And how are things in your country?
A Senate Republican “working group” has outlined a border and migration proposal as a likely condition of keeping the U.S. government open past the next “shutdown” date (November 17).
I’m still struggling to express graphically how severe this proposal’s consequences would be for tens of thousands of people facing real danger. Here is another attempt.
As the U.S. government scrambles to agree on a 2024 budget to avoid another “shutdown” on November 17, Republican leaders of the U.S. Senate have laid down a set of border and migration demands as their top condition for agreeing to any new spending deal. If the Biden administration wants aid to Ukraine, for example, these are the GOP demands. Republicans in the House have similar—or perhaps harsher—demands.
Using the one-pager that Senate Republicans shared yesterday, here’s a graphic that shows how thoroughly their proposal would obliterate threatened people’s right to seek asylum in the United States.
This is a right that most of the world adopted after World War II. The congressional Republican proposal would send us back to the 1930s. And the Biden administration is already indicating to Democratic allies that they might have to adopt some of it.
If this ever became law, someone fleeing likely death or imprisonment would only be able to access the U.S. asylum system if:
- They tried, and failed, to seek asylum in every country through which they passed on the way—no matter how impoverished, dangerous, or ill-governed the country.
- They came to a port of entry (official border crossing), even though Customs and Border Protection, through a practice called “metering,” allows only a bare trickle of asylum seekers to access these facilities.
- They could not be shipped off to a third country to seek asylum there (the Trump administration made agreements with Guatemala and Honduras to be “third countries” for asylum seekers).
- They were able to meet a higher standard of “credible fear of persecution” in screening interviews performed shortly after arrival at the U.S. border.
- They awaited their U.S. immigration court hearing dates while “remaining” in northern Mexico, or while sitting in ICE detention centers—even if they are families with children.
In July, the Republican governor of Virginia, a swing state far from the U.S.-Mexico border, sent a contingent of 100 state National Guard troops to Texas to support Gov. Greg Abbott’s (R) border-security clampdown known as “Operation Lone Star.” The troops went, Youngkin said, to combat the “fentanyl crisis.”
Anybody who looks at data could have told Youngkin that 89 percent of fentanyl along the border gets seized at the official border crossings, not in the wide-open areas between the crossings, where his guardsmen were on duty. We also could have told Youngkin that the overwhelming majority of fentanyl is crossing in California and Arizona, not Texas.
But the Governor sent the troops, and off they went to Eagle Pass, at a cost of $2 million over 3 weeks.
And unsurprisingly, over the course of their deployment, they encountered exactly zero shipments of fentanyl.
That’s a finding of the news team at the local Washington, DC NBC TV affiliate. Reporters filed an open-records request with the state of Virginia and obtained daily “situation reports” and other documents from the deployment.
The guardsmen did see 6,717 people they described as “illegal immigrants” and referred 1,834 to the federal Border Patrol. This isn’t surprising, as several hundred migrants per day have been crossing in Eagle Pass, seeking to turn themselves in to apply for asylum. You can stand by the riverbank there and see migrants, too.
After several days, a “commander’s assessment” document noted “a weakening of the deterrent effect of our Soldiers and Airmen.” Migrants, seeking to turn themselves in anyway, were ignoring commands to turn back.
Troublingly, NBC reported that the internal reports showed “conflict over Virginia’s policy to withhold water to migrants.” Texas has ordered Operation Lone Star guardsmen not only to block and turn back asylum seekers already on U.S. soil, which violates federal law and the Refugee Convention. It also has ordered them to refuse water and other assistance to migrants on the riverbank, held back by Texas’s concertina wire and troops, even in 100-degree heat, even when those migrants are families with children. The reports reveal some “conflict” over Virginia’s enforcement of this inhumane policy.
The tactical impact of Virginia’s National Guard deployment was zero. The impact on morale and readiness was likely negative. But Governor Youngkin got to travel to downtown Eagle Pass for a photo op (his office provides a page of media-ready high-res photos), so there’s that.
This is a single screenshot from today’s New York Times article about the Biden administration’s announcement that it is building new segments of border wall. The highlighted bits are a few paragraphs apart.
It’s unusual to see that much self-contradiction in such close proximity.
If you listen to President Biden today, it sounds like his administration has been forced, against its will, to waive 26 environmental and cultural laws to build abut 20 miles of border wall in Starr County, in south Texas.
But if you listen to the Department of Homeland Security language in the Federal Register, it looks like they’re doing this out of a newfound enthusiasm for border walls.
Biden is correct: the wall-building money comes from 2019 appropriations, passed for then-president Donald Trump by a Republican congressional majority, which the Biden administration and congressional Democrats were unable to rescind. The Impoundment Control Act says that presidents have to spend money as Congress appropriates it, before it expires.
The money in question is in the blue section of this chart, in the 2019 column. (The chart comes from a January 2020 commentary I wrote for WOLA.) By the time Trump left office, the 2017 money was spent, the 2018 money was all but spent, but most of the 2019 money was not, and the 2020 money hadn’t been touched yet. (See this October 2020 “Border Wall Status” report that I saved.)
So President Biden is right: he had no choice but to spend the border wall money before it expired, presumably with the September 30 end of the government’s 2023 fiscal year. But his administration has done a poor job of explaining that today.
Update October 7: After a lot of conversations about this on October 5 and 6, and I feel I should soften the “Biden is right” language above, because it’s more complicated.
While it’s true that Biden had to use the 2019 appropriations money, it’s unclear whether the Impoundments Act required him to waive 26 laws to proceed with the wall construction.
This is a question that federal courts would probably have to resolve. As seen in recent cases, the decision would likely be made following a lawsuit—possibly filed in the federal judiciary’s conservative Fifth Circuit by Republican state governments. It’s probable that the case would escalate to the Supreme Court. It’s understandable that the Biden administration would prefer not to engage its Justice Department in this litigation, considering it could drag on for a couple of years and potentially result in an unfavorable precedent.
However, the question remains: why didn’t the administration devise a barrier design that met congressional requirements without needing to waive environmental and other laws? Such a design would have been more likely to withstand legal scrutiny, and would have earned less criticism from environmental advocates and the President’s supporters.
One possible explanation is internal bureaucratic politics. The wall designs for Starr County were initially conceived during the Trump administration. It’s plausible that career officials from the Department of Homeland Security and Customs and Border Protection (among them, one suspects, the drafters of that “acute and immediate need” language) were resistant to revisiting the designs. It seems that the Biden administration’s political appointees were not prepared to push back strongly on this issue. So here we are.
This headline is from Wednesday. That was what House Republicans said they’d do, and it’s exactly what they did. They totally died on that hill.
Minutes ago, the House just passed a bill to keep the government open for 45 days—but the chamber’s Republican majority was compelled to cut out the extreme border language that was in earlier versions. They GOP leadership needed Democratic votes to keep the government open.
It turns out that you can’t hold the whole government hostage to a border-militarizing and asylum-killing agenda when you don’t even have the votes within your own party.
I read a lot of UN and other independent reports about the human rights situation in Latin American countries. It’s always interesting, though, to read UN reports about the human rights situation here in the United States.
On September 26, the UN Human Rights Council published the report of a group of experts who visited several U.S. cities in April and May 2023. (Among them was Juan Méndez, who is very well known to Latin America specialists for many past roles, including former president of the Inter-American Human Rights Commission and former director of the Inter-American Institute of Human Rights.)
The experts’ report is direct and hard-hitting. Though the United States prides itself as a bastion of liberty and democracy, much of the UN experts’ language could just as easily apply to a Latin American nation for which I’ve advocated limits on U.S. security assistance.
The report is available here as a PDF, and at the UN High Commissioner for Human Rights website as a Word (.doc) file. Here are some highlights. Passages that I found especially jaw-dropping are emphasized with highlighting.
On law enforcement agencies’ use of force policies, or remarkable lack thereof:
During the visit, the Mechanism was informed that not all States in the US have regulations on the use of force and that there is no full nationwide regulation on the topic, with only a Supreme Court doctrine and Fourth Amendment rights applicable. The Mechanism is concerned that existing local and national standards on the use of force by law enforcement officials, including the Supreme Court rulings and the Department of Justice’s updated policy, do not meet international standards.
The Mechanism is profoundly concerned that this current regulatory situation is conducive to the early and unjustified use of force, including lethal force, by law enforcement. The Mechanism has received evidence suggesting that numerous law enforcement practices do not prioritize de-escalation and other less harmful methods of control of the situation, contrary to the principles of strict necessity and precaution of international use of force standards.
On lethal use of force:
The Mechanism is alarmed by the figures and circumstances in which people are killed by police in the United States. Every year, more than 1,000 individuals are reportedly killed by law enforcement throughout the country. Available data shows that Black people are three times more likely to be killed by police than white people, and reports suggest that 33% of all persons killed between 2015 and the first half of 2023 were running or driving away or otherwise trying to flee from law enforcement.
The Mechanism was concerned by reports suggesting that in 2022, the US had the higher number of police killings in a decade, with more than 1,200 people killed by law enforcement. Among these, 281 were Black people. The Mechanism is troubled by the fact that 59% (685) of all killings by police in 2022 were related to traffic stops, mental health crisis, or people not alleged to be threatening anyone with a gun.
On racial profiling:
According to a Department of Justice special report , Black persons were three times more likely to experience the threat of force or use of nonfatal force; three times more likely to be shouted at by police; and 11 times more likely to experience police misconduct (slur, bias or sexual misconduct), during their most recent police contact in 2020, than white persons.
In this sense, the Mechanism rejects the “bad apple” theory, suggesting that racial discrimination in policing is the result of isolated actions of a small number of rogue police officers. There is strong evidence that the abusive behaviour of some individual police officers is part of a broader and menacing pattern, connected into larger social, historical, cultural and structural contexts, within which policing is undertaken. Law enforcement officers in the United States share and reproduce values, attitudes and stereotypes of US society and institutions.
On disproportionate incarceration of Black people:
Black people are the most incarcerated and most criminally supervised persons in the United States. In 2021, 1,704,000 Black persons were under criminal administration: 591,000 incarcerated (391,000 in prison and 221,000 in a local jail) and 1,136,000 under probation (864,000) or parole (280,000). An estimated 1 in 19 (rate of 5,350 per 100,000) Black adult was under correctional supervision, compared to 1 in 62 (rate of 1,620 per 100,000) white adult.
…The Mechanism is deeply concerned by these numbers. These significantly disproportionate rates between Black and white persons are staggering.
On long-term incarceration of children:
[T]he Mechanism was shocked by information stating that at least 32,359 individuals are currently incarcerated in the US for offenses they committed when they were children, and that 80% of those are non-white and 58% are Black. 6,301 (19.47%) of these children were sentenced to life term and 3,162 are serving de facto life sentences (sentence over 39 years ).
On the population held in pre-trial detention:
About 451,400 people are detained pretrial on any given day in the United States. In 2002, 29% of people in jails were held pretrial; by 2023, that number increased to 71%. During the visit to the Los Angeles County Jails and the Cook County Jail, the Mechanism was shocked by allegations of inmates being held in pre-trial detention for long periods (i.e. more than 10 years) and for periods longer than the eligible sentence of the offence they may have committed, if convicted.
On the use of forced, unpaid, or poorly paid prison labor, permitted by the 13th Amendment of the Constitution, especially for Black inmates:
The Mechanism is astonished by evidence stating that this access to free or almost free Black work force, through free or poorly paid prison forced labour, exists to this day in the United States, constituting a contemporary form of slavery. Further, it received information stating that workers in prison are assigned hazardous work in unsafe conditions without the training or protective gear needed, and, if they refused to work, even for a medical condition or disability, they are punished accordingly.
The delegation received shocking information over “plantation-style” prisons in Southern States, in which contemporary forms of slavery are reported. Commonly known as “Angola”, the Louisiana State Penitentiary occupies an 18,000-acre former slave plantation, larger than the island of Manhattan. The plantation prison soil worked by incarcerated labour today is the same soil worked by slaves before the civil war. “Angola” currently houses nearly 5000 adult men, the majority of them Black men, forced to labour in the fields (even picking cotton) under the watch of white “freemen” on horseback, in conditions very similar to those of 150 years ago.
On the drug war, racism, and militarization of policing:
[I]n the US Black people are 3.6 times more likely than white people to be arrested for marijuana possession, albeit comparable usage rates. But in some specific US states, disparities can be greater, as much as six, eight or almost 10 times more likely to be arrested.
The Mechanism joins other UN mandates stating that the ‘war on drugs’ “has been more effective as a system of racial control than as a tool to reduce drug markets. Policing interventions based on racial profiling remain widespread, whilst access to evidence-based treatment and harm reduction for people of African descent remains critically low.”
The Mechanism received information on the inseparable links between the federal drug policy, the federal programs funding and transferring military equipment to law enforcement agencies, and police killings of inhabitants in the US. Black people are more impacted by the use of this kind of equipment and tactics deployed in drug related raids, despite the fact that people of all races use and sell drugs at similar rates. Normalization of military equipment in law enforcement agencies can enable and encourage a type policing that prioritize use of force, including excessive use of force.
On abuse of Black migrants:
During the visit, the Mechanism received several detailed accounts of anti-Black and racially based arbitrary detention and ill-treatment against migrants and asylum seekers of African Descent, including Haitians, by US immigration authorities.
According to information received, Haitian migratory-detained persons were denied access to sufficient food, health care, interpreters, information and legal counsel; after which they were returned to Haiti by plane restrained in handcuffs and shackles causing severe additional psychological suffering due to the association of this practice not only to criminality, but to slavery.
On crowd control and the response to 2020 anti-racism protests:
[T]he Mechanism received accounts on the authorities’ response to anti-racism protests in 2020, that led to thousands of arbitrary arrests and hundreds of people injured, mostly by the misuse or excessive use of less lethal weapons against protestors, such as batons, chemical irritants and kinetic impact weapons (for example rubber bullets). For example, 115 people were shot in the head and neck with kinetic impact projectiles by police between May 26 and July 27, 2020.
Information received make clear that in the 2020 anti-racism protests law enforcement confronted peaceful manifestations with riot gear as a first level response, rather than only in response to specific incidents of violence. Evidence suggests that law enforcement use a variety of unjustified levels of force, including less lethal weapons, against large peaceful demonstrations and against journalists, legal observers and paramedical teams, in violation of human rights standards.
…The Mechanism is particularly concerned over reports that the 2020 anti-racism protests were followed by widespread legislative measures and initiatives in some states, which would unduly restrict the right to peaceful assembly.
On lack of accountability for abuse:
Only 1.9% of all killings by police in the past decade (2013-2022) resulted in police officers being charged with a crime. In 2022, available data indicates the proportion was only in 1% of the cases.
According to an America’s Voice-commissioned poll of 600 people in Central America:
- 27% recall having heard or seen a US official or politician say “the border is open” within the last 6 months.
- Among people who report they have heard politicians say “the border is open,” 35% state they believe with Title 42 ending, the Biden administration is cheering people on who cross the border. (Of those who haven’t heard US politicians say this, only 17% think that’s true.)
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.
If you ask me “are the Democrats likely to hold the House of Representatives majority,” I’d probably say “no” but it’s far, far from impossible. They’re not that far at all from reaching the necessary 218 votes. A lot seems to depend on California mail-in ballots that won’t be counted for a while.
Good graphical representation here:
Nothing to add:
From Christine Armario and Nick Miroff at the Washington Post:
Last month, more than 32,000 Cubans were taken into U.S. custody along the Mexico border, double the number who arrived in February, according to unpublished U.S. Customs and Border Protection (CBP) figures obtained by The Washington Post.
That number will almost certainly make Cuba the number-two country of origin, after Mexico, of migrants apprehended at the U.S.-Mexico border in March. That’s a position that Cuba has never occupied before.
But it also puts in a difficult spot conservative Republicans currently ginning up “Biden Border Crisis” rhetoric as the November midterm elections draw near. What do they propose be done with these 32,000 people? Do people like Rubio, DeSantis and Scott propose that they be sent back to the regime in Havana?