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

Did You Say “Asians” or “Agents”?

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

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

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

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

Unintended Economic Pitfalls

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

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

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

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

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

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

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

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

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

Proposed Legislation Is Disproportionate to the Perceived Threat

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

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

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

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

Constitutional Challenges and the Potential for Discriminatory Enforcement

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

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

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

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

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

An Ounce of Preemption

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

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

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

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

Federal Responses

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

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

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

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

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

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

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

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

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

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

Prognosis

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

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

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

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

Минулого тижня підкомітет із закордонних справ Палати представників з питань Європи, енергетики, довкілля та кібербезпеки провів засідання в Конгресі під назвою «Перші ознаки воєнних злочинів і порушень прав людини, вчинених російськими військовими під час повномасштабного вторгнення в Україну».

Підкомітет заслухав групу експертів з воєнних злочинів, які зосередили увагу на жахах широкомасштабного та невибіркового обстрілу цивільного населення, застосування касетних боєприпасів, некерованих бомб та інших питань, пов’язаних з націлюванням. Але в свідченнях свідка Христо Грозєва, провідного слідчого та виконавчого директора Bellingcat щодо Росії, була фраза, яка натякає на докази нібито катування цивільних осіб:

Ми також отримали приватні відео та фотографії, а також прямі повідомлення свідків, частину яких ми також змогли перевірити, що, ймовірно, є підтвердженням воєнних злочинів. Сюди входять фотографії тіл мирних жителів з чітко помітними слідами катувань і каліцтв, які були геолоковані та позначені часом і у місцях, де буквально годинами раніше перебували війська так званих підрозділів спецназу лідера Чечні Рамзана Кадирова (штамп часу 26:10).

На відміну від багатьох інших зображень руйнувань, опублікованих в Інтернеті, ці докази, як засвідчив Грозєв, не були завантажені свідками в соцмережі через страх помсти. Він надав доступ до цих зображень виключно для членів комітету Конгресу, і після цього вони були оприлюднені на веб-сайті комітету.

Окрім заяв про катування, викладених на слуханнях Bellingcat минулого тижня, минулого року Організація Об’єднаних Націй задокументувала систематичне знущання над ув’язненими, зокрема катування, у в’язниці «Ізоляція» в Донецькій області, яка контролюється підтримуваними Росією сепаратистами. Заступник Верховного комісара ООН з прав людини Нада аль-Нашіф, виступаючи перед Радою ООН з прав людини в липні минулого року, заявила:

Ми серйозно стурбовані тим, що кричущі порушення, такі як катування і жорстоке поводження, задокументовані в установі «Ізоляція» в Донецьку, а також в інших місцях позбавлення волі на території, підконтрольній самопроголошеним «республікам», продовжуються щодня, і здійснюються систематично.

В аспекті механізмів відповідальності для подолання подібних порушень, інший свідок, професор університету Джорджтауна, Ентоні Кларк Аренд, вів мову про юрисдикцію як Міжнародного кримінального суду, так і таких країн, як Німеччина, Іспанія та Нідерланди, які потенційно мають універсальну юрисдикцію. Він припустив, що Сполучені Штати також можуть застосувати національну юрисдикцію, швидше за все, згідно з законом про воєнні злочини, кодифікованим у 18 U.S.C. 2441, який карає за порушення Женевських конвенцій. Однак цей закон вимагає, щоб або злочинець, або жертва були громадянами США. Іншими словами, росіяни, які вчиняють найбільш кричущі воєнні злочини проти українців, наразі не підпадають під юрисдикцію цього закону.

Однак, згідно з законом Сполучених Штатів про катування, 18 U.S.C. 2430A, такий зв’язок із громадянством не вимагається, оскільки все, що потрібно Сполученим Штатам для здійснення юрисдикції проти імовірного ката, це те, щоб злочинець або був громадянином США, або «знаходився у Сполучених Штатах». Поки злочинець знаходиться в Сполучених Штатах, Міністерство юстиції може притягнути його до відповідальності, незалежно від того, чи він, чи жертва є громадянином США. Але його потрібно спершу знайти на території США.

Оскільки Конгрес прагне зробити більше, щоб притягнути Росію до відповідальності за жахливі порушення прав людини, які щодня відбуваються в Україні, роз’яснення та посилення юрисдикції за законами про катування і воєнні злочини потребує простого законодавчого рішення, яке гарантує, що Сполучені Штати зможуть притягнути до відповідальності винних у грубих порушеннях прав людини. Справді, ця реформа давно назріла і включає зміни, які раніше заохочували Міністерство оборони та Державний департамент.

Реформа № 1: Розширити юрисдикцію за Законом про воєнні злочини

Як засвідчив професор Аренд, до закону про воєнні злочини слід внести зміни, щоб включити юрисдикцію «на підставі місця перебування», щоб будь-який підозрюваний у воєнних злочинах, який знаходиться у Сполучених Штатах, міг бути притягнутий до відповідальності. Це б дозволило уніфікувати підходи до юрисдикції, з тим, щоб підхід за відповідним законом відповідав існуючому підходу до юрисдикції за національними законами США щодо катувань, геноциду та використання дітей-солдат. Насправді, Міністерство оборони, коментуючи оригінальне законодавство про воєнні злочини у 1996 році, прямо закликало, що:

положення про юрисдикцію слід розширити, змістивши нинішній акцент на національності жертв воєнних злочинів. Зокрема, ми пропонуємо додати дві додаткові підстави для юрисдикції: (1) якщо винний у скоєнні воєнного злочину є громадянином Сполучених Штатів (включаючи члена Збройних Сил); та (2) якщо винний знайдений у Сполучених Штатах, незалежно від громадянства злочинця чи жертви (підкреслено автором).

Головний юрисконсульт Міністерства обґрунтував юрисдикцію «на підставі місця перебування» тим, що вона «потрібна для виконання наших міжнародних зобов’язань». Держдепартамент також підтримав юрисдикцію «на підставі місця перебування» щодо воєнних злочинів. Як і генеральний юрисконсульт Міністерства оборони, головний заступник юридичного радника Держдепартаменту сказав Конгресу, що це «забезпечить здатність Сполучених Штатів виконувати наші зобов’язання згідно з Женевськими конвенціями 1949 року та іншими міжнародними угодами» і «забезпечить, щоб Сполучені Штати не могли стати притулком для тих, хто порушив закони війни».

У зв’язку з цим, Міністерство юстиції може — і повинно — розслідувати, чи були вбивство та скалічення американських журналістів та інших цивільних осіб США в Україні російськими військовими скоєні навмисно чи з необережності і, отже, воєнним злочином у межах існуючої юрисдикції за законом. Щоб було зрозуміло, необов’язково доводити, що нападники знали, що жертвами були американці чи журналісти, лише чи нападники усвідомлювали, що вони були цивільними.

Реформа № 2: Розширити юрисдикцію за Законом про катування

Наступна законодавча зміна полягала б у тому, щоб розширити закон про катування, щоб його можна було застосувати, якщо жертвою є американський громадянин. Це дозволило б проводити розслідування та судове переслідування за катування незалежно від того, чи зловмисник знаходиться у Сполучених Штатах. Наприклад, у гіпотетичному випадку, де зловмисником є негромадянин США, який катував американських громадян за кордоном – незрозуміло, чи він підлягає екстрадиції до Сполучених Штатів, оскільки підозрюваний не є громадянином США і не знаходиться в Сполучених Штатах. Роз’яснення про те, що юрисдикція існує, якщо жертва є громадянином США, могло б запобігти потенційній плутанині. У випадку з іншими злочинами, влада змогла добитись екстрадиції, часто чекаючи роками, поки зловмисник зробить помилку та відвідає країну з договором про екстрадицію (США не мають договору про екстрадицію з Росією чи Україною.)

Оскільки все більше американців приєднуються до війни в якості комбатантів або допомагають доставити гуманітарну допомогу, легко уявити, що їх можуть захопити і катувати. Катування, як було задокументовано, вже є частиною ландшафту порушення прав у більш широкому українському конфлікті.

Такі зміни до законів про воєнні злочини або катування не порушують заборони щодо ретроспективної криміналізації дій. Такі зміни не визнають незаконним те, що було законним раніше. Вони лише конкретизують національну юрисдикцію США щодо злочинів, які є універсально незаконними та вже забороненими двома законами (відповідно до обох законів відповідний злочин включає «будь-кого» поза межами Сполучених Штатів, хто вчиняє відповідні дії).

Міністерство юстиції могло б, за нинішніх повноважень, розслідувати та переслідувати катування будь-якого американського громадянина в Україні, оскільки катування чітко заборонено законом про воєнні злочини та існує збройний конфлікт. Однак, якщо російська влада ув’язнить американського громадянина в Росії та застосує до нього тортури, юрисдикція не буде застосовуватися, якщо злочинець не прибуде до Сполучених Штатів.

Безумовно, також можна заповнити інші прогалини у федеральній системі кримінальної відповідальності за порушення прав людини, як стверджував колишній посол США з питань воєнних злочинів Девід Шеффер, закликаючи Конгрес прийняти закон про злочини проти людяності в Just Security минулої осені. Голова судового комітету Сенату Дік Дурбін давно є прихильником цього, але якщо Конгрес не може прийняти цей закон, можна і потрібно уніфікувати юрисдикцію щодо воєнних злочинів і катувань, що є значно простішим кроком – не лише для того, щоб відновити справедливість для українських жертв воєнних злочинів, а й для того, щоб забезпечити спроможність Сполучених Штатів переслідувати тих, хто катував американських громадян в Україні чи в інших країнах.

Чи матимуть будь-коли Сполучені Штати можливість реалізувати цю юрисдикцію щодо злочинів, скоєних в Україні? Протягом десятиліть заявлена ​​політика Сполучених Штатів полягала у запобіганні та стримуванні в’їзду порушників прав людини в цю країну. Після Другої світової війни було прийнято Закон про переміщених осіб 1948 року, щоб вирішити проблему з мільйонами біженців, які були вимушені покинути країну внаслідок конфлікту. Цей закон прямо забороняв тим, хто допомагав у переслідуванні цивільних осіб, мати право на отримання візи для прибуття в Сполучені Штати. Тим не менш, сотні, якщо не тисячі імовірних злочинців змогли обійти перевірку і пробратись в країну за допомогою брехні, заявляючи, що вони є законними біженцями.

Проблема була настільки великою, що Управління спеціальних розслідувань Міністерства юстиції США (OSI) було створено в 1979 році, щоб усунути тих, хто допомагав у актах переслідування, організованих нацистами. OSI ініціювала судові провадження щодо понад 130 учасників переслідувань, організованих нацистами, а також склала «список спостереження» – базу даних про майже 70 000 підозрюваних переслідувачів держав Осі, щоб відмовляти у видачі віз або відмовляти підозрюваним у в’їзді в країну. В цьому столітті ця політика перетворилася на політику «відсутності притулку» для сучасних порушників прав людини після Другої світової війни, в той час як Міністерство внутрішньої безпеки проводить правоохоронні операції проти сотень підозрюваних у злочинах:

З 2003 року ICE заарештувала понад 415 осіб за порушення прав людини, відповідно до різних кримінальних та/або імміграційних законів. Протягом того ж періоду ICE отримала накази про депортацію та депортувала зі Сполучених Штатів понад 990 відомих або підозрюваних порушників прав людини. Крім того, ICE сприяла виїзду ще 152 таких осіб зі Сполучених Штатів.

Конгрес також міг би профінансувати і вимагати від Міністерства юстиції, Держдепартаменту та Міністерства внутрішньої безпеки створити подібну базу даних про підозрюваних російських військових, відповідальних за воєнні злочини в Україні.

В той час, як політика «відсутності притулку» покладається в основному на виконання імміграційних законів, в тому числі тих, які роблять неприйнятними в Сполучених Штатах тих, хто вчинив геноцид, катування та вбивства, сьогодні Відділ з прав людини та спеціального переслідування Міністерства юстиції США – організація-правонаступник OSI – має юрисдикцію за законами про катування, воєнні злочини, геноцид та дітей-солдатів (хоча вона ще ні разу не ініціювала справу про геноцид, воєнні злочини або використання дітей-солдатів і розслідувала лише приблизно чотири випадки катування в історії).

Як у випадку Другої світової війни, так і у випадку сучасних конфліктів, коли ті, хто перебуває на полі бою в Україні, приїдуть до Сполучених Штатів, є питанням часу. Після пандемії імміграція з часом збільшиться, і, як ми бачили раніше, зловмисники спробують видати себе за біженців, які рятуються від війни. Деякі з них приїдуть до Сполучених Штатів і повинні бути притягнені до відповідальності. Інші можуть не приїхати через страх перед судовим переслідуванням. В будь-якому випадку, якщо в законі буде чітко прописано, що воєнні злочинці та кати, які вчиняли злочини в Україні підлягають судовому переслідуванню, політика «відсутності притулку» буде збережена, а це перемога для політики США. За будь-яких обставин Сполучені Штати повинні мати можливість переслідувати їх за допомогою повного набору інструментів, наданих Конгресом.

Фото: Генеральний прокурор США Меррік Гарланд (L) розмовляє з головою судового комітету Сенату сенатором Діком Дурбіном (D-Ill) перед засіданням судового комітету Сенату на тему «Нагляд за діяльністю Міністерства юстиції Сполучених Штатів», 27 жовтня 2021 року. (Том Бреннер/ Pool/AFP через Getty Images)

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Про автора:

Едгар Чен раніше працював радником помічника генерального прокурора з кримінальних справ, а також в Управлінні законодавчих справ і відділі прав людини та спеціальних розслідувань в Міністерстві юстиції США.

The post Як Міністерство юстиції може переслідувати росіян за воєнні злочини і як Конгрес може розширити свої повноваження appeared first on Just Security.

Last week, the House Foreign Affairs Subcommittee on Europe, Energy, the Environment, and Cyber held a congressional hearing entitled, “Early Signs of War Crimes and Human Rights Abuses Committed by the Russian Military During the Full-Scale Invasion of Ukraine.”

The Subcommittee heard from a panel of war crimes experts who focused on the horrors of widespread and indiscriminate shelling of civilians, deployment of cluster munitions, dumb bombs, and other targeting issues. But buried within the testimony of witness Christo Grozev, Bellingcat’s lead Russia investigator and executive director, was a sentence alluding to evidence of alleged torture committed against civilians:

We have also received private videos and photographs, as well as direct witness reports, parts of which we have been able to also verify, that may likely constitute war crimes. These include photographs of bodies of civilians with clearly visible signs of torture and mutilation, which were geolocated and timestamped to areas and times where troops from the so-called Spetsnaz units of Chechnya’s leader Ramzan Kadyrov had been located just hours earlier (time stamp 26:10).

Unlike so many other images of destruction posted online, this evidence, Grozev testified, had not been uploaded to social media by witnesses due to fear of reprisals. He made these images privately available to members of the congressional committee, and they have since been made public on the committee’s website.

In addition to the allegations of torture set forth in last week’s hearing by Bellingcat, last year, the United Nations documented systematic abuse of prisoners, including torture, at the Izolyatsia prison in the Donetsk region, which is controlled by Russian-backed separatists. Deputy UN High Commissioner for Human Rights Nada al-Nashif, addressing the UN Human Rights Council last July stated:

We are gravely concerned that egregious violations of torture and ill-treatment documented in the ‘Izoliatsiia’ facility in Donetsk, as well as in other places of detention in territory controlled by the self-proclaimed ‘republics’, continue on a daily basis, and are carried out systematically.

In terms of accountability mechanisms to address such violations, another witness, Georgetown Professor of Government Anthony Clark Arend testified about the reach of both the International Criminal Court as well as countries such as Germany, Spain, and the Netherlands potentially exercising universal jurisdiction. He suggested that the United States could also exercise its own domestic jurisdiction, most likely under the war crimes statute, codified at 18 U.S.C. 2441 which punishes violations of the Geneva Conventions. That law, however, requires that either the perpetrator or the victim be an American national. In other words, Russians committing the most egregious war crimes against Ukrainians are currently beyond that law’s jurisdiction.

Under the United States torture statute, 18 U.S.C. 2430A, however, no such nexus to nationality is required as all that is needed for the United States to exercise jurisdiction against an alleged torturer is that the perpetrator be a U.S. national or else someone “present in the United States.” As long as the perpetrator is located in the United States, the Justice Department can prosecute them, irrespective of whether or not they, or the victim is an American national. But they must be found in U.S. territory first.

With Congress seeking to do more to hold Russia accountable for the horrific human rights violations unfolding every day in Ukraine, clarifying and strengthening the jurisdiction of both the torture and war crimes statutes involves a simple statutory fix to ensure that the United States will be able to bring perpetrators of egregious human rights abuses to justice. Indeed, this reform is long overdue and includes amendments previously encouraged by the Department of Defense and Department of State.

Reform 1: Expand the Jurisdictional Reach of the War Crimes Statute

As Professor Arend testified, the war crimes statute should be amended to include “present-in” jurisdiction so that any war crimes suspect located in the United States can be prosecuted. This would harmonize the reach of the law to be consistent with the existing jurisdictional scope of domestic U.S. laws against torture, genocide, and the use of child soldiers. In fact, the Department of Defense, in commenting on the original war crimes legislation in 1996 explicitly urged that the:

jurisdictional provisions should be broadened from the current focus on the nationality of the victims of the war crime. Specifically, we suggest adding two additional jurisdictional bases: (1) where the perpetrator of a war crime is a United States national (including a member of the Armed Forces); and (2) where the perpetrator is found in the United States, without regard to the nationality of the perpetrator or the victim (emphasis added).

The rationale that the Department’s General Counsel gave for “present-in” jurisdiction was because it “is required in order to be in compliance with our international obligations.” The State Department also supported “present-in” jurisdiction for war crimes. Like the DoD General Counsel, the State Department’s Principal Deputy Legal Adviser told Congress that doing so “would ensure the ability of the United States to fulfill our obligations under the 1949 Geneva Conventions and other international agreements” and would “ensure that the United States cannot be a safe haven for those who have committed violations of the laws of war.”

That said, the Justice Department can – and should — investigate whether the Russian military’s killing and maiming American journalists and other U.S. civilians in Ukraine was intentional or reckless and, hence, a war crime within the existing jurisdiction of the statute. To be clear, it is not necessary to prove that the attackers knew the victims were Americans or journalists, only whether the attackers targeted them as civilians.

Reform 2: Expand the Jurisdictional Reach of the Torture Statute

The second jurisdictional update would be to expand the torture statute so that it can be triggered if the victim is an American national. This would allow an investigation and prosecution for torture to proceed without depending on the perpetrator first being present in the United States. For example, in the putative case of a non-US abuser who has tortured American citizens abroad – it is unclear that they could be extradited to the United States since the suspect would neither be a U.S. national, nor present in the United States at the time. Clarifying that jurisdiction exists if there is a U.S. victim would prevent any confusion. As has been the case with other crimes, authorities have been able to extradite wanted suspects, often waiting years for an offender to make a travel mistake and visit a country with an extradition treaty (the U.S. does not have an extradition treaty with Russia or Ukraine.)

With more Americans joining the war as combatants or helping deliver humanitarian relief, it is easy to contemplate their being captured and tortured. Torture as has been documented, is already part of the rights abuse landscape in the broader Ukrainian conflict.

Such changes to the war crimes or torture statutes would not violate the prohibitions against ex post facto criminalization. Such amendments do not declare unlawful what had been lawful before. They merely define U.S. domestic jurisdiction over crimes that are universally unlawful and already prohibited by the two statutes (both define the respective offence to include “whoever” outside the United States commits the relevant acts).

The Justice Department could, under current authorities, investigate and prosecute the torture of any American national in Ukraine as torture is explicitly prohibited under the war crimes statute and an armed conflict exists.  If an American national is detained in Russia however, and tortured by Russian authorities, jurisdiction would not apply unless the perpetrator arrives in the United States.

Other gaps can certainly be filled in the federal criminal human rights accountability landscape, as former U.S. War Crimes Ambassador David Scheffer argued in calling on Congress to enact crimes against humanity legislation in Just Security last fall. Senate Judiciary Committee Chairman Dick Durbin has long been a champion, but if that legislation cannot move this Congress, the simpler harmonization of jurisdiction for war crimes and torture can and should be enacted – not only to bring justice for Ukrainian war crimes victims, but also to ensure that the United States has the ability to prosecute those who would commit torture against American nationals in Ukraine and elsewhere.

Will the United States ever have the opportunity to exercise that jurisdiction for crimes committed in Ukraine? For decades now, the stated policy of the United States has been to prevent and deter the entry of human rights violators into this country. Following the Second World War, the Displaced Persons Act of 1948 was enacted to address the need to handle millions of refugees uprooted by the conflict but specifically barred those who assisted in the persecution of civilians from qualifying to receive a visa to come to the United States. Still, hundreds if not thousands of alleged perpetrators were able to circumvent vetting and lie their way into the country claiming to be legitimate refugees.

The problem was so great that the U.S. Department of Justice’s Office of Special Investigations (OSI) was established in 1979 to remove those who assisted in Nazi-sponsored acts of persecution. OSI has taken legal action against over 130 participants in Nazi-sponsored persecution and also compiled a database of nearly 70,000 suspected Axis persecutors to a “watchlist” to deny visas or turn away suspects at ports of entry.  Well into this century, the policy has evolved into one of “no safe haven” for post-World War II, modern-day human rights violators as well, with the Department of Homeland Security carrying out law enforcement operations against hundreds of suspected perpetrators:

Since 2003, ICE has arrested more than 415 individuals for human rights-related violations of the law under various criminal and/or immigration statutes. During that same period, ICE obtained deportation orders against and physically removed more than 990 known or suspected human rights violators from the United States. Additionally, ICE has facilitated the departure of an additional 152 such individuals from the United States.

Congress could also fund and require the DOJ, State Department and DHS to create a similar database of suspected Russian military personnel who are responsible for war crimes in Ukraine.

While no safe haven relies largely on enforcement of immigration laws including those making inadmissible to the United States those who committed genocide, torture, and extrajudicial killing, today, OSI’s successor organization, the DOJ’s Human Rights and Special Prosecutions Section has jurisdiction to prosecute the torture, war crimes, genocide, and child soldiers laws (although they have never brought a substantive case for genocide, war crimes, or use of child soldiers and have only prosecuted approximately four torture cases in history).

Like in the World War II cases and modern-day conflicts, it may simply be a matter of time before those on the battlefield in Ukraine find their way to the United States. After the pandemic, immigration will eventually increase and as we’ve seen before, perpetrators will disguise themselves among the masses of refugees fleeing war. Some will come and should be prosecuted once in the United States. Others may not come for fear of prosecution. In either case, if the law is clear that war criminals and torturers from the Ukraine war face such criminal sanctions, the no safe haven policy will be maintained –a win for U.S. policy. Under any circumstance, the United States should have the ability to prosecute them with the full panoply of tools Congress has provided.

Photo credit: US Attorney General Merrick Garland (L) speaks with Senate Judiciary Committee Chairman Senator Dick Durbin (D-Ill) before a Senate Judiciary Committee hearing on “Oversight of the United States Department of Justice,” Oct. 27, 2021. (Tom Brenner/Pool/AFP via Getty Images)

The post How DOJ Could Prosecute Russians for War Crimes, and How Congress Can Expand Its Remit appeared first on Just Security.

The Connecticut Veterans Legal Center’s (CVLC) Veterans Inclusion Project recently released the revelatory report, “Gatekeepers to Opportunity: Racial Disparities in Congressional Nominations to the Military Service Academies.” Working with the Veterans Legal Services Clinic at Yale Law School, CVLC analyzed the little-studied and often opaque congressional process by which nearly three quarters of the cadet and midshipman classes are recommended for admission to the nation’s elite military academies: the United States Military Academy (West Point), the United States Naval Academy, and the United States Air Force Academy. Following a prior CVLC Gatekeepers report on gender disparities in the nominations process, the new data revealed just how few students of color are being recommended. The repercussions of these choices can be seen in today’s military leadership.

The report utilized over 20 years of academy and Department of Defense (DOD) data obtained through Freedom of Information Act (FOIA) requests and litigation and focused on legislators who have nominated 10 or more applicants to the military service academies. Its findings were stark. Congress awarded Black students only 6 percent of total nominations and provided only 8 percent to Hispanic students, despite the fact that Black and Hispanic students comprise 15 percent and 22 percent of the U.S. population aged 18 to 24, respectively. Two hundred nineteen of the 371 members of Congress included in this report’s analysis granted less than 5 percent of their nominations to Black students and 49 members did not nominate a single Black student; 182 members of Congress nominated less than 5 percent Hispanic nominees, and 31 did not nominate a single Hispanic student. In contrast, 43 percent of the enlisted active-duty personnel are people of color.

The U.S. military has long been considered at the forefront of advancing opportunities for people of color, leading the way for integration before the civil rights era, and producing prominent military and national leaders including Generals Benjamin Davis, Colin Powell, Eric Shinseki, and current Defense Secretary Lloyd Austin. Persons of color have long served valiantly in the military and given their lives in defense of this country. Recall that the first casualty of the American Revolution was a Black man, Crispus Attucks, and that many of the 54th Massachusetts Infantry Regiment, the Tuskegee Airmen, and the 442nd Infantry (Japanese American) Regiment (the most highly decorated for its size) gave their last full measures of devotion to a nation that had enslaved, segregated, and interned them. Despite its reputation as a vanguard of meritocracy – where the only color that matters should be camouflage – today’s armed forces continue to be plagued by systemic racism. This includes discrimination in the military justice system, as discussed previously in Just Security, the troubling finding that nearly one-third of active-duty personnel recently surveyed have witnessed examples of white nationalism or ideologically driven racism in the ranks, or the striking racial and gender composition of the overwhelmingly White and male officer corps.

The key to addressing these disparities is cultivating leadership and appropriate representation that reflects the makeup of our country and armed forces. As Defense Secretary Austin stated during his confirmation process, “recruiting a force reflective of the Nation serves as a critical component of our national security strategy.” His call for a military that represents the country it protects is being realized within the highly diverse enlisted ranks, but has fallen far short in the officer corps. This problem was identified in a 1972 DOD Task Force Report on racial inequality in the military justice system which concluded:

the armed forces comprise an institution of society, which is largely white at the top and in the middle, but is becoming increasingly diverse racially toward the bottom…. minority enlisted men’s attitudes towards an officer corps, which is easily observed to be almost entirely white …. will, inevitably in our judgment, resent leadership by a corps which does not contain a proportion of minority officers nearly equivalent to the proportion of minority members in the service… this causes a distrust of … the military system.

During the Obama administration, the official position of the government in affirmative action cases specifically cited to the service academies need to recruit highly qualified and diverse student bodies, prepared to lead a diverse force. An absence of unit cohesion and trust in the military between commanders and the rank and file presents a serious national security risk.

Congress, with its power to nominate applicants to the academies, plays a pivotal role in addressing that risk.

Admission to the academies is extremely competitive and requires both scholastic achievement and physical ability. A nomination to one of the academies is also required and must be provided by a member of Congress, or a non-congressional recommender, including the president, vice president, academy superintendent, or several other military-related sources. The ability to obtain one of these nominations requires access to the highest levels of political power in the nation. It’s no surprise that some guidance for obtaining a nomination has suggested utilizing family connections to representatives and senators and, in a system that privileges such access, White students received 74 percent of all nominations, despite only comprising 54 percent of the American population aged 18-24.

Securing a nomination is an essential step to getting into one of these elite military institutions. After applications are submitted, a selection process occurs, and it appears that through this, the academies are able to create a student body that more closely resembles the country’s diversity. However, the institutions are still disproportionately White, some more than others. The U.S. Air Force Academy and the U.S. Naval Academy have shown less progress than West Point in increasing the representation of Black cadets and midshipmen. The Air Force Academy’s 2010-2011 12-month enrollment was 6 percent Black, 8 percent Hispanic, 8 percent Asian or Pacific Islander, and 75 percent White. In 2018-2019, its cadets were 6 percent Black, 11 percent Hispanic, 6 percent Asian or Pacific Islander, and 63 percent White. Similarly, the U.S. Naval Academy’s 2010-2011 enrollment was 6 percent Black, 12 percent Hispanic, 5 percent Asian or Pacific Islander, shifting only slightly in 2018-19 to 7 percent Black, 12 percent Hispanic, 8 percent Asian or Pacific Islander, and 63 percent White. West Point has seen the largest rise in Black cadets—in 2010-11, its 12-month enrollment was 6 percent Black, 8 percent Hispanic, 8 percent Asian or Pacific Islander, and 75 percent White. In 2018-19, West Point was 12 percent Black, 10 percent Hispanic, 8 percent Asian or Pacific Islander, and 63 percent White. It is clear that the academies are somehow producing classes that are more diverse than the congressional nominations, but, without greater transparency into the nomination and selection process, and the data underlying it, it is unclear why. Even still, the disparity remains.

This creates significant downstream effects, as access to the academies has a significant impact on the future leadership of the military. While the three elite military academies only account for 20 percent of the officer corps, they disproportionately produce the leaders who eventually rise as the top brass in the Pentagon and who lead the military’s most prestigious commands.

So, what can be done to close the racial gap? Following the first Gatekeepers report, CVLC championed the PANORAMA Act legislation, introduced by Rep. Anthony Brown (D-MD) and Sen. Kirsten Gillibrand (D-NY), which was enacted into law as part of the National Defense Authorization Act of 2021. It begins the process of increasing transparency and pulling back the veil on what the data reveals. It requires, in part:

• The establishment of one central portal for members of Congress and non-congressional nominators to nominate students to all three academies, streamlining the highly decentralized nominations process. The portal will also collect and retain demographic data about each member’s nominations from year to year. Though this individualized data will not be publicly reported, the data collection and retention will allow each member to review their own nominating patterns and trends over time;
• The adoption of uniform coding for racial and ethnic data. Currently, each school labels nominees’ races and ethnicities differently, making cross-academy comparison or combined analysis difficult. In the Department of Defense’s ongoing efforts to foster diverse military leadership, understanding and comparing how nominations are granted to future officers at each of the academies is a critical first step. The service academies have not followed the racial and ethnicity classification standards established by the Office of Management and Budget (OMB) in the collection of their admissions data, but will now be required to. This is not an issue confined to the academies, as a 2019 GAO report on racial disparities in the military justice system noted that, “The military services did not collect consistent information about race and ethnicity in their investigations, military justice, and personnel databases.” In particular, the number of potential responses for recording race and ethnicity across 15 separate military databases ranges from five to 32 options for race and two to 25 options for ethnicity. This change will also bring the academies’ data collection practices into line with existing federal standards for racial and ethnic data reporting; and
• That the Department of Defense publish an annual report detailing the aggregate racial and gender demographics of nominations for the most recent application year. These yearly data will better illuminate Congress’ role in promoting diverse candidates to the academies.

These are important first steps that will increase transparency and will help congressional offices and the DOD better recognize demographic patterns in the nominations process. Obstacles remain, however.

The nominations process is highly decentralized, inconsistent, and opaque. There are 435 members of the House and 100 Senators, as well as five delegates and one Resident Commissioner in Congress, and therefore, there may be as many as 541 different processes, criteria, and standards for obtaining a congressional nomination. While the PANORAMA Act will illuminate who is being nominated, it does not address how they are being chosen. Each congressional office sets its own selection process. In most offices, staffers assess, interview, and recommend the candidates with very little interaction from the legislator. Based on interviews with several congressional offices, the report found that staff members frequently employ a “holistic” model that evaluates qualifications such as character, scholarship, leadership, physical aptitude, medical fitness, and motivation. However, as former Representative John Hall (D-NY) stated, the “x factor” for applicants is often leadership ability. But how does one measure “leadership” or “character” in an objective fashion? If, for instance, an example of leadership is participation in extracurriculars, how would a staffer consider students who come from schools that lack resources to fund clubs, sports, or other after-school activities?

Reliance on “x factors” appears to dangerously mirror what has been described by current Black Air Force pilots as the “good dude factor,” which requires that in addition to professional aviation competency, an individual pilot in a flying squadron must “blend in with the community socially” – a prerequisite to promotional opportunities. This exposes Black pilots to highly subjective assessments and instructions, including as to how they speak or smile so as not to appear intimidating.

This is why one of the most important recommendations of the report is to have congressional staff and other panelists who are conducting interviews to undergo implicit bias training to recognize nontraditional markers of academy qualification and to avoid basing their decisions on their own implicit biases rather than the potential of the applicants.

Finally, there is also a key piece of data that remains outside of the reach of the public. Because congressional offices are not subject to FOIA, the report could not ascertain how many students of color applied for congressional nominations. The PANORAMA Act does not address this problem, although the CVLC Report does raise it and tries to take into account nominations relative to the district and state demographics.

Congress is the gatekeeper for the most elite of the military officers corps – they help determine the composition of the overwhelming majority of the academies’ cadets and midshipmen, and then decades later, confirm the commissions of these same people to general officer positions. We hope this report will be instructive to congressional offices and the DOD whom we encourage to examine and implement its recommendations. As for the 80 percent of the other officers who did not graduate from an elite military academy but instead received their commissions through ROTC, Officer Candidate School, through direct commission, or other means – one need only look at institutions such as the Virginia Military Institute, where the superintendent resigned in the wake of allegations of systemic racism at the school, including threats about lynching, vicious attacks on social media, and even a professor who spoke fondly of her family’s history in the Ku Klux Klan — to see that racial discrimination permeates nearly every corner of how the officer corps is selected and educated. These horrific allegations mirror those brought to light by a group of recent West Point graduates in their manifesto calling for an anti-racist West Point.

When President Harry Truman ordered the integration of the armed forces in 1948, the military helped blaze the trail of integration that other American institutions belatedly followed. But the work remains unfinished. At a time when the country is reexamining institutional racism in light of the Black Lives Matter movement, Congress must consider how its own actions have historically contributed to racial disparities in the composition of the nation’s officer corps, and recognize that they now have the ability, tools, and responsibility to help build a more representative military leadership. Congress can play an essential role in helping to shape an elite officer corps that looks like the soldiers, sailors, airmen and marines in the ranks, and the country they so valiantly serve.

The authors of this piece would like to acknowledge the dedication and hard work of the Veterans Legal Services Clinic at Yale Law School: Kyla Eastling, Lauren Blazing, Sarah Purtill and Teddy Brokaw.

Image: President Donald Trump hosts Department of Defense leadership at the White House on October 7, 2019. 

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Biden will choose from a pool of many qualified individuals. But, in our view, the key credentials of the next AG should be significant prosecutorial experience at the federal or state level and an abiding fidelity to the apolitical administration of justice, even if doing so results in outcomes that do not politically benefit the new administration. Such a choice would go a long way toward reassuring the public and rank-and-file DOJ attorneys and law enforcement agents that the incoming leadership understands that the Department’s mission is to pursue impartial justice, guided by evidence and law, free from partisan considerations.

There may be no agency head more central to the effective functioning of American democracy than the attorney general. As the nation’s chief law enforcement officer, the AG must make real the constitutional promises of equal protection and due process under law. Once the AG emerges from the political process of presidential appointment and Senate confirmation, he or she must abstain completely from partisanship. The DOJ’s Justice Manual spells this out clearly: “The rule of law depends upon the evenhanded administration of justice. The legal judgments of the Department of Justice must be impartial and insulated from political influence.”

Every day the attorney general is confronted with decisions testing his or her commitment to this ideal. Robert Jackson, who held the position before his appointment to the Supreme Court, once observed:

The prosecutor has more control over life, liberty, and reputation than any other per­son in America. His discretion is tremendous. He can have citizens in­vestigated and, if he is that kind of person, he can have this done to the tune of public statements and veiled or unveiled intimations. Or the prosecutor may choose a more subtle course and simply have a citizen’s friends interviewed.

Any hint that political considerations influenced a prosecutorial decision undermines public confidence in the even-handed administration of justice.

Because the role of the attorney general is so sensitive, the positon should be filled by individuals who need no on-the-job training. Both of the Senate-confirmed attorneys general who served during the Obama administration — Eric Holder and Loretta Lynch — had served as career federal prosecutors for significant periods in their careers. Both came up through the ranks and understood what it means to work in the trenches. Both possessed the knowledge, skills, and experience needed to win the confidence of the thousands of career public servants who carry out the day-to-day work of the Department. And both understood their roles as stewards of the Department’s core value of fair and impartial administration of justice free from partisan political considerations. [Full disclosure: Ronald Weich, one of the authors of this piece, led a team assisting Holder through the Senate confirmation process and co-author Edgar Chen was part of the DOJ Legislative Affairs team handling Lynch’s confirmation.]

The core value of nonpartisan justice has been sorely tested in recent years. The outgoing attorney general argued recently that career prosecutors could not be entrusted with difficult decisions and that political control over law enforcement was necessary and desirable. Meanwhile, Trump himself famously lamented, “Where’s my Roy Cohn?” in seeking an attorney general whose first priority would be to serve as fixer and personal lawyer for the president. Paradoxically, Trump held a misguided admiration for the relationship between Holder and President Barack Obama, erroneously viewing it as one of personal fealty and believing that protection of the president was the principal criteria for leading the DOJ: “I will say this: Holder Protected President Obama. Totally protected him…. Holder protected the president. And I have great respect for that, I’ll be honest.” This statement revealed the president’s deeply flawed and sub-elementary grasp of concepts such as rule of law. Holder got the last word: “I had a president I did not have to protect.”

While Holder was indeed a trusted adviser to Obama, that role was separate from his duties as attorney general. Holder, who had come up through the Department as a career public corruption prosecutor and later served as U.S. Attorney for the District of Columbia and deputy attorney general, took great pains to ensure that law enforcement decisions were strictly insulated from White House participation. In fact, there are several notable instances when Holder acted in a manner that did not favor Obama’s or the Democratic Party’s political interests.

Those events include:

• The dismissal of charges against Alaska Republican Senator Ted Stevens. Stevens had been convicted of failing to disclose gifts received from an oil services company. Holder ordered the dismissal of the charges after it came to light that the prosecution team failed to provide potentially exculpatory materials to Stevens’ defense. In the wake of these Brady disclosure failures, Holder also ordered a comprehensive review of discovery practices and instituted additional rigorous training for all prosecutors on their obligations to defendants. It is notable that Holder began his prosecutorial career in the same office (Public Integrity) responsible for the Stevens prosecution.
• The conviction of Alabama Democratic Governor Don Siegelman. Siegelman had been convicted of bid-rigging and fraud, but argued that his prosecution by the George W. Bush administration was politically motivated. An extensive review by the DOJ’s career-led Office of Professional Responsibility (OPR) concluded that evidence did not demonstrate that the investigation and prosecution of Siegelman was pursued for political purposes, although OPR did find some instances where prosecutors did not exercise prudent judgment. Holder faced pressure from Democratic politicians, and even the New York Times editorial board to reopen the case. Holder did not intervene.
• The prosecution of former Democratic Senator John Edwards. Edwards was indicted on campaign-finance related charges. Holder recused himself from the matter because he had participated in vetting Edwards as the Democratic nominee for vice president in 2004. This decision mirrored Attorney General Jeff Sessions’ later recusal from the Russia probe since he served as an adviser to the 2016 Trump campaign.

In all these cases, decisions by the attorneys general (and we use the plural here to include Session’s correct recusal) were based on ethics rules; respect for the non-partisan, apolitical work of career investigators, prosecutors, and professional responsibility officials; and the willingness to buck political affinity in order to adhere to established principles, and in the case of the Stevens prosecution, overturning the decisions of career prosecutors only because clear and blatant ethics or judicial violations were unambiguously documented.

In recent days, career prosecutors have demonstrated their commitment to the apolitical administration of justice.  When Attorney General Barr took the unprecedented step of authorizing federal prosecutors “to pursue substantial allegations of voting and vote tabulation irregularities prior to the certification of elections,” contrary to longstanding DOJ policy, the Director of the Department’s Elections Crimes Branch resigned in protest and at least 16 career federal prosecutors assigned to monitor elections offered a public rebuke of Barr’s action, arguing the need to avoid “speculation that it was motivated by partisan political concerns.”  These career civil servants placed principle over partisanship, even at great risk to their livelihoods.  Whomever Biden selects as AG must share their determination to do the right thing, even at the risk of offending the occupant of the White House.

The Department of Justice is the only federal agency named after an ideal. The next attorney general should remain true to that ideal and follow in the examples described above by previous attorneys general and career prosecutors who have risked their positions and indeed careers to do what is right, in order to preserve the constitutional principles upon which justice in this nation is predicated.

Image: The Justice Department building on a foggy morning on December 9, 2019 in Washington, DC. Photo by Samuel Corum/Getty Images

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While democratic processes and accountability are critical to the functioning of government, Barr’s remarks failed to recognize that the fair administration of justice, guided by an impartial examination of evidence — and not the passions of the electorate — is a necessary restraint against prosecutions motivated by political impulse.

Barr excoriated experienced career civil servant prosecutors, portraying them as children who should have no role in final decision-making because they lack the political legitimacy to do so. Instead, he argued, only Presidentially Appointed and Senate-confirmed appointees, such as the attorney general, possess the imprimatur of approval by two branches of government chosen by the electorate, and therefore, embody the ultimate will and power of American democracy. Bureaucrats, in this case federal prosecutors, are not subject to removal by the electorate and therefore the only accountability they face, according to Barr, is from political appointees. In the case of the Justice Department, the attorney general has stated that he is the ultimate authority and accountable for every decision the Department makes. Barr claims the buck not only stops with him, but that he is the entire poker game. “All functions … of the Department of Justice … are vested in the attorney general,” he told the audience last week. Similar to President Donald Trump’s claim that he alone can fix the country, Barr’s Hillsdale College speech was his “l’état c’est moi” moment.

In a disquieting expression of his claim to exercise absolute personal control over the Justice Department and all of its organs of power, he remarked, “As I say to FBI agents, ‘whose agent do you think you are?’”  While the org chart may show the chain of command as headed by the Attorney General, as FBI Director Wray testified a day later, “we, the FBI, work for the American people.”  The attorney general’s inaccurate claims denigrating the ability and appropriateness of federal prosecutors to make certain litigation determinations are merely a fig leaf to justify the complete subjugation of what should be apolitical, evidence-driven, law enforcement decision-making to wholesale political influence.

Admittedly, elections have consequences and the attorney general is expected to exercise his prerogative as the president’s top law enforcement official to direct prosecutions and to ensure that the Justice Department’s activities support the administration’s policy agenda. However, even the most expansive reading of the attorney general’s ostensibly plenary authority over prosecutions should not permit politically motivated prosecutions, declinations, or other interference on partisan grounds. But, let’s start with where the attorney general is just plain wrong on how federal prosecutors operate and how they are held accountable.

Prosecutorial decisions, if not sacrosanct, usually have been put through the wringer

First, while federal prosecutors are not subject to recall at the ballot box, they face many layers of accountability that the attorney general’s speech completely ignored. Most importantly, they operate in an adversarial legal system where they are challenged by the defense bar, must follow federal rules of evidence and criminal procedure, stand before the public in the form of grand and petit juries, and are ultimately policed by the third constitutionally prescribed branch of government: the judiciary. And that is just if they want to go to court.

Second, before they even get to court, the “junior” prosecutors whom Barr contemptuously believes are trying to “set the agenda,” are supervised by senior prosecutors, who report to section chiefs, who report to U.S. Attorneys, or deputy assistant attorneys general, and so on, all the way up to the attorney general. Barr claims that the career prosecutors are likely to succumb to “a temptation to will a prosecution into existence even when the facts, the law, or the fair-handed administration of justice do not support bringing charges” merely because they are convinced of the righteousness of their cause. But, the DOJ’s own Justice Manual (“Manual”), previously known as the United States Attorneys Manual (“USAM,”) provides that prosecutors should commence a federal prosecution if, and only if, they have sufficient evidence to prove beyond a reasonable doubt that a federal crime has been committed. Without sufficient proof, it is a federal prosecutor’s ethical responsibility not to bring an action. In deciding whether to bring a case, a federal prosecutor must also consider whether there is a substantive federal interest in bringing the case, or if there are alternatives to federal prosecution. Prosecutors are required to draft prosecution memoranda outlining the merits of their cases, and then they must lay out the weaknesses of their own case and anticipated defenses. These memoranda are reviewed by supervisors, often including political appointees.

As they decide whether to initiate or decline a case, prosecutors are guided by the Principles of Federal Prosecution, which require them to consider such factors as the nature and seriousness of the offense; the deterrent effect of prosecution; the person’s culpability, criminal history, and cooperation; as well as victim interests and how the case supports law enforcement priorities. These are responsibilities and decisions that are delegated to line prosecutors. In most cases, they should be, as last year alone, the Justice Department filed nearly 70,000 federal criminal cases, not to mention nearly as many civil enforcement actions in addition to thousands of non-public investigations that are ongoing.

If the attorney general does not trust the thousands of Assistant U.S. Attorneys, and Main Justice trial attorneys to carry out each of these prosecutions and investigations in a competent and ethical way, he and his political staff are free to review each and every one of these cases. But they don’t. That is because, in the overwhelming majority, the federal prosecutors and case agents have methodically built strong prosecutions through months- or even years-long, diligent investigations, combing through tens of thousands of pages of documents, reviewing hundreds of hours of surveillance footage, and putting in the tedious gumshoe and legal work necessary to keep the country safe from crime and terrorism.

Despite all of this, Barr said “the notion that line prosecutors should make the final decisions at the Department of Justice is completely crazy.” It is arguably not as crazy as the idea that political appointees, some of whom have never prosecuted a criminal case before, should be in the habit of second guessing the tens of thousands of prosecutions brought each year by line prosecutors who know their communities and cases inside out, who have interviewed the witnesses and know better than anyone their strengths and flaws, who have reviewed terabytes of documentary evidence, and have worked the matters for years, simply because those prosecutors aren’t political animals. Oversight and supervision are good and necessary – no one disagrees that a fresh set of eyes can overcome myopia — but assuming that seasoned criminal prosecutors lack the ability to make difficult, high-stakes decisions because they are not somehow accountable is unsupported conjecture.

Third, we are not yet done enumerating the list of existing checks and balances on federal prosecutors: Individual prosecutors face scrutiny from the Inspector General, for professional misconduct from the Office of Professional Responsibility, ethics sanctions from their own bar associations, and Justice Department conduct is subject to a regular barrage of oversight by Congress and the Government Accountability Office (GAO). Entities such as the IGs and GAO are creatures of Congress and thus by extension, the electorate. Prosecutors must seek approval from Main Justice components if they want a wiretap, if they want to file a terrorism or RICO case, bring a tax fraud case, or prosecute any case of significant national importance. If Barr scoffs at the notion that a prosecutor’s decisions are considered sacrosanct, it is because they have usually been thoroughly vetted, and then vetted again, including by political leadership.

In law enforcement, politics is not a moderating influence, it’s an aggravating factor

The attorney general argued last week that politics “is a constraining and moderating force” on law enforcement.  Yet Barr’s own speech decried

third world nations where new administrations routinely prosecute their predecessors for various ill-defined crimes. The political winners ritually prosecuting the political losers is not the stuff of a mature democracy.

On this point, the attorney general is correct. But his remedy of increasing political influence into prosecutions would only exacerbate the problem. While recognizing that the Department’s policy priorities may shift every four to eight years, overt political direction into who gets prosecuted or not is not a good look for the impartial credibility of the institution.

While Barr views political supervision of criminal prosecutions as a bulwark against bureaucratic tyranny, his characterization of all prosecutorial power vested in the personage of the attorney general, followed by his claim to own all FBI agents, is a chilling revelation of authoritarian tendencies. Sure, executive prosecutorial power is delegated to the attorney general, but just a reminder, federal agents and prosecutors take an oath to the Constitution and not to the president or the attorney general.

His point about control over FBI agents is particularly noteworthy because Congress, the other co-equal branch of government, has in its wisdom term-limited the FBI director to 10 years. This was not only in response to reining in future directors after J. Edgar Hoover’s 48-year position at the Bureau’s helm, but also to ensure that the director would outlast any individual presidential administration and thus not be subject to political pressure in bringing investigations.

The attorney general’s notion that politics works as a constraining and moderating influence on criminal prosecution is belied by the fact that he has done nothing to constrain or moderate the president’s suggestion to lock up his political opponents, and investigate federal law enforcement agents who deign to examine allegations of wrongdoing by the president’s allies. In a way, Trump’s vision of federal law enforcement is kind of like what the attorney general said occurs in “shithole” – sorry – third world countries.

How to Adult and/or How Not to Attorney General

The attorney general stated, “Good leaders at the Justice Department—as at any organization—need to trust and support their subordinates. But that does not mean blindly deferring to whatever those subordinates want to do.”  But would good leaders accept the opposite – that subordinates should unquestioningly kowtow to whatever their bosses desire, especially if those desires appear driven by personal, partisan, or other improper motivations? And good leaders also probably don’t publicly insult their employees.

Barr also stated that his role, in part, is to take political heat for the actions of the Justice Department. Attorneys general and their political underlings regularly appear before Congress to receive regimented oversight beatings because that’s what they do. They are the political face of the Department. But that role also ensures that career prosecutors are not placed in the awkward position of having their deliberations about sensitive law enforcement work dissected in a political arena. The job of the political official is undoubtedly to ensure that the administration’s priorities are being followed, but also to insulate the career prosecutors from political interference so those working on cases day in and day out can concentrate solely on following the evidence, and not have to worry about the policy or political optics. If this aligns slightly with Barr’s paternalistic view, it does only insofar as one of the political appointees’ principal roles is to protect the integrity of the non-political law enforcement workforce by parrying against partisan political oversight. But while the attorney general’s speech lays out a convincing argument for the appropriateness of a political presence in the Department’s work, beware the bait and switch, and attempts to shoehorn prosecutorial decisions that reflect political favoritism under the umbrella of political supervision.

The Justice Manual states that,

The legal judgments of the Department of Justice must be impartial and insulated from political influence. It is imperative that the Department’s investigatory and prosecutorial powers be exercised free from partisan consideration.

That is because the basis for deploying or declining to use the awesome power to deprive one of their liberty or life cannot be seen as subject to political whim.

The attorney general certainly has the prerogative to disagree with, and overrule his career prosecutors on decisions they make in their cases, which are filed under his name on the briefs, but brought on behalf of the United States. If however, of the 70,000 or so cases the Department prosecutes, he chooses to selectively focus on the several cases that personally benefit or harm the president — even if his interference is viewed as unseemly at worst — it still erodes public confidence in the non-partisan and evenhanded administration of justice. It is clear Barr is casting career prosecutors as bureaucratic bogeymen in order to justify increased political interference under the pretext of moderation.

If the attorney general does not want to turn the Department of Justice into a Montessori school, the first thing he should do is not treat experienced, dedicated, career prosecutors – you know, the ones who lock up terrorists, drug lords, and human traffickers – as children. Infantilizing these civil servants is the just the latest overt step in transforming the institution of justice into a political patriarchy.

Image: Attorney General William Barr holds a press conference at the Department of Justice in Washington, DC on January 13, 2020. Photo by Win McNamee/Getty Images

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In 1972, a task force commissioned by President Richard Nixon’s defense secretary sought to determine the nature and extent of racial disparities in the military justice system. The task force found that the key factors driving the disparities included inadequate educational and advancement opportunities and the resultant lack of diversity in the leadership corps. The 1972 DOD Task Force on the Administration of Military Justice in the Armed Forces was able to reach these conclusions despite being hampered by a lack of statistical information regarding race and ethnicity as kept by the services. (Barry K. Robinson, one of the authors of this piece, was an Air Force JAG officer assigned to the task force.)

This past June, nearly 50 years later, the House Armed Services (HASC) Military Personnel Subcommittee held a hearing entitled, “Racial Disparities in the Military Justice System: How to Fix the Culture.” One of the principal takeaways from the hearing was that a lack of reliable, consistent data stood in the way of pinpointing the root causes of these disparities. But DOD leadership need not wait for all the data to come in – it must to continue on listening tours of not only enlisted personnel and officers, but, as the task force did in 1972, speaking with chaplains, medical officers, and visiting small business owners and other community members to get a full picture of military life for minorities on and off-base. As Vice Chairman of the Joint Chiefs Gen. John Hyten recently implored personnel, “tell us exactly what’s bothering them.” These stories will be the most important data points to obtain.

Civilian and military policymakers must also turn to history for compelling examples of how proper leadership, even in the absence of all the data, can achieve powerful results, rather than re-inventing the wheel.

For instance, a year before the 1972 task force embarked on its work, the small but entire contingent of Black cadets then enrolled at West Point successfully halted the erection of a Confederate statue on the Academy’s grounds. In a case that eerily mirrors events of today, Nixon, their commander-in-chief, was seeking to build a monument to Confederate war dead as a way to curry the Southern vote in a re-election year. Fifty years later, a group of young West Point alumni, understanding and inspired by this history, petitioned West Point’s leadership to create an “anti-racist” institution. They, like their cadet predecessors as well as the 1972 task force, offer solutions that need not be predicated on first collecting enough data.

History repeating itself: Congress holds a hearing on racial disparities in the military justice system going over the same groundwork laid in 1972

At the June HASC hearing, a witness from the Government Accountability Office (GAO) testified that service members of color are twice as likely to face court martial as their White comrades and were also more likely to face non-judicial punishments meted out by commanding officers. According to the GAO’s written testimony, “Racial disparities exist in investigations, disciplinary actions, and punishment of service members in the military justice system.”

Despite these jarring statistics, the GAO testified that it was not in a position to determine whether these figures were the result of unlawful discrimination. It noted that DOD had taken some steps to study racial disparities, but “has not comprehensively evaluated the causes …to identify actions to address” them. On a second panel featuring Judge Advocates General from the U.S. Army, Navy, Air Force, and Marine Corps, the top ranking military lawyers from each branch also said they were not in a position to opine on the root causes of this disparity. As Army Lt. Gen. Charles Pede testified,

While [the GAO] reached no conclusion on the causes of these disparities, this report raises difficult questions – questions that demand answers. Sitting here today, we do not have those answers.

Air Force Lt. Gen. Jeffrey Rockwell echoed this sentiment, stating,

The fact that disciplinary racial disparity in the aggregate has persisted despite the adoption of significant institutional changes demonstrates the complex and challenging nature of the issue, symptomatic or indicative of one of many symptoms. The problem is daunting and complex; but that should not stop us from asking and exploring what we can do in military justice and the disciplinary process to serve as part of the solution set.

Congress has been actively legislating in this arena. Section 540I of 2020 National Defense Authorization Act directs the defense secretary to, among other things:

• establish criteria to determine when data indicating possible racial, ethnic, or gender disparities in the military justice process should be further reviewed; and describe how such a review should be conducted.
• conduct an evaluation to identify the causes of any racial, ethnic, or gender disparities identified in the military justice system;
• take steps to address the causes of any such disparities, as appropriate

In 1972, however, the Task Force on the Administration of Military Justice in the Armed Forces (“Task Force”) commissioned by then-Defense Secretary Melvin Laird, a Republican appointed by Nixon, asked and answered many of the same questions that seemingly continue to vex military and civilian policymakers nearly 50 years later. The Task Force’s charge was to:

• Determine the nature and extent of racial discrimination in the administration of military justice
• Assess the impact of factors contributing to disparate punishment
• Judge the impact of racially-related practices on the administration of military justice and respect for law, and
• Recommend ways to strengthen the military justice system and “enhance the opportunity for equal justice for every American service man and woman.”

The 1972 Task Force concluded that the

military does not stand apart from the society it serves and is not immune from the forces at work in that society. As long as there is racial discrimination in American society… there will be racial discrimination in the military.

The Task Force concluded that the military system does discriminate against its members on the basis of race and ethnic background – but, more often than not, that discrimination was not intentional, but systemic. While the military had led the nation in desegregation, and took other active measures to combat intentional discrimination, such as forbidding the use of racial epithets, it had long been slow to act to combat systemic discrimination. The Task Force identified testing, job assignments, and promotions as the primary “post-entry factors,” which exacerbated pre-entry factors such as societal racism, educational, and economic disadvantages, and era-specific factors such as the racial turmoil of the late 60s, the unpopularity of the Vietnam War, the draft, and military installations located in then-still segregated areas of the country and world. While in 1972 the Task Force found overt racism was not as widespread as systemic discrimination, in February of this year, a Military Times survey found that

more than one-third of all active-duty troops and more than half of minority service members say they have personally witnessed examples of white nationalism or ideological-driven racism within the ranks in recent months.

Fifty years ago, the Task Force grappled with many of the same questions that Congress and the military continue to struggle with today. Five areas highlighted by the Task Force in 1972 remained front and center in the June 2020 HASC hearing.

50 years later, racial disparity in the military justice system persists in strikingly similar ways

The GAO’s 2019 analysis concluded that racial disparity exists in the number of minority service members identified for punishment in the military justice system, but there was little disparity in the severity of punishment once in the system. The GAO also found that, “Black service members were more likely than White service members to be tried in summary courts-martial and to be subjects of non-judicial punishment in the Air Force and the Marine Corps.”

The 1972 Task Force found the same thing: “There is clearly a discernible disparity in disciplinary rates between black and White servicemen” but “no discernable disparity in quantum of punishment between White and minority servicemen for like infractions of the Uniform Code.” Likewise, a greater number of Black enlisted men receive non-judicial punishment. Alarmingly, the Task Force found that in the Army, of the White personnel reported for major military and civilian crimes, 23.3 percent were counseled (i.e. corrective action, short of punishment was taken by their commanders) compared to only 8.3 percent of Blacks reported for the same type of offense. In the Marine Corps 19.2 percent of incidents involving Whites resulted in non-judicial punishment, while only 10.4 percent of the incidents attributed to Blacks resulted in similar dispositions.

So, not only do the disparities continue across nearly five decades, but they appear to persist in the same pattern: Minority service members are more likely to be brought before the military justice system. Once within the system, however, the outcomes in terms of conviction rate do not differ, nor are punishments more severe for personnel of color than their White counterparts. The most disturbing statistic, however, is that the choice of whether to administer punishment, which is often up to the commander prior to invocation of the judicial system – appears to strongly disfavor Black and Hispanic personnel. For over a half century, DOD has been aware that personnel of color are more likely to face non-judicial punishment, and half as likely to be counseled rather than punished, as opposed to their White comrades.

As Gen. Pede testified, the Army is intensively focusing its attention to the “left of the allegation,” i.e. determining why there is an overrepresentation coming into the investigative system, or “left of the disposition decision to send someone to trial.” One possible reason he theorized? Implicit bias. The general noted that significant progress had been made examining implicit bias nearly a decade ago in the area of sexual assault and, as a result, implicit bias training is now replete throughout the armed services. We note that this occurred also in large part due to overwhelming advocacy, congressional scrutiny, and legislation.

Consistent and useful data remains as elusive 50 years later

In a May 2019 report, the GAO found that:

The military services did not collect consistent information about race and ethnicity in their investigations, military justice, and personnel databases. Thus, the military services are limited in their ability to identify disparities (i.e., instances in which a racial or ethnic group was overrepresented) in the military justice system. The military services were not required to, and thus did not, report demographic information that would provide greater visibility into potential disparities in their annual military justice reports.

In particular, the number of potential responses for recording race and ethnicity across 15 separate military databases ranges from 5 to 32 options for race and 2 to 25 options for ethnicity. For example, the Army’s personnel database maintains 6 options for race and 23 options for ethnicity, whereas the Coast Guard’s personnel database maintains 7 options for race and 3 for ethnicity. The military has used this data deficit to explain or justify why it can’t determine the root causes for the racial disparities that everyone acknowledges still exist. As the Navy’s JAG testified, “The GAO noted that consistent data could enable DoD and the services to evaluate the causes of disparities, and better position them to address the causes and help ensure that the military justice system is fair and just.” We knew this in 1972 when the Task Force did not allow this data deficit to stymie its conclusions.

In fact, one of the first findings of the 1972 Task Force was that, “Throughout our consideration of [factors contributing to disparities], the Task Force or the staff were hampered by the inadequacy or unavailability of statistical information regarding ethnicity or race as it is kept by the services.” [Emphasis added]. The Task Force report recommended that

Racial and ethnic identity codes be updated and a uniform system of data gathering be established to acquire data on a racial and ethnic basis concerning the military justice system and in other areas impacting on military justice, such as promotions, job assignments and administrative discharges.

While these identity codes appear to have been updated in the wake of the 1972 report, lack of data, or inconsistent recordation of such data across the services continues to be a problem, but one which did not prevent the Task Force from identifying the root causes of racial disparities in the system.

Lack of advancement opportunities are correlated to disparate punishment rates

Despite a general avoidance by witnesses in the June hearing to opine on the root causes of the disparities, bipartisan questioning coalesced around several that continue to plague the branches: career advancement opportunities and promotion rates. Republican Rep. Trent Kelly, himself a brigadier general in the Mississippi National Guard, insisted that the military must “figure out the root causes” for the disparities, but then noted that military occupational specialties hold the key to advancement: “What are we doing to get African American kids into the better jobs in the armed forces that lead to promotions?” he queried. “If you’re not a fighter pilot you’re probably not going to make general…if you’re not a submariner or surface ship guy you’re probably not going to make admiral.” Democratic Congressman Anthony Brown, himself a veteran, noted that Air Force promotion rates reflect the lack of inclusion stemming from the fact that less than 3 percent of the fighter pilot community is Black – and there are fewer fighter pilots of color today than there were Tuskegee Airmen during the Second World War. Lack of these opportunities in prestige tracks in turn leads to lack of role models and mentorship for soldiers, sailors, airmen, and marines.

In 1972, the Task Force reached the same conclusion. It identified “the four leading factors which contribute to disparity in punishment between minority and non-minority servicemen are: testing, job assignment, promotion and equal opportunity programs.” Notably, the Armed Forces Qualification Test (AFQT) was criticized as being culturally biased and testing more for majority cultural norms than actual aptitude. Future placements in military occupations were almost entirely dependent on this threshold test. Poor testing results led to placement in so-called “soft-core” military specialties as opposed to “more profitable and prestigious ‘hard-core jobs.’” The effect is to “to place a handicap on a serviceman who comes from other than a majority environment.”

The 1972 Task Force underscored the plight of the minority serviceman by quoting a Black sergeant:

When you come in, you take the AFQT. If you haven’t had a good background and a good high school or college education, or experience in electronics, into supply and transportation and other “soft-core” areas you go….I got a substandard education compared to the white NCO’s my age. They can progress because their better education put them in another career field where the progression rate is faster…In the administration field where I am in, my score has got to be phenomenal, or I am out of it, in terms of promotion. That is what is killing us.

The Task Force recommended that the defense secretary assist in facilitating access to improved education opportunities through all constitutionally acceptable means. While their focus was on helping racial and ethnic minority groups, providing greater access to education, including test-prep for recruits seeking it, should benefit all service members of any race coming from economically and educationally disadvantaged backgrounds.

Lack of minority officers

A related issue to that of being pigeonholed in military specialties with little hope of advancement is the dearth of minority officers. Democratic Congressman Gil Cisneros (also a veteran) lamented the lack of diversity in the officer corps noting that today 78 percent of the officer corps is White, 8 percent is Black, with even fewer Latino and Asian officers.

Again, it is exasperating to read the 1972 report and note that the Task Force observed:

It is not necessary to belabor the point of these statistics that the armed forces comprise an institution of society, which is largely white at the top and in the middle, but is becoming increasingly diverse racially toward the bottom…. Our purpose is to point out the effect on minority enlisted men’s attitudes towards an officer corps, which is easily observed to be almost entirely white. These men will, inevitably in our judgment, resent leadership by a corps which does not contain a proportion of minority officers nearly equivalent to the proportion of minority members in the service… this causes a distrust of both the military system and the military justice system.

Anti-Black backlash from late 1960s to 2020 West Point

Former Air Force chief prosecutor, retired Col. Don Christensen, testified that young officers in the JAG Corps and throughout the services depend on having mentors who can help them progress and ensure they have access to continuing professional development opportunities, which is key to promotion. However, he noted, at the very places dedicated to producing the next generation of military leaders, such as West Point, Black cadets continue to report horrific racial discrimination.

Nine days following the hearing, a group of West Point alumni issued a 40-page policy statement chronicling overt racial abuse experienced by cadets from enduring racial epithets to finding a noose placed in a Black cadet’s room, to, unsurprisingly, facing disparate and more severe punishments than White cadets who committed the same infractions. One of their principal objections was to endemic anti-Black backlash at the Academy, which often takes the form of a distorted paradox of cadets of color being heralded as examples of diversity and inclusion, but who themselves are not allowed to celebrate their own Blackness, which they are told is considered anathema to the ideals of a colorblind military. The wrote:

There are far too many recent examples of West Point publicly lauding the diversity of its graduates and its Corps of Cadets without protecting them from racist backlash. Just four years ago, the 16 Black women graduates in the Class of 2016 took a photo together, an annual commemorative event for this identity group, with their fists raised. The public leak of this photo led to immediate judgment and condemnation for allegedly making a political statement in uniform. These women faced an immense amount of public hatred and were threatened with expulsion from the Academy, just days before graduation, which would have caused them to incur huge debts to the military. Though they ultimately were not officially punished, the “Proud 16” should not be considered a historic milestone of institutional growth. The Academy failed to protect these cadets from or punish the racism that they experienced in the aftermath of this photo. It has never recognized the culpability in its own passivity which comes as a convenient by-product of White silence.

The 1972 Task Force similarly documented an anti-Black backlash in the military toward service members of color who deigned to express pride in their race:

Among blacks, there tends to remain the mistrust, fear, and suspicion of both white people and a white society which 300 years of inferior treatment have ingrained in them. And there is a new attitude which we believe would not have been so clearly observed ten years ago as it is today. It is an attitude on the par of many young black men and women of increasing pride in their blackness and rising defiance of white efforts, both real and perceived to relegate black to inferior roles. … there is a white backlash which is sometimes couched in symbolic terms that imitate black symbols of solidarity: “calls for white power” and “white power check salutes.” The interaction of these attitudes seem to create situations with whites and with white authority.

As we reviewed the 2020 West Point Anti-Racism platform side-by-side with the efforts in 1971 and 1972, we were struck not only by how hamstrung the military has been in their quest to eradicate both intentional and systemic racism, but how that discrimination continues to permeate almost every aspect of military life – from the disparities which have continued to foster an unequal military justice system to how service members of color continue be singled out – if not because of their skin color – but due to their hair.

Retired Army Capt. Mary Tobin relayed the experience of one recent Black female cadet who:

wore her hair in braids that conformed to Army regulations, but she was instructed to take them out. The cadet even provided the officer with the regulation because “as Black women, we have to keep the regulation in our pockets,” she says. “We know we’re going to be confronted about our hair.” Nevertheless, she says, a “white leader demanded that she take her braids out inside of a port-a-potty. And besides the humiliation of having to go through that, this leader was wrong.”

Last month, Esper directed a review as to whether grooming standards in the military are racially biased. This is another parallel which illustrates how little things have changed in a half century: The 1972 Task Force also identified regulation of personal appearance – especially hair – as a major irritant depressing morale. Black soldiers who were prohibited from growing their hair in an afro-style saw such restrictions as an “undue limitation on their freedom of expression.” The Task Force actually recommended re-examining haircut standards with an eye toward improving morale and improving job performance through the removal of petty grievances. This begs the question of how the military can enact meaningful reform in its justice system if questions about hair still persist after five decades.

In addition to the review of grooming standards, Esper instructed the DoD to develop training requirements to educate the force on unconscious bias as well as a program of instruction “containing techniques and procedures which enable commanders to have relevant, candid, and effective discussions” on discrimination, prejudice, and bias. Additionally, he commissioned further data gathering including on harassment, discrimination, extremist group activity, and a cohort analysis study to understand the potential factors affecting racial and ethnic minority officer retention and promotion. He also barred the inclusion of photographs with promotion packages. While this is welcome, the 1972 Task Force addressed some of these very same issues.

While we applaud the efforts currently underway, the military need not reinvent the wheel or wait for further data before taking steps to address racial problems. As an example, the commandant of the United States Marine Corps banned public display of the Confederate flag in April of 2020, two months ahead of NASCARs decision to do the same and before the death of George Floyd, who was killed by a White police officer in Minneapolis on May 25. DoD effectively followed suit shortly thereafter even in the face of the virulent opposition to banning the flag and renaming bases honoring Confederate generals by President and Commander-in-Chief Donald Trump. Like the Task Force, even these current efforts have an uncanny historical parallel from 50 years ago, at West Point. 

These West Point Cadets have heeded the lessons of the past to propose solutions for a better future

We have explored several areas where our nation’s civilian and military policymakers continue to be stuck on the threshold of asking the necessary questions that should kick-start a process to combat entrenched systemic racism in the armed forces, even though a DoD-led Task Force convened under a Republican administration asked and answered many of the same questions nearly half a century ago. Still, we hold out hope for the future. Our hope comes from the West Point graduates who penned their policy brief inspired by a similar “Black Manifesto” written by Black cadets in September 1971 in response to Nixon’s proposal to build a Confederate monument at the Academy. General Ty Seidule, professor emeritus of history at West Point described the paper and the results it achieved:

The document listed thirteen grievances demanding “equality, respect, and understanding” from the Academy where they experienced “a long train of abuses and usurpations” and “blatant racism.” The manifesto not only resulted in the termination of a proposal to build a Confederate memorial, but also garnered support for a hop that invited Black women from surrounding civilian colleges, the dedication of Buffalo Soldier Field to the historically Black 9th and 10th Cavalry, the prohibition of Confederate flags in Cadet rooms, the cessation of the West Point band’s playing of Dixie, the organization of a charity concert—featuring Stevie Wonder and the Supremes—to raise $41,000 for sickle cell anemia research, the implementation of a Black History Week celebration, the revitalization of the Race Relations/Equal Opportunity Office, and the requirement for eight hours of mandatory race relations training to Cadets and sixteen hours for staff and faculty.

The Manifesto, signed by every Black cadet enrolled at the time, as well as 20 of the 21 Black officers in residence at West Point, succeeded in halting plans to build a monument to Confederate war dead to be placed on campus. The cadets’ advocacy on this final point did not invoke racism, discrimination, or slavery. Instead, they focused on patriotism and loyalty, as General Seidule recently recalled:

The African American cadets argued that West Pointers who fought for the Confederacy “abrogated their oath” to the Constitution. What if, as officers, the president called on them to quash a violent protest by black citizens?

If African American officers deserted their Army units to accept positions of leadership among “rebelling Blacks” in a hypothetical rebellion, would the U.S. Military Academy put up a monument to them? Or would they be punished as traitors? The Confederates, argued the cadets, committed treason, violating the Constitution by “levying war against the United States.” They deserved censure, not recognition.

The original 1971 “Black Manifesto” at West Point was modeled, in part, on a list of grievances presented by prisoners at Attica Prison, another New York institution,  who, months earlier, had protested their conditions. The West Point manifesto has been described as a list of “grievances” or “demands.” These descriptions are too facile. They are instead, a list of solutions. The cadets had argued that while “Black power” fist posters were banned for being “too political,” Confederate flags were allowed. This was 50 years before the Marine Corps formally banned displays of the Confederate flag, the 2020 call for an Anti-Racist West Point makes it clear that overt racism still exists today at the Academy, but in 1971 the Superintendent welcomed the feedback and took immediate and concrete action to lower the racial temperature on campus – without first insisting on the need for more data before acting.

Today’s young West Point alumni have called for:

• an acknowledgement of endemic racism at West Point and a statement that Black lives matter;
• divestment from Confederate memorialization (which includes a portrait of General Robert E. Lee astride a horse being led by a slave still prominently displayed in the library);
• a robust anti-racist curriculum; and
• transparency and publication of data on Equal Opportunity claims and determinations to the Office of Diversity, Inclusion, and Equal Opportunity and to the Academy leadership over the past twenty years as well as results of brigade command climate surveys from the past twenty years.

Again these should not be viewed as demands, but as solutions that are required to maintain order and discipline in the armed forces. The consequences for unit cohesion are paramount. One of the cadet signatories made this point convincingly:

I am a leader of 33 Soldiers, 87% of them people of color and 51% of them Black. In this role, it is essential that I am capable of having conversations with them about our Nation’s history of racism, especially given the ongoing movement. In the days following the killing of George Floyd and the resulting protests, I realized just how unprepared I was to have conversations about this with my Soldiers. I had received plenty of instruction on how to brief an operations order or occupy a patrol base, but West Point failed to train me on how to have important conversations about race within a diverse Army.

This example demonstrates that in a military that prides itself on being colorblind, acknowledging race and diversity is a cornerstone for establishing unit cohesion. As Air Force Gen. Rockwell testified in June, inclusion and diversity in the armed forces is “absolutely necessary to defend a diverse and inclusive nation.”

The display of Lee’s portrait, replete with his horse being handled by a slave continues the exact problem underscored by the Task Force – personnel of color are overrepresented in the “soft-core” military occupation specialties – including transportation – while White officers dominate the war-fighting occupations. Apparently not much has changed since General Lee’s time either (even though this portrait was unveiled in 1952).

The parallels from 1971 and 1972 to events occurring today are remarkable. While the present day GAO and military leaders have all agreed that accurate, complete, and “consistent data could enable DoD and the services to evaluate the causes of disparities, and better position them to address the causes and help ensure that the military justice system is fair and just,” the military need not wait to study the solutions presented 50 years ago, and those presented by its future leaders today.

Perhaps the answers do not depend entirely on first acquiring the data, but on listening to the qualified voices that have been shouting out the solutions for decades already, and acknowledging the work already done by the 1972 Task Force and how West Point confronted and resolved the same type of issues over Confederate symbols a half century earlier. Today’s young West Point graduates did so and we hope our Pentagon leaders will be as inspired by their understanding of history as we are.

Image: Soldiers from the United States Army, Air Force, Navy, Marines and Coast Guard march in parade during the National POW/MIA Recognition observance ceremony September 16, 2005 on the River Parade Field at the Pentagon in Arlington, Virginia. Photo by Chip Somodevilla/Getty Images

The post Déjà Vu All Over Again: Racial Disparity in the Military Justice System appeared first on Just Security.

The ruling has prompted the President to tweet that he has asked lawyers whether he can “delay the Census, no matter how long, until the United States Supreme Court is given additional information from which it can make a final and decisive decision on this very critical matter.”

Previously, judges in New York, California, and Maryland each found that Commerce Secretary Wilbur Ross, who oversees the Bureau of the Census, violated proper administrative procedures by acting in an arbitrary and capricious manner when deciding to implement the question. The lower courts reached this conclusion in part based on: evidence from the Census Bureau itself that inclusion of such a question would depress response rates, especially amongst households containing non-U.S. citizens; evidence that the 2020 Census would be costlier to administer with this question; and evidence that the stated rationale for the question — purportedly to support a request by the Department of Justice for more precise citizenship data to help enforce Section 2 of the 1965 Voting Rights Act (VRA) — was essentially a pretext, fabricated at Ross’ direction, by his staff who lobbied other agencies to formally request that the question be added.

The majority opinion affirming the lower court’s remand hinged on this latter point –agreeing that Ross’ sole stated rationale for reinstating the citizenship question, VRA enforcement, “seems to have been contrived.” The high court noted the “disconnect between the decision made and the explanation given.” That evidence, the majority noted,

tells a story that does not match the explanation the Secretary gave for his decision. In the Secretary’s telling, Commerce was simply acting on a routine data request from another agency. Yet the materials before us indicate that Commerce went to great lengths to elicit the request from DOJ (or any other willing agency).

The majority held that the Administrative Procedures Act (APA) requires a reasoned explanation to “ensure that agencies offer genuine justifications for important decisions, reasons that can be scrutinized by the courts and the interested public” and that in this case, the reasons simply failed to pass a basic smell test.

The high court’s ruling did not take into consideration the recently uncovered new evidence suggesting the political and racial motivations behind the question, which prompted the Fourth Circuit to remand the Maryland case back to the district court for further fact finding on discrimination claims.

To be clear, the ruling did not hold that reinstatement of the question would violate the Enumeration Clause of the Constitution (as the Maryland the California district courts found) as Congress and the courts have long countenanced the collection of census data for a variety of statistical purposes, not simply enumerating the population, but also asking about age, sex, occupation, literacy, health, marital status or other information, and that the citizenship question had been asked for many years in prior censuses. The President’s threat to delay the census, however may very well run afoul of the Clause that requires the count to be conducted every ten years.

The opinion also found that the secretary’s decision was supported by the evidence before him — that is, the secretary did in fact request and consider the Census Bureau’s analysis of various ways to collect improved citizenship data and explained why he thought the best course was to both reinstate a citizenship question. The Chief Justice noted that the Secretary conducted a cost-benefit analysis weighing the value of obtaining more complete and accurate citizenship information against the risk that reinstating the question would result in a materially lower response rate.

Justice Clarence Thomas, writing for himself and Justices Neil Gorsuch and Brett Kavanaugh dissented, arguing that the Court should have limited its review to

“whether the Secretary complied with the law and gave a reasoned explanation for his decision,” which the majority affirmed. Justice Thomas took issue with the majority opinion invalidating an agency action solely because “it questions the sincerity of the agency’s otherwise adequate rationale.”

In a concurring opinion joined by Justices Ruth Bader Ginsburg, Sonia Sotomayor, and Elena Kagan, Justice Stephen Breyer maintained that Ross’ decision was arbitrary and capricious because it ran counter to the weight of evidence in the administrative record, which suggested that imposition of the citizenship question would not only depress the accuracy of the overall census, but would likely provide less accurate citizenship data.

While the Chief Justice disagreed with Justice Breyer, characterizing his concurrence as “subordinating the Secretary’s policymaking discretion to the Bureau’s technocratic expertise,” we believe a different kind of subordination is at play here. We remain highly concerned that from a policy perspective the secretary would subordinate the entire fate of the nation’s largest civilian undertaking to a narrow (purported) Justice Department request for more granular data that could have been largely attainable through alternate means such as from more fully exploiting administrative records.

Although the Court has carved out wide latitude for the Commerce secretary’s discretion as a matter of administrative law, it is worth visiting what type of “technocratic expertise” the secretary purportedly considered, but ultimately disregarded. For example, the Census Bureau’s own statisticians recently predicted that the citizenship question could cause up to an 8 percent decline in self response of households containing a non-citizen. This latest analysis surpasses the previous 5.8 percent decline attributed to the question. Translated into human numbers, the 5.8 percent figure represents roughly 6.5 million people, greater than the population of Missouri, and the 8 percent figure equates to roughly 9 million, greater than the population of New Jersey. That undercount could mean the gain or loss of several congressional seats as was seen after the 2010 count when New York and Ohio each lost two. In terms of monetary costs, remedying this undercount through individual door-knocking in a process known as “non-response follow up” would add nearly a hundred million dollars to the cost of the census.

Why would the head of the agency charged with conducting a constitutionally mandated census in the most thorough and accurate way possible jeopardize the success of the entire undertaking and threaten accurate apportionment, redistricting, and the distribution of nearly a trillion dollars of federal funding in order to meet the very narrow request of another agency? The Chief Justice wrote that the secretary “considered the relevant factors, weighed risks and benefits, and articulated a satisfactory explanation for his decision.”

But as Justice Breyer’s concurrence concluded, the secretary’s failure to give adequate consideration to factors such as “the high likelihood of an undercount, the low likelihood that a question would yield more accurate citizenship data, and the apparent lack of any need for more accurate citizenship data to begin with” made “his decision unreasonable. They are the kinds of failures for which, in my view, the APA’s arbitrary and capricious provision was written.”

Procedurally, the Commerce Department will have to go back to the drawing board if it still wants to place the citizenship question on the 2020 count. But even if the question is not on the final census forms, the attempt by the secretary to include it has already harmed the reputation and integrity of the Census.

The Census already faces significant challenges posed by traditionally “hard-to-count” populations. These populations include undocumented immigrants, young children, itinerant persons, low-income families, persons experiencing homelessness, LGBTQ persons, people with disabilities and non-English speakers who have long been undercounted. Likely to compound this undercount is the fact that the 2020 Census will be the first to be online, and will take place in the midst of a rancorous presidential election year.

But don’t just take our word for it – in January, the Census Bureau issued its final report on overcoming obstacles to answering the census, known as the “Census Barriers, Attitudes and Motivators Study” (CBAMS) which surveyed a variety of respondents about their views on the census, including about the citizenship question. The Census Bureau found, in part that, “the vast majority of reactions were negative” to inclusion of the question. Disturbingly, most participants across all audiences interviewed responded that they believed the purpose of the citizenship question was to deport undocumented people. The Court’s ruling on standing even acknowledged that respondents met their threshold burden of establishing that

significant numbers will likely react in predictable ways to the citizenship question…The evidence at trial established that noncitizen households have historically responded to the census at lower rates than other groups, and the District Court did not clearly err in crediting the Census Bureau’s theory that the discrepancy is likely attributable at least in part to noncitizens’ reluctance to answer a citizenship question.

But as we’ve written recently, irrespective of how the Court ruled, even if the question were upheld, we, the people, can abate that harm. It is incumbent on all those who receive a census questionnaire to respond without fear. While the Chief Justice may have held that a court should not substitute its judgment for that of an agency head, the American people can certainly make the Census succeed despite the judgment of a secretary of Commerce who would subordinate both accuracy and constitutional duty to pretext. We can do so by standing up and being counted.

IMAGE: WASHINGTON, DC – JUNE 27: People gather in in front of the U.S. Supreme Court as decisions are handed down on June 27, 2019 in Washington, DC. The high court blocked a citizenship question from being added to the 2020 census for now, and in another decision ruled that the Constitution does not bar partisan gerrymandering. (Photo by Mark Wilson/Getty Images)

The post Principle Over Pretext: The Supreme Court Isn’t Buying What Wilbur Ross Is Selling appeared first on Just Security.

The Judiciary Committee’s subpoena requests not only “the complete and unredacted copy of the report;” but also all of the documents referenced in the report, as well as all of the documents obtained, and the investigative materials created by the Office of the Special Counsel (OSC).

As Barr noted in his May 8 letter to President Donald Trump, in which he requested invocation of the preemptive or “protective assertion” of executive privilege, the Special Counsel’s files contain millions of pages, including classified materials, “bearing upon more than two dozen criminal cases, many of which are ongoing.” And while it is important to remember that Barr’s resistance to the committee’s subpoena is set against the backdrop of the White House’s across-the-board resistance to congressional oversight — with the President recently proclaiming, “We’re fighting all the subpoenas” — the Justice Department’s assertions when it comes to protecting its law enforcement equities, including materials related on ongoing criminal investigations, are rooted in longstanding DOJ practice.

We’ve seen this movie before: It was called Fast and Furious

Comparisons are now being drawn with the contempt proceedings against former Attorney General Eric Holder. In 2012, the Department of Justice (DOJ) also requested that the White House invoke executive privilege to protect internal DOJ deliberations, including how the department would respond to congressional inquiries concerning the botched gun-running investigation, known as Operation Fast and Furious. As Holder argued, production of such documents would inhibit the ability of DOJ to engage in candid discussion and strategize about how to answer questions from a separate, co-equal branch of government by chilling internal debate. The contempt proceedings in 2012 largely centered around DOJ’s refusal to turn over to Congress its own deliberations on how to answer Congress (comparing it to a hypothetical situation where lawyers would have to turn over in discovery, both the requested documents, and their own attorney impressions about how to handle said documents). But, the department also refused to provide to Congress materials concerning pending criminal investigations, grand jury materials, legal and investigative activities under seal and other law enforcement-sensitive materials.

The Linder Letter and DOJ’s longstanding position on protecting pending matters and internal deliberations

The principles governing the DOJ’s interactions with Congress were articulated over a decade earlier. In January of 2000, the Justice Department set forth its general approaches to accommodating congressional oversight in a letter to then-Republican Chairman of the House Subcommittee on Rules and Organization John Linder. The letter was in response to a hearing entitled, “Comity, Cooperation, and Confrontation,” about strengthening the congressional hand in oversight, especially vis-à-vis the Justice Department. The departmental response, informally known within DOJ as the “Linder Letter,” focused on two principal areas where DOJ would go to the mat to protect. They were open matters, namely ongoing investigations and criminal prosecutions, and internal Justice Department prosecutorial deliberations.

With respect to open matters, the department argued that the separation of powers precluded congressional access to otherwise confidential investigative files as provision of such materials would make the legislative branch a “partner” in what is a uniquely executive branch function: criminal law enforcement. Additional concerns included the potential that elected officials would be appearing to exert influence over investigations and prosecutions and second-guessing DOJ decision-making. From a practical perspective, prosecutors feared that the revelation of ongoing covert law enforcement activities could “tip off” the targets, allowing them to destroy evidence, flee or otherwise evade justice.

In the case of internal deliberations, the department has long safeguarded its ability to have open, candid and independent assessments of evidence and law. Congressional disclosure could stymie the ability of government officials to argue, debate and provide frank advice in the furtherance of prosecution and policymaking. Indeed, the Supreme Court has recognized the potential chilling effect:

Human experience teaches that those who expect public dissemination of their remarks may well temper candor with a concern for appearances and for their own interests to the detriment of the decision-making process.

While this position is not unique to DOJ, and is a fundamental precept of the wider legal profession (e.g. non-discoverability of attorney work product or impressions) and also an exception to disclosure under the Freedom of Information Act, the Linder Letter set forth that:

The foregoing concerns apply with special force to Congressional requests for prosecution and declination memoranda and similar documents. These are extremely sensitive law enforcement materials. The Department’s attorneys are asked to render unbiased, professional judgments about the merits of potential criminal and civil law enforcement cases. If their deliberative documents were made subject to Congressional challenge and scrutiny, we would face a grave danger that they would be chilled from providing the candid and independent analysis essential to just and effective law enforcement or, just as troubling, that they might err on the side of prosecution simply to avoid public second-guessing.

Additionally, as a practical matter, revelation of the prosecutors’ deliberations – which often include analyses of potential defenses, could also provide a roadmap for evasion by future defendants who would view prosecution or declination memoranda as the “government playbook.”

The Mueller report does not contain the back-and-forth deliberations between the prosecutors and investigators that the department has traditionally protected. But, to open up the underlying materials and OSC files that could contain these candid conversations to political scrutiny would be a scenario where the department has, in the past, fought tooth-and-nail to prevent. The department has long seen its obligation to congressional oversight as requiring it to explain the rationale and bases for its final decisions, but not lifting the veil on who took this position or that during that pre-decisional process.

The concerns outlined in the Linder Letter are longstanding and even cite Attorney General Robert Jackson’s opinion from 1941 which stated,

“It is the position of the Department, restated now… that all investigative reports are confidential documents of the executive department of the Government, to aid in the duty laid upon the President by the Constitution to ‘take care that the Laws be faithfully executed,’ and that congressional or public access to them would not be in the public interest. . ..”

The Linder Letter also considers protection of the privacy interests of parties investigated, but not prosecuted by the department, including the possibility that internal discussions may contain unflattering personal information as well as assessments of witness credibility, disclosure of which “could be devastating to the individuals they discuss.”

How DOJ may view today’s subpoena through the Linder lens

As the Linder Letter makes clear, the Justice Department usually will draw a bright line against production of prosecution and declination memoranda. But the Mueller Report is essentially a form of such a document, albeit one that the Special Counsel has likely long envisioned becoming public due to the extraordinary nature of the subject matter. As such, from an institutional perspective, Barr likely believes he has well accommodated Congress and the public, in providing a minimally redacted version of the Mueller Report in a timely manner.

The four categories of redactions, “harm to ongoing matters,” “investigative technique,” “grand jury secrecy,” and “privacy” interests of third parties, have long been protected by DOJ under the leadership of both parties. This has been to avoid the disclosure of materials that would compromise law enforcement operations. Barr’s redactions were made in concert with the Office of Special Counsel, and it is likely Mueller’s team, or the U.S. Attorneys Offices or other DOJ prosecuting components, would have similar concerns about protecting materials related to ongoing investigations and cases. After all, there are, potentially millions of pages of materials responsive to the House Judiciary Committee’s subpoena.

It would not be irrational for the department to assert that complying with the subpoena for underlying documents would require enormous resources and time to conduct a thorough review in order to protect its law enforcement equities. That is perhaps why the committee’s top Republican, Rep. Doug Collins, has complained that the committee waited only 43 days from request to contempt vote, as compared to the 250 days afforded to Holder in 2012, and the subpoena itself has only been live for three weeks.

Weighing congressional interests against DOJ equities

One threshold question that arises from this standoff is whether or not the subpoena is an oversight request per se. Is the committee’s investigation about the performance of the OSC or DOJ malfeasance or some other irregularity during the course of the Mueller probe? In the memorandum in support of the contempt resolution, House Judiciary Chairman Jerome Nadler (D-N.Y.) articulated three main purposes for the committee’s investigation: investigating the president and his administration for misconduct; 2) whether the conduct revealed by the report warrants legislative action in the areas of campaign finance, election security, or other areas covered by the report; and 3) whether the conduct described by the Mueller Report warrants further committee action, including impeachment proceedings.

So, while the Justice Department certainly would prefer for Congress not to Monday morning quarterback its prosecutorial decisions, the committee has articulated its own unique legislative and constitutional need for the information requested. In other words, they are not attempting to be co-prosecutors, but to conduct work that is solely within their exclusive purview, of legislation and possible impeachment.

The OSC specifically contemplated this avenue for congressional remedies in its report when it wrote that, “a federal criminal accusation against a sitting President would … potentially preempt constitutional processes for addressing presidential misconduct” – i.e. impeachment.

The committee’s position on obtaining certain materials related to ongoing matters may also be strengthened, once those matters are resolved. While the department has long protected materials related to open cases and internal deliberations, as Marty Lederman explained in a previous Just Security post, once an investigation has been closed, considerations that counsel against discussions of ongoing cases “lose some of their force.”   This principle is set forth in a 1986 OLC opinion which stated:

“Access by Congress to details of closed investigations does not pose as substantial a risk that Congress will be a partner in the investigation and prosecution or will otherwise seek to influence the outcome of the prosecution; likewise, if no prosecution will result, concerns about the effects of undue pretrial publicity on a jury would disappear.”

Here, while General Barr has cited the existence of related cases where disclosure could harm ongoing enforcement efforts, production to congress could be limited to materials related only to closed matters. That said, in the Linder Letter, the DOJ has also argued that even in closed cases, revealing internal deliberations post hoc would have the same chilling effect on candid deliberations.   Such disclosure could also provide insight and advantage future criminal wrongdoers in their negotiations with prosecutors.

Given all of these factors and considerations, the question of accommodation should not be off the table completely. Of the millions of pages of materials found and generated by Mueller’s team in the course of its investigation, both sides can still make a determination as to which could be useful to, and made available to Congress without jeopardizing ongoing cases.

There may still be room to provide OSC-generated investigative materials while safeguarding internal deliberations. For example, if, hypothetically, the OSC’s investigators created a flow-chart of factual evidence, that could be provided to Congress without revealing the prosecutor’s impressions and analysis of the information.

These are the types of conversation that should be happening if the committee wants to obtain as much information as it can. The record demonstrates that Nadler was willing to “limit and prioritize” his request, including first trying to obtain FBI Reports of Investigations (known as “302”s). So, this is a potential starting point for renewed negotiations. The department has also offered to provide an in camera-review of a less redacted version for Committee and Congressional leadership – which was rebuffed by Chairman Nadler, who claimed that restrictions on how he could share that information with his colleagues were too prohibitive.  However, that offer still leaves the ball in the congressional court.  If the Committee Chair is able view materials in camera, then he may be better positioned to argue with greater specificity what underlying materials he needs and why merely viewing a less redacted version of the report cannot satisfy the Committee’s interest.

As Just Security’s Andy Wright opined, it is premature to characterize the contretemps over contempt as a constitutional crisis, though Nadler has already deemed it as such. But the larger worry is, as former House General Counsel Kerry Kircher has lamented, “Nobody [in the executive branch] likes [congressional oversight]. But heretofore everybody recognized it had its place,” he explained. “You mostly argued about degrees. It feels now we’re not arguing about degrees anymore. We’re arguing all or nothing … and that’s a significant escalation.”

Hopefully, de-escalation and a return to regular order is possible. When serving as head of the Office of Legal Counsel in 1989, Barr described the accommodations process as a series of escalating steps, where Congress starts by requesting information and the executive branch responds, but acknowledges that in certain circumstances the administration may resist providing some or all of the information “because of the burden of compliance or because the information is of a sensitive nature.” Occasionally, Barr noted, “the process breaks down and a subpoena may be issued.” And only at that point, if further negotiation is “unavailing, it is necessary to consider asking the President to assert executive privilege.” If after assertion of executive privilege, the committee remains unsatisfied, they may vote to hold the agency head in contempt of Congress, and to paraphrase Barr from his OLC days, they can go to court and fight about it some more.

But a good question today is: To what end? As the civil litigation over Fast and Furious just settled this past week after seven years, will today’s subpoena and contempt fight be just as drawn out?

Meanwhile, behind the scenes, as the contempt resolution goes to the full House for a vote, and perhaps, eventually to court, nothing is preventing the parties from trying to figure out exactly what of the millions of pages of materials can actually be shared. Well, nothing except politics.

IMAGE: House Judiciary Chairman Rep. Jerrold Nadler (D-NY) holds up copies of the Starr Report during a House Judiciary Committee markup vote on a resolution to issue a subpoena to the Justice Department to receive the full unredacted Mueller report, on Capitol Hill April 3, 2019 in Washington, DC. (Photo by Mark Wilson/Getty Images)

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The Attorney General objected principally to the Majority’s proposed format of allowing an additional hour of inquiry (divided equally between the parties), when Committee staffers would also be allowed to question the Attorney General. Department of Justice Spokesperson Keri Kupec argued that, “Chairman Nadler’s insistence on having staff question the Attorney General, a Senate-confirmed Cabinet member, is inappropriate. Further, in light of the fact that the majority of the House Judiciary Committee — including Chairman Nadler — are themselves attorneys, and the chairman has the ability and authority to fashion the hearing in a way that allows for efficient and thorough questioning by the members themselves, the chairman’s request is also unnecessary.”

Judiciary Chairman Jerrold Nadler (D-N.Y.) responded, “I understand why he wants to avoid that kind of scrutiny, but when push comes to shove, the Administration may not dictate the terms of a hearing in our hearing room.” Chairman Nadler ratcheted up the rhetoric, claiming that Barr is “terrified of having to face a skilled attorney.”

To be sure, there is precedent for Congressional staffers questioning Administration officials in high-profile public hearings. From Watergate, to Iran-Contra, to  Whitewater, to the recent outsourcing of the Republicans’ handling of Dr. Christine Blasey Ford’s testimony during Justice Kavanaugh’s confirmation, we have seen members cede their questioning.   

While Chairman Nadler is correct that the Committee does set its own rules in its own house, the Department of Justice’s posture is also not unprecedented. I previously served as a career attorney in the DOJ’s Office of Legislative Affairs and we regularly negotiated with Committees over hearing format and procedure – not because we wanted to sweat the small stuff, but because we wanted to ensure the preservation of the balance of powers as co-equal branches of government.

For example, when a Committee wished to put a Department witness on a panel along with non-governmental witnesses — including, at times, potential subjects of investigations, potential crime victims, or advocacy organizations — we strenuously objected on a variety of grounds, including citing the potential that placing the prosecutor and a witness at the same table could damage ongoing law enforcement activities, but also because we believed that co-equality of branches merited the government’s own panel (we did not object to appearing with witnesses from other agencies) where Congress could conduct its oversight over the Executive branch.  

With non-governmental witnesses, including those adverse to the Department, Committees were providing a platform for non-Congressional oversight. We also set forth our own position on how much notice we would require before agreeing to testify– we asked for two weeks notice – in order to draft testimony and undertake the tedious and exhausting clearance process both within the Department and through interagency stakeholders. This practice was critical to ensuring that the Administration could speak with consistently with one voice on policy matters. It also helped ensure that every statement made by an administration official could be checked for accuracy. Practically speaking, it made for better prepared testimony and answers at hearings.   

Staff regularly conduct witness interviews, author congressional reports, and represent their Members in a variety of settings. Yet congressional rules also prohibit staff from casting votes when their member is absent or speaking on the floor on behalf of their bosses.  

So where along this spectrum does staff questioning at a hearing fall?

While the DOJ has argued that it would be “inappropriate” for staff to question the Attorney General, they have not identified a constitutional impediment to doing so. If a subpoena is issued to compel Barr’s testimony, however, and the matter is raised before the judicial branch, a court may ultimately hold that Barr must appear. But the court will be extremely loathe to umpire what it could consider a political and seating dispute between the other branches. Instead, a court may direct the parties to return to the long-established accommodations process and work it out behind the scenes. In that process the Executive recognizes the legitimate interests of the Legislative branch and recognized its own obligation to attempt to meet those needs – the result could be that members conduct the questioning, but the Committee does go into closed session to discuss more sensitive portions of the report – a compromise. That does not mean the role of staff is any more diminished or their presence felt any less.

The American public elected this House on campaign promises to conduct robust oversight over the Administration. And there are Members of Congress on the dais who can skillfully conduct the questioning of the Attorney General. I understand the arguments that members have so much on their plates that only the Committee staff who have delved deeply into the documents and mastered the subject matter are in the best position to ask follow-up questions. But staff can and do prepare their members, write questions for their side of the aisle via committee memos and meetings, pass notes, whisper in members’ ears, and otherwise assist their members.

We saw some Senators land effective punches at Barr’s hearing on Wednesday. We have seen, in the recent past, Senator Carl Levin conduct a highly technical 10-hour marathon hearing on the financial crisis involving complex mortgage instruments because he was prepared, worked closely with staff, and got up to speed on the topic as any constituents would and should expect. And there are other options available to the Chairman: he can have his members yield their time and questioning to a designated member. There are other options for the Committee as well – they can call Attorney General Barr or outgoing Deputy Attorney General Rod Rosenstein in for a transcribed interview – conducted by staff after he leaves office.  

At the end of the day, one must also recognize that Congressional oversight is an inherently political process. At the Department, our first instinct was to have the DOJ’s political appointees testify before Congress – in order to protect career officials from having to carry political water in a partisan setting. And while very few congressional staff are apolitical, there is something to be said for elected officials squaring off one-on-one against a Senate-confirmed Cabinet member as co-equals.

Image: Mark Wilson/Getty

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