Wednesday, March 25, 2020

Deporting People During a Pandemic a Crime. Injured Countries Should Get Ready to Sue

As border restrictions pop up all over the world to contain the Coronavirus, governments continue to deport people from pandemic countries to poor, at-risk countries, many of which currently have very few cases. Reports are emerging that governments are deporting sick, coughing and potentially positive people from facilitates located at the center of an outbreak to poor countries that, to date, have far fewer cases. In other words, countries are negligently and knowingly spreading the pandemic to some of the world’s poorest countries by failing to take the simple and sensible measure of halting deportations.
The Biological Weapons Convention prohibits the spread of biological agents, including viruses, as weapons. But what about the negligent spread of a dangerous virus? The CDC in the United States has classified many dangerous viruses as banned biological weapons. Presumably, the coronavirus will be added to this list. The World Health Organization helped to enact the International Health Regulations in 2005 to bind countries to collective action during a pandemic. The regulations include guidelines to limit the international spread of the virus.
During the AIDS epidemic, countries regularly deported infected persons in violation of international law. But coronavirus is so contagious, deporting a single infected person can create an outbreak, putting thousands at risk. It might finally be the catalyst for action against this biological crime. If there is an outbreak in a country that can be traced to a willful deportation by another country, a lawsuit can and should be brought by the injured country before the International Court of Justice. Such an action might make countries think twice during the next pandemic before they willfully spread the virus through deportations.

Tuesday, March 17, 2020

“Social Distancing” is not possible in a Refugee Camp

Every stage of the refugee journey is risky during a pandemic
The most common part of the refugee experience is crowds. Overcrowding, a shortage of medicine, crowded boats, trains, cars, long flights, long lines, long waits. These things are all part of daily life for refugees. Social distancing is not possible when you are being warehoused in a camp or a jail.
Predictably, media coverage of the COVID-19 coronavirus emergency has focused on the disruption and danger to the lives of wealthy Americans, Asians and Europeans. A few have noted the dangers for poorer countries in the Americas and sub-Saharan Africa. I even saw a smattering of articles on the homeless.
But the poorest country of them all, the vast, unrecognized state inhabited by over 60 million people in limbo, who have next to no health care, no right of movement and who spend most of their days packed into tents, small rooms, crowded boats and trains, these people are going to be most at risk of infection and least able to see a doctor. Yet their fate, so often discussed in the media when it was politically expedient, is now totally invisible.
The coronavirus will flatten all lies. It has already destroyed the lie that borders will make us safe. It has already destroyed the lie that immigrants are the biggest threat. It will now rip a giant hole right through the lie that refugee camps are good public policy, or, indeed, that they are anything other than a monstrous crime.

Tuesday, March 10, 2020

Maybe the Government Should Make More Face Masks Instead of Building a Useless Wall With Mexico

The answer?
Go back to 2016 and what do you remember? A global panic over migration. Panic! Be Afraid! Old dudes are shouting at you! Politicians all over the world were pounding their lecterns, warning of the danger of immigrants. But 2016 was only the crescendo of an old trend. For decades now, we’ve been told, over and over again, that the only way to stay safe is to have strong borders. Fearmongering about immigration has been constant, intense and universal. It seems to be the #1 weapon of choice in elections around the world.
So powerful is this message that even left-leaning politicians in many countries embrace draconian immigration restrictions. Often, such restrictions are justified by supposed threats to jobs (even though immigration creates jobs) or that immigrants use public services (even though most immigrants, including undocumented immigrants, pay taxes), alongside the looming possibility of crime and terrorism (even though many countries produce far more home grown crime and terrorism).
Yet there has always been a third rationale for immigration restrictions — public health. Without borders, we are told, diseases could travel quickly across the world. Borders, we are told, will keep us safe by allowing governments to quickly screen travelers for dangerous illnesses, curbing their spread. Borders stop pandemics!
Well, so much for that argument.
Was this the real threat all along?
As we watch with horror the rapid spread of the novel Coronavirus, we can see, in real time, that borders and immigration controls do little to stop the spread of infectious disease. Why? Because borders aren’t designed to stop travel, they’re designed to stop immigration. And travel is what causes diseases to spread. In fact, our entire, global system of commerce is designed to encourage temporary, short-term travel, for tourism, conferences, study or family visits, particularly for people from the Global North. By the time a government moves to close borders, as Trump threatened to do yesterday, it’s already too late. The virus is already inside the gates.
Yet, still, even during this actual, real live crisis, many politicians like Trump continue to claim that we need immigration restrictions to protect our countries. Trump keeps talking about Mexico, a country that actually has fever cases than the United States. Politicians in Italy are claiming that the virus was brought by refugees, even though this is completely false. Some blame the EU, yet while many countries in the EU have cases…so do European countries who are not in the EU.
As the virus spreads, politicians seem ever more desperate to tie that spread not to wealthy, upper class people taking cruises or attending conferences, but to refugees and undocumented immigrants. Somehow, we’ve managed to get through this entire election cycle without a single candidate for president even mentioning the real and present danger of cruise ship travel. Why wasn’t I told? Where is the leadership?
Next Time a Politician Tells You to Fear Immigrants, Ask Their Opinion on Cruise Ships
Governments keep telling us that the supposed threats posed by foreigners are so severe that they require urgent and damaging action. Meanwhile, real emergencies, like climate change and the emergence of new pandemics, go unaddressed due to lack of funding. Programs that may actually help save lives, like infectious disease research and carbon capture, go unfunded and ignored, barely mentioned even by liberal politicians.
Years of screaming about the danger of migration, billions of dollars wasted and entire nations ripped apart in fruitless arguments over imagined dangers, fearmongering and hate. Yet, when an actual emergency finally arrives, all our leaders can bother to do is pass around some hand sanitizer and admonish us for creating a global shortage of face masks, because apparently it was our job to keep track of how many face masks are available and make sure to avoid a shortage. The government’s job was to build a huge, expensive wall that has done nothing to make us safer. But providing enough face masks in case of a global pandemic? Well, turns out that was your job, dear reader! Didn’t you know? Yours and yours alone.
The government’s job is to build walls, not make face masks.

Monday, February 3, 2020

As Kyrgyzstan Is Feted for a Major Human Rights Milestone, the US Adds it to the Travel Ban

In 2019, Kyrgyzstan was feted around the world for reaching a historic landmark — the end of statelessness. Stateless people have no legal nationality in any country. Like many former Soviet countries, millions in Kyrgyzstan had been left without passports or a nationality at the end of the Cold War. Without a nationality, they could not vote, travel or access many of their rights.
The lawyer who spearheaded the government push to end statelessness in Kyrgyzstan, Azizbek Ashurov, won this year’s prestigious Nansen award, given out each year to a human rights advocate working with refugees, stateless persons or displaced persons. (The award is named for Fridtjof Nansen, a Norwegian explorer and refugee advocate who invented the “Nansen passport” which helped millions of refugees following World War One, for which he was awarded the Nobel Peace Prize.)
It’s worth noting that a recent report estimates that the United States may have as many as 200,000 stateless persons about which it is doing nothing. Yet the US government has determined that Kyrgyz people, including the human rights lawyers who worked so hard and spent many long hours on horseback to make sure people inside their own country can enjoy their rights, pose such a threat to Americans that they must be banned.
Also on the ban is Nigeria, one of Africa’s largest and most dynamic countries and home to award-winning author Chimamanda Ngozi Adichie, who wrote a book about the Nigerian-American experience. Why Nigeria? The US government has vaguely hinted that there may be “nefarious actors” in Nigeria, but each day they ignore the nefarious actor in the White House.
Also on the ban, Tanzania, home to some of the top travel destinations in the world, including Mt. Kilimanjaro. Apparently, the government of Tanzania was not informed in advance that it was being added to the ban, nor has the Trump administration made it clear why Tanzania was added to the list, or what can be done to get off the list. In this, Tanzania’s experience is not unlike that of James Comey, the former FBI director who found out he was fired on TV.
Notably, while many Americans are calling this an “update” to the “Muslim ban,” most Tanzanians are not Muslims, only adding to the frightening arbitrariness of the new list. Over the next months and years, millions around the world will be wondering, “why Nigeria?” “why Kyrgyzstan?” and, perhaps, “why not my country?” or, “is my country next?” Chad somehow got itself removed from the list, making me wonder if the Kempinski hotel, once owned by Gaddafi, will soon be renamed the “Trump N’djamena Hotel.”
In a few days, the Senate will vote to acquit Trump of his crimes, not because he’s not guilty, but because Trump can do whatever he wants. And what he wants is to get re-elected. So expect more travel restrictions in the months to come.

Monday, January 27, 2020

“If Climate Change Gets Bad, We Can Move to a New State, Right?” Why the Right To Freedom of Movement Under the US Constitution Isn’t as Strong as You Need It to Be.


The Right to Freedom of Movement Between US States

**Note — I urge constitutional law scholars to write more on this question.
Recently, a number of articles have come out in the media discussing which states will be most and least affected by climate change and which cities, by consequence, will see an influx of Americans fleeing climate change. These articles rest on a common assumption held by many Americans about their basic right to move anywhere within the United States. But do we have such a right, really? And if tens of thousands of Californians or Texans need to move to the mid-West, will they be allowed to do so?
We all know that borders stop the freedom to move from one country to another. But the United States also has an internal system of borders…between sovereign states. Internationally, while goods and money can travel wherever they want in the world, people need passports and visas. Within your own country, though, you have the right, in principle, to go wherever you want. Or do you?
The right to Freedom of Movement inside your own country is enshrined in numerous places in international law. The right to move around within your own country is a founding principle of the Universal Declaration of Human Rights. But what about our own Constitution? Is there a right to Freedom of Movement under US law?

Is Freedom of Movement Protected Enough by the US Constitution? I’m Not Sure, and You Shouldn’t Be Either

Most Americans don’t think about the right to freedom of movement very much because, for the most part, US states haven’t restricted it very much. If you live in California, you can move to Texas at any time, either to visit, or to live. But in the past, there have been cases where states like California have placed restrictions on immigrants from other states. During the 1940s, California passed “anti-Okie” laws to discourage unemployed people from dust-bowl states from moving to California. These laws were swiftly declared unconstitutional. Problem solved, right?
Not really. The truth is that our Constitution doesn’t protect freedom of movement between states as much as it should. You probably can’t remember reading the words “freedom of movement” in the US Constitution because it isn’t written there. It’s inferred, which means that the US Supreme Court has kinda, sorta, made it up. If this doesn’t sound good to you, it shouldn’t.
According to the U.S. Supreme Court, freedom of movement within the United States is inferred under the privileges and immunities clause of the Constitution, which states, “the citizens of each state shall be entitled to all privileges and immunities of citizens in the several states” and under the Commerce Clause, which gives Congress the power to “regulate commerce…among the several states.” If that sounds a little…indirect and unclear to you, it’s because it is.
In fact, there’s been a lot of debate, however, about exactly what the Privileges and Immunities clause means and how broad the commerce clause should be. Without plunging into a detailed discussion of the jurisprudence, let me just tell you that I wouldn’t say with 100% certainty that the U.S. Constitution protects our rights as Americans to move from one state to another. As the Legal Information Institute at Cornell Law School so charmingly puts it, the right to freedom of movement in the US is, “venerable for its longevity, but still lacking a clear doctrinal basis.” Ouch.

The US Supreme Court Will Be Critical in Protecting the Rights of Americans Displaced by Climate Change

It’s not hard to imagine unaffected states receiving thousands of displaced Americans following an Australia-style climate event. And it’s not that hard to imagine the residents of those states feeling overwhelmed and hostile to the new-comers, particularly if it seems likely many of those newcomers won’t be able to go back. While we’d all like to think Americans would pull together and support each other, we know that’s not going to happen, particularly if coastal and urban populations are forced to move into red-state areas. It’s not hard to imagine similar laws being passed to those used to restrict the movement of victims of the dust bowl in the 1930s. It’s not encouraging that the current “right” to move is based, at least partly, on the dreaded Commerce Clause, which reduces your individual rights to a commercial transaction between states.
If a flood comes to your town, your rights as an American to move across a state line will ultimately come down to the US Supreme Court. And it’s not hard to see the current Court coming to a different conclusion than Courts of the past. So next time you’re talking to a Presidential candidate about climate change, ask them about the US Supreme Court and your right to freedom of movement.

Tuesday, October 8, 2019

The Real Scandal about Refugee Privacy is that there is No Refugee Privacy

While we focus on one dumb tweet, the global push to obtain and share the personal data of millions of refugees without their consent continues unabated and unchallenged.

While we focus on tweets, private companies and government are using the UN to collect biometric data such as eye scans and fingerprints from refugees.
Apparently, Melissa Fleming accidentally shared the personal details of a refugee girl in a promotional tweet for UNHCR. Personally, I was rather surprised at the blowback, because UNHCR collects and shares sensitive personal data about refugees with both private companies and governments all the time with near impunity and with only a passing gesture towards ethics. I was surprised to see experts complaining about a breach of refugee privacy and confidentiality because in today’s data-hungry world, refugees have no privacy. Take, for example, UNHCR and WFP’s program to retinal scan refugees in Jordan in exchange for food rations. To read glowing media accounts of this program, you would think that refugee privacy is a non-issue, like pollution from the poop of flying pegasus unicorns.
To hear aid agencies and donor governments tell it, there’s nothing wrong with non-voluntary retinal scans and one would be foolish to even question the wisdom of creating a global database of refugee eye scans. Forget about the fact that none of the agencies has ever demonstrated that it is capable of keeping such information secure, there is no proper set of terms and conditions as to how this information is used and shared.  Collecting sensitive personal data from refugees is often painted as a technical tool that will help streamline aid; discussion of problems with collecting biometrics is usually limited to the technological challenges, or the possibility for “mistakes.” Rarely discussed is the fact that the personal data of millions of people are being collected, stored and shared by unaccountable international agencies, often working with private tech companies, at the behest of donor governments with murky agendas. For example, why might the EU be interested in a database of fingerprints of people from various West African countries? Might that not help identify people for deportation?

Living Under the Techno-Humanitarian Super-State

While many of us are concerned about data privacy, most of us have control over enough aspects of our lives that we can, if we wish, take measures to protect ourselves. It’s not possible to prevent the government from collecting your personal data — we all gave up that right to privacy long ago. Yet many of use can influence how the government uses our data, at least in theory, through voting. As for non-governmental data collection, its still possible to opt out. For example, it’s possible to go off Facebook or limit the data collected by our mobile phone carriers. But refugees have no power to limit the power of aid agencies and others to collect their data. Refugees have no choice but to exchange their retinal scans for food. The aid agency or UN serves in a quasi-governmental role, but without the same level of accountability. After the retinal scan is collected by the UN, for example, refugees have zero say over how it is used and who it is shared with. In many cases biometric data is collected by external vendors, sometimes even private companies. What happens to the data then? Who knows?
We are all used to our data being collected, stored and used by our own governments, but increasingly, the data of millions who have had contact with an international organization is being collected, stored and used by other governments and by these agencies without any agreed upon rules or standards. At least Facebook is required to release information on its data-collection policies to the public and, if you don’t like it, you don’t have to use Facebook any more. Refugees are being forced to give up their personal information in exchange for food.
A lack of transparency pervades this entire system of data management by humanitarian agencies. It’s become clear that some data is being shared across borders and given to governments that ordinarily would not have access to it. Imagine if you were sitting in London and your fingerprints were being shared with the government of Australia, a country to which you had no ties and had never been. Yet there is some evidence that this is precisely what’s happening, not only to refugees, but to millions of “migrants” and, even, potential “migrants.” Meanwhile, to pass through the gates of a refugee camp anywhere in the world is now to consign yourself to being labelled a “refugee” everywhere and forever, as increasingly the data collected by humanitarian organizations and the UN is shared, preserved and duplicated worldwide. This problem, its sweeping breath and depth, its rapid expansion with almost no pushback from anyone, makes a mockery of a debate over concerns over sharing the personal details of one person via Twitter.
Welcome to the global humanitarian surveillance state. 

Thursday, September 26, 2019

Giving Mexico Control over US Immigration Is a Bad Idea

By making xenophobia the cornerstone of his administration, Trump has placed himself in a weakened position of needing other countries to help him deliver his signature campaign promise. The out-sourcing of US immigration hands enormous power to Mexico.
Since the Trump Administration appears to have given up on signing a Safe Third Country agreement with Mexico, this post will focus on the two most important changes happening in the US, Remain in Mexico and the Safe Country of First Asylum Policies, and how they are likely to affect long-term Mexico-US relations. The short answer: it’s not good.

Remain in Mexico — Trump Might Not Know Much, But He Knows How To Get Himself Blackmailed.

“Remain in Mexico,” or the Ministry of Truth named “Migrant Protection Protocals (MPP)” is basically the Trump Administration’s attempts to implement a somewhat successful policy put into place between the EU and Turkey a few years ago. Under the agreement, refugees that reach the EU from Turkey are sent back to Turkey, where their asylum claims are processed. Those who are granted asylum are then transferred back to the EU. In exchange, the EU has promised Turkey a boatload of money. Unfortunately, there has been continued fighting over the money, with Erdogan threatening to “release” more migrants into the EU if he doesn’t get more cash. Like the politician who pays up to keep the pee tape out of the newspapers, putting Mexico in charge of US asylum policy is giving Mexico a lot of leverage over the US government in the future.
Today, there are camps of asylum-seekers at the border, waiting for their cases to be heard in special tent-courts. It’s an entire, tent-based system of government. The 9th circuit has allowed the program to go forward, despite concerns expressed by some judges over the possibility of refoulement, or that some asylum-seekers would face death or torture in Mexico. As well, the Court had to go through a convoluted exercise in reasoning to make the original statute make sense. Basically, if a person is clearly not eligible for asylum, they are subjected to expedited removal and sent back, as usual. Now, under the MPP, if the government thinks they might have a case for asylum, they are….also sent back. According to the Court, this will make processing of cases easier. What the 9th circuit are essentially saying is that it will be easier for judges to process asylum cases in tent courts than in regular courts. If any of this makes sense to you, than good for you.
As far as I’m concerned, the rule is illegal on its face. The administration is relying on an obscure clause in the immigration law saying that people refused entry to the US from Mexico may wait in Mexico to be deported to their home country. This clause was clearly not meant to apply to asylum-seekers and, even if it were, it would create unconstitutional discrimination between people applying for asylum after arriving in the US by air and people applying for asylum after arriving in the US by land.
Furthermore, it’s ridiculous to argue that Mexican border camps are “safe” for anyone. What’s the point of keeping people in Mexico if they likely have valid asylum claims? And how is it making anything easier or smoother for judges to force them to adjudicate cases in a tent? We all know that Trump’s been packing the 9th Circuit with friendly judges, but this ruling is disappointing simply as an exercise in basic logic.
Of course, as well all know, what’s really going on is that both the Trump administration and, apparently, the revamped 9th circuit, think that if people are made to wait in Mexico for asylum, they will eventually give up and claim asylum in Mexico instead, which seems to be happening, to a limited extent. This raises the existential question of whether or not the US actually wants to grant asylum anymore. We either believe, as a country, in the right to asylum, or we don’t anymore.
Another problem, of course, is that this policy is once again is making Mexico the linchpin in US immigration policy. Because there is no formal agreement between the US and Mexico, Mexico can stop complying with these policies at any time, to whatever extent it wants. Let’s say, for example, Mexico is in trade negotiations with the US. Maybe it needs leverage. Well, now it has all the leverage it could possibly want or need.
By making xenophobia the cornerstone of his administration and painting immigrants as a clear and present danger to the United States, which they are not, Trump has placed himself in a weakened position of needing other countries to help him deliver his signature campaign promise. Meanwhile, the crises in Central America will continue for the foreseeable future, meaning that there will continue to be plenty of human leverage for Mexico and plenty of headaches for the Trump Administration.

Safe Country of First Asylum

Yesterday, a judge enjoined the Trump Administration’s latest, and most draconian, anti-asylum policy that would have required asylum-seekers who transited through Mexico to claim asylum in Mexico. Basically, this policy was an attempt to get around the legal requirement for a Safe Third Country as is very likely illegal. I can’t predict what judges will decide, but the idea that you could get around a clearly written federal law by pretending it doesn’t exist is a disturbing precedent that I like to think would give any judge pause.
***Update: The Supreme Court has quashed the injunction, a bad sign that it might uphold this illegal Trump administration policy. If you don’t believe me that it’s illegal, just read the law for yourself. It clearly states that the US government needs to sign an agreement before it can send asylum-seekers to a third country. You don’t need a law degree to understand this.
The policy is before the US Supreme Court. The government has made multiple claims that there is a “crisis” and, therefore, they need to upend the regular order of business and ignore the law. It’s not clear how the Supreme Court will view this attempt to circumvent the law based on appeals to a dubious crisis, but we shall see.
Once again, this is a policy the Trump Administration is trying to adapt from Europe, with its repeated attempts to “burden share” via the Dublin Regulations. The problem for the Trump administration is that Dublin is predicated on their being an organization, the European Union, that can regulate, control and share information on asylum applications between the various countries. In order for the “safe first country” policy to actually work, the US government would have to set up a way to verify that people had (1) transited through Mexico or Guatemala and (2) applied for asylum there.
The point of an official Safe Third Country agreement is to regulate all of this and make it all work properly, which is why we have a Safe Third Country agreement with Canada. It is a mystery to me why anyone would think it reasonable for the US government to fail to obtain a Safe Third Country agreement with Mexico, but then go ahead and unilaterally try to implement such an agreement anyway. Once again, this makes no logical sense. But we will see what the Supreme Court thinks.
If the Court allows the Trump administration to implement this bizarre policy of working with Mexico without an agreement, it is again going to create a pressure point between the US and Mexico. Without formal operating procedures, it’s unclear why Mexico would cooperate unless they were getting something in return. Looming over all of this is the fact that Mexico’s asylum system is very small and underfunded. At this point, it is propped up by support from UNHCR and unable to really function on its own. Any budget cuts to UNHCR regional programs would likely trigger a collapse in Mexico’s capacity to process asylum claims, meaning that UNHCR funding is increasingly becoming a critical pressure point for US immigration policy.
All of this outsources of US immigration policy means just one thing — less control over immigration by the US government and more control by other countries, particularly Mexico. It’s a strange place for a country obsessed with nationalism to be.