As I noted my last post:
According to CNN, the president has just announced that William Barr, the 77th attorney general of the United States, is his choice to be the 85th attorney general of the United States. Let's hope that AG Barr continues the work of his immediate two predecessors in using his office to ensure that valid asylum claims are heard quickly, but that legally insufficient or frivolous claims are disposed of in short order.
In the interest of full disclosure, Barr was attorney general (AG) when I was chosen through the AG's honors program and started work at the Justice Department, a fellow George Washington University Law School graduate, and the featured speaker at my law school graduation. That said, all I really remember of his tenure was his picture on the wall in our Falls Church office and the poise he showed when an older gentleman screamed "Vote Perot!" during his speech at commencement. Some research, however, reveals something else: The American Civil Liberties Union (ACLU) and others don't like him, particularly as it relates to his views on immigration.
The ACLU begins its analysis of those views as follows:
Barr was a strong proponent of the George H.W. Bush administration's illegal program of interdicting Haitian refugees on the high seas, detaining them at Guantanamo Bay, and denying them access to lawyers.
By way of background, the Organization of American States (OAS) described the situation in Haiti that led up to that policy as follows:
The 1991-94 Haitian refugee crisis was the culmination of political tensions that had been building in Haiti for at least 20 years around the cruel dictatorship of Papa Doc Duvalier, his son and the series of military governments which followed them.
Baby Doc Duvalier was forced out of Haiti in 1986 and four military governments preceded the elections that brought [Jean-Bertrand] Aristide to the presidency in February 1991. After Aristide's election, refugee flows dropped dramatically: fewer than 1,200 took to the seas in 1990, one-third of the number of refugees intercepted in each of the years 1987, 1988 and 1989.
The surprise coup in September 1991 opened the refugee floodgates. Within six months of the coup the US Coast Guard had intercepted more than 38,000 Haitians at sea; 10,747 were eventually allowed to pursue asylum claims in the US following screening by immigration officials on board ships or at the US naval base at Guantanamo Bay. An estimated 10% of the population of Port-au-Prince and Haiti's other large cities fled into the mountains, generating an internally displaced population of perhaps 300,000. A further 30,000 crossed into the Dominican Republic.
Initial US reluctance to repatriate Haitians plucked from the sea withered in the face of the refusals of other Latin American states to share the refugee burden. A temporary legal rebuff to the Bush Administration's repatriation plan led to the establishment of camps at Guantanamo Bay and the establishment of an in-country refugee processing program at the US embassy in Port-au-Prince. When Guantanamo filled up with 12,000 refugees, President Bush ordered the summary return of all Haitians picked up at sea. He had been given the liberty to do so by a US Supreme Court ruling that the Refugee Convention did not apply on the high seas.
CBS News has reported that:
Those who made it to Guantanamo would go through a "credible fear" interview to determine whether they had a strong asylum case. Those who passed were eligible to enter the United States and begin asylum proceedings.
Ironically, however, the Guantanamo detention center itself drew Haitian migrants, as the New York Times reported at the time of its closure in May 1992:
On the decision to close the Guantanamo camp, the State Department's deputy spokesman, Richard A. Boucher, said, "We made the decision to phase out the facility at Guantanamo because it was increasingly clear that it was acting as a magnet and causing more Haitians to get on boats in the hopes of getting there." The camp was set up at the end of last year.
The ACLU specifically criticized Barr's segregation of Haitians who were HIV-positive at Guantanamo:
Approximately 300 of the refugees had HIV, and Barr created a separate detention camp for them. The program was challenged in court, where the government was ordered to provide access to attorneys and ultimately required to bring the HIV-positive Haitians to the United States for treatment, as their conditions at Guantanamo were deplorable. But throughout, Barr was a strong advocate for a policy that set the stage for the treatment of Guantanamo detainees during the war on terror.
The Conversation (in a post critical of indefinite immigration detention policies) explained in June 2018:
At the same time [as the Bush Guantanamo detention policy], an HIV ban, overwhelmingly passed by Congress in 1987, barred the entry of any HIV-positive foreign person into U.S. territory. This travel ban reflected the widespread ignorance and fears of HIV during the 1980s and 1990s. A 1985 poll showed 50 percent of Americans supported quarantining anyone infected with the virus.
Caught between refugee laws and the HIV ban, the Haitian refugees were trapped in the quarantine camp at Guantanamo alongside their family members, including children.
As noted above, in June 1993, a federal judge ordered the release from detention of those aliens, as the Washington Post reported at the time, and the Clinton administration opted not to appeal. That said, an AG's defense and implementation of a congressional policy (particularly one passed by a Congress led by the opposition party) is hardly grounds for attack.
The ACLU also attacked Barr's backing of what it described as:
Trump and Sessions' cruel approach to immigration, praising them for attacking "the rampant illegality that riddled our immigration system" when court decisions suggest that the real "rampant illegality" stems from the Trump administration itself. He defended the legality of Trump's first Muslim ban, saying that he saw "no plausible grounds for disputing the order's lawfulness." That ban was struck down by multiple courts. And even Trump finally abandoned it on the advice of his lawyers, who saw that there were indeed many plausible grounds for challenging it and urged Trump to substitute a narrower and more defensible ban."
I have written extensively about the Trump travel executive orders and ultimate presidential proclamation, including the first order. For example, as I explained in a May 2017 post:
On January 27, 2017, President Trump issued Executive Order 13,769, which was ... captioned "Protecting the Nation from Foreign Terrorist Entry into the United States". On February 3, 2017, a federal district court judge in the Western District of Washington issued a temporary restraining order (TRO) that prevented the government from enforcing sections 3(c), 5(a), 5(b), 5(c), and (in part) 5(e) of that executive order. On February 9, 2017, the Ninth Circuit in Washington v. Trump denied the government's motion for an emergency stay of that TRO. The Ninth Circuit denied that motion on due process grounds, holding:
The Government has not shown that the Executive Order provides what due process requires, such as notice and a hearing prior to restricting an individual's ability to travel. Indeed, the Government does not contend that the Executive Order provides for such process. Rather, in addition to the arguments addressed in other parts of this opinion, the Government argues that most or all of the individuals affected by the Executive Order have no rights under the Due Process Clause.
Significantly, the court stated that:
[E]ven if the TRO might be overbroad in some respects, it is not our role to try, in effect, to rewrite the Executive Order. ... The political branches are far better equipped to make appropriate distinctions. For now, it is enough for us to conclude that the Government has failed to establish that it will likely succeed on its due process argument in this appeal.
Accepting the court's apparent invitation to rewrite the executive order, on March 6, 2017, the president issued the new executive order.
The fact that that first executive order "was struck down by multiple courts" and that the Trump administration subsequently replaced it with a second executive order (which itself was replaced by a presidential proclamation) does not necessarily mean that the initial executive order was not legally defensible. Notably, the ultimate presidential proclamation was itself enjoined by multiple courts (as I explained in a July 2018 Backgrounder) before being upheld by the Supreme Court.
Also notable is the fact that the quotation cited ("the rampant illegality that riddled our immigration system") comes from an opinion piece authored by Barr along with former AGs Ed Meese and Michael Mukasey in the Washington Post defending former AG Jeff Sessions. That quote reads in full:
He attacked the rampant illegality that riddled our immigration system, breaking the record for prosecution of illegal-entry cases and increasing by 38 percent the prosecution of deported immigrants who reentered the country illegally.
Respectfully, the facts following the quote cited by the ACLU more than amply support the proposition stated therein. Illegal entry is a crime that was committed more than 50,000 times in each of the last two months alone, and Sessions prosecuted that crime to the utmost degree he could. If I were to tell you that any other law were being violated 50,000 times a month, you would likely refer to that as "rampant illegality", too. And, again respectfully, if you do not believe that there is "rampant illegality" in our immigration system generally, you are not paying attention.
There have been significant changes in the world and the law in the almost 26 years since Barr last served as AG, and they have likely influenced and tempered his views. Even in its recent criticism of Barr (based on his statements in a 23-year-old essay on morality and government), however, the Daily Beast begins by stating that he "is widely regarded as a respected, experienced moderate likely to win support from Democrats and Republicans alike."
As a final note, Slate (which recently opined that "the sad truth is that Barr is probably the least dangerous person Trump would plausibly choose to serve as America's chief law enforcement officer") contends that he is not "likely to tone down" what it deems "Sessions' draconian approach to immigration and crime." Specifically, it asserts:
During his previous tenure as attorney general, Barr proved to be a drug warrior, immigration hawk, and law-and-order stickler. Much like Sessions, he pushed funding for border barriers, targeted "criminal aliens involved in street gangs," and tried to prevent asylum-seekers from entering the United States. In a 1992 interview, he told the Los Angeles Times that "violent crime" and "gangs" were a "high priority," in addition to "prosecuting the war on drugs."
In 2006, the majority of the United States Congress (including such right-wingers as Sens. Dianne Feinstein, Hillary Clinton, Barack Obama, and Chuck Schumer) supported border barriers in the Secure Fence Act.
Moreover, targeting criminal aliens in street gangs is hardly an extreme, or boutique, view. As my colleague, Preston Huennekens, recently explained:
According to a new report presented to the governor of New Jersey, increasing immigration enforcement is one of the most successful strategies for breaking up cliques of the notorious MS-13 gang.
In case you are not familiar with MS-13, the Obama Treasury Department designated the gang as a significant transnational criminal organization in 2012. In the press release that accompanied that designation, the department stated:
MS-13 consists of at least 30,000 members in a range of countries, including El Salvador, Guatemala, Honduras, and Mexico, and is one of the most dangerous and rapidly expanding criminal gangs in the world today. MS-13 is active within the United States, with at least 8,000 members operating in more than 40 states and the District of Columbia. MS-13's criminal nature can be seen in one of its mottos, "Mata, roba, viola, controla" ("Kill, steal, rape, control"). Domestically, the group is involved in multiple crimes including murder, racketeering, drug trafficking, sex trafficking and human trafficking including prostitution. The group frequently carries out violent attacks on opposing gang members, often injuring innocent bystanders. MS-13 members have been responsible for numerous killings within the United States.
Local MS-13 cliques take direction from the group's foreign leadership for strategic decisions involving moves into new territories and efforts to recruit new members. Money generated by local MS-13 cliques in the U.S. is consolidated and funneled to the group's leadership in El Salvador.
These are not exactly the aspiring future citizens that the American people seek to embrace.
Finally, as it relates to preventing asylum-seekers from entering the United States, Slate is logically (though not specifically) referring to the aforementioned Haitian policy. As I explained in a November 2018 post: "There Is No Right to Enter the United States Illegally", even to apply for asylum.
The foregoing demonstrates that William Barr's detractors are already marshaling their forces to oppose his confirmation as AG (again). If immigration is the fight that they want to pick, the president should take them up on it.