Arrogance, the antithesis of that humility, is pernicious. It spreads like wildfire, consuming everything around it and leaving in its destructive wake the smoldering ash of relationships, friendships, and partnerships. Its bellowing smoke clouds vision, isolating and insulating individuals and organizations from constructive criticism and innovative thought. In the private sector, arrogance may yield short-term gains but is ultimately disastrous for sustained success. To phrase it more succinctly, if you’re lucky, you might get rich, but it will never make you truly wealthy.

In the public sector, the impacts of arrogance are more egregious, with consequences rippling across communities, academia, cultures, ethnicities. When viewed further through the lenses of national security and foreign policy, the effects can be cataclysmic: families destroyed, lives lost. These ramifications may last for years, if not generations, eroding trust in institutions, safety within communities, and confidence between allies. For instance, according to a Gallup poll in May 2025, 69 percent of adult Americans have little to no trust that the government works in the best interest of society.

On this day dedicated to his memory, we recall the words of Rev. Dr. Martin Luther King, Jr., who, like Eisenhower, spoke of humility and of arrogance. He viewed the U.S. government’s overconfidence as a blight founded in hypocrisy, staining the character of the nation and its citizens. During his April 1967 address in support of ending the Vietnam War and in the shadow of segregation, King delivered this message with blunt elegance:

…But honesty impels me to admit that our power has often made us arrogant.

We are arrogant in our contention that we have some sacred mission to protect people from totalitarian rule while we make little use of our power to end the evils of South Africa and Rhodesia, and while we in fact support dictatorships with guns and money under the guise of fighting communism.

We often arrogantly feel that we have some divine, messianic mission to police the whole world. We are arrogant, as Senator Fullbright has said, to think ourselves “God’s avenging angels.” We are arrogant in not allowing young nations to go through the same growing pains, turbulence and revolution that characterized our history.

We are arrogant in professing to be concerned about the freedom of foreign nations while not setting our own house in order. …Our arrogance can be our doom.

Fifty-nine years later, this theme remains salient as a foundational thread within national security and foreign policy. Recent events do not simply mimic the maelstrom of domestic and international turmoil in King’s era but are deeply committed reenactments of those same egotistical decisions across multiple areas of policy.

As concerns rise about the dawn of a budding technocracy, federal guardrails meant to ensure the least harm possible from emerging technologies are currently all but nonexistent. Thus far, the Trump administration has declined to close the gap, stating: “To win, United States AI companies must be free to innovate without cumbersome regulation.  But excessive State regulation thwarts this imperative.” State legislatures are attempting to fill the vacuum, but in doing so they create an inconsistent tapestry of regulation that is difficult for any person or group working in multiple jurisdictions (as almost all today are) to navigate. In the meantime, unchecked AI tools are currently used in an array of nefarious activity from housing redlining to the generation of pornography, including content involving children. Contrary to the government’s purported belief that a self-regulated industry will do the least harm, historical evidence shows that strong public governance in coordination with industry provides the best outcomes.

In foreign affairs, the United States’ capture of Venezuelan President Nicolás Maduro, and its claims of responsibility for the governance and oil of the country, is yet another chapter in American nation-building. The government conducted the removal while the Maduro regime remained in power, despite assurances that this type of interventionism would never happen again. Instead, coupled with multiple Venezuelan operations leading up to the Maduro raid, in the last year alone the United States has conducted airstrikes in Yemen, Syria, Nigeria, Somalia, and Iran with more likely to come. The current overarching U.S. foreign strategy is steeped in American exceptionalism, nationalism, and power projection, and evokes the bravado consistent with the historic critiques of the American military as a “world police force.” It is a call back to King’s remarks on the government’s internal perception of itself as “God’s avenging angels” with everything to teach and nothing to learn.

Domestically, the use of Immigration and Customers Enforcement (ICE) in widespread roundup operations – reportedly to capture “the worst criminal” noncitizens – has led to the erroneous arrests and deportation of individuals with a valid, legal status, including U.S. citizens. Inspections of facilities have declined as detention rates and deaths in custody have steadily risen according to a new report from the Project on Government Oversight (POGO), based on the 2025 data provided by Homeland Security. A number of those arrests have been conducted without warrants or probable cause, in violation of the individuals’ constitutional rights. Human rights groups reported detainees have been held in substandard conditions – such as those found in the notorious “Alligator Alcatraz” Floridian detention facility – akin to the conditions the United States often condemned as inhumane in other countries. In another instance, the government has reopened arguably unhealed wounds, utilizing the former site of a World War II Japanese internment camp to house immigrants. That facility was recently the site of an immigrant detainee’s death that the medical examiner is reportedly likely to  classify as a homicide.

Additionally, ill-prepared and trained ICE agents with limited background checks have engaged citizens, in what some former senior ICE officials and experts have identified as violations of agency procedures and conduct, sometimes with violent and fatal results. Images of these events draw comparisons to civil unrest abroad and harken back to memories of King’s civil rights era: military-style uniforms and masks similar to those used in Venezuela by the Special Action Forces (FAES) and Iranian security forces; regular use of smoke and gas grenades; deaths of unarmed civilians; and the detention of legal bystanders who speak up.

Alongside these events, the United States’ recent pressure and threats against longstanding NATO allies over desires to acquire Greenland sent diplomatic shockwaves through Western stability. The U.S. has long maintained a base on the island that is currently being expanded under previously agreed-to terms. Approximately 150 American service members are stationed at Pituffick Space Base in Greenland alongside hundreds of Canadian, Danish, and Greenlandic troops. The territory’s government stated the U.S. military could have easily expanded its footprint with the support of both Denmark and Greenland’s governments. Instead, the Trump administration’s offer to buy the autonomous territory outright and a rumored plan to pay citizens directly have been rebuffed by the government. Polling indicates both citizens of Greenland and the United States are against it. This aligns directly with King’s warning: “We [The U.S. government] feel that our money can do anything.”

Still, tensions around this issue persist. “Nobody’s going to fight the United States militarily over the future of Greenland,” Senior White House Advisor Stephen Miller defiantly proclaimed during a national news interview. He refused to discuss the potential use of force to acquire the territory even if Greenlandic officials continue to reject U.S. conservatorship. Now, numerous leaders within the European Union and Parliament have strongly condemned U.S. official statements on the issue, and allied soldiers recently deployed to conduct military exercises on the island. On Jan. 17, President Donald Trump announced tariffs beginning Feb. 1 against several NATO countries supporting Greenland with a June 1 deadline to increase percentages to 25 percent if the territory wasn’t sold to the United States by that time.

With all the evolving challenges facing the United States, a fundamental question exists: What type of citizen of the global community does America want to be, and what values define our country? The United States has never been able to achieve any strategic victory alone, yet now it dives deeper into isolation. We do this while leveraging the same tactics used by those we removed from power, labeling them dictators against democracy. How is that “peace through strength”?  Strategic bombings of authoritarian regimes in support of civic upheaval while, domestically, unnamed masked agents conduct sweeping raids, threatening lawful citizens with arrest, will not achieve Eisenhower’s “peace with justice.”

In his closing remarks from that storied speech, King spoke of hope through his own patriotism and love of country.

Let me say finally that I oppose the war in Vietnam because I love America. I speak out against it not in anger but with anxiety and sorrow in my heart, and above all with a passionate desire to see our beloved country stand as the moral example of the world…

The U.S. government, through a constitutional structure of checks and balances in equal branches of government, is inherently imperfect. The Constitution’s preamble immediately references the mission of creating “a more perfect Union” as its guiding principle. The document has required 27 amendments throughout the 237 years since its 1788 ratification. Yet, in that imperfection we have remained resilient, maintaining the promise of hope for all those who dream of a better future. We always strive to be more perfect, to be better.

The actions of the U.S. government – all within the first year of the administration’s term – do not embody the “shining city upon a hill” or invoke the pride of the words captured in “The New Colossus,” etched in bronze on the side of our international symbol of freedom:

…cries she
With silent lips. “Give me your tired, your poor,
Your huddled masses yearning to breathe free,
The wretched refuse of your teeming shore.
Send these, the homeless, tempest-tost to me,
I lift my lamp beside the golden door!

Instead, these acts are materials in the construction of a house of hubris, and this house – our house – is on fire. With humility and our collective morals and values we must extinguish the flames, or “our arrogance will be our doom.”

The post On Martin Luther King Jr. Day, Let Not Arrogance Be Our Doom appeared first on Just Security.

Additionally, the anniversary theme most certainly falls flat in Haiti, given the U.N.’s shameful history there. In 2010, peacekeepers charged with protecting Haitians were responsible for a deadly cholera epidemic which resulted in 800,000 cases and killed an estimated 10,000 Haitians. Despite Haiti having no history of cholera outbreaks, the U.N. took years to admit its role and did not provide effective remedy. Peacekeepers in Haiti also committed widespread rape, sexual abuse, and sexual exploitation of women and children without redress. One survivor surmised, “As far as the U.N. goes, they came here to protect us, but all they’ve brought is destruction.”

In too many instances, the U.N. has largely functioned to preserve unjust global power dynamics. At the time of its founding in 1945, racial apartheid remained a brutal reality and approximately 750 million people were subject to colonial domination and rule. The U.N. continues to institutionalize this hierarchy; as South African President Cyril Ramaphosa recently commented:  “Five permanent members effectively make decisions on behalf of more than 85% of the world’s population living in countries of the Global South.”

Recalling the 1960 coup in the Republic of the Congo (now Democratic Republic of Congo), and a subsequent protest at the U.N. offers a window to see the U.N.’s malignant neglect more clearly.

Coup in the Congo

Amidst the wave of decolonization in Africa following World War II, the Belgian government planned to formally grant independence to Congo, while neo-colonially governing key areas. Belgium desired to maintain control of Congo’s vast mineral riches. Today, for example, Congo holds half the world’s reserve of cobalt, used in batteries for cell phones, cars, computers, and other electronics. During the handover ceremony in June 1960, newly elected Prime Minister Patrice Lumumba forcefully asserted independence, declaring, “We who suffered in our bodies and hearts from colonialist oppression, we say to you out loud: from now on, all that is over.” But following almost a century of colonization, the road ahead was not easy.

On July 5, 1960, Congolese rank-and-file soldiers mutinied in response to Belgian military officials proclaiming, “Before independence = after independence.” The soldiers were disgruntled by lack of leadership changes and wanted higher wages. Sensing an opportunity, Belgium immediately reasserted power. With Belgian support, the mineral-rich province of Katanga seceded, with Moïse Tshombe as nominal leader. Both feared the central government’s encroachment on lucrative mining profits, which provided 60 percent of the country’s income.

To respond to the secession, Lumumba traveled to the United States to request assistance from it and the U.N. While in New York, Lumumba met with the activist and writer Rosa Guy, founding member of the Harlem Writers Guild. The United States rebuffed Lumumba, and while the U.N. assembled a large peacekeeping force, Secretary-General Dag Hammarskjöld refused to allow U.N. forces to intervene in Katanga. Making matters worse, when he later visited the country, Hammarskjöld declined to meet with Lumumba, heading instead to see Tshombe and seemingly granting him legitimacy. Guy lobbied informally to member States of the U.N. that they should continue to recognize Lumumba as Congo’s legitimately elected prime minister.

Simultaneously, Lumumba faced prospects of a secession from the mineral-heavy province of South Kassai. Consequently, he approved army chief Joseph Desiré Mobutu’s plan to lead an attack on the province. Congolese troops subsequently rampaged, resulting in massive killings and alienating many from Lumumba’s government.

With few options left, Lumumba turned to the Soviet Union for military aid. The Soviets agreed, incensing the United States, given their Cold War rivalry. In August 1960, the U.S. government authorized a clandestine scheme to “replace the Lumumba Government by constitutional means.” The U.S. ambassador advised President Joseph Kasavubu to buy votes in parliament prior to a no-confidence vote against Lumumba. Though Kasavubu did not follow the advice and lost the vote, on Sept. 5, 1960, he nevertheless announced Lumumba’s dismissal on the radio.

Over cables, Hammarskjöld indicated that the U.N. had no issues with Lumumba’s illegal removal from power. U.N. officials in Congo even attempted to stop Lumumba from challenging his purported dismissal, though he eventually did so on the radio.

By Sept. 14, 1960, the CIA’s principal agent and Lumumba’s erstwhile confidante Mobutu, spearheaded a military coup. Conor Cruise O’Brien, a U.N. official in charge of operations in Congo, remarked that the U.N. displayed a concern for legalism “when it was a question of rescuing Lumumba which was quite absent from their very uninhibited phase of activity when it was a question of bringing about Lumumba’s political destruction.”

On Jan. 17, 1961, the day of Lumumba’s assassination, Mobutu delivered Lumumba to Tshombe, Belgian officials, and mercenaries who beat him bloody. Stuart Reid, a history and foreign policy writer, gruesomely details how Katanga’s Belgian police commissioner and the police commissioner’s brother used sulfuric acid, turning Lumumba “into a mass of mucus.” When the acid finished, only Lumumba’s bones and teeth remained. Reid recounts how the Belgians twisted teeth out of Lumumba’s skull with pliers. They then set the remaining parts of Lumumba aflame. The CIA has since acknowledged its involvement in Lumumba’s demise and claims that the U.N. and Belgium played “equally important roles.”

A Demonstration at the U.N.

Lumumba’s execution was met with grief and despair within Congo and beyond. Across the Atlantic, as part of the Black freedom movement, activists and writers Maya Angelou and Rosa Guy, along with jazz great Abbey Lincoln had previously created the Cultural Association for Women of African Heritage (CAWAH), an organization of artists dedicated to supporting the movement. Following Lumumba’s murder, Congolese diplomats informed Guy, who shared the devastating news with Angelou. Angelou wrote of her profound experience in her autobiography, “The Heart of a Woman”: “I knew no words which would match the emptiness of the moment. . . the loss of one hero was a setback of such proportion it could dishearten us and weaken the struggle.”

Guy’s connections with Congolese diplomats tipped them off that Adlai Stevenson, the U.S. ambassador to the U.N., was about to announce Lumumba’s murder at the U.N. Following a CAWAH meeting in Harlem, Guy and Angelou stumbled upon Malcom X delivering a speech, which inspired them greatly. Angelou wrote that Guy told her they had “‘to let the Congolese and all the other Africans know that we are with them.’” They convinced some members of CAWAH and the Harlem Writers Guild to join the demonstration. One of Guy’s relatives discouraged her from organizing the protest, declaring, “The United Nations is all the poor countries of this world have…Don’t do anything that might endanger its existence.”

Nevertheless, they persisted. At a bookstore and frequent gathering place in Harlem, Angelou, Guy, and Lincoln informed those in attendance of Lumumba’s execution and the audience responded with disbelief and wailing. Lincoln implicated the Belgians and the Americans.  She shared news about their planned demonstration, which included women clipping black mourning veils to their hair, and men wearing black armbands. Lincoln declared, “‘We’re going to stand up and remain standing until they put us out.’” Many in the crowd shouted agreement, “‘See you at the U.N.!’”

They scheduled the demonstration for Feb. 15, 1961. Members of several Black nationalist groups participated. However, Malcolm X and the Nation of Islam were not involved due to the Nation’s policy of non-engagement, which prevented members from participating in politics and protests. Malcolm X was increasingly frustrated with the Nation being seen as talking tough, but never doing anything.

Angelou writes of her disbelief at the large crowd in front of the Manhattan headquarters of the U.N., with placards proclaiming “‘Freedom Now.’”  Many activists were unable to enter the U.N., but sympathetic States provided access to about 75 Black demonstrators.

Inside, the U.N. Security Council was meeting to discuss Lumumba’s murder, and Hammarskjöld was busy protecting his tenure from the Soviet Union’s calls for his resignation.  In a searing 1,500-word statement, the Soviets labeled him an accomplice to murder and an imperialist. U.S. Ambassador Stevenson flew to Hammarskjöld’s defense, “Shall the United Nations survive? Shall the attempt to bring about peace by the concerted power of international understanding be discarded?”

During Stevenson’s speech, Angelou writes, a piercing “scream shattered his words.” Other voices joined the bloody shriek:

“Murderers.”

“Lumumba. Lumumba.”

“Killers.”

Angelou did not anticipate a riot at the U.N. She expected “to stand, veiled and mournful.” Yet, she heard her own voice joining the chorus shouting, “Assassins.”

Suddenly, the U.N. was in chaos. Angelou recounts diplomats vanishing as guards quickly escorted activists outside. Demonstrators outside were energized. Angelou recalls someone exclaiming, “‘This ain’t no United Nations. This is just united white folks. Let’s go back in.’” With police preventing re-entry, protestors headed for the Belgian Consulate instead, singing, “‘And before I’ll be a slave, I’ll be buried in my grave.’”

In the aftermath, since Guy and Angelou were originally stirred to action by Malcolm X’s oration, they sought out his belated guidance about what they should do. As one of the most radical leaders in the country, they figured he had to support their action. Instead, Malcolm X told them they were wrong, that “‘going to the United Nations’” would “‘not win freedom for anyone.’” He subsequently issued a statement asserting his and the Nation of Islam’s non-involvement, but pointedly observed that the demonstration at the U.N. was symbolic of Black rage in the United States.

Other commentary quickly followed. The New York Times described the activists as “invading” the Security Council chamber and absurdly declared it “the most violent demonstration inside United Nations headquarters in the world organization’s history.” Ralph Bunche, who became the first Black Nobel Peace laureate in 1950, and was serving as undersecretary of the U.N. at the time of the protest, apologized before the General Assembly, telling delegates that the activists were “misled,” and unrepresentative of the “thinking and conduct” of Black Americans. Some in the Black elite were aligned with Bunche’s distancing remarks. Others, like James Hicks, editor of the New York Amsterdam News, challenged Bunche’s apology for Black grief. This sentiment was echoed in several letters to the editor from Black Americans. Hicks described Lumumba’s assassination as the “international lynching of a black man on the altar of white supremacy” that “was staged before the world under the auspices of the United Nations.”

Conclusion

Notably, the country inspiring the 1960s riot never recovered from the complicity of international actors. Mobutu brutally ruled Congo for 32 years. He enriched himself, acquiring sums estimated at $4 to $5 billion, while the 100 million inhabitants of Congo lived in extreme poverty. Protracted extractivist warfare followed Mobutu’s demise, resulting in the deadliest conflict in the 21^st century. Since the 1990s, more than six million people have died, seven million people are internally displaced, while 25 million face starvation in Congo. Hundreds of thousands of women and girls have also been subject to rampant sexual violence. Warring parties as well as U.N. peacekeeping forces are implicated in these wanton abuses. In 2022, more than 60 years after Belgium brutally murdered Lumumba, it finally returned for burial a gold tooth that one of his assailants took as a macabre souvenir.

In Sept. 2025, U.N. General Assembly President Annalena Baerbock, a former German foreign minister, mused, “Our world is in pain…But imagine how much more pain there would be without the United Nations.” The story of the Congo is the story of the U.N. The Congo could not possibly experience more pain than it has amid a constant U.N. presence for the past 65 years, including three different peacekeeping missions, with the last being the most expensive in history. In 2022, profound frustration with the U.N.’s failure to protect civilians led some Congolese to protest calling for the organization’s departure.  Perceptions persist that the U.N. does not defend the Congolese and is aligned with foreign actors, reminiscent of earlier concerns expressed in the aftermath of Congo’s independence. If the U.N. is the “life insurance for every country,” as Baerbock asserted, then it’s past time for a radical change in policy.

The historian Brenda Gayle Plummer described the 1960s U.N. protest as a “massive …international outcry against imperialism,” the likes of which had not occurred in the United States since protests against the Italian invasion of Ethiopia in the 1930s. Although relegated to the annals of history, the 1960s demonstration at the U.N. is a powerful reminder of the importance of connecting international freedom struggles with those at home in the United States. Following Malcolm X’s break from the Nation of Islam in 1964, he revised his position on political activism. In a speech in New York on Feb. 16, 1965, he observed that “‘human rights’ is part of the charter of the United Nations.” For Malcolm X, framing issues as human rights violations meant, “you can take your troubles to the World Court. You can take them before the world. And anybody anywhere on this earth can become your ally.” Internationalization could “make the world see that our problem was no longer a Negro problem or an American problem but a human problem. A problem for humanity. And a problem which should be attacked by all elements of humanity.”

We saw echoes of the legacy of the 1960s demonstration last month, as thousands protested outside U.N. headquarters in opposition to Israel’s genocide against Palestinians in the Gaza Strip. When Israeli Prime Minister Benjamin Netanyahu addressed the General Assembly inside, hundreds of diplomats in the chamber walked out before his speech. Their walk-out is in marked contrast to the reception he received when the U.S. Congress invited Netanyahu to address a joint session of Congress in July 2024, with most legislators standing and rapturously applauding.

The animating issue shaping the U.N.’s work is whether it furthers the continuation of colonialism, exploitation, and subordination, or supports the radical transformation of the international order that governs our lived realities. In the parable of the elephant and the mouse retold by South African Archbishop Desmond Tutu, when an “elephant has its foot on the tail of a mouse and you say that you are neutral, the mouse will not appreciate your neutrality.” Certainly, when “you are neutral in situations of injustice, you have chosen the side of the oppressor.” This is the U.N.’s essential quagmire.

On Oct. 15, 2025, prior to U.N. Secretary-General’s Antonio Guterres’ address, Baerbock spoke of the need “to build a more coherent and responsive United Nations system that is fit for the 21^st century.” Lamentably, these UN80 proposals do not envision transformative structural change. Shall the United Nations survive? On Oct. 17, Michael Fakhri, the U.N. special rapporteur on the right to food, speaking before the General Assembly, declared that the “U.N. died in Gaza.” Indeed, the institution’s very survival depends on how it ultimately positions itself between the elephant and the mouse, in South America and the Caribbean, Asia, Africa, and beyond.

The post The United Nations and a World in Pain appeared first on Just Security.

California Governor Gavin Newsom objected to Trump’s deployment of the Guard, calling it “purposefully inflammatory” and adding that it “will only escalate tensions. . . [and] erode public trust.” After two days of stepped-up ICE raids in the Los Angeles area, including at a Home Depot parking lot in Paramount, California, demonstrations followed but local officials did not indicate that they needed federal assistance. The White House offered its own version of events. On Saturday, White House Press Secretary Karoline Leavitt described “violent mobs” and stated that the deployed troops would “address the lawlessness that has been allowed to fester.” By June 10, the White House had deployed 700 active-duty Marines and doubled the number of National Guard troops to 4,000. Trump also escalated his rhetoric, describing the protesters as “insurrectionists.”

It is more likely than not that the presence of the troops in the midst of ICE raids will raise, not lower, the risk of violence. The Trump administration surely knows that and may be intending for this modest Los Angeles deployment to fail, so that the administration can justify a more muscular invocation of the Insurrection Act, which would allow U.S. military personnel to perform law enforcement activities.

Trump’s actions in Los Angeles are part of a larger effort to militarize immigration enforcement. He has another, lesser-known, tool at his disposal that he can use to dramatically increase the number of Guard troops involved in these types of activities. Known as the 287(g) program, it delegates immigration enforcement to state and local law enforcement agencies. We worry that using 287 (g) agreements to enable National Guard units to enforce immigration laws creates enormous risk, undermines military readiness, and threatens the longstanding traditions of separating military functions from civil society. As one of us has written before, domestic use of the military is often fraught and is just as often corrosive to American democracy. Part-time soldiers police their neighbors, federal authority needlessly displaces state and local elected officials, and the relationship between the military and civil society becomes strained.

 The Trump Deportation Agenda

Trump began militarizing immigration enforcement on his first day in office, laying the groundwork for a confrontation between the military and the public. In his inauguration speech, Trump promised “to launch the largest deportation program of criminals in the history of America.” The president also stated that he would “send troops to the southern border to repel the disastrous invasion of our country. . . [because] as commander in chief I have no higher responsibility than to defend our country from threats and invasions.”

The president knows that absent a massive new congressional authorization and infusion of funds to Immigration and Customs Enforcement (ICE) and Customs and Border Patrol (CBP), the immigration infrastructure housed within the Department of Homeland Security (DHS) cannot carry out these plans. Indeed, the “One Big, Beautiful Bill Act” is meant to address this gap, providing $168 billion to immigration and border law enforcement. Thus, the president’s determination to rely on military support for immigration policy is an effort to close the gap in financial and human resources needed. Upon taking office, Trump also signed 10 executive orders on immigration and border enforcement that identified legal authorities that would purport to authorize a significant domestic deployment of the U.S. military for immigration purposes.

One executive order, Declaring A National Emergency at the Southern Border of the United States, allows the Defense Department to deploy troops to secure the border. Presidents George W. Bush and Barack Obama also deployed troops to the border, but Trump has specifically called the situation “a national emergency,” and has labeled the immigration flow an “invasion” that “represents a grave threat to our nation.” More important, the national emergency declaration unlocked funds for further construction of Trump’s border wall, repeating a step he took in 2019. And the order required a report from the Secretaries of Defense and Homeland Security within 90 days “regarding additional actions that may be necessary to obtain complete operational control of the southern border, including whether to invoke the Insurrection Act of 1807.”

A second executive order, Clarifying the Military’s Role in Protecting the Territorial Integrity of the United States, assigned the military with the mission of “repelling the invasion and sealing the United States southern border from unlawful entry . . .” Trump assigned U.S. Northern Command with this mission, highlighting the military’s new role in preventing unlawful mass migration. Today, there are nearly 10,000 troops at the border, with DHS asking for 20,000 more to assist in deportation.

A third executive order, Protecting the American People Against Invasion, revoked several Biden administration immigration policies; instructed DHS, its immigration agencies, and the Justice Department to hasten the removal of undocumented persons and the civil and criminal prosecution of immigration law violators; and ordered DHS to “construct, operate, control, or use” sufficient removal detention facilities to implement administration immigration policies. Further, Trump called on the Secretary of Homeland Security to partner with state and local law enforcement on signing Section “287(g)” agreements to enforce federal immigration laws.

This last step may be the most powerful immigration enforcement tool that Trump has invoked. The so-called 287 (g) program, added to the Immigration and Naturalization Act in 1996, delegates immigration enforcement to state and local law enforcement agencies as prescribed in individual memorandums of agreement with ICE. In practice, they effectively deputize a nationwide immigration police force that considerably bolsters existing ICE resources.

Trump prioritized these agreements during his first term and has acted with much greater urgency to sign more of them during his second term. The new emphasis is paying off: there are 649 287(g) agreements across 40 states. While most 287 (g) agreements are with local police and sheriffs’ departments, state National Guards can also enter into these agreements. Indeed, there are 287(g) agreements with two state National Guards (Texas and Florida) as well as the Florida State Defense Force (military units that operate under the sole authority of the governor). The Texas National Guard has 19,000 members and Florida National Guard has 12,000. These 287 (g) agreements open the door to a massive expansion of military participation in immigration enforcement.

The History of Section 287 (g) Agreements

Of the 649 signed agreements to date, the overwhelming majority have been signed in the months since Trump took office this January. In a nutshell, Section 287 (g) agreements are poised to take center stage in enforcing federal immigration law wherever state and local officials and their laws and policies do not stand in the way of the federal intervention. Yet the agreements have hardly paved the way to better immigration enforcement.

Until earlier this year, there were two types of 287 agreements in use: the Jail Enforcement Model and Warrant Service Officer Model. Under the Jail Enforcement Model, state and local law enforcement personnel identified and processed removable foreign nationals who were arrested and placed in state or local custody. The Warrant Service Officer program enabled designated state and local jail officers to serve administrative warrants on individuals already in state or local custody. A third and more aggressive model—the Task Force Model (TFM)—authorizes state and local officers to arrest, detain, and interrogate individuals who have not yet been charged with a crime. Once terminated by Obama after a litany of civil rights abuses, the TFM has roared back to life under Trump with 315 TFM agreements in 30 states.

In the first few years of the program, only a modest number of 287 (g) agreements were signed, but abuses of the authorities emerged. During the George W. Bush administration, Maricopa County, Arizona entered into a Task Force model 287(g) agreement allowing Maricopa County law enforcement to exercise robust immigration enforcement authorities under the direction of Sheriff Joe Arpaio. Arpaio engaged in racial profiling and targeted individuals that posed little or no threat to public safety. The Obama-era Department of Justice investigated (and later sued) Maricopa County, finding a consistent pattern of race-based constitutional violations. Following the investigation and lawsuit, the Obama administration terminated its 287(g) agreement with Maricopa County and ended the use of the model of agreement used in Maricopa County throughout the nation. Just 36 of these agreements were in place at the end of Obama’s second term.

Trump breathed new life into ICE’s participation in 287(g) agreements in his first term by signing an executive order that called for the expansion of 287(g) agreements while broadening the definition of who could be removed under federal immigration law. In 2017, 287(g) participation more than doubled as agreements were signed with 76 state and local agencies. President Joe Biden rescinded Trump’s executive order and his administration did not sign any new 287 (g) agreements.

Since Trump took office in January, the number of 287 agreements has surged. Trump resurrected Maricopa County’s much more comprehensive Task Force Model. The 287 agreements with the Florida and Texas National Guard follow the Task Force Model, effectively super-charging the military’s role in immigration law enforcement. These ICE-National Guard agreements authorize service members to interrogate, arrest, and detain individuals, all traditional law enforcement functions that have historically been undertaken by civilians in American society.

Posse Comitatus and the 287 Agreements

In 1878, Congress enacted the Posse Comitatus Act (PCA) and thus created a statutory presumption against military participation in law enforcement, a presumption that may only be overcome by other legal authorities found in statute or the Constitution. Despite the lack of criminal prosecutions for violation of its terms, the PCA has fostered a longstanding and pervasive orientation in the U.S. military to steer clear of civilian law enforcement except pursuant to express statutory authorization or to repel a sudden attack on the United States.

A few of those statutory exceptions to the presumptive ban in the PCA loom large in the debates over the military’s involvement in immigration enforcement. But the exceptions do not apply and the PCA likewise is inapplicable to National Guard units acting pursuant to 287 status and reporting to the state governor. Following the venerated principle of the American federal system, state governors control their National Guard units when deployed in their default state status.

The takeaway is that state National Guard units may enter into 287(g) agreements, subject to a governor’s approval and any other state law. But the 287(g) agreements do not federalize the National Guard or any other state and local law enforcement agencies. They are deputized, not federalized and possess the full menu of law enforcement authorities in accordance with state law.

What Does the Renewed Emphasis on 287 Agreements Mean for Immigration Enforcement?

The 287(g) agreements have real implications for the so-called “sanctuary cities” and “sanctuary states” now being challenged by the Trump administration. On April 28th, Trump signed an executive order, Protecting American Communities from Criminal Aliens, that directed the attorney general to publish a list of sanctuary jurisdictions, defined as those places obstructing the enforcement of federal immigration laws. In May, DHS identified a list of more than 500 sanctuary jurisdictions, setting the stage for a massive nationwide immigration law enforcement effort that is now aided by hundreds of 287(g)-designated law enforcement partners. The rapid emergence of 287(g) agreements this year signals that any identified sanctuary jurisdiction where there are relevant agreements in place will be on the frontlines of the immigration enforcement effort.

For the most part, states and cities may not obstruct federal enforcement of lawful federal programs or activities. Even where states or cities have alternative enforcement policies alongside a federal program, the federal program implementation may lawfully preempt any inconsistent state or local law or program. The federal authority derives expressly from the Supremacy Clause of the Constitution, Article VI, section 2. It is equally clear, however, that following anti-commandeering decisions of the Supreme Court, the federal government may not obligate the states or its subdivisions to enforce federal laws. As such, sanctuary cities or states may be forced to permit federal immigration enforcement in their jurisdictions, but they are not required to participate in its operations.

An Example, Georgia: Sanctuary Jurisdictions with an Active 287 Agreement

The newly-signed 287 agreements form consensual partnerships between the federal government and local law enforcement agencies. Anti-commandeering principles do not apply once a state or local government enters into such an agreement.

In Georgia, for example, the Department of Homeland Security labeled Atlanta and Athens as sanctuary cities and Fulton, Dekalb, Douglas, and Athens-Clarke counties have all been named sanctuary jurisdictions. On March 17, Governor Brian Kemp announced a partnership between the Georgia Department of Public Safety (DPS) and ICE, which will train 1,100 DPS officers “to better assist and apprehend[] illegal aliens who pose a risk to public safety in the state.” Thus, Georgia DPS may be used to enforce immigration laws throughout these sanctuary cities and counties, consistent with the governing Georgia-ICE 287 agreement.

An Example, Illinois: Sanctuary Jurisdictions and No 287 Agreement

It remains to be seen how ongoing immigration enforcement will occur in sanctuary jurisdictions that lack an active 287 (g) agreement. State governors possess state police powers and control law enforcement jurisdiction over activities within that state.

For example, Illinois not only lacks a 287 agreement with DHS but restricts law enforcement agencies in Illinois from entering into 287 agreements. Could the Missouri Highway Patrol, which has an active 287 agreement, enforce federal immigration law in Illinois? Not without Illinois’ consent. Law enforcement personnel from other states will be prohibited from enforcing immigration law in Illinois absent consent from the Illinois governor. Enforcing federal immigration law in Chicago and other Illinois jurisdictions will remain the province of ICE.

Invoking the Insurrection Act

In addition to Trump’s federalization of California National Guard units in Los Angeles, the widespread use of 287(g) agreements may be an additional step in advance of a wholesale federal militarization of immigration enforcement. Already this year, we have seen an historical deployment of military forces at the southern border as well as the creation of a new National Defense Area. Moreover six states (California, Oregon, Washington, Illinois, New Jersey, and Connecticut) restrict entering into 287(g) agreements as a matter of state law or policy. Absent additional episodes like the one now unfolding in Los Angeles, the president’s plans will likely be blunted in several blue states that refuse to enter into 287(g) agreements and thus limit their cooperation with ICE.

The Insurrection Act, however, would allow the president to deploy active-duty military and federalized National Guard to enforce federal law or suppress a rebellion against federal authority whenever the president determines that “unlawful obstructions, combinations, or assemblages, or rebellion against the authority of the United States” make it “impracticable” to enforce federal law “by the ordinary course of judicial proceedings.” A lengthy policy brief prepared by Trump administration lawyers parrots the language of the act and argues that a migrant “invasion” satisfies the Insurrection Act predicate, making it “impracticable to enforce the laws of the United States.” So far, the administration has resisted this more radical step, relying instead on ICE, cooperating states and their 287(g) agreements, and the extant military deployments to facilitate enforcement. Nonetheless, the Insurrection Act would allow the president to use the National Guard or units of the regular military following his determination of the impracticability of enforcing the laws with civilian resources. No state officials may stand in his way because the Guard units are operating as federal armed forces.

The Insurrection Act has never been relied on to authorize immigration enforcement or border security. Its last declaration was during the 1992 Los Angeles riots, which erupted when the police officers who beat Rodney King, a Black motorist, were acquitted. Trump, however, has made clear from day one that he is interested in its use. His January 20 executive order, Declaring a National Emergency at the Southern Border of the United States, specifically calls for the Secretaries of Defense and Homeland Security to report to the president “regarding additional actions that may be necessary to obtain complete operational control of the southern border, including whether to invoke the Insurrection Act of 1807.” As the ongoing Los Angeles situation suggests, an invocation of the Insurrection Act is likely not far off.

Summary of Outstanding Questions & Concerns

Given the outsized role that National Guards are poised to play in federal immigration enforcement, there are several pressing questions and concerns.

• How will training for this new mission be conducted? Prior to actively enforcing immigration law, the law requires that state and local agencies must undergo training—but this requirement appears to be short-circuited in many instances. There are reports that 287 training has now been reduced from four weeks in-person training at the Federal Law Enforcement Training Center to just a 40-hour online training module. Deputizing law enforcement to take on an entirely new complex and dynamic mission in such a manner strikes us as ill-conceived and dangerous—particularly when 287 already has a history of racial profiling and civil rights violations.
• How will ICE effectively oversee this massive effort? In a troubling sign, ICE eliminated the 287 Program Advisory Board, which vetted law enforcement agencies’ applications in conjunction with the newly diminished DHS Office of Civil Rights and Civil Liberties. 287 agreements are now centralized without meaningful vetting. It is unclear how ICE will supervise, train, and integrate National Guard troops into the broader immigration law enforcement missions.
• What is the impact of this new mission on National Guard readiness and civil-military relations? National Guard men and women recently supported the COVID-19 nationwide relief and response effort, the largest domestic military deployment in recent history. In recent years, the U.S. government has asked National Guard personnel to patrol the border, drive school buses, teach in high schools, guard prisons, and take on a host of missions that address problems that are traditionally managed by civilian authorities. The military— particularly the state National Guard—is already a stressed force and government should tread carefully before asking it to take on additional missions. General Daniel Hokanson, the outgoing chief of the National Guard Bureau recently made the same point: time spent on nontraditional missions—such as immigration enforcement—reduces the Guard’s ability to train for core functions (serving in combat overseas, responding to natural and manmade disasters). Although most people welcome the National Guard into their communities following a natural disaster, giving the Guard the immigration enforcement mission changes that dynamic as soldiers detain and arrest their neighbors. Retired National Guard Major General Randy Manner recently testified that these National Guard members “may be placed in an impossible, politically fraught position, eroding domestic civil-military relations.”

The United States has historically been widely respected for its tradition of entrusting law enforcement to civilians–federal agents, local and state police, sheriffs, constables. By contrast, the uniformed military fights wars and keeps Americans safe from foreign adversaries and it is only episodically needed for domestic assignment. American traditions are reflected in the Constitution and are explained in part by antipathy to the English Crown and the heavy-handed use of the British military in the colonies. Although the Constitution enabled Congress to Call Forth the Militia (today’s National Guard) to “repel invasions,” the grant of authority was understood to anticipate the possibility of war being brought to the United States, not to facilitate reaching arbitrarily assigned deportation quotas.

The post The Mounting Crisis of Militarizing Immigration Enforcement appeared first on Just Security.

Iconic pro-democracy movements include the U.S. civil rights movement, the Polish Solidarity movement, the anti-apartheid struggle in South Africa, and the “No” campaign that ousted Augusto Pinochet in Chile. More recent examples are the successful civic uprisings against autocratic leaders in Brazil (where the slide to autocracy under President Jair Bolsonaro was stopped), South Korea (where an autocratic President Yoon Suk Yeol was impeached and removed from power), and Serbia (where a corrupt Prime Minister Milos Vucevic was removed, though the democratic turn-around remains incomplete). All featured these key elements:

• Sustained mass participation by diverse groups and sectors in society.
• Tactical innovation including the use of organized noncooperation, like boycotts and strikes, that directly remove a regime’s sources of power.
• Defections within key pillars upholding authoritarian regimes like businesses, religious organizations, unions, professional associations, bureaucracies, and security forces.
• Resilience and discipline in the face of rising repression.

My research with political scientist Erica Chenoweth and multiple other studies have found that the strongest bulwarks against authoritarianism are broad-based democratic fronts that bring people together across race, class, creed, sector, and geography to engage in sustained nonviolent mass action. According to recent research by political scientists Jonathan Pinckney and Claire Trilling, the probability of stopping democratic backsliding is about 7.5 percent when populations rely exclusively on institutional channels like elections, litigations, and legislative action, without a  civil resistance movement that uses extra-institutional tactics like protests, boycotts, and strikes; with a civil resistance movement, the chances are 51.7 percent.

Civil resistance “works” by raising the costs of tyranny and systematically removing the sources of power for an autocrat and his enablers. All authoritarian regimes rely on support from key institutions in society, including political parties, businesses, unions, religious organizations, bureaucracies, courts, media outlets, and security forces. When members of these pillars stop cooperating with the regime – workers deny their labor and skills, businesses withhold financial contributions, bureaucrats do things slowly or ineffectively, faith organizations stop providing moral approval, soldiers defy orders to use violence against protestors – it becomes difficult or impossible for autocrats to stay in power.

That explains why organized noncooperation by key pillars is so important to the success of pro-democracy movements. In South Korea last year, mass action by key sectors played a critical role in stopping an attempted coup. Actions included the Confederation of Trade Unions, which threatened an indefinite general strike unless President Yoon Suk Yeol lifted martial law, then launched sector-specific, time-bound strikes and walk-outs by cafeteria workers and others.

Divide-and-Rule vs. Collective Action

Autocrats and their enablers thrive on divide and rule, using attacks on individuals and groups — be they immigrants, law firms, or businesses — to spread fear and discourage opposition from others. Overcoming these barriers to collective action can be difficult, particularly when individuals and their families face the possibility of lost livelihoods, social ostracism, and death threats for refusing to go along.

Yet, we know that collective action is the best way for groups to protect themselves, avoid becoming cogs in an evil machine, and go on offense against autocrats. There is safety in numbers. When people feel supported, when they know that others have their backs, they are more likely to engage in courageous acts. Solidarity incentivizes courage – and it creates the will and opportunity to mobilize a lot more people and power for the political fight against autocracy.

Sustaining solidarity requires organization. During the civil rights movement, the greatest pro-democracy movement in U.S. history, organizations like the Southern Christian Leadership Conference and the Student Nonviolent Coordinating Committee brought together churches, unions, and students to engage in collective action “for jobs and freedom.” Organized noncooperation campaigns like the bus boycotts, lunch counter sit-ins, and sanitation worker strikes, supported by carpools, strike funds, and mutual aid, and combined with strategic litigation by groups like the NAACP, dismantled Jim Crow and paved the way for multi-racial democracy.

Global Pushback on Autocracy

In three recent countries where societies reversed democratic backsliding to at least a significant degree – Poland (following nearly a decade of Law and Justice Party rule, though another president from that party was just elected who is likely to be a significant barrier), Brazil (under the Bolsonaro administration), and Zambia (in the late-1990s-early 2000s) — collective action across sectors and ideologies was key. In Brazil, in response to the far-right then-president Bolsonaro’s constitutional violations, more than 100 businesses, unions, universities, and civil society organizations signed a letter, “In Defense of Democracy and Justice,” which was published in the main national newspapers. Evangelical and Catholic faith leaders jointly denounced Bolsonaro’s totalitarian ways and called for his impeachment. The broad front helped defeat Bolsonaro electorally in 2022, and after he attempted to overturn the election results through a coup in January 2023, powerful organizations like the Conference of Bishops denounced the “criminal attacks on the democratic rule of law” and Bolsonaro was removed from power.

In Poland, lawyers and judges took to the streets alongside youth and women’s movements to challenge the Law and Justice party’s (PiS) attacks on the judiciary, while the Episcopal Conference refused to celebrate mass at a rally for Poland’s Independence Day, citing the regime’s “un-Christian nationalism.” The opposition Civic Coalition that defeated PiS in the 2023 elections, which included parties that spanned left, right, and center, emphasized the effects of democratic decline on ordinary Poles, while using the language of hope and civic patriotism to mobilize people. The recent presidential election results show that progress is not always linear, and the struggle must continue. Now that the Trump administration and the FBI have started arresting U.S. judges, it may be time for America’s own legal professionals to consider nontraditional tactics like those used by Polish judges and lawyers (taking to the streets with other civic actors, refusing regime orders) and Pakistani judges (walking out of courthouses and marching in black robes) in their pro-democracy struggles.

In Zambia, when President Frederick Chiluba attempted to manipulate the country’s Constitution to run for a third presidential term in 2001, the three national church bodies for Catholics, Protestants, and evangelicals formed an alliance with the nation’s lawyers (grouped in the Law Association of Zambia) to campaign against the constitutional changes. Their collective action was ultimately successful and Chiluba was forced to abandon his plans.

In the United States, with MAGA leaders – and Trump himself — already suggesting a possible third term for him, it will be essential for faith organizations (Catholic bishops, evangelical associations, protestant denominations, Jewish, Muslim, and interfaith organizations) to loudly and defiantly say “no.” The organization where I work, the Horizons Project, and the anti-authoritarianism group Protect Democracy have launched a “Faithful Fight” toolkit series to offer ways for faith communities to confront authoritarianism.

Collective Action Gaining Strength in the U.S.

During the first Trump administration, cross-sector collective action was key to stopping the worst abuses of power. The “Muslim Ban” was blocked by a powerful coalition of lawyers, immigration groups, civil liberties organizations, and faith groups who collectively and stubbornly refused to go along with it, including through a visceral rush on the airports to welcome and aid arriving refugees. Before the 2020 election, the AFL-CIO, the U.S. Chamber of Commerce, the National Association of Evangelicals, and the National African American Clergy Network joined forces to call for free and fair elections and a peaceful transfer of power.

Under Trump 2.0, after initial capitulations by tech companies including Meta, media outlets such as ABC News, universities like Columbia, and law firms including Paul Weiss, the tide is starting to shift. More than 500 law firms filed an amicus brief in support of Perkins Coie’s lawsuit against the Trump administration’s executive order that targeted the firm, which was struck down in court, a decision followed by two more similar judicial victories for the rule of law. Brave lawyers like Rachel Cohen, who left her firm to protest its refusal to stand up to Trump, created a ripple effect, and firms that capitulated to Trump’s demands have lost major clients. Courage is contagious.

More than two dozen religious groups, including the Mennonite Church, the Episcopal Church, the Union for Reform Judaism, and the Unitarian Universalist Association sued the federal government in response to the Trump administration’s policy making it easier for immigration officials to make arrests at houses of worship. The faith coalition insisted that the change to the “sensitive locations” policy infringes on their religious freedom. Hundreds of some of the most powerful private philanthropies, from across the political and ideological spectrum, have recently banded together to preempt possible administration attacks on their tax-exempt status, preparing legal and other strategies.

The Rutgers University Senate called on the school’s president to formally propose and help establish a Mutual Academic Defense Compact (MADC) among all members of the Big Ten Academic Alliance. “Under this compact, all participating institutions shall commit meaningful funding to a shared or distributed defense fund. This fund shall be used to provide immediate and strategic support to any member institution under direct political or legal infringement.” While faculty senates at several Big Ten universities have passed non-binding resolutions endorsing the MADC, university administrations have so far not formally adopted the proposal.

Hundreds of Harvard University professors, including members of the American Association of University Professors, which earlier issued a statement “Against Anticipatory Obedience,” called on university leadership to resist demands by the Trump administration to change its protest and hiring policies and cooperate with federal immigration officials. After the administration cut $2 billion in federal grants to the university, Harvard fought back and sued the Trump administration at each tightening of the screw. Sixty current and former university presidents co-signed an editorial in Fortune offering support for Harvard’s acts of defiance.

Importantly, unions, which are often the first targets of authoritarian regimes, are stepping up their collective action. The AFL-CIO has launched the “Department of People Who Work for a Living” to report on DOGE’s cuts and what ordinary people can do to fight back. The National Treasury Employees Union, which represents workers in 37 federal agencies, sued the Trump administration over an executive order that declared the unions hostile to his agenda and could block collective bargaining rights. The Chicago Teachers Union reached a tentative collective bargaining agreement with Chicago Public Schools that reaffirms sanctuary school protections, protects the ability to teach Black history, gives veteran teachers a raise, and offers further protections. The Federal Unionists Network (FUN) is building solidarity across the federal sector of the labor movement, including through trainings and direct actions.

While these sector-specific actions are important, collective action across different sectors packs an even bigger punch. Mass demonstrations, like the April 5 Hands Off protests, the May Day rallies on May 1, the Unite For Veterans rally on June 6, the June 10 Pentecost Witness for a Moral Budget action, and the June 14 No Kings nationwide protest to coincide with Trump’s planned military parade that day, are important ways to demonstrate unity, solidarity, and mass defiance. Yet, it takes more muscular forms of protest and noncooperation, like walkouts, labor strikes, and economic boycotts, to stop autocrats in their tracks. Economic noncooperation campaigns like the Tesla Takedown, which has contributed to a plummeting of Tesla stock prices (and dampened Musk’s political ambitions), the Target boycott over its anti-DEI policies, which includes a “buycott” of Black-owned businesses and banks, and a pressure campaign targeting Avelo airlines, which runs deportation flights for ICE and has lost state subsidies as a result of civic action, are examples of what is possible.

Supporting and coordinating mass action, including organized noncooperation across different sectors and pillars, takes a commitment to big-tent organizing. That is something the Horizons Project is committed to building with other critical organizations from the faith, veterans, union, professional associations, and business pillars, and with civic groups that span the political and ideological spectrum. With a focus on deep relationship-building, shared analysis, training, and collective action at the state and national level, this broad-front effort is designed to move pillars away from supporting authoritarianism and towards a constitutional democracy grounded in freedom and justice for all.

Conclusion

The United States is at a critical turning point and Americans are stronger than they often think. Protests and collective actions across the country are intensifying as the circle of those harmed by this regime expands. While it is impossible to predict triggers for mass action (intensified repression, defying court orders, cuts to social security, attempts to subvert elections), investing in the relational infrastructure that will underpin any future mobilization and organized noncooperation is critical. That includes working with people with whom we mostly agree, but also with those with whom we may vehemently disagree on many things but can find common cause in advancing a society free from government tyranny.

Also critical is grounding this work in an affirmative vision of the kind of inclusive democracy that prioritizes human dignity and human flourishing, and where community care is emphasized and equality under the law is guaranteed. Especially in bleak political times, bold projects are necessary that can bring together unlikely allies such as those seeking to reduce money in politics, restore dignity in labor, or replace solutions depending on incarceration with reparative justice. The journey from individual angst to collective action, from siloed work to big-tent formations, from overreliance on defensive resistance to building a more desirable future grounded in joy and shared humanity takes time, vision, and commitment. It is also the pathway to victory.

The post Big Tents and Collective Action Can Defeat Authoritarianism appeared first on Just Security.

The IFR, which went into effect last Friday, reverses seventy-five years of regulations and requires millions of undocumented immigrants to fill out a complex online registration form, be fingerprinted,  download, and “ at all times” carry proof that they registered. As many experts will tell you, the registration rule is essentially a trap for noncitizens, mandating that noncitizens provide information that will facilitate mass deportation on pain of criminal sanction.

Judge McFadden did not rule on the permissibility of the IFR. Instead, he concluded that the plaintiffs lacked standing because the harms they asserted were speculative. In doing so, he acknowledged that the rules constitute a dramatic break from the past but suggested that no one knows what harms they may cause.

Yet the harms are easy for anyone to see. Noncitizens now face an obligation, on penalty of criminal sanctions, to answer a form that may incriminate them and their loved ones. This obligation is a dramatic shift from any past practice and dramatically different from the United States’ brief experiment with universal registration in the 1940s. Judge McFadden might not have found standing, but we can expect that other courts will either find standing in other cases or accept such standing as the harms become manifest.

When a court finally addresses the merits of the rule, there are strong procedural and substantive grounds to challenge its implementation.

On the procedural side, DHS’s effort to sidestep notice and comment rulemaking is deeply problematic. DHS argues that it is merely implementing a statutory provision that has existed since 1940. But, in fact, the new rule is an unprecedented effort to target undocumented noncitizens and use registration as a tool for deportation and criminal prosecution. While registration has been on the books since 1940, it has never taken on the form that DHS is advancing today. By 1950, those without status had no way to register. Moreover, the Justice Department immediately included exceptions, such as for short term Canadian visitors. These same exceptions and more applied to the 1952 Immigration and Nationality Act. As Natasha Fernandez-Silber and I described in our law review article on registration, no one saw the statute as imposing a universal registration requirement in policy or practice.

Moreover, the forms used for registration back in 1940 were very different from the new IFR form. The 1940 Act form asked for information about a person’s address, dates of arrival, race and ethnicity, and occupation. In contrast, the new form targets protected First Amendment activity by asking: “Since entry, in what activities have you been engaged?” It also requires noncitizens to provide information about the person’s spouse and parents, thereby broadening the net of information that can be used for enforcement. Finally, it is chock full of impossible questions, such as “Have you EVER committed a crime of any kind (even if you were not arrested, cited, charged with, or tried for that crime, or convicted)?” (all caps original).

Whereas today’s scheme is being touted as part of maximizing immigration enforcement, then-Attorney General Robert H. Jackson went out of his way to offer reassurances that the government was not generally seeking deportation through registration. In contrast, today’s registration scheme appears directly tied to a campaign for mass deportation.

On the substantive side, the plaintiffs in the DC case argued that the IFR is arbitrary and capricious and thus in violation of the Administrative Procedure Act. One ground is that it fails to explain why the agency is changing the approach it applied for seventy-five years. Why, for example, after including special exemptions for Canadians since the beginning of alien registration, is the United States now requiring Canadians to register, let alone fill out a form that asks about uncharged criminal conduct? Why, seventy-five years after abandoning a form that can be used by undocumented noncitizens, is the United States now requiring them to come forward with detailed information about themselves plus their family members? What are the foreseeable costs and other tradeoffs? Does the scheme risk destabilizing communities, and does that make sense? What other legal problems does the policy change risk? Does it encourage viewpoint-based discrimination in the enforcement of immigration laws through its questions about past and planned activities? What are the justifications for the consequences that are likely to ensue?

History shows that serious consequences flow from registration schemes. In the late nineteenth century, the United States targeted Chinese “laborers” and required registration and carrying of registration documents. It placed its burden on all persons of Chinese descent, including United States citizens, since enforcement officers might target anyone who looked Chinese. The courts placed the burden on persons of Chinese descent who were not required to register to prove their right to be in the United States. The 1940 Act presented itself as universal but was a precursor to Japanese internment. The 1952 Act was used to provide a pretext for Special Registration, as implemented in the early 2000s , which wreaked huge damage on Muslim and South Asian communities in the United States.

Where immigration enforcement officers have (wrongly) presumed that the United States already has a universal registration scheme, the consequences have been felt by citizens as well as noncitizens of all possible forms of status. In the early 2000s, Border Patrol officers on the northern New York border took the position that everyone should be carrying documents. In a report from the Immigrant Rights Clinic at NYU School of Law, which I co-authored, we found that Border Patrol’s resulting enforcement practices targeted people with a wide array of forms of legal status, including tourists, individuals with employment visas, student visa holders, and recipients of protection for survivors of domestic violence. Border Patrol’s “show me your papers” policing also ensnared citizens who were taken off buses and trains and held as Border Patrol offices while officers decided whether to credit their claims of citizenship.

Ultimately, registration puts a practical demand on citizens to carry proof of U.S. citizenship for fear of being mistaken for a noncitizen who should be carrying a registration document. In a country that has long rejected any form of national identification card, universal noncitizen registration leaves everyone else at risk of being required to prove U.S. citizenship in order to show that the registration requirement is inapplicable to them. That is certainly a major change in policy that is worthy of both public comment and an adequate justification.

Judge McFadden’s order is the first in what we can expect to be more challenges to the improper use of the interim final rule process for implementing a major policy change. Let’s hope the next judge reaches the merits.

IMAGE: Screenshot of Form G-325R Biographic Information (Registration) (via omb.report).

The post The Immigration Registration Trap Goes Live appeared first on Just Security.

特朗普总统在竞选期间宣布，他将通过行政命令终止出生公民权，这一决定恰逢美国最高法院在《美国诉黄金德案》（United States v. Wong Kim Ark）判决125周年之际。这绝非巧合。在过去一个多世纪里，美国国会、法院、行政部门和公众都一直遵循并承认该案确立的原则，即在美国出生的人（除外交官及外国占领国的子女外）都自动获得美国公民身份。然而，特朗普签署的第14160号行政命令（Executive Order No. 14160）曲解了《黄金德案》的裁决，似乎认为该判决提供了一种限制出生公民权的法律依据，使其仅适用于美国公民和合法永久居民（即“LPR”或“绿卡持有者”）的子女。但事实并非如此。

尽管《第十四修正案》公民权条款中并未包含“永久”、“住所”或“居住”等词汇，政府仍然主张，最高法院在《黄金德案》中“谨慎地将其裁决范围限定在那些在美国拥有‘永久住所和居所’者的子女”，因为法院在判决中曾如此描述黄金德父母的法律地位。因此，政府认为，只有美国公民或合法永久居民的子女才有资格获得出生公民权。

然而，政府在这里试图建立一个有争议的类比，即将《黄金德案》中的父母与当今的合法永久居民等同。尽管两者在用词上有所相似（如“永久住所和居所”与“合法永久居民”），但它们在法律上却有着完全不同的含义。将黄金德的父母错误地“重塑”（retcon）为现代绿卡持有者，既不符合法律，也不符合历史事实。

黄金德的父母确实在美国有固定住所（加州旧金山市萨克拉门托街751号），1898年的法院判决将其称为“永久住所和居所”。但相似之处仅限于此。正如我们将在下文讨论的，这一住所远非真正的“永久”。

像黄金德父母这样的华人移民，在当时远不享有现代绿卡持有者的权利与责任。

首先，今天的绿卡持有者拥有获得美国公民身份的途径。然而，1868年《放弃国籍法》（Expatriation Act）虽宣称“美国政府自由接纳来自各国的移民，并赋予其公民权利”，但这对所有亚洲移民（包括黄金德的父母）而言并不属实。华人移民因1790年《归化法》（Naturalization Act of 1790）（该法将归化限制为“自由白人”）、中美条约、1882年《排华法案》（Chinese Restriction Act，亦称《排华法案》）以及后来的最高法院判例，被明确或隐晦地排除在公民身份之外。

其次，今天的绿卡持有者可以自由出入美国，而这一权利在19世纪80年代对华人移民而言极为受限。如今的合法永久居民可以在不放弃绿卡的前提下离开美国并返回。然而，从19世纪80年代开始，美国政府对华人移民实施了极其严格的出入境限制。根据1882年《排华法案》的规定，华人移民必须获得“再入境证书”（Certificates of Reentry）才能离开美国并返回。申请该证书的程序极其繁琐，华人必须找到白人证人为其作证，以证明其身份。在《方跃庭诉美国案》（Fong Yue Ting v. United States）中，最高法院甚至裁定，即便一名华人因无法找到认识的白人证人而无法获得再入境证书，最终面临被驱逐出境，这一做法依然合宪。

另一桩案件涉及加州长期居民柴禅平（Chae Chan Ping）。 1887年，他持有效的再入境证书（Certificate of Reentry）返回中国探亲。然而，在他于次年搭船返回旧金山的途中，美国国会通过了一项新法，宣布所有再入境证书失效，其中包括他的证书。1889年，最高法院裁定支持柴禅平被拒入境的决定，并在判决书中这样描述华人移民：“他们始终是这片土地上的陌生人，与当地人隔离居住，并坚持本国的风俗习惯。他们似乎无法与我们的人民同化，也无法改变他们的生活方式。”

1895年，最高法院再次确认了对华人移民的排斥， 判决拒绝了华人商人林满胜（Lem Moon Sing）的入境申请。林文星与黄金德的父母类似，被法院描述为在旧金山拥有“永久住所”的商人。然而，当他从中国返回美国时，仍然被拒绝入境。法院在判决中支持边境官员的决定，并表示林文星“不能仅仅因为自己在美国的商业住所，就要求法院裁决其重新入境的权利。” 由此可见，许多在该时期被视为拥有“永久住所和居所”的华人，一旦离开美国，就会立即丧失这一身份，这与今天的合法永久居民（LPR）形成了鲜明对比。

第三，现代绿卡持有者可以为居住在海外的配偶和子女申请移民，帮助他们获得美国公民身份的路径。 然而，在19世纪末至20世纪初的美国，华人移民却被剥夺了与家人团聚的权利。为了绕过这些歧视性法律，许多华人不得不采取“纸生仔”（Paper Sons）这一策略——即移民支付费用给美国出生的华人，使其谎称自己是他们的亲生父亲，从而获得衍生的美国公民身份。这些针对华人的法律不仅制造了大量“纸生仔”，也导致了今天所谓的“模范少数族裔”在历史上曾被视为美国的第一批“非法移民”。

与此同时，今天的绿卡持有者必须经过严格的审查程序，以确保符合入境资格，包括健康状况、国家安全以及公共安全等多项标准。此外，他们必须缴纳联邦所得税，所有18至26岁的男性绿卡持有者还必须登记服兵役（Selective Service）。绿卡持有者享有永久居留权，可以从事任何合法职业（除部分涉及国家安全的职位外），并受到美国联邦、州及地方法律的全面保护。然而，正如我们将在下文详述的，华人移民在当时并未享有这些权利。

像黄金德的父母这样的华人移民，面对的是极端严苛的法律限制、种族清洗，以及远不及今日移民所享有的法律保护。

黄金德的父母生活在美国的年代，华人移民不仅遭受排外情绪的敌视，还遭遇广泛的暴力攻击、驱逐、私刑处决（lynchings），以及系统性的法律歧视。 华人移民最早于1849年大规模来到美国，他们被加州淘金热（California Gold Rush）的致富梦想所吸引。然而，许多华人最终并未成为富翁，而是通过极其艰苦、甚至致命的劳动，修建了贯通东西两岸的跨大陆铁路最危险的路段，付出了超过一千人的生命代价。当这条铁路完工后，美国历史上首次实现了东西部的全面连通，旅行时间从七个月缩短至七天。这不仅极大促进了美国经济的发展，也奠定了美国日后在全球经济和政治上的强势地位。

然而，这些贡献并未带来接纳。加利福尼亚州尤其颁布了一系列越来越严苛的法律，专门针对华人移民，并引发了众多具有里程碑意义的民权诉讼。 其中包括：禁止华人儿童进入公立学校（Tape v. Hurley案）；禁止华人在法庭上对白人作证（People v. Hall案），这一禁令实际上使得白人袭击或杀害华人几乎不可能被定罪；禁止华人为任何加州公司工作或在公共部门任职，这些规定都被写入了1879年加州宪法，并简明扼要地标注为“第十九条——华人”（Article XIX. Chinese）。其他限制措施还包括针对华人洗衣店的禁令（最终导致Yick Wo v. Hopkins案，该案首次确立了表面中立的法律也可以具有歧视性），以及强制剪掉华人男性的发辫（Ho Ah Kow v. Nunan案，即所谓的“辫子法令”）。

今天针对移民的仇外言论，特别是总统使用“入侵”一词，与当年对白人至上主义者对华人的攻击如出一辙。 当时，华人被指控以压倒性的数量涌入美国，抢夺美国人的工作，威胁美国的生活方式。在柴禅平案（Chae Chan Ping）中，最高法院的判决甚至直接引用了加州政客的言辞，他们将华人移民形容为‘东方入侵’，这种描述与今天某些政客对待其他移民群体的言论惊人地相似。

1871年10月，美国历史上最大规模的私刑处决之一发生在洛杉矶，约有19名华人被暴民杀害。在美国西部的其他地方，1885年怀俄明州的洛克斯普林斯屠杀（Rock Springs Massacre） 中，近30名华人被谋杀。同年，华盛顿州塔科马市（Tacoma）约有150至200名华人被持枪暴徒驱逐，他们的房屋被烧毁。这些事件并非孤立的种族骚乱，而是系统性的种族清洗。据历史学家Beth Lew-Williams 统计，在1885年至1886年间，美国西部至少有168个社区驱逐了所有华人居民。这种清洗行动的规模虽然不如对印第安人的土地掠夺或二战期间对日裔美国人的集中营关押那般广为人知，但本质上属于同样的种族迫害。

事实上，与政府今天将黄金德的父母描述为“永久居民”的说法形成鲜明对比的是，他们在黄金德出生后不久便返回了中国。历史学家推测，他们离开的时间点可能与1877年7月旧金山爆发的反华暴乱有关。当时，数百名暴徒袭击了旧金山唐人街，《纽约时报》报道称，他们的目标是“消灭所有华人，彻底铲除这个被憎恶的种族”。大量华人商铺被洗劫和焚毁，至少四名华人被杀害。历史学家记录了美国西海岸发生的一系列有组织的反华暴力和驱逐行动，这些行动完全可以被定义为一场种族清洗。正如学者阿曼达·弗罗斯特（Amanda Frost）所指出的，黄金德的父母“可能从未认为美国是他们的永久家园，而他们的这种想法也是有充分理由的。” 因为当时加州工人党（California Workingmen’s Party）提出的最具代表性的口号就是：“华人必须滚出去。”

在黄金德父母抵达旧金山的那个时代，美国尚未建立现代意义上的联邦移民法律，基本实行开放移民政策。当时不存在签证、绿卡、移民局（ICE或INS）、边境管控、埃利斯岛（Ellis Island），甚至没有“非法移民”这一概念（尽管1803年和1807年的法案禁止奴隶进口，而历史学者Jack Chin和Paul Finkelman认为，这些法律导致了一批被非法贩运到美国的黑人后代根据《第十四修正案》最终获得了公民身份）。黄金德的父母原本是依据1868年《蒲安臣条约》（Burlingame Treaty）合法居住在美国，该条约的目的是为了让美国商人能够进入中国市场。然而，仅仅几年后，国会便开始颁布美国历史上第一部限制移民的法律——1875年《佩奇法案》（Page Act），禁止华人女性进入美国。这项法律表面上是为了打击所谓的亚洲“卖淫活动”，但实际效果是阻止了在美华人男性结婚生子，迫使许多华人不得不返回中国娶妻生子。正是在这种背景下，黄金德本人后来回到中国结婚，并在返回美国时被拒绝入境，这最终引发了以他名字命名的里程碑式最高法院案件——美国诉黄金德案（United States v. Wong Kim Ark）。

这段历史至今仍在重演。尽管《排华法案》被认为是19世纪末的历史遗物，但2025年，美国国会提出了一项法案，试图禁止向任何中国学生发放签证。与此同时，再次沉渣泛起的外国人土地法（alien land laws）（类似于20世纪初对亚洲人的土地购买禁令）表明，美国似乎正进入一个新的“排华2.0”时代。

政府无法通过黄金德案来证明对不同移民身份群体的差别待遇是正当的。

Just Security的其他作者已经分析了《第十四修正案》中“受美国管辖”（subject to the jurisdiction of the United States）条款的法律意义。虽然这并非我们的重点，但了解黄金德父母所处的历史背景，有助于分析行政命令14160号（EO 14160）如何对无证移民或合法居留但非绿卡持有者的人群采取更严厉的政策。例如，一些支持政府立场的人认为，只有完全效忠美国的人才受《第十四修正案》保护，但最高法院在黄金德案中仍然将其父母描述为“中国皇帝的子民”。此外，在黄金德出生的时代，法律上并无“合法”与“非法”移民之分，因此政府无法引用该案作为依据，以剥夺当今无证移民后代的出生公民权。1868年《蒲安臣条约》（Burlingame Treaty）明确规定：“访问或居住在美国的中国臣民，应享有与其他人相同的特权与豁免……”（重点强调“访问”与“居住”享有相同待遇）。换句话说，在19世纪70年代，华人游客与长期居住者享有同等权利。因此，EO 14160号行政命令对合法非公民（包括持学生签证、工作签证或旅游签证者）的待遇，并无法从黄金德案中找到支持。

EO 14160将对当今亚裔美国人群体造成毁灭性影响

如果EO 14160得以实施，其对亚裔美国人社区的影响将是毁灭性的。在美国的亚裔成年人中，68%是移民。亚裔移民（包括各类合法身份）占美国移民总数的很大比例：亚裔占全美无证移民的约17%，此外，H-1B签证（主要适用于STEM领域的专业人才）持有者中超过88%出生于亚洲。美国的大多数国际学生也来自亚洲。根据EO 14160，这些移民的子女将被排除在出生公民权之外。在美国，超过10.8万名亚裔年轻人符合DACA（童年抵美者暂缓遣返计划）保护资格，而他们的子女将因该行政令而被剥夺公民权。这些亚裔美国人并不认同任何其他国家，他们的成长和教育均由在美直系亲属承担。然而，政府却错误地将无证移民描绘为“与美国毫无实质性联系的人”。如果你问Tereza Lee，这位原籍巴西、两岁随父母来到美国的韩裔女性，她是否与美国毫无联系，她会告诉你一个完全不同的答案。她是最初的“追梦人”（Dreamer），并激发了广受两党支持的《DREAM法案》的立法努力。

最后，关于难民与庇护者。除了试图废除出生公民权，特朗普政府还暂停了难民接收计划。二战后，美国接纳的难民逐渐以亚洲人为主。例如，越南战争后，近300万东南亚难民逃离战乱与迫害，寻求在美国庇护，其中包括许多曾与美军并肩作战的人。今天，中国已成为美国庇护批准人数最多的前三大来源国之一。无论以何种方式入境，庇护者都是因在原籍国遭受迫害而主动寻求美国的全面保护。换句话说，他们是主动请求服从美国法律，并对美国效忠的群体。根据法律规定，庇护者无法返回原籍国，也无法更新原籍国护照，否则他们的庇护身份将面临风险。这意味着他们一旦踏上美国国土，便是为了留下来，并最终成为美国人。事实上，庇护者与难民是所有移民类别中入籍率最高的群体之一，这清楚地表明，他们的忠诚始终在美国，而非他们曾遭受迫害的祖国。

美国移民法的起源，本质上是建立在排斥华人之上。美国的移民法律体系最早便是以排华为基础构建的。19世纪，数以千计的华人移民诉讼奠定了现代移民法律体系的基础，包括边境控制与执法机制。直到1891年《移民法》（Immigration Act of 1891），联邦政府才正式接管移民的入境检查权。该法案进一步扩展了1882年的《排华法》，不仅禁止华人，还禁止“所有白痴、疯人、贫民、有传染病者、被判刑的罪犯……一夫多妻者”等人入境。值得注意的是，第一起支持1891年移民法的最高法院案件是《Nishimura Ekiu诉美国案》（Nishimura Ekiu v. United States），案件的主角是一名因该法案被拒入境的日本女性。

进入20世纪后，1924年《移民法》（Immigration Act of 1924）对亚裔移民实施永久性禁令，同时，美国各州也推行了禁止亚裔购买房地产的“外国人土地法”（alien land laws），这进一步证明了美国当时从未打算让亚裔移民在此永久定居。

第十四修正案是美国重建时期的一颗璀璨明珠，它使美国在南北战争的废墟中重塑自我。其中最核心的问题之一，便是450万名曾被奴役的非裔美国人及其子女的公民身份。由于《德雷德·斯科特案》（Dred Scott）的存在，这一问题的答案必须写入宪法。因此，“凡出生于美国者即为公民”的明确表述成为最高法律。当美国最高法院花费一年多时间审理黄金德案时，其中一个重要问题是：未入籍的白人移民之子女的公民身份该如何界定？ 如果法院否认黄金德的公民身份，那么，正如Frost教授所指出的，这将引发混乱——成千上万尚未放弃对英国、德国、法国或其他国家效忠的欧洲移民子女，都将无法获得公民身份。最终，最高法院给出的答案是：制定一条明确的规则，以奠定新生美国的基础——一个包括所有出生在这片土地上的人，无论是黑人、白人，还是华人。如果法院作出相反裁决，那将使美国重新回到《德雷德·斯科特案》所代表的排他性法律体系。然而，第十四修正案以及最高法院如今传递出的信息是：尽管非裔美国人曾被排除在美国政治体系之外，尽管华人移民无法归化入籍，但他们的子女将因出生而获得美国公民身份。一个全新的国家由此而诞生。

The post 特朗普政府重塑《第十四修正案》 ——《黄金德案》并未限制出生公民权 appeared first on Just Security.

It was no coincidence that President Donald Trump announced on the campaign trail that he would seek to end birthright citizenship via executive order on the heels of the 125th anniversary of the Supreme Court’s decision in United States v. Wong Kim Ark. For well over a century, Congress, the courts, the executive branch, and the American public have understood and adhered to the principle set forth by the Court in 1898 that U.S. citizenship is automatically conferred to anyone born in the United States (except the children of diplomats and occupying foreign powers). Trump’s Executive Order No. 14160, however, distorts the Wong Kim Ark decision, apparently in the belief that the Court’s language provides a blueprint to limit birthright citizenship only to the children of U.S. citizens and lawful permanent residents (“LPRs” or green card holders). Not so.

Despite the fact that the 14th Amendment’s citizenship clause does not include the words “permanent,” “domicile,” or “residence,” the government has argued that the Supreme Court in Wong Kim Ark was “careful to cabin its actual holding to the children of those with a ‘permanent domicile and residence in the United States,’” because that is how the Court described Wong Kim Ark’s parents’ legal status. Therefore, it stands to reason, says the government, that only children of U.S. citizens or lawful permanent residents are eligible for birthright citizenship.

By doing so, the government attempts to draw a fraught analogy between lawful permanent residents of today and Wong Kim Ark’s parents. While some of the words sound the same (“permanent domicile and residence” and “lawful permanent resident”), they have completely different legal meanings. To retcon Wong Kim Ark’s parents as the equivalent of current day green card holders is both legally and historically mistaken.

Wong Kim Ark’s parents did have a fixed address in the United States (751 Sacramento St. San Francisco, CA), which the Court in 1898 described as their “permanent domicil and residence.” But that is where the similarities end; as we discuss below, that address was far from permanent.

Chinese migrants like Wong’s parents did not have anywhere near the same rights or responsibilities as modern-day green card holders.

First and foremost, today’s green card holders have a pathway to U.S. citizenship. Although Congress in 1868’s Expatriation Act stated, “this Government has freely received emigrants from all nations, and invested them with the rights of citizenship,” this was not true for any immigrant from Asia, including Wong Kim Ark’s parents. Chinese migrants were implicitly or explicitly prohibited from citizenship by the Naturalization Act of 1790 (which limited naturalization to free white persons), by treaty, by the Chinese Restriction (often better known as “Exclusion”) Act of 1882, and later Supreme Court precedent.

Second, today’s green card holders are free to travel outside the United States and return, something that Chinese migrants, beginning in the 1880s could not easily do. Todays’ LPRs may travel internationally on the condition that they return to the United States or abandon their green cards. For Chinese migrants in Wong Kim Ark’s time, however, the United States made it extraordinarily onerous to leave and return. They were required under the 1882 Exclusion Act to obtain “Certificates of Reentry” in order to leave the United States and return. To obtain such certificates, Chinese people had to have White persons bear witness to their status. The Supreme Court in Fong Yue Ting v United States upheld this requirement even against a Chinese man placed in deportation proceedings because he did not know any White people who could attest and was unable to obtain the necessary signatures.

In another case, a longtime California resident, Chae Chan Ping, left for a visit to China with a valid certificate of re-entry in 1887, and, and while he was on a ship returning to San Francisco a year later, a new statute passed invalidating all reentry certificates, his included. The Supreme Court in 1889 upheld Chae Chan Ping’s exclusion, writing of Chinese migrants, “they remained strangers in the land, residing apart by themselves and adhering to the customs and usages of their own country. It seemed impossible for them to assimilate with our people or to make any change in their habits or modes of living.”

In 1895, the Court affirmed the exclusion of Lem Moon Sing, who, like Wong Kim Ark’s parents, was a Chinese merchant described by the Court as having “permanent domicile” in San Francisco, but who was refused entry back to the United States after a visit to China. Upholding a border officer’s decision, the Court stated that Lem “cannot, by reason merely of his domicile in the United States for purposes of business, demand that his claim to reenter this country” be decided by the courts. It is clear that many Chinese people who purportedly had “permanent domicile and residence” during this period, lost that right as soon as they left the United States, distinguishing them from today’s lawful permanent residents.

Third, green card holders may petition for their children and spouses residing overseas to join them permanently in the United States, conferring upon those relatives their own pathway to citizenship. For Chinese migrants in the United States at the turn of the century, however, the inability to reunite with family members compelled circumvention of discriminatory laws and created a whole generation of “paper sons” – aspiring immigrants who paid U.S. born Chinese Americans to pretend to be their birth fathers in order to claim derivative U.S. citizenship. Indeed, these discriminatory anti-Chinese laws transformed today’s so-called “model minorities” into our nation’s first “illegal aliens.”

Meanwhile, today’s LPRs must all demonstrate admissibility, which means they are carefully scrutinized on a variety of criteria including health-, national security-, and public safety- related grounds. LPRs are required to pay federal income taxes, and men 18 to 26 must register for selective service. Green card holders are entitled to live permanently in the United States, work at any legal work of their choosing (with the exception for certain national security jobs), and be protected by all the laws of the United States and state and local jurisdictions. As we outline below, many of these privileges were largely to denied to Chinese migrants.

Chinese Migrants like Wong’s parents faced draconian legal restrictions and ethnic cleansing and did not have the protections of law afforded to immigrants today.

Wong Kim Ark’s parents lived in the United States at a time when Chinese migrants faced xenophobic sentiment, accompanied by widespread violent attacks, expulsions, lynchings, and systematic legal restrictions. Chinese migrants first arrived in the United States in large numbers beginning in 1849, lured by the prospect of riches from the California Gold rush and, through grueling and often deadly labor, built the most dangerous portion of the transcontinental railway at a cost of over a thousand dead. When this project was completed, America was united from west to east for the first time, and travel time dropped from seven months to seven days. This set the stage for the United States to emerge as a worldwide economic and political powerhouse.

But these contributions did not mean acceptance. California, in particular, enacted an increasingly restrictive series of prohibitions specifically targeting Chinese migrants and generated contentious litigation resulting in watershed civil rights decisions. These included: a ban on Chinese children attending public school (Tape v. Hurley); a ban on Chinese people testifying in court against White people (People v. Hall) (effectively making it impossible to convict a white person on charges of assaulting or killing Chinese people); and a ban on Chinese people working for any California company or in any public sector job, both of which were enshrined in the 1879 California Constitution in a section simply captioned, “Article XIX. Chinese.” Additional restrictions included bans targeting Chinese Laundries (resulting in the landmark Yick Wo v. Hopkins, which held a facially neutral law could be discriminatory), and even the shearing of braided hair worn by Chinese in queues (Ho Ah Kow v. Nunan, the so-called “Pigtail Ordinance”).

The same vitriol aimed at immigrants today (in particular, use of the term “invasion” by the president) was directed at Chinese who were accused of arriving in overwhelming numbers to steal jobs from Americans and threaten our way of life. The Supreme Court in the Chae Chan Ping case acknowledged the outcry from California politicians who described Chinese immigration then, much as the president does about other immigrant communities today, as “approaching the character of an Oriental invasion.”

In October 1871, nativist anger erupted into mob violence as approximately 19 Chinese people were killed in Los Angeles in one of the largest lynchings in American history. Elsewhere throughout the American west, nearly 30 Chinese people were murdered in the 1885 Rock Springs massacre in Wyoming, and the same year in Tacoma, Washington, anywhere between 150 to 200 Chinese people were expelled at gunpoint and their dwellings burned to the ground. These were not one-off race riots. According to historian Beth Lew Williams, between 1885-1886, at least 168 communities across the U.S. west drove out their Chinese residents. This was nothing short of ethnic cleansing, but far less known than the violent removal of Native Americans from their lands and later Japanese incarceration.

Indeed, in stark contrast to the government’s current day description of Wong’s parents as having “permanent residence,” they returned to China shortly after his birth, and as historians have suggested, in the aftermath of an anti-Chinese pogrom in July of 1877. A mob of hundreds attacked San Francisco’s Chinatown, and in the words of the New York Times, they had “resolved to exterminate every Mongolian and wipe out the hated race.” Businesses were looted and torched and four Chinese were killed. Historians recite a systematic wave of anti-Chinese violence and expulsions across the west coast that could fairly be described as a campaign of ethnic cleansing. According to Professor Amanda Frost, Wong Kim Ark’s parents “likely never considered America to be their permanent home, however, and for good reason. ‘The Chinese must go,’ became the populist slogan of the California’s Workingmen’s Party.”

At the time of Wong Kim Ark’s parents’ arrival in San Francisco, there was no federal immigration law as we know it today and the U.S. essentially had open immigration. There was no such thing as visas or green cards; no such thing as ICE or INS, no border controls, no Ellis Island, and no concept of “illegal immigration” (notwithstanding 1803 and 1807 bans on importation of enslaved persons: which as Professors Jack Chin and Paul Finkelman argue, gave rise to illegally trafficked persons whose children were later granted citizenship under the 14th Amendment). While the presence of Wong’s parents was federally permitted under the1868 Burlingame Treaty (designed to allow U.S. business interests to have access to markets in China), Congress soon enacted the nation’s first restrictive immigration law – the Page Act of 1875 which forbade Chinese women from entering the United States. The law, ostensibly designed to curtail alleged prostitution from Asia, had the effect of preventing Chinese men already in the United States from being able to marry and have children, and in fact necessitated their return to China if they wished to marry and start a family. It was under these circumstances that Wong Kim Ark himself returned to China to marry and visit his family, and was stopped on his return, leading to the Supreme Court case that bears his name.

This history is important to understand as it continues to be repeated. While laws like the Chinese Exclusion Act were believed to be a relic of the late 19th Century, in 2025 a bill in Congress has been introduced that would bar visas from being issued to any Chinese student.  Together with resurgent alien land laws (also reminiscent of early 20th century property bans on Asians) the United States appears to be ushering in a new era of Chinese Exclusion 2.0.

The Administration will not find support from Wong Kim Ark to justify disparate treatment based on differing immigration status.

Other authors on Just Security have tracked arguments regarding the merits of arguments about what the 14th Amendment’s “subject to the jurisdiction of the United States” provision means. While that is not our focus, understanding the historical context in which the case of Wong Kim Ark’s parents was decided can be instructive here too in analyzing EO 14160’s harsher treatment of those who are undocumented or lawfully present in the United States but not LPRs. For example, while some supporting the administration’s views have urged that only those who pledge full political allegiance to the United States are covered by the 14th Amendment, remember that the Supreme Court also described Wong’s parents as “subjects of the Emperor of China.” Moreover, because there was no distinction between legal and undocumented immigration at the time of his birth, the administration can draw no support from the Wong Kim Ark case to deprive current day undocumented persons from access to birthright citizenship. The 1868 Burlingame Treaty also provided that “Chinese subjects visiting or residing in the United States, shall enjoy the same privileges, immunities…” (emphasis added) – in other words, Chinese tourists in the 1870s had the same rights as those wishing to remain longer. Thus, EO 14160’s treatment of lawfully present non-citizens (including those here on student, work, or tourist visas) finds no solace in Wong Kim Ark.

EO 14160 would have a devastating and disproportionate effect on today’s Asian American population.

If EO 14160 is upheld, the impact on today’s Asian American community would be devastating. 68 percent of Asian American adults in the United States are immigrants. Asian immigrants of all legal statuses account for a substantial percentage of the United States’ overall immigrant population: they make up an estimated 17 percent of undocumented immigrants, and more than 88 percent of individuals holding H1-B visas for specialized occupations especially in the STEM fields were born in Asia. A majority of international students in the U.S. hail from Asia.  Children of immigrants from any of  these categories are excluded from birthright citizenship under EO 14160. With over 108,000 young persons born in Asia eligible for DACA protections, their children would be barred under the Order. These Asian Americans know no other country of allegiance and have been educated and raised by immediate family in the United States. Shockingly, the government cites to policy positions that mischaracterize undocumented persons as “individuals who lack any meaningful ties to the United States.” Ask that of Tereza Lee, the Korean American who was born in Brazil, and brought to the United States at two years old. She is the original “Dreamer” and an inspiration for the popular and bipartisan DREAM Act.

Finally, a note about refugees and asylees. In addition to abolishing birthright citizenship, Trump has also suspended refugee admissions. After the influx of European refugees fleeing post-World War II Europe, a majority of refugees arriving later in the United States have been from Asia. For example, following the Vietnam War, nearly three million persons from Southeast Asia fled war and persecution in their homelands to seek refuge in the United States, including many who fought alongside the U.S. military. Today, China is among the top three leading countries of nationality for persons granted asylum in the United States. Asylum seekers, regardless of the mode of entry, have fled persecution abroad and affirmatively sought the full physical and political protections of the United States. In other words, they are pleading for the right to give obedience and allegiance to the United States. By law, asylum seekers cannot travel to their home countries, or even renew their old passports, without risking their asylum claims or status, lest they avail themselves of any of the privileges of their origin country’s citizenship. For asylees, once they are in the United States, they are here to stay and to become Americans. When granted asylum, they too, have a pathway to U.S. citizenship, and asylees (together with refugees) have some of the highest rates of naturalization of any class of immigrants, demonstrating that overwhelmingly, their allegiance all along has been to the United States and not their prior countries, where they experienced persecution.

The origin story of U.S. immigration law is one that firmly has its roots in the exclusion of Chinese migrants and the literally thousands of cases filed by them to vindicate their rights. These cases laid the foundation for today’s immigration legal regime, including the border control and enforcement mechanisms we know today. It was not until the Immigration Act of 1891 that the federal government assumed direct control over the inspection and admission of immigrants. The 1891 Act was designed to expand upon the Chinese Restriction (Exclusion) Act of 1882 to bar those other than Chinese including: “all idiots, insane persons, paupers, or persons likely to become a public charge, persons suffering from a loathsome or a dangerous contagious disease, persons who have been convicted of a felony …polygamists,” among others. It is telling that the first Supreme Court case upholding the 1891 Act and the federal government’s sweeping new immigration powers was Nishimura Ekiu v. United States, involving a Japanese woman who was denied entry under the law.

The 20th century brought the 1924 Immigration Act and a permanent bar on migration from Asia along with widespread policies in states with Asian immigrant populations prohibiting them from purchasing real property (so called “alien land laws”) – another sign that the United States never intended Asians migrants to have an enduring or permanent presence in this country.

The 14th Amendment was a crown jewel of Reconstruction, through which America refashioned itself out of the ashes of the Civil War. Central to this was the question of citizenship status of the 4.5 million formerly enslaved African Americans and their children. Because of Dred Scott, it was critical that the answer be contained in the Constitution. And so, the straightforward language that proclaimed all those born in the United States as citizens became the highest law in the land. When the Supreme Court deliberated for more than a year on Wong Kim Ark’s fate, one of the overhanging questions was of the status of the children of non-naturalized white immigrants.   If Wong Kim Ark was denied citizenship, chaos would ensue, as Professor Frost argued, and hundreds of thousands of children of European migrants who had not renounced their loyalties to Britain, Germany or France or other nations, would not be citizens.  The Court’s answer was to craft a straightforward rule that would lay the foundation of the new America that was to emerge – a nation which included those born on its soil – Black, White and, yes, even Chinese. For the court to rule otherwise would return America to the exclusionary legal architecture of Dred Scott The 14th Amendment and the Supreme Court now sent a  new message: While African Americans had previously never been imagined as being part of the American polity and Chinese migrants could not even naturalize – now their children would be American citizens by birth.  A new nation had emerged.

Editor’s note: This piece is part of the Collection: Just Security’s Coverage of the Trump Administration’s Executive Actions

IMAGE: Departure Statement, Wong Kim Ark Record Group 21. USDC No. District Court of CA, SF Admiralty Case File #11198, Departure Statement of Wong Kim Ark, 1894. National Archives Identifier: 2641490. (Via National Archives)

The post The Trump Administration’s 14th Amendment Retcon: ‘Wong Kim Ark’ Does Not Limit Birthright Citizenship appeared first on Just Security.

The new South African law makes no mention of a landowner’s race, though patterns of land ownership are inextricably bound up with the legacy of racial apartheid in South Africa, in which Whites, who were in the minority, not only controlled political power but also owned the vast majority of privately held land, as they continue to do to this day. The expropriation law regulates when private land can be taken for public use and under what circumstances land could be expropriated without compensation. No land has, as yet, been expropriated without compensation.

Together, the two Trump executive orders halt all refugee resettlement, including for people already cleared to come to the United States, except for Afrikaners. The second order also bars any continued financial assistance to South Africa. One case in which a federal judge this week temporarily blocked the first executive order illustrates the intersection of all these variables and why such impetuous decisions as the signing of these executive orders are not only egregious on their face but also unlawful, as Congress established the U.S. refugee admissions program in the Refugee Act of 1980, which can’t be undone by executive order.

The first executive order that has now been put on hold was euphemistically entitled “Realigning the United States Refugee Admissions Program.” Among the refugees left stranded by what essentially was a U.S. suspension of admissions for refugees worldwide was “Josephine,” who as a young child fled violence in the Democratic Republic of the Congo. Because conditions for a single, teenage girl were dangerous in the refugee camp in Tanzania, her mother made the difficult decision to send Josephine to South Africa when she reached age 15. In 2016, her mother was resettled to the United States, became a U.S. citizen, and petitioned for Josephine to reunite with her.

Josephine was finally approved, and in January had all the required travel documents in hand to board a flight to the United States, awaiting only the confirmation from the U.S. consulate in Johannesburg that she had permission to travel to the United States as a refugee. She had packed her bags, given away her other belongings, and terminated her lease.

As documented in the lawsuit filed by three faith-based refugee assistance agencies and nine individual plaintiffs, including Josephine and her mother, the U.S. consulate refused to grant the required flight confirmation. Now Josephine, age 28, is stranded in South Africa with no prospect of reuniting with her mother and worse off than before.

Executive Order `Lacks Factual Accuracy’

The South African government issued a press release in response to the Feb. 7 executive order, saying that it  “lacks factual accuracy and fails to recognize South Africa’s profound and painful history of colonialism and apartheid.”  It also pointed out the irony “that the executive order makes provision for refugee status in the US for a group in South Africa that remains amongst the most economically privileged, while vulnerable people in the US from other parts of the world are being deported and denied asylum despite real hardship.”

The initial media reports coming out of South Africa show head scratching if not outright opposition from the very Afrikaners the order is intended to favor. Reuters quoted Neville van der Merwe, a 78-year-old pensioner in Bothasig near Cape Town, saying, “If you haven’t got any problems here, why would you want to go?”

So, is there a need for Afrikaner refugee resettlement? According to the Office of the United Nations High Commissioner for Refugees (UNHCR), there were 122.6 million forcibly displaced people worldwide in 2024, of whom 37.9 million were refugees. UNHCR said 2.4 million of those refugees needed to be resettled, but it was only able to resettle a small fraction, 116,528, in 2024.

A breakdown of that number reveals that 22,615 were resettled from Josephine’s home country, the Democratic Republic of the Congo, but UNHCR does not list a single refugee as having been resettled from South Africa as their country of origin — whether Afrikaans-speaking Whites, English-speaking Whites, Afrikaans-speaking non-Whites, or any of the myriad other racial, ethnic, and linguistic groups living in South Africa.

Resettlement Plunged During First Trump Term

Both Trump’s statements and his actions during his first term and since returning to office suggest that this order reflects his preoccupations and prejudices rather than an objective assessment of the need for refugee resettlement for the group in question. In an Oval Office meeting with U.S. senators during his first administration, Trump was widely quoted as saying that the U.S. should admit more immigrants from places like Norway rather than from “shithole” countries like Haiti and “people from Africa.”

And that is just what he did. U.S. refugee resettlement data for fiscal year 2018 show that refugee admissions plunged to 20 percent of the average levels of the previous five years for refugees from the Middle East and South Asia and to 33 percent of previous levels for refugees from African countries. But resettlement from a handful of white Christian-majority European countries rose over that time, up 109 percent for Ukrainians and 134 percent for Russians. Remember this was three years before the 2022 full-scale Russian invasion that caused millions of Ukrainians to flee.

The U.S. refugee admissions program dates from the end of the Vietnam War, with strong support from both Republican and Democratic presidents. Then, as now, it not only has served to save people like Afghan and Iraqi interpreters who served side-by-side with U.S. armed forces and had to flee their countries as a consequence, but also has rescued refugees fleeing for their lives from many of the most horrible scenes of mass atrocities of the last 50 years, such as in Cambodia, Darfur, Bosnia, and Myanmar. And that was without racial or religious discrimination.

Refugee resettlement has been a lifeline as well as a beacon of hope and a sign to the world that people in a far-off place – Americans — care. This president, however, has cut that lifeline and extinguished the hope. His actions risk showing the world instead that any semblance of capacity to care appears to be limited for those who look like him.

Some people, however, are taking action. The lawsuit in Josephine’s case is one such step. On Feb. 25, a federal district judge in Seattle issued a preliminary injunction in the case that temporarily blocks the administration from cutting funding for refugee resettlement. This opens the way for the public to put broader pressure on members of Congress and the White House to make the case that refugee resettlement needs to be saved.

Editor’s note: This piece is part of the Collection: Just Security’s Coverage of the Trump Administration’s Executive Actions

IMAGE: Photo taken on January 25, 2025 shows Uzma Naveed (R), an outreach coordinator, and social worker Jeffrey Andrews (L) speaking to ‘John’ (C) at the Christian Action Centre for Refugees in Chungking Mansions in Hong Kong. US President Donald Trump’s executive order to suspend all refugee admissions and halt the US asylum programme, signed hours after taking office, has left adrift dozens in the Chinese city approved for US resettlement. (Photo by PETER PARKS/AFP via Getty Images)

The post The Racial Twist in Trump’s Cutoff of Refugee Admissions appeared first on Just Security.

But the case, announced in late September and likely to take many months before even potentially going to the ICJ, is not a silver bullet, and it may undercut obligations that require both the Taliban and the international community to act now to stop the abuses of women in Afghanistan. It also risks creating bad precedent on how States use international law to end gender discrimination in countries other than their own. The issue gained new urgency this week, as the Taliban said it would close all domestic and foreign non-governmental organizations that still employ women in Afghanistan.

The Case in Context

The planned complaint invokes the United Nations Convention on the Elimination of all Forms of Discrimination against Women’s (CEDAW’s) inter-state jurisdictional clause, which provides for disputes concerning the interpretation or application of the treaty to be resolved through negotiation, arbitration, and ultimately the ICJ. It is part of a more recent trend toward countries using human rights treaties to hold other countries to account without there being any specific injury to the complaining State(s). Another example of inter-state accountability mechanisms at work is the 243 recommendations addressed to Afghanistan in the U.N. Human Rights Council’s most recent Universal Periodic Review of the country this year.

The case also comes at a critical juncture in the international community’s posture toward the Taliban de facto authorities. In December last year, a political process through the U.N. Security Council resulted in a resolution urging increased international engagement with the Taliban. The resolution specified the need for Afghanistan to meet its “international obligations,” and acknowledged “the need to ensure the full, equal, meaningful and safe participation of Afghan women in the process throughout.” Yet this summer, when it came to the third U.N. convening of meetings in Doha, Qatar, to discuss Afghanistan, U.N. officials excluded women at the insistence of the Taliban. The Taliban had been excluded from the first meeting and refused to attend the second because Afghan women and civil society would be present, so Doha 3 was widely seen as an extraordinary betrayal of Afghan women by the international community.

Adding further insult to injury, after Doha 3, an emboldened Taliban quickly escalated and formalized its domestic legal campaign against women; just over a week after the meeting concluded, on July 9, it adopted its 115-page “virtue and vice” law, later publicly released in August. The U.N. has described it as “utterly intolerable.” Indeed, the next month, a coalition of 26 countries supporting the prospective ICJ case issued a statement noting that they have “repeatedly urged” the Taliban to voluntarily respect international human rights law but that “the situation has not improved — on the contrary, it continues to worsen.”

Campaign to Codify `Gender Apartheid’ 

Meanwhile, in the background of all these efforts — that is, the political process on Afghanistan and its emphasis on “international obligations,” Doha 3, and a new ICJ case — have been core questions about exactly what comprises the Taliban’s international obligations, whether those obligations sufficiently proscribe its anti-women agenda, and what international law currently requires of other States and the U.N. in tackling gender discrimination in the country.

All of these questions have been inadvertently complicated by a coincident international campaign to include “gender apartheid” in international law (with a focus on codification in a new draft Crimes Against Humanity Treaty). This has had outsized significance for Afghanistan because the international campaign to codify a crime of “gender apartheid” draws heavily on the Afghanistan example. Most notably, the U.N. special rapporteur on Afghanistan and a working group on discrimination against women and girls have echoed the language used by some Afghan women’s rights defenders to describe what the Taliban is doing as “gender apartheid.”

Unfortunately, the campaign has sometimes leaned heavily into the argument (in my view, incorrect) that gender discrimination in Afghanistan is so systematic and intentional that existing international human rights and other law is not fit for purpose. Additionally, the use by Afghan women and feminist allies of the term “gender apartheid” as an advocacy tool and the separate but associated legal push for a global crime of the same has led many international officials to avoid the term “gender apartheid” in relation to Afghanistan because they believe (also, without foundation) that it requires absolute and prolonged non-engagement with the Taliban.

Either or both of these stances — that international law doesn’t speak fully to the Taliban’s gender crimes and that tackling serious gender crimes might require full isolation of the Taliban — in practice has inadvertently suggested that both the de facto authorities in Afghanistan and officials in other countries have some latitude to sidestep the gender discrimination occurring in the country right now.

Who Holds Current International Legal Obligations In and On Afghanistan?

For its part, the Taliban presently bears responsibility for implementing the human rights obligations of Afghanistan, which is bound by seven of the nine core human rights treaties (all but the treaties on disappearances and migrant workers). Afghanistan is also a party to the Rome Statute that created the International Criminal Court and which relevantly proscribes the crime of gender persecution (the Office of the Prosecutor’s 2022 Policy on the Crime of Gender Persecution specifically identifies Afghanistan as a “[r]ecent example[] of acts that may amount to gender persecution[.]”). And it is further bound by international humanitarian law, which protects women and girls through general and specific guarantees.

Yet, the de facto authorities are not the only ones who have international law obligations in Afghanistan. For example, as with this ICJ case, States have the ability to sue Afghanistan under some of the human rights treaties (e.g., CEDAW but also the U.N. Convention Against Torture and Other Forms of Cruel, Inhuman, and Degrading Treatment or Punishment). Additionally, other countries’ human rights obligations apply extraterritorially when they exercise power or effective control, meaning when their acts or omissions impact the rights of persons in Afghanistan in a “direct and reasonably foreseeable manner,” such as through military, counterterrorism, development, and humanitarian activities. This means, for example, that countries’ decisions to send all-male delegations to meet with the de facto authorities should be scrutinized under their extraterritorial human rights obligations on non-discrimination and equality. The U.N., in operating in Afghanistan, is also obligated to respect human rights, including in line with the U.N. Charter. That requires, at minimum for example, a robust human rights due diligence policy with respect to non-U.N. security forces.

Why (or Why Not) Sue Afghanistan Under CEDAW?

Restrictions against the rights of women and girls by de facto authorities are required to be assessed under the full spectrum of binding international law, not just the obligations under the women’s rights treaty. So, why then a case under CEDAW? Legally, it makes a lot of sense. The committee in charge of monitoring the treaty has repeatedly said that religion, culture, and/or tradition cannot be invoked to undermine women’s rights. This is important. I’ve legally analyzed all the core edicts, laws, and policies of the Taliban since 2021 for the U.N., and none of these provisions are subtle in the use of religion as a pretext for fundamentally depriving women and girls of protection. The CEDAW Committee also has found certain practices to be illegal in other contexts — the requirement for male guardianship (mahram) in Saudi Arabia, for instance — that the Taliban also mandates.

As a non-discrimination treaty, CEDAW also contains a comprehensive framework of three overarching obligations to prohibit discrimination, ensure equality, and address gender stereotypes that is well-suited to address the breadth of the Taliban’s gender repression. The treaty also requires States to avoid and remedy violations against those who have intersecting forms of discrimination, such as rural women, women with disabilities, and minority women – that’s key in Afghanistan, where the Taliban’s edicts are experienced unevenly among women. And importantly, the treaty prohibits discrimination by private actors, which is an often-overlooked but pervasive challenge in Afghanistan as the Taliban’s campaign against women relies heavily on male family members to enforce its edicts and metes out punishment for failure to do so (e.g., punishing brothers or fathers for female family members not wearing “proper” hijab).

Notwithstanding this normative clarity, using the global norms package on women’s rights in this way to address the Taliban comes with risks. Foreign intervention in Afghanistan has long used women’s rights as a cover for coercion (e.g., the post-9/11 invasion in 2001 was framed in part as an effort to emancipate women); at the same time, the international community has too often spoken over or for — rather than with or at the direction of — Afghan women. And a case about Muslim women in Afghanistan brought by four Global North countries under international human rights law notionally bound for The Hague that will very likely turn on a substantive question about the relationship between religion and women’s rights risks reinforcing many well-known critiques of international law on women’s rights, including that it can be Eurocentric, top-down white saviorism that selectively focuses abroad.

As the complaint makes its way through the CEDAW process and potentially after many months to the ICJ, elevating local perspectives, such as those of Afghan women’s rights defenders and legal scholars, will be key. It also will be important to support fact-finding led by grassroots women’s organizations that often have the most access to victims and can therefore expose the full impacts of the Taliban’s policies. Having Afghan women and women’s organizations lead these processes ensures not only that the violations and potential remedies are fully captured, but also that holding the Taliban to account under human rights law is not too easily dismissed as being a Western project to save Afghan women. Other countries holding themselves to account for their own adverse foreign policies on women in Afghanistan will also help close the legitimacy gap that stems from this perceived one-sidedness.

Next Steps

Existing international law, not just under the women’s rights treaty but under a range of human rights guarantees, fully proscribes what the Taliban is doing to Afghan women. That gives States a foothold to act in relation to the Taliban, including by using the human rights treaties like CEDAW to sue them. But, ending abuses by the Taliban is not just about “holding #Afghanistan to account,” as the minister of foreign affairs of the Netherlands put it in a social media post when he and his counterparts announced the case.

Instead, beyond suing the Taliban and awaiting a potential ICJ case or a potential future “gender apartheid” norm, it is also important for governments and the international community to meaningfully act on women’s rights now, not only vis-à-vis the Taliban but also to hold themselves to account for what is happening to women in Afghanistan today. This means that States and the U.N. should — and in some cases legally must — right their own policies that have and continue to exacerbate the plight of women in Afghanistan. That includes ensuring that they do not fund or support activities with the Taliban that exclude or harm women and girls, such as in education assistance or counter-terrorism and anti-money laundering programing or in combatting climate change through technology transfers and other measures.

But it’s not only an obligation to refrain from making things worse for women and girls that is relevant here; instead, the international community should take positive steps to guarantee gender equality, including for example, by centering the restoration of education of women and girls and ensuring that any foreign policies on Afghanistan also have a plan for how to make up for all the lost opportunities for women and girls since the Taliban regime returned to power in 2021.

IMAGE: Afghan burqa-clad women walk past a Taliban security personnel along a street in Jalalabad on April 30, 2023. (Photo by Shafiullah Kakar/AFP via Getty Images)

The post Suing the Taliban at the ICJ Over Abuses of Afghan Women Isn’t a Panacea. Countries Must Do More Now. appeared first on Just Security.

Today, Oct. 14, is Indigenous Peoples’ Day in the United States. Last year, we presented a selection of recent Just Security articles analyzing Indigenous issues at the intersection of law, policy, climate, justice, and more; because these articles all remain so timely, we are re-featuring the collection in connection with the holiday today, with the addition of several more articles published in the past year.

Also new this year: the list ends with a collection of recently released media — a symposium, a documentary film, a set of podcast, and a book — from beyond our pages, that may further illuminate some of the issues we cover.

Climate and Indigenous Issues

Climate change disproportionately impacts Tribal Nations in the United States and Indigenous communities worldwide, and Indigenous activists have been at the forefront of worldwide climate leadership — even as their efforts face repression. As climate litigation grew in 2024, Indigenous communities played a key role, both at the State level — as small islands States in the South Pacific led litigation — and pushing for action within countries.

We encourage readers to peruse the full climate archive and writing on Indigenous peoples’ issues. Some examples of recent coverage include:

• Why Criminalize Ecocide? Experts Weigh In, curated by Rebecca Hamilton
• The Just Security Podcast: The ‘Year of Climate’ in International Courts by Naima Te Maile Fifita, Joana Setzer and Paras Shah
• The Climate Crisis and Aging: Capitalizing on Traditional Knowledge and Innovation by James O’Neil and Miguel Cotes Ramírez
• Will Canada Stand Up for Indigenous Rights or Continue Supporting Big Oil? by Whitney Gravelle, Lindsay Bailey, Tamara Morgenthau and Marco Simons

Series on Native Sovereignty in U.S Supreme Court Cases

• On Indigenous Peoples’ Day, Reflections on Tribal Sovereignty in Haaland v. Brackeen by Amanda L. White Eagle:

Today, on Indigenous Peoples’ Day, Indigenous people grapple with colonialism, history, and trauma. A future that truly honors Indigenous people and Tribal Nations must be rooted in sovereignty and begin from a place of self-determination – including jurisdiction over a sovereign Tribe’s own members. Tribal sovereignty has a storied history with a complex legal relationship with the United States. Contemporaneous indigeneity allows Indigenous people and allies to see that history while simultaneously recognizing and celebrating the exercise of tribal sovereignty. The intersection of the past and present provide education, resilience, and hope.

• Denezpi v. U.S.: Double Jeopardy, Dual Sovereignty, and Tribal Courts by Rebecca Plumage:

The assimilationist project failed once before. But in Denezpi and other cases challenging Native sovereignty, modern-day proponents seek to revive it under the guise of concerns over individual rights. This particular case is framed around double jeopardy, but that should not be allowed to obscure its deeper purpose: as part of a long line of efforts to chip away at the sovereignty of Native nations.

• Penobscot v. Frey: A Chance to Correct Course on Sovereignty Jurisprudence by Rebecca Plumage:

A nation’s sovereignty and security are inherently bound up with the right to control its territory. There are few greater threats to national security than the arbitrary loss of territory – and there are few sovereigns whose national security is more precarious than Native nations, sovereigns within a sovereign that have seen their rights eroded time and again.

Intersectional Writing on Justice and National Security

Professor Aziz Rana, in National Security Law and the Originalist Myth – published in connection with the Oxford University Press/Just Security volume Race and National Security (Professor Matiangai V. S. Sirleaf, ed.) – writes:

Ultimately, any genuine project of national security reform requires more than reviving a fictive eighteenth century of checks and balances. It instead entails treating foreign interventionism as only one expression of a broader colonial imagination and infrastructure, present since the framing and never adequately uprooted. Alongside challenging the state’s international police power, such a reformist approach includes ending the colonial status of all the existing territorial dependencies – in line with the genuine political desires of local and self-determining communities. It also revolves around everything from sharing sovereignty with Native peoples and land return to reparations, decriminalizing the border, transformative and structural reforms to intelligence and policing apparatuses, and providing judicial avenues for the remedy of past colonial crimes as well as contemporary national security ones.

A growing number of our authors explore national security through a lens that grapples with the consequences of settler-colonialism, past and present, in the United States and elsewhere. While these themes cut through various Just Security articles, recommended starting points include:

• Lieber at Sand Creek: A New Critical Reinterpretation of the Laws of War by John Fabian Witt, engaging with Settler Empire and the United States: Francis Lieber on the Laws of War by Helen M. Kinsella
• Racing National Security Symposium, edited by Matiangai Sirleaf

Beyond Our Pages

Finally, for your holiday reading, listening, and watching, readers may be interested in the following recent releases:

• Symposium on Johnson v. M’Intosh in the Tribal Law Journal, University of New Mexico – School of Law (Aug. 2024). Leading academics examine the legacy of a 1823 Supreme Court case that has shaped and continues to shape U.S. law as it relates to Tribal Nations. The symposium ends with a keynote lecture from Interior Secretary Deb Haaland.
• By the Fire We Carry by Rebecca Nagle. The host of This Land podcast has a new book, released in September, subtitled “The Generations-Long Fight for Justice on Native Land.” It may be of particular interest to readers looking for more on the themes of sovereignty discussed in our series above.
• Bad River (film), now streaming and at screenings through December, explores issues at the intersection of sovereignty and environmental justice, through the experiences of the Bad River Band of Lake Superior Chippewa.
• Undammed: The Klamath River Story (podcast: Spotify, Apple), airing now with new episodes weekly, offers an example of Indigenous climate leadership. It covers the “largest dam removal in history,” the result of decades of Tribal-led advocacy that centered on the importance of salmon and steelhead to Native culture and to the economy of the Klamath River basin region, on the Oregon-California border. After more than a century away, salmon were documented swimming freely in the river earlier this month, just days after the dam removal was completed.

IMAGE via Getty Images.

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