If you think the Clearinghouse is missing something, please send recommendations for additional content by email to lte@justsecurity.org.

In terms of Just Security’s own analytic content, readers may be interested in the “Model Prosecution Memo for Trump Classified Documents,” and an interview with some of the model prosecution memo’s co-authors, Andrew Weissmann, Joyce Vance, and Ryan Goodman, on the Just Security podcast. 

We hope you find valuable the collection of material below. The Clearinghouse will be continually updated.

The post Trump Classified Docs Clearinghouse: All Key Documents in the Special Counsel Investigation appeared first on Just Security.

Before indicting a case, prosecutors prepare a prosecution memo (or “pros memo”) that lays out admissible evidence, possible charges, and legal issues. This document provides a basis for prosecutors and their supervisors to assess whether the case meets the standard set forth in the Federal Principles of Prosecution, which permit prosecution only when there is sufficient evidence to obtain and sustain a conviction. Before a decision is made about bringing charges against Trump (and co-conspirators, if any), prosecutors will prepare such a memo.

There is sufficient evidence to obtain and sustain a conviction here, if the information gleaned from government filings and statements and voluminous public reporting is accurate. Indeed, the DOJ is likely now, or shortly will be, internally circulating a pros memo of its own saying so. That DOJ memo will, however, be highly confidential, in part because it will contain information derived through the grand jury and attorney work product. Since it will not be publicly available, we offer this analysis. Ours is likely more detailed than what DOJ will prepare internally for explanatory purposes. But, given the gravity of the issues here, our memo provides a sense of how prosecutors will assemble and evaluate the considerations that they must assess before making a prosecution decision.

Our memo analyzes six federal crimes in depth:

Mishandling of Government Documents
1. Retention of National Defense Information (18 U.S.C. § 793(e))
2. Concealing Government Records (18 U.S.C. § 2071)
3. Conversion of Government Property (18 U.S.C. § 641)

Obstruction, Contempt, False Information

1. Obstruction of Justice (18 U.S.C. § 1519)
2. Criminal Contempt (18 U.S.C. § 402)
3. False Statements to Federal Investigators (18 U.S.C. § 1001)

In the course of discussing these statutes, we also touch upon others that may have been violated but where the factual predicate for applicability is less clear. For instance, additional charges could be appropriate–under 18 U.S.C. §§ 798 and 793(e) (dissemination)–if the public reporting regarding Trump’s having intentionally disseminated classified material to aides and others is accurate. Additional charges could also potentially be brought under 18 U.S.C. § 1924 if there is sufficient evidence that Trump unlawfully removed classified documents from the White House (see our discussion of DOJ precedents for past prosecutions under § 1924 in Part IV and in the Appendix). Based on the publicly available information to date, a powerful case exists for charging Trump under several federal criminal statutes, which we discuss in detail.

Methodology

In considering prosecution of a former president, we begin with the standard articulated by Attorney General Merrick Garland: “upholding the rule of law means applying the law evenly, without fear or favor.”^[1] In other words, this case must be evaluated for prosecution like any other case with similar evidence would be, without regard to the fact that the case is focused on the conduct of a former president of the United States. This memo accordingly includes a balanced assessment of this particular case, and a thorough review of past DOJ precedents for charging similar cases. Those past cases show that to decline to bring charges against Trump would be treating him far more favorably than other defendants, including those who were charged for less egregious conduct than his. “All Americans are entitled to the evenhanded application of the law,”^[2] Garland has stated, and we are guided by the values underlying those words as well.

This model prosecution memo is, however, limited in an important sense. Throughout the memo, we draw as much as possible on the unusual amount of factual information provided by the Government in its court filings. We do not, however, have visibility into the full volume of information the Justice Department has assembled. That means we could be missing important facts, including exculpatory evidence, that may inform the DOJ’s decision-making process. We may be unaware of admissibility issues with some of the evidence. And equally true, the evidence could be better or more extensive than what is available in the public record.

What’s more, by necessity, we at times rely on news reports from investigative journalists whereas the actual prosecution memo would instead rely on direct evidence the federal investigators have collected. For that reason, we do not reach an unqualified charging decision. Instead, we conclude that there is sufficient evidence to obtain a conviction here, if the Government filings and statements and voluminous public reporting we detail below are accurate. We also note that, based on the reported facts, charges would be strongly warranted based on Department precedent in similar cases.^[3]

The model prosecution memorandum is available below as a SCRIBD file and also as a separate PDF.

Also, to hear more about the memo from some of its co-authors check out the Just Security podcast. A conversation with Andrew Weissmann, Joyce Vance, and Ryan Goodman.

Model Prosecution Memo – Trump Classified Documents Second Edition June 2023 by Just Security on Scribd

– – – – – – –

^[1] Department of Justice, Attorney General Merrick Garland Delivers Remarks (Aug. 11, 2022), https://www.justice.gov/opa/speech/attorney-general-merrick-garland-delivers-remarks.

^[2] Id.

^[3] Two of the authors of this model prosecution memo, Norman Eisen and Fred Wertheimer, were among the counsel for amici supporting DOJ’s position in litigation before the U.S. District Court for the Southern District of Florida, and the U.S. Court of Appeals for the Eleventh Circuit, related to the criminal investigation mentioned in this report. For more information, see https://democracy21.org/category/news-press/press-releases.

 Photo credit: Coolcaesar from Wikimedia Commons

The post Model Prosecution Memo for Trump Classified Documents appeared first on Just Security.

Aggression against Ukraine has been recognized and condemned by the UN General Assembly and other international and regional organizations, including NATO, the Council of Europe, the African Union, and others. The crime of aggression is defined in international law, but in the case of the crime of aggression against Ukraine an impunity gap exists because the International Criminal Court does not have jurisdiction in this concrete situation and is not likely to have it in the nearest future. For this reason, discussions on the establishment of an ad hoc criminal tribunal for the crime of aggression being committed against Ukraine continue. There are high expectations among the international community that the legal path chosen is capable of accommodating international law and the manifest violation of the UN Charter being committed by Russia against Ukraine.  The goal must be to condemn the Russian ideology and hold Putin and his entourage to account for the core international crime of aggression against Ukraine that continues to be planned, prepared, and brutally executed in our own times.

While perfect international law solutions are deadlocked because of Russia’s seat in the UN Security Council, politicians, experts and international lawyers keep discussing two different models for establishment of the tribunal for the crime of aggression committed against Ukraine.  The first option is an international tribunal established following the recommendation of the UN General Assembly for the UN Secretary-General to negotiate an international agreement between the UN and Ukraine establishing the court (the “Special Tribunal”).  The second option is a hybrid or internationalized national tribunal as it was named by U.S. Ambassador for Global Criminal Justice Beth Van Schaack, a court that would be established within the Ukrainian judicial system (see Ambasadorę Van Schaack’s Remarks on the U.S. Proposal to Prosecute Russian Crimes of Aggression – United States Department of State).  In his recent address in The Hague, President of Ukraine Volodymyr Zelenskyy sent the clear message that Ukraine needs bold decisions that will correct shortcomings of the current international legal system — “not something hybrid that can formally close the topic” in terms of the diplomatic conversations, but that will not truly and fully address the problem at hand  (see Speech by Volodymyr Zelenskyy to representatives of the public, political and expert circles of the Kingdom of the Netherlands and international institutions based in The Hague  — Official website of the President of Ukraine).

In the end any decision on the establishment of the criminal tribunal for the crime of aggression against Ukraine will be a political decision. And even though in the enforcement, application, and development of international law the fusion of international politics and international law is inevitable, the modality of an internationalized national tribunal is more about foreign policy than legal choice.  The second option compromises international law at a critical time when the legitimacy of international law must be restored to effectively confront, both militarily and judicially, the crime of aggression against Ukraine that is being committed by Russia, a permanent member of UN Security Council.

– The legitimacy of international law can only be restored by establishing a fully-fledged international tribunal for the crime of aggression under recommendation of the UN General Assembly.

The definition and establishment of the crime of aggression under international law protects fundamental values of the international community, a prominent one being international peace and security. According to the International Law Commission, the prohibition of the use of force protects not only the survival and security of individual states, but more than their sum, namely the interests of the international community as a whole (see Yearbook of the International Law Commission 2001 Volume II Part Two (un.org)).Theoretically, a national criminal trial established within the Ukrainian judicial system could implement the objective of ending impunity and ensuring accountability for the crime of aggression against Ukraine.   But it could never restore the legitimacy of international law to defeat the crime of aggression being committed against Ukraine, as that is the task of institutions responsible for the restoration and maintenance of international peace and that apply international law directly. Therefore, the UN General Assembly resolution recommending establishment of an international criminal tribunal for the crime of aggression against Ukraine is of crucial importance for ensuring the continuing legitimacy of rules on the prohibition of the use of force and proving that accountability under rules of international law is inevitable for such manifest violations of the UN Charter.

According to the liberal theory of international relations, the fundamental interest of the international community, namely international peace, is served by the certainty that acts of aggression are met by the collective opposition of states. According to the realism theory of international relations, the functioning of the collective security system is considered from the sovereign policy perspective.  According to scholar S. D. Krasner, the defining characteristic of the international system for realists is anarchy.  The most important empirical reality is that national power, including but not limited to the ability to wage war, matters more than anything else (see S. D. Krasner “Realist views of international law” in ASIL Proceedings (2002)).  Probably for realpolitik reasons, even though the UN Charter prohibits war as a means for solving political conflicts, in the current era “aggressiveness” occasionally has been easily forgiven and probably would still need to be forgiven for some states instead of being prosecuted in a special criminal tribunal or the International Criminal Court.

But international law as it stands today already includes compromises for two different forms of aggressive uses of force. Not all acts of aggression as defined by the 1974 UN General Assembly resolution on the definition of aggression can be and will be prosecuted as crimes of aggression under international law because the level of manifest violation of the UN Charter will not be found. The gravity and scale of aggression against Ukraine, framed by the character of Russian ideology holding that Ukraine as a sovereign and independent state does not exist, is the very kind of situation that international community will consider as an act of aggression constituting a manifest violation of the UN Charter. This has already been and will continue to be the case for the international community had to and must still consolidate its efforts to ensure accountability and restore faith in fundamental rules of international law concerning non-use of force in international relations.

The legitimacy of the decisions at stake depends on the international legitimacy of the tribunal that indicts and sentences political and military leaders of an aggressor state that is a permanent member of the UN Security Council. To avoid the risk of illegitimacy, the tribunal must be established under international law and have the mandate for prosecution of the crime of aggression entrusted by the whole international community. The crime of aggression has special inter-state political dimensions in comparison to other international crimes, the direct object of which is not individuals, but the whole state. In this case that means the independent sovereign state of Ukraine and the integrity of its borders and political independence that the UN Charter and international law have promised to protect and defend. The fact that the crime of aggression involves complex political judgements also was acknowledged in the Draft Code of Crimes against the Peace and Security of Mankind. Even though not corresponding to state practice, it provides that an obligation to prosecute or extradite could be applicable to all international crimes, except the crime of aggression, which because of its political dimension should be prosecuted in the international court as national courts would not be able to effectively carry out such prosecutions of the crime of aggression.

This sounds like a purely legal argument.  One can argue that in the case of the crime of aggression against Ukraine, on 2 March 2022 the UN General Assembly adopted a resolution entitled, “Aggression against Ukraine,” which deplored in the strongest terms the aggression by Russia against Ukraine as being in violation of Article 2(4) of the UN Charter—prohibition  of the use of force—with 141 votes in favour, 5 votes against and 35 abstentions. Thus Russia’s acts of aggression as being in violation of the UN Charter has been acknowledged by the UN General Assembly.  Sentencing individuals in an internationalized national court for the crime of aggression might then be viewed as legally feasible.  Maybe.   But the question remains if it is legally right or  legitimate to close our eyes to the extraordinary nature of the crime of aggression in comparison to other international crimes.

The Kampala resolution on the crime of aggression adopted by the ICC’s Assembly of States Parties states that the aggression amendments shall not be interpreted as creating the right or obligation to exercise domestic jurisdiction with respect to an act of aggression committed by another State (see ICC-ASP-16-24-ENG.pdf (icc-cpi.int)).  This means that the crime of aggression, unlike the other core crimes of the Rome Statute, should rather not be prosecuted at the national level. Yoram Dinstein in War, Aggression and Self-defence submits that the nature of crimes against peace is such that no domestic proceedings can conceivably dispel doubts regarding the impartiality of the judge.  Any panel of judges comprised exclusively of enemy (or former enemy) nationals, for example, will be suspected of irrepressible bias.

One of the features of an internationalized national tribunal that has been suggested is incorporation of international judges. But this and other elements of so-called internationalization, such as acceptance of an international law definition of the crime of aggression or incorporation of international human rights standards, will not create the international mandate for prosecution of the crime of aggression against Ukraine. It will only reduce doubts regarding the legitimacy of the national prosecution, but it will not turn a national judicial institution into the international one which would  be entrusted with the essential interest of the whole international community to ensure accountability for the crime of aggression against Ukraine.

– Making the internationalized national tribunal legal will be as difficult as making it legitimate.

Article 125 paragraph 5 of the Constitution of Ukraine explicitly prohibits the establishment of extraordinary and special courts. Besides the particular domestic legal difficulties of changing this constitutional provision while martial law applies, special national procedures will have to be drafted, discussed, considered and adopted for the appointment of international judges to become possible. Even though the argument is being made that for such a purpose martial law could be lifted, in order to change this provision of the Constitution, the approval of two consecutive parliamentary sessions and the Constitutional Court’s opinion on constitutionality would also be needed. Even in the countries not suffering from unprecedented aggression, such processes take a long period of time and are hardly predictable.

Furthermore, international support for an internationalized national accountability effort for the crime of aggression against Ukraine could help solve problems of finances and human resources for such a tribunal.  But international support could not make the national process of the establishment faster or avoid being undermined by different political obstacles and configurations that could arise in the country still facing internal challenges including from Russia’s collaborators. For these reasons, the argument that an internationalized national tribunal could be established within the Ukrainian judicial system faster and in a more effective way than a favorable vote in UN General Assembly lacks credibility.  International financial support for the tribunal will be needed in any modality chosen and voluntary contributions of states committed to fighting impunity and ensuring accountability for the supreme international crime of aggression against Ukraine will be crucial. But the more international legitimacy is vested in the establishment of the tribunal, the more likely that states will see it as being an international and consolidated accountability effort standing for fundamental interests of the global community as a whole. This would definitely lead to broader trust and sustained support (including financial resources and staffing) by states in comparison to leaving international support issues to bilateral agreements with separate states that Ukraine would have to negotiate.

Furthermore, as it was stated in the International Court of Justice Lotus case, jurisdiction is about the potential collision of sovereignty rights. Considering that international accountability interests in the case of aggression against Ukraine are so substantial, objective and subjective impartiality of the accountability mechanism is of crucial importance. Ambassador Van Schaack, for instance, earlier postulated that there is “little in the way of state practice or opinio juris in favor of the exercise of domestic jurisdiction over the crime of aggression.” She dismissed Nuremberg and the ensuing elements of state practice and opinio juris since they are “sui generis” and “preceded the development of modern doctrines of foreign sovereign immunity and universal jurisdiction” (see B. Van Schaack, “Par in Parem Imperium Non Habet: Complementarity and the Crime of Aggression”, Journal of International Criminal Justice, 10 (2012)).

For these reasons, one can understand why Ukraine supports establishment of a full-fledged international tribunal. The state as victim of the crime of aggression has an essential interest grounded in the fundamentals of international law and human rights development to entrust prosecution for the supreme crime of aggression with an impartial international institution that could not be accused of lacking legitimacy, independence, and authority to try the crime of aggression and, most importantly, to try political and military leaders of the aggressor state whether or not they remain in office.

In the case of crime of aggression against Ukraine, fundamental rules in relation to the protection of state sovereignty are being and will be challenged. The definition of the crime of aggression in international law and the development of the human rights agenda demand significant redefinition of the sovereignty concept. The International Criminal Court issued arrest warrants against Putin and Maria-Lvova Belova for the alleged war crime of unlawful transfer of population (children) from occupied areas of Ukraine to Russia.   The arrest warrants reflect important developments of international law concerning the obligation to prosecute international crimes and the non-applicability of immunities under international law. Unprecedented decisions that still await the establishment of the tribunal cannot ignore these developments in international law.  The pending decisions must be fully international and reflect the interest of the international community to be effective as opposed to decisions of an internationalized national court that will have to be constantly proven to be international in character and enforcement in order to be taken seriously.

The modality of an internationalized national tribunal without the need to achieve a vote in the UN General Assembly allows for some states to stay neutral on modus operandi in relation to the root cause of all atrocity crimes being committed in Ukraine, including the crime of aggression. But there is no place for neutrality in the case of the crime of aggression being committed against Ukraine because the greatest  threat to international peace and security relentlessly continues. The decision to prosecute or not to prosecute military and political leaders of the aggressor state, particularly a  permanent member of the UN Security Council, Russia, has a direct and lasting effect on the legitimacy of those persons having violated fundamental rules of international law. More importantly, this moment in history is crucially important for restoring trust in international law and international legal order that the UN Charter embodies.

The international community must take a bold step forward after the UN General Assembly condemned the unjustified aggression by Russia and numerous resolutions of international and regional organizations called for a comprehensive accountability system for international crimes being committed in Ukraine. “Comprehensive” does not mean leaving the most responsible for the crime of aggression against Ukraine immune from international law. The International Criminal Court undertook its responsibility within its jurisdictional parameters. The issue remains if the international community will undertake its fundamental responsibility to restore the legitimacy of international law by putting the issue of the tribunal before the UN General Assembly and broadly supporting it.

– Amnesty, immunities, and impunity gaps

The argument sometimes is made in favor of an internationalized national tribunal that Ukraine should maintain certain control over the tribunal for the crime of aggression, most probably for the possibility of granting an amnesty. If an international tribunal were to be established following the recommendation of the UN General Assembly, making trade-offs between peace and justice would be almost impossible as this would be an internationally supported and result-orientated independent institution with separate international legal personality with the fundamental objective of ensuring individual criminal responsibility of Russia’s political and military leadership for the crime of aggression against Ukraine.

Indeed, not that long ago amnesties were considered as contributing to promotion of transitional justice and reconciliation within societies that survived massive and systematic human rights violations. But as it was mentioned before, the supreme international crime of aggression is different from all the other international crimes because of its specific object: a sovereign and independent state,  its profound context and political dimensions, a focus on leadership, and consequences for the international public order and all-encompassing implications for the victim state, its people and the entire international community. As with war crimes, this is not an international crime that can or should be swept aside by amnesties. Furthermore, on 24 February 2023, the UN General Assembly adopted a resolution on Ukraine’s peace formula with a strong justice and accountability dimension for the most serious international crimes committed on the territory of Ukraine. On 17 March 2023, the ICC issued arrest warrants against Putin and Belova. Because of these developments, the argument of maintenance of certain Ukrainian control over the tribunal can be considered as carrying more political than legal weight.  Setting the precedent of amnesty for the core international crime of aggression could have devastating effects on the international public order and legacy of international law for the future.

The theoretical possibility of an amnesty does not close the gap of impunity if an internationalized national tribunal were to be established, as personal immunities would be afforded under international law to heads of states, prime ministers and ministers of foreign affairs. The idea behind personal immunities is to respect and protect the sovereignty of states from interference by other states and from being prosecuted before courts of third states. But following the ICJ judgement in the Arrest Warrant case, certain international tribunals having jurisdiction can override international immunities afforded by international law to heads of states and ministers of foreign affairs. Even though in that case the ICJ did not adjudicate the crime of aggression – the international crime that by definition encompasses political leadership of the aggressor state – the ICJ judgment is often rightfully cited in discussions among lawyers on the possible tribunal for the crime of aggression against Ukraine.

Even though the ICJ did not elaborate on what features a criminal tribunal has to possess to fit into the category of international tribunals capable of overriding international immunities, by giving examples the ICJ referred to criminal tribunals being established by the UN Security Council resolutions under the chapter VII of the UN Charter and the International Criminal Court being established by multilateral treaty, the Rome statute. Examples given by the ICJ enable one to conclude that the model of establishment and broad support afforded by states are crucial elements in holding a tribunal as having international legitimacy and being able to override immunities. Indeed, among the legal instruments for international criminal tribunals referenced by the ICJ were also the Charter of the International Military Tribunal of Nuremberg and the Charter of the International Military Tribunal of Tokyo, both of which had jurisdiction over crimes against peace.

For these reasons, if an internationalized national tribunal were to be established for the crime of aggression against Ukraine, international law will protect the aggressor state’s leaders more than it protects the victim state and its people. Considering ICC arrest warrants being issued for Putin and Belova for alleged war crimes and bearing in mind both the immunities defense and the leadership clause within the definition of the crime of aggression, taking Putin off the accountability table in the case of the crime of aggression against Ukraine as soon as the internationalized national tribunal is established would result in an unjustified downgrading of the crime of aggression in relation to other international crimes and would send a clear impunity signal to Putin and other dictators and power-hungry authoritarian leaders around the world in what they do on the international stage as well as at home.

* * *

Less can be more, but not when the crime of aggression as a manifest violation of the UN Charter is being committed against the independent and sovereign state of Ukraine pursuant to a Russian world ideology that does not exist beyond Putin’s mind. The international community must stand together with Ukraine to defend vital international values. Less will be more when all states having one vote and — devoted to international rule of law, peace and security — consolidate their efforts by voting in the UN General Assembly to mandate establishment of a full-fledged international tribunal for the crime of aggression against Ukraine. Such a global vote will not only have moral and political impact, but it will crucially influence the strength and legitimacy of the judicial institution that will be entrusted with the core responsibility to restore the legitimacy of international law and ensure legal accountability for the supreme crime of aggression against Ukraine. In contrast, an internationalized national court would never be credible if the international community seeks to send the clear deterrent message that individual criminal responsibility of those most responsible for the supreme crime of aggression against Ukraine as a manifest violation of the UN Charter is essentially inevitable.

The post The Lithuanian Case for an International Special Tribunal for the Crime of Aggression Against Ukraine appeared first on Just Security.

Treasury rightly responded to these requests by pointing out that the government lacks the authority to compel banks to open or maintain relationships with particular customers. Further, it reassured the Somali-American community that no government agency mandated – or even desired – the account closures. Still, the closures went forward, and many Somali-Americans were not reassured by what they viewed as a passive approach to a life-threatening problem. Today, after years of bank account openings and closings, Somali-American MTOs now rely principally on cash couriers to keep money flowing.

The difficulties experienced by Somali-American MTOs – and the impacts on and fears of Somalis who rely on them – are just one particularly disturbing example of banks’ ending or restricting relationships with customers instead of managing the risk of maintaining them. MTOs, nonprofit organizations (NPOs), and foreign financial institutions have been among the most affected. This shift arguably began in response to the 9/11 terrorist attacks and the 2008 financial crisis, as Treasury took an aggressive approach to anti-money laundering and combating the financing of terrorism (AML/CFT) and addressing other threats to the safety and surety of the banking system overall. While sympathetic to those pushed to the margins of the banking system, Treasury officials did not want to take action that would create – or appear to create – loopholes that could be exploited by financial criminals.

Treasury officials sometimes cast doubt that the wave of account closures and restrictions constituted a meaningful trend. To the extent Treasury believed banks were withdrawing services, it maintained that their decisions were a response to normal, cyclical market forces and could be solved only by those banks and their customers. For years, Treasury’s only policy response to these concerns was to reiterate its commitment to a risk-based approach to regulating the financial sector. In turn, banks directed inquiries back to Treasury, creating a cycle of finger-pointing in place of a constructive dialogue to keep critical money flows safe, legal, and transparent.

Against this backdrop, Treasury’s recently released 2023 De-risking Strategy, mandated by Congress in 2020, is a landmark document that represents a page turned from its largely passive and skeptical approach over most of the past decade. While the Strategy’s definition of de-risking and proposed solutions leave open some important questions, there are reasons for optimism. If Treasury fulfills the commitments it makes in the strategy and takes the additional steps outlined in this article in the same spirit of openness and creativity, some of the world’s most vulnerable people stand to benefit.

What is the Problem

In 2015, a World Bank study found that approximately 28% of remittance companies and 45% of remittance company agents lacked access to banking services, severely impeding a flow of money integral to fighting poverty and, sometimes, to saving lives. In 2020, 62.5% of nonprofit organizations (NPOs) faced obstacles accessing financial services, including organizations implementing U.S. government-funded programs. And U.S. banks have steadily curbed their relationships with foreign correspondent banks, increasing the time and cost of sending money abroad and leaving some small and higher-risk countries without easy access to the U.S. financial system – creating further obstacles to remittances and other key financial flows. This is having direct consequences for some of the world’s most vulnerable and underbanked people.

What’s more, it forces them to rely on less transparent, under-regulated channels through which to move money. No public interest is served by a system that forces companies and organizations conducting legitimate, and sometimes life-saving, business to settle their transactions by moving suitcases full of cash. While appropriately highlighting some gaps in the data, the de-risking strategy uplifts this evidence and underscores the urgency of the situation.

Interestingly, the Strategy defines “de-risking” more narrowly than the Act of Congress that required its publication. The Anti-Money Laundering Act (AMLA) of 2020 defines de-risking as “actions taken by a financial institution to terminate, fail to initiate, or restrict a business relationship with a customer, or a category of customers, rather than manage risk associated with that relationship consistent with risk-based supervisory or regulatory requirements.” Treasury notes AMLA’s definition and then adds: “Treasury is concerned primarily with the phenomenon of financial institutions making wholesale, indiscriminate decisions about broad categories of customers, rather than assessing and mitigating risk in a targeted way.” In explaining this decision, Treasury actually conflates two distinct rationales. It properly states – as Treasury has long maintained – that banks are within their rights to pull back from customers when they’ve properly and carefully assessed the risk. But in focusing on “broad categories of customers,” Treasury excludes from its focus decisions that banks make about individual customers based on superficial and arbitrary risk assessments.

Even more significant than the distinction between customers and classes of customers is the issue of how Treasury will approach acute financial exclusion. Some customers, like Somali-American MTOs, are simply unable to adequately access financial services at all.  And some countries have few, if any, official correspondent banking links to the United States, making it difficult or impossible to transfer money there. While Treasury appropriately reinforces that banks may pull back when they cannot manage the risk, when nearly all banks reach the same conclusion about the same customers or jurisdictions – as they did for Somali-American MTOs – this presents a public policy challenge arguably more serious than the de-risking activities the strategy focuses on. To address it, the U.S. government will need to adopt novel approaches to share risk with banks and excluded customers. The government has done this in isolated instances – for example, by sending funds from the Federal Reserve to North Korea to support nuclear diplomacy and launching the ill-fated Swiss Humanitarian Trade Arrangement – but did not discuss them in the de-risking strategy.

Drivers of De-risking

The strategy demonstrates a clear shift in Treasury’s view of what causes de-risking, most importantly related to the role of the government. Historically, Treasury maintained that de-risking is being driven not by anti-money laundering (“AML”) risk, but by a set of factors and market forces that are mostly unrelated to the government’s policy choices. Profitability, in particular, was often cited as a consideration by banks independent of policy choices – shifting the burden of addressing de-risking from government to the private sector.

The strategy cites profitability as a principal driver of de-risking, but acknowledges that government policy plays a significant role in determining profitability. It reinforces the role that sanctions compliance and due diligence plays in making costs untenable for some customers and in some places. On the other side of the ledger, Treasury addresses the fact that the revenue potential – even more than costs – tends to determine access to financial services. Large MTOs and foreign banks serving wealthy countries tend to maintain their bank accounts, while small MTOs, NPOs, and banks in smaller and poorer countries are more vulnerable to de-risking. This acknowledges the uncomfortable reality that we all know to be true: a small MTO demonstrating impeccable transparency may struggle to find a bank account while large-scale financial criminals may enjoy intense competition for their lucrative banking business.

The Strategy also puts an exclamation point on Treasury’s recent consideration of bank examination procedures as a driver of de-risking. For years, Treasury backed Federal Banking Agencies’ claims that their bank examiners did not play a role in de-risking. Banks disagreed on two grounds. First, many banks have alleged that examiners sometimes explicitly discourage the maintenance of MTO, NPO, and correspondent bank accounts. This is inappropriate and runs counter to the risk-based approach, but it is very much consistent with the incentives of the individual examiner, who face negative consequences when banks facilitate illicit conduct, but none when they restrict or terminate services. Second, examiners often focus their questions on MTO, NPO, and correspondent bank accounts. The banking agencies acknowledge this practice, and while it doesn’t explicitly encourage de-banking those customers, banks say it highlights the potential downsides of maintaining or opening their accounts. Therefore, even when examiners proceed by the book, de-risking sometimes ensues.

Misunderstanding Nonprofits

Despite a pronounced shift in its approach to de-risking, one unfortunate feature of the De-risking Strategy is it demonstrates that Treasury still needs to improve in its discussion of NPO-related issues. First, while it correctly notes that most NPOs present a low level of ML/TF risk, the Strategy casually mentions “certain cases” and “examples” of NPOs being abused for the financing of terrorism. In doing so, Treasury is reinforcing a trope – the charity scam – which is now widely understood to be unfounded.

Second, Treasury utterly misstates the views of NPOs on sanctions, alleging that NPOs “acknowledged that financial sanctions remain an essential foreign policy tool…” and “…had not argued for fewer uses of sanctions.” This characterization is both reductive and inaccurate. It ignores the immense diversity of the NPO sector and suggests that the views of humanitarian organizations, which were consulted on this Strategy, are representative of universities, hospitals, and organizations that promote cultural exchange. And it misstates the humanitarian organizations consulted who did not, and would not, agree that sanctions remain an essential tool. Humanitarian organizations have raised concerns about the impact of sanctions on civilians on many occasions; on some rare occasions, some groups (my own included) opposed sanctions on the basis of the disproportionate harm they would cause. A more accurate characterization would be that humanitarian organizations appreciate that sanctions will continue to be deployed by the US government and have not requested that sanctions programs be dramatically scaled back in order to enable greater NPO access to financial services.

 Commitments in the Strategy

The De-risking Strategy contains a number of steps that Treasury is currently taking or will soon take, many of which involve uncontroversial but welcome improvements in dialogue, communication, and deployment of technology to reduce de-risking through improved application of the risk-based approach. The Strategy is notable, however, for some policy approaches that represent a break from the past:

Examination procedures

The strategy’s acknowledgement of bank examination procedures as a driver of de-risking is significant, and its recommendations reflect that. In addition to revising the Federal Financial Institution Examination Council (FFIEC) examination manual on the basis of a new FinCEN review, Treasury proposes greater FinCEN involvement in the governance of FFIEC programs and practices. It also aims to review the consistency of examination practices and strengthen examiner training on de-risking.

Notice procedure analysis

NPOs and MTOs, in particular, have consistently complained that when banks de-risk, they close accounts with little to no advance notice and without offering reasons, leaving the de-banked customers facing disruptions to their operations. Treasury’s offer to study account termination procedures, though it may not directly combat de-risking, could nonetheless help to soften de-risking’s harsh consequences.

Regulatory review

In addition to signaling a general openness for regulatory review, Treasury identifies two key potential areas for revision in particular. First, Treasury is already preparing a new rule to require that banks’ AML/CFT programs be “risk-based.”  FinCEN is considering whether and how financial inclusion might be incorporated into the requirement. It is promising that this rule could have impact outside of Treasury’s stated focus, positively affecting banks’ decisions about individual customers as opposed to the entire classes of customers Treasury says it is concerned about. Second, Treasury is considering whether some MTOs and other money services businesses should be directly regulated under the Bank Secrecy Act; an additional layer of transparency and accountability to the federal government could increase banks’ confidence in their operations.

Consolidating respondent banking

Treasury identifies the promise of consolidating regional financial flows that are currently managed by multiple small banks into a single entity. Though this wouldn’t reduce the risk associated with these flows, it would create a single respondent banking customer with the potential to generate significant revenue in place of multiple small banks that are currently viewed as unprofitable. While noting the obstacles and further research needed, Treasury is demonstrating a laudable degree of creativity and political risk-taking by stating its openness to this idea.

Sanctions modernization

Treasury rightly identifies an important shift already underway: sanctions modernization. Following the U.S. government’s leadership in adopting a global humanitarian exemption from sanctions at the UN Security Council, Treasury was quick to adopt a global general license for a variety of activities and commodities necessary for humanitarian response, peace building, democracy promotion, and other public interests. While sanctions are not the principal driver of de-risking and licenses will not on their own ensure access to financial services for NPOs, the general licenses will be useful as NPOs make their case to banks and ratchet down the level of illicit finance risk that banks may associate with humanitarian assistance in high-risk areas.

Consolidating respondent banking

One reason that some countries find it difficult to access the U.S. financial system is that their banks are too small – and generate too little revenue – to justify the costs of maintaining their accounts. It follows that bundling flows to a number of small countries could be attractive to banks. Treasury is therefore considering the establishment of publicly chartered corporations that could act as conduits for small countries in the same region. There are a number of potential pitfalls, but if they can be properly addressed, consolidation could substantially strengthen links to small and low-income countries.

Recommendations

The steps Treasury is taking and plans to take are promising ones, but no strategy limited to addressing de-risking practices can adequately tackle the broader challenge of ensuring financial access, particularly in high-risk areas. In addition to its commitments in the strategy, Treasury should lead a whole-of-government effort, taking steps including:

Risk-sharing and incentives in threatened financial corridors

Some of the countries that are most excluded from the U.S. financial system are also countries in which the U.S. government has a strong, stated interest in facilitating remittances and humanitarian assistance flows – including its own funds through USAID and the Department of State. The U.S. government should not stand on the sidelines lamenting the fact that banks are unwilling to manage the risk of critical funds, including government funds, when many of the costs and risks are imposed by the government’s policy, regulation, and enforcement. Whether acute financial exclusion results from de-risking or from carefully considered assessments by banks that they cannot manage the risks – which falls outside of Treasury’s definition of de-risking – the governmental equities and responsibilities are the same. Arguably, government’s responsibility is greatest where banks decide the risks are unmanageable.

The U.S. government has shared the risk of these transfers under exceptional circumstances before, but has not warmed to the notion that risk-sharing ought to be a more formal part of its policy toolkit. That should change. Executive branch agencies should experiment with a wide-range of risk-sharing and incentive-laden approaches, including making payments to U.S. government implementers through embassies, increasing the use of “comfort” and “no-action” letters, and creating more explicit rule-based compliance systems, as it did under the Swiss Humanitarian Trade Arrangement.

Transfer Delay Analysis

Treasury’s willingness to collect data on and analyze account closure procedures is laudable, particularly since any potential solution derived from that analysis would tackle a problem outside of Treasury’s narrow definition of de-risking. With its definition not serving as a hard constraint, Treasury should look farther. Rather than examine only account closures, it should examine delays in international fund transfers – which, for NPOs, are a more common problem than account closures. A systemic approach to learning when and why banks delay transfers could greatly inform both policy and the ways NPOs interact with their banks.

Looking Forward

Once again in 2023, parts of Somalia are on the brink of famine. Global hunger has reached unprecedented levels. A bank account closure for remittance providers or humanitarian organizations or an unnecessary delay in the transfer of humanitarian assistance funds would have profound implications. When money can’t be moved quickly through transparent, regulated channels, the effects ripple across the world’s most marginalized communities.

Treasury’s De-risking Strategy puts the Department on the front foot, ready to collaborate in good faith with the private and nonprofit sectors to expand financial access without compromising its AML/CFT agenda. Treasury maintains, as it long has, that public-private cooperation will be far more productive in combating de-risking than government action on its own – a fundamentally true statement that nonetheless landed badly with banks and their customers when the government adamantly refused to take a proactive approach. Greater transparency, communication, and improvements in due diligence on the part of banks, MTOs, and NPOs must play a substantial part in solving de-risking.

Given the scope of the Strategy, though, even solving de-risking, as narrowly defined, could mean leaving entire countries out of the formal financial system. This kind of systemic financial exclusion is life-threatening, whether it constitutes de-risking or not. If Treasury is prepared to share the risk of facilitating funds transfers to excluded jurisdictions in the same proactive, creative spirit that is manifested in the strategy, there is every reason to expect further progress and life-saving impact.

IMAGE: The US Treasury Building located in Washington, DC.

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To be sure, Durham’s report reminded us of the many errors highlighted by the Justice Department Inspector General Michael Horowitz in 2019 regarding the evidence used to obtain a FISA order on Carter Page, a former foreign policy advisor on the Trump campaign. And that’s also where some of the confusion starts. According to Politico, Rep. Jim Jordan (R-OH) has used Durham’s report to argue that Section 702 “cannot be reauthorized as is,” and Rep. Chip Roy (R-TX) has stated that Durham’s report will “absolutely” play a role in the reauthorization debate. Rep. Kelly Armstrong (R-ND), called Durham’s report an “indictment” of Section 702.

The conflation of the reauthorization of Section 702 with Crossfire Hurricane suggests that these members of Congress are, at best, unaware of the details of the program or, at worst, deliberately muddying the waters in an effort that will have the unintended consequence of substantially benefiting our foreign adversaries. It therefore is worthwhile to understand what the Section 702 debate is about, and what it is not about.

Unfortunately, too many journalists – and editors and producers – have fallen prey to these misunderstandings in their own reporting and commentary or have allowed such statements by officials to be published without explaining to readers the logical flaw in making these connections.

The purpose of this short explainer is not to do a deep dive into the minutiae of Section 702 or the legal issues raised by the program, but rather to offer a general, broad-brush view of national security electronic surveillance, and how to differentiate the issues raised by surveillance of U.S. persons (USPERs, a useful acronym adopted by the government) in cases like Crossfire Hurricane from the issues raised by Section 702.

The Carter Page Surveillance Was Conducted Under Title I of FISA, Not Section 702

Let’s begin with a quick primer on FISA. The Foreign Intelligence Surveillance Act was passed in 1978 in response to the abuses in the intelligence community revealed by the Church and Pike oversight committees following Watergate. The framework was created as part of a compromise between the legislative and executive branches on the legal parameters of electronic surveillance conducted for national security (as opposed to criminal) investigative purposes. In accordance with a 1972 Supreme Court case which acknowledged that surveillance conducted for the purpose of obtaining intelligence on foreign powers need not be as onerous as the standard for domestic security surveillance to be reasonable under the Fourth Amendment, FISA creates for foreign intelligence an analogous process to Title III of the Omnibus Safe Streets Act of 1968, which governs the procedure to obtain “wiretaps” for criminal investigations.

Specifically, FISA established a secret court – the Foreign Intelligence Surveillance Court – comprised of 11 (originally 7) Article III judges selected by the Chief Justice of the Supreme Court, who sit in rotation. Unlike requests for Title III criminal wiretaps, which must demonstrate to a neutral magistrate probable cause that electronic surveillance will yield evidence of a crime, applications to the Court under Title I of FISA must demonstrate probable cause that the surveillance target is a foreign power, or an agent of a foreign power, and that a significant purpose of the surveillance is to obtain foreign intelligence information. FISA applications targeted at USPERs acting as an agent of a foreign power have a more stringent probable case standard and narrower time limits than for nonUSPERs and foreign powers (such as foreign terrorist organizations) and agents of a foreign power (such as foreign diplomats). If approved by the FISA Court, the government obtains an order (technically not a “warrant”) to be given to the target’s communication provider to commence surveillance on the target.

The big takeaway here is that applications to directly surveil USPERs are conducted under Title I of FISA, and they are done on an individualized basis – that is, for each person the government intends to surveil, it must submit a separate application to the FISA Court outlining the probable cause that the individual is an agent of a foreign power.

Title I of FISA is the exclusive statutory means through which the government can directly surveil any USPERs within the United States. It is also the exclusive statutory means by which nonUSPERs may be targeted when they are located within the geographical boundaries of the United States. Other provisions of FISA (sections 703 and 704) allow for targeting USPERs when they travel abroad under the same probable cause standard.

Section 702 is Programmatic Surveillance

The evolution of Section 702 of FISA is much more recent than the broader FISA framework, including Title I orders. Section 702 has its roots in the George W. Bush administration, which, following 9/11, engaged in non-court-ordered surveillance of communications where one end of the communication was inside of the United States, and one end was abroad (known as Operation STELLAR WIND). The government carried out this operation despite its being in part, if not wholly, illegal under FISA (though the Bush administration construed it as permissible under its Article II authority). After the New York Times exposed the Bush administration’s program, Congress moved to codify a version of it to bring it under the FISA legislative framework. This was first done temporarily through the Protect America Act in 2007 and then as Section 702 of the FISA Amendment Act in 2008. Since then, Section 702 has been periodically reauthorized, including most recently in 2018.

Section 702 permits the executive branch to conduct electronic surveillance of nonUSPERS who are reasonably believed to be located abroad. Like Title I the aim here is not criminal law enforcement but to obtain foreign intelligence information. Importantly, however, Section 702 does not provide a judicial process to review targeting of persons on an individual basis. Rather, it allows the FISC to “certify” a surveillance program presented to it by the Justice Department and for the FISC to continue to review the overall practice of the program on a periodic basis.

In order to be certified, the Justice Department must detail the following three components of the surveillance program:

• Targeting (whose communications will be obtained and how)
• Minimization (the steps the Justice Department takes to avoid the acquisition, retention, and dissemination of communications of people not intended to be captured)
• Querying procedures (how recipient agencies will search the captured communications)

Once the FISC is satisfied that the procedures comport with the Fourth Amendment and the statute, the program is certified. A key difference here from Title I surveillance is that the FISC is not approving surveillance on any particular individual, but rather, a set of procedures which authorizes the NSA to collect certain communications under the approved procedures, subject to periodic reporting to the FISC. As with Title I, Section 702 surveillance permits the Justice Department to require communications service providers to collect communications under the certified targeting procedures.

So who gets targeted? Section 702 surveillance is not based on particular individuals, but rather “selectors” – email addresses or cell phone numbers – which are associated with nonUSPERs reasonably believed to be located abroad and whose communications are likely to return foreign intelligence information. It is possible that some of the intelligence about Russia’s military movements leaked by Jack Texeira, for example, could have been obtained through 702 surveillance. Of course, communications between members of foreign terrorist organizations located abroad would also be fair game. (See, for example, White House Deputy Homeland Security Advisor Joshua Geltzer’s recent statement, in a Just Security’s podcast interview: “locating the world’s most wanted terrorist last year, I mean Ayman al-Zawahiri, the global leader of al Qaeda, involved 702 collection and of course that enabled us to remove from him the battlefield.”).

So if Section 702 targets nonUSPERs outside of the United States, why is this program so controversial? The main issue concerning USPERs when it comes to Section 702 is not direct surveillance, but rather what is known as “incidental collection.” This means that if, in the course of collecting communications from a nonUSPER reasonably believed to be located abroad (using a selector associated with that person), that person is in contact with a USPER, the USPER’s side of the communication will be captured, even though they were not the intended target. In short, some fraction of the hundreds of millions of communications collected by Section 702 will, by necessity, include a not insignificant number of “incidental” USPER communications.

The main debate in the Section 702 reauthorization is how intelligence agencies – and most importantly, an agency like the FBI with both national security and criminal law enforcement functions – utilize these “incidental” communications. As former NSA litigation counsel George Croner has written, all of the communications collected through Section 702 comprise essentially a database consisting of an undifferentiated, “primordial stew” of information. In order to glean anything of value from it, intelligence agencies must conduct a “query” – that is, seeking inside the database for a particular piece of information. Critics of Section 702 argue that using queries to search this “stew” for information related to USPERs – which has been dubbed “backdoor searches” – particularly for the purposes of criminal investigations, raises Fourth Amendment and policy concerns.

As noted previously, it is beyond the scope of this quick reference guide to explore the merits of this contention. The two-part Just Security series on foreign intelligence surveillance reform offers a detailed summary of the arguments for and against reauthorizing Section 702 as is, or whether there should be additional requirements imposed on the FBI, or the intelligence community more broadly, before the 702 database can be queried for information relating to USPERs. It should be noted that, beginning with the reauthorization in 2018, additional requirements have already been added to FBI queries of the 702 database. Some compliance issues have arisen as a result of those additional requirements, which form the central basis of the current reauthorization debate.

For now, the important point to underscore is that any deficiencies in the Carter Page FISA – highlighted either by the Justice Department Inspector General or John Durham – were not a result of Section 702: It is clear that Page’s surveillance was conducted under Title I of FISA. It may very well be that the flaws highlighted by these reports suggest needed reforms to Title I – such as tightening up the probable cause standard for individual FISAs for USPERs. (Notably, Durham wrote that he was largely satisfied with the DOJ and FBI reforms adopted since the Inspector General revealed the problems with the Carter Page and other Title I applications.) Regardless, such policy recommendations involve a discussion wholly unrelated to the technicalities up for debate with the reauthorization of Section 702.

I should note, in conclusion, that while Jordan and others are using the Durham report to conflate Title I and Section 702 of FISA, this obfuscation is not limited to Republicans. In 2018, when 702 was last up for reauthorization, Senator Elizabeth Warren (D-MA) invoked the warrantless surveillance on Dr. Martin Luther King, Jr. (on the occasion of his national holiday) to oppose Section 702. Of course, as outlined above, the entire FISA framework was implemented precisely to avoid abuses like those against Dr. King and even if he were alive and being targeted today, Section 702 would not apply to him. Such disingenuous or otherwise mistaken objections to Section 702 reauthorization, regardless of which side of the political aisle they come from, do little to advance a meaningful understanding and discussion of how to balance the need to protect the United States from foreign threats with civil liberties concerns in an evolving technological landscape.

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To address the needs of victims of armed conflict, personnel who work for humanitarian organizations and offices often feel the need to meet directly with perpetrators of war crimes. But there are limits on when and under what conditions any face-to-face engagement is sound and proper, especially when it involves meeting an individual who is a fugitive under a warrant for arrest by an international criminal tribunal. Indeed, when it comes specifically to United Nations officials and the prospect of meeting a person subject to a warrant for arrest by the International Criminal Court (ICC), codified guidelines issued by the UN Secretary-General state, “As a general rule, there should be no meetings between United Nations officials and persons who are the subject of warrants of arrest issued by the International Criminal Court.”

That’s what makes all the more remarkable a recent meeting of the UN Secretary-General’s Special Representative for Children and Armed Conflict – Virginia Gamba – with the Russian Federation Commissioner on Children’s Rights – Maria Lvova-Belova – who, along with President Vladimir Putin, is the only known Russian official subject to an arrest warrant by the ICC.

The arrest warrant for Lvova-Belova was issued by a Pre-Trial Chamber of the ICC on March 17, 2023 upon application by the Prosecutor. The warrant alleges that she is responsible for the war crimes of unlawful deportation and transfer of children from Ukraine to the Russian Federation.

On Friday, the UN Secretary-General’s spokesperson would not confirm the meeting taking place – despite repeated questions by journalists during a press conference. On Sunday, however, Gamba acknowledged the meeting in a statement lauding achievements from her trip to Moscow. Lvova-Belova had earlier made her own statement lauding the outcome of her meeting with Gamba.

The Legal and Policy Framework

Over nearly two decades ago, the United Nations entered into a formal agreement of cooperation with the ICC, including its Office of the Prosecutor. The UN General Assembly approved the Relationship Agreement between the United Nations and the International Criminal Court in September 2004 (A/RES/58/318), and the agreement entered into force the following month.

In line with the general obligations of the Relationship Agreement, in 2013 the UN Secretary-General issued guidelines – known as the “essential contacts policy” – that govern any potential meeting with a member of the UN Secretariat and a person subject to a warrant for arrest by the ICC (see “Guidance on contacts with persons who are the subject of arrest warrants or summonses issued by the International Criminal Court“). The Secretary-General transmitted the guidance to the President of the General Assembly and to the President of the Security Council (A/67/828 and S/2013/210). The Guidance states that it applies “to all parts of the Secretariat” and includes the following terms:

(1) “As a general rule, there should be no meetings between United Nations officials and persons who are the subject of warrants of arrest issued by the International Criminal Court.”

(2) “Contacts between United Nations officials and persons who are the subject of warrants of arrest issued by the International Criminal Court should be limited to those which are strictly required for carrying out essential United Nations mandated activities.”

(3) “When contacts are absolutely necessary, an attempt should be made, where possible, to interact with individuals of the same group or party who are not the subject of an International Criminal Court arrest warrant.”

The Guidance also explains that the contacts policy is pursuant to the obligations of the United Nations undertaken as part of the ICC Relationship Agreement. Specifically, the Guidance states: “It can be anticipated that persons who are the subject of arrest warrants issued by the International Criminal Court may deliberately seek to meet with United Nations officials in order to demonstrate their contempt for the Court and try to undermine its authority. … [T]he Relationship Agreement between the United Nations and the International Criminal Court requires the United Nations to refrain from any actions that would frustrate the activities of the Court and its various organs, including the Prosecutor, or undermine the authority of their decisions.”

Finally, the 2016 UN Manual on cooperation with the ICC explains: “A procedure has been established whereby OLA [the UN Office of Legal Affairs] informs the Prosecutor of the Court and the President of the Assembly of States Parties to the Rome Statute in advance of such meetings. The letter informs the Court of the meeting and explains why it is considered necessary.”

Assessment

On Friday, a reporter asked the UN Secretary-General spokesperson generally about “guidance given” to UN officials in terms of meeting with persons subject to an arrest warrant by the ICC. Here is that exchange:

Question: And what is the guidance given, I guess, to UN officials in terms of meeting with people who are wanted by the ICC?

Associate Spokesperson: Any guidance provided by the UN has been properly followed in the case of this visit. Yes. She did that according to all UN rules.

Just Security asked the Office of the Spokesperson for the UN Secretary-General whether the United Nations, including OLA, sent a letter to the ICC Prosecutor and President of the Assembly of States Parties to the Rome Statute in advance of Gamba’s meeting with Lvova-Belova (and if so what the letter stated in explaining the necessity of the meeting). No response was received at the time of publication.

[Update: Following publication, Spokesman for the Secretary-General, Mr. Stéphane Dujarric responded. “All procedures were followed for this visit, outlined in the cooperation agreement between the UN and the ICC,” he said. “She is indeed in Moscow and her activities there are part of the implementation of the mandate regarding children and armed conflict mandate that she is entrusted with, per relevant Security Council and also through the General Assembly,” Mr. Dujarric said.]

On Friday, U.S. Ambassador-at-Large for Global Criminal Justice Beth Van Schaack said, in a tweet, that such a meeting would be “deeply concerning.” Human rights groups including Human Right Watch (see also statements by Amnesty International officials) sharply criticized the meeting, as did international criminal law and humanitarian law scholars (Kim Thuy Seelinger; Mark Kersten; Kevin Jon Heller).

When asked about the reported meeting, Larry D. Johnson, who served as Assistant UN Secretary-General for Legal Affairs, told Just Security, “If the report is true, it’s outrageous as a violation and disregard by the secretariat of the guidelines meant to implement and operationalize a bilateral agreement between the ICC and the UN approved by the governments running both organizations.”

Claus Kress, Professor of International Law and Criminal Law at Cologne University in Germany, told Just Security:

“On the basis of the limited information available, it is not possible to reach a firm conclusion as to whether the UN envoy’s course of action in Moscow was in conformity with the Guidance, but one certainly understands Human Rights Watch’s concern very well: The rather vague and evasive reaction by the U.N. spokesperson does not give one the reassurance that the strict criteria set out in the Guidance for a direct contact under exceptional circumstances had been rigorously considered. In fact, the spokesperson does not even appear to have specifically referred to the Guidance despite its obvious specific relevance in the case at hand.”

Todd Buchwald, who served as U.S. Ambassador and Special Coordinator for Global Criminal Justice, in an email, told Just Security:

“The Secretary General’s ‘no contacts’ guidance prohibits contacts by UN officials with persons subject to ICC arrest warrants unless ‘strictly required for carrying out essential United Nations mandated activities.’ And it goes even further than that, providing that – even when contacts are absolutely essential – an attempt should be made to interact with other persons who are not subject to such arrest warrants. So the standard is high. Were these meetings ‘strictly required’? Were the activities ‘essential’? Was there compliance with the UN’s Best Practices Manual for UN-ICC cooperation, under which the UN’s Office of Legal Affairs would be informed ‘at the earliest possible time’ that the meeting was scheduled to take place and the UN lawyers would inform the ICC Prosecutor in advance of why the meeting was considered necessary. In addressing questions about the meetings on Friday, the Secretary-General’s spokesperson asserted that ‘any guidance provided by the UN has been properly followed,’ but her explanation did not back that up. Indeed, the spokesperson’s statements — that the UN envoy ‘is there in Moscow, really in line with her mandate’ and that she is doing this ‘as per her mandate’ – suggest the absence of any special circumstances that might justify an exception and she gave no indication of any advance coordination. A clear explanation by the Secretary-General would be much appreciated.

Beyond the implications under the ‘no contacts’ guidance, the UN envoy may well have turned herself into a witness in the ICC proceedings against Russian Commissioner Maria Lvova-Belova. What did the Commissioner say in these meetings? How did she defend the policy she is carrying out? There are any number of representations that the Commissioner may have made in the course of these meetings that would be relevant to the Prosecutor’s case or even to the Commissioner’s defense. Under the 2004 Relationship Agreement concluded with the ICC, the UN has committed itself to cooperating with the Court and the Prosecutor, including providing the Court ‘with such information or documents as the Court may request.’ The situation clamors for a straightforward affirmation that the UN remains committed to providing such cooperation.”

In April 2023, when Russia held the presidency of the UN Security Council, Lvova-Belova addressed the Council remotely by video. Junior diplomats represented the Council’s other fourteen members during the informal meeting held in a conference room, and when Lvova-Belova began her remarks, the representatives of Albania, Malta, the United Kingdom, and the United States walked out.

In an “extremely rare” move, the U.K. and U.S. missions blocked the meeting from being broadcast on the U.N.’s website.

“If she wants to give an account of her actions, she can do so in The Hague,” a U.K. spokesperson said at the time.

Photo image: Russian President Vladimir Putin meets with Commissioner for Children’s Rights Maria Lvova-Belova at the Kremlin in Moscow on March 9, 2022. (Photo by Mikhail Klimentyev / SPUTNIK / AFP)

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With rising geopolitical tensions and the consequent Cold War-style polarization, this trend is likely to continue. In response, the United States must not only work to reunite detainees with their families, but also to reduce the likelihood of the hostage-taking itself. The president and Congress already have the necessary legal tools. With more funding and better implementation of current law, the U.S. government might have the carrots and sticks needed to take a proactive approach to deter governments from nabbing Americans when they travel or work abroad.

The dramatic increase in the average number of U.S. persons wrongly detained abroad – which has increased 175 percent during the past 10 years – highlights the need for a new approach. Since 2001, the risk has also spread geographically as the number of countries that have wrongfully detained U.S. persons skyrocketed from four to 27. Five of these countries – China, Iran, Russia, Syria, and Venezuela – account for 75 percent of the wrongful detention cases. 

In 2015, facing political pressure from detainees’ families, President Barack Obama signed an executive order that created the Office of the Special Presidential Envoy for Hostage Affairs within the U.S. Department of State; established an interagency Hostage Recovery Fusion Cell within the FBI; and directed more cooperation across the U.S. government.

Obama also broadened the definition of a wrongfully detained person: not only would that include U.S. citizens and permanent legal residents but also non-U.S. citizens, when the United States has a national interest in that detention. 

Both Presidents Donald Trump and Joe Biden have continued to build on Obama’s policies. In June 2020, Trump signed the Robert Levinson Hostage Recovery and Hostage-Taking Accountability Act, which codified key elements of the Obama-era policies and empowered the Secretary of State to make wrongful-detention determinations. The law was named in honor of former FBI agent Bob Levinson, who disappeared in 2007 while on a visit to Kish Island in Iran, apparently as a CIA contractor, and is believed to have died after 13 years of wrongful detention in the country.  

In July 2022, Biden declared a national emergency to bolster efforts to bring hostages and detainees home, and attempt to prevent such abductions in the first place. The Biden administration has facilitated the release of 27 previously detained U.S. persons in the last two years. In some cases, the president agreed to prisoner exchanges and other undisclosed concessions. For example, in order to secure the freedom of Women’s National Basketball Association star Britney Griner last year, Biden agreed to release Viktor Bout, a notorious arms dealer, from a U.S. prison and hand him over to Russia, which promptly freed Bout.

Some Progress, But Not Enough

Detainees’ families and NGOs have acknowledged that the U.S. legal and policy framework for addressing wrongful detention has had a positive effect, especially to improve information dissemination, family engagement, and intragovernmental collaboration. 

But the government’s initiatives have not deterred detentions. 

In August 2020, two months after the passage of the Robert Levinson Act, U.S permanent resident and Presidential Medal of Freedom recipient Paul Rusesabagina was abducted in Dubai and flown to Rwanda, where he was wrongfully detained for 939 days. Gershkovich’s recent arrest happened contemporaneously with Rusesabagina’s release following years-long high-level negotiations between U.S. and Rwandan officials. In essence, even as one detainee was being released in Rwanda, another was detained in Russia.    

The 2022 Bring Americans Home Report, produced for the fourth year by a foundation named for American journalist James Foley, who was abducted and killed by ISIS in Syria, recommended a review of the U.S. government’s wrongful detention response architecture in order to guarantee the return of more detainees. The report urged the government to enhance the capacity, funding, and overall support for the Office of the Presidential Envoy and the FBI’s Hostage Recovery Fusion Cell, as well as other structural and procedural improvements. 

The James W. Foley Legacy Foundation also fiscally sponsors the Bring Our Families Home campaign, led by family members of five detained U.S. citizens in Venezuela, Iran, and China. The campaign has called on Biden to directly engage with all detainee families, as he has done in the cases of Griner and Paul Whelan, a former U.S. Marine wrongfully detained in Russia since December 2018. The campaign argues that, without the direct intervention of the president, little progress will be made in getting their loved ones home. The Biden administration has defended the President’s failure to meet all detainee families, stating that families of most of the released detainees never met with the president.

Preventing Detentions in the First Place

Coupled with these recommendations for structural adjustments, a proactive approach is critical for addressing the wrongful detention problem in a holistic manner. The present U.S. approach is overly reactive, because of its narrow focus on bringing home wrongfully detained Americans, without attention to, as both the Obama and Biden executive orders and the Levinson Act require, actions that could “reduce the likelihood of U.S. nationals being taken hostage abroad.”

Simultaneously implementing the prevention and recovery components of U.S. law and policy on wrongful detention with similar vigor would provide a framework for the United States to resolve existing cases while preventing future occurrences. This includes implementing Sections 4 and 5 of Biden’s executive order which provide for the public identification and designation of officials of foreign governments who are involved directly or indirectly in wrongful detention, and the seizure of their assets. Moreover, the inclusion of the threat of wrongful detention as a primary risk indicator on the U.S State Department’s travel advisories for all countries where Americans have been held could serve as both a punitive measure and a deterrent. 

In addition, U.S. foreign policy can be used to address wrongful detentions in domestic contexts, including in relation to U.S. allies and partners. Biden could, for example, condition security-sector assistance and other foreign aid on the degree to which a government respects the rule of law and observes international standards for fair trials and deprivation of liberty of their citizens. Adopting a strong and vocal U.S. stance against wrongful detention of allies’ and partners’ own citizens – perhaps with special attention to cases of human rights defenders, dissidents, and other domestic critics – might also reduce the likelihood that those countries would wrongfully detain U.S. persons, whether on their own initiative or at the behest of unfriendly nations such as Russia and Iran.    

What’s more, putting human rights at the forefront of any policy framework would be a proactive step. Under the U.S. Constitution, the government has the responsibility to protect and promote individual liberty, and those same obligations are reflected in international human rights treaties that the United States has signed. Therefore, the U.S. government should consider the implementation of its policy on wrongful detention as part of its responsibility under domestic and international human rights law. Besides, liberally interpreting the national interest clauses of U.S. policy on wrongful detention of non-U.S. persons enables the government to address harmful foreign State practices that may pose a threat to U.S. persons in the future. 

The Biden executive order requires the government to impose costs on those who participate, support, or facilitate wrongful detention, and to do so in coordination with like-minded governments and organizations. The United States could use multilateral institutions, such as the G7 and the United Nations, to galvanize support against wrongful detention, including through joint sanctions regimes against bad actors. Expanding the scope of the U.S. Magnitsky regimes to cover perpetrators of wrongful detention and encouraging the European Union to do the same, increases the scale of deterrence against further proliferation of the conduct globally. The United States also should support the mandate of the U.N. Working Group on Arbitrary Detention and regional human rights mechanisms in Africa, Europe, and the Americas, which can be useful for keeping track of developments that suggest an emerging threat of wrongful detention in those regions. 

Finally, the United States must fix its domestic arbitrary detention issues. The U.S. government’s use of rendition and torture, particularly against suspected terrorists, drew global criticism. More recently, its immigration-detention policies, such as the disproportionate, unreasonable, and unnecessary mass detention of immigrants,  in  violation of international standards that require a case-by-case assessment, has also attracted international censure. These failures at home have greatly undermined U.S. moral authority to effectively advocate against the use of arbitrary detention abroad. This contradiction must be addressed as part and parcel of an effective foreign policy.  

The practice of wrongful detention anywhere is a threat to U.S. persons everywhere. That’s why it should be a top priority in U.S. domestic and foreign policy.

IMAGE: US journalist Evan Gershkovich, arrested on espionage charges, stands inside a defendants’ cage before a hearing to consider an appeal on his arrest at the Moscow City Court in Moscow on April 18, 2023. (Photo by NATALIA KOLESNIKOVA/AFP via Getty Images)

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Hybrid regimes, also known as “electoral autocracies,” are governments that endeavor to be seen as democracies but lack the fundamentals to warrant such a label. They hold elections but the playing field is rarely level, as ruling parties utilize a diversified portfolio of election manipulation tactics to secure power, including corrupted voter registration systems, intentional logistical delays, targeted violence, strategic results tampering, and compromised electoral management bodies.

Hybrid regimes pose a thorny policy challenge to the United States. In 2022, almost one-half of countries globally (72 in total) met the definition of “hybrid” or “electoral autocracy” and were present in every geographic region. Examples include Angola, the Democratic Republic of Congo (DRC), Nigeria, Mexico, El Salvador, Egypt, Turkey, Iraq, Pakistan, Bangladesh, and the Philippines.

Unfortunately, since these governments hold elections and display other trappings of democracy, some policymakers give them a pass on their democratic track record -– especially if the country is relevant to other American interests.

This is short-sighted and counterproductive, even –- and especially — for U.S. national security. Consider the case of Egypt: despite receiving billions in U.S. security assistance, the Egyptian government has been offering to sell arms to Russia to aid the Kremlin’s illegal war in Ukraine, in direct conflict with American policies. It is also exceedingly difficult, if not dangerous, for U.S. companies to invest in or access the markets of hybrid regimes. The opaque and compromised nature of institutions common to these States often results in unclear or biased regulation. For example, while Nigeria has the fastest-growing population in Africa and a market ripe for U.S. exports, corruption and biased regulation make it difficult for U.S. companies to operate there.

Failing to address the democratic deficiencies of hybrid regimes sets up the United States for long-term strategic failure and hinders American economic prosperity. To avoid these outcomes, the United States must carve out a new path forward that preserves near-term U.S. interests while also pressing these States to make democratic progress. After all, there is hope for hybrid regimes. As a recent study notes, “In the face of the global wave of autocratization, data shows that no less than eight countries are bouncing back and making U-turns … Cases like these raise some hope for a future reversal of the last 20 years’ downward trend towards autocratization.”

Thwarting US Interests

Hybrid regimes are less likely to uphold the interests of the United States and its democratic allies on the world stage. Of the 72 hybrid regimes, only 20 voted to remove Russia from the U.N. Human Rights Council in April 2022 over the full-scale invasion of Ukraine. Of the countries who joined with the United States in a U.N. General Assembly committee to condemn China’s human rights abuses in Xinjiang in October 2022, only four were hybrid regimes.

Hybrid regimes also are more prone to internal conflict and instability because they often lack legitimacy among politically marginalized groups (and sometimes large swaths of the population). They are ill-equipped to effectively handle security challenges –- often resorting to heavy-handed tactics that inflame violence –- and have weak institutions that are unable to challenge abuses of executive power.

The susceptibility of hybrid regimes to political violence and instability is perhaps most acute in sub-Saharan Africa. According to an analysis of 2022 data, hybrid regimes experienced almost three times as many conflict incidents and five times as many conflict fatalities compared to stronger democracies. Analysis of data for the past decade shows that hybrid regimes in sub-Saharan Africa are seven times as likely to experience a coup or attempted coup compared to democracies.

The Flawed Approach to Hybrid Regimes

As the United States increasingly engages in strategic competition with China and its authoritarian model, it must remember that it is free people and democratic societies who are its most valuable allies on the global stage. Premature acceptance of sub-standard elections and willful ignorance of democratic backsliding may provide short-term bilateral gains, but in the long term serves to further separate the people in these countries from the United States, eroding affinity between our peoples, and increasing risks of conflict and instability that weaken current and future allies.

It’s important to note the distinctions between hybrid regimes and authoritarian regimes, which do not hold plausibly competitive elections (if they hold elections at all) for the chief executive and the legislature and where institutions have little-to-no ability to check the power of the executive. This distinction enables the international community to minimize the democratic failures of hybrid regimes.

An example is the tendency to judge elections in hybrid regimes as “good enough” unless the fraud and violence are egregiously obvious. In February, the U.S. State Department rushed to congratulate the declared winner of Nigeria’s 2023 presidential election, even though the election was widely criticized by observers for targeted violence, lack of transparency, significant voter disenfranchisement, and outright vote manipulation in some states.

The United States has applied this low bar in other recent elections. Angola’s August 2022 presidential election saw the half-century rule of the MPLA party extended by another five years, in an election where the ruling party controlled the media and courts, imposed worrying changes to the vote-tabulation process, and heavily obstructed efforts to observe the election. Despite these red flags, the U.S. Embassy quickly congratulated the declared winner and commended “the millions of Angolan voters who cast their ballots in this election, and in doing so demonstrated their commitment to strengthening democracy.” Following Tunisia’s December 2022 parliamentary elections, which some international observers labeled a “sham,” the State Department issued a vanilla statement, noting low turnout and the need for greater political inclusion, but failing to cite any other major issues that impeded the credibility of the process, such as barriers to political party participation and egregious restrictions on the press.

Such omissions have immediate and direct consequences for U.S. security and economic interests. For instance, in Nigeria, the widely disputed election results and the high levels of regional disenfranchisement of voters will likely compound regional and sectarian grievances, fueling increased conflict and destabilization, and diverting even more resources and attention of the United States and like-minded partners to combat instability. And in Angola, the extension of MPLA rule under questionable circumstances could lead to continued democratic backsliding and undermine prospects for economic reform, harming U.S. economic interests, including trade (already in significant decline), and could make the country more vulnerable to the malign influence of Russia and China.

Sadly, hybrid regimes most often result from democratic backsliding, rather than autocracies moving toward democratic reform. Of today’s 72 hybrid regimes, 20 were considered stronger democracies 20 years ago, while eight were considered closed autocracies.

Democratic backsliding is usually a gradual process. The international community’s muted response to closing space in hybrid regimes tends to facilitate continued backsliding. Over the past five years, there has been a worrying global increase in the number of authoritarian regimes.  This suggests that early action to address the democratic deficiencies of hybrid regimes is critical to forestalling autocratic consolidation.

Failing to make the distinction between hybrid regimes and democracies, and failure to comprehend trajectories of democratic backsliding, undermines the intent of democratic initiatives like the Biden administration’s Summit for Democracy. At the most recent summit, countries that have been experiencing years of democratic backsliding and refuse to publicize their commitments to democracy (such as Nigeria and Philippines) are given equal standing with countries that are actively and transparently consolidating democracy. Of the 120 countries invited to participate in the 2023 Summit for Democracy, 25 were hybrid regimes. Only about half of these countries publicized their commitments from the summit. And of the stronger democracies invited, almost 40 are countries that experienced notable democratic backsliding over the past five years and are at increasing risk of becoming hybrid regimes this decade.

Democracies are not only more stable than hybrid regimes, but they also enjoy better economic growth, equality, and educational achievement. The failure to adequately differentiate hybrid regimes from stronger democracies fuels the counterproductive perception that “democracy fails to deliver,” when it is in fact the failure to achieve meaningful democracy that prevents so much of the world from enjoying its dividends. 

Walking and Chewing Gum at the Same Time 

The United States and allies must balance their cooperation with hybrid regimes, when it is necessary at all, with a push for those governments to reform and realize broader democratic progress. These aims are not contradictory, but complementary and central to advancing U.S. objectives. Achieving this balance will require prioritizing respect for democratic practices, institutions, and norms when determining how to engage hybrid regimes. Democracy will not always trump other factors, but it should be moved up the rank order of priorities.

There are practical steps the United States and like-minded allies can take -– using diplomacy and foreign assistance -– to advance near-term pressing issues while targeting democratic deficiencies that make hybrid regimes problematic for American interests.

For instance, the United States and G7 allies should make clear they will not welcome with open arms leaders chosen through dubious, sub-standard elections. From Washington to London, leaders should get serious about issuing public sanctions, including asset freezes and visa bans, for malfeasance during elections. On the flip side, the U.S. and allies should make better use of high-level diplomatic engagement, such as leveraging the legitimacy conferred by Cabinet-level visits, to incentivize governments to make changes and adhere to international democratic best practices.

These steps can be impactful while not undercutting cooperation on pressing matters. In Nigeria, for instance, the United States can engage the government to achieve priorities via the U.S. Ambassador and U.S.-Nigeria Binational Commission (BNC), a forum established in 2010 to discuss a range of interests. The Secretary of State need not make plans to visit Abuja to meet newly elected President Bola Tinubu while key court decisions -– and a potential independent audit -– are pending on the results of the recent election.

The United States and G7 allies should pay more rigorous attention to elections in general. Rather than accepting elections as a continuation of the status quo, the West should view electoral processes as critical moments to correct or continue countries’ democratic trajectories, and apply commensurate attention, pressure, and incentives. One step in the right direction would be to more explicitly and publicly link future foreign aid funding used to support elections in such countries to recipient governments agreeing to abide by established electoral standards, including enforcement of election law, equitable access to voting, and transparency in reporting election results and election data. Failure to link foreign assistance to meaningful reforms results not only in sub-par elections and wasted U.S. taxpayer dollars, but also provides diplomatic cover for election malpractice and malfeasance.

Foreign aid has an important role to play in advancing U.S. interests in hybrid regimes by helping cultivate and reinforce democratic practices and norms outside a government in power. The United States is therefore smart to invest in civil society-led advocacy campaigns that hold leaders accountable and in efforts to strengthen political parties that can contest elections and offer an alternative to the status quo.  Yet the United States can do more to couple such capacity building via foreign aid with creating the political will for reform. While building democratic capacity can incentivize and enable the will to reform, capacity should not be viewed as an end in itself; this is a convenient, but short-sighted and counterproductive, approach. Diplomacy and foreign assistance can help enable this political will through a combination of incentives, pressure, and advocacy campaigns, as well as identifying and equipping rising political stars unafraid to push for change.

Looking Forward

As the U.S. and allies navigate relations with hybrid regimes, they should approach evaluating a country’s democratic performance as science and not art. Objective third-party evaluations of democratic performance are widely available but largely ignored in U.S. policymaking. Robust and credible civil society organizations proliferate in many hybrid regimes; yet despite many of these organizations receiving assistance from the United States, their warnings about democratic backsliding are regularly disregarded. The United States should pair support to these organizations with listening to their perspectives -– to the extent they reflect the people’s perceptions and expectations of democracy -– and account for their views in the policymaking process.

U.S. officials must resist the convenient but inaccurate narrative that the hybrid regimes of the world are slowly but surely moving in the right direction. Evidence of backsliding in the past 10 years has shown that is far from certain. A narrative of wishful thinking only results in misleading analysis and poorly targeted foreign assistance and diplomacy, serving to reinforce one-party rule and compound public grievances around the world. Using rigorous metrics can help make progress in this area. 

Major policy initiatives like the Summit for Democracy should require concrete commitments from all participants and demonstrable democratic progress against these commitments. These initiatives should include public accountability for democratic backsliding and for failure to achieve reform objectives. At minimum, governments on prior Summit invite lists who go on to enable backsliding should not be included moving forward.

Ideally, the United States should reward allies that make tangible democratic advances with tangible benefits. For example, the United States should consider re-initiating free-trade agreement discussions with Ecuador if President Guillermo Lasso’s government makes progress on anti-corruption and continues to consolidate democracy. Doing so would reward a key ally in the region and one of the remaining democratic bright spots with tangible changes that benefit the Ecuadorian people and U.S. interests. Similar carrots could be held out for progress in a range of other contexts as well. Participants should also commit to stand with democracy against autocracy on the world stage. Mitigating democratic backsliding and combatting authoritarianism requires the concerted efforts of a global community.  

With major elections coming up in several hybrid regimes this year and next — including Turkey’s planned runoff election on May 28, as well as balloting in DRC, Pakistan, Bangladesh, Algeria, Egypt, Tunisia, Mexico, and El Salvador — the United States must think carefully about how it will assess and react to these elections, and whether perceived short-term bilateral gains will truly be worth the long-term costs.

Going forward, while it is important for the United States to shore up its alliances with the Philippines and other partners to thwart China’s malign influence and kinetic threat, U.S. leaders also must be acutely aware of the democratic backsliding that is occurring in these hybrid regimes and use American leverage to counter it. Without such clear accountability and seriousness in upholding of democratic values, the United States can expect to have “allies” and “partners” that are not only less free and stable, but also distinctly unreliable.

IMAGE: US Vice President Kamala Harris (L) and Zambian President Hakainde Hichilema are seen outside at the State House in Lusaka on March 31, 2023 after a press conference. President Hichilema asked for US help to expedite debt restructuring negotiations with the country’s creditors.  (Photo by SALIM DAWOOD/AFP via Getty Images)

The post Dealing with Hybrid Regimes: Pursuing US Interests Without Giving them a Pass on Democracy appeared first on Just Security.

Consider what Trump had to say about former Vice President Pence. CNN’s Kaitlan Collins pointed out that Pence has blamed Trump for endangering his life. Trump interjected with a lie. “I don’t think he was in any danger,” Trump claimed.

That is clearly false. Some of Trump’s followers erected a hangman’s gallows outside of the Capitol. And the mob chanted, “Hang Mike Pence! Hang Pence!” Shortly after the Capitol was breached, Secret Service agents had to whisk Pence away to safety (which Sen. Tommy Tuberville (R-Al) told Trump as it happened). Even so, the rioters came within 40 feet of the vice president.

The main reason the rioters focused their anger at Pence was because Trump repeatedly told them that the vice president had the power to alter the outcome of the election. That is where Trump’s statements Wednesday night were important from a legal perspective.

Trump stated: Pence “did something wrong. He should have put the votes back to the state legislatures. I think we would have had a different outcome, I really do.” The reason that puts the former president in legal jeopardy is because Trump’s own legal adviser (John Eastman) admitted during an Oval Office meeting that the Electoral Count Act would not allow Pence to take such action. Trump’s remarks on CNN provide additional evidence that he does not and did not care about the scope of Pence’s actual legal authority. (One of the tells is that Trump told Collins it was Pence’s lawyers who said the proposal violated the Electoral Count Act, when the record is clear that Trump’s legal adviser also said that it did.)

The audience, made up primarily of Republican-leaning voters, loudly applauded Trump’s statement of what Pence should have done – but they were cheering for lawlessness and lies, whether they knew it or not.

To understand why, some brief context is in order — namely, this passage from Chapter 5 of the Select Committee’s final report (footnotes omitted) describing a key meeting in the Oval Office with the president, vice president, and their respective legal advisers:

On January 4, 2021, President Trump summoned Vice President Pence to a meeting in the Oval Office with John Eastman, a law professor representing President Trump in litigation challenging the election result. Eastman argued, on President Trump’s behalf, that the Vice President could take matters into his own hands during the joint session on January 6th. Eastman offered Vice President Pence two options. First, the Vice President could unilaterally reject the certified electors from several States won by former Vice President Biden, thereby handing the presidency to President Trump. Or, according to Eastman, Vice President Pence could delay the joint session to give State legislatures the opportunity to certify new electors loyal to the President. Eastman admitted, in front of the president, that both options violated the Electoral Count Act of 1887, the statute that sets forth the process for counting and disputing electoral votes during the joint session. Eastman admitted as much in a subsequent conversation with the Vice President’s staff as well.

Therefore, President Trump knew, or should have known, that this scheme was illegal—in fact, it violated the Electoral Count Act and the U.S. Constitution. President Trump repeatedly demanded that Vice President Pence go through with it anyway.

And Wednesday night on CNN, Trump repeated his illegal demand. We know from Vice President Pence’s book and other evidence that Trump and Eastman tried to get Pence to take the first option as well – that is, to unilaterally reject electors from the swing states and hand the victory to Trump. Here is how Pence writes about that same January 4, 2021, meeting in his book, So Help Me God (emphasis added):

Eastman argued that I had the authority to simply direct that electoral certificates not be counted and instead order that they be returned to the states until each state legislature certified which of the competing slate of electors for the state was correct. It was the first time I had ever heard anyone suggest that we send votes back to the states. The president and many of his defenders later repeatedly made the case that that was all I had ever been asked to do. It wasn’t.

Since I had already confirmed that there were no legitimate competing electors, I was tempted to dismiss Eastman’s proposal out of hand, but I let him drone on. He repeatedly qualified his argument with the words that it was just a legal theory, and I decided it was necessary to press him in front of the president. I was seated in my usual chair to the right of the president near the Resolute Desk, and Eastman was in the next chair to my right. I turned to him and asked, “Do you think I have the authority to reject or return votes?”

He stammered, “Well, it’s never been tested in the courts, so I think it is an open question.”

At that I turned to the president, who was distracted at the time, and said, “Mr. President, did you hear that?” He turned his attention to me, and I said, “Even your lawyer doesn’t think I have the authority to return the electoral votes.” The president nodded. As Eastman tried to get out some explanation, the president replied, “I like the other thing better,” presumably referring to his previous opinion that I could simply choose to reject electoral votes altogether. 

According to Pence, therefore, Trump acknowledged during the Jan. 4, 2021 meeting that the vice president didn’t have the legal authority to return electoral votes back to the states. Yet, Trump still demanded that he do so (and defended that unlawful option again on CNN). Trump went even further in also pressuring Pence to reject electoral votes outright (the more radical option).

There’s much more evidence concerning Trump’s pressure campaign against his own vice president. But he further damaged himself last night when it comes to that part of the criminal case.

The former president’s responses to other January 6-related questions were problematic as well. One audience member asked, “Will you pardon the January 6 rioters who were convicted of federal offenses?”

Trump responded: “I am inclined to pardon many of them. I can’t say for every single one because a couple of them probably got out of control.” He then pivoted to whataboutism-style talking points concerning Antifa.

Collins followed up, asking if Trump would even consider pardons for the four members of the Proud Boys who were convicted of seditious conspiracy and other charges earlier this month.

“I don’t know, I’d have to look at their case,” Trump replied. “But I will say, in Washington, D.C. you cannot get a fair trial. You cannot.”

It is not surprising that Trump dangled the prospect of pardons for convicted January 6th rioters. He has done so before. But now he has added the convicted Proud Boys to his list of potential pardons. And that is even more troubling. As the Department of Justice has explained, the four convicted felons “directed, mobilized, and led a group of Proud Boys and other members of the crowd onto the Capitol grounds, leading to dismantling of metal barricades, destruction of property, breaching of the Capitol building, and assaults on law enforcement.” They were the spearhead for the attack.

Following the attack on the Capitol, Trump wanted to say he would issue a blanket pardon of the rioters, but White House lawyers strongly objected, and no such statement was made. Suffice it to say, Trump’s remarks on CNN exceeded what any reasonable defense lawyer would advise him.

In another potentially incriminating exchange, Trump acknowledged his own power over the mob.

Collins asked: “Why did you wait three hours to tell them to leave the Capitol? They listen to you like no one else. You know that.”

“They do, I agree with that,” Trump said, before trying to shift the blame to then Speaker of the House Nancy Pelosi and Mayor Muriel Bower.

This is potentially important because it demonstrates, again, that Trump was aware that he could have told the mob to go home earlier and ended the insurrection, prevented further damage to the Capitol and harm to the police. The former president and his defenders like to point to a few tweets, issued during the attack at 2:38pm and 3:13pm, in which he told his followers “to support our Capitol Police and Law Enforcement” and to “Stay Peaceful!” But in neither of those tweets did the president tell the crowd to go home. (People close to the president, including his son Donald Trump Jr., pleaded for the president to say more.) He could have acted much sooner, just as Collins claimed, and many of the rioters would have listened.

It was not until 4:17pm that Trump released a video calling for rioters to go home in “peace.” Even then, however, he endorsed their cause. “I know your pain, I know you’re hurt. We had an election that was stolen from us,” President Trump said at the outset of his video. “It was a landslide election, and everyone knows it, especially the other side.”

On CNN, Trump said he was “very proud of that video” because it was a “great video” and a “beautiful video.”

Nor does the legal harm Trump did himself stop there. He also reaffirmed that he would make the damning Jan. 2, 2021 call to Brad Raffensperger again, despite the fact that it may lead to criminal charges by Fulton County DA Fani Willis this summer (and possibly by the Justice Department as well). That is important because it shows he is unrepentant, which is an added incentive for the DA to seek accountability (not as if she needed one).

Moreover, Trump also provided a window into his intent by vehemently insisting that it was a perfect phone call. As a matter of law, it absolutely was not. Once the election had been certified, as it was, that constituted electoral vigilantism and apparent criminal activity to overturn the election in Georgia.

Over the coming months, we should expect more talk along these lines from the former president. The bottom line is that he has accepted no responsibility for January 6th, he portrays the extremists and rioters who attacked the Capitol as victims, and he tries to shift blame onto others, even while recognizing that the mob was his.

IMAGE: Reporters watch a CNN town hall with former US President and 2024 Presidential hopeful Donald Trump at St. Anselm College in Manchester, New Hampshire, on May 10, 2023. (Photo by JOSEPH PREZIOSO/AFP via Getty Images)

The post How Trump’s CNN Town Hall Remarks Put Him in Greater Legal Peril for Jan. 6 Investigations appeared first on Just Security.

I&A’s activities have been the subject of regular outrage seemingly every few months as the office finds itself in the headlines with a new scandal. Most recently, Politico revealed that I&A was collecting intelligence from people in jails and prisons without notifying their lawyers and with few if any protections of their rights. When the Supreme Court overturned the constitutional right to abortion, I&A was caught monitoring the social media “reactions” and “reflections” of people simply talking politics online. And during the civil rights outcry following George Floyd’s murder, I&A surveilled journalists and aided a summer-long campaign to undermine and discredit demonstrators, resulting in the removal of a senior official and multiple investigations.

Last week, Wainstein described this years-long series of misdeeds as a “rough patch.” My Brennan Center for Justice colleague Faiza Patel and I recently authored a report that cataloged these and other wrongdoings, explained how I&A’s overly permissive environment is designed to foster chronic abuse, and called for fundamental change. It appears that I&A too has been trying to find a path forward. The initial results of the review are in and I&A will make two changes it claims will strengthen integrity and accountability.

The first change I&A announced last week is to separate social media collectors from intelligence analysts to ensure the collectors have the independence and supervision needed to comply with law and policy. Presently, both analysts and collectors operate under I&A’s broad Intelligence Enterprise Operations division, but as separate entities. Under the previous administration, I&A placed social media collectors with some other information sharing functionaries. That office will be, apparently, broken back apart.

Similarly I&A’s human collection and liaison functions had operated separately, were combined and renamed in 2015, renamed again, and then apparently again renamed the Field Intelligence Directorate, according to a recent DHS post. Those operations—which take place in unaccountable “fusion centers” with state and local police—appear to combine “collection and analytic functions,” undermining Wainstein’s justification for isolating social media collectors.

Regardless, relocating social media collectors from one part of I&A to another does not address the concerns raised by their work. That is because social media remains ambiguous, laden with in-jokes and subtext, largely anonymous, and generally difficult to parse. Finding useful intelligence in that environment has often proved difficult and, as the Brennan Center shows in our report, I&A is not always up to the task to discern value from garbage. Wainstein touts “constant supervision” of social media collection as a new benefit. But lack of supervision didn’t cause I&A’s overreach during the 2020 racial justice demonstrations. Rather, as DHS’s general counsel made clear, the problem was that I&A and DHS leadership were able to direct social media collection and reporting to serve their political agendas.

This reorganization does not remedy the overbroad mandate and weak safeguards that allowed the unit to be used as a tool for the Trump administration’s preferred narrative about the dangerousness of racial justice protests. To comply with the legal requirements codified in its guidelines, I&A’s officers must ensure their activities further an enumerated mission. But these missions are so expansive—including intelligence to counter terrorism, threats to infrastructure, narcotics trafficking, foreign spying, and more—that they can provide the basis for illegitimate activities, as occurred during 2020. Catch-all missions, such as providing intelligence support to DHS leadership, are also susceptible to abuse.

Constraints are few and far between. The guidelines give only a passing treatment to the First Amendment and suggest I&A can monitor core political speech so long as it asserts a mission-driven purpose. This flimsy standard makes it all too easy for I&A officers to concoct a pretext to surveil online political speech, as we saw both with the Trump administration’s targeting of racial justice protestors and the Biden administration’s monitoring of people discussing abortion on the presumption they posed a threat to national security.

The second announced change involves consolidating internal oversight functions into one office. Currently I&A’s Privacy and Intelligence Oversight Branch, which is responsible for investigating violations of I&A’s guidelines, sits three layers below I&A’s lead; under the new plan, they will report to a new officer who reports directly to Wainstein. Wainstein claims this move will elevate oversight to the “top levels,” but in reality the only intelligence oversight office in DHS remains subordinate to the officer it is tasked to oversee. That’s a fundamentally broken arrangement that easily enables I&A leadership to again disregard oversight when it is most needed.

So let’s be clear: I&A’s new realignment simply is “just swapping out org charts.” It fails to address any of the agency’s fundamental problems. The Brennan Center proposes real fixes in our recent report.

The Secretary of Homeland Security needs to permanently end I&A’s harmful, easily abused practices of disseminating unverified social media information about Americans and collecting intelligence in jails. Oversight of I&A’s intelligence functions should be strengthened and made independent of the office it oversees, not simply moved up on I&A’s organizational chart. Congress should codify these changes and narrow I&A’s enormous discretion.

I&A has signaled additional tweaks are coming, noting a “priorities reassessment.” With a history of targeting racial justice demonstrations and a present practice of monitoring political “narratives” online, I&A’s priorities are certainly out of whack. There are real changes to protect both the safety and rights of Americans that the Secretary and Congress can—and should—make today. Don’t be fooled when DHS instead engages in sleight of hand and calls it progress.

Image: DHS Flag painted on a wall (via Getty Images).

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