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

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

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

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

Border Policy, Starting Today

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

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

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

The “Transit Ban” Rule 

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

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

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

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

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

Expanding Parole

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

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

CBP One and the New Asylum Queue

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

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

Beyond Asylum

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

What does this mean for humanitarian protection?

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

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

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

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

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

The Questions Time Will Answer

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

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

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

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

The post The End of Asylum? appeared first on Just Security.

These failures are all the more tragic because we have seen this story before. The failures of intelligence and warning in the coronavirus pandemic were eerily similar to the intelligence failures that preceded other national disasters such as the 9/11 terrorist attacks, the attack on Pearl Harbor, and more recently the Jan. 6, 2021, attack on the U.S. Capitol.  

More than three years after the coronavirus spread around the world, we are still ill prepared to deal with the next global pandemic that experts tell us could be just around the corner. It is not too late, however, to learn the lessons from the intelligence failure of COVID-19 and prepare for future catastrophes. The next global disaster may come in the form of another virus, or it may be caused by one of the many other dangers that threaten humanity. But no matter the cause of the next crisis, we will need better intelligence and warning to mitigate the risks.   

Was it Really an Intelligence Failure?

Many experts have argued that the pandemic was not an intelligence failure because intelligence leaders and agencies, among others, have been warning for years about the threat of a global pandemic. U.S. intelligence leaders, for example, have often included global health threats in their annual testimony before Congress. And blue-ribbon commissions have frequently warned that the world needs to be better prepared for infectious disease outbreaks. Several prominent warnings, in fact, came in the fall of 2019, just before the COVID-19 outbreak began in China. 

But why, despite all those warnings, did the United States and the world still appear surprised when the outbreak began? The answer is that this kind of general warning—often called “strategic warning” in the intelligence business—is not likely to spur action on the part of leaders who are dealing with many other problems, most of which seem much more immediate than broad threats of a global pandemic in the future.  

To give just one example: in January 2019, then-Director of National Intelligence Dan Coats gave what sounds today like a very prescient warning about the danger of a worldwide infectious disease pandemic. But in that same threat assessment, he also warned about the dangers from cyber attacks, weapons of mass destruction, great power competition, environmental change, and many other threats. Even if policymakers wanted to do something about the dangers Coats was warning about, where would they start?  

It cannot be enough for intelligence to just raise the alarm. The job of intelligence is not only to warn, it is to help leaders and policy makers avoid disaster. For that, intelligence agencies must produce specific warning about the actual threat as it arises—referred to as  “tactical intelligence”—and policymakers must understand and trust their intelligence advisors enough that they are willing to listen to the warnings they receive. And that is where intelligence agencies and systems, both in the traditional intelligence world and the world of medical and public health intelligence, failed.   

A Familiar Pattern

Before the COVID-19 outbreak, and in the early weeks and months of what would become a global pandemic, the U.S. Intelligence Community and the even vaster medical and public health surveillance system all failed in the critical mission of providing actionable intelligence on the growing threat. As the coronavirus spread throughout early 2020, the traditional intelligence community did little more than repeat publicly available information. Even worse, much of this information was misleading, as when then-U.S. President Donald Trump was briefed on January 23 that “the good news was the virus did not appear that deadly.”    

As the House intelligence committee later reported, “the intelligence community was not well positioned or prepared to provide early warning and unique insights on the pandemic.” Other reports have provided further details about the failures of the Intelligence Community, including two studies released in December 2022 from the Senate Homeland Security and Governmental Affairs committee, and the House Select Subcommittee on the Coronavirus.  

The pandemic was also a failure of public health and medical intelligence and surveillance, including at the Centers for Disease Control (CDC). As the Senate Homeland Security and Governmental Affairs Committee found, “Throughout January and February 2020, CDC’s surveillance missed at least half of the cases that came into the country, resulting in false assurances to the American people that there was no community spread in the U.S.” Another example: a standard task of intelligence and surveillance is tracking the progress of potential threats, but no one in the U.S. government was prepared to pull together all the information available, so it fell to Johns Hopkins University to create a dashboard. And the failure was not limited to the United States; in Canada, for example, a system known as the Global Public Health Intelligence Network had been created for just such a crisis, but it too failed in its mission of providing actionable warning.  

The final piece of the failure was a lack of receptivity on the part of policymakers. It is a truism in the intelligence world that warning is of absolutely no value unless it can reach consumers willing to listen and act. In the early weeks and months of the pandemic, far too many policymakers were unwilling to act. Trump was famously dismissive of intelligence and disregarded early warnings about the coronavirus, but he was not alone—his lack of receptivity does not explain the broader failure of many leaders in the United States and around the world to take decisive action to mitigate threats. 

As I have described elsewhere, these intelligence failures closely resembled past failures such as 9/11 and Pearl Harbor, when long-term strategic warnings of danger had been plentiful but did little to prevent disaster; tactical intelligence on the actual threat was too little, too late; and leaders were too often unwilling to listen to the warnings they did receive. And we have seen a very similar scenario play out much more recently—with the attack on the Capitol on Jan.6, 2021. Here again there was plenty of warning before the attack, but once again, leaders didn’t listen.     

The Bad News: We Are not Ready for Next Time

Unfortunately, we are not much better prepared today to anticipate, detect, and stop a future global pandemic than we were at the end of 2019. The quick spread of monkey pox—now called Mpox—showed that we still aren’t as good as we need to be at detecting and tracking outbreaks.  Even though COVID-19 has not disappeared, experts warn that the next pandemic could be even worse. Public health officials and commentators such as Bill Gates argue that we must begin planning now for the next global health crisis.  

The Good News: It’s Still not too Late

So what should we do? To be better prepared for the next pandemic or other global threat, changes are needed at several levels. First, reforms are needed in the U.S. Intelligence Community to elevate the level of attention paid to non-traditional threats such as infectious disease. There has been some positive change, such as the rebranding of the National Counterproliferation Center to the National Counterproliferation and Biosecurity Center to reflect the increased importance of biosecurity today.  

But more needs to be done, such as elevating the National Center for Medical Intelligence (NCMI) from a relatively small organization under the Defense Intelligence Agency into a truly national center. As the House Intelligence Committee review noted about the NCMI, “its position, sequestered away in the Defense Department, did not give it the high profile needed to command the attention of the broader intelligence community, the National Security Council or Congress.”     

Changes are also needed at the level of medical and public health surveillance. Here too there are positive steps being taken, such as the increased use of sewage surveillance to detect early signs of outbreaks, and the development of the Center for Forecasting and Outbreaks Analytics to use data and modeling to forecast outbreaks. But more must be done, including greater use of genomic surveillance to track variants in the virus that causes COVID-19, broader contact tracing, and ultimately development of a global early warning system to alert policymakers to dangerous pathogens before they can lead to another pandemic.   

Pandemics are only one of a number of grave threats facing humanity, and COVID-19 has tested how well our global intelligence, warning, and response systems can operate in a crisis. We failed this time, but next time—when the disaster could be even worse—we can’t afford to fail. We need to begin developing the systems and organizations that will provide needed actionable intelligence when the next global crisis arises, and we must train and educate policymakers about intelligence so that when the warnings come next time, those leaders will listen. 

Dahl is the author of The COVID-19 Intelligence Failure: Why Warning Was Not Enough.

IMAGE: A nurse checks on a patient in the acute care COVID-19 unit at the Harborview Medical Center on January 21, 2022 in Seattle, Washington. (Photo by Karen Ducey/Getty Images)

The post Lessons from COVID-19: Intelligence Failures and How to Prepare for the Next Global Crisis appeared first on Just Security.

Changes to the House Rules became one of the critical elements in the Speaker negotiations, and once the Speaker was elected the House turned its attention to the Rules package. It passed 220-213 with only one Republican defection. The structure of the package was to build off, and amend, the Rules of the 117th Congress. Thus, those rules remain the baseline unless changed. The 118th Congress amendments (H.R. 5 adopting the Rules here and Section analysis here) are rife with signals about the GOP investigative and oversight agenda. In addition, they contain changes bearing on investigative power ranging from the structural to the procedural to the cosmetic. As discussed below, some of these changes are designed to limit power of the minority party (here, Democrats). Others may materially change the witness experience in congressional investigations. I address changes that will affect oversight and investigations below.

Congressional oversight power flows from the grant of legislative authority by the U.S. Constitution, and Congress has exercised that power since the first Congress. However, Congress’s oversight function was not recognized in public law until the Legislative Reorganization Act of 1946 required House and Senate committees to exercise “continuous watchfulness” over the programs and executive or judicial entities within their jurisdiction. In addition, there is ample political science research to confirm what everyone who works politics in DC knows: there is more emphasis on congressional investigative power during periods of divided government when the party that controls the White House does not control both houses of Congress.

New Committee Names

Republicans changed names of the House’s primary investigative committee to the Committee on “Oversight and Accountability,” formerly known as the “Oversight and Reform” Committee, or in my Hill era, “Oversight and Government Reform.” See Section 2(j). This is one of those largely cosmetic changes, given that the committee’s jurisdiction remains essentially unchanged. However, these changes in title tend to have ideological views and political messaging underpinning them. A shift from “Reform” to “Accountability” suggests a more adversarial posture.

New Committees, Subcommittees of Note

The new House majority established, or the Rules reference the coming establishment of, three new investigative committees of note: 

(1) The “China committee.” It is formally named the “Select Committee on the Strategic Competition Between the United States and the Chinese Communist Party.” See H. Res. 11. The Select Committee has a mandate “to investigate and submit policy recommendations on the status of the Chinese Communist Party’s economic, technological, and security progress and its competition with the United States.” It was the first bipartisan win for McCarthy, passing by a remarkable 365-65 vote.

(2)   A Covid Origins subcommittee. The Rules establish the Select Subcommittee on the Coronavirus Pandemic “to investigate, make findings, and provide legislative recommendations on the origins of the Coronavirus pandemic.” It is a subcommittee of the Committee on Oversight and Accountability, like the one that preceded it during Democratic control: The Select Subcommittee on the Coronavirus Crisis. As a “select” subcommittee, the Speaker has the authority to choose the membership. The Select Subcommittee may not markup legislation, and it must issue a final report of its findings to the House by January 2, 2025. See Sec. 4(a). It also allows staff to engage in questioning at hearings and allows Members to ask questions in periods longer than five minutes. Both of these shifts tilt in favor of more penetrating investigative proceedings.

(3) The Select Subcommittee on the Weaponization of the Federal Government. This Select Subcommittee is set to have broad jurisdiction to investigate intelligence and law enforcement activities, including “ongoing criminal investigations.” See H. Res. 12. While that may sound alarming to some ears, it is likely more of a signal of investigative priorities than a legally material statement of jurisdiction. Congress has long asserted the prerogative to investigate matters that could implicate ongoing criminal investigations, and the Executive Branch has long asserted confidentiality interests in response to congressional requests that the Department of Justice deems could undermine criminal cases. The authorizing resolution delegates unilateral subpoena power to the subcommittee chair. Like the pandemic origins subcommittee, this committee extends the five-minute question rounds limitation and allows for staff questioning. It too must issue a final report to the House by January 2, 2025. 

Committee Oversight Plans

Section 2(e) “restores the requirement that each standing committee (except the Committees on Appropriations, Ethics, and Rules) vote to adopt an…oversight plan.” That can often be a helpful instrument in assessing the priorities of new committee chairs. I wrote a piece analyzing oversight plans for the 114th Congress, noting that “one can glean valuable information about committees’ recent activity and upcoming priorities” from them. Under the new Rules, Committees must submit plans to the Committees on Oversight and Accountability and House Administration by March 1, and then from Oversight to the full House by April 15 “to ensure effective coordination of the plans.”

Limitation on a Potential Minority Party Power

Sec. 3(i) of the new Rules limits the “Seven Member Rule,” a statutory vehicle that allows any seven members of the Committee on Oversight and Accountability to make a request that has the force of compulsion. Thus, under the statutory language, seven Democrats could invoke that statute without reference to the chair. In effect, it creates a potential functional equivalent of a subpoena that can be exercised by the minority party. As noted in the D.C. Circuit opinion in Carnahan v. Maloney:

Section 2954 is distinct from Congress’s institutional authority to request or subpoena documents and witnesses. Those measures require formal authorization by Congress, a Chamber of Congress, or a committee. But an information request under Section 2954 can be made by just a small group of legislators—a true minority—who make the individual judgment to seek the information as a means of better informing their committee work.

The Seven Member Rule has long been contested by the Executive Branch. At present, the Carnahan v. Maloney case, has a writ of certiorari pending to seek Supreme Court clarification as to whether individual members have standing to enforce the Seven Member Rule in federal court. (The Court of Appeals held that they do.)

The new Rules require “that the chair of the Committee on Oversight and Accountability be included as one of the seven members of the committee making any request of an Executive agency pursuant to section 2954 of title 5, United States Code.” Thus, this provision effectively blocks Democrats from making use of the Seven Member Rule on a party-line issue.

New Ground Rules for Witnesses

The new Rules create a presumption against remote witness appearances in committee proceedings. Part of this is consistent with the easing of pandemic restrictions generally, and part of this is a piece of a broader effort by the incoming Majority to push back against proxy voting by Members, public access restrictions to the Capitol complex, and remote work by federal employees. The new Rules provide: 

limited authorization to a chair of a committee to allow witnesses to appear remotely at committee and subcommittee proceedings. This subsection applies only to witnesses appearing in a non-governmental capacity and in accordance with regulations issued by the chair of the Committee on Rules and printed in the Congressional Record. 

In addition, the new Rules empower congressional staff to take depositions. Older versions of the rules required Member attendance at depositions, which diluted the threat of a subpoena to a deposition. That leverage often allowed counsel for witnesses to negotiate some concession on testimony logistics in return for an agreement to voluntarily appear for a transcribed interview conducted by congressional staff. Now, Section 3(k) Subsection (k) provides committees “the authority to order the taking of a deposition by a member or counsel of such committee and limits persons who can attend depositions to members, committee staff, an official reporter, the witness, and up to two, personal, nongovernmental attorneys.”

* * *

The incoming Majority has signaled it will scrutinize the Biden family, the Biden administration, and large segment of the private sector. This new Rules package suggests that the new Republican leadership in the House will make good on its promise to pursue that aggressive oversight agenda, and it has enhanced its capacity and powers to do so.

IMAGE: U.S. Speaker of the House Kevin McCarthy (R-CA) departs from his office for a series of votes in the U.S. Capitol Building on January 09, 2023 in Washington, DC. During 118th Congress’s first day of business since electing a Speaker of the House, the House held a series of votes on a rules package with parameters for the House of Representatives. (Photo by Anna Moneymaker/Getty Images)

The post Setting the Board: Congressional Investigations and the New House Rules Package appeared first on Just Security.

With the onset of the COVID-19 pandemic in early 2020, the rapid flow of emergency aid created opportunities for fraud and corruption, while governments imposed public health measures that curtailed free assembly and association, closed courts, and ground justice systems to a halt. In addition, the pandemic exposed and exacerbated long-standing systemic inequalities. Against this backdrop, the annual World Justice Project (WJP) Rule of Law Index registered declining rule of law in 74% of countries in 2021, the first report issued during the pandemic. (We serve as Executive Director of WJP and Co-Director of the WJP Rule of Law Index, respectively.)

The Index draws on surveys of more than 154,000 households and 3600 legal practitioners and experts in order to score and rank countries on eight factors of the rule of law: Constraints on Government Powers, Absence of Corruption, Open Government, Fundamental Rights, Order and Security, Regulatory Enforcement, Civil Justice, and Criminal Justice. At the height of the pandemic, a majority of countries declined in each of these factors, with the exception of Order and Security. The most significant pandemic-era declines were seen in Index factors measuring constraints on government power; timeliness of civil, criminal, and administrative justice; civic space; and absence of discrimination. Between 2020 and 2021, scores in these areas fell in 70%, 94%, 82%, and 67% of countries, respectively. 

This week, the World Justice Project releases the 2022 WJP Rule of Law Index. Based on surveys conducted between February and June 2022, the Index might be expected to reveal a post-pandemic rule of law recovery. Unfortunately, the new data show persistent global negative trends, with declining rule of law in 61% of countries. The rule of law declines were smaller and less widespread than during the pandemic year. Still, two-thirds of the countries with declining scores in 2021 saw further backsliding in 2022. Again, constraints on government powers, timeliness of justice, civic space, and discrimination declined in a majority of countries. 

Multi-Year Trends Reflect Rising Authoritarianism

The 2022 Index data underscore that in many jurisdictions, recent negative rule of law trends predate the health crisis and will likely persist beyond it, part of a longer-term global rise in authoritarianism. Since 2015, the Index registered a decline in rule of law scores by an average of 2.6% globally, falling in 64% of countries studied. Deterioration over this period has been particularly marked in the Index factors measuring Constraints on Government Powers and Fundamental Rights, declining in 68% and 76% of countries, respectively. Over this same seven-year period, 81% of countries studied saw declines in the specific indicator measuring freedom of opinion and expression; and 85% of countries experienced deteriorating freedom of assembly and association. Since 2015, the Index measure of whether transitions of power are lawful has declined in two-thirds of countries. Improving pandemic conditions have provided little relief on the rule of law front; rather, the end of the health crisis simply confirms a more persistent governance crisis.

The United States Faces Persistent Challenges

The United States saw its Index score improve for the first time in six years, but it too has a ways to go to recover lost ground. Ranked 26th out of the 140 countries studied, the United States increased its score in each of the eight Index factors and 1.8% overall. But even with these gains, its rule of law score has fallen 3% since 2015. 

In recent years, the United States has experienced the most significant decline in the Index factor for Constraints on Government Powers. This factor measures the checks on executive power from the legislature, judiciary, independent audit agencies, civil society, and the media, as well as the extent to which official misconduct is sanctioned and transitions of power are conducted lawfully. Since 2015, the U.S. overall score for such checks and balances dropped by 9.4%, with an even sharper deterioration in the specific indicators for limits imposed by the legislature (-17.6%), judiciary (-12.2%), and civil society and media (-13.5%). Over this same period, the score for the extent to which official misconduct is sanctioned declined by 12.6% and for lawful transitions of power by 10.9%. Only the indicator for checks by independent audit agencies improved (by 19.4%).

In addition, the United States has over the past seven years experienced persistently low and declining scores on the Index measures of discrimination (ranking 103rd globally in 2022), accessibility and affordability of the civil justice system (115th), discrimination in the civil justice system (121st), and impartiality of the criminal justice system (106th). In sum, these data underscore that rule of law progress is slow, and in the United States as elsewhere, it will take a sustained and concerted effort to recover fully from recent negative trends and address these other longstanding systemic weaknesses in its justice system.

Former Soviet States Take Divergent Paths

Notwithstanding this sobering picture, the WJP Index does reveal some encouraging patterns. Significantly, the 2022 Index underscores the importance of rule of law standards and accountability and the European Union’s (EU’s) rule of law norm-setting, in particular. Eight of the top ten performers are EU member states, and two of the most improved states (Kosovo and Moldova) are motivated applicants for EU membership. Although Hungary continues to defy EU pressure and saw its Index score fall further this year, EU aid conditionality may be resonating in Poland, where the Index registered its first gain of the past seven years.

Out of 102 countries that WJP has tracked since 2015, the top ten improvers include five former Soviet states (Moldova, Uzbekistan, Kazakhstan, Estonia, and Ukraine), contrasting markedly with Russia, which deteriorated 5.6% over the same period. These divergent paths reflect quite different visions for the future, playing out with devastating consequences for Ukraine currently. Estonia is securely anchored in the European Union, breaking into the top ten in the Index rankings this year, and Moldova and Ukraine have been motivated by similar western-oriented ambitions. Uzbekistan and Kazakhstan are not candidates for EU membership and have further to travel to shake off an authoritarian past, but both have consistently improved their Index scores as they pursue intentional liberalization strategies to attract foreign investment.

As concerning as the global rule of law trends are, the data from these states remind us that there is nothing inevitable about rising authoritarianism. Setting standards, supporting reformers, and measuring and tracking progress are critical strategies that can yield results. The WJP Rule of Law Index provides a robust evidence base for such efforts, and to that end, we invite you to probe and use the data at worldjusticeproject.org/index.  

The post Global Rule of Law Index: Easing Health Crisis Unmasks Persistent Governance Crisis appeared first on Just Security.

In 2018, when the UN Security Council unanimously adopted Resolution 2417 (2018), it was the first time the Security Council recognized the intrinsic link between hunger and conflict and condemned the use of starvation as a method of warfare, emphasizing that it may constitute a war crime. Through this resolution, the Council has empowered itself to act in situations where hunger and armed conflict are reinforcing each other in a deadly feedback loop.

To understand the importance of this resolution, it helps to go back to when the term “food security” was first introduced in the 1970s. It was used to highlight, at the highest political level, the importance of food’s connection to peace. Third World countries wanted to create a World Food Security Council akin to the UN Security Council. The Third World may have also used the term “security” to respond to direct threats from people like US Secretary of Agriculture Earl Butz who in the mid-1970s admitted to using food and hunger for geopolitical gains when he famously stated, “Food is a weapon. It is now one of the principal tools in our negotiating kit.”

What Happened at the Security Council

Not surprisingly, there was a divide over the cause of the world food crisis. Western countries focused on the Russian invasion of Ukraine, and some suggested that it was the principal cause of the global food crisis. There is no doubt in my mind that the Russian invasion of Ukraine is wrong, and that Russia is responsible for the death and displacement of millions of civilians. I thus noted that Russia should end the war immediately and unconditionally. The Russian invasion of Ukraine is one of the most recent global shocks to food systems, but it is not the cause. Rates of hunger and the risk of famine were on the rise before the COVID-19 pandemic and made even worse during the pandemic. 

Some European delegates went so far to say (or imply) that an attack against Ukraine is an attack against the global food system. I strongly advised against this line of thinking for two reasons. First, it suggests that if a country is not a principal exporter of a major food stuff, then the Security Council would consider it less of a priority to intervene and end an invasion or occupation. Second, if we have learned anything from the pandemic it is that all food systems are inherently interconnected; an invasion or occupation of any place is an attack on the global food system.

While the US and EU and their allies point to the Russian invasion of Ukraine as the cause of the current food crisis, the Russian Federation and their allies disagree and point to how unilateral coercive measures generate hunger and famine and disrupt food systems around the world. The Russian position has significant merit. Some of the same countries chastising Russia are countries implicated in the blockade against Yemen that has led to famine and the starvation of tens of thousands of children since 2015. Today, over 2 million children in Yemen are suffering from acute malnutrition.

In sum, despite this disagreement, both perspectives regarding hunger and conflict generally have been true. But neither side goes far enough in their food systems analysis. For instance, it is true that the Russian invasion of Ukraine disrupted global markets, and that prices are skyrocketing. How prices responded to the war also tells us that markets are part of the problem.

Markets are amplifying shocks and not absorbing them. I noted two things Member States could focus on to better understand why markets are causing more harm. First, the fact that a significant number of countries and the UN World Food Programme (WFP) relied on just 1 or 2 countries for a major food stuff like wheat tells us that the trade system does not work the way it should. Moreover, the World Trade Organization (WTO) has been at a standstill over agriculture negotiations and food security for over 25 years. There were some developments at the recent WTO Ministerial Conference since countries successfully negotiated several ministerial declarations on food security and the pandemic. However, these declarations have mostly been about process and lacked substance. Second, food prices are soaring not because of a problem with supply and demand as such; it is because of price speculation in commodity futures markets. Global prices have been drastically fluctuating for the past two years partly because commodity markets in the United States were deregulated in 2000 (through the Commodity Futures Modernization Act).

The other issue some delegates raised is the disruption of the supply of fertilizer caused by the war in Ukraine. For example, Belarus has been keen to export its fertilizer. I agree that in the immediate term, countries and suppliers should do what they can to ensure that farmers get access to fertilizer. But reliance on chemical fertilizers is the ultimate problem. Chemical fertilizer may sometimes boost production in the short term, nevertheless in the long term it will deplete the soil and harm the environment in effect violating people’s rights to life, food, and a healthy environment. There are a host of techniques that allow farmers to grow enough food without depending on chemical inputs, much less imported chemical inputs.

What is to be Done?

The question I rhetorically asked the Security Council was: Why is it only after the Russian invasion of Ukraine that there has been this degree of political focus on the food crisis that started in 2020? My answer was that we have all failed. Every UN agency, every regional body, every government has failed. In the past 60 years, hunger and famine has not been caused by inadequate amounts of food. Hunger and famine, like conflicts, are always the result of political failures. Governments and international institutions have failed to listen to the most vulnerable communities and respond to their demands. Governments and international institutions have failed to cooperate and coordinate. This is why we are facing the threat of more famine and more armed conflict.

The fact that only now is there some semblance of a global response to the food crisis reveals what is at stake. This is the moment in which international institutions’ legitimacy and national governments’ ability to maintain security is threatened.

The current food crisis, like the pandemic at large (as I explain in my most recent report), is driven by an international failure to cooperate and coordinate. For example, under the auspices of the Secretary General, a Food Systems Summit was held in September 2021. There we saw a global commitment to help every single country transform their food system to eliminate hunger, famine, and malnutrition, within the context of climate change and biodiversity loss. And yet, the Summit organizers consciously left out the pandemic and the food crisis, essentially wasting most people’s time.

Resolution 2417 can be a powerful tool because it recognizes that hunger is a cause and effect of armed conflict. It is powerful because it warns against using food as a weapon. It requires the Secretary General to report regularly to the Security Council, and there have been debates over how to make these reports more frequent and robust to trigger action. It might be the case, however, that when reports arrive regarding hunger and conflict it is too late to prevent the death spiral.

To address the issue of hunger and conflict, one must address the underlying causes of the food crisis. Corporate-led food systems around the world are increasing inequality and creating systems of dependency. As food prices skyrocket, many countries are faced with the impossible choice of either feeding people or servicing debt. Using public funds to ensure that people have access to adequate food can cause a government to fall into arrears, worsening financial shocks; servicing debt instead leads to more hunger and malnutrition. The international economic and financial architecture treats food as a commodity and has not served people’s real food security needs. All while climate change continues to disrupt food systems and governments dither.

Only a global right to food plan will eliminate hunger, and therefore eliminate one of the causes of violence and armed conflict. As I detail in my July report to the General Assembly, the easiest first step is to extend pandemic-era policies that have proven to strengthen the realization of the right to food and convert them into permanent programs. Long term change will have to begin with increasing biodiversity, ensuring a just transition for workers, enacting land rights and genuine agrarian reform, and curtailing corporate power.

IMAGE: The UN Security Council ministerial debate over international peace and security, conflict and food security at UN headquarters in New York on May 19, 2022. (Photo by Andrea RENAULT / AFP) (Photo by ANDREA RENAULT/AFP via Getty Images)

The post Framing the Problem of Hunger and Conflict at the UN Security Council appeared first on Just Security.

Dubbed a “Stephen Miller special” by one former Trump administration official, the Title 42 policy has since March 2020 allowed the use – or misuse, as public health experts have repeatedly concluded – of public health authority to block and expel people at the U.S. southwest border without due process, adherence to refugee law and treaties, or immigration law consequences. In a lawsuit initiated by state attorneys general aligned with the Trump administration, a federal district court in Louisiana issued a preliminary injunction last month forcing continuation of the policy, which the Centers for Disease Control (CDC) had ordered to end by May 23, 2022.

On the Hill, some members of Congress are working to force continuation of this policy legislatively. For example, on Friday, June 24, the House Appropriations Committee adopted an amendment to the Department of Homeland Security (DHS) funding bill for Fiscal Year (FY) 2023  that, if ultimately enacted, would seek to extend the specious policy and its use as an asylum ban indefinitely.

A recent Just Security article outlined ways in which the policy is a humanitarian and human rights disaster, as well as the various Title 42 litigations in the courts. One of the great absurdities of the concerted push to maintain the policy is that it should please no one – including those who continue to advocate for it in the name of rule of law or “border control,” both of which Title 42 undermines.

Proponents of the forced continuation of the Title 42 “public health” policy have absurdly and inaccurately painted it as a tool needed for “controlling the influx of migrants at our southern border” and claim it needs to stay in place to “secure” the border. Far from being an effective border management tool, the Title 42 policy is a failed attempt at a border policy. The policy actually prevents U.S. agencies from enforcing immigration law, spurs increased crossings between ports of entry, inflates border apprehension statistics, exacerbates cartel violence and insecurity at the border, facilitates discriminatory asylum policies that target Black, Brown and Indigenous asylum seekers, and subverts both U.S. and international law. This is all in addition to the grave human rights abuses suffered by those expelled to Mexico, Haiti, and other countries under the policy – abuses which Human Rights First (where I work) has closely tracked since the policy’s inception. Efforts to force continuation of the Title 42 policy, whether in the courts or on the Hill, will cause even more disorder and damage – which perhaps is the goal. It is past time to end the travesty and restore adherence to U.S. law and treaties.

Title 42 Is Bad Border and National Security Policy

The use of Title 42 has spurred repeat crossings at the border, inflated border statistics, benefited cartels, and caused disorder at the border. Title 8, unlike Title 42, produces legal consequences, such as removal proceedings, removal orders, formal deportations, and prohibitions on re-entry. In testimony before the Senate Homeland Security and Governmental Affairs Committee in May 2022, Acting DHS Assistant Secretary for Border and Immigration Policy Blas Nuñez-Neto told lawmakers that Title 42 does not impose legal consequences, led to repeat attempts to cross the border, and “has actually inflated our numbers at the border.” In written testimony, he stated that:

[Title 42] has led to extraordinarily high recidivism rates, as individuals expelled to Mexico attempt to re-enter shortly after their expulsions. For example, since April 2020, 94 percent of single adults encountered from Mexico and the Northern Triangle have been expelled under Title 42 authority, and during that time, these two groups have had had repeat encounter rates of 52 percent and 51 percent, up from 25 percent and 15 percent, respectively, between October 2013 and February 2020.

He also told lawmakers that, by using Title 8 immigration law instead of Title 42, “you are going to see a decrease” in numbers at the border. Earlier this year, U.S. Customs and Border Protection (CBP) had concluded that the number of border encounters “was partly driven by high recidivism rates (repeat encounters) among individuals processed under the CDC’s Title 42 public health authorities.”

Other authorities and experts have also raised alarms about the disorder caused by Title 42. In a June 2021 report, the Government Accountability Office (GAO) found that Title 42 expulsions led to “some individuals trying to cross the border multiple times per day” and that the repeat crossing rate rose to 34 percent during the first quarter of FY 2021, meaning that one in three people encountered at the border at that time had been previously expelled or deported. An American Immigration Council (AIC) analysis found that Title 42 significantly increased overall border crossings, that one in three apprehensions had been repeat border crossings since Title 42 began, and that the increase in apprehensions has been seen mostly among single adult migrants.

With respect to people seeking refugee protection, Title 42 has been used to ban and block them from seeking asylum at official ports of entry; it has also pushed asylum seekers – including Cubans, Haitians and Venezuelans – who previously mostly approached official border posts to seek asylum, to instead attempt to cross into the United States between ports of entry. For instance, as Human Rights First recently explained in a June 2022 report, government data confirms that in FY 2017, 99 percent of Cubans and Haitians encountered at the southern border had arrived through a port of entry. But after years of “metering” restrictions and Title 42 expulsions, in FY 2022 to date, just 0.2 percent of Cubans and 14 percent of Haitians arriving at the southern border were able to present themselves at a port of entry. The percentage of Haitians arriving through ports of entry rose in April and May 2022, as some ports of entry processed limited numbers of Haitian asylum seekers through Title 42 exceptions. More limited data also shows that the percentage of Venezuelan asylum seekers presenting themselves at ports of entry has followed a similar trend, plummeting from 56 percent in FY 2020 to just 0.2 percent in FY 2022 to date.

In fact, the Title 42 policy created a vicious cycle of disorder as CBP deployed staff away from processing at ports of entry to respond to increased crossings between ports and in vehicle lanes, even though the failure to process asylum seekers at ports of entry is a major factor driving many to cross away from the ports. Title 42 and similar policies that evade U.S. asylum law have also driven family separations and contributed to the arrival of unaccompanied children, as some parents fear leaving their children waiting even longer in danger in Mexico. In FY 2021, more than 12,000 children reentered the United States as unaccompanied minors after having been expelled under Title 42, usually with their parents, according to data obtained by CBS News.

Counterproductive policies such as Title 42 have benefited the criminal cartels that control extensive territories in Mexico and present a threat to both U.S. security and the lives of people turned away to these areas. As Human Right First detailed in a February 2022 report, cartels have adapted to turnback policies by targeting the very asylum seekers turned away by CBP – kidnapping them, purporting to charge them for the right to remain in Mexico, torturing them and demanding ransom payments from their U.S family members. Some of these organizations are working to actively prevent asylum seekers from approaching ports of entry, as the restoration of port of entry processing for asylum seekers threatens the cartels’ control and extortion efforts. The June 2021 GAO report indicated that Border Patrol officials had concluded that rapid “expulsions under Title 42 have negatively affected enforcement by reducing opportunities to gather intelligence.”

Title 42 Is a Human Security Disaster 

The victims of the Title 42 policy have suffered predictable and grave human rights abuses. Human Rights First and other groups have tracked at least 10,300 reports of murder, kidnapping, rape, torture, and other violent attacks against people blocked in or expelled to Mexico due to Title 42 since January 2021. Recent reports include attacks on a lesbian asylum seeker from El Salvador raped after being expelled to Mexico under Title 42, a transgender man from Honduras and his girlfriend blocked from requesting asylum due to Title 42 who were raped by men who said they were “going to teach them how to be women,” and a Nicaraguan woman kidnapped with her four-year-old child and raped, who remain stranded in danger in Mexico. Jocelyn Anselme, a 34-year-old Haitian asylum seeker, was murdered during an attempted assault and robbery in Tijuana in May 2022 while blocked from seeking asylum due to Title 42.

Expulsions overwhelmingly target people seeking asylum who are Black, Brown and Indigenous, in sharp contrast to the administration’s commitment to racial equity. The Biden administration has accelerated expulsions to Haiti despite the escalating armed violence, which the U.N. High Commissioner for Human Rights observed in May 2022 “has reached unimaginable and intolerable levels in Haiti.” About 4,000 Haitians were expelled or deported on at least 36 flights in the month of May 2022 alone—the second highest number of flights to Haiti during the Biden administration. DHS has disproportionally targeted Haitians for expulsion flights. As the New York Times noted in May 2022, “Haitians represented about 6% of the migrants crossing the border with Mexico but occupied 60% of expulsion flights.”

The attorneys, faith volunteers, and humanitarian workers who assist asylum seekers and migrants have also been targeted by cartels as their assistance to the people left stranded in danger due to these policies is viewed as a threat by the cartels.

In the wake of Title 42 and similar policies, border crossings have become increasingly deadly, with the International Organization for Migration (IOM) reporting that at least 650 people died attempting to cross the southern U.S. border in 2021—the deadliest year since IOM began to tally migrant deaths in 2014. The horrific and tragic deaths of 53 men, women and children found in a tractor-trailer in San Antonio on June 27, 2022, are the heart-breaking consequence of policies that deny access to asylum and other legal migration routes.

Title 42 Subverts the Rule of Law

For years now, the ability of people seeking asylum to do so at the U.S. southwest border has not been determined by the relevant U.S. refugee and immigration law, due to the imposition of Title 42 and similar policies. Instead, the ability to seek asylum has been determined by a host of other, often discriminatory, factors such as nationality, family status, location of crossing or arrival at the border, the age of children, the decisions of individual border officers, and/or the migration return policies of other countries such as Mexico, Guatemala, Haiti, Cuba, Nicaragua, or Venezuela.

So, for instance, whether or not Cubans, Nicaraguans, and Venezuelans are subjected to Title 42, turned away to Mexico, or allowed to seek asylum depends on the policies of the Mexican government and/or whether or not their repressive regimes agree to accept back migrants. And Haitians are put on flights to Haiti and denied access to asylum in violation of international law because their politically unstable government agrees to accept their return. In other cases, the policy of the Mexican state of Tamaulipas and the age of a family’s child determined whether some families were allowed to seek U.S. asylum or were turned away under Title 42 – as the state of Tamaulipas refused to accept expelled children under the age of seven.

Using the Title 42 policy to return people to places where they face persecution and torture violates not only U.S. refugee law but also international law and treaty obligations – as former and current U.S. government officials, federal courts, the U.N. High Commissioner for Refugees, the Inter-American Commission on Human Rights, the Special Rapporteur on the Human Rights of Migrants, and the DHS Office for Civil Rights and Civil Liberties have warned. The U.N. High Commissioner for Refugees has, for example, repeatedly called on the United States to end the Title 42 policy and to “restore access to asylum for the people whose lives depend on it, in line with international legal and human rights obligations.”

The State Department’s former top legal advisor Harold Koh concluded the policy was both “illegal and inhumane” before he resigned. He subsequently reiterated his conclusion that the Title 42 policy is illegal in an April 2022 interview. As explained in a recent Just Security article, in March 2022, in response to litigation brought on behalf of families, the U.S. Court of Appeals for the D.C. Circuit held that the Title 42 policy is likely illegal and that the U.S. government “cannot expel [asylum seekers] to places where they will be persecuted or tortured.”

The lack of adherence to actual refugee law and legal standards at the border allows and facilitates discriminatory double standards, such as the disparate expulsion of Haitians referenced above and the provision of Title 42 exemptions to (white) Ukrainians at the U.S. southwest border while DHS continued to deny access to Haitian and other Black asylum seekers, as well as Central Americans. An adult who crosses the border to seek asylum from El Salvador, Guatemala, or Honduras will likely be expelled under Title 42, while those from Cuba, Nicaragua or Venezuela will generally be allowed to seek asylum. These disparities are not determined by U.S. refugee law and treaties and run contrary to the Refugee Convention’s non- discrimination provision.

The failure of the United States to respect its refugee law and treaty obligations sets a counterproductive example for the rest of the world, including the low and middle-income countries that actually host the vast majority of the world’s refugees, and undermines the ability of the United States to encourage other countries to continue to welcome and host those refugees. The Title 42 policy threatens to subvert respect for international refugee law as well as international law more broadly, as Professor Oona Hathaway warned in Just Security shortly after the Title 42 policy was initiated. The policy, and the poor example it sets for other countries, also undermines efforts to combat authoritarianism. Indeed, in light of the risks facing victims of repression when they attempt to seek refuge, Freedom House has called on states to respect the right to seek asylum and uphold the Refugee Convention, stressing that states “should not create policies with the aim of preventing asylum seekers from accessing their territory.”

To Support Orderly Border Processes, Oppose Forced Prolonging of Title 42

Despite all this damage, some members of Congress have been attempting to force the indefinite continuation of this failed policy through legislation. Senator James Lankford (R-OK) and Kyrsten Sinema (D-AZ) introduced the Public Health and Border Security Act of 2022, and Representative Tony Gonzales (R-TX) introduced a similar bill by the same name in the House. These bills seek to wrest the authority to make public health determinations from the CDC, keeping the Title 42 order in place until after the public health emergency connected to COVID-19 is terminated. On June 26, Representative Dan Newhouse (R-WA) successfully introduced an amendment, in the House Committee on Appropriations, to the FY 2023 DHS funding bill to try to block funding for salaries or expenses to process migrants under Title 8 immigration law until 180 days after the public health emergency is officially terminated – a disturbing attempt to prevent U.S. officers from upholding U.S. immigration and refugee law indefinitely.

The Congressional push to maintain Title 42 and use it to ban asylum has been accompanied by now standard, orchestrated, border “invasion” fearmongering. Newhouse claimed his amendment to force continuation of Title 42 was needed to manage the “border crisis” and a “flood” of migrants. Some congressional offices may be deceived or confused about the actual, counterproductive impact of Title 42, or may be trying to appease accusations that they are not “tough” on the border (even though no amount of cruelty will ever appease the long planned, unappeasable border fearmongering). Perversely however, as outlined above, the forced continuation of Title 42 serves to prevent border officers from upholding immigration law, and leads to more disorder, human suffering, and the subversion of law.

The Biden administration is far from blameless in this fiasco. While the administration is contesting the recent district court preliminary injunction in the suit brought by state attorneys general, multiple media reports indicate that several senior Biden administration officials made the decisions to continue the Title 42 policy during 2021. These legal, moral, and political miscalculations served to exacerbate the disorder at the border, delay the restoration of asylum at ports of entry, and provide the perpetrators of divisive invasion rhetoric with a steady diet of inflated border numbers for their fearmongering.

It is past time for a major course correction. The administration must do all it can to bring this failed policy, as well as the unfixable Remain in Mexico policy that the Supreme Court ruled on yesterday, to an end and mitigate the harm inflicted – to human lives and the rule of law – in the meantime. The courts and members of Congress should halt all attempts to prolong this travesty. In addition, the House of Representatives and the Senate must remove the dangerous and counterproductive Newhouse amendment, which violates U.S. refugee and immigration laws, from the DHS appropriations bill before sending the final bill to President Biden.

Image: YUMA, ARIZONA – MAY 22: Immigrants from Ecuador warm themselves by a fire after sunrise along a gap in the U.S.-Mexico border barrier, as they await processing by the U.S. Border Patrol, after crossing from Mexico on May 22, 2022 in Yuma, Arizona. Title 42, the controversial pandemic-era border policy enacted by former President Trump, which cites COVID-19 as the reason to rapidly expel asylum seekers at the U.S. border, was set to officially expire on May 23rd. A federal judge in Louisiana delivered a ruling May 20th blocking the Biden administration from lifting Title 42. (Photo by Mario Tama/Getty Images)

The post The Absurdity and Destruction of the Push to Force Title 42 Continuation appeared first on Just Security.

Despite Legal Challenges, Unlawful Expulsions Continue

Since March 2020, the land borders to Mexico and Canada have been effectively closed to asylum seekers under an obscure 1893 public health law now known as Title 42. Senior White House officials under former President Donald Trump such as Stephen Miller seized upon the provision to bypass asylum laws and summarily expel noncitizens without any of the protections guaranteed by Congress. In claiming this never-before invoked authority, the Trump administration imposed Title 42 over the objections of public health experts within the Centers for Disease Control and Prevention (CDC) who rejected the expulsion of noncitizens as unnecessary and ineffective at containing the spread of COVID-19. And despite scientific advances in preventing and treating COVID-19, border officials have continued applying Title 42, making thousands of expulsions each month over the span of two years—with over 75 percent of expulsions under the Biden administration.

For nearly as long, Title 42 has been the center of multiple legal challenges. In the first bucket of challenges starting summer of 2020, unaccompanied noncitizen children sued the federal government to stop their expulsions. In November 2020, a district court enjoined Title 42 as applied to unaccompanied children and, weeks after the Biden administration took office, the CDC voluntarily exempted unaccompanied children from Title 42. Over several orders in 2021, the CDC explained how there were sufficient “measures in place to prevent and mitigate transmission of COVID-19 in this population,” including vaccination, testing, masking, and other protocols.

Even though these considerations could have been equally applied to families and single adults, from 2020 to 2022, the CDC continued Title 42 as to those groups, citing DHS’s failure to invest in adequate mitigation protocols in CBP facilities. As a result, the American Civil Liberties Union (ACLU) along with other advocacy groups sought and won an injunction in district court in September 2021, preventing the government from expelling families with children under Title 42. But the Biden administration not only appealed this decision, it also successfully argued for a stay on the injunction, thereby continuing to send families back to danger. On March 4, 2022, over the Biden administration’s objections, the D.C. Circuit unanimously held that Title 42 may not be used to send families back to persecution or torture.

The decision in the Huisha-Huisha case (a matter in which the authors are co-counsel) is critical for two reasons. First, it unequivocally holds that Title 42 cannot trump all immigration laws guaranteeing access to humanitarian protections. Thus, it was unlawful for the government to expel people without first ensuring they will not be returned to persecution or torture (as required under other immigration statutes). Second, the court cast grave doubt on the policy’s public health justification, calling Title 42 “a relic from an era with no vaccines, scare testing, few therapeutics, and little certainty.”

Seeing the writing on the wall, the CDC, at long last, announced the end of Title 42 in spring of 2022. On April 1, the CDC recognized that Title 42 “is no longer necessary” to protect public health and announced its termination as to all noncitizens, including families and single adults, starting May 23. But, as with the Biden administration’s attempts to end the Remain in Mexico policy and realign enforcement priorities, states including Texas, Arizona, and Louisiana interjected themselves into immigration policymaking for the nation. Notwithstanding the changing course of the pandemic and their own dubious track record with COVID-19 mitigation measures, these states have lobbed lawsuit after lawsuit against the Biden administration’s attempts at terminating Title 42 and other border policy changes. On May 20, just days before Title 42 was set to expire, a district judge in Louisiana issued a preliminary injunction, accepting the argument of Louisiana and 23 other states that they would be harmed by ending the policy. Even though the Biden administration immediately appealed the decision, they did not seek a stay of the decision from either the district court or the Fifth Circuit.

The litigation from conservative-led states over Title 42 – which has consistently highlighted immigration-related concerns, not public health ones – reveals what should have been evident all along: Title 42 was never about COVID-19 or public health, and it is now being openly embraced as a border control policy. As a result, the Biden administration is now forced, under court order, to expel thousands per month back to harm, in violation of these individuals’ rights to seek safety in the United States.

Title 42 Ended Asylum Access at the Border, Created a Humanitarian Crisis

Taking a step back from the ongoing legal battles, the impact of Title 42 on access to asylum protections and conditions on the ground at the U.S.-Mexico border has been catastrophic. By instituting the Title 42 expulsion policy, the Trump administration co-opted the COVID-19 pandemic to achieve its long held goal of ending access to asylum at the border. Despite promises to restore the asylum system, the Biden administration continued Title 42 and summarily expelled more people than President Trump’s administration did before seeking to end the policy. Under both administrations, the expulsion policy has driven up apprehension numbers and inflicted immeasurable harm on vulnerable people seeking safety.

As evident throughout the pandemic, Title 42 has done little or nothing to mitigate the spread of the coronavirus.  Leading epidemiologists, former CDC officials, and other public health experts have consistently pointed out that Title 42 ignores the science. Instead of implementing mitigation measures sufficient to protect the public and migrants, the Trump and Biden administrations have opted for unnecessary and inhumane summary expulsions in ways that were counter to public health – including subjecting individuals to detention and lateral flights from one part of the border to another before they are expelled.

There is, of course, no evidence that arriving asylum seekers pose a greater public health risk than the over 15 million pedestrians and personal vehicles crossing the U.S.-Mexico border each month. People subjected to Title 42 constitute far less than one percent of all border crossings and, as Dr. Anthony Fauci, director of the National Institute of Allergy and Infectious Diseases, has made clear, immigrants are “absolutely not” driving the spread of COVID-19 in the United States and expelling them “is not a solution.”

Instead of serving any public health purpose, Title 42 has placed millions in harm’s way and at risk of persecution. In fact, Title 42 functionally included no screening mechanism to ensure people were not returned to persecution or torture – not even the cursory screening procedures that were supposedly implemented under the policy. According to reporting from CBS News, prior to May 2022, only a reported 0.28 percent of those expelled received the wholly inadequate torture screening that was nominally mandated in the original Title 42 policy. It remains to be seen if recently implemented court mandated screenings for families provide meaningful protection against return to danger.

Such guardrails are necessary because migrants, including families and children, experience kidnapping, torture, rape and other violent attacks following expulsions to Mexico. Over 10,000 such incidents have been documented by nongovernmental organizations under the Biden administration alone. Those cases include LGBTQ asylum seekers exposed to sexual violence and the abduction and torture of a pregnant woman from Nicaragua, causing her to lose her baby.

Beyond expulsions into Mexican border towns where migrants are targeted for violence and extortion, the administration has used Title 42 to return potential refugees directly to the countries from which they fled, including to El Salvador, Guatemala, Haiti, Honduras, and Mexico. They have even expelled some Venezuelans to Colombia. Such expulsions blatantly violate refugee law, exposing those with even the most clear-cut asylum claims directly to the persecution from which they have a right to be protected under U.S. and international law.

Expulsions directly to migrants’ home countries have disproportionately targeted Haitian and other Black asylum seekers. Since taking office, the Biden administration has forced Haitians onto at least 266 flights back to Haiti, removing around 26,100 individuals, including families. A staggering 1 in 435 people in all of Haiti are there following deportation from the United States since Biden took office, mostly via Title 42 expulsions. In September 2021, the Biden administration undertook an extensive expulsion effort of Haitians back to Haiti, including dispatching border officers on horseback to forcibly round up migrants and clear camps in Del Rio, Texas. The roundup drew resounding international condemnation for both the actions of border agents and because of the risk that the returns exposed thousands of Haitians to further danger and persecution in Haiti. The Congressional Black Caucus, among others, have specifically demanded an end to Title 42 expulsions to Haiti. In stark contrast to the Biden administration’s treatment of Black and Brown refugees, when thousands of Ukrainians recently arrived at the border in Tijuana, the Biden administration funneled resources to quickly and efficiently process them into the United States without subjecting them to Title 42. This processing included the creation of a separate parole process.

Beyond its inherent risks and the apparent inconsistency in its application, Title 42 has artificially elevated border apprehensions numbers, distorting perceptions of the situation at the border. In Fiscal Year 2021 one-third of all apprehended individuals had previously crossed and been expelled. These totals include some asylum seekers who, in desperate need of immediate safety, are attempting multiple crossings in hopes their plea for protection will be heard. By quickly expelling migrants across the border to Mexico, Title 42 is a boon for cartels, who take advantage of stranded migrants for kidnapping, extortion, and extraction of additional money for multiple crossing attempts. Title 42 also encourages smugglers to attempt to avoid apprehensions through more dangerous crossing routes and evading arrests. Between 2019 and 2022 for example, fatalities resulting from Border Patrol vehicle pursuits increased 11-fold. Prior to Title 42, most “apprehensions” involved vulnerable asylum-seeking families and children voluntarily seeking out border officials for processing, rather than fleeing – and putting themselves in danger – to avoid immediate expulsion. But under Title 42, asylum seekers have no access to ports of entry and are pushed to cross between ports, increasing the dangers they face and feeding the political narrative of disorder at the border.

Finally, Title 42 has been shown to put parents in the impossible situation of choosing their children’s safety over remaining together. Because unaccompanied children are not subject to expulsions, many families have been compelled to send their children across the border alone to get them out of harm’s way (including the risks they face in Mexico) and spare them from expulsion, leaving caregivers behind. In other words, Title 42 has functionally forced family separations onto asylum seekers.

 Title 42 Can and Must End

This article is not the first and will be far from the last to critique Title 42 as a policy. But at this juncture – after over two years of shutting down asylum at the border – it should be evident how much of a failure Title 42 has been: It has not contained the pandemic or served the public, nor has it addressed the factors driving people to seek shelter in the United States. The policy’s only benefit is to politicians who instrumentalize the perceived chaos at the border to score political points ahead of this year’s midterm elections. But to accept this framing would mean abandoning any commitment to science, asylum, the rule of law, and good governance. Title 42 is a failure, and the Biden administration can and must do better by continuing to defend its rescission – in the media, Congress, and the courts – and by ensuring people are not expelled to persecution or torture.

The next few months will prove critical as litigation plays out: the Biden administration must simultaneously defend its rescission of Title 42 before the Fifth Circuit, push ahead with ending Title 42 through formal notice and comment procedures, and comply with the Huisha-Huisha decision not to expel people without proper humanitarian screenings. The Biden administration will need to be aggressive on all these fronts in order to prove its commitment to restoring asylum at the border.

 Image: YUMA, ARIZONA- MAY 20: An immigrant mother from Colombia embraces her daughter and husband after traveling for 20 days and crossing the U.S.-Mexico border barrier on May 20, 2022 in Yuma, Arizona. Title 42, the controversial pandemic-era border policy enacted by former President Trump, which cites COVID-19 as the reason to rapidly expel asylum seekers at the U.S. border, was set to officially expire on May 23rd. A federal judge in Louisiana delivered a ruling blocking the Biden administration from lifting Title 42. (Photo by Mario Tama/Getty Images)

The post Title 42 is a Failure Yet Still Dominates U.S. Border Policy appeared first on Just Security.

The protest against pandemic restrictions spread to border blockages at the Ambassador Bridge between Windsor, Ontario, and Detroit, Michigan, shutting down auto plants on both sides of the border that rely on just-in-time cross-border delivery. Some western border sites between Manitoba and North Dakota and between Alberta and Montana have also been shut down. Canada has received a somewhat humiliating offer of assistance from the U.S. Department of Homeland Security. As of Sunday, police had cleared access to the Ambassador Bridge with arrests, and the mayor of Ottawa may have reached an agreement with the occupiers to retreat from residential areas. This morning, it was announced that the federal government would likely invoke the Emergencies Act if convoy organizers did not meet a noon deadline to clear out of residential streets.

But the question remains: How did things ever get this bad?

Putting the “Freedom” occupation in context requires understanding Canada’s past overreactions to national security crises, its failure to take the risk of far-right violent extremism seriously, its failure to modernize laws dealing with protests, and its divided and often dysfunctional system of policing.

Past Overreactions

Prime Minister Justin Trudeau has been unwilling to follow in the footsteps of his father, Prime Minister Pierre Trudeau, who invoked martial law and called in the troops in October 1970 in response to two kidnappings by a terrorist group committed to Quebec separatism.

There is good reason for this. The October Crisis still haunts Canada. It is possible to draw a straight line from it to the enactment of the 1982 Charter of Rights as a constitutional bill of rights and the transfer of the intelligence mandate from the Royal Canadian Mounted Police (RCMP) to the civilian Canadian Security Intelligence Service (CSIS).

Ever since, CSIS has been stingy with sharing intelligence with the police, in part because of fears that intelligence might have to be disclosed under Canada’s broad disclosure rules created by the courts under the 1982 Charter of Rights. One example of that: police in Canada had to rely on intelligence from the FBI in the recent Jeffrey Delisle and Cameron Ortis espionage cases, because CSIS did not share similar intelligence with them.

The ghost of the October Crisis has been re-enforced by other instances of overreactions to protest, even after the reforms of the 1980s. These include the 1990 stand-off between the military/police and Mohawk protesters in Oka, Quebec, in which security forces used tear gas and grenades and a police officer was killed in the resulting confusion and gunfire, and by the police killing of Indigenous protester Dudley George in 1995, for which a police officer was subsequently convicted.

The law that allowed Trudeau senior to send in the troops in 1970 has been replaced with an Emergencies Act that the government has not used during the pandemic, due to near universal provincial opposition, and which was widely believed to be inadequate to deal with the present protest crisis. This as well as reluctance of the Conservative Ontario government to ask for military assistance also explains why, as of Sunday, the military had not yet been asked, under the National Defence Act, to assist with the Ottawa occupation, even though some military assistance may eventually be necessary, if only to assist with towing away large trucks that have blocked downtown streets.

Slow to Act on Far-Right Extremism

Although it is an overgeneralization to think all of the protesters are far right extremists, the protests are influenced by elements of the transnational far right. There is also some evidence that far right actors in the United States and elsewhere are seizing on the dynamics of the Canadian protests to amplify a global far-right message.

Canada has been slow to recognize violent far right extremism despite incidents of far right terrorism including a 2014 shooting rampage in which a man who wanted to overthrow the government killed three RCMP officers; a 2017 killing of five men at a Quebec City mosque by a man motivated by Donald Trump, David Duke, and anti-Muslim sentiment; a 2020 attempt by a military reservist to confront Prime Minister Justice Trudeau, who the reservist feared was imposing a communist dictatorship in Canada; and a 2021 killing of four members of a Muslim family by a man wearing swastika.

Canada’s programs for countering violent extremism are under-developed and adversely affected by federalism. Attempts have been made to deprive the convoy of funding, first through GoFundMe and then through GiveSendGo, but without obvious success. GiveSendGo announced it would ignore a court order to stop distributing funds sent to protesters, stating: “Know this! Canada has absolutely ZERO jurisdiction over how we manage our funds here at GiveSendGo.”

Failure to Modernize Laws Governing Protests

The Canadian Criminal Code contains archaic provisions criminalizing sedition, unlawful drilling, and riots, complete with provisions for literally reading the riot act. In late 2021, in the face of pandemic-related protests that interfered with access to public services, the Canadian Parliament acted but in a typical piecemeal and partial way by creating new offences with respect to blockades of hospitals and harassment of medical health workers.

Modern criminal regulation of protests as in the UK would have required the leaders of the protest to give advance notice to the police and provided offences if they failed to give notice or did not abide by conditions or restrictions placed on the protest. This could have made clear that the blocking of streets and borders as well as access to Parliament would have been prohibited and enforced. It also could have given the police the power to arrest and charge if protesters engaged in threats, harassment and displays of racial or religious hatred. Such restrictions would almost certainly have been challenged under Canada’s constitutional bill of rights but could be justified as a reasonable and proportionate limit on rights. But the Canadian Parliament, especially one in which the Liberal government does not have a majority, has only addressed blockades and protests against health care workers. More comprehensive legislation to deal with protests would have been controversial, but perhaps less so after the damage done by the “Freedom Convoy.”

Fragmented Policing

Unlike New Zealand, which quickly arrested over 120 protesters at their legislature inspired by the Canadian convoy, or the French police, which responded to attempts by a convoy to enter Paris with 7,000 police, Canada, like the United States, has a fragmented and localized police structure. This complicates demands by the Biden administration that Canada “use federal powers to resolve this situation at our joint border.” The RCMP acting as federal police only has jurisdiction over actual federal property. It is the local police that is responsible for the public street (now occupied by trucks, tents, and even a hot tub) that runs in front of the Parliament building and the main highway in Windsor leading to the Ambassador Bridge. Such arrangements should now be reconsidered.

The Ottawa police seem unprepared for the occupation, even though there was advance notice of the truckers’ convoy, which started in western Canada. The Ottawa Police Service Board had a major events policy in place that contemplated advance planning both by the police and the Board. It has policies on Indigenous protests and labour disputes but not specific policies on protecting Parliament. There is no public evidence of what, if any plan, was prepared for the convoy of truckers.

This is not the first time that fragmented policing has created a national security risk. A terrorist motivated by Daesh was able to enter Parliament on Oct. 22, 2014, after killing a soldier guarding the Ottawa war memorial. A heavily redacted after-action report indicated that the policing of Parliament was a mess, with responsibilities divided – often in unclear ways – across both House of Commons and Senate police, the federal RCMP, and local police.

As the convoy protestors drove past Parliament, it became clear that those issues of policing responsibility have not been resolved. The Ottawa police has since the early days of the protest requested 1,800 more officers from the RCMP and the Ontario Provincial Police (OPP). There has been a lack of clarity about how many officers have actually been provided. The provincial minister in charge of the OPP has been reluctant to participate in discussions, and some of the 5,550 officers in the OPP have been diverted to enforce an injunction against the Ambassador Bridge blockade in Windsor. Meanwhile protesters have dug in in the face of Parliament.

The Ottawa convoy protest was not predestined to drag on for as long as it has, and its seeming intractability is the result of, among other things, specific policing decisions. The Toronto police, for example, performed better than the Ottawa police in preventing blockades by large trucks. One factor may have been its response to criticisms that its police board did not adequately plan for the 2010 G20 demonstrations that resulted in over 1000 arrests.

The consequences of fragmented policing can also be seen in other provinces’ responses to trucker protests. The border blockades in western Canada were policed by the RCMP, but acting as local policing under contracts with provincial governments. Matters seemed to have been left to the RCMP without clear or transparent guidance from either responsible provincial or federal ministers. This may reflect an overbroad understanding of police independence from government direction as extending to all operational matters that seemed to be embraced at the federal level. It may also reflect some sympathy for the protests by the Conservative governments of Manitoba and Alberta. The Alberta government has refused to declare an emergency. Only one charge has been laid under its Critical Infrastructure Defence Act, enacted in response to anti-pipeline and Indigenous protest, raising concerns about inequities given heavy handed policing of Indigenous protests. At the same time, Premier Jason Kenney has given protesters what they want by announcing an end to most pandemic measures.

The Conservative government of Ontario, facing an election this June, has taken a different approach, declaring a provincial emergency and creating offences of blocking critical infrastructure tied to license suspensions. This may have helped clear the Ambassador Bridge, but its effects on the Ottawa occupation remain unclear.

The failure to respond to the Ottawa blockade also raises concerns about the equal application of the rule of law. Participants in the trucker convoys are conservative, primarily male, and almost entirely white. Protestors representing marginalized groups have experienced less deference from police. In November 2020 the Ottawa police arrested and charged with mischief 12 people who blocked an intersection in downtown Ottawa in protest of the acquittal of a white police officer for killing a Black man. The charges were eventually withdrawn as not in the public interest but Canada has engaged, and continues to engage, in massive and militarized police enforcement against Indigenous protests and occupations.

News is now circulating that the federal government may soon invoke the Emergencies Act. But this would not solve the problem of undergovernance of the Ottawa police or of the OPP or the RCMP in its contract policing role that has plagued the response to the occupation. Section 20 of that Act provides that the declaration of an emergency does not take away the powers that municipalities and provinces have over their police forces, including over the RCMP when it provides local contract policing. Even the extraordinary use of emergency powers would not under law “deputize” or give the federal government power over the local or provincial police.  Things are different if a province requests the federal government to send in the troops. If a province requests that the military be called in “in aid of civil power,” the federal Minister of Defence would govern the use of troops in consultation with the provincial Attorney General.

The use of aid of civil powers or emergency powers would represent the ultimate failure of policing and especially police governance. A mandatory federal inquiry would follow the use of the Emergencies Act, and a mandatory provincial inquiry would follow the use of the military in aid of civil power to produce a report for the federal government about why the police alone could not handle the riot or disturbance. Undoubtedly such inquiries would, like so many before them, point out the need for proper proactive governance of the police including with respect to the policies that should guide police operations. One of Canada’s many security challenges is that both governments and police have found it convenient to accept inflated claims of police independence over all operational matters and simplistic and inaccurate views that governments can never direct the police.

Many in Canada, and especially Ottawa, have been left with a sense that their governments are missing in action. Governments and the police have lost control of the escalating blockades, bringing economic harms and international embarrassment to Canada. To be sure, such occupations are difficult for democracies to confront. But it is also government’s responsibility to do so, and the failures of policing policy outlined above have created opportunities for bad-faith actors to exploit, at a time when far-right extremism is on the rise in Canada and globally. Canada will have to re-evaluate its laws regulating protests and its approaches to far-right extremism and policing once these very troubling occupations have ended.

IMAGE: A truck is allowed to drive away as police clear the road during a protest against Covid-19 vaccine mandates and restrictions in downtown Toronto, Ontario, Canada, February 5, 2022. Protesters again poured into Toronto and Ottawa early on February 5 to join a convoy of truckers whose occupation of Ottawa to denounce Covid vaccine mandates is now in its second week. (Photo by Geoff Robins / AFP) (Photo by GEOFF ROBINS/AFP via Getty Images)

The post “Freedom Convoy” Occupation Highlights Canada’s Security Challenges appeared first on Just Security.

Vaccine apartheid as a concept calls attention to the effects of inequitable vaccine distribution policies on historically subordinated peoples. Vaccine apartheid has meant that people living in many countries in the Global South are being denied significant doses of vaccines. Some reports indicate that “for every 100 people in high-income countries, 133 doses of COVID-19 vaccine have been administered, while in low-income countries, only 4 doses per 100 people have been administered.” Using vaccine apartheid to characterize this state of affairs is important because it troubles, and renders suspect, the use of terms like vaccine nationalism to describe countries hoarding enough supplies to vaccinate their populations several times over.

The euphemism of vaccine nationalism conveniently papers over the racialized distributional consequences of vaccine inequities. In “Disposable Lives: COVID-19, Vaccines and the Uprising,” I analyze how racialized notions regarding which lives are expendable are reflected in inequitable vaccine access and how COVID-19 has heightened the visibility of the disposability with which society views the lives of people of color. This presumed disposability is reflected in the paltry number of vaccinations, with only about 7% of vaccination completed for the entire African continent. That this meager percentage represents just over half of the entire supply of vaccines to African countries to date is abysmal.

Fatima Hassan, founder and director of the Health Justice Initiative in South Africa poignantly remarked:

I grew up in apartheid. I know what it means to be a second-class citizen or even a third-class citizen. And this is what we saw in this current pandemic. Black and brown people in Latin America, in Asia and Africa were told to wait. We were told that the knowledge wouldn’t be shared with us. We should participate in clinical trials. We should contribute to scientific knowledge, but we should wait, basically last in line, like we did during apartheid, for access to any kind of service, whether it was education or health, before we could get our vaccine.

Some have sought to locate the reason for these delays in the lack of production facilities and other impediments, such as the need for vaccine storage at subzero temperatures requiring the development of a cold distribution chain for vaccine administration. Notwithstanding these issues, the root causes of vaccine disparities lay in legal and policy barriers to access.

The Lack of Global Solidarity

Instead of a recognition that global solutions are needed to address the COVID crisis, many countries have prioritized and competed for bilateral deals, which have driven up prices. Additionally, rich countries have not sufficiently supported and funded global health initiatives such as COVAX, which is the principle vehicle that the World Health Organization (WHO) is utilizing to deliver COVID-19 vaccinations to people in low- and middle-income countries.

The WHO developed a recent strategic plan to address critical disparities in access to COVID-19 tests, treatments, vaccines and personal protective equipment in low- and middle-income countries. An estimated $23.4 billion (USD) funding is needed until September 2022 to implement a plan which would only deliver sufficient doses and support “vaccination campaigns to achieve 43% coverage” in the targeted countries. While this is ultimately aimed at contributing to the global target of 70% coverage in all countries by mid-2022, the arrival and spread of the Delta variant has already indicated what the dangers of haphazard and lackadaisical vaccination programs are. Low global rates of vaccination allow space for the virus to mutate and propagate into potentially more dangerous forms. Moreover, even if COVAX were fully funded, relying on the munificence of others to donate money or share vaccine surpluses is fundamentally flawed as a public health strategy given the need to vaccinate entire populations.

Philanthropy Cannot Buy Equality

In October 2020, India and South Africa made the case that an intellectual property “waiver should continue in effect until widespread vaccination is in place globally, and the majority of the world’s population has developed immunity.” The proposal seeks to reshape the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) regime in significant ways by enabling substantial technology transfer for effective COVID-19 vaccines, therapeutics, and diagnostic tests. The joint submission covers not only patents, but also copyright, industrial designs, and undisclosed information including know-how and trade secrets.

South Africa and India modified this proposal in May 2021 to instead request a three-year waiver. They also revised the proposal because of “the concern of continuous mutations and the emergence of new variants and consequently the many unknowns with respect to SARS-COV-2 and its variants and the global need for access as well as the importance of diversifying production and supply.” The waiver proposal is co-sponsored and supported by the African group of states as well as several other countries in the Global South. Notably, China, France, and the United States have all expressed support for the waiver proposal. However, the United States has limited its support of the wavier proposal to vaccines.

The pharmaceutical industry opposes the waiver proposal along with several others primarily based in the Global North, like Canada, the United Kingdom, and the European Union. The European Union has even gone so far as authorizing countries to limit exports of vaccines. Those that oppose the waiver proposal contend that intellectual property rights are necessary to incentivize research and development. On their view, equitable access to vaccines can be achieved through voluntary licensing and technology transfer arrangements. But, as South Africa forcefully argued at a WTO General Council Meeting, “[T]he problem with philanthropy is that it cannot buy equality . . . the model of donation and philanthropic expediency cannot solve the fundamental disconnect between the monopolistic model it underwrites and the very real desire of developing and least developed countries to produce for themselves.” The waiver proposal has been stalled between these competing positions as the TRIPS Council operates on a consensus model for decisions. This impasse will likely not be resolved soon as the next World Trade Organization ministerial conference has been postponed indefinitely in light of Omicron.

Meanwhile, vaccine apartheid persists. Pharmaceutical companies have exercised their monopoly power to artificially limit supply and to prevent others from accessing the publicly funded technologies needed to create the vaccines. Some companies like Moderna, one of the most efficacious vaccine manufacturers, have promised not to enforce their patent during the COVID-19 pandemic. Yet, it also does not own all the patents in its vaccine and cannot make credible commitments that bind other patent holders.

More importantly, the non-enforcement promise is a red herring since one would also need more than a patent to bring a vaccine to market, which is why the waiver proposal also covers copyright, industrial designs, and undisclosed information including manufacturing know-how and trade secrets. The CEO of Moderna, Stéphane Bancel, said the quiet part out loud when he commented that “If someone wants to start from scratch, they would have to figure out how to make mRNA, which is not in our patents.” That process could take years to reverse engineer and Moderna has made clear that it is only willing “to license our intellectual property for COVID-19 vaccines to others for the post pandemic period.” In other words, the company will not share its vaccine recipe when the world needs it most. The multibillion dollar company also has demonstrated unwillingness in the past to distribute its vaccine to countries on the African continent during the pandemic. The WHO had to hire Afrigen Biologics to work on reverse-engineering the Moderna vaccine.

Moderna is by no means the only vaccine manufacturer that has refused to share its knowledge with the world. For example, in 2020, the WHO created a technology access pool to encourage pharmaceutical companies to share their knowledge with manufacturers in other countries that need to develop vaccines, but no company has done so to date. Even the somewhat encouraging news about a licensing deal involving Aspen Pharmacare in South Africa is limited to the packaging and selling of Johnson & Johnson’s COVID-19 vaccine in Africa. The deal does not entail a technology transfer that would allow Aspen to manufacture its own drug substance and raise capacity.

Our Current Trajectory

If the current course is not corrected, vaccine apartheid will only deepen, and the resulting mal-distribution will render historically subordinated groups even more disposable. This apparent dispensability was made abundantly clear with the swift decisions by countries in the Global North to cut off southern African countries following South Africa’s genomic sequencing of the variant. Instead of being rewarded for tracing and alerting the world to a variant that was already circulating in Europe, the United Kingdom, the United States, the European Union and others were hasty to make decisions informed by “Afrophobia” as the President of Malawi aptly termed it.

As I argue elsewhere, responses to the coronavirus continue to be informed by “outdated but persistent settler-colonial conventions that have mapped illness and disease on to racialized peoples and certain geographic regions.” The response to Omicron reflects the racialization of diseases and embodies the tendency to attach racial meaning to ailments based on the racial groups that tend to be socially associated with a given illness. We witnessed this with the Ebola epidemic, which similarly “resuscitated historical images of Black African bodies as uncontainable and disease-ridden and sparked racialized fears.” This fear of other and their diseases reminds us quite powerfully how the history of diseases and responses to diseases is linked to politics of racial exclusion and racial subordination.

Disease carrying microorganisms are certainly not differentiating amongst people based on race, nationality, ethnicity, or other categories, but SARS-CoV-2 is discerning between the vaccinated and unvaccinated. At the time of writing, the Omicron variant is present in at least twenty-four countries and may be circulating elsewhere undetected. Yet, unfair travel restrictions targeting Africans has lamentably prevented the ministerial meeting to discuss redressing vaccine inequities. The sheer magnitude of the coronavirus pandemic in deaths and illness concomitant with the scale of vaccine redlining make evident that a significant level of legal reform and restructuring is required to meet the challenges of the current moment. If the ongoing pandemic and the emergence of Omicron and other variants is going to teach us anything, the lesson must be that until we are all safe, none of us are safe.

Photo credit: People wait on a bench waiting to be vaccinated at Parirenyatwa group of hospitals on Dec. 1, 2021 in Harare, Zimbabwe. Zimbabwe is among the southern African countries facing travel bans after the Omicron Covid-19 variant was first reported in neighboring South Africa. (Tafadzwa Ufumeli/Getty Images)

The post Omicron: The Variant that Vaccine Apartheid Built appeared first on Just Security.

This policy, known as “Title 42,” was originally concocted by the Trump administration on dubious legal grounds as a means to close down the southern border to asylum seekers.  The policy was implemented on March 20, 2020, reportedly over the objection of the then-Director of the Centers for Disease Control and Prevention, Dr. Robert Redfield. Public health experts have repeatedly criticized the program, describing the public health justification as specious, and offering guidance in the form of alternate measures that could protect public health while permitting asylum seekers to obtain protection in the United States. In the face of law and science, the Biden administration stubbornly continues to implement a policy that, in Koh’s words, “violate[s] our legal obligation[s]” under the 1951 UN Convention Relating to the Status of Refugees and the UN Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, among other international human rights treaties, as well as federal law implementing those obligations.

Coming on the heels of the Foote resignation letter, the Koh memo has, appropriately, garnered substantial media attention. Somewhat lost in the mix is Koh’s specific legal analysis of the policy currently faced by asylum seekers at our southern border. Title 42 represents an unprecedented break with our obligations under international refugee law; while such a move was part and parcel of the Trump administration’s modus operandi, in Koh’s words, it “simply is not worthy of [the Biden] administration.”

Indeed, many of the statutory and international legal concerns raised by Koh’s memo were expressed in a sternly worded letter signed by then-Senator Kamala Harris and nine other senators to the Trump administration just last year. “A public health crisis does not give the Executive Branch a free pass to violate constitutional rights, nor does it give the Executive Branch permission to operate outside of the law,” the letter said. “Responding to crises while upholding our legal obligations is the very hallmark of the rule of law.”

Non-refoulement obligations at the border

The first legal exposition in Koh’s memo is that Title 42 violates the United States’ international legal obligations under the Refugee Convention by sending asylum seekers back to the countries in which they fear persecution without an individualized hearing. Article 33, known as the non-refoulement provision, prohibits states parties from “expel[ling] or return[ing]” a refugee to a country where she faces a threat to life or freedom on account of her “race, religion, nationality, membership of a particular social group or political opinion.” This provision of the Convention was implemented through the Refugee Act of 1980; as Koh notes, similar language appears in the statute at 8 U.S.C. 1231(b)(3)(A). Koh also references non-refoulement protections under the Convention Against Torture, which prohibit the return of non-citizens “where there are substantial grounds for believing that the person would be in danger of being subjected to torture,” defined as the intentional infliction of severe pain or suffering with the consent or acquiescence of a state actor.  As he notes, the legal obligation not to return to torture, implemented into domestic law through the Foreign Affairs Reform and Restructuring Act of 1998, brooks no exceptions.

The implementation of Title 42 at the southern border has from the start violated both of these international legal obligations by blocking access to protection procedures. Interpretations of these provisions issued by relevant treaty bodies clarify the obligations that attach to non-refoulement at the border. In an Advisory Opinion, the UN High Commissioner for Refugees (UNHCR) lays out a general requirement in Article 33(1) that requires states to provide protection seekers with access to asylum proceedings. This obligation is reflected in the U.S. domestic statutory language, which makes clear that any non-citizen, whether or not they arrive at an official port of entry, and regardless of their immigration status, “may apply for asylum.” 8 U.S.C. 1158. The UN Committee Against Torture explains in its General Comment No. 4 that “collective deportation without an objective examination of the individual cases with regard to personal risk, should be considered as a violation of the principle of non-refoulement.”

In short, as Koh writes, in order to uphold U.S. non-refoulement obligations, migrants arriving at the border must be given the opportunity to express a fear of return through an individualized process. In the expedited removal process, which enables the speedy deportation of migrants apprehended within 100 miles of the border, immigration officers are required to ask four questions intended to provide migrants with an opportunity to express a fear of return.  Migrants who express such a fear are given the opportunity to elaborate on their asylum claim in a “credible fear interview” with an asylum officer, who may refer them to a more full-blown asylum hearing. This requirement is key to the legality of the process under international law, yet, as Koh notes, does not exist in Title 42 proceedings, which require migrants to proactively express a fear of their own accord.

Similarly, in the expedited removal process, a first-time entrant must prove only a credible fear, that is, a “significant possibility” that she will be able to meet the refugee definition in an asylum hearing at a future date. Under Title 42, a migrant at the border must show on the spot that it is more likely than not that she will face persecution or torture upon return. When understood against the baseline approach to asylum seekers, this procedural device can be seen for its perniciousness. Trump’s attempt to similarly tighten the credible fear standard was struck down by a federal court as “manifestly inconsistent with the two-stage asylum eligibility framework that the INA plainly establishe[d].”  Yet the Biden administration is implementing an unlawfully high standard against asylum seekers at the border under Title 42.

Those who thought that the Biden-Harris administration would implement a new approach to asylum at the border find themselves disheartened at this turn of events.

The “danger to security” exception to non-refoulement

As Koh explains, the Trump administration claimed that the “danger to security” exception found in Article 33(2) of the Refugee Convention authorizes Title 42 as an exception to the non-refoulement principle. Koh looks to both the text and travaux préparatoires (legislative history) of the Refugee Convention to make the case that this argument fails on both counts. UNHCR’s Advisory Opinion on the Extraterritorial Application of Non-Refoulement also supports his position. That treaty body guidance explains that the Convention Against Torture contains no exceptions, so migrants protected under that treaty must be given an opportunity to express their fear of return. While the Refugee Convention does contain such an exception, UNHCR makes clear that asylum seekers must receive an individualized determination of the applicability of that provision. And of course, public health officials, including Dr. Anthony Fauci, have stated clearly that migrants do not pose a public health threat, let alone one that could rise to the level of a “danger to security.”

Beyond law and science

These legal arguments form the foundation of Koh’s memo, which also discusses the dire situation in Haiti, and asks how it is possible that the Biden administration is returning Haitians given its expressed commitment to humanitarianism. As a firm believer in the rule of law, it is deeply concerning to see this administration doubling down on a border policy that is unsupported in domestic and international law, and flies in the face of public health guidance. As the Koh memo describes, just a few weeks ago, faced with a successful federal court challenge to the implementation of Title 42, the Biden administration appealed and obtained a stay. Rather than taking the opportunity to settle the case and bring the administration’s policies in line with our international legal obligations, it chose to persist in the Trump administration’s cruelties and blatant disregard of international refugee law and the Convention Against Torture. The Biden administration’s stated campaign goals of moving toward a legally valid, evidence-based, humanitarian approach to the southern border seem to have vanished. The claim to be on the side of law and of science rings hollow here, and that kind of corrosion can only spread to other policies.

Photo credit: Flanked by Secretary of State Antony Blinken (L) and Secretary of Homeland Security Alejandro Mayorkas (R), President Joe Biden attends a virtual meeting with Mexican President Andrés Manuel López Obrador in the Roosevelt Room of the White House on March 1, 2021(Anna Moneymaker-Pool/Getty Images)

The post How an Internal State Department Memo Exposes “Title 42” Expulsions of Refugees as Violations of Law appeared first on Just Security.