Contents of this dossier
• Refuse Illegal Orders to Build and Man Concentration Camps – Courage to Resist
• No Troops on the Border! – Veterans for Peace
• U.S. Military Plans Large Scale Mass Training on Use of Force – Weekly Reveal, Center for Investigative Reporting
• Trump’s Military Deployment to U.S.-Mexico Border Is Illegal – Marjorie Cohn
• Rights Groups Seek to Block Trump’s Asylum Order
• Illegal Pushbacks, Arbitrary Detention and Ill-Treatment of Asylum-Seekers – Amnesty International
• Constitutional Law Scholars Say Trump Cannot Eliminate Birthright Citizenship Through Executive Action
• An Executive Order Cannot Repeal Birthright Citizenship, Period – Stephen Yale-Loehr
• Next Time ICE Rounds Up Workers, Remember that We Did Not Do the Same with Nazi-Era War Criminals – Jared McBride
• A Century of U.S. Intervention Created Immigration Crisis – Mark Tseng-Putterman
Refuse illegal orders to build and man concentration camps
This summer, what might have been the defining low point of previous U.S. administrations, was simply the outrage of the moment: A plan to have the military host massive concentration camps of upward of 200,000 immigrant detainees across the United States.
These camps do not appear to be going up as quickly nor on such a massive scale as first announced (quite possibly due to the resistance on many levels), but they do appear to be moving forward. On the Texas border at Tornillo Port of Entry, a tent city that first detained a couple hundred children a few months ago will hold nearly 4,000 kids by the end of the year.
Few people actually join the military to travel to distant lands to kill people. Fewer still join to help run concentration camps. Under both U.S. and international law, military personnel have a moral and legal obligation to refuse to comply with any order that involves collaboration with these camps, but unfortunately few are aware of this fact.
That is why we need your help. Together, we are going to launch a strategically targeted communications project to reach service members across the country with this message:
– These camps are illegal and immoral.
– You have a responsibility to refuse and expose these orders.
– Direct military resistance is powerful.
Our initial goal is to raise $20,000 to spend approximately one penny per member of the U.S. military with this challenge. Of course, we believe that service members deserve two cents worth of encouragement if we can raise $40,000!
Just the idea of these massive military-hosted immigrant detention camps brings back memories of the forced relocation and incarceration of 120,000 Japanese Americans during World War II. Many of us thought something like that could never happen again, and yet, here we are. Along with everything else you can do to resist this affront to humanity, please support our challenge to military personnel to refuse these illegal orders.
Potential Pentagon Plans for Concentration Camps
Actual concentration camps are in the process of development at military bases across the Southern United States. [The numbers planned, close to 200,000, are far beyond the numbers of refugees and immigrants entering the country. It is an indication that the camps are designed for all deemed a “threat to national security” by the government — TML Ed. Note] Potential locations have been identified by military or Pentagon personnel as:
– Tornillo Port of Entry, Texas — capacity 4,000 teenagers (Already in use and being expanded to 4,000 capacity by the end of the year)
– Goodfellow Air Force Base, Texas — capacity 45,000
– Fort Bliss, Texas
– Dyess Air Force Base, Texas
– Little Rock Air Force Base, Arkansas — capacity 20,000
– Camp Pendleton Marine Corps Air Station, California — capacity 47,000
– Navy Outlying Field Wolf and Silverhill, Alabama — capacity 25,000
– Yuma Marine Corps Air Station, Arizona
– Concord Naval Weapons Station, California — capacity 47,000 (Opposition by local community and officials brought a cancellation for this camp, at least for now)
This is not the first time in U.S. history that facilities are being constructed and used to imprison large numbers of a persecuted minority in a relatively small area with inadequate facilities (the definition of a concentration camp). Previous examples of this are now infamous, such as the internment camps of Japanese Americans.
Military officials, in response to pressured deadlines from the White House, have stated that these camps can begin to be operational by mid-August. Estimates are that capacity for another 10,000 people can be added each month. The White House’s stated timeline of 45 days out from June 27 has local base commanders scrambling and caught unaware. [The camps are being built at a slower rate but expansion plans remain — TML Ed. Note]
In addition to providing the land, military personnel will construct the camps while private agencies will manage the operations. While this simplified explanation of operations seeks to minimize the military’s role, it omits the endless capacities in which the armed forces will surely be facilitating the functioning of these camps such as with water, electricity, sewage, trash, and all of the other services that go with sustaining tens of thousands of immigrant detainees.
Additional operational problems include the difficulty of housing persons in restricted access bases who legally need access to immigration and civil-liberties lawyers, secure areas to discuss their cases, as well as access for advocates, relatives, news media and political activists. Another issue is the lack of state licensing requirements, such as health and building codes, which military locations enable the government to avoid.
The Pentagon confirmed that it was indeed working with the Department of Homeland Security (DHS) to construct these camps, [but it remains unclear if there is a] Memorandum of Understanding with either DHS or Health and Human Services (HHS). A memorandum would clearly delineate the roles and responsibilities of all parties. To move forward with construction plans without one, nor any clear legal guidance, certainly leads military personnel into dangerous waters for themselves.
The military is strictly prohibited from domestic policing yet military personnel are being drafted into doing just that with this rising domestic enforcement of immigration policy. Just because Trump/Sessions Co. declares a war on immigrants, does not make it an actual war. Being quite clearly an illegal order, the question is who will refuse to aid and abet?
The Trump administration’s reckless leadership is currently putting military personnel in danger of running afoul of the law. While military personnel at all levels have a responsibility to refuse to participate in facilitating these camps, commanders in particular are at a particularly high risk in complying with these orders due to the precedent of the Nuremberg prosecution of those who aided and abetted Nazi leadership.
Already the construction of one camp has been abandoned due to people’s refusal to look the other way. The proposed use of the Concord Naval Weapons Station experienced significant resistance and outcry from the community and local officials who opposed the plan once it was exposed in July via a leaked Navy memo. DHS soon thereafter announced they would no longer build a concentration camp at this location. To follow that up, the Contra Costa Sheriff’s Department announced it is cancelling its contract with ICE which facilitated the local county jails holding ICE-detained persons for a lucrative fee. These human rights victories have been happening in other communities as well, including Sacramento County. […]
There are discussions and calls right now for counties to cease partnering with ICE, for communities surrounding military bases to refuse to work on the bases which will hold tens of thousands of people for the “crime” of seeking refuge.
Courage to Resist believes that all military personnel have a moral and legal obligation to refuse to comply with any order that involves collaboration with these immigrant concentration camps.
(October 9, 2018. Photos: U.S. Customs and Border Protection, U.S. Health and Human Services)
No Troops on the Border!
Veterans for Peace strongly condemns the recent announcement that up to 15,000 active duty military personnel may be sent to the U.S. southern border. These troops will join the additional National Guard units that were sent last year, increasing the militarization of our borders at an alarming rate. Our immigration laws and enforcement tactics have long been at a crisis point and we are now witnessing an even more draconian surge in the use of force to prop up failed policies.
Veterans For Peace calls on all our members and all veterans who see the inhumanity and injustice of the current policies to call their Congressional Representative and Senators to demand the military be pulled back from the border and that the members of the approaching caravan be treated with dignity and processed according to international humanitarian standards as refugees. We call on all service members participating in the border deployment to follow the long American tradition of listening to their conscience and remember that they have no obligation to follow illegal orders. (For questions on military rights, contact the GI Rights Hotline (1-877-447-4487) or Courage to Resist.)
The U.S. government, instead of welcoming the approaching refugees, the majority of whom will seek asylum under completely legal processes, is treating individuals and families fleeing to the U.S. as if they are “terrorists” (even when “counterterrorism” officials within the administration are stating that no such people exist within the caravan). The majority of these refugees are fleeing from violence in Honduras and a political situation U.S. actions have made worse.
The U.S. government’s claims that active duty troops are providing only innocuous support services are misleading. This is the introduction of U.S. military force as a deterrent to those who are pursuing their rights as asylum seekers fleeing from extreme poverty and violence in their homelands, much of it due to U.S. policies. The U.S. is required under international humanitarian standards to welcome those seeking refuge.
Veterans For Peace recognizes that these orders did not happen in a vacuum but represent a long history over several administrations of racist and violent policies that has perpetuated U.S. wars across the world and horrific domestic policies that created Immigration and Customs Enforcement (ICE), massive immigration detention centres and a wall that already splits towns and separates friends and families. However, the Trump administration has escalated, at an alarming pace, the implementation of new dangerous measures. […]
Veterans For Peace is not only concerned about the safety of individuals and families fleeing violence and the increased militarization of the border but we are extremely concerned about the continued disregard of federal law. Federal law, namely the Posse Comitatus Act, prohibits the deployment of active-duty troops on domestic soil and the U.S. Government continues to ignore laws in favour of increasing militarization of U.S. domestic policy.
As military veterans from WWII to the current era of conflicts, who have trained for, and in many cases, fought in U.S. wars, we know that current U.S. policies have not only failed to bring peace but are morally bankrupt and we do not believe that more military at the border is rooted in justice or compassion.
It is more important than ever that veterans stand up, speak out and organize to disrupt the dangerous escalation of racist and unjust policies, both at home and abroad. We, as veterans, know that peace is possible, but only if resources are directed towards caring for one another, not perpetuating militarization across the globe. [Veterans for Peace members are currently spreading out along the border to urge troops to refuse the orders and to assist those that do — TML Ed Note]
U.S. military plans large scale mass training on use of force
With President Donald Trump deploying 7,000 troops this month [November] to help the U.S. Border Patrol confront a migrant caravan from Central America, one important question stands out: How well are government forces trained to deal with a large group of civilians?
The migrants are unarmed, though several of them reportedly threw rocks at Mexican officers as they crossed that country’s border a few weeks ago. Trump recently said any rocks thrown at troops would be considered a rifle after a reporter asked if the military would fire at the migrants.
“We’re not going to put up with that. They want to throw rocks at our military, our military fights back,” Trump said. He later backtracked on his comments, saying that migrants would be arrested instead.
Reveal asked Customs and Border Protection about the kind of training officers would complete in anticipation of the migrants’ arrival. The agency provided a statement saying officers will be “participating in operational readiness exercises.” It did not respond to a reporter’s follow-up questions.
Reveal posed the same questions to the Department of Defense. General Terrence John O’Shaughnessy, the commander leading the border operation, told reporters last week that troops would receive use-of-force training.
“We are, in fact, as an example, setting up training programs that’ll be all the way from a large-scale mass training that will then go down to unit training,” he said.
Pentagon spokesman Jamie Davis told Reveal that training will depend on each troop’s assignment. He said he did not immediately have details about what the training would entail.
In general, soldiers, like police, are instructed to use force to defend themselves from “imminent threat of physical injury or death,” as well as to overcome resistance during an arrest, prevent destruction of military property, or to control or restrain animals, according to a Department of Defense directive obtained by the Federation of American Scientists. They are also trained in “scaled use of force,” which includes a variety of non-lethal tactics such as voice commands, pepper spray and batons.
Besides the thousands of troops, the military will be providing helicopters “to support the movement of Customs and Border Protection tactical personnel,” as well as medical teams, temporary housing, light towers and fencing materials like barbed wire, according to the Department of Defense.
Then there are the so-called militia groups who say they are headed to the border to confront the caravan. The militias are governed by another set of rules: Forty-one states have laws restricting private military activity, including Arizona, Texas and California.
(November 6, 2018. Photos: J. Moore)
Trump’s military deployment to U.S.-Mexico border is illegal
Donald Trump’s decision to send thousands of troops to the U.S.-Mexican border to intercept migrants who intend to apply for asylum is not just a bald-faced political stunt – it is also illegal.
Passed in 1878 to end the use of federal troops in overseeing elections in the post-Civil War South, the Posse Comitatus Act forbids the use of the military to enforce domestic U.S. laws, including immigration laws. For this reason, Trump’s decision to deploy the military to the border to enforce U.S. immigration law against thousands of desperate migrants from Central America — who have undertaken the perilous journey over 1,000 miles through Mexico to the U.S. border in order to apply for asylum — is an unlawful order. […]
The illegality of Trump’s order to the military opens the door to the possibility that service members will resist it: Under the Uniform Code of Military Justice, Nuremberg Principles and Army Field Manuals, service members have a duty to obey lawful orders and a duty to disobey unlawful orders. […]
On October 29, describing the impending arrival of migrants seeking asylum as an “invasion,” Trump tweeted, “This is an invasion of our Country and our Military is waiting for you!”
Military Is Legally Forbidden from Enforcing Immigration Law
The Posse Comitatus Act forbids the wilful use of “any part of the Army or the Air Force as a posse comitatus or otherwise to execute the laws.” It has been applied as well to the Navy and Marine Corps. The only exception to the Posse Comitatus Act’s prohibition is “in cases and under circumstances expressly authorized by the Constitution or Act of Congress.”
Defense Department officials told the New York Times that troops deployed to the border would help construct tents and fencing and some would “potentially” operate drones on the border. Whether the drones are armed or used for surveillance, they would be assisting in the enforcement of the immigration laws.
Moreover, the Los Angeles Times reported, “Black Hawk helicopters equipped with night sensors will be available to ferry Border Patrol personnel ‘exactly where they need to be’ to ‘spot groups’ and ‘to fast-rope down’ to intercept migrants trying to cross the border. Military aircraft will conduct surveillance.” Troops who carry out these functions would also be participating in the enforcement of the immigration laws. Only in the event of an invasion or insurrection on U.S. soil does the president have the power to order the use of the military within the United States. There is no invasion or insurrection occasioned by the migrant caravan. In an interview with the New York Times, Admiral James G. Stavridis, former commander of the U.S. military’s Southern Command, called out Trump’s “fictitious caravan invasion.” […]
Duty to Disobey Unlawful Orders
The Uniform Code of Military Justice requires that all military personnel obey lawful orders. Article 92 of the Uniform Code of Military Justice says, “A general order or regulation is lawful unless it is contrary to the Constitution, the laws of the United States….” Both the Nuremberg Principles and the Army Field Manuals create a duty to disobey unlawful orders.
“Sending troops to the U.S. border with Mexico is as immoral and illegal as sending them to invade and occupy foreign lands,” said Gerry Condon, president of Veterans For Peace. “Donald Trump is carrying out a racist war against asylum seekers who are fleeing extreme violence, which in turn is caused by decades of U.S. support for repressive regimes in Central America.”
Members of Veterans For Peace are fanning out along the U.S./Mexico border from California to Texas in order to reach out to the troops that Trump has ordered to the border. Condon added, “Soldiers who follow their conscience and refuse to follow illegal orders will have our support. We can also put GIs in contact with legal resources to help them get honourably discharged from the military.”
Trump’s Illegal Attack on the Right to Apply for Asylum
Under the 1951 Refugee Convention, any person who arrives in the United States has the right to apply for asylum. Applicants must show they are unable or unwilling to return to their country of origin due to a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion. Yet Trump’s new proclamation would deny migrants the right to apply for asylum unless they entered the United States at a designated port of entry, which violates the 1951 Refugee Convention.
On November 9, the American Civil Liberties Union, Southern Poverty Law Center, and Center for Constitutional Rights filed a lawsuit in the United States District Court for the Northern District of California, seeking an injunction to block Trump’s new restrictions on asylum. The complaint states that Trump’s proclamation is “in direct violation of Congress’s clear command that manner of entry cannot constitute a categorical asylum bar.” […]
Nearly 2,500 hopeful migrants have already arrived in Tijuana and thousands more are en route. Several organizations, including the National Lawyers Guild, have sent legal backup to the border. Members of Veterans For Peace are also at the border, offering support to troops who refuse unlawful orders to enforce the immigration laws.
(Truthout, November 19, 2018)
Rights Groups Seek to Block Trump’s Asylum Order
Update: On November 20, a federal judge issued a temporary restraining order, which is supposed to block Trump from implementing the asylum ban. However, given that such court orders have been issued on matters like detention and family separation (see article below) and the government continues to implement its attacks, it is not likely that the executive will submit to this order. Being informed about facts on the ground and persisting in defending rights is needed.
Civil rights groups in the U.S. have filed a federal lawsuit challenging the legality of U.S. President Donald Trump’s newly announced restrictions that would effectively bar migrants who did not enter the country at a port of entry from qualifying for asylum. The Trump order is directly against U.S. and international law concerning refugees, which requires the U.S. to accept refugees and hear their asylum cases regardless of where they entered the country.
The lawsuit was filed in San Francisco federal court by the American Civil Liberties Union, Southern Poverty Law Center and Center for Constitutional Rights. It seeks an injunction to prevent the administration from implementing the asylum policy. It charges the administration with violating the Immigration and Nationality Act as well as the Administrative Procedure Act.
Trump signed a proclamation November 9 that will suspend the granting of asylum to children, women and men who do not cross the U.S./Mexico border at port of entry locations for up to 90 days. The order, which goes into effect on November 10, means that migrants will have to present themselves at U.S. ports of entry to qualify for asylum. Existing law directly states that those entering anywhere along the border asking for asylum must be given protection. It is well-known that the government has been illegally forcing people to return even when they enter at ports of entry and has also illegally detained and deported many with legitimate claims.
The civil rights groups involved emphasized that U.S. immigration law clearly allows anyone present in the country to seek asylum, regardless of how they crossed the border. “President Trump’s new asylum ban is illegal. Neither the president nor his cabinet secretaries can override the clear commands of U.S. law, but that’s exactly what they’re trying to do. This action undermines the rule of law and is a great moral failure because it tries to take away protections from individuals facing persecution,” Omar Jadwat of the American Civil Liberties Union said in a statement.
“The asylum ban, coupled with Customs and Border Protection’s widespread practice and policy of turning back individuals attempting to seek asylum at ports of entry, would effectively deny protection to thousands of vulnerable individuals. The government’s blatant disregard for the rights of asylum seekers cannot stand,” said Melissa Crow, Southern Poverty Law Center senior supervising attorney.
Baher Azmy, legal director of the Center for Constitutional Rights, added, “Ever since the horrors of World War II, the world’s nations have committed to giving asylum seekers the opportunity to seek safe haven. The Trump administration cannot defy this most elementary humanitarian principle, in violation of U.S. and international law, with a flip of a presidential pen.
(ACLU, November 9, 2018)
Illegal Pushbacks, Arbitrary Detention and Ill-Treatment of Asylum-Seekers
The U.S. government has deliberately adopted immigration policies and practices that caused catastrophic harm to thousands of people seeking safety in the United States, including the separation of over 6,000 family units in a four-month period, more than previously disclosed by authorities, Amnesty International said in a new report released [October 11].
The report, “‘You Don’t Have Any Rights Here:’ Illegal Pushbacks, Arbitrary Detention and Ill-treatment of Asylum-seekers in the United States” reveals the brutal toll of the Trump administration’s efforts to undermine and dismantle the U.S. asylum system in gross violation of U.S. and international law. The cruel policies and practices documented include: mass illegal pushbacks of asylum-seekers at the U.S.-Mexico border; thousands of illegal family separations; and increasingly arbitrary and indefinite detentions of asylum-seekers, frequently without parole.
“The Trump administration is waging a deliberate campaign of widespread human rights violations in order to punish and deter people seeking safety at the U.S.-Mexico border,” said Erika Guevara-Rosas, Americas Director at Amnesty International. She added, “The intensity, scale and scope of the abuses against people seeking asylum are truly sickening. Congress and U.S. law enforcement agencies must conduct prompt, thorough and impartial investigations to hold the government accountable and ensure this never happens again.”
Approximately 8,000 Family Units Separated in 2017 and 2018
Last month, Customs and Border Protection (CBP) disclosed to Amnesty International that it forcibly separated over 6,000 family units (a term that U.S. authorities have used inconsistently to refer to whole families or individual family members) from April 19 to August 15, 2018 alone — more than U.S. authorities had previously admitted. CBP confirmed that this figure still excluded an undisclosed number of families whose separations were not properly recorded, such as grandparents or other non-immediate family members, whose relationships authorities categorize as “fraudulent” and do not count in their statistics. In total, the Trump administration has now admitted to separating approximately 8,000 family units since 2017.
“These shocking new numbers suggest that U.S. authorities have either misinformed the public about how many families they had forcibly separated, or they continued this unlawful practice unabated, despite their own claims and court orders to halt family separations,” said Guevara-Rosas. “Congress must act immediately to investigate and establish a comprehensive record of family separations by U.S. government authorities, and pass legislation prohibiting the separation and indefinite detention of children and families,” she demanded.
The extreme suffering that U.S. authorities purposefully inflicted by separating families constituted ill-treatment and in some cases torture. Amnesty International interviewed 15 parents and guardians separated from their children by U.S. border and immigration authorities, including 13 who presented themselves at official border crossings. Those family separations resulted in extreme anguish, and in some instances long-term trauma, for adults and children alike.
In an immigration detention facility in Texas, a 39-year-old Brazilian mother named Valquiria told Amnesty International that CBP agents separated her from her seven-year-old son, without providing any reason, the day after they requested asylum at an official port-of-entry in March 2018.
“They told me: ‘You don’t have any rights here, and you don’t have any rights to stay with your son,'” Valquiria said. “I died at that moment. It would have been better if I had dropped dead … Not knowing where my son was, what he was doing. It was the worst feeling a mother could have. How can a mother not have the right to be with her son?”
Illegal Pushbacks and Arbitrary Detention
In 2017 and 2018, CBP implemented a de facto policy of turning away thousands of people seeking asylum at official ports-of-entry along the entire U.S.-Mexico border.
“Every human being in the world has the right to seek asylum from persecution or serious harm, and request protection in another country,” said Erika Guevara-Rosas. “U.S. border authorities are flagrantly violating U.S. asylum law and international refugee law by forcing people back to Mexico without registering and determining their asylum claim. People pushed back to Mexico may face direct abuses there or deportation and the risk of serious human rights violations in their countries of origin,” she added.
Since 2017, U.S. authorities have also imposed a policy of mandatory and indefinite detention of asylum-seekers, frequently without parole, for the duration of their asylum claims. This constitutes arbitrary detention, in violation of U.S. and international law.
Amnesty International interviewed asylum-seekers being detained indefinitely after requesting protection, including separated family members, older people, and persons with acute health conditions and medical needs.
The organization also documented the cases of 15 transgender and gay asylum-seekers who were detained for periods ranging from several months to almost three years without parole, including two people who were denied parole despite having suffered sexual assaults while in detention. In several cases, their experiences of indefinite detention constituted ill-treatment.
Congress must act now to end the detention of children and families once and for all — and fund alternative options, such as the Family Case Management Program, which have been proven to be 99 per cent effective in helping asylum-seeking families understand and comply with their immigration hearing requirements.”
Constitutional Law Scholars Say Trump Cannot Eliminate Birthright Citizenship Through Executive Action
Constitutional law scholars in the U.S. recently released the following statement arguing that there is no serious scholarly debate about whether a president can, through executive action, eliminate birthright citizenship and contradict the Supreme Court’s long-standing and consistent interpretation of the Citizenship Clause of the 14th Amendment.
U.S. President Donald Trump is reportedly considering an executive order to essentially rewrite the Citizenship Clause of the 14th Amendment to eliminate birthright citizenship. In an interview [published October 30] to be aired [on HBO] later this week, he explains that people are now telling him that he can do this “just with an executive order.” As constitutional scholars who have studied the 14th Amendment, we write to say in no uncertain terms that he is wrong.
The Citizenship Clause — enshrined as Section 1 of the 14th Amendment to the U.S. Constitution in 1868 — states simply that “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and the State wherein they reside.” The 14th Amendment, adopted in the immediate aftermath of a Civil War that very nearly ripped this country in two, established the foundational principle that all persons are entitled to due process and equal protection under the law. The Citizenship Clause contained therein was meant as a direct rebuke to the infamous decision in Dred Scott v. Sandford, 60 U.S. (19 How.) 393 (1857), in which the Supreme Court held that people of African descent born on our soil whose ancestors were slaves could not be citizens, even if they were free.
The U.S. Supreme Court 120 years ago in United States v. Wong Kim Ark, 169 U.S. 649 (1898), settled the very issue raised by the president. In that case, the Court held that with certain very limited exceptions, all children born in the United States are natural-born citizens regardless of the citizenship status of their parents. Many decades later in the case of Plyler v. Doe, 457 U.S. 202 (1982), in which the Court upheld the right of all children regardless of alienage to a free public education, the Court analogized its holding on Equal Protection Clause grounds to the settled law on the Citizenship Clause as declared in Wong Kim Ark. Specifically, the Court noted that just as undocumented immigrants are “subject to the jurisdiction of the United States” for purposes of the Citizenship Clause, they too are “within the jurisdiction” of a state for purposes of the Equal Protection Clause. (Id. at 211 n.10.) There is today no serious scholarly debate about whether a president can, through executive action, contradict the Supreme Court’s long-standing and consistent interpretation of the Citizenship Clause of the 14th Amendment. Instead, as conservative legal scholar James Ho, now a federal judge on the U.S. Court of Appeals for the 5th Circuit nominated by President Trump, wrote more than a decade ago, “a constitutional amendment is the only way to restrict birthright citizenship.” The executive branch’s own lawyers have long agreed.
It took a Civil War — the bloodiest conflict in American history — to resolve a dispute about what it means to be an American — a person — in this country. The 14th Amendment, including the Citizenship Clause, is the rightly cherished result of that American tragedy.
(The statement was signed by Muneer I. Ahmad, Yale Law School; Walter E. Dellinger III, Duke University School of Law; Lucas Guttentag, Stanford Law School and Yale Law School; Harold Hongju Koh, Yale Law School; Stephen H. Legomsky, Washington University School of Law; Gerard N. Magliocca, Indiana University Robert H. McKinney School of Law; David A. Martin, University of Virginia School of Law; Michael W. McConnell, Stanford Law School; Hiroshi Motomura, University of California, Los Angeles (UCLA) School of Law; Gerald L. Neuman, Harvard Law School; Cristina Rodríguez, Yale Law School; Peter J. Spiro, Temple University Law School; Geoffrey R. Stone, The University of Chicago; Laurence H. Tribe, Harvard Law School; Stephen I. Vladeck, The University of Texas at Austin Law School)
(October 30, 2018)
An Executive Order Cannot Repeal Birthright Citizenship, Period
President Trump’s assertion … that he is considering signing an executive order to end “birthright citizenship” to children born in the United States to undocumented parents has created a firestorm of controversy. Rightly so. The idea should be rejected for the following reasons.
First, the law is clear. The 14th Amendment to the U.S. Constitution states that “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.” Courts and legal scholars have consistently interpreted that language to include children born in the United States.
The Supreme Court decided this issue 120 years ago, in an 1898 case called Wong Kim Ark. The court ruled that a child born in San Francisco to Chinese parents was a U.S. citizen, even though the Chinese Exclusion Act barred his parents from ever becoming citizens. “To hold that the 14th Amendment of the Constitution excludes from citizenship the children, born in the United States, of citizens or subjects of other countries,” the court said, “would be to deny citizenship to thousands of persons of English, Scotch, Irish, German or other European parentage who have always been considered and treated as citizens of the United States.”
The Supreme Court’s decision in Wong Kim Ark did not specifically discuss the citizenship status of children of unauthorized immigrants. Nor could it have. The concept of unauthorized immigration did not exist then. But in 1982, in Plyler v. Doe, the court ruled that undocumented children were entitled to free public education. The court relied on another part of the 14th Amendment, its equal protection clause, and it interpreted language similar to that in the citizenship clause.
The Plyler court noted in a footnote that “no plausible distinction with respect to Fourteenth Amendment ‘jurisdiction’ can be drawn between resident aliens whose entry into the United States was lawful, and resident aliens whose entry was unlawful.”
The Supreme Court’s interpretation makes sense. As fellow law professor and former USCIS Chief Counsel Stephen Legomsky has noted, “Like anyone else, native-born Americans, whoever their parents are, can be charged with crimes if they disobey U.S. law. How would this be possible if the U.S. had no jurisdiction over them?”
Second, even if the law were not clear, an executive order is the wrong procedural mechanism. A constitutional amendment can only be undone by another constitutional amendment. Moreover, the U.S. immigration statute also states that anyone born in the United States is automatically an American citizen. Only Congress can repeal a law, not the President. To do so by executive decree would undermine our democracy.
Third, the practical problems in ending birthright citizenship would be huge. Would the executive order apply retroactively? If so, would that make some current U.S. citizens deportable? What would happen in split families, for example, where some children are born to undocumented parents, while younger siblings are born here after their parents legalize? And what would we do with children who become stateless? Ireland is currently dealing with this problem because it removed birthright citizenship. A 9-year-old boy there is facing statelessness and deportation from his place of birth and only home.
The United States is not alone in granting automatic citizenship to babies born in the country. NumbersUSA, a group that favours reduced immigration, compiled a list of 33 countries that grant citizenship to anyone born within their borders.
In sum, ending birthright citizenship is an overly simple solution for a complex problem: our broken immigration system. Congress needs to tackle the problem; the president cannot do it unilaterally.
It is unclear whether the President will actually sign an executive order ending birthright citizenship. His statement could well be “vapourware,” intended merely as a political ploy to appeal to his base just before the midterm elections. But if Trump really tries to do this, both the court of public opinion and courts of law should immediately repudiate it and send it to the dustbin of history.
Yale-Loehr is professor of immigration law practice at Cornell Law School. He is also co-author of “Immigration Law and Procedure,” a 21-volume immigration law treatise.
(October 31, 2018)
Next Time ICE Rounds Up Workers, Remember that We Did Not Do the Same with Nazi-Era War Criminals
U.S. Immigration and Customs Enforcement (ICE) has been making news with its brutal crackdowns on immigrants. Arrests of men and women with no criminal record are up 142 per cent since January 2017. In December, the federal inspector general found widespread civil rights abuses at ICE detention centres.
We hear daily horror stories of longtime U.S. residents torn from their families: Edwin Marcial, father of four, who worked for 15 years at the New York Bagel Co. in Brentwood, California got detained. Stories like Marcial’s abound: Jorge Garcia, a 39-year-old father of two from Detroit was deported to Mexico on Martin Luther King Jr. Day. Green-card holder Dr. Lukasz Niec, who has lived in the U.S. since he was 3, faces deportation for misdemeanours committed 25 years ago, when he was a teenager.
ICE’s deportation zeal stands in contrast to a particularly shameful chapter in its history. When it was known as the U.S. Immigration and Naturalization Service (INS), from 1945 to 1979, it repeatedly failed to investigate and remove European war criminals from the U.S. and that included Holocaust perpetrators.
The re-opening of our borders in the years following World War II allowed thousands of collaborators and accomplices of the Nazi regime to make their way to the United States. A small number of them were knowingly brought in by U.S. intelligence services. Most came through the system undetected amid an influx of nearly 400,000 war-displaced persons. At the time, officials set a preposterously high bar for complicity in war crimes. That, combined with an initial lack of knowledge about the Holocaust, made it easy for applicants to cover up their backgrounds on their immigration forms.
Once here, it was as easy to escape justice. Adrija Artukovic, minister of the Interior and Justice in Croatia during the war, sneaked into the U.S. under an assumed name in 1948 and settled in Seal Beach, California. Known in Yugoslavia as the Butcher of the Balkans, Artukovic was described by a U.S. official as Croatia’s Himmler. American authorities knew he was here as early as 1949, but he was not arrested and returned to Croatia for trial until the 1980s. His death sentence was never carried out; he died in 1988.
For the first two decades after World War II, the INS brought very few “denaturalization” cases to court, a total of five for the entire 1950s. Only one of these war criminals was successfully denaturalized. The 1960s saw just two cases pursued, despite INS being flooded with dozens if not hundreds of tips on potential war criminals living among us. The cases it did manage to bring to court in the 1950s and 1960s were so poorly constructed that even a Romanian Iron Guard member and virulent anti-Semite, Valerian Trifa, was not stripped of his citizenship. As for deportations, the INS filed no more than 10 cases against suspected war criminals from 1945 to 1973.
It is possible that skin color and country of origin played a role in the INS’s lack of interest in investigating the war records of newcomers from places like the Baltics and Ukraine. They blended in, and records show that INS agents at every turn had a hard time seeing these immigrants as dangerous. They humanized them, and so did others, even after evidence emerged to the contrary. A suspected Nazi unit commander was identified in a Minnesota newspaper as a “pillar of the church” and a man who “takes care of his yard and walks with his wife.” A concentration camp guard living in New York was referred to as a “feeble old man” by neighbours.
The Kowalchuk brothers, Sergei and Mykola, of Philadelphia, served together in an auxiliary police force in the Ukrainian town of Liuboml, where more than 4,000 Jews were killed. Sergei was chief of police. In 1966, an INS investigator noted that Mykola’s Jewish boss told an interviewer he could not believe his employee was complicit in wartime violence, as if such a comment from such a source should be considered exculpatory. In a New York Times article, a police officer and neighbour of Kowalchuk’s said, “They are good people from what I can see. They get up early in the morning and work hard every day.”
It took the efforts of two members of Congress, Elizabeth Holtzman and Joshua Eilberg, aided by Jewish organizations and journalists, to call the INS to account for its failure to pursue war criminals. Congressional hearings in the 1970s demonstrated how often the agency had failed to act on tips and how badly it botched investigations.
The hearings resulted in the establishment of an Office of Special Investigations in the Department of Justice specifically to find and remove war criminals. Still, the INS was not particularly cooperative: one document shows officers mocking the new office.
ICE now houses the evidence of the INS’ failures, and it too is not cooperative on the subject of war criminals. It has been extremely reluctant to release its files through the Freedom of Information Act, and when it does, it routinely applies unwarranted redactions to their contents, demonstrating a higher concern for the privacy of deceased accused war criminals than for transparency about the agency’s history. The next time you hear about ICE agents hauling away a hard-working, law-abiding immigrant, put the incident in the context of the same institution’s history of allowing Nazis, and their accomplices, a safe haven in the United States. Like Mykola Kowalchuk, Edwin Marcial is a “hard-working” member of his community — but he is not white and he did not participate in war crimes.
Jared McBride is a lecturer in the history department at UCLA.
(LA Times, February 4, 2018)
A Century of U.S. Intervention Created Immigration Crisis
A national spotlight now shines on the border between the United States and Mexico. […] At the margins of the mainstream discursive stalemate over immigration lies over a century of historical U.S. intervention that politicians and pundits on both sides of the aisle seem determined to silence. Since Theodore Roosevelt in 1904 declared the U.S.’s right to exercise an “international police power” in Latin America, the U.S. has cut deep wounds throughout the region, leaving scars that will last for generations to come. This history of intervention is inextricable from the contemporary Central American crisis of internal and international displacement and migration.
The liberal rhetoric of inclusion and common humanity is insufficient: we must also acknowledge the role that a century of U.S.-backed military coups, corporate plundering, and neo-liberal sapping of resources has played in the poverty, instability, and violence that now drives people from Guatemala, El Salvador, and Honduras toward Mexico and the United States. For decades, U.S. policies of military intervention and economic neo-liberalism have undermined democracy and stability in the region.
In the past fifteen years alone, [the Dominican Republic-Central America Free Trade Agreement (CAFTA-DR)] — a free trade agreement between the U.S. and five Central American countries as well as the Dominican Republic — has restructured the region’s economy and guaranteed economic dependence on the United States through massive trade imbalances and the influx of U.S. agricultural and industrial goods that weaken domestic industries. Yet there are few connections being drawn between the weakening of Central American rural agricultural economies at the hands of CAFTA-DR and the rise in migration from the region in the years since. In general, the U.S. takes no responsibility for the conditions that drive Central American migrants to the border. U.S. empire thrives on amnesia. The Trump administration cannot remember what it said last week, let alone the actions of presidential administrations long gone that sowed the seeds of today’s immigration crisis. There can be no common-sense immigration “debate” that conveniently ignores the history of U.S. intervention in Central America. Insisting on American values of inclusion and integration only bolsters the very myth of American exceptionalism, a narrative that has erased this nation’s imperial pursuits for over a century.
As the British immigrant rights refrain goes, “We are here because you were there.” The adage holds no less true here and now. It is time to insist that accepting Central American refugees is not just a matter of morality or U.S. benevolence. Indeed, it might be better described as a matter of reparations.
The following time-line compiles numerous sources to lay out an incomplete history of U.S. military and economic intervention in El Salvador, Honduras, and Guatemala over the past century.
1932: A peasant rebellion, led by leader Farabundo Martí, challenges the authority of the government. Ten thousand to 40,000 rebels, many Indigenous, are systematically murdered by the regime of military leader Maximiliano Hernández Martínez, the nation’s acting president. The United States and Great Britain, having bankrolled the nation’s economy and owning the majority of its export-oriented coffee plantations and railways, send naval support to quell the rebellion.
1944: Martínez is ousted by a bloodless popular revolution led by students. Within months, his party is reinstalled by a reactionary coup led by his former chief of police, Osmín Aguirre y Salinas, whose regime is legitimized by immediate recognition from the United States.
1960: A military-civilian junta promises free elections. President Eisenhower withholds recognition, fearing a leftist turn. The promise of democracy is broken when a right-wing counter-coup seizes power months later. Dr. Fabio Castillo, a former president of the national university, would tell Congress that this coup was openly facilitated by the U.S. and that the U.S. had opposed the holding of free elections.
1980-1992: A civil war rages between the military-led government and the Farabundo Martí National Liberation Front (FMLN). The Reagan administration, under its Cold War containment policy, offers significant military assistance to the authoritarian government, essentially running the war by 1983. The U.S. military trains key components of the Salvadoran forces, including the Atlacatl Battalion, the “pride of the U.S. military team in San Salvador.” The Atlacatl Battalion would go on to commit a civilian massacre in the village of El Mozote in 1981, killing at least 733 and as many as 1,000 unarmed civilians, including women and children. An estimated 80,000 are killed during the war, with the UN estimating that 85 per cent of civilian deaths were committed by the Salvadoran military and death squads.
1984: Despite the raging civil war funded by the Reagan administration, a mere three per cent of Salvadoran and Guatemalan asylum cases in the U.S. are approved, as Reagan officials deny allegations of human rights violations in El Salvador and Guatemala and designate asylum seekers as “economic migrants.” A religious sanctuary movement in the United States defies the government by publicly sponsoring and sheltering asylum seekers. Meanwhile, the U.S. funnels $1.4 million to its favoured political parties in El Salvador’s 1984 election.
1990: Congress passes legislation designating Salvadorans for Temporary Protected Status (TPS). In 2018, President Trump would end TPS status for the 200,000 Salvadorans living in the United States.
2006: El Salvador enters CAFTA-DR, a neo-liberal export-economy model that gives global multinationals increased influence over domestic trade and regulatory protections. Thousands of unionists, farmers, and informal economy workers protest the free trade deal’s implementation.
2014: The U.S. threatens to withhold almost $300 million worth of Millennium Challenge Corporation (MCC) development aid unless El Salvador ends any preferences for locally sourced corn and bean seeds under its Family Agriculture Plan.
2015: Under the tariff reduction model of CAFTA-DR, all U.S. industrial and commercial goods enter El Salvador duty free, creating impossible conditions for domestic industry to compete. As of 2016, the country had a negative trade balance of $4.18 billion.
1911: American entrepreneur Samuel Zemurray partners with the deposed Honduran President Manuel Bonilla and U.S. General Lee Christmas to launch a coup against President Miguel Dávila. After seizing several northern Honduran ports, Bonilla wins the Honduran 1911 presidential election.
1912: Bonilla rewards his corporate U.S. backers with concessions that grant natural resources and tax incentives to U.S. companies, including Vaccaro Bros. and Co. (now Dole Food Company) and United Fruit Company (now Chiquita Brands International). By 1914, U.S. banana interests would come to own one million acres of the nation’s best land — an ownership frequently insured through the deployment of U.S. military forces.
1975: The United Fruit Company (rebranded as the United Brands Company) pays $1.25 million to a Honduran official, and is accused of bribing the government to support a reduction in banana export taxes.
1980s: In an attempt to curtail the influence of left-wing movements in Central America, the Reagan administration stations thousands of troops in Honduras to train Contra right-wing rebels in their guerrilla war against Nicaragua’s Sandinistas. U.S. military aid reaches $77.5 million in 1984. Meanwhile, trade liberalization policies open Honduras to the interests of global capital and disrupt traditional forms of agriculture.
2005: Honduras becomes the second country to enter CAFTA-DR, the free trade agreement with the U.S., leading to protests from unions and local farmers who fear being out-competed by large-scale U.S. producers. Rapidly, Honduras goes from being a net agricultural exporter to a net importer, leading to loss of jobs for small-scale farmers and increased rural migration.
2009: Democratically-elected President Manuel Zelaya, who pursued progressive policies such as raising the minimum wage and subsidizing public transportation, is exiled in a military coup. The coup is staged after Zelaya announces intentions to hold a referendum on the replacement of the 1982 constitution, which had been written during the end of the reign of U.S.-backed military dictator Policarpo Paz García. Honduran General Romeo Vásquez Velásquez, a graduate of the U.S. Army training program known as the School of the Americas (nicknamed “School of Assassins”), leads the coup. The United States, under Hillary Clinton’s Department of State, refuses to join international calls for the “immediate and unconditional return” of Zelaya. [The U.S. backed the coup and, joined by Canada, has since ensured that the government it put into power remains in power through electoral coups. — TML Ed. Note]
2017: Honduras enters an electoral crisis as thousands of protesters contest the results of the recent presidential election, which many allege was rigged by the ruling party.
1920: President Manuel Estrada Cabrera, an ally to U.S. corporate interests who had granted several concessions to the United Fruit Company, is overthrown in a coup. The United States sends an armed force to ensure the new president remains amenable to U.S. corporate interests.
1947: President Juan José Arévalo’s self-proclaimed “worker’s government” enacts labour codes that give Guatemalan workers the right to unionize and demand pay raises for the first time. The United Fruit Company, as the largest employer and landowner in the country, lobbies the U.S. government for intervention.
1952: Newly-elected President Jacobo Árbenz issues the Agrarian Reform Law, which redistributes land to 500,000 landless — and largely Indigenous — peasants.
1954: Fearing the Guatemalan government’s steps toward agrarian reform and under the influence of United Fruit, President Eisenhower authorizes the CIA to overthrow democratically elected President Árbenz, ending an unprecedented ten years of democratic rule in the country, colloquially known as the “ten years of spring.” In Árbenz’s place, the U.S. installs Carlos Castillo Armas, whose authoritarian government rolls back land reforms and cracks down on peasant and workers’ movements.
1965: The CIA issues Green Berets and other-counterinsurgency advisors to aid the authoritarian government in its repression of left-wing movements recruiting peasants in the name of “struggle against the government and the landowners.” State Department counterinsurgency advisor Charles Maechling Jr. would later describe the U.S.’s “direct complicity” in Guatemalan war crimes, which he compared to the “methods of Heinrich Himmler’s extermination squads.”
1971: Amnesty International finds that 7,000 civilian dissidents have been “disappeared” under the government of U.S.-backed Carlos Arana, nicknamed “the butcher of Zacapa” for his brutality.
1981: The Guatemalan Army launches “Operation Ceniza” in response to a growing people’s guerrilla movement. In the name of “counterattacks” and “retaliations” against guerrilla activities, entire villages are bombed and looted, and their residents executed, using high-grade military equipment received from the United States. The Reagan administration approves a $2 billion covert CIA program in Guatemala on top of the shipment of $19.5 million worth of military helicopters and $3.2 million worth of military jeeps and trucks to the Guatemalan army. By the mid-1980s, 150,000 civilians are killed in the war, with 250,000 refugees fleeing to Mexico. Military leaders and government officials would later be tried for the genocide of the Maya victims of military massacres.
1982: A second U.S.-backed military coup installs Efraín Ríos Montt as president. Montt is convicted of genocide in 2013 for trying to exterminate the Indigenous Maya Ixil.
2006: Ten years after a UN-brokered peace deal and the resumption of democratic elections, Guatemala enters the CAFTA-DR free trade deal with the United States. Ninety-five per cent of U.S. agricultural exports enter Guatemala duty free.
(Medium.com, June 20, 2018)
All articles in this dossier are reproduced from Voice of Revolution, usmlo.org, November 16, 2018 as published by TML Weekly, cpcml.ca, December 1, 2018 – No. 42