby Freeman and Shaye Moss; and helped drive militia groups, Neonazis and similarly minded domestic terrorist groups to help plan and participate in the Capitol attack.

Giuliani, for example, “seized on a clip of Freeman passing Moss a ginger mint, claiming that the two women, both Black, were smuggling USB drives ‘as if they’re vials of heroin or cocaine.’ … Not only were Giuliani’s claims about Freeman and Moss reckless, racist, and false, they had real-world consequences that turned both women’s lives upside down. And further heightening the personal impact of these baseless attacks, President Trump supported, and even repeated, them, as described later,” the report states (p. 280).

“Ruby Freeman and Shaye Moss, mother and daughter, were besieged by incessant, terrifying harassment and threats that often evoked racial violence and lynching, instigated and incited by the President of the United States,” the report states later (p. 305) – after providing a detailed list of state and local officials across several battleground states subject to a wave of racist, sexist, and antisemitic threats galvanized by Trump and Giuliani’s public demonization of them.

The Report also contains discussion of the role of white nationalist extremists, such as “online provocateur” Nick Fuentes and his Groypers, a loose network made up of figures that hold racist and antisemitic views. It provides an in-depth look at the crucial role of the Proud Boys, “Western chauvinists” known to promote “an exclusionary, hyper-masculine interpretation of Western culture,” in organizing and executing the breach of the Capitol. The report notes that Ethan Nordean, a Proud Boys leader involved in the the attack at the Capitol, invoked the “Day of the Rope” when discussing his intent to reject the outcome of the 2020 election, “referring to a day of mass lynching of ‘race traitors’ in the white supremacist novel The Turner Diaries.”

“White supremacists and Confederate-sympathizers were among the first rioters to enter the U.S. Capitol,” the report explains.

At the same time as making these racist throughlines more widely understood, the Report helpfully identifies rightwing anti-government extremism — with a focus on the Oath Keepers and the Three Percenters — as a related movement that explains the conditions that gave rise to the January 6th attack. It notes these closely related movements produced what might be thought of as a presage for the assault on the Capitol, as “[f]ar-right extremists protested at or inside State capitols, or at other government buildings, in at least 68 instances” between January 1, 2020 and January 20, 2021.

We have always thought that white supremacy should be foregrounded in the analysis of the January 6th attack and the efforts to disenfranchise voters in the ways Trump and his associates chose to do. Policymakers, scholars, and the general public can benefit significantly from grappling with the evidence and analysis provided by the Select Committee.

2. False Slate of Electors Scheme: The Principals

One of the highly active parts of the Justice Department’s investigation into the efforts to overturn the election involves the false slate of electors scheme. The January 6th Report provides new and compelling evidence pointing to Trump, Meadows, and Giuliani’s direct roles in organizing the scheme to replace the rightful delegates to the Electoral College determined by the outcome of the popular vote with individuals loyal to former Trump to falsely certify his winning the respective state.

What’s more, the evidence against Meadows – Trump’s White House chief of staff – and Giuliani – Trump’s personal attorney – is also evidence against Trump. Meadows and Giuliani appear to have been acting at Trump’s direction in orchestrating the scheme. In addition, the Report does not include all of the Meadows texts that further corroborate these damning findings.

These passages highlight some of the new evidence:

In early December, the highest levels of the Trump Campaign took note of Chesebro’s fake elector plan and began to operationalize it. On December 6th, White House Chief of Staff Mark Meadows forwarded a copy of Chesebro’s November 18, 2020, memo to Trump Campaign Senior Advisor Jason Miller writing, “Let’s have a discussion about this tomorrow.” Miller replied that he had just engaged with reporters on the subject, to which Meadows wrote: “If you are on it then never mind the meeting. We just need to have someone coordinating the electors for states.” Miller clarified that he had only been “working the PR angle” and they should still meet, to which Meadows answered: “Got it.” Later that week, Miller sent Meadows a spreadsheet that the Trump Campaign had compiled. It listed contact information for nearly all of the 79 GOP nominees to the electoral college on the November ballot for Arizona, Georgia, Michigan, Nevada, Pennsylvania, and Wisconsin. And on December 8th, Meadows received a text message from a former State legislator in Louisiana recommending that the proposed “Trump electors from AR [sic] MI GA PA WI NV all meet next Monday at their state capitols[,] [c]all themselves to order, elect officers, and cast their votes for the President. . . . Then they certify their votes and transmit that certificate to Washington.” Meadows replied: “We are.”

Cassidy Hutchinson, a Special Assistant to the President and an assistant to Chief of Staff Mark Meadows, confirmed Meadows’s significant involvement in the plan. Hutchinson told the Select Committee that Meadows followed the progress of the fake elector effort closely and that she “remember[ed] him frequently having calls, meetings, and outreach with individuals and this just being a prominent topic of discussion in our office.” When asked how many of his calls or meetings it came up in, she estimated “[d]ozens.”

The evidence indicates that by December 7th or 8th, President Trump had decided to pursue the fake elector plan and was driving it. Trump Campaign Associate General Counsel Joshua Findlay was tasked by the campaign’s general counsel, Matthew Morgan, around December 7th or 8th with exploring the feasibility of assembling unrecognized slates of Trump electors in a handful of the States that President Trump had lost.33 Findlay told the Select Committee “it was my understanding that the President made this decision. . . .” As recounted by Findlay, Morgan conveyed that the client—President Trump—directed the campaign lawyers to “look into electors in these potential litigation States[.]” (pp. 345-46) (emphasis add)

President Trump personally called RNC Chairwoman Ronna Romney McDaniel days before December 14th to enlist the RNC’s assistance in the scheme. President Trump opened the call by introducing McDaniel to John Eastman, who described “the importance of the RNC helping the campaign to gather these contingent electors in case any of the legal challenges that were ongoing changed the results in any of the States.” According to McDaniel, she called President Trump back soon after the call ended, letting him know that she agreed to his request and that some RNC staffers were already assisting. (p. 346) (emphasis add)

While the campaign’s core legal team stepped back from the fake elector effort on December 11th, it nonetheless went forward because “Rudy was in charge of [it]” and “[t]his is what he wanted to do,” according to Findlay. When Findlay was asked if this decision to let the effort proceed under Giuliani’s direction “was coming from your client, the President,” Findlay responded: “Yes, I believe so. I mean, he had made it clear that Rudy was in charge of this and that Rudy was executing what he wanted.” (p. 349) (emphasis add)

With the Committee’s work, the false slate of electors ends up being the scheme in which Trump and Meadows may face the greatest legal jeopardy. The two men (and Giuliani) put their fingerprints all over the plan, and the Justice Department will presumably be able to uncover more information to determine whether to proceed with indictments.

3. Pressure on State Officials – A vast and organized scheme

The January 6th Report provides new information about the breadth of Trump and his closest associates’ efforts to pressure state officials to exceed their legal authority to reverse the election outcome (Chapter Two). “The Select Committee estimates that in the two months between the November election and the January 6th insurrection, President Trump or his inner circle engaged in at least 200 apparent acts of public or private outreach, pressure, or condemnation, targeting either State legislators or State or local election administrators, to overturn State election result,” the report states.

In other words, Trump and his associates’ efforts were directed not only in the notorious phone call to Georgia’s Republican Secretary of State Brad Raffensperger and in phone conversations with Arizona’s Republican House Speaker Rusty Bowers, but in a more systematic fashion with state and local officials across the battleground states where Trump lost the popular vote.

Such an overarching pattern of behavior may become valuable evidence in establishing a criminal conspiracy to defraud the United States (under 18 U.S.C. 371) in the Department of Justice investigation as well as in establishing criminal offenses under state law, such as in Georgia, Fulton County (see the Brookings Fulton County, Georgia report, 2d edition).

In pursuing criminal investigations, law enforcement agencies, and the Department of Justice in particular, may have a greater ability to get witnesses to testify. The case of Michigan Senate Majority Leader Mike Shirkey provides an example of someone with an apparent story to tell but reluctant to speak with the Committee:

President Trump called Michigan Senate Majority Leader Mike Shirkey three times after their White House meeting: November 21st, November 25th, and December 14th. Shirkey did not recall many specifics of those calls and claimed he did not remember the President applying any specific pressure. The day after one of those calls, however, Shirkey tweeted that “our election process MUST be free of intimidation and threats,” and “it’s inappropriate for anyone to exert pressure on them.” From this and other public statements, it is clear that Shirkey was sensitive to outside forces pressuring people with roles in the election. In fact, the same day that the electoral college met and voted former Vice President Joe Biden as the winner of the 2020 Presidential election, Shirkey received another call from President Trump and issued another public statement. Shirkey’s statement that day, December 14, 2020, read: “Michigan’s Democratic slate of electors should be able to proceed with their duty, free from threats of violence and intimidation” and “[i]t is our responsibility as leaders to follow the law….” (pp. 300-301)

4. Anatomy of the Attack – Understanding the Trump effect and indicators of a seditious conspiracy

Some supporters of President Trump have argued that the attack on the Capitol was already underway before Trump even ended his speech at the Ellipse. An implication is that his words cannot thus be regarded as incitement or causal. That idea, of course, need not be propagated only by the former president’s supporters. It is an important counterintelligence question worth asking.

The January 6th Report presents in exacting detail an analysis of the structure of the attack that points to two stark conclusions.

First, the Report shows that the attack would not have succeeded without Trump’s fiery speech at the Ellipse. The President of the United States at the time directed a mass of his followers to march on the Capitol. Context is important. He laid the groundwork: he told the crowd they needed to “take back our country” from an election “stolen from you.” Their rightful leader had been deposed in a fraudulent election, and the only way to get him back was to “fight like hell.” “When you catch somebody in a fraud, you’re allowed to go by very different rules,” he said.

But this is not just about analyzing the content of his speech. The Report goes into depth explaining how a first phase of the attack with the Proud Boys and their associates at the tip of the spear was successfully repelled by the DC Metropolitan Police Department [MPD]. “After the initial breaches, the USCP [U.S. Capitol Police] was able to deploy enough officers to stop the rioters from advancing past the base of the inauguration stage. More importantly, rioter momentum was further halted when the first group of MPD officers arrived on scene at 1:11 p.m., almost precisely as President Trump finished his Ellipse speech,” the report explains. “A stalemate ensued.”

Law enforcement officers, however, were completely overwhelmed by the second wave, when thousands of rally-goers came over from the Ellipse. Without that speech, without that mob, the report explains in authoritative terms how the assault on the Capitol would not have happened.

Second, the Report presents extraordinary evidence and analysis of a preplanned operation by the Proud Boys that appears to have worked hand-in-hand with the closely held plan that Trump would direct the crowd to march on the Capitol. The Report states:

“Shortly before the joint session of Congress was set to begin at 1:00 p.m., the Proud Boys instigated an assault on outmanned law enforcement at the Peace Circle, a key location. They quickly overran security barriers and made their way onto the U.S. Capitol’s restricted grounds. Throughout the next several hours, members of the Proud Boys led the attack at key breach points, preventing law enforcement from gaining crowd control and inciting others to press forward.

President Trump finished his speech at the Ellipse at approximately 1:10 p.m. Toward the end of his remarks, the President directed his supporters to march down Pennsylvania Avenue to the Capitol. Their natural path took them through the Peace Circle, which had already been cleared out by the Proud Boys and their associates.” (p. 638 emphasis added)

Such a coincidence is not anywhere sufficient to indicting someone on a seditious conspiracy charge, but it raises the chilling prospect of coordination between Trump’s plan to dispatch the mob and the Proud Boys’ planned assault.

This section of the report is among the most impressive. Accordingly, readers should be aware of the remarkable sources and methods the Committee used in its analysis:

“The Select Committee reviewed extensive footage of the attack, including that recorded by the U.S. Capitol Police’s (USCP) surveillance cameras, the Metropolitan Police Department’s (MPD) body-worn cameras, publicly available videos, as well as on-the-ground film produced by an embedded documentarian. The Select Committee interviewed rioters, law enforcement officers, and witnesses that were present on January 6th, while also consulting thousands of court filings. Using these sources of information, the Select Committee developed a timeline of events to understand how the unprecedented attack on the U.S. Capitol unfolded.” (pp. 637-38)

The section discusses in detail the actions of others such as Alex Jones and Ali Alexander in mobilizing and channeling the crowd – and in communicating with the Proud Boys. “Records for Enrique Tarrio’s phone show that while the attack on the Capitol was ongoing, he texted with Jones three times and [Jones’ colleague Owen] Shroyer five times,” as but one example. It will be for the Justice Department to crack open this part of the case. The Committee has given them – and investigative reporters – not only many a lead, but a roadmap.

5. A Major Lawsuit in the Offing – January 6th Report points to Dominion Voting Systems’ options against Trump

In its executive summary, the Committee stated: “Trump again made false and malicious claims about Dominion Voting Systems.” The reference there is to the former president’s January 6 speech at the Ellipse and a Table the Committee presents displaying examples in which Trump made similar public statements about the company. Chapter One of the report includes a lengthy, 8-page treatment of the topic, providing evidence that “Trump demonstrated a conscious disregard for the facts and continued to maliciously smear Dominion.”

We have previously discussed this topic at Just Security, publishing a roundup of leading experts’ views. See, Ryan Goodman, 8 Top Experts on Strength of Dominion Suing Trump for Defamation, If It Wants To, July 19, 2022. The introduction to their views read: “Almost every expert said a defamation suit brought by Dominion against Trump would be very strong, but one expert raised concerns about the practicality of such a lawsuit and another raised issues of presidential immunity.”

6. The Intelligence Failure – The Select Committee’s refusal to assign blame

One of the topics the January 6th Report addresses is the role of law enforcement and domestic intelligence agencies including the FBI and at DHS, and why they apparently failed to anticipate the scale of possible violence at the Capitol and prepare law enforcement agencies accordingly. While the report acknowledges that a vast amount of information was gathered from social media, as well as from tips and other sources of information, indicating extremist groups were openly planning for violence, the Committee takes pains to suggest the reason for the failure to reckon with the full extent of the threat was a lack of insight into the schemes and mindset of then President Trump.

In the introduction to the report, the Committee notes that:

Neither the intelligence community nor law enforcement obtained intelligence in advance of January 6th on the full extent of the ongoing planning by President Trump, John Eastman, Rudolph Giuliani and their associates to overturn the certified election results. Such agencies apparently did not (and potentially could not) anticipate the provocation President Trump would offer the crowd in his Ellipse speech, that President Trump would “spontaneously” instruct the crowd to march to the Capitol, that President Trump would exacerbate the violent riot by sending his 2:24 p.m. tweet condemning Vice President Pence, or the full scale of the violence and lawlessness that would ensue. Nor did law enforcement anticipate that President Trump would refuse to direct his supporters to leave the Capitol once violence began. No intelligence community advance analysis predicted exactly how President Trump would behave; no such analysis recognized the full scale and extent of the threat to the Capitol on January 6th. (p. 6)

This point is underscored again later in the 154-page executive summary, suggesting that direct knowledge of President Trump’s malign intent was the missing component that would have completed the intelligence picture:

Again, this type of intelligence was shared, including obvious warnings about potential violence prior to January 6th. What was not shared, and was not fully understood by intelligence and law enforcement entities, is what role President Trump would play on January 6th in exacerbating the violence, and later refusing for multiple hours to instruct his supporters to stand down and leave the Capitol. No intelligence collection was apparently performed on President Trump’s plans for January 6th, nor was there any analysis performed on what he might do to exacerbate potential violence. Certain Republican members of Congress who were working with Trump and the Giuliani team may have had insight on this particular risk, but none appear to have alerted the Capitol Police or any other law enforcement authority. (p. 66)

In his forward, Rep. Thompson repeats this idea:

But the shortfall of communications, intelligence and law enforcement around January 6th was much less about what they did or did not know. It was more about what they could not know. The President of the United States inciting a mob to march on the Capitol and impede the work of Congress is not a scenario our intelligence and law enforcement communities envisioned for this country. Prior to January 6th, it was unimaginable. Whatever weaknesses existed in the policies, procedures, or institutions, they were not to blame for what happened on that day. (p. xi)

Rep. Thompson concludes that his “concerns are less with the mechanics of intelligence gathering and security posture, as important as those questions are,” but rather “remain first and foremost with those who continue to seek power at the expense of American democracy.”

The Committee’s framing is odd, particularly given the degree to which the intelligence failure at multiple agencies has been documented, and the extent to which the Report itself makes clear that the threat of organized violence was clear. Was it really impossible to factor in the possibility that Trump might behave erratically or advance false claims, or worse, that might incite the crowd at his rally at the Ellipse? Take these three indicators, which are not mentioned in the analysis:

• Vice President’s Mike Pence’s chief of staff, Marc Short, was concerned that Trump would endanger the safety of Pence by publicly lashing out on January 6th – so much so that he alerted the head of the Vice President’s Secret Service detail the day before. Short testified: “Concern was for the vice president’s security, and so I wanted to make sure the head of the vice president’s Secret Service was aware that — that likely, as these disagreements became more public, that the president would lash out in some way.”
• General Mark Milley, Chairman of the Joint Chiefs of Staff, had repeatedly expressed concerns that Trump might seek to create what he called a “Reichstag moment,” and worked behind the scenes to limit the possibility that Trump might try to take advantage of “brownshirts in the streets.”
• As documented at Just Security, in addition to numerous instances in which Trump fomented violence before 2020, in the year prior to January 6 Trump in word and deed inspired violent groups, gave support and legitimacy to armed insurrectionists in states that had imposed pandemic restrictions, and repeatedly refused to say he would ensure a peaceful transfer of power. See, “Incitement Timeline: Year of Trump’s Actions Leading to the Attack on the Capitol.” That timeline notably starts with reference to an op-ed in January 2020 by former acting U.S. assistant attorney general for national security Mary McCord, now a member of the Just Security editorial board and a leading expert on militia groups. McCord wrote that Trump’s tweets at the time “incited insurrection” against state governments.

In sum, there is reason to doubt where the report lands in its assessment, a set of conclusions that shifts responsibility away from the FBI and other intelligence agencies for the historic intelligence failure.

The Report does, however, include a substantial examination of what should be done differently going forward in other respects.

For instance, the Report’s recommendations include an entry on “Violent Extremism,” noting that Federal Agencies with intelligence and security missions, including the Secret Service, should (a) move forward on whole-of-government strategies to combat the threat of violent activity posed by all extremist groups, including white nationalist groups and violent anti-government groups while respecting the civil rights and First Amendment civil liberties of all citizens; and (b) review their intelligence sharing protocols to ensure that threat intelligence is properly prioritized and shared with other responsible intelligence and security agencies on a timely basis in order to combat the threat of violent activity targeting legislative institutions, government operations, and minority groups.”

And in a recommendation related to “Capitol Police Oversight,” the Report suggests Congress should continue to monitor improvements in the department’s “intelligence processes” and its “critical incident response protocols.”

Crucially, the Committee appears to concur with the findings of a U.S. Government Accountability Office (GAO) investigation that considered why, given the available intelligence indicating the potential for violence on January 6, the events at the Capitol were not designated a National Special Security Event, which would have ensured a higher degree of security at the Capitol. That is a part of the intelligence failure that has nothing to do with anticipating Trump’s actions. The Committee recommends that “[g]iven what occurred in 2021, Congress and the Executive Branch should work together to designate the joint session of Congress occurring on January 6th as a National Special Security Event.”

A 30-page Appendix concerns “Government Agency Preparation For and Response to January 6th,” concluding that “there are additional steps that should have been taken to address the potential for violence on that day.” The Appendix lays out the substantial amount of information collected and disseminated across the federal government and law enforcement agencies. It notes that “[a]lthough some of that intelligence was fragmentary, it should have been sufficient to warrant far more vigorous preparations for the security of the joint session. The failure to sufficiently share and act upon that intelligence jeopardized the lives of the police officers defending the Capitol and everyone in it.”

What then are the causal explanations for the failure” to sufficiently share and act upon that intelligence”?

Yet again, even this section hedges, evading placing blame on intelligence and law enforcement agencies. “While the danger to the Capitol posed by an armed and angry crowd was foreseeable, the fact that the President of the United States would be the catalyst of their fury and facilitate the attack was unprecedented in American history,” the Appendix states. “If we lacked the imagination to suppose that a President would incite an attack on his own Government, urging his supporters to ‘fight like hell,’ we lack that insight no more.”

7. The Role of Social Media – An afterthought at best

According to the legislation that established the January 6th Committee, the members were mandated to examine “how technology, including online platforms” such as Facebook, YouTube, Twitter and Reddit “may have factored into the motivation, organization, and execution” of the insurrection. Almost a year ago, the committee issued subpoenas to Alphabet (Google), Facebook (now Meta), Reddit and Twitter demanding records “relating to the spread of misinformation, efforts to overturn the 2020 election, domestic violent extremism, and foreign influence in the 2020 election.”

“Two key questions for the Select Committee are how the spread of misinformation and violent extremism contributed to the violent attack on our democracy, and what steps—if any—social media companies took to prevent their platforms from being breeding grounds for radicalizing people to violence,” Rep. Thompson wrote at the time. He indicated the subpoenas were issued because the companies had failed to voluntarily provide information useful to the investigation that the Committee had requested.

Now, in his forward to the January 6 Report, Rep. Thompson notes the Committee “pulled back the curtain at certain major social media companies to determine if their policies and protocols were up to the challenge when the President spread a message of violence and his supporters began to plan and coordinate their descent on Washington.”

The report is replete with references to the role that, in particular, Twitter played as a key channel for the former President and his supporters to advance false claims about the election and ultimately to call on crowds to travel to Washington D.C. on January 6. The central importance of Trump’s December 19th tweet (“Be there, will be wild!”) is made apparent. And there is substantial discussion of the role of fringe sites such as TheDonald[.]win and Parler in the organization of extremist groups and planning for violence, with reference to Just Security reporting, in particular, on TheDonald[.]win. There is a segment on the role of the QAnon conspiracy in animating extremists, mention of key social media influencers and organizers such as InfoWars host Alex Jones, and an appendix that addresses the role of foreign state actors in pushing disinformation and narratives intended to influence the electorate.

That said, there is very little in the Report concerning the types of considerations referenced in the subpoenas. The Committee makes no explicit judgment on whether the platforms themselves could have done more to address the spread of the Big Lie and festering extremism, either in the immediate runup to January 6 or in the years prior, during which networks such as QAnon emerged. Rather, the Committee includes in its recommendations an encouragement to congressional committees to continue to investigate these questions:

“The Committee’s investigation has identified many individuals involved in January 6th who were provoked to act by false information about the 2020 election repeatedly reinforced by legacy and social media. The Committee agrees that individuals remain responsible for their own actions, including their own criminal actions. But congressional committees of jurisdiction should continue to evaluate policies of media companies that have had the effect of radicalizing their consumers, including by provoking people to attack their own country.”

If the Committee did collect more specific information from the tech platforms, such as internal assessments or other testimony beyond that of a former Twitter employee highlighted in the seventh public hearing in July, it did not appear to merit mention in the final report.

* * *

The Committee is expected to release additional materials, including more transcripts of witness depositions and perhaps other evidence, before the start of the 118th Congress on January 3, 2023. Some of this underlying material, already in the hands of law enforcement authorities, will likely prove valuable to the ongoing investigations led by the Department of Justice, now under Special Counsel Jack Smith, and in the ongoing investigation led by Fulton County, Georgia District Attorney Fani Willis. The trial of Proud Boys leaders will commence early next year, and litigation related to false claims about Dominion Voting Systems will proceed at least against Trump associates. While the Committee’s work may be complete, the events of January 6th will continue to reverberate well into the new year and beyond. Like the 9/11 Report, the January 6 final report will serve as a resource — and a warning — for decades to come.

IMAGE: Pro-Trump supporters storm the U.S. Capitol following a rally with President Donald Trump on January 6, 2021 in Washington, DC. Trump supporters gathered in the nation’s capital today to protest the ratification of President-elect Joe Biden’s Electoral College victory over President Trump in the 2020 election. (Photo by Samuel Corum/Getty Images)

The post Major Highlights of the January 6th Report appeared first on Just Security.

But inside apartment buildings, it will be quiet. Apartment buildings are a legal grey area when it comes to political campaigning. In the suburbs, you can’t miss the signs of an election; by contrast, in towering complexes of Pittsburgh and Syracuse, you can’t find any. Due to rules that prevent political campaigning in apartment buildings, including public housing owned by the state, urban voters fall prey to voter discouragement and political neglect.

Canvassing, or the process of going door-to-door to talk to voters about a candidate’s platform, remind them of an upcoming election, and even register them to vote, is among the most important components of getting out the vote.

It’s important because it works. That’s even when many people might not choose to open their doors. Turnout is between 1.7 and 9.8 percentage points higher among canvassed voters, depending on the year, while phone banking and sending campaign mail shows little to no effect on turnout – which means that every 14 people a campaign contacts through canvassing results in a new voter. This result is even more pronounced in lower-turnout communities: in majority-Black neighborhoods, canvassing increases turnout by 7 to 14 percentage points, and young voters were 1.4 times more likely to vote in 2012 when contacted by a campaign.

While the estimates of canvassing’s effect vary across elections, the conclusion holds that hitting the streets is more effective than any other means of reaching voters, even including the most sophisticated auto-dialing systems that can call hundreds of voters a minute.

Canvassing is also a critical right of expression, allowing engaged citizens who are going door to door to explain why they support a candidate or policy. The U.S. Supreme Court has established extensive protections for canvassing in recognition of its importance as a First Amendment right of expression. Protection for canvassers first emerged in the late 1930s and early 1940s, when the Court held that unsolicited leafletting was an “essential” freedom, and ruled that municipal ordinances prohibiting door-knocking were unconstitutional. Over the course of the 20th century, the Court gradually strengthened protections for canvassing, differentiating door-to-door political fundraising from other forms of commercial speech with less protection and striking down regulations requiring canvassers to obtain a permit before going door-to-door.

Most recently, in 2015, the Supreme Court ruled in Reed v. Town of Gilbert that regulations on canvassing are subject to the most stringent form of government review — strict scrutiny — meaning that essentially any regulation which would curtail someone’s ability to canvass would be struck down.

But there’s a catch: all of that jurisprudence has been focused on single-family homes, and there is no clear law for the approximately 44 million Americans living in apartment buildings. The sidewalk leading up to someone’s home is clearly protected. But when a front door is in a private hallway behind a building’s locked door,  there is no precedent. Only Minnesota offers any affirmative protection for canvassing apartment buildings. In the other 49 states, such activity is a constitutional no man’s land.

Among the lower federal courts, three conservative jurisdictions have ruled in different directions creating a “circuit split” that likely won’t be rectified until the Supreme Court takes up this issue, if it ever does. In much of the Bible Belt and in Ohio, cities’ Housing Authorities can criminalize canvassing by non-residents as trespassing. But in the Fifth Circuit Court of Appeals, a law forbidding nonresident canvassers in public housing was struck down, with a panel of judges reasoning that canvassing was an important democratic good.

The Fifth Circuit was right. Public housing residents “deserve access to political information in the same manner as other citizens.” The lowest-turnout voting populations – Black and Hispanic voters, young people, and the poor – are also those who campaigns may not otherwise reach. Over half of Black and Hispanic Americans are renters, and three-quarters of them live in large apartment buildings. Nearly two-thirds of renters are low-income, and they are also younger than single-family homeowners. Renters are also less likely to have current voter registrations, because they move more frequently. Canvassers can remind these citizens to update their voter registrations and inform them of upcoming elections.

Canvassers themselves also deserve the protections that come from a clearer law. In the status quo, the criminalization of canvassing apartment buildings means that urban canvassers – who are often Black and Hispanic – risk hostile interactions with the police in ways their suburban counterparts do not.

Canvassing in apartment buildings is also considerably more effective than more spread-out single family neighborhoods, because the density allows each door-knocker to visit more voters and lowers the cost-per-vote of hiring professionals. Underfunded challengers will be on a more equal footing, allowing voters’ preferences to be more closely reflected.

Most importantly, in the absence of laws protecting apartment canvassing, politicians have less incentive to cater to what may be their most numerous constituencies. With no guarantee that a canvasser will be able to espouse any of a candidate’s policies in an apartment building, but a legal guarantee that single-family homes have to receive their ideas, candidates may have every reason to prioritize the key issues of their more suburban constituents in mixed districts. A candidate who never has to visit the projects has less incentive to devote attention to better public housing policy – but when those buildings are full of free, easily accessible votes, they will have a strong reason to engage. The Court famously invalidated districting plans that gave unequal weight to rural voters, but the disparate access to voter engagement and information in urban areas today can be understood as an extension of that injustice.

The widest-reaching solution would be for Congress to pass a canvassers’ bill of rights, clarifying the extent of acts clearly protected under the First Amendment – a nationwide version of Minnesota’s law, which requires building superintendents to grant access to volunteers and candidates. While this may seem like a progressive pipe dream in a heavily gridlocked political environment, there is a strong case for conservatives to endorse this measure: it also protects religious liberties. Justice Clarence Thomas wrote the decision in Reed, which was litigated by the ultraconservative Alliance Defending Freedom, and conservatives have historically sided with canvassers because canvassing is also undertaken by proselytizers.

If Congress can’t manage such a feat, however, cities can protect their voters by passing their own affirmative ordinances on canvassers’ rights. In large, single-party cities like New York, this will increase political participation and community engagement, especially in competitive primaries. In smaller cities and large towns that share a congressional district with suburban and rural areas, such as Syracuse and Utica in the newly-drawn swing district NY-22, this will increase candidates’ focus on some of their most-overlooked constituents and help level the playing field.

Opponents of canvassing typically field two criticisms: it’s annoying, and people may feel unsafe answering their door to strangers. But the benefits of ensuring a more participatory democracy far outweigh these costs, as the courts found for suburbs years ago. Canvassing interactions generally last under a minute, and if someone cringes especially harshly at the thought of an unwanted interaction, most campaigns train volunteers to wait for 30 seconds at a door after knocking, then leave.

Americans will fiercely defend their right not to be bothered – but democracy is bothersome. It requires that we show up to hours-long caucuses or polling stations with long lines, uncomfortably live with the preferences of our differently minded peers, have hard conversations and even harder reflections on our own biases. And it requires that we open our door and listen, so that everyone gets a fair say.

The post Canvassing Deserts: When Obstacles to Reaching Urban Voters Become Voter Suppression appeared first on Just Security.

Today, the U.S. government continues to repeat the same mistakes it made in the 1950s with serious national security implications. But it is not too late this time around. The U.S. Department of Justice should take the opportunity to acknowledge that anti-Asian racial bias exists and comprehensively detail how law enforcement agencies and the Intelligence Community will prevent anti-Asian racial discrimination. Those steps are key, particularly as U.S.-China geopolitical tensions escalate.

Deporting a World-Class Scientist

In 1935, Qian Xuesen received a U.S. government scholarship to study at the Massachusetts Institute of Technology (MIT) and the California Institute of Technology. He soon became a prominent aeronautical engineer and, during World War II, supported the Allied effort by devising a range of missiles to counter German rockets. He even joined the Manhattan Project, which developed the first atomic bomb. In the late 1940s, Qian helped launch the U.S. space program and, eventually, applied for U.S. citizenship.

But the McCarthy era turned Qian’s life upside down. As Iris Chang describes in “Thread of the Silkworm,” the U.S. government accused Qian of being a Communist Party member without clear evidence as the zeitgeist of suspicion sweeping the nation “turned to scientists who were Chinese nationals studying at American universities.”

U.S. law enforcement held Qian under house arrest for five years. He felt betrayed and humiliated by the country he called home and which he admirably served. Eventually, in 1955, the U.S. government exchanged Qian for the repatriation of American pilots captured in the Korean War. Former U.S. Navy Secretary Dan Kimball called Qian’s treatment, “the stupidest thing this country ever did.”

In China, Qian received a hero’s welcome. He quickly founded and developed the “Dongfeng” (东风), or “East Wind,” missile program. Since Qian’s return, China’s military capabilities have greatly expanded. Michèle Flournoy, the former U.S. under secretary of defense for policy, assesses that Beijing can prevent U.S. forces from “projecting military power into East Asia to defend its interests or allies.”

Central to China’s national defense is its modernization of the People’s Liberation Army Rocket Force (PLARF). Qian’s legacy – and the Dongfeng missiles he pioneered – both lie at the heart of China’s effort to bolster its “strategic deterrence” capabilities, according to a 2021 U.S. Department of Defense report. Yet, the consequences of the U.S. government’s decision to deport Qian, most recently on display in the hypersonic missiles that streaked above Taiwan, remain largely unknown or unacknowledged by U.S. policymakers.

Repeating the Same Mistakes

The specter that the U.S. government will scrutinize researchers and officials of Asian ancestry has not dissipated in the 72 years since the Immigration and Naturalization Service confined Qian to house arrest.

In November 2018, the Department of Justice created the “China Initiative” to combat Chinese espionage. Among its goals, the program aimed to develop an enforcement strategy for university lab researchers “that are being coopted into transferring technology contrary to U.S. interests,” and sought to “educate” universities about “potential threats to academic freedom and open discourse from influence efforts on campus.” But the China Initiative has overwhelmingly targeted Chinese and Chinese American scientists: 88 percent of defendants in cases brought by the DOJ are of Chinese heritage. This overrepresentation may have some valid justification if the cases had actually led to high conviction rates, but only 25 percent of defendants met that outcome. Instead, most charges were “administrative violations” — minor infractions historically “handled at the university level” — and not malicious espionage on behalf of the Chinese Communist Party.

For example, earlier this year, the DOJ dropped all charges against MIT professor Gang Chen over lack of evidence of espionage. His case is not unique. The DOJ similarly charged University of Tennessee professor Anming Hu who was acquitted after federal agents admitted that they falsely implicated him as a Chinese spy and used false information to add him on the federal “no-fly” list.

Although the DOJ rebranded the “China Initiative as the “Strategy for Countering Nation-State Threats” in February (expanding the program to include Russia, Iran, and North Korea), its legacy remains. As APA Justice, a non-partisan organization that challenges the racial profiling of Asian American communities, explained: “Despite the official termination of the program, the impact is still palpable, especially among Asian immigrant and Asian American academic communities.”

Recent reports further confirm this sentiment, and the data should raise alarm. A 2021 joint study between the University of Arizona and Committee of 100 found that 51 percent of scientists of Chinese descent fear U.S. government surveillance (as compared to 12 percent of scientists of non-Chinese ancestry). This is probably undercounting as many researchers suspected that this survey was a surveillance ploy that the FBI would use to trap scientists under the China Initiative. Regardless of the precise numbers, scientists who live and work in the U.S. have already withdrawn “from opportunities to engage with their counterparts abroad,” according to the American Physical Society. As MIT professor Yasheng Huang states: “That’s bad for science, and that’s bad for America.”

In May, the Office of the Director of National Intelligence (ODNI) made two recommendations to address these concerns. First, the ODNI committed to eliminate “unlawful racial animus or bias” from security clearance processes. This is a welcome change and might be expanded to also monitor racial bias in related fields, like assignment restrictions. Second, the ODNI recommended training on “long-standing non-discrimination principles.” This appears inadequate since “unconscious bias” training lacks efficacy: it can “activate bias rather than stamp it out,” especially against people of Asian descent.

Significantly, the DOJ has provided no accountability for the China Initiative to set a precedent that racial profiling is unacceptable. While Assistant Attorney General Matthew Olsen “concluded that this initiative is not the right approach,” the DOJ should go further.

• First, it should publicly acknowledge the harm the China Initiative wrought on individuals and institutions without substantive evidence. This would go a long way toward rebuilding trust the DOJ has lost. As Olsen maintains, the DOJ “can impair our national security by alienating us from the people we serve, including the very communities the [Chinese] government targets as victims.”
• Second, the DOJ should provide more details into how the National Security Division (NSD) will implement the Strategy for Countering Nation-State Threats program. What are the new criteria to determine whether criminal prosecutions are warranted? How will NSD review ongoing cases for racial animus? How will NSD evaluate if racial bias persists? How will NSD continue to collaborate with civil rights organizations, academia, and Asian American community groups? These are crucial questions, and providing these details would underscore the DOJ’s commitment to prevent racial discrimination and rebuild trust, especially within Asian and Asian American communities.

For the U.S. government, confronting anti-Asian discrimination is a moral imperative: racial profiling is unethical and has violent consequences. Yet, it is also a security imperative. Beijing, of course, engages in espionage; however, presuming that individuals are Chinese spies simply because of their ancestry is a harmful counter-espionage strategy that undermines U.S. national security.

Nearly seven decades ago, the U.S. government deported a scientist whose prowess and legacy now define the modern Chinese missile program. The Dongfeng missiles that recently landed around Taiwan should serve as stark reminders, especially for U.S. officials in law enforcement and the Intelligence Community, that racial discrimination and disregard for civil liberties are detrimental to U.S. national security. As geopolitical tensions between the U.S. and China continue to escalate, the U.S. government should commit to combating anti-Asian racial discrimination or risk repeating its past mistakes.

IMAGE: People view the Dongfeng 1 missile at the Military Museum of Chinese People’s Revolution on March 1, 2008 in Beijing, China. (Photo by China Photos/Getty Images)

The post Anti-Asian Prejudice Undermines U.S. National Security: Revisiting the U.S. Government’s Deportation of Qian Xuesen appeared first on Just Security.

In addition to threatening individual liberty and fundamental rights, the Dobbs decision poses a significant challenge to national security. Defense analysts have already described Dobbs as a “nightmare for women in the military” and expressed concern that it will hinder military readiness or generate a “cultural backlash” against women in the military more generally. But other aspects of the threat to national security posed by the Dobbs decision remain underexplored. The Court’s decision has invigorated anti-abortion groups and legislators, who have sprung into action to pass some of the most radical abortion bans in the world to expand the criminalization of abortion. The risk of political violence has increased as Dobbs has exacerbated political division and weakened the legitimacy of the Supreme Court. Perhaps most notably, the decision damages the United States’ standing in the world, as foreign leaders and international organizations have accused the United States of failing to safeguard its professed fundamental values. The consequences which flow from the elimination of the federal right to abortion raise important considerations for national security and legal efforts going forward.

Criminalization and National Security

 The weeks following Dobbs have been characterized by a flurry of legal activity and chaos. In Louisiana, a state law banning all abortions from conception, with no exceptions for rape or incest, was triggered by Dobbs’ overruling of Roe v. Wade. A New Orleans judge quickly blocked the law, but it was subsequently allowed to take effect after a different court ruled that the New Orleans judge lacked the proper authority. It was blocked again on July 12, and enforcement of the state abortion ban is currently halted by a preliminary injunction until the case concludes. Although specifics vary, approximately two dozen states have already banned most abortions or will do so in the near future.

Most of these states intend to enforce their abortion bans through the criminal justice system. Many states are stiffening the criminal penalties for abortion providers who violate new or existing laws, instituting large fines, prison sentences, or both. Notably, exceptions for abortions necessary to save the life of a pregnant person are limited or ambiguously worded, leaving pregnant patients and physicians uncertain as to which medical procedures are legally permitted and producing “a chilling effect” that further bars pregnant people from accessing reproductive health services and life-saving care. Worse, in anticipation of Dobbs, states including Texas, Idaho, and Oklahoma have attempted to circumvent prosecutorial discretion in the enforcement of these bans by incentivizing private enforcement, rewarding citizens with cash bounties if they successfully sue someone found to have helped a pregnant person get an illegal abortion (eerily resembling the Fugitive Slave Law of 1850 under which people who captured and returned enslaved people who escaped could receive monetary rewards from the federal government). Model legislation drafted by the National Right to Life Coalition seeks to go further by imposing state penalties for abortion beyond their borders, possibly through travel restrictions.

While these new restrictions represent a dramatic expansion of the criminalization of reproductive rights, they are far from the first such efforts. Throughout the Roe era, states prosecuted thousands of pregnant women — disproportionately Black and poor — for engaging in behavior which is considered risky during pregnancy. The National Advocates for Pregnant Women has identified more than 1,700 cases from 1973 to 2020 in which individuals were investigated, arrested, detained, or compelled to undergo medical treatment for engaging in actions that the state deemed harmful to their pregnancies. In the aftermath of Dobbs, the criminalization of abortion naturally proceeds from the criminalization of reproductive rights more broadly.

Despite these longstanding restrictions on abortion rights, most abortion-related criminal laws pre-Dobbs targeted providers, rather than pregnant persons. But that appears to be changing. For example, in April of this year, a woman was arrested and indicted in Texas for “intentionally and knowingly caus[ing] the death of an individual” after she allegedly self-induced an abortion. Because medication abortions can be difficult to police, with abortion pills crossing state borders in the mail, legislators and prosecutors may increasingly investigate any pregnancy that ends in miscarriage and extend criminal prosecution to any person taking these medications (which can also be used to treat a variety of conditions) for any reason. As Jia Tolentino argues in a podcast for the New Yorker, if the “interjurisdictional abortion wars” targeting providers across state lines are unsuccessful for states with abortion bans, “the only people to target to stop abortions will really be the people who are getting them.” States are also aggressively reducing the time and circumstances in which a person can get an abortion. For example, in Alabama, a law passed in 2019 and implemented following Dobbs bans nearly all abortions except in medical emergencies. All of this raises the horrifying prospect that “a woman’s body could become a common site of state investigations: analyzed coldly, mined like a crime scene, exposed to authorities, and, fundamentally, not her own.”

There are at least two ways in which this increased criminalization of abortion will harm the national security interests of the United States. First, criminalization consistently and predictably impacts low-income people, people of color, and marginalized communities the most intensely. This is plainly true of the criminalization of abortion; already, women of color have been disproportionately targeted by laws criminalizing reproductive health. Abortion bans, then, further entrench the systemic racism which already pervades the United States and hinders the economy, political institutions, the military and national security writ large. Second, the criminalization of abortion will accelerate the use of surveillance by law enforcement. Advocates note that law enforcement already gathers women’s personal data to acquire evidence in cases of suspected illegal abortion, since it is very difficult to distinguish between a miscarriage and a self-managed abortion. Again, pregnant people of color are more likely to be threatened by this intensifying digital surveillance. However, an expanded surveillance society should be of great concern to all Americans; the erosion of privacy necessary to enforce these restrictions place all Americans’ most private and intimate information at risk of seizure by law enforcement investigating an abortion-related case — and the sheer volume of data potentially available to law enforcement seeking to make arrests has never been greater. If privacy “sits at the heart of democracy,” then everyone should be concerned about abortion restrictions which contribute to the deterioration of privacy.

Political Violence

 In a memo published by the Department of Homeland Security (DHS) just days before Dobbs was handed down, agency officials warned of a wave of violence from both the far right and far left. Specifically, they indicated that churches, judges, and abortion providers could face a heightened risk of violence in the weeks following the ruling. Attacks against anti-abortion groups did increase after the Dobbs draft opinion leaked in May, and in early June, a California man was arrested after he traveled to Justice Brett Kavanaugh’s home with a gun and a plan to kill him in response to the leaked opinion. Meanwhile, disinformation researchers have determined that far-right channels have appropriated the DHS memo to urge extremists to arm pregnancy centers and churches. As one post on a far-right Telegram channel put it, “American Patriots” should “defend the faith” with arms: “Guard and protect your local church. Guard and protect your local pregnancy centers. Call them in advance. Bring rifles and men with you.”

The threat of violence following the Dobbs decision constitutes a broadening of previous abortion-related violence historically committed by anti-abortion extremists. Between 1993 and 2016, 11 abortion providers were killed, an additional 26 people survived murder attempts, and over 40 bombings and nearly 200 arson attacks have been launched against clinics or the homes of abortion providers. The new threat of violence follows the political fault lines of American society: According to Axios, “[s]ome racially or ethnically motivated violent extremists’ embrace of pro-life narratives may be linked to the perception of wanting to ‘save white children’ and ‘fight white genocide.’” Although Dobbs cannot be blamed for the deep divisions in the United States, it has contributed to them in ways that go beyond the abortion debate. Barbara Walter observed that Dobbs has increased the risk of political violence in two ways: (1) weakening democracy by imposing the will of the minority on the majority; and (2) deepening the “urban/rural, red state/blue state, [and] secular/religious divide.” In the context of the ongoing January 6 Select Committee investigation, it is all too clear how dangerous domestic political violence can be to the national security of the country.

In addition to fueling political division, Dobbs contributes to the Supreme Court’s worsening crisis of legitimacy. At its core, democratic governance relies on citizens’ trust in legal institutions. The Court’s decision in Dobbs, however, reflects lawmaking through sheer judicial force. Commentators have noted that the Court’s majority decision relied on weak legal reasoning and gave scant consideration to the harmful implications for individuals, the country, and rule of law. The dissenting justices recognized how the Court’s decision imperiled the institution and American democracy, lamenting that the Court had “betray[ed] its guiding principles” and left much of the American public to conclude that “its constitutional protections hung by a thread.” With a conservative majority poised to further dilute fundamental rights, the Court’s weakened standing among the public is likely to worsen, an ominous prospect for a system of government which relies on an independent judiciary to use careful reasoning as opposed to raw power.

Global Leadership of the United States

The Court’s decision to eliminate a fundamental right also contributes to the eroding global leadership of the United States. With Dobbs, the Court cemented the latest era of retrenchment for civil rights in the country and moved federal law in a direction that threatens to ignore the American ideals of freedom, equality, and liberty.

The struggle for reproductive rights and freedom has always been central to the project of developing the United States’ legal identity and constitutional democracy. Justice Samuel Alito’s majority opinion rests on an inaccurate, ahistorical account of the role that abortion and the right to control one’s own reproductive health and decisions have played in developing and defending the country’s conception of liberty. While abortion was legal and widely practiced in the United States for white, upper- and middle-class women through the mid-nineteenth century, legal scholars have explained how slave owners’ control over enslaved people’s reproduction — including through forced pregnancy — was constitutive of the American institution of slavery. Furthermore, abortion and the right to reproductive control was central to the American struggle to abolish chattel slavery. Enslaved men and women used abstinence and abortifacents to prevent pregnancy or induce an abortion as a way to reclaim control over their bodies and families. Control over reproductive capacities became an important marker of freedom sought by enslaved people. After the Civil War, drafters of the Reconstruction Amendments sought to create a radical break from the violence and wrongs of antebellum slavery and according to Peggy Cooper Davis, these amendments “placed reproductive and family autonomy squarely within constitutional protection.” As other legal scholars have argued, the Thirteenth Amendment prohibition of slavery and involuntary servitude was intended to reach all of the wrongs created by slavery and protect people from being forced to carry pregnancies to term or go through labor and delivery. A robust and historically grounded reading of the Thirteenth and Fourteenth Amendments’ grant of liberty demonstrates that laws prohibiting abortion violate the Constitution and American models of freedom.

The Court’s action to unmoor federal law from American values and history has international implications and undermines the position of the United States in the global order. Moreover, overturning Roe v. Wade and Planned Parenthood v. Casey enables states to enact laws violating the country’s international law obligations. International organizations, including the World Health Organization and the United Nations (U.N.), and human rights groups criticized the legal setback. The U.N. Office of the High Commissioner for Human Rights (OHCHR) called the Dobbs decision “a monumental setback for the rule of law and for gender equality” and condemned the Court for “completely disregard[ing] the United States’ binding legal obligations under international law.” The OHCHR also pointed to the United States’ isolated position compared to the positive global trend in which many countries have liberalized their laws to increase access to abortion. Globally, the United States is one of only three countries to increase restrictions on abortion rights since 2000, while thirty-one countries have expanded legal access to abortion. In the Americas, Mexico, Argentina, and Colombia have moved to legalize abortions after successful, long-term organizing by feminist movements. After the Dobbs decision, Mexican feminist activists started planning ways to provide abortion support and care to people stripped of their rights in the United States.

Rights retrenchment severely harms the United States’ international image and leadership. Foreign heads of state were quick to condemn the Court’s ruling, claiming that the loss of the federal right to abortion moved the United States backwards and attacked the freedoms of Americans. Canadian Prime Minister Justin Trudeau tweeted that the decision was “horrific,” while French President Emmanuel Macron expressed “solidarity with the women whose liberties are being undermined by the Supreme Court of the United States.” At the G-7 summit, a few days after the Court released Dobbs, world leaders continued expressing their shock and criticism of the United States’ retraction of the right to abortion. This international criticism shows how eliminating the federal right to abortion will hinder the Biden administration’s goal of restoring American global leadership. Because gender equality was an issue of focus at the G-7 summit, Biden found his position compromised in some discussions with other leaders: when Biden mentioned his concern about human rights violations in India, Prime Minister Narendra Modi responded with his concern about abortion restrictions in the United States, among other human rights violations.

Beyond the harm done to the United States’ reputation abroad, there is concern that the United States’ legal position will jeopardize the global momentum to increase abortion access. Reproductive rights advocates around the world worry that the Dobbs decision will embolden anti-abortion groups and lawmakers in other countries, potentially leading to an increase in funding and legislative efforts to restrict abortion rights in other jurisdictions.

Conclusion

The Supreme Court’s decision to eliminate federal protection of the right to abortion poses significant challenges to national security. The expansion of criminalization of the most intimate aspects of Americans’ lives will exacerbate systemic racism and weaken the right to privacy, while also deepening divisions in American society and increasing the risks of political violence. Moreover, the Court’s decision isolates the United States and undermines the Biden administration’s efforts to restore American leadership around the world. The national security implications of the right to abortion highlight additional considerations that the White House and Congress must consider in charting the path forward. The right to an abortion is fundamental to ensuring the well-being of Americans, the longevity of national institutions, and the ability of the United States to contribute to international law and justice.

Image: WASHINGTON, DC – JUNE 25: Red paint splattered by abortion rights activists is seen on the sidewalk in front of the U.S. Supreme Court on June 25, 2022 in Washington, DC. The Supreme Court’s decision in Dobbs v Jackson Women’s Health overturned the landmark 50-year-old Roe v Wade case and erased a federal right to an abortion. (Photo by Anna Moneymaker/Getty Images)

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The Times’ meticulous exposé of the massive debt that France illegally extorted from Haiti after its independence demonstrates how the payments – totaling an estimated $21-115 billion – kept Haiti poor and unstable for two centuries. The investigation also documented that the U.S. Marines’ forced transfer of $500,000 in gold from Haiti’s national bank to CitiGroup in New York in 1914, and the 19-year occupation that followed, was spurred in part by pressure from Wall Street.

Haiti has a strong claim for restitution for this theft and extortion. Haiti only signed the contract for the debt in 1823 because France parked warships off the coast and threatened to invade Haiti and re-enslave its people. Reinstituting slavery was illegal at the time, so the contract for the debt was also illegal. Similarly, CitiGroup, which won the lucrative business of managing Haiti’s loans by convincing the United States to invade, may face claims for restitution of its unjust profits.

But history shows that France, the United States, and other countries whose current prosperity is built in part on a foundation of slavery and immiseration in Haiti have been unwilling to allow Haiti to pursue its claims for justice. The amount France owes Haiti is significant, but even more is at stake. If the descendants of Haitians forced to pay for their emancipation win their restitution claim, they may open the door to a long line of claims for reparations by the descendants of everyone subject to the horrors of slavery and the slave trade.

The one time Haiti seriously asked for restitution, the United States and France responded by overthrowing Haiti’s government. In 2004, then-President Jean-Bertrand Aristide was preparing documents to file a legal claim and speaking publicly about the schools, universities and hospitals that restitution would fund. Thierry Burkhard, France’s Ambassador to Haiti at the time, admitted to the Times that the two powers orchestrated the 2004 coup d’état against Aristide, which “made our job easier” to reject the restitution claim. The replacement regime, led by Interim Prime Minister Gerard Latortue, a long-time Florida resident, immediately renounced the restitution claim.

Haiti’s current government is equally unlikely to take the side of its citizens over its friends in Washington and Paris. De facto Prime Minister Ariel Henry was installed in July 2021 not through a Haitian process, but through a press release from the “Core Group” – a group of foreign governments engaging with Haiti, led by the United States and France.  The United States has continued to prop up Henry since, despite his involvement in spectacular corruption and mismanagement of the economy, his implication in last July’s assassination of President Jovenel Moïse, and his connections to gangs that are brutalizing the population. Most recently, President Joe Biden welcomed Prime Minister Henry to the Summit of the Americas in Los Angeles, refusing to apply to him the democratic standards he invoked to exclude the leaders of Cuba, Venezuela and Nicaragua.

A broad spectrum of Haitian society has repeatedly demanded that Henry step down. Haitians taking to the streets of Port-au-Prince are protesting outside the National Palace, but they are also protesting outside the U.S. and French embassies and U.N. headquarters, because they know that is where Henry’s power comes from. Meanwhile, a historic coalition of civil society organizations has come together with a shared vision for Haiti’s future. The Preamble of the Montana Accord, the founding document of the Commission to Search for a Haitian Solution to the Crisis and the most promising initiative to replace Henry, is as much a declaration of independence from foreign control as a revolt against domestic repression.

People in the United States and France who are outraged by their governments’ unjust treatment of Haiti in 1823 and 1914 can do something about it in 2022. They can start by insisting that their governments stop propping up Henry, and allow a Haitian-led solution to the political crisis to emerge. Once Haitians vote for their leaders, supporters of Haiti can stay engaged, to insist that foreign governments allow Haiti’s elected government to fulfill the mandate the voters give it. Even if the mandate includes a claim for the United States and France to return their ill-gotten gains.

Image: Lawyers protest outside of Prime Minister Ariel Henrys private home to force the government to relocate the civil court to a safer area, in Port-au-Prince, Haiti on April 8, 2022. – The demonstration of lawyers in the capital Port-au-Prince on Friday is an indicator of a judicial system at a standstill, without financial means to function and gagged by the gangs that plague Haiti. (Photo by VALERIE BAERISWYL/AFP via Getty Images)

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