Adam Isacson

Defense, security, borders, migration, and human rights in Latin America and the United States. May not reflect my employer’s consensus view.

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Pour One Out for the Senate Border Compromise

Republican senators refused to consider a big Ukraine-Israel-border funding bill unless it included language changing U.S. law to make it harder for migrants to access asylum at the U.S.-Mexico border. A group of senators negotiated for two and a half months, coming up with a set of measures three days ago that outraged both migrants’ rights defenders who feared people would be harmed, and far-right Republicans who wanted it to go further.

The bill with the compromise language just failed on the Senate floor, by a vote of 49-50. (It was a procedural vote that needed 60 votes to allow debate to begin.)

Republicans demanded that the border-migration language be included, but in the end only four voted for it (Susan Collins of Maine, Lisa Murkowski of Alaska, Mitt Romney of Utah, and the Republicans’ chief negotiator, James Lankford of Oklahoma). Even Minority Leader Mitch McConnell (R-Kentucky), who had vocally backed Lankford’s negotiating effort, voted “no.”

Five Democrats voted “no.” (Majority Leader Chuck Schumer (D-New York) had to change his vote to “no” for procedural reasons allowing a reconsideration of the bill.) They were Ed Markey and Elizabeth Warren of Massachusetts, Bob Menendez of New Jersey, Alex Padilla of California, and Bernie Sanders (I) of Vermont, who opposed the unconditional Israel aid in the bill.

I hope that the senators move soon to approve aid to Ukraine, this time without weakening the right to asylum.

See also:

First Look at the Senate Negotiators’ Asylum-Limits-For-Ukraine-Aid Bill Language

The Senate’s leadership has just dropped the text of a $118 billion supplemental appropriation, complying with a Biden administration request, which would provide additional aid to Ukraine and Israel, among other priorities including $20 billion for border and migration needs.

Republican senators’ price for allowing this bill to go forward in the Senate—where Democrats have a majority but most legislation requires 60 votes to end debate and proceed to a vote—was new restrictions on migration at the U.S.-Mexico border.

This 370-page legislative text has been out for less than 2 hours as I write this, so my reading this Sunday evening has not been thorough. But it appears to include a lot of the controversial limits on access to asylum that had already been reported in media. (I summarized those last week in a Q&A document and in our weekly Border Update.)

Provisions include:

  • Requiring asylum seekers placed in “expedited removal”—usually 20-25,000 per month right now, but likely to expand—to meet a much higher standard of “credible fear” in screening interviews with asylum officers. The goal is to thin out asylum applications and make it unnecessary for as many cases as possible to go to immigration court.
  • Reducing the time for a large number of asylum seekers’ cases from years to a few months, often while in tightly controlled, costly alternatives-to-detention programs.
  • It does not appear to tighten the presidential use of humanitarian parole authority to permit some classes of migrants to enter the United States, though it adds a detailed reporting requirement.

Plus, the big one:

  • As expected, the bill would allow the Department of Homeland Security (DHS) to impose a Title 42-like expulsion authority, “summarily removing” asylum-seekers from the United States (except for hard-to-prove Convention Against Torture appeals), when unauthorized migrant encounters reach a daily threshold.
  • That threshold is:
    • An average of 4,000 migrant encounters per day over 7 days, which would allow DHS to start expelling people at the Secretary’s discretion.
    • Expulsions become mandatory once the average hits 5,000 per day, or if encounters hit 8,500 in a single day.
    • “Encounters” means people who come to the border and end up in Customs and Border Protection (CBP, which includes Border Patrol) custody without documents or authorization. Even if all 5,000 of them are deported or detained, the expulsions authority would still kick in.
    • “Encounters” includes people who come to ports of entry with appointments made using the CBP One smartphone app; the bill requires DHS to maintain the capacity to keep receiving at least 1,400 of these people each day (nearly the current number of daily CBP One appointments), even when it is expelling people.
      • While these 1,400 would not be in danger of expulsion, they do count toward the daily “encounter” threshold. If CBP takes 1,400 per day at ports of entry, then the expulsions could kick in if Border Patrol apprehends 2,600 or 3,600 more per day between ports of entry (for the 4,000 and 5,000 thresholds).
      • Border Patrol apprehensions between ports of entry have averaged less than 3,600 per day during only 2 of the Biden administration’s first 36 full months. They have never averaged less than 2,600 per day.

  • It is not clear whether Mexico would agree to take back expelled migrants, and if so from which countries.
  • The expulsions would stop if the past week’s daily average dropped to 75 percent of the amount that triggered it (3,000 per day if the 4,000-encounter threshold was used; 3,750 per day if the 5,000-encounter threshold kicked in).
  • A previously undisclosed element of the new Title 42-style authority: it would automatically “sunset,” or repeal, after three years. And DHS would have fewer days per year to employ it during each of those three years. (It would take an act of Congress to renew the authority or make it permanent—which is certainly not impossible.)

What do I make of this?

  • Just as we pointed out in our Q&A last week, if this became law it would send thousands of people back to likely danger. The expulsion authority will ensnare many people with legitimate and urgent asylum claims, denying them due process. It will place many at the mercy of organized crime along the migration route and in Mexican border cities. And it wouldn’t even be justified with a thin “public health” reasoning, like Title 42 was: asylum seekers would be kicked out just because too many other people were fleeing. “The United States cannot deny someone the right to seek safety and protection just because they are number 5,001 in line that day,” a statement tonight from Human Rights First put it.
  • And again, as the Q&A and another post from last week made clear, it won’t reduce migration, except perhaps for an initial few months. We seem to forget that the Title 42 era (March 2020-May 2023) was one of the busiest times ever for migration at the U.S.-Mexico border. The experience of Title 42 should have made clear for everyone the futility of deterring protection-seeking migrants.

Either way, though, this legislation is probably not going to pass. Though I’m complaining here about some of these provisions’ cruelty, I don’t see enough red meat here to satisfy far-right and rabidly pro-Trump Republicans, especially in the GOP-majority House of Representatives. Even those who were willing to live without a full return to Trump’s policies were demanding a lower threshold number for expulsions, and curbs on the presidential humanitarian parole authority. Since they didn’t get those, they may obstruct the bill.

So the negotiators of this text added language that may endanger people. They took great pains, though, to minimize the harm it might do to asylum seekers. It is good that they tried to do so—but it means that it will be rough going in the MAGA-heavy, election-year House of Representatives.

Senate Border Deal Language Incoming

Going to be a busy weekend for border and migration policy.

After more than two months of internal discussions, we’re about to see the text of the “asylum restrictions for Ukraine aid” deal that Senate Democratic and Republican negotiators have drawn up.

From Majority Leader Chuck Schumer:

Next, as I said, discussions are going well, so I want members to be aware that we plan to post the full text of the national security supplemental as early as tomorrow, no later than Sunday.

That will give members plenty of time to read the bill before voting on it.

As for the timing of the vote, I plan to file cloture on the motion to proceed to the vehicle on Monday, leading to the first vote on the national security supplemental no later than Wednesday.

At WOLA: Five Questions and Answers About the Senate Border Deal

Last October, the Biden administration asked Congress for a package of funding for Ukraine, Israel, border security, and other priorities. In the Democratic-majority Senate, where it takes 60 votes to move legislation forward, Republicans refused to support this request unless it included changes to U.S. law that would restrict the right to asylum, and perhaps other migration pathways, at the U.S.-Mexico border.

A small group of senators has been negotiating those changes since November. A bill may now be forthcoming.

At WOLA’s website, we’ve just posted a quick (less than 1,200 word) explainer looking at:

  1. What do we know about what’s in the deal?
  2. What is the human cost of this bill’s provisions?
  3. Would this actually deter migration?
  4. Republican hard-liners are opposing this agreement, saying it doesn’t go far enough to restrict migration. What do they want?
  5. What would a better policy look like?

Read it here.

Tomorrow Morning in Congress’s Tom Lantos Human Rights Commission: “Organized Crime, Gangs and Human Rights in Latin America”

Tune in tomorrow morning (or on YouTube later) for what will be a really interesting discussion of how governments can protect their citizens and their institutions from organized crime, without violating human rights.

It’s unusual to have two people from one organization in these hearings. I’m a substitute for someone who just had to cancel. I’ll be talking mainly about Colombia.

OK, time to work on my testimony.

Testifying Thursday the 30th

Posting to this site could be a bit infrequent or erratic over the next couple of days, because I’ve just been added as a witness to Thursday’s House Foreign Affairs Committee hearing about the U.S.-Mexico border and migration. Wish me luck, or come by the Capitol Visitors’ Center at 2:00PM Thursday and send good energy.

(You don’t have to do that. It will always be on YouTube.)

At WOLA: U.S. Congress Must Not Gut the Right to Asylum at a Time of Historic Need

Republican legislators have dug in and have given the Biden administration a list of demands. Aid for Ukraine and other items in the White House’s supplemental budget request will not get their approval, they say, unless the law is changed in ways that all but eliminate the right to seek asylum at the U.S.-Mexico border.

Here, at WOLA’s site, is an analysis of this proposal and the unspeakable harm that it would do. We urge the administration and congressional Democrats to stand strong and reject it.

From the conclusion:

If the Senate Republicans’ November 6 proposal were to become law, it would deny asylum to almost all protection-seeking migrants, unless:

  • That migrant sought asylum and received rejections in every country through which they passed en route to the United States.
  • That migrant presented at a land-border port of entry (official border crossing), even though CBP strictly limits asylum seekers’ access to these facilities.
  • The U.S. government could not send that migrant to a third country to seek asylum there.
  • In an initial “credible fear” interview within days of apprehension, that migrant met a higher screening standard.

If an asylum seeker clears those hurdles, the Republican proposal would require them to await their court hearings in ICE detention—even if they are a parent with children—or while “remaining in Mexico.”

This proposal is extraordinarily radical. Congressional Republicans’ demands to attach it to 2024 spending put the Biden administration in a tough position. It is a terrible choice to have to secure funding for Ukraine and other priorities by ending the United States’ historic role as a country of refuge, breaking international commitments dating back to the years after World War II.

Read the whole thing here.

Colombia in the 2024 Foreign Aid Bill

As of yesterday, the House and Senate Appropriations Committees have completed work on the 2024 State and Foreign Operations appropriations bill—more colloquially, the “foreign aid bill.” The Republican-majority House appropriators approved their bill on July 12, and Senate appropriators approved theirs on July 20.

Here’s a very top-level overview of Colombia provisions in the 2023 foreign aid budget, what the Biden administration requested of Congress in March, and the House and Senate bills as they’ve emerged from committee.

U.S. Assistance to Colombia in the State/Foreign Operations Appropriation

2023 lawBiden Administration RequestHouse Appropriations Committee (bill / report)Senate Appropriations Committee (bill / report)
Total amount
(Omits Venezuela migrant aid, Defense Department aid, some smaller accounts)
$496 million$444.025 million“Deferred”$487.375 million
USAID Economic Support Funds$153 million$122 million Unspecified, except $25 million for “Afro-Colombian and Indigenous Communities” and $15 million for “Human rights”
USAID Development Assistance$95 million$103 million Unspecified, except $15 million for “Colombia biodiversity”
International Narcotics Control and Law Enforcement$175 million$160 million  
Nonproliferation, Anti-Terrorism, Demining, and Related Programs$21 million$10 million  
Foreign Military Financing$38.5 million$38 million $28.025 million
UN High Commissioner for Human Rights$3 million  $3 million
Human rights conditions on military and some police aid20% of FMF; 5% of INCLE for Colombia’s National PoliceNoneNone20% of FMF; 5% of INCLE for Colombia’s National Police

The next steps after this:

  • Both houses must approve their bills (changes to Colombia provisions are unlikely).
  • A “conference committee” must resolve differences.
  • Once that revised and combined bill is approved, it gets sent to the President for signature, often combined with several other budget bills into a single “omnibus” bill.

Republican members of Congress know…

It’s so important to wear tactical pants when visiting the U.S.-Mexico border. You can fit lots of chewy granola bars in the extra pockets.

Screenshot of tweet photo from Congressman Josh Brecheen @RepBrecheen, showing several Republican members of Congress posing by the wall wearing said article of clothing.

34 members of Congress send a letter on Colombia

“We applaud the Biden Administration’s support for the historic 2016 Peace Accord, and we encourage the State Department and USAID to use the new government’s commitment to fully implement the accord as an opportunity to increase investment and reenergize areas of weak implementation.”

Read the full letter here.

Dirt bikes and riot helmets are not humanitarian aid

Photo source: CBP.

A year ago, the U.S. Border Patrol and its parent agency, Customs and Border Protection (CBP), came under fire amid revelations of miserable and unsanitary conditions in holding cells overcrowded with apprehended children and families.

At the time, the U.S. Congress was considering legislation to provide more resources to deal with an influx of asylum-seeking migrants. Legislators included about $112 million for “consumables and medical care” to improve conditions for migrants being held for processing. Over opposition from progressive Democrats, House Speaker Nancy Pelosi (D-California) agreed to approve a bill diminished by the Republican-majority Senate “in order to get resources to the children fastest.”

We’ve now learned that much of these resources didn’t reach the children at all.

The U.S. Government Accountability Office (GAO) published a June 11 decision finding that instead of medicines, food, diapers, blankets, and other humanitarian needs, CBP diverted this “consumables and medical care” money into:

  • detention guard services;
  • boats;
  • all-terrain vehicles (ATVs); 
  • motorcycles;
  • dirt bikes; 
  • small utility vehicles;
  • passenger vans for moving detainees;
  • printers;
  • security camera systems;
  • speakers;
  • HVAC upgrades for CBP facilities;
  • sewer system upgrades for CBP facilities;
  • janitorial services;
  • canine supplies and services like dog food;
  • computer network upgrades “to analyze factual information in support of CBP’s border operations;”
  • the CBP-wide vaccine program for CBP personnel; and
  • “tactical gear and law enforcement equipment, such as riot helmets, and temporary portable structures.”

This is a stunning example of an agency defying the will of the legislative branch and its constitutional powers. The “consumables and medical care” outlay resulted from a long process of negotiation within Congress, and between Congress and the administration—but CBP just ignored it anyway. 

That it even sought, in the first place, to portray the items in the list above as meeting humanitarian needs indicates an agency that either doesn’t know, or doesn’t care, what “humanitarian” means. That’s a huge problem, because much of CBP’s duties over the past several years have been humanitarian. Most of the undocumented migrants its agents have encountered have been children or families seeking refuge in the United States. These spending decisions evidence a lack of basic human empathy that call into question CBP’s management, training, and organizational culture. 

GAO reports that “CBP plans to adjust its account for several of these obligations.” It should do so for all of them, or its management should be held in violation of the Antideficiency Act for so nakedly defying the will of the American people’s representatives in the U.S. Congress. 

WOLA Podcast with Rep. Jim McGovern: “What if I was in Colombia? Would I have the courage to say what I believe?”

It’s not every day you get to record a podcast with a member of Congress. I enjoyed sitting down virtually this morning with Rep. Jim McGovern (D-Massachusetts), a longtime advocate of human rights in Colombia. He was fired up about the outrageous recent scandal involving U.S.-aided army intelligence units spying on Colombian reporters, human rights defenders, politicians, and others.

He calls here for a suspension of U.S. military aid and a much clearer U.S. commitment to implementing Colombia’s 2016 peace accords and protecting its threatened social leaders.

Listen above, or download the .mp3 file. The text from WOLA’s website is after the photo (from 2017 in Cauca).

Rep. Jim McGovern (D-Massachusetts), the co-chair of the Tom Lantos Human Rights Commission in the U.S. Congress, is a longtime advocate of human rights, worldwide and in Latin America.

McGovern joins WOLA in this episode for a conversation about Colombia, a country to which he has traveled several times, and where he was one of the House of Representatives’ leading advocates for the negotiations that ended with a peace accord in 2016.

We’re talking weeks after new revelations that U.S.-aided Colombian military intelligence units had been spying on human rights defenders, journalists, judges, politicians, and even fellow officers. The Congressman calls for a suspension of U.S. military assistance to Colombia while the U.S. government undertakes a top-to-bottom, “penny by penny” review of the aid program. “If there’s not a consequence, there’s no incentive to change,” he explains.

He calls for the Colombian government and the international community to do far more to protect the country’s beleaguered human rights defenders, to change course on an unsuccessful drug policy, and to fulfill the peace accords’ commitments. Human rights, Rep. McGovern concludes, should be at the center of the U.S.-Colombia bilateral relationship.

Listen to WOLA’s Latin America Today podcast on Apple PodcastsSpotifyiHeartRadio, or wherever you subscribe to podcasts. The main feed is here.

The 26 Republicans who’ve voted against Trump’s border wall “emergency”

Last week, with a 53-36 vote (59.6 percent), the U.S. Senate failed to get the two-thirds necessary to override President Trump’s veto of a resolution reversing his February 15 “national emergency” declaration. That declaration, coming after Trump failed to force Congress to pay billions for his “border wall” demands, would take more than $6 billion from the Defense Department budget and Treasury seized-asset funds, and plow it into border wall construction.

A quick rundown:

  • 2019 started with much of the U.S. government “shut down” because Congress would not pass a budget giving Trump the $5.7 billion he wanted for his border wall.
  • Finally, after a 35-day shutdown, Trump caved and signed a budget with far less wall funding.
  • On February 15, using power he claimed that the 1976 National Emergencies Act gives him, Trump declared an “emergency” at the border requiring him to move money out of defense accounts and into wall-building.
  • Court challenges to this emergency declaration are ongoing. In July, the Supreme Court allowed wall-building to proceed while judicial deliberations continue. In mid-October, though, a federal judge in El Paso froze much of the Defense Department money.

The National Emergencies Act gives Congress the ability to challenge the emergency declaration every six months, by passing a joint resolution. A 1983 Supreme Court decision allows the President to veto this resolution; the emergency declaration would then remain in place unless two thirds of both houses of Congress vote to override the presidential veto.

Twice now—in February-March and September-October—Congress has passed joint resolutions to take down Trump’s emergency declaration. Both times, Trump has vetoed the resolutions. Both times, a strong majority, but not the necessary two-thirds, has voted to override the veto.

There have now been six votes on passage and override of these joint resolutions: three in the House and three in the Senate. Not a single Democrat has voted “no” against these resolutions. Any two-thirds override vote, though, also requires a significant number of Republican votes.

Even in this polarized time, some Republicans have defied the president and voted to undo the emergency declaration. To be exact, 14 in the House and 12 in the Senate. That’s 7 percent of House Republicans, and 23 percent of Senate Republicans.

The rest of the Republican Party’s congressional delegation seems to be unconcerned about the constitutional ramifications of a president unilaterally acting in direct opposition to the clearly expressed will of a Congress that, supposedly, has “the power of the purse.”

Here are the GOP legislators who have voted to undo this authoritarian and wasteful measure. In the Senate, half are members of the Appropriations Committee, whose power to assign funds is directly challenged by the emergency declaration. Many are among the party’s few remaining moderates. Most of their votes are more about preserving Congress’s constitutional power to appropriate funds than about the wisdom of building a border wall. That’s still a principled position, and I wish more GOP legislators would take it.

Senate

  • Lamar Alexander (R-Tennessee, voted “yes” twice, did not vote once): member of Appropriations; said “I cannot support this national emergency declaration and be faithful to my oath to support the Constitution at the same time”
  • Roy Blunt (R-Missouri, voted “yes” three times): member of Appropriations; said “Those decisions should not be made without congressional action.”
  • Susan Collins (R-Maine, voted “yes” three times): member of Appropriations; said “while there is some discretion that he has to move money around, I think that his executive order exceeds his discretion”
  • Mike Lee (R-Utah, voted “yes” three times): concerned about ceding congressional power
  • Jerry Moran (R-Kansas, voted “yes” twice, did not vote once): member of Appropriations; said “The declaration of an emergency under these circumstances is a violation of the U.S. Constitution”
  • Lisa Murkowski (R-Alaska, voted “yes” three times): member of Appropriations, said “This is about the administration overstepping Constitutional authority, forcing Congress to relinquish power that is fundamentally ours”
  • Rand Paul (R-Kentucky, voted “yes” three times): a libertarian; said “I can’t vote to give extra-Constitutional powers to the president”
  • Rob Portman (R-Ohio, voted “yes” three times): a relative moderate, said “the emergency declaration circumvented Congress and set a ‘dangerous new precedent’”
  • Mitt Romney (R-Utah, voted “yes” three times): a frequent Trump critic, concerned about ceding congressional power
  • Marco Rubio (R-Florida, voted “yes” twice, did not vote once): member of Appropriations, said “We have a crisis at our southern border, but no crisis justifies violating the Constitution”
  • Pat Toomey (R-Pennsylvania, voted “yes” three times): said he supports the wall, but “the emergency declaration undermines the constitutional responsibility of Congress to approve how money is spent”
  • Roger Wicker (R-Mississippi, voted “yes” three times): said he supports the wall, but “I have serious reservations as to what the Emergency Declaration might do to the Constitutional principle of checks and balances.” (Fun fact: as a member of the House in 2000, Wicker was one of few Republicans to oppose the mostly military aid package known as “Plan Colombia.”)

House

  • Justin Amash (I-Michigan, voted “yes” twice, then left the Republican Party): said “I think the President is violating our constitutional system”
  • Brian Fitzpatrick (R-Pennsylvania, voted “yes” three times): said “I think this decision should be made by Congress”
  • Mike Gallagher (R-Wisconsin, voted “yes” three times): said “we can’t continue to expand executive authority just because our party now controls the White House”
  • Jamie Herrera Beutler (R-Washington, voted “yes” three times): member of Appropriations; said “He [Trump] literally contradicted the Constitution to use this money for something other than which it was intended”
  • Will Hurd (R-Texas, voted “yes” twice, did not vote once): member of Appropriations; represents a border district and has been a consistent border wall critic
  • Dusty Johnson (R-South Dakota, voted “yes” three times): said “I spent eight years under President Obama fighting ever-expanding executive authority. I remain committed to that principle”
  • John Katko (R-New York, voted “yes” twice, did not vote once): said “Presidents, from either party, should not legislate from the executive branch”
  • Thomas Massie (R-Kentucky, voted “yes” three times): said “The appropriations process belongs within Congress according to the Constitution”
  • Cathy McMorris Rodgers (R-Washington, voted “yes” three times): said “Article I of the Constitution gives the legislative branch the exclusive power to make laws and set funding priorities”
  • Francis Rooney (R-Florida, voted “yes” three times): said “My vote to override a veto of the resolution to rescind the national emergency declaration was based on the U.S. Constitution and had nothing to do with President Trump.” Recently made headlines by saying he is “open” to impeaching Trump
  • Jim Sensenbrenner (R-Wisconsin, voted “yes” three times): said “It is imperative that no administration, Republican or Democratic, circumvent the will of Congress”
  • Elise Stefanik (R-New York, voted “yes” three times): said “No matter what Party is represented in the White House, I will stand up against executive action that circumvents Congress”
  • Fred Upton (R-Michigan, voted “yes” three times): said “declaring a national emergency and reprogramming already appropriated funds without the approval of Congress is a violation of the Constitution”
  • Greg Walden (R-Oregon, voted “yes” three times): said the “Constitution grants Congress the power of the purse, not the President”

Here are the votes:

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