Strong Recommendation for New U.S. Policy for Engagement with Cuba

On December 17 a strong recommendation for a new U.S. policy for engagement was put forward by the Center for Democracy in the Americas and the Washington Office on Latin America.[1]

It sets forth the Case for Engagement; the First Nine Months of the Biden Administration (Repairing the Damage); The Second Year [of the Biden Administration] (Taking the Initiative); and Finishing the Job: A Legislative Agenda.

For example, here are the major points of its Case for Engagement that advance the interests of the U.S. and those of the Cuban people:

  • “Engagement begins with constructive diplomacy that includes cooperation on issues of mutual interest and negotiations on issues in conflict.”
  • “Engagement is a more effective strategy to advance the cause of human rights, political liberty, and economic reform.”
  • “Engagement must include civil society—cultural, educational, scientific, and familial linkages that foster mutual understanding, reconciliation, and cultural enrichment for both peoples.”
  • “Engagement will facilitate commercial ties, expanding the market for U.S. businesses, raising the standard of living for the Cuban people, and encouraging economic reform.”
  • “Engagement will serve as a counterweight to the aspirations that global competitors like Russia and China have in Cuba.”
  • “Engagement accomplished in two years more than the policy of hostility achieved in sixty years.”

The Center for Democracy in the Americas is “a non-partisan 501(c )(3) institution dedicated to promoting a U.S. policy toward the Americas based on engagement and mutual respect, fostering dialogue with those governments and movements with which U.S. policy is at adds, and recognizing positive trends in democracy and governance.” It was founded in 2008 by Sarah Stevens.[2]

The Washington Office on Latin America (WOLA) is “ a leading research and advocacy organization advancing human rights in the Americas. We envision a future where public policies protect human rights and recognize human dignity, and where justice overcomes violence. WOLA tackles problems that transcend borders and demand cross-border solutions. We create strategic partnerships with courageous people making social change—advocacy organizations, academics, religious and business leaders, artists, and government officials. Together, we advocate for more just societies in the Americas.”[3]

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[1] Democracy in the Americas,  The United States and Cuba; A New Policy of Engagement (Dec. 17, 2020); Center Democracy in Americas, Joint Press Release. The Washington Office on Latin America and the Center for Democracy in the Americas publish “The United States and Cuba: A New Policy of Engagement” (Dec. 17, 2020); WOLA., The United States and Cuba: A New Policy of Engagement (Dec.2020).

[2] Center for Democracy in the Americas, Our Work.

[3] WOLA, About Us.

Pandemic Journal (# 34): Grim Report Lightened by News of Vaccines   

One of the objectives of this Journal is recording what it is like to live during the COVID-19 pandemic. Here is another such report. [1]

Current Status of the Pandemic[2]

The cumulative confirmed pandemic statistics as of November 21-22: the world has 55.6 million cases and 1.36 million deaths; the U.S., 12.2 million cases (the most in the world) and 256,000 deaths; and Minnesota, 262,952 cases and 3,201 deaths.

Minnesota like many other states continues to set record numbers of cases and deaths. As of November 21, the month “is on track to become the state’s deadliest month of the pandemic with 744 fatalities [so far],” accounting for 20% of the state’s total Covid-19 deaths. ” “Colder weather, drier conditions and the movement of people indoors have fueled the spread of the virus” in Minnesota and other states in the Upper Midwest.

This surge has put an enormous strain on hospitals and health care workers. For example, in Minnesota last week 79% of  available ICU beds are filled, and in some parts of the state open ICU beds were down to single digits. “More worrisome are the growing infections among health care workers who then cannot care for patients.”  Many hospitals in the state also do not  have stable supplies of masks and personal protective equipment (PPE) and enacted conservation methods — such as bagging then reusing disposal N95 masks.

On November 18, Minnesota Governor Tim Walz issued a detailed 23-page executive order, effective at the end of November 20 for the next four weeks: continuing the requirement for face masks and social distancing; prohibiting (with certain exceptions) social gatherings of individuals who are not members of the same household; limiting social gatherings to individual households; shutting down bars, restaurants, entertainment venues (movie theaters, museums, bowling alleys and fitness clubs); and pausing amateur sports.

In response to the Governor’s order, the management of our condo building on November 20 announced that “effective at the end of [that day] . . .  all association fitness rooms, indoor pools, community rooms, club rooms, libraries and other similar facilities that are currently open will be closed unless otherwise directed by your Board of Directors.”

This new condo building regulation unfortunately has caused me to cancel a weekly gathering in our entertainment center with two or three other male residents over coffee at a table with distanced chairs. There is no set agenda and instead we just start a conversation that usually lasts 60 to 90 minutes. We thereby learn more about one another and become better friends.

More optimistically, two vaccines with 95% success rates have been announced by two ventures (Pfizer/BioNTech and Moderna), one of which last week was submitted to U.S. federal agencies for emergency approval and this coming week the other is expected to make a similar application. In addition, three other companies (AstraZeneca, Johnson & Johnson and Novaax) are developing other vaccines that are still being tested. Everyone is hoping that the first two of these vaccines will be quickly approved by the federal government agencies and initially distributed to the public in mid-December.

My wife and I continue to be healthy while spending most of our time in our condo, except for trips to buy groceries and other supplies and for walks on nicer days. Yesterday just before the closing of our fitness facilities I walked for one mile in 20 minutes on a treadmill and had exercises in our weight room.  Our Thanksgiving Day will be celebrated in the condo by ourselves.

U.S. Presidential Election [3]

On November 3 the U.S. conducted its presidential election with a total popular vote of 153,628,574, which was 65% of all eligible voters, the highest since 1908.

On November 7 the Associated Press reported that the Democratic ticket (Joe Biden and Kamala Harris) won the election with 79,836,131 and 308 electoral votes while the Republican ticket (Donald Trump and Mike Pence) had 73,792,443 popular votes and 232 electoral votes. Thus, the Democratic margin of victory was 6,043,688 popular votes and 76 electoral votes.

President Trump, however, has refused to accept the above results of the election and has issued many tweets claiming the election was rigged and fraudulent. At his direction, the Republican Party or Campaign Team has commenced many lawsuits challenging the popular election in various states, but all of them have been dismissed or withdrawn with many of the judges castigating the poor legal arguments and the lack of supporting evidence offered by the attorneys for the Republicans. In addition, Trump has been attempting, so far unsuccessfully, to get Republican-controlled agencies in various states to appoint Republican electors to the Electoral College despite their popular vote having been for the Biden-Harris ticket.

As a Biden/Harris voter and as a lawyer interested in the rule of law, I have been, and continue to be, absolutely horrified by Trump’s efforts to steal this election.

In addition, Trump has instructed the official in charge of arranging for the president-elect’s transition to the presidency to refuse the  traditional provision of office space for the president-elect and the transition team and for national security briefings.

There has been a lot of speculation as to Trump’s motivation for not accepting the results of the election and engaging in these efforts to change the result of the election. One is his perceived psychological inability to accept defeat. The other is his realization that he faces immense problems if he is no longer president. One is his personal guaranties of over $300 million of loan liabilities of his various corporations. The other is his potential criminal liability for financial crimes, election-law violations, obstruction of justice, public corruption and partisan coercion. [4]

In any event, the Electoral College, under the Constitution, meets on January 6, 2021 to count the electoral votes and on January 15, the new president is inaugurated.

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[1] See List of Posts to dwkcommentaries–Topical: Pandemic Journal.

[2} Our World in Data, Statistics and Research: Coronavirus Pandemic (COVID-19);Kumar, 40 more COVID-19 deaths, 7,219 new cases in Minnesota, StarTribune (Nov. 22, 2020); Snowbeck, November already sets record for COVID-19 deaths in Minnesota, StarTribune (Nov. 21, 2000); Howatt, November on track to be Minnesota’s deadliest month for COVID-19., StarTrib. (Nov. 20, 2020); Olson, ‘No beds anywhere’: Minnesota hospitals strained to limit by COVID-19, StarTribune (Nov. 22, 2020); Governor Walz, Emergency Order 20-99 (Nov. 18, 2020); Pfizer, BioNTech Ask FDA to Authorize Their Covid-19 Vaccine, W.S.J. (Nov. 20, 2020); Robbins & Mueller, AstraZeneca Releases Promising Data on Its Coronavirus Vaccine, N.Y. Times (Nov. 23, 2020).

[3] E.g., Riccardi, Biden approaches 80 million votes in historic victory, AP (Nov. 18, 2020); Trump’s legal team cried vote fraud, but courts found none, StarTribune (Nov. 22, 2020); National Archives, Electoral College Timeline of Events

[4] E.g., Choma, Trump Has a Half Billion in Loans Coming Due. They may Be His Biggest Conflict of Interest Yet, Mother Jones (July/August 2020); Mahler, Individual-1, N.Y. Times Magazine at 35 (Nov. 22, 2020); Jacobs, Trump’s post-presidency will be cluttered with potentially serious legal battles, Wash. Post (Nov. 22, 2020).

 

 

 

 

President Trump Announces Categories for U.S. Admission of Refugees for Fiscal 2021             

On September 30, the U.S. State Department announced that President Trump had reduced the U.S. quota for admission of refugees to 15,000 for Fiscal Year 2021 (October 1, 2020-September 30, 2021) that would be documented in a subsequent presidential determination.[1]

That Presidential Determination confirming the 15,000 limitation was issued on October 28 in the form of a memorandum to the Secretary of State. It also announced allocations “among refugees of special humanitarian concern to the United States.”[2] Here are those allocations:

Number Category
5,000 Refugees who: have been persecuted or have a well-founded fear of persecution on account of religion; or are within a category of aliens established under subsections (b) and (c) of section 599D of Title V, Public Law 101-167, as amended (the Lautenberg and Specter Amendments). [(i) “aliens who are or were nationals and residents of the Soviet Union and who share common characteristics that identify them as targets of persecution in the Soviet Union on account of race, religion, nationality, membership in a particular social group, or political opinion,” including “nationals and residents of the Soviet Union and who are Jews or Evangelical Christians ” and (ii) “aliens who are or were nationals and residents of Vietnam, Laos, or Cambodia and who share common characteristics that identify them as targets of persecution in such respective foreign state on such an account.
4,000 Refugees who are within a category of aliens listed in section 1243(a) of the Refugee Crisis in Iraq Act of 2007, Title XII, Div. A, Public Law 110-181, as amended: “[1) Iraqis who were or are employed by the United States Government, in Iraq;(2) Iraqis who establish to the satisfaction of the Secretary of State that they are or were employed in Iraq by–(A) a media or nongovernmental organization headquartered in the United States; or (B) an organization or entity closely associated with the United States mission in Iraq that has received United States Government funding through an official and documented contract, award, grant, or cooperative agreement; and 3) spouses, children, and parents whether or not  accompanying or following to join, and sons, daughters, and siblings of aliens described in paragraph (1), paragraph (2), or section 1244(b)(1); and(4) Iraqis who are members of a religious or minority community, have been identified by the Secretary of State, or the designee of the Secretary, as a persecuted group, and have close family members . . . in the United States.”
1,000 Refugees who are nationals or habitual residents of El Salvador, Guatemala, or Honduras.
5,000 Other refugees in the following groups: those referred to the United States Refugee Admissions Program (USRAP) by a United States Embassy in any location; those who will be admitted through a Form I-730 following-to-join petition or who gain access to the USRAP for family reunification through the P-3 process; those currently located in Australia, Nauru, or Papua New Guinea who gain access to the USRAP pursuant to an arrangement between the United States and Australia; those who are nationals or habitual residents of Hong Kong, Venezuela, or Cuba; and those in the USRAP who were in “Ready for Departure” status as of September 30, 2019.
15,000 TOTAL

In addition, the President authorized the Secretary of State, subject to certain conditions, “to transfer unused admissions from a particular allocation above to one or more other allocations, if there is a need for greater admissions for the allocation to which the admissions will be transferred.”

The President, subject to certain conditions, also authorized the Secretary of State to consider “the following persons . . ., if otherwise qualified, . . . [as] refugees for the purpose of admission to the United States within their countries of nationality or habitual residence: a. persons in Cuba; b. persons in Eurasia and the Baltics; c. persons in Iraq; d. persons in Honduras, Guatemala, and El Salvador; and e. in exceptional circumstances, persons identified by a United States Embassy in any location.”

The President specified “that persons from certain high-risk areas of terrorist presence or control, including Somalia, Syria, and Yemen, shall not be admitted as refugees, except those refugees of special humanitarian concern:  (1) who have been persecuted or have a well-founded fear of persecution on account of religion; (2) were referred to the USRAP by a United States Embassy in any location; or (3) who will be admitted through a Form I-730 following-to-join petition or who gain access to the USRAP for family reunification through the P‑3 process.  The threat to United States national security and public safety posed by the admission of refugees from high-risk areas of terrorist presence or control is significant and cannot be fully mitigated at this time.”

Another specification by the President was “ for FY 2021, newly admitted refugees should be placed, to the maximum extent possible, in States and localities that have clearly expressed their willingness to receive refugees under the Department of State’s Reception and Placement Program.  Such cooperation ensures that refugees are resettled in communities that are eager and equipped to support their successful integration into American society and the labor force.”

Finally the President determined “hat assistance to or on behalf of persons applying for admission to the United States as part of the overseas refugee admissions program will contribute to the foreign policy interests of the United States, and I accordingly designate such persons for this purpose.”

Conclusion

 The principal objection to this presidential action is the overall limitation of resettled refugees to 15,000 in one year. The identification of the refugees in the above categories and their allocated numbers presumably are justified.

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[1] U.S. Reduces Refugee Admissions to 15,000 for Fiscal 2021, dwkcommentaries.com (Oct. 2, 2020).

[2] White House, Presidential Determination on Refugee Admissions for Fiscal Year 2021 (Oct. 28, 2020).

 

U.S. Needs Federal Elections Agency

This year’s U.S. presidential election reminds us that such elections operate under 50 sets of confusing rules established by state legislatures. We, therefore, should be reminded of the need for a Federal Elections Agency to simplify this morass.

Latest Proposal for Such an Agency[1]

The latest proposal for such an agency has been put forward by Charlotte Hill (a board member of FairVote and RepresentUs and a PhD candidate at the Goldman School of Public Policy at the University of California, Berkeley) and Lee Drutman (a senior fellow at New America and the author of Breaking the Two-Party Doom Loop: the Case for Multiparty Democracy in America).

They say, “Though the pandemic and this erratic president are stress-testing our election system like never before in recent memory, the challenges of holding a free and fair vote in America have been mounting for decades. Since the early 2000s, court battles over election rules have become constant, while global experts like those with The Economist’s “Democracy Index” have downgraded the quality of American democracy across multiple measures for years.”

“We often talk about elections as if voters across the country are participating in a single event. But the reality is that individual states and counties — and the partisan politicians who run them — largely make their own rules about ease of voting, ballots and district lines. The overall result is that in the 21st century, in the richest democracy in the world, some people must work much harder to exercise their basic right to vote — and even then, their ballot may be less potent than others.”

“Take rules around registration and voting. Some states and cities automatically register voters and proactively mail them their ballots. Other states require people to register weeks in advance of the election and, unless they have a valid excuse for voting absentee, to show up in person at the polls, where they may face long lines, poorly trained poll workers, and unreliable equipment — not to mention the chance of becoming infected with a lethal virus that thrives in crowded indoor environments.”

“If someone lives in a gerrymandered or lopsided district, that person’s vote might matter less. In the vast majority of states, partisan lawmakers decide how to draw district lines — carefully engineered to maintain power statewide, even if a majority of voters prefers the other party.”

“In the all too common worst-case scenarios, partisan officials take advantage of the lack of federal election standards to disproportionately purge minority voters from the registration rolls entirely, or invalidate their ballots because of minor technicalities at higher rates.”

The U.S. now has two federal election agencies: the U.S. Election Assistance Commission (EAC) and the Federal Election Commission (FEC). The FEC oversees campaign finance laws, and EAC was created to provide guidance to states for meeting the requirements of the Help America Vote Act of 2002 by creating voluntary voting system guidelines and a national clearinghouse of information on election administration. But neither one is very effective.

The EAC “is designed to be bipartisan, with an even number of commissioners from both parties (two Democrats and two Republicans). But amid our hyperpartisan, polarized politics, bipartisan balance has meant deadlock. The commissioners can’t even agree on core issues like how to handle foreign interference: One Republican commissioner even stated that reports of Russian election meddling are ‘deceptive propaganda perpetrated on the American public.’ Partisanship isn’t the only issue. The commission has been plagued in recent years with unfilled appointments, reduced staff and budget cuts. Perhaps most important, it does not have the authority to make sure its recommendations are followed.”

Therefore, “It is clear that Congress needs to establish a federal elections agency to ensure that the voting process is fair, consistent, secure and legitimate — from redistricting to registration to voting technology. Would this be constitutional? In short, absolutely: Article I, Section 4 of the Constitution explicitly gives Congress broad powers to ‘make or alter’ regulations affecting elections.”

Such an agency “could help oversee and administer the standards for voting access, legislative decisions on redistricting and election security. It could use formal orders, fines, lawsuits and even criminal enforcement actions to make sure that political campaigns are conducted with integrity, elections are not marred by fraud or interference and lawmakers are penalized for attempting to rig the system in their favor.”

Such an agency “could use new, safe technologies to modernize and streamline our elections, while consolidating and securing important data. It could also help pilot secure election technology, such as the ‘uncheckable’ open-source voting system currently being developed by the Department of Defense. Unlike current election software that is bought from private companies and shielded from public inspection, this system will run publicly available computer code that election security experts can scrutinize for issues.”

This proposed “agency could also better take on certain administrative functions that are currently carried out by the states: for example, the creation of a national voter roll, with all eligible citizens automatically registered to vote. This would bring our registration system up to the standards of most other advanced democracies. (And simultaneously make it easier for intelligence officials to detect security breaches.)”

In addition, it “could . . . regulate the distribution of false or misleading information about federal elections — an increasingly important challenge.”

This “agency would not stop at setting federal standards; it would also enforce them. That means ensuring that congressional redistricting is truly fair for all voters by reviewing district maps and — if they do not meet standards — require that new maps be drawn. And that means monitoring elections to ensure they’re free and fair, including by building out an ‘election forensics’ team that can determine whether fraud, interference, or suppression tipped the balance in a given race.”

This proposed “agency must have a strong mandate, based on widely supported principles of democratic fairness, as well as an empowered inspector general to monitor any potential abuses of that power. We propose an extensive vetting process for agency appointees: a bipartisan, blue-ribbon commission could put forth a short list of names and nominees would be confirmed by the House of Representatives — a more broadly representative body than the Senate.”

“Appointees [to this agency] would have to abide by a robust conflict-of-interest policy, as well as a legally binding pledge of allegiance to the integrity of the voting process and the public interest. Taken together, these structural safeguards make us optimistic that the agency would serve its intended purpose.”

Concurring Opinion for a Federal Elections Agency[2]

Stephen I. Vladeck, a Professor and the holder of the Charles Alan Wright Chair in Federal Courts at the University of Texas School of Law, concurs in the conclusion that there should be a new federal elections agency.   He says, “centralizing the [federal election] process under uniform rules is one key reform.”  He points out that in Canada “a nonpartisan federal agency administers elections using a uniform set of rules and procedures across the country. Brazil has a similar system.”

In addition, Vladeck stresses that “the ‘torturous’ process for states’ reporting election results . . . [creates] the opportunity for at least one of the political parties ‘to conjure conspiracy theories to explain’ an election defeat.”

In this year’s U.S, election, for example, “the random way in which returns were counted and released by states — Election Day returns versus mail-in ballots, for instance — led to wild fluctuations as results were updated. The consequence, as experts predicted, was a series of shifts in early tabulations, as candidates seemed to outperform or underperform expectations. President Trump seized on these gyrations, warning that something ‘strange’ was going on and that a conspiracy was afoot to ‘steal’ the election.”

In addition, “the random dissemination of results gave the appearance of something that just wasn’t true — that the returns were dynamic, not static — and that the counting of votes reflected ‘trends’ when the result was already in. We simply needed to tally the votes to figure out what that result was.”

A related problem was the various ways of reporting the results “distorted our understanding of when votes were cast. In some states, like Michigan, Pennsylvania and Wisconsin, rules prohibiting “pre-canvassing” — preparing early and mail-in ballots for counting — before Election Day meant that votes cast first could end up being counted last.”

This lack of uniform rules for counting and reporting election results “opens the door for charges that something is amiss, as it might have struck some with the returns from Pennsylvania, where the count first had one candidate up by thousands of votes, only to swing entirely in the other direction. This can leave the impression that sinister forces were at work, when it was just a function of the partisan makeup of the counties whose votes were being counted, or the type of vote — mail-ins, for example, which are disproportionately Democratic — being reported.”

Another problem is the rules for counting and reporting votes could be structured so that the initial reported results “look much better for . . . [one party’s] candidates than the overall tally, thus influencing the election narrative. There’s value in shaping the headlines even if the bottom line remains unchanged.”

Conclusion

There should be a Federal Election Agency establishing an uniform set of rules for federal elections.

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[1] Hill & Drutman, America Votes by 50 Sets of Rules. We Need a Federal Elections Agency, N.Y. Times (Nov. 5, 2020).

[2] Vladeck, Elections Don’t Have To Be So Chaotic and Excruciating, N.Y. Times (Nov. 8, 2020).

 

 

 

 

Pompeo Discusses Unalienable Rights and the Geneva Consensus Declaration

On October 29, in Jakarta, Indonesia before an audience of diplomats and faith leaders, U.S. Secretary of State Michael Pompeo made an address he titled “Unalienable Rights and Traditions of Tolerance.” With him was the Chair of the U.S. Commission on Unalienable Rights, Mary Ann Glendon. Here is what the Secretary said on that topic while also mentioning the Geneva Consensus Declaration.

The Secretary’s Remarks [1]

“The founding principle of the United States is very, very simple. America’s Declaration of Independence affirms that governments exist – governments exist to secure the rights inherent in every human being. Indeed, as the commission’s report argues, the United States was the first nation founded on a commitment, a deep commitment to universal rights for all human beings.”

“Now, the most fundamental of these rights is the right to freedom of conscience, including religious freedom. It’s the basis for the most important conversations about what conscience tells us and about what God demands of each of us. It’s one reason that religious freedom is the very first freedom enumerated in our Constitution, in the American constitution. As an evangelical Christian, my faith informs how I live, how I work, how I think.”

“And it is exceedingly rare in the scope of human history for a nation to make those promises to its citizens. It is rarer for nations even to keep them.”
“America’s respect for God-given rights, is the defining feature of our national spirit. It’s why America stood tallest among Western democracies in supporting your independence from colonial rule and has been a stalwart supporter of Indonesia’s transition to democracy over these past two decades. The fact that our people embrace freedom and uphold a tradition of tolerance is very special. We should never lose it. We must continue upholding our traditions, and we must do so very actively. We can’t assume our freedoms and our faith will live on. We must stand for what we believe.”

“I’m here in Indonesia because I believe that Indonesia shows us the way forward. There is literally no reason that Islam can’t co-exist peacefully alongside Christianity or Buddhism. . .Indeed, Indonesia’s national motto, translated into English, is, ‘Unity Amid Diversity.’. . . [And] your Constitution from 1945 clearly declares that every person shall be free: ‘Every person shall be free to…practice the religion of his [or] her choice.’” [These values then were implemented in your “Pancasila – foundational principles that enshrined the importance of faith in the life of your country[and established] . . .that Indonesia’s embrace of diverse religions, people, and cultures would become a core pillar of your country’s success.”

“The flexible, inclusive, and tolerant democratic culture that has emerged since the Reformasi of 1998 has defied the skeptics, the skeptics who believed that Indonesia could only be governed by a strongman restricting the rights of its people. Indonesia has since then given the whole world a positive model of how different faiths, different ethnic groups . . can coexist peacefully and settle their disagreements through democratic means. This is glorious.”

The work of the groups here today “is now more important than ever. Blasphemy accusations, which destroy lives, have become more common. Discrimination against non-official religions renders their practitioners second-class citizens who are subject to abuse and deprivation.”

“I want you to urge the same actions I asked the Catholic Church’s leaders to do in the Vatican.” [2]

“We need more religious leaders to speak out on behalf of people of all faiths wherever their rights are being violated. We need more religious leaders to be a moral witness. We need more religious leaders to support principles of ‘humanity and justice,’ as your founders wrote, and as our respect for unalienable rights demands.”

After noting the U.S. complaints about the Burmese military and the Iranian regime’s persecution of religious groups, the Secretary said, “the gravest threat to the future of religious freedom is the Chinese Communist Party’s war against people of all faiths: Muslims, Buddhists, Christians, and Falun Gong practitioners alike.The atheist Chinese Communist Party has tried to convince the world that its brutalization of Uyghur Muslims in Xinjiang is necessary as a part of its counterterrorism efforts or poverty alleviation. . . . [but we know those claims to be false.] I know that the Chinese Communist Party has tried to convince Indonesians to look away, to look away from the torments your fellow Muslims are suffering.. . . [But] you know the ways that the Islamic tradition – and the Indonesian tradition – demand that we speak out and work for justice. . . .

“Free people of free nations must defend those [God-given unalienable] rights. It is our duty. Even as we each do this . . in our own and often different ways, we should recognize that we have strength in numbers. We should recognize that we can turn to each other for support in difficult times, and that our cherished rights and values are absolutely worth defending at every moment, as the birthright of every people.

The Secretary then gave the following responses to questions from the audience:

• Pompeo said the U.S. works on counter-terrorism and on developing “a model for Middle East peace” and respect for human rights.
• The Geneva Consensus Declaration that recently was signed by the U.S., Indonisia and others acknowledges these religious freedom rights and protects the unborn. [3]
• The recent peace agreements between Israel and the United Arab Emirates, Bahrain and Sudan seek to improve the lives of Palestinians in the Gaza Strip. The U.S. still supports a two-state solution.
• The Report of the U.S. Commission on Unalienable Rights recognizes the U.S. Universal Declaration of Human Rights as an important aspirational document that calls on every nation to embrace and protect human rights. [4]

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[1] State Dep’t, Pompeo Speech: Unalienable Rights and Traditions of Tolerance (Oct. 29, 2020).

[2] On September 30 at the Vatican Secretary Pompeo gave a speech that criticized the Pope for having agreed to accept seven bishops appointed by China for the official, state-sanctioned church and for recently negotiating the renewal of that agreement. (See Secretary Pompeo Foments Conflict with the Holy See, dwkcommentaries.com (Oct. 3, 2020). Subsequently, on October 22, the Vatican announced such a two-year renewal although the exact details of the agreement were not released, but it contemplates ongoing dialogue about various issues. The Holy See said that it “considers the initial application of the agreement – which is of great ecclesial and pastoral value – to have been positive, thanks to good communication and cooperation between the parties on the matters agreed upon, and intends to pursue an open and constructive dialogue for the benefit of the life of the Catholic Church and the good of Chinese people.” And the Vatican newspaper L’Osservatore Romano said the Vatican ‘does not fail to attract the attention of the Chinese government to encourage a more fruitful exercise of religious freedom.’” (Winfield, Vatican, China extend bishop agreement over U.S. opposition, Wash. Post (Oct. 22, 2020); Rocca & Wong, Vatican, Bejing Renew Deal on Bishop Appointments, as Catholics Remain Divided, W.S.J. (Oct. 22, 2020); Horowitz, Vatican Extends Deal With China Over Appointment of Bishops, N.Y. Times (Oct. 22, 2020).

[3] The Geneva Consensus Declaration on Promoting Women’s Health and Strengthening the Family, dwkcommentaries.com (Nov. 5, 2020).

[4] U.S. Commission on Unalienable Rights Issues Final Report, dwkcommentaries.com (Nov. 4, 2020).

 

 

The Geneva Consensus Declaration on Promoting Women’s Health and Strengthening the Family

On October 22, the U.S. hosted a ceremony at the Department of Health and Human Services (DHHS)  for the signing of the Geneva Consensus Declaration on Promoting Women’s Health and Strengthening the Family.[1]

Contents of the Declaration[2]

The Declaration was prepared because COVID-19 prevented the signatories from meeting in Geneva, Switzerland for the 2020 World Health Assembly “to review progress made and challenges to uphold the right to the highest attainable standards of health for women; to promote women’s essential contribution to health, and strength of the family and of a successful and flourishing society; and to express the essential priority of protecting the right to life, committing to coordinated efforts in multilateral fora.”

The signatories, therefore:

“1. Reaffirm ‘all are equal before the law,’  and ‘human rights of women are an inalienable, integral, and indivisible part of all human rights and fundamental freedoms’;”

“2. Emphasize ‘the equal right of men and women to the enjoyment of all civil and political rights,’  as well as economic, social, and cultural rights; and the ‘equal rights, opportunities and access to resources and equal sharing of responsibilities for the family by men and women and a harmonious partnership between them are critical to their well-being and that of their families’ ; and that ‘women and girls must enjoy equal access to quality education, economic resources, and political participation as well as equal opportunities with men and boys for employment, leadership and decision-making at all levels;’”

“3. Reaffirm the inherent ‘dignity and worth of the human person,’ that ‘every human being has the inherent right to life,’ and the commitment ‘to enable women to go safely through pregnancy and childbirth and provide couples with the best chance of having a healthy infant;’”

“4. Emphasize that ‘in no case should abortion be promoted as a method of family planning’ and that ‘any measures or changes related to abortion within the health system can only be determined at the national or local level according to the national legislative process’; Reaffirm that ‘the child… needs special safeguards and care… before as well as after birth’ and ‘special measures of protection and assistance should be taken on behalf of all children,’ based on the principle of the best interest of the child;”

” 5. Reaffirm that ‘the family is the natural and fundamental group unit of society and is entitled to protection by society and the State’; that ‘motherhood and childhood are entitled to special care and assistance,’ that ‘women play a critical role in the family’ and women’s ‘contribution to the welfare of the family and to the development of society’;”

“6. Recognize that ‘universal health coverage is fundamental for achieving the Sustainable Development Goals related not only to health and well-being,’ with further recognition that ‘health is a state of complete physical, mental and social well-being and not merely the absence of disease or infirmity’ that ‘the predominant focus of health-care systems on treating illness rather than maintaining optimal health also prevents a holistic approach’; and that there are ‘needs that exist at different stages in an individual’s lifespan, which together support optimal health across the life course, entailing the provision of the necessary information, skills, and care for achieving the best possible health outcomes and reaching full human potential; and”

“7. Reaffirm ‘the importance of national ownership and the primary role and responsibility of governments at all levels to determine their own path towards achieving universal health coverage, in accordance with national contexts and priorities’, preserving human dignity and all the rights and freedoms set forth in the Universal Declaration of Human Rights.”

Furthermore, the signatories ”hereby declare in mutual friendship and respect, our commitment to work together to:

  • Ensure the full enjoyment of all human rights and equal opportunity for women at all levels of political, economic, and public life;
  • Improve and secure access to health and development gains for women, including sexual and reproductive health, which must always promote optimal health, the highest attainable standard of health, without including abortion;
  • Reaffirm that there is no international right to abortion, nor any international obligation on the part of States to finance or facilitate abortion, consistent with the long-standing international consensus that each nation has the sovereign right to implement programs and activities consistent with their laws and policies;
  • Build our health system capacity and mobilize resources to implement health and development programs that address the needs of women and children in situations of vulnerability and advance universal health coverage;
  • Advance supportive public health policies for women and girls as well as families, including building our healthcare capacity and mobilizing resources within our own countries, bilaterally, and in multilateral fora;
  • Support the role of the family as foundational to society and as a source of health, support, and care; and
  • Engage across the UN system to realize these universal values, recognizing that individually we are strong, but together we are stronger.”

The Declaration’s Signatories[3]

The co-sponsors and signatories of this Declaration were the U.S., Indonesia, Brazil, Egypt, Hungary and Uganda. The other 26 signatories included Poland, the Belarus (where security forces are currently trying to suppress a women-led protest movement), Saudi Arabia, Bahrain, the United Arab Emirates, Iraq, Sudan, South Sudan and Libya.

According to the Women, Peace and Security Index that was established by Georgetown University, most of the signatories are among the worst countries for women’s rights, and none of the top twenty countries on that index—except for the U.S. which ranked 19th—signed the declaration.

At the ceremony, Alex Azar, the Secretary of DHHS, said, “too many wealthy nations and international institutions put a myopic focus on a radical agenda that is offensive to many cultures and derails agreement on women’s health priorities. Today, we put down a clear marker: No longer can U.N. agencies reinterpret and misinterpret agreed-upon language without accountability. Member States set the policy for the U.N. to pursue. Not the other way around.”

Secretary of State Michael Pompeo added that this document aims to “protect women’s health, defends the unborn and reiterates the vital importance of the family as the foundation of society.” He also stressed, “There is no international right to abortion.”

The document does not directly address same-sex marriage, but its statement that the family is “the natural and fundamental group unit of society” has clear meaning for those signatories that restrict LGBT rights like Egypt.

========================

[1] Health & Human Services Dep’t, Trump Administration Marks the Signing of the Geneva Consensus Declaration (Oct. 22, 2020); Berger, U.S. signs international declaration challenging right to abortion and upholding ‘role of the family,’ Wash. Post (Oct. 22, 2020); Borger, U.S. signs anti-abortion declaration with group of largely authoritarian governments, Guardian (Oct. 22, 2020).

[2] Geneva Consensus Declaration on Promoting Women’s Health and Strengthening the Family.

[3]  See n. 1; Azar, Remarks at the Geneva Consensus Declaration Signing Ceremony, DHHS (Oct. 22, 2020); State Dep’t, Secretary Pompeo Participates in the Geneva Consensus Declaration Signing Ceremony (Oct. 21, 2020).

 

The Need To End Minority Rule in U.S.       

Harvard professors of government, Steven Levitsky and Daniel Ziblatt, make a convincing case that the structure of the U.S. government has permitted minority rule in the U.S. and they propose ways to change that structure to reduce the enabling of such minority rule.[1] We will examine their arguments about structure and reform. Then a couple of other ways to change one part of that structure—the Electoral College–will be proposed by this blog followed by looking at another critique of the current U.S. government structure provided by Larry Diamond of the Hoover Institute at Stanford University.

Existing Structure Enabling Minority Rule

 “Democracy is supposed to be a game of numbers: The party with the most votes wins. In our political system, however, the majority does not govern. Constitutional design and recent political geographic trends — where Democrats and Republicans live — have unintentionally conspired to produce what is effectively becoming minority rule.”

“Our Constitution was designed to favor small (or low-population) states. Small states were given representation equal to that of big states in the Senate and an advantage in the Electoral College, as we are seeing in this year’s presidential election. What began as a minor small-state advantage evolved, over time, into a vast overrepresentation of rural states. For most of our history, this rural bias did not tilt the partisan playing field much because both major parties maintained huge urban and rural wings.”

“Today, however, American parties are starkly divided along urban-rural lines: Democrats are concentrated in big metropolitan centers, whereas Republicans are increasingly based in sparsely populated territories. This gives the Republicans an advantage in the Electoral College, the Senate and — because the president selects Supreme Court nominees and the Senate approves them — the Supreme Court.”

Moreover, “recent U.S. election results fly in the face of majority rule. Republicans have won the popular vote for president only once in the last 20 years and yet have controlled the presidency for 12 of those 20 years. Democrats easily won more overall votes for the U.S. Senate in 2016 and 2018, and yet the Republicans hold 53 of 100 seats. The 45 Democratic and two independent senators who caucus with them represent more people than the 53 Republicans.”

“This is minority rule.”

“The problem is exacerbated by Republican efforts to dampen turnout among younger, lower-income and minority voters. Republican state governments have purged voter rolls and closed polling places on college campuses and in predominantly African-American neighborhoods, and since 2010, a dozen Republican-led states have passed laws making it more difficult to register or vote.”

Levitsky & Ziblatt’s Proposed Reforms

Eliminate the electoral college by constitutional amendment. This is not easy. Under Article V of the Constitution, the Congress shall propose amendments “whenever two-thirds of both Houses shall deem it necessary [Senate (2/3 x 50 = 33.3) and House (2/3 x 435 = 290). Or under Article V, the Congress shall call a Convention for proposing amendments “whenever . . . two-thirds of the Legislatures of the . . .States [currently 2/3 x 50 = 33.3] apply for such a convention). I agree.

Eliminate the filibuster, which has meant that “meaningful legislation now effectively requires 60 votes, which amounts to a permanent minority veto.”[2 ] This would require a Senate vote to change its rules. Under the current Senate Rules, I believe that would require a vote of at least 60 senators, but whenever a new congress convenes as it will do in January 2021, I believe it may do so by majority vote.   (Please advise by comments to this post if these beliefs about Senate Rules are wrong.).) I agree.

Offer statehood to Puerto Rico and the District of Colombia, “which would provide full and equal representation to nearly four million Americans who are currently disenfranchised.” I agree.

Defend and expand “the right to vote. “HR-1 and HR-4, a package of reforms approved by the House of Representatives in 2019 but blocked by the Senate, is a good start. HR-1 would establish nationwide automatic and same-day registration, expand early and absentee voting, prohibit flawed purges that remove eligible voters from the rolls, require independent redistricting commissions to draw congressional maps, and restore voting rights to convicted felons who have served their time. HR-4 would fully restore the 1965 Voting Rights Act, which was gutted by the Supreme Court’s Shelby County vs. Holder ruling in 2013.” I agree.

Other Suggestions Regarding the Electoral College

There are at least two other methods of changing the anti-democratic nature of the current Electoral College that, at least in part, would not require constitutional amendment.

First. Peter Diamond, professor emeritus at M.I.T. and a 2010 Nobel laureate in economics, has suggested a constitutional amendment that would require each state to divide its electoral vote between the two leading candidates within the state in accordance with the popular vote. For example, a state with an even split in the popular vote and 10 electoral votes would allocate 5 such votes to each candidate.[3]  Yes, such a change would require such an amendment since it would require all states to do it this way.

Or each state independently could decide to do just that, without a constitutional amendment, since Article II, Section 1 of the Constitution provides, “Each State shall appoint, in such Manner as the Legislature thereof may direct,” the Electors to which it is entitled. (Emphasis added.)  It, however, seems unlikely that all 50 states independently would decide to do this as a matter of each state’s laws.

Another way of changing the anti-democratic nature of the Electoral College is approval by additional states of the existing National Popular Vote Interstate Compact, which requires signatory states to award all their electoral votes to whichever presidential candidate wins the overall popular vote in the 50 states and the District of Columbia once the Compact is signed by states with at least 270 electoral college votes. As of October 2020 this compact had been adopted by 15 states and the District of Columbia, which have a total of 196 electoral college votes although one of the states (Colorado) has suspended its approval of the Compact.[4]

This proposal raises a number of legal issues. Some legal observers believe states have plenary power to appoint electors as prescribed by the Compact; others believe that the Compact will require congressional consent under the Constitution’s Compact Clause or that the presidential election process cannot be altered except by a constitutional amendment.

Another Challenging Critique of U.S. Government

Another challenging and surprising critique of the current governmental problems in the U.S. has been provided by Larry Diamond,  a senior fellow at the Hoover Institution and at Stanford University’s Freeman Spogli Institute for International Studies.[5]

According to Mr. Diamond, “Today, we are far closer to a breakdown than most democracy experts, myself included, would have dared anticipate just a few years ago. Even if we are spared the worst, it is long past time to renew the mechanisms of our democracy, learn from other democracies around the world and again make our republic a shining city on a hill.”

Moreover, “The very age of American democracy is part of the problem. The United States was the first country to become a democracy, emerging over a vast, dispersed and diverse set of colonies that feared the prospect of the ‘tyranny of the majority.’ Hence, our constitutional system lacks some immunities against an electoral debacle that are common in newer democracies.”

Today, he asserts, “The American [election] system is a mishmash of state and local authorities. Most are staffed by dedicated professionals, but state legislatures and elected secretaries of state can introduce partisanship, casting doubt on its impartiality. No other advanced democracy falls so short of contemporary democratic standards of fairness, neutrality and rationality in its system of administering national elections.”

In contrast, “even though Mexico is a federal system like the United States, it has a strong, politically independent National Electoral Institute that administers its federal elections. The Election Commission of India has even more far-reaching and constitutionally protected authority to administer elections across that enormous country. Elections thus remain a crucial pillar of Indian democracy, even as the country’s populist prime minister, Narendra Modi, assaults press freedom, civil society and the rule of law. Other newer democracies, from South Africa to Taiwan, have strong national systems of election administration staffed and led by nonpartisan professionals.”

In addition, “more recent democratic countries have adopted constitutional provisions to strengthen checks and balances. Like many newer democracies, Latvia has established a strong independent anti-corruption bureau, which has investigative, preventive and educational functions and a substantial budget and staff. It even oversees political and campaign finance. South Africa has the independent Office of the Public Protector to perform a similar role.”

In contrast, the U.S. “has no comparable standing authority to investigate national-level corruption, and Congress largely investigates and punishes itself.”

On another issue, newer democracies have taken “measures to depoliticize the constitutional court. No other democracy gives life tenure to such a powerful position as constitutional court justice. They either face term limits (12 years in Germany and South Africa; eight in Taiwan) or age limits (70 years in Australia, Israel and South Korea; 75 in Canada), or both. Germany depoliticizes nominations to its constitutional court by requiring broad parliamentary consensus. In other democracies, a broader committee nominates Supreme Court justices. In Israel this involves not just the executive branch but the parliament, some of the existing justices and the bar association.”

In contrast, the U.S. “lacks national checks on executive corruption and national guarantees of electoral integrity that have become routine in other democracies around the world. And nominations to our Supreme Court have become far more politicized than in many peer democracies.”

Conclusion

A proposal for changing the undemocratic  structure of the U.S. Senate will be discussed in a future post.

==============================

[1] Levitsky & Ziblatt, End Minority Rule, N.Y. Times (Oct. 23, 2020). Levitsky and Ziblatt also are co-authors of How Democracies Die, which was reviewed in the New York Times: Szalai, Will Democracy Survive Trump? Two New Books Aren’t So Sure, N.Y. Times Book Review (Jan 10, 2018).

[2] This blog has published posts that discuss the history of the filibuster rule, including modest reforms of the rule in 2013, and recent unsuccessful litigation challenging the constitutionality of the filibuster.

[3]  Diamond, Letter to the Editor: Let States Split the Electoral College Votes, N.Y. Times (Oct. 29, 2020).

[4] National Popular Vote, Inc., National Popular Vote!National Popular Vote Interstate Compact, Wikipedia.

[5] Diamond, I’m a Democracy Expert. I Never Thought We’d Be So Close to a Breakdown, N.Y. Times (Nov. 1, 2020).  Diamond is the author, most recently, of  “Ill Winds: Saving Democracy From Russian Rage, Chinese Ambition, and American Complacency,“ Penguin Random House, 2019, 2020).

Objections to Proposed U.S. Rule Changing Asylum Procedures

The U.S. Department of Justice’s Executive Office for Immigration Review (EOIR) has proposed a rule that would significantly shorten the time for asylum seekers to file their paperwork for asylum and to amend that paperwork.[1] Given my experience as a pro bono attorney for such individuals, I filed with the EOIR a comment objecting to that proposed rule. Here is that comment followed by another objection by a Minnesota lawyer and friend, Steven Thal.

My Objection to the Proposed Rule[2]

“I am writing to oppose EOIR’s proposed rule to curtail human rights of asylum seekers by limiting timelines for applications and unlawfully restricting the type of evidence presented. The rule represents yet another attempt to restrict the right of people to obtain protection from persecution and torture—rights that the U.S. has agreed to meaningfully implement. By putting up nearly-insurmountable obstacles in that process, this proposed rule violates the rights of asylum seekers and, therefore, U.S. and international law. For the following reasons, I request that this rule be withdrawn in its entirety.”

I.“The 15-day filing deadline for asylum- and withholding-only removal proceedings will contravene our international and domestic laws.”

”The proposed rule will violate our obligations under the UN Refugee Convention and U.S. law by impinging on the ability for people in asylum- and withholding-only proceedings to adequately prepare their case. The rule proposes to require filing within 15 days of the person’s first hearing. For most in asylum- and withholding-only proceedings, this will be an impossible task as many are recently-arrived in the U.S., lack sufficient language skills to prepare a filing that must be in English, lack the resources to pay the now-required $50 fee, and are unlikely to secure reliable counsel on that timeline. Asylum seekers are entitled to present their case and be represented by counsel. This new rule infringes on those rights and must be withdrawn. Moreover, the rule will unduly impact attorneys and service providers—particularly nonprofit providers—who will be overburdened and unable to find pro bono counsel willing to complete applications on such a timeline”

II.“The proposed restrictions on evidence are a blatant attempt to deny asylum protections and improperly restrict due process.”

“The proposed changes to evidence are unlawful and blatantly targeted to discourage asylum applications. This violates our obligations under the UN Refugee Convention as well as U.S. law.”

“The proposed rule proposes to make all evidence other than U.S. government reports presumptively unreliable. Such change would allow immigration judges to discount local and international news sources, reports by both local and international nongovernmental organizations and even United Nations reports. The only evidence under the new rule that would be presumed credible would be reports prepared by the U.S. Government, i.e., opposing counsel in an asylum case.”

“This rule is unjustified and must be withdrawn as local and international sources provide nuanced and expert analysis that the U.S Government reports often lack due to capacity, know-how and diplomatic pressures. Moreover, because U.S. Government reports will be prepared by the same branch as the opposing counsel in asylum cases, the rule violates basic understandings of due process rights by presumptively finding one side credible. And, the rule allows immigration judges to introduce their own evidence into the record, further violating due process by eliminating their role as a neutral arbiter.”

III. “The proposed 30-day timeframe for correcting errors will deny asylum to those who need protection, thereby contravening international and domestic law on nonrefoulment.”

“The proposed rule further violates asylum seekers’ rights by restricting their ability to file an application. The proposed rule, though espousing efficient processing of applications, removes the requirement that EOIR return an application within 30 days of filing or presume it properly filed. Yet, it then gives the asylum seeker only 30 days to correct any deficiencies and will deem abandoned and deny any application not corrected in that time. This rule is a clear attempt to allow the Government to deny bona fide asylum claims under the guise of procedural efficiencies. Moreover, it will violate our international nonrefoulment obligations by denying asylum applications due to procedural defects rather than substance and, therefore, returning people to countries in which they will be persecuted or tortured.”

IV. “The proposed 180-day case completion timeline and restrictions on continuances improperly penalizes asylum applicants for the court’s inefficiencies.”

 “The proposed rule passes-on to the applicant the inefficiencies and failure of EOIR to provide sufficient resources—while eliminating case management techniques such as administrative closure—by requiring applications be adjudicated within 180 days absent a very limited set of exceptional circumstances. The rule will mean in practice that bona fide asylum applicants are denied and removed to countries in which they will face persecution or torture because they will be foreclosed from requesting continuances to sufficiently prepare their case. By essentially barring continuances and demanding immigration judges adjudicate cases on impossible timelines given backlog and complexity of asylum cases—as well as the myriad new restrictions and processing requirements created over the past four years— the proposed rule will result in improperly decided cases, increasing the rate of appeals and threatening to deny those who truly need our protection. Such a timeline will also present immense challenges to attorneys and pro bono service providers who will be challenged to represent clients to the best of their abilities without the ability to request time to prepare. This infringes on the due process rights of asylum clients and should be withdrawn.”

V. “My Personal Experience As a Pro Bono Asylum Lawyer Demonstrates the Utter Insanity of this Proposed Regulation.”

“In the mid-1980s I was a partner in a major Minneapolis law firm with 20 years of experience representing fee-paying clients in business litigation. I had not studied immigration law in law school or thereafter and had no knowledge of that field in general or refugee and asylum law in particular. But for various professional and personal reasons, I decided that I wanted to be a pro bono lawyer for an asylum seeker from Central America.”

“Fortunately for me and many other Minnesota lawyers, then and now, a Minnesota non-profit organization—[Minnesota] Advocates for Human Rights—provided a course in refugee and asylum law for lawyers like me and the support of experienced immigration lawyers that enabled me and others, then and now, to become pro bono asylum lawyers.”

“With that support from this system and my law firm, I thus embarked in the mid-1980’s on my first pro bono case for a Salvadoran asylum seeker and tried the case in the Immigration Court with the assistance of an experienced immigration attorney. We lost the case, but filed an appeal to the Board of Immigration Appeals, and under the laws at that time our client maintained his work permit and continued to live and work in the Twin Cities.”

“Thereafter with the assistance of [Minnesota] Advocates for Human Rights I was a pro bono attorney for another Salvadoran asylum seeker, whose case prompted me in April 1989 to go to that country, at my own expense, to do some investigations in his case and learn more about that country more generally. This trip was during the Salvadoran Civil War and on the day that I arrived her attorney general was assassinated with a car bomb. That subsequent week, therefore, was tense and dangerous, but to my surprise turned out to be the most important religious experience of my life as I started to learn about the courageous work of Archbishop (now Saint) Oscar Romero, the Jesuit priests at the University of Central America (six of whom were murdered by the Salvadoran military later that same year), Bishop Menardo Gomez of the Lutheran Church of El Salvador and many others. Afterwards my second Salvadoran client was granted protection by the Immigration and Naturalization Service.”

“In the 1990s I was a successful pro bono lawyer for an Afghan’s affirmative application for asylum and later for U.S. citizenship. Thereafter until my retirement in 2001 I also had success as a pro bono attorney for asylum seekers from Colombia, Somalia and Burma. All of this was made possible by the assistance of Advocates for Human Rights and experienced immigration lawyers and by the support of my law firm.”

“As a result of this experience, I can testify that asylum seekers in the U.S. desperately need the assistance and guidance of able pro bono attorneys since almost all such individuals do not have the financial resources to retain fee-based attorneys.”

“Moreover, I can testify to the time constraints associated with such pro bono representation.”

“First, organizations like Advocates have procedures to screen potential asylum applicants and identify those who appear to have credible claims and then seek to find an a competent attorney who is willing to represent, pro bono, such applicants. These organizations also have to develop and produce at least annual programs to educate potential pro bono attorneys about refugee and asylum law and develop other ways to recruit such lawyers to volunteer their services to asylum seekers. That takes time and effort and financial support by charitable contributions from the community. Advocates for Human Rights continues to be successful in these efforts.”

“Second, once an attorney agrees to take such a case, pro bono, he or she needs to fit that case into his or her caseload and obligations to existing clients, especially fee-paying clients. Once the attorney starts working on the pro bono asylum case, he or she may identify documents that need to be obtained from another place in the U.S. or foreign country and/or need to be translated from a foreign language into English. An interpreter may be needed for conferences with the client or other witnesses. Eventually the attorney must prepare documents for the asylum application and appear with the client in Immigration Court or at interviews on affirmative claims. In addition, the case may require the attorney to travel to another location. All of these actions by an attorney are necessary to provide competent advice and service to the pro bono client and all have their time requirements.”

“Third, these time pressures on the relevant non-profit organizations and pro bono asylum attorneys are even more intense now in the midst of the COVID-19 Pandemic disruptions and complications.”

“In short, it would be impossible under the proposed regulation for asylum seekers to obtain the competent pro bono representation they so desperately need. The proposed regulation is utter insanity.”

Steven Thal’s Objection to the Proposed Rule[3]

“I have been practicing immigration law since 1982 in Minneapolis, Minnesota. I also am a past Chair of the Immigration Section of the Minnesota State Bar Association. I have served as a past Chair of the Minnesota/Dakotas American Immigration Lawyers Association (AILA) Chapter and previously served as its Vice Chair and Secretary/Treasurer. I have served on the AILA Essential Workers Committee, AILA Immigration Works Committee. The law firm I established currently has three full-time associate attorneys involved in our practice. (www.thalvisa.com.)”

“First, I endorse the comments on this proposed rule made by my friend and fellow Minnesota attorney, Duane W. Krohnke (Comment Tracking Number: kgl-2g3o-0vel.) “

“Second, although my two associates and I along with other full-time Minnesota immigration attorneys represent some asylum seekers on a pro bono basis, the demand for such services exceeds our collective ability to do so. Therefore, we need the assistance of non-immigration attorneys to be pro bono lawyers for other asylum seekers after these lawyers have obained education about asylum law from Advocates for Human Rights. In short, the only way that asylum applicants in the Twin Cities and Minnesota can obtain a pro bono attorney is through organizations like Advocates.”

“Third, I would add that it would be nearly impossible to meet the proposed deadlines in this proposed rule given the difficulty in reaching clients who are in detention in remotely held jail facilities, especially since ICE can move these individuals without prior notification. Just getting a G-28 Notice of Appearance of Attorney signed is a logistical nightmare. Gathering evidence, locating witnesses, obtaining supporting evidence cannot be accomplished effectively within the short times in the proposed rule.”

Conclusion

For the foregoing reasons, we call on the Department to withdraw the proposed rule in its entirety.

===============================

[1] Executive Office for Immigration Review (EOIR), Procedures for Asylum and Withholding of Removal (Sept. 23, 2020).

[2] Comment on FR Doc # 2020-2107, EOIR Procedures for Asylum and Withholding of Removal (by Duane Krohnke) (Oct. 22, 2020), Comment ID: EOIR-2020-0005-1113;Tracking Number kgl-2g3o-Ovel.

[3] Comment on FR Doc # 2020-2107, EOIR Procedures for Asylum and Withholding of Removal (by Steven Thal) (Oct. 22, 2020) Comment ID: EOIR-2020-0005-????; Tracking Number: 1K4-0jny-mh2v.

 

New U.S. Sanctions Against Cuba

The U.S. recently has announced additional sanctions against Cuba. Here is a summary of those measures.

 U.S.Sanctions Against Certain Cuban Hotels, Cigars and Alcohol[1]

On September 23 President Trump announced that the “Treasury Department will prohibit U.S. travelers from staying at properties owned by the Cuban government. We’re also further restricting the importation of Cuban alcohol and Cuban tobacco. These actions will ensure that U.S. dollars do not fund the Cuban regime and go directly to the Cuban people.”

Treasury Secretary Mnuchin said, “The Cuban regime has been redirecting revenue from authorized U.S. travel for its own benefit, often at the expense of the Cuban people. This Administration is committed to denying Cuba’s oppressive regime access to revenues used to fund their malign activities, both at home and abroad.”

A negative assessment of this move was made by Lawrence Ward, a partner in the international law firm Dorsey & Whitney, who said Trump’s action will make it nearly impossible for Americans to visit Cuba since the government owns or controls nearly all hotels. “Certainly, these new sanctions will have some minor impact on the Cuban government and Cuba’s economy but there’s a fair argument that the actions are more symbolic and political given that the United States stands nearly alone in its sanctions as to Cuba.”

Enrique Gutierrez, a spokesman for the Democratic Party said in an email, “This is a desperate and hypocritical attempt by Trump to pander to Cuban-American voters in Florida. American citizens are already banned from traveling to Cuba because of the coronavirus.” Mr. Trump was “using our foreign policy for his own political gain.”

U.S. Sanctions Against Cuban Debit Cards[2]

On September 28, the State Department added American International Services (AIS), a financial institution, to the Cuba Restricted List. According to Secretary of State Michael Pompeo, the stated reason for this action was AIS’ allegedly being “controlled by the Cuban military that processes remittances sent to the Cuban people” and its charging “fees and manipulat[ing] the remittance and foreign currency market as part of the regime’s schemes to make money and support its repressive apparatus. The profits earned from these operations disproportionately benefit the Cuban military, furthering repression of the Cuban people and funding Cuba’s meddling in Venezuela.”

The Secretary added, “Adding AIS to the Cuba Restricted List furthers the Administration’s goal of preventing the Cuban military from controlling and benefiting from the flow of remittances that should instead benefit the Cuban people.  The people should be able to receive funds from their family abroad without having to line the pockets of their oppressors.” Therefore, the Secretary urged “anyone who sends remittances to family in Cuba to use means other than Cuban government-controlled remittance entities.”

This move against AIS hurts ordinary Cubans who receive remittances in hard currencies from families in the U.S. and elsewhere through AIS that are used to buy food in government-owned retail grocery stores. Bruno Rodriguez, Cuba’s foreign minister, said in a tweet, “it is a maneuver aimed at damaging the Cuban people and the family ties between both nations.”

List of Cuba Prohibited Accommodations and Entities [3]

In addition, on September 28, the Department published its initial list of Cuba Prohibited Accommodations. This is a “list of properties in Cuba owned or controlled by the Cuban government, a prohibited official of the Government of Cuba, as defined in 31 CFR § 515.337, a prohibited member of the Cuban Communist Party, as defined in 31 CFR § 515.338, a close relative, as defined in 31 CFR § 515.339, of a prohibited official of the Government of Cuba, or a close relative of a prohibited member of the Cuban Communist Party.” The list is by cities and towns that not in alphabetical order so it should be carefully examined by any U.S. citizen traveling to Cuba.

On September 29, the Department published the List of Restricted Entities and Subentities Associated with Cuba. This is a “list of entities and subentities under the control of, or acting for or on behalf of, the Cuban military, intelligence, or security services or personnel with which direct financial transactions would disproportionately benefit such services or personnel at the expense of the Cuban people or private enterprise in Cuba.” U.S. nationals are prohibited from having “direct financial transactions with these entities.”

Another Cuban “Blocked Person”[4]

On September 30 the Department added Luis Alberto Rodriguez Lopez-Calleja to the U.S. list of Specially Designated Nationals and Blocked Persons, which will block all transactions with “all assets, property and interests of property of Mr. Lopez-Calleja that are subject to U.S. jurisdiction, including within the possession or control of U.S. persons.”   The stated reason for this action was his being the head of the Cuban military-owned conglomerate Grupo de Administración Empresarial S.A. (GAESA), which allegedly uses its revenue “to oppress the Cuban people and to fund Cuba’s parasitic, colonial domination of Venezuela.  He also is the son-in-law of Raul Castro.

Other Reactions [5]

 These new sanctions might seem inconsequential to someone in the U.S. But they are especially mean-spirited when directed at the much smaller and weaker island whose economy is suffering from the total collapse of foreign tourism and mismanagement and whose food is sold at high prices in government-operated stores only for U.S. Dollars as a way for the government to obtain Dollars it needs for other purposes.

Elijah Love, a commentator in the private Diario de Cuba and generally supportive of U.S. restrictions on Cuba, says, “Unfortunately, private entrepreneurs have been especially harmed, and although the US government wants the sanctions applied to military companies and State Security to leave room for private entrepreneurs to occupy the place they deserve, it does not seem that this be the case.”

===================================

[1] White House, Remarks by President Trump Honoring Bay of Pigs Veterans (Sept. 23, 2020); Treasury Dep’t, Office of Foreign Asset Control, Cuban Assets Control Regulations, 85 Fed. Reg. 60068-72 (Sept. 24, 3030)(new prohibition on lodging and related transactions at certain Cuban properties; restrictions on U.S. imports of Cuban alcohol and tobacco products; ends authorization of attendance or organization of professional meetings in Cuba and participation or organization of certain public performances , clinics , workshops in Cuba); Yeginsu, Trump Administration Adds to US Travel Restrictions in Cuba, N.Y. Times (Sept. 24, 2020); Superville, Trump tightens Cuba sanctions as he woos Cuban-American vote, Wash. Post (Sept. 23, 2020).

[2] State Dep’t, Addition to the Cuba Restricted List (Sept. 28. 2020); Rodriguez, U.S. adds popular Cuban debit card to restricted list, Wash. Post (Sept. 28, 2020).

[3]  State Dep’t, Cuba Prohibited Accommodations List Initial Publication (Sept. 28, 2020);  State Dep’t, List of Restricted Entities and Subentities Associated with Cuba Effective September 29, 2020 (Sept. 29, 2020)

[4] State Dep’t, Press Statement (Secretary Michael Pompeo): Addition to the Specially Designated Nationals and Blocked Persons List (Sept. 30, 2020);Lee, US imposes sanctions on Cuba’s Raul Castro’s son-in-law, Wash. Post (Sept. 30, 2020)

[5]  Augustin & Robles, Cuba’s Economy Was Hurting. The Pandemic Brought a Food Crisis, N.Y. Times (Sept. 20, 2020); Love, US sanctions on the Cuban economy create opportunities, but also risks, Diario de Cuba (Sept.  29, 2020).

 

Secretary Pompeo Foments Conflict with the Holy See

On September 30, U.S. Secretary of State Michael Pompeo was at the Holy See for its Symposium on Advancing and Defending Religious Freedom through Diplomacy. There he delivered a speech entitled “Moral Witness and Religious Freedom” that provided great details about China’s abuses of religious freedom and called upon the Vatican (Pope Francis) to take action against the Chinese abuses. He thereby fomented conflict with the Holy See.

Pompeo’s Recent Speech [1]

Most of the first part of this speech appropriately concentrated on the 75th anniversary of the end of World War II in Europe and the courageous resistance to the Nazi’s persecution of its Jewish citizens by Roman Catholic Father Bernhard Lichtenberg in  Berlin by his helping Jews with finances, advice and emigration assistance and by publicly  criticizing the Nazi regime after Kristallnacht.

“That life or death struggle [against the Nazis] was a crucible, a proving ground of moral witness.  Individual stories of valor were legion.  But I remember especially Father Bernhard Lichtenberg. . . .[He] was a priest in Berlin in the 1930s, who fervently resisted the Nazi regime, and helped Jews with finances, advice, emigration assistance as the Nazi fist tightened. In 1938, in the aftermath of Kristallnacht, he began to speak up more loudly on their behalf, proclaiming at St. Hedwig’s Cathedral in Berlin, ‘Outside ‘the synagogue is burning, and that too, is a house of God.’ From then on, he fearlessly prayed each day publicly for the Jews and other victims of Nazi brutality.”

“Eventually, the Nazis arrested him in 1941. Rejecting a deal to go free in exchange [for] stopping his subversive peaching, he was given a two-year prison sentence.  When asked if he had anything to add when the sentence was read, he said, ‘I submit that no harm results to the state by citizens who pray for the Jews.’ Towards the end of his sentence, the Nazis realized they could never break his spirit.  They ordered him sent to Dachau concentration camp, but he died on the way before he reached that grim destination. Father Lichtenberg bore an incredible moral witness, and in 2004 he was honored by the State of Israel as one of the Righteous Among the Nations, a non-Jew who risked his life to save Jews from Nazis.”

“Today, as we think about that man, I urge all faith leaders to exhibit a similarly moral, bold witness for the sake of religious freedom, for human dignity, and for peace.(Emphasis added.)

Secretary Pompeo then shifted his remarks to say “the mission of defending human dignity – and religious freedom in particular – remains at the core of American foreign policy. That’s because it’s at the heart of the American experiment.  Our founders regarded religious freedom as an absolutely essential right of mankind and central to our founding.”

“Indeed, I would say it’s an integral part to what Pope John Paul II described as the ‘universal longing for freedom’ at the United Nations when he spoke in 1995.  Billions of people today . . . have always seeked to worship according to their conscience.”

But sadly, authoritarian regimes, terrorists, and even secularists, free societies are – in their different ways – trampling religious freedom all around the world. Vast swathes of humanity live in countries where religious freedom is restricted, from places like . . . Cuba, and beyond.” (Emphasis added.) Later in the speech he reiterated this contention: “Christian leaders have an obligation to speak up for their brothers and sisters in Iraq, in North Korea, and in Cuba.” (Emphasis added.)[2]

Then he went into his excoriation of China.

“Nowhere, however – nowhere is religious freedom under assault more than it is inside of China today. That’s because, as with all communist regimes, the Chinese Communist Party deems itself the ultimate moral authority. An increasingly repressive CCP, frightened by its own lack of democratic legitimacy, works day and night to snuff out the lamp of freedom, especially religious freedom, on a horrifying scale.”

The Uyghur Muslims of Xinjiang are “not the only victims.  The Chinese Communist Party has battered every religious community in China: Protestant house churches, Tibetan Buddhists, Falun Gong devotees, and more.”

“Nor, of course, have Catholics been spared this wave of repression: Catholic churches and shrines have been desecrated and destroyed. Catholic bishops like Augustine Cui Tai have been imprisoned, as have priests in Italy. And Catholic lay leaders in the human rights movement, not least in Hong Kong, have been arrested. Authorities order residents to replace pictures of Jesus with those of Chairman Mao and those of General Secretary Xi Jinping.”

“All of these believers are the heirs of those Pope John Paul celebrated in his speech to the UN, those who had ‘taken the risk of freedom, asking to be given a place in social, political, and economic life which is commensurate with their dignity as free human beings.’”

“We must support those demanding freedoms in our time, like Father Lichtenberg did.”

For the Church, “Earthly considerations shouldn’t discourage principled stances based on eternal truths.  And as history shows, Catholics have often deployed their principles in glorious, glorious service of human dignity.” These include Jacques Maritain,  the bishops of Poland and West Germany in the 1960s,  the bishops of Poland and West Germany, Pope John Paul II, who was unafraid, and Pope Emeritus Benedict. “And just like Pope Benedict, Pope Francis has spoken eloquently about the ‘human ecology’ essential to decent societies.” (Emphasis added.)

“Pope Francis has exhorted the Church to be ‘permanently in a state of mission.’  It’s a hope that resonates with this evangelical Protestant who believes, as the Holy Father does, that those of us given the gift of Christian faith have an obligation to do our best to bless others.” (Emphasis added.)

To be a Church ‘permanently in a state of mission’ has many meanings.  Surely, one of them is to be a Church permanently in defense of basic human rights. A Church permanently in opposition to tyrannical regimes. A Church permanently engaged in support of those who wish to take ‘the risk of freedom’ of which Pope John Paul II spoke, especially, most especially where religious freedom is denied, or limited, or even crushed.” (Emphasis added.)

“As Christians, we all know we live in a fallen world.  That means that those who have responsibility for the common good must sometimes deal with wicked men and indeed with wicked regimes.  But in doing so – in doing so, statesmen representing democracies must never lose sight of the moral truths and human dignity that make democracy itself possible.” (Emphasis added.)

So also should religious leaders.  Religious leaders should understand that being salt and light must often mean exercising a bold moral witness. And this call to witness extends to all faiths, not just to Christians and Catholics.  It’s for leaders of all faiths at – indeed, at every level.” (Emphasis added.)

I call on every faith leader to find the courage to confront religious persecution against their own communities, as well as Father Lichtenberg did against members of other faiths as well.” (Emphasis added.)

“Every man and woman of faith is called to exercise a moral witness against the persecution of believers.  Indeed – we’re here today to talk about religious freedom – the very future of religious freedom depends upon these acts of moral witness.”

Pope John Paul II bore witness to his flock’s suffering, and he challenged tyranny.  By doing so, he demonstrated how the Holy See can move our world in a more humane direction, like almost no other institution.” (Emphasis added.)

May the Church, and all those who know that we are ultimately accountable to God, be so bold in our time.  May we all be so bold in our time.” (Emphasis added.)

Pompeo’s Preceding Comments [3]

Just twelve days before his recent trip to the Holy See, Pompeo published an article in First Things, “a conservative Christian magazine that has called [Pope} Francis a failure as Pope.” https://www.firstthings.com/about

Entitled “China’s Catholics and the Church’s Moral Leadership,” Pompeo’s article vigorously attacked the 2018 agreement between the Holy See and China that recognized the validity of Chinese appointment of some of the Catholic bishops in the country and the current Holy See-China negotiations about renewal of that agreement. (Emphasis added.)

The next day, Pompeo issued the following tweet: “Two years ago, the Holy See reached an agreement with the Chinese Communist Party, hoping to help China’s Catholics. Yet the CCP’s abuse of the faithful has only gotten worse. The Vatican endangers its moral authority, should it renew the deal.” (Emphasis added.)

Reactions to Pompeo’s Comments and Speech [4]

These Pompeo words were seen by an “indignant Vatican . . . as a calculated affront.” As a result, the Vatican denied Pompeo a requested meeting with Pope Francis. Cardinal Pietro Parolin, who, as secretary of state, is the Vatican’s second-ranking official, told reporters that the Pope had not granted the meeting because Francis had “clearly said that he does not receive political figures ahead of the elections.”

Moreover, Pompeo’s subsequent speech at the Holy See can be seen as an indirect challenge to Pope Francis by Pompeo’s talking about the Chinese abuses at great length and the courage of previous popes and Father Lichtenberg, by calling on “every faith leader to find the courage to confront religious persecution against their own communities,” by his using Pope Francis’ own challenge to the Church to be “permanently in a state of mission” as a way to say Francis is not doing that and by Pompeo’s saying, “May the Church, and all those who know that we are ultimately accountable to God, be so bold in our time.”  

In addition,  Pompeo met with “prelates and others who are hostile to Pope Francis.” As a result of these developments, many observers believe “Pompeo’s [recent] visit is as much about the coming [U.S.] presidential election as about China policy. Mr. Pompeo dismissed that suggestion as absurd, but intended or not, his trip signals that President Trump is on the side of those conservative American Catholics who worry about the church’s direction under Francis and think he is soft on China.”

The New York Times also reports that the event at the Vatican where Pompeo gave his speech on September 30 was organized by Callista Gingrich, the U.S. ambassador to the Vatican, and who received warm words from Pompeo at the start of his speech while she sat in the front row with her husband Newt Gingrich, the Republican former Speaker of the U.S. House of Representatives.”

“Mr. Gingrich said that Mr. Pompeo’s piece in First Things has stirred support and ‘probably’ motivated Catholic voters who read it to vote for President Trump. ‘The reaction to his op-ed the other day was very strong.’ Mr. Gingrich, who converted to Catholicism after his third marriage [to Calista] is a co-chair of Catholics for Trump [that] has attacked Mr. Biden over his ties to China and . . . supports Carlo Maria Viganò, the former Vatican ambassador to Washington, who has accused the pope of shielding child abusers and demanded that he step down.”

As he went to the podium for his Vatican speech, Pompeo “gave a pat on the shoulder to Cardinal Raymond Burke, a U.S. leader of the conservative opposition to Francis within the church hierarchy. Burke, who ruled out giving communion to John Kerry during the 2004 presidential campaign, said he believed American voters ‘more and more so’ cared about the issues Mr. Pompeo raised. And when it came to China, he said ‘I know I do.’” (https://en.wikipedia.org/wiki/Raymond_Leo_Burke)

“Thomas Williams, the Breitbart bureau chief in Rome and a consistent critic of Francis who attended the event, argued that there was a clear electoral angle to the nominally diplomatic trip. He said that while he believed Mr. Pompeo genuinely hoped to change the Vatican’s stance on China, any political benefit back home was ‘a welcome and I’m sure sought after side effect.’”

Massimo Faggioli, a professor of theology and religious studies at Villanova University [and a supporter] of Francis, said these Pompeo actions are “an appeal to an electorate that is bigger than the Catholic vote, it’s also the evangelical vote. Being anti-pope helps with these Catholics but also evangelicals.”

“Alberto Melloni, the director of the Foundation for Religious Sciences John XXIII in Bologna, Italy, called Mr. Pompeo’s moves ‘a divisive operation targeted to the American electorate, not to the Holy See.’” Afterwards Pompeo, rejecting the suggestion that his speech was an attack on Pope Francis, said at a press conference, “I wrote that piece to honor the moral authority of the Catholic Church and its capacity to influence and make things better for people all across the world. They have historically stood with oppressed peoples all around the world. The piece was written and our policy has been all along to bring every actor who can benefit the people of China from — to take away the horrors of the authoritarian regime the Chinese Communist Party is inflicting on these people. That was our mission set, and it will remain our mission set. It’s been so long before the election; it will remain so after the election.”

This response was endorsed in a Wall Street Journal editorial with these words: “It is a welcome message from a U.S. Secretary of State, and the Vatican would do well to at least hear him out as it enters its latest negotiations with Beijing.”

All of this leaves this non-Catholic blogger from Minnesota bewildered. However, there should be more diplomatic ways to discuss and negotiate differences with the Holy See.

================================

[1] State Dep’t, Michael Pompeo Speech, Moral Witness and Religious Freedom (Sept. 30, 2020).

[2] In his 2019 speech at the Holy See, Pompeo said, “Because when the state rules absolutely, God becomes an absolute threat to authority.  That’s why Cuba cancelled National Catholic Youth Day back in August [of 2019].”  This statement was erroneous and misleading as discussed in a prior post. (Secretary of State Pompeo Delivers Speech at the Holy See, dwkcommentaries.com (Oct. 4, 2019).)  https://dwkcommentaries.com/2019/10/04/secretary-of-state-pompeo-delivers-speech-at-the-holy-see

[3] Pompeo, China’s Catholics and the Church’s Moral Witness, First Things (Sept. 18, 2020), https://www.firstthings.com/web-exclusives/2020/09/chinas-catholics-and-the-churchs-moral-witness; Pompeo, Tweet (Sept. 19, 2020), https://twitter.com/secpompeo/status/1307366983890018311?s=21.

[4] Horowitz & Jakes, Rebuffed by Vatican, Pompeo Assails China and Aligns With Pope’s Critics, N.Y. Times (Sept. 30, 2020), https://www.nytimes.com/2020/09/30/world/europe/pompeo-pope-francis-china.html; Winfield, Pompeo urges Vatican to condemn human rights abuses in China, Wash. Post (Sept. 30, 2020), https://www.wsj.com/articles/pompeo-and-the-pope-11601507813?mod=searchresults&page=1&pos=2; Morelio, Harlan & Shih, Pompeo and Vatican officials face off over negotiations with China, Wash. Post (Sept. 30, 2020), https://www.wsj.com/articles/pompeo-and-the-pope-11601507813?mod=searchresults&page=1&pos=2; Winfield, Pompeo, Vatican talk China after tensions spill out publicly, Wash. Post (Oct. 1, 2020), https://www.washingtonpost.com/politics/pompeo-meets-with-vatican-after-us-china-tensions-spill-over/2020/10/01/1d9b1c16-03d4-11eb-b92e-029676f9ebec_story.html.