The Court Telling Texas NO on Barring Refugees

Federal Court Declines to Bar the Resettlement of

Syrian Refugees in Texas

02/26/2016

FAS: In a decision issued on February 8, 2016, a federal district court denied the State of Texas’s request that the federal

government and a private refugee relief organization be temporarily barred from resettling Syrian refugees within the

state pending resolution of Texas’s challenge to such resettlement. Texas had filed this suit in December 2015, after

terrorist attacks in Paris, France and San Bernardino, California, perpetrated by persons with ties or allegiance to the

Islamic State, due to concerns that terrorists could enter the United States through the refugee resettlement program.

The court’s decision focused on the standards that plaintiffs must meet to obtain a preliminary injunction, discussed

below. However, in so doing, the court construed language in Section 412 of the Immigration and Nationality Act

(INA) requiring the federal government to “consult regularly … with State and local governments” about refugee

placement. The court’s reading of this provision could have implications for certain congressional proposals to give

states greater control over refugee resettlement.

Overview of the Court’s Decision

The court denied the preliminary injunction, in part, because it found that Texas had failed to establish a substantial

threat of irreparable injury if the federal government and the private refugee relief organization were allowed to resettle

Syrian refugees in Texas. Such a showing is required for a preliminary injunction, along with a showing that (A) the

party seeking the injunction has a substantial likelihood of success on the merits; (B) the alleged injury, if the injunction

is denied, outweighs any harm that would result if the injunction is granted; and (C) the grant of an injunction will not

disserve the public interest.

In finding that Texas failed to meet its burden of showing irreparable injury, the court noted that the evidence produced

by Texas showed only that “Syrian refugees pose some risk.” Texas did not, in the court’s view, demonstrate that

terrorists have infiltrated the refugee program, or that the particular individuals whose settlement Texas sought to block

are refugees “intent on causing harm.” It thus found the evidence “insufficient” to establish a substantial risk of

irreparable injury. The court similarly rejected Texas’s argument that it was irreparably harmed because the defendants’

failure to provide Texas with detailed information about any refugees settled in Texas deprived Texas of an alleged

statutory right to foreknowledge” of refugees’ backgrounds that had been created by INA §412’s requirement that

federal agencies consult with state and local governments about refugee placement. The court further found that a

clause in Texas’s contract with the relief organization, which purported to establish a presumption of irreparable harm

if the organization were to breach the contract was immaterial, since the clause is not binding on the court and does not,

in itself, justify the “extraordinary relief” of a preliminary injunction.

The court also found that Texas was unlikely to succeed on the merits of its challenge to the refugee resettlement plans

because “it has no viable cause of action” against the federal government. Texas’s argument here had been based, in

part, on its view that the federal government’s actions in resettling refugees in Texas run afoul of INA § 412, which, in

relevant part, provides that federal officials:

shall consult regularly (not less often than quarterly) with State and local government and private nonprofit

voluntary agencies concerning the [refugee] sponsorship process and the intended distribution of refugees among

the States and localities before their placement in those States and localities.

In particular, Texas took the view that this provision, along with the terms of its contract with private relief

organization, required it to receive detailed demographic, medical, security, and other information about individual

refugees before they are resettled in Texas.

The court did not reach the merits of this argument, instead finding that Texas cannot sue to enforce INA § 412 because

this provision does not create a private right of action. The court based this conclusion on Supreme Court precedents

finding that private rights of action to enforce federal law must be created by Congress, and the “judicial task is to

interpret the statute Congress passed to determine whether it displays an intent to create” such a right. In INA § 412,

the court found no such intent since the provisions of this section do not “confer any rights directly on the States.”

Instead, they are framed as a “general … command to a federal agency” to federal officials to consult with their state

counterparts. Such general prohibitions or commands have been seen as insufficient to create private rights of action in

other cases.

Implications of the Court’s Decision

The court’s finding that INA § 412 does not create a private right of action could have implications for certain proposals

in the 114th Congress to give states and localities greater input in the refugee resettlement process. Many proposed bills

would expressly authorize state officials to decline the resettlement of particular refugees within their jurisdictions, a

power which they lack under current law, as discussed in an earlier Sidebar posting. However, some bills take a

different approach and instead require that the federal government give state and local officials certain notices before

placing refugees within their jurisdiction. If Congress wants to ensure that states and localities can enforce such notice

requirements, it may wish to draft the latter type of measures in such a way that the statute can be seen as conferring

rights directly on the states and local governments, rather than imposing general commands on federal agencies. Only if

measures are so drafted would states and localities potentially be able to enforce the notice requirements (and even then

other limits on the federal courts’ jurisdiction could apply, such as the mootness doctrine, if for example, the refugees

are already settled within the state).

 

Pentagon’s Plan to Close Gitmo

Read it and permission granted to shake your head.

DOD Releases Plan to Close GTMO

02/23/2016

FAS: Conceding that “the politics of this are tough,” President Obama announced this morning the release of the Department

of Defense (DoD) plan to close the prison facility at the U.S. Naval Station, Guantanamo Bay, Cuba. The document

reiterates current procedures for transferring detainees to their home countries or other countries abroad, but perhaps

more controversially, promises to “work with Congress to relocate [certain detainees] from the Guantanamo Bay

detention facility to a secure detention facility in the United States, while continuing to identify other non-U.S.

dispositions.” The plan does not specify a particular location within the United States where detainees would be housed

(although it states 13 possible sites have been identified), but emphasizes the Attorney General’s 2014 conclusion that

relocation to the United States would not risk ascribing to transferees additional rights under the U.S. Constitution or

immigration laws. (This analysis, required by section 1039 of the National Defense Authorization Act for FY 2014, is

attached as an appendix to the plan).

Predicting that the closure of the detention facility will save between $140 million and $180 million over FY 2015

operating costs, the plan lays out how the Administration hopes to resolve the disposition of the 91 detainees remaining

at Guantanamo Bay. The U.S. Government, it says, is pursuing three lines of effort:

1. identifying transfer opportunities for detainees designated for transfer;

2. continuing to review the threat posed by those detainees who are not currently eligible for transfer and who are

not currently facing military commission charges; and

3. continuing with ongoing military commissions prosecutions and, for those detainees who remain designated for

continued law of war detention, identifying individualized dispositions where available, including military

commission prosecution, transfer to third countries, foreign prosecutions or, should Congress lift the ban on

transfers to the United States, transfer to the United States for prosecution in Article III courts and to serve

sentences.

The plan acknowledges that current law prohibits the transfer of detainees into the United States. Current legislative

barriers to the transfer of Guantanamo detainees to the United States include two provisions in the 2016 NDAA (P.L.

114-92). Like previous provisions in national defense authorization and appropriations legislation (beginning with

section 14103 of the 2009 Supplemental Appropriations Act (P.L. 111-32)) section 1031 of the 2016 NDAA prohibits

the use of funds for transfer or release of individuals detained at United States Naval Station, Guantanamo Bay, Cuba,

to the United States. This prohibition expires on December 31, 2016. Section 1032, also reiterating prohibitions from

previous years, prohibits until December 31, 2016, the use of funds to construct or modify facilities in the United States

to house detainees transferred from Guantanamo Bay.

These provisions are also carried over in the 2016 Consolidated Appropriations Act (Omnibus) (P.L. 114-113), Division

B, Title V (Commerce, Justice and Science) sections 527 and 528, and Division C, Title VIII (Department of Defense)

sections 8103-8104, except that the prohibitions cover funds appropriated in “this or any other Act.” The transfer

provision is repeated in Division F, Title V (Homeland Security) section 532. Title IV, section 412 of Division J

(Military Construction and Veterans Affairs) repeats the prohibition on building modifications or construction in the

United States to house Guantanamo detainees. Title VI of Division M (Intelligence) repeats the prohibitions with

respect to the Intelligence Community.

The plan appears to be a response to a 2016 NDAA provision that directed DOD to submit a comprehensive detention

strategy, which included such elements as an assessment of possible detention sites within the United States. Some

have criticized the DoD plan as failing to address sufficiently the required elements of the report. Additionally,

although nothing in the DoD plan suggests that the White House is considering using an executive order to bypass the

statutory restrictions and transfer detainees into the United States, it has been suggested that the President has

constitutional authority to close the detention facility despite legislative prohibitions currently in force. Others,

however, disagree, and the Joint Chiefs of Staff have denied in a recent letter to certain Members of Congress that there

is any intent to take actions contrary to statutory restrictions.

 

 

More Benghazi Witnesses and Emails

Select Committee Announces Scheduled Testimony of Additional Witnesses

Washington, D.C. — Select Committee on Benghazi Chairman Trey Gowdy (SC-04) released the following statement announcing the upcoming private testimony of additional witnesses:

“Our committee continues to break an immense amount of new ground as we compile the most comprehensive accounting of what happened before, during and after the terrorist attacks in Benghazi. As we approach our 80th witness interview and work to release our report and recommendations before summer, it’s time for the administration to turn over the records this committee requested nearly a year ago. The American people and the families of the victims deserve the truth, and I’m confident that the value and fairness of our investigation will be abundantly clear to everyone when they see the report for themselves.”

The following witnesses will be questioned in private and bring the total number of witnesses interviewed to 79, including 62 who had never before been interviewed by a congressional committee (these are denoted with asterisks). This schedule is not comprehensive and is subject to change.

 

Thursday, February 25, 2016

Witness:  Gentry Smith, former Deputy Assistant Secretary for Countermeasures within the State Department’s Bureau of Diplomatic Security*

 

Tuesday, March 1, 2016

Witness: An eyewitness to the attacks from the national security community

 

Thursday, March 3, 2016

Witness: James “Sandy” Winnefeld, Jr., former Vice Chairman of the Joint Chiefs of Staff*

 

Friday, March 4, 2016

Witness: Susan Curley, Managing Director of the State Department’s Office of Management Policy, Rightsizing and Innovation*

***

Reminder: Just last week ~

State Department Turns Over 1,600 Newly-Discovered Clinton Documents to Benghazi Committee

FreeBeacon: The State Department turned over 1,600 pages of previously undisclosed documents related to Hillary Clinton and Libya to the House Benghazi committee on Friday, a month after it revealed the existence of the documents in an unrelated court case.

The House Select Committee on Benghazi announced it received the records on Friday, adding that the State Department has yet to fully comply with document requests the committee made nearly a year ago.

“Today the State Department turned over more than 1,600 pages of new documents related to former Secretary Clinton and Libya,” the committee said. “The State [Department] claimed in a January 8th court filing that it only recently discovered these new documents from the Office of the Secretary.”

In January, the State Department disclosed in a court filing that it had recently discovered “thousands” of new documents related to Clinton’s tenure and the Benghazi attack. The filing was in response to a lawsuit by the conservative watchdog group Judicial Watch, which has been seeking records from Clinton’s time at the State Department.

The documents may be released in response to public records requests, but the copies received by the Benghazi committee are not redacted in regard to Libya and Benghazi issues.

The records come from the Office of the Secretary, which would likely include Clinton’s Chief of Staff Cheryl Mills, top aide Huma Abedin, and Clinton’s deputy chief of staff and scheduler.

The Benghazi committee announced last week that it had conducted its 75th interview as part of its investigation into the 2012 Benghazi attack, interviewing former Director of the National Counterterrorism Center Matt Olsen. The committee recently interviewed Patrick Kennedy, the under secretary of state and a key member of Clinton’s inner circle. Most of the committee’s interviews have been conducted privately.

“While there are still witnesses to talk to and documents to review, these significant breakthroughs are big wins that will help the committee complete the most comprehensive investigation into what happened before, during and after the Benghazi terrorist attacks, and release a report as soon as possible,” committee chairman Rep. Trey Gowdy (R., S.C.) said in a statement announcing the panel’s progress last week.

Iran Denies U.S. Travel Visas

Oh, but wait to whom exactly? Investors? Nah…to members of Congress…..uh huh But we normalized relations right?

Iran Denies Travel Visas to U.S. Lawmakers

FreeBeacon: Iran has denied travel documents to three U.S. lawmakers who sought to observe the country’s Friday elections and ensure that they were carried out fairly, according to information provided to the Washington Free Beacon.

The Iranian regime delayed for weeks and ultimately ignored multiple visa requests by three House lawmakers who sought permission to travel to the country in order to monitor the elections held last Friday. Observers say the elections ushered in another crop of hardline, anti-American officials.

The congressmen, including Reps. Mike Pompeo (R., Kan.), Lee Zeldin (R., N.Y.), and Frank LoBiondo (R., N.J.), personally delivered their visa applications to the Iranian Interests Section of the Pakistani embassy in Washington, D.C., several weeks ago.

The lawmakers sought to observe the recent elections, as well as visit the country’s nuclear sites and meet with American hostages currently being held in Iran. While at the embassy, they provided Iranian diplomats with a list of their priorities for the visit.

The Iranian government failed to respond to these requests despite assurances from officials that the matter would be dealt with in a timely fashion. Iran has yet to explain why it did not respond to the congressmen.

Pompeo and the other lawmakers said Iran’s behavior indicates that it has something to hide from the United States and that the country cannot be trusted to uphold promises made under the recent nuclear agreement. They also criticized the Obama administration for not advocating on their behalf.

“Our straightforward and sincere visa applications have been met with mockery and delay from Iran, revealing this regime’s desire to hide from the American public,” Pompeo, a member of the House Permanent Select Committee of Intelligence, told the Free Beacon on Monday. “I am hopeful that the next U.S. president will critically examine the utility of President Obama’s nuclear deal and put America’s interests ahead of political legacy.”

Pompeo further described Friday’s election in Iran as a “sham” that served to enable the country’s hardline government.

“Because the fanatical Ayatollah holds ultimate power, February 26 was more of a selection of the next group of radicals by the current radicals, than a true election by the people,” he said. “Iranian state television has declared a national victory for the hardliners—politicians who declared that Israelis ‘aren’t human’ and who called for the execution of the pro-democracy Green Movement leaders were selected.”

Early election results indicate the hardliner candidates dominated the election, in part because most moderates were disqualified from participating in advance.

Iran’s Guardian Council, which is controlled by the Supreme Leader, is believed to have disqualified around 60 percent of the potential candidates, including around 99 percent of those viewed as reformists.

“The bulk of the disqualified candidates represent comparatively pragmatic elements of the ruling elite,” Saeed Ghasseminejad, an Iran expert at the Foundation for Defense of Democracies, explained in a policy briefing last week. “On the other hand, most of the approved contenders are radical revolutionaries—devotees of the supreme leader with close ties to the Islamic Revolutionary Guard Corps (IRGC). It is mathematically impossible for the less-hardline factions to win at the ballot box.”

“As a result, those supposed ‘moderates’ who were approved have been forced to round off their party lists with hardline candidates,” Ghasseminejad said.

LoBiondo and Zelden said that Iran’s refusal to grant them travel documents is a sign that the country is not seeking to boost ties with the U.S. as a result of the nuclear deal.

“In this supposed ‘new era of openness and cooperation,’ it is disappointing—but not surprising—that our request to visit Iran and monitor these elections was met with a closed door,” said LoBiondo, chair of the House’s CIA subcommittee.

“Furthermore, with the implementation of the nuclear deal and with Americans still detained in Tehran, it is perplexing why the Obama administration refuses to advocate on behalf of our official Congressional visit to Iran on such critical national security issues.”

“It’s unfortunate that Iran has not yet granted our request for visas to observe Iran’s election and for other productive purposes. The American people and rest of the free world still deserve first hand confirmation of what present day reality is in Iran. I look forward to Iran showing that it is a partner in peace by issuing our visas so that we can meet with Iranian leadership, visit nuclear sites, and meet with American hostages,” said Zeldin, a member of the House Foreign Affairs Committee.

*** Western corporations have been doing business in Iran for decades despite sanctions, especially so since 2013;

US-listed companies doing business in Iran: $540 million in revenue and counting

QZ: Economic sanctions on Iran have been getting tougher in recent years, and the United States tightened the screws a little more last summer with the Iran Threat Reduction and Syria Human Rights Act (PDF).
One unusual aspect of that law is that it started requiring companies traded on US stock exchanges to disclose more about the business they’re doing with Iran, and the Securities and Exchange Commission created the clunkily named IRANNOTICE filing to help them do it.
Companies were already beginning to disclose more about their ties to Iran, Syria, Cuba and other countries non grata (at least in US eyes) under pressure from the SEC. Now they must be systematic about it—and disclose gross revenue and net profits wherever possible.
Quartz’s partial tally: more than $540 million in gross revenue and $15.5 million in profits for US-listed companies from their business with Iran in 2012—and that’s just from 30 or so large companies that have made the disclosures since mid-February.
The numbers underscore the difficulty of maintaining tight sanctions in a global economy. But they also hide a lot of nuance and variation.
Companies based outside the US accounted for 99% of the revenue and three-quarters of the profit. (They made the disclosures because they list shares or American Depository Receipts on US markets.)
In fact, a big chunk of the total came from one company: $414 million in revenue for Statoil ASA, the Norwegian oil and gas company, from Statoil’s contracts with the National Iranian Oil Co.
Statoil also said it has terminated its agreements with Iran, abandoned it licenses there, and “will not make any investments in Iran under present circumstances.”
That’s a common refrain in the disclosures we saw: Many, though not all, of the disclosed transactions reflected companies wrapping up old business en route to cutting most or all ties with the Islamic republic. Typically, the transactions hadn’t been prohibited before the new rules kicked in.
Among the other noteworthy disclosures:
ING Groep said it collected €58 million in revenue and €395,000 in profits from repayment of old loans and a collection of frozen Iranian bank accounts. (Of course, in June, ING also settled allegations by the US Treasury and federal prosecutors that it hid transactions with Cuba and helped finance some sales to Iran, by agreeing to pay $619 million in penalties. It if keeps its nose clean for 18 months, the prosecutors will drop their charges.)
The biggest disclosure by a US company came from auto-parts maker TRW Automotive Holdings, which said it collected $8.3 million in revenue and $377,000 in profits from non-US subsidiaries that “sold products to customers that could be affiliated with, or deemed to be acting on behalf of, the Industrial Development and Renovation Organization” — one of the Iranian entities on the federal government’s massive list.
Under broad rules defining corporate “affiliates,” TRW’s transactions forced investor Blackstone Group to file its own disclosure. And Carlyle Group disclosed that a European portfolio company, Applus Servicios Technologicos, collected €1.19 million in revenue (and €200,000 in profits) from Iranian customers “that could be affiliated with the Industrial Development and Renovation Organization.” Similarly, Hertz had to report that a French affiliate of investor Clayton, Dubilier & Rice had received €2.5 million in payments from Iranian interests to an account at Bank Melli last year. And Apollo Global Management disclosed that portfolio company LyondellBasell Industries (Apollo funds owned 19.6%) reported collecting €4.2 million in revenue and €2.4 million in profit last year from Iranian entities.
Thomson Reuters reported $2.4 million in revenue and $426,000 in profits from selling news and intellectual-property and financial data to Iran-linked entities.


Other big Iran-related disclosures included GlaxoSmithKline at £19.7 million in revenue and £2.8 million in profits, and AstraZeneca at $14 million in revenue and $6 million in profits, both through distributors. Glaxo said that, after a review of the business, it “intends to supply only products of high medical/public health need (as determined using criteria set by the World Health Organization) from its Pharmaceuticals and Vaccines businesses.” AstraZeneca says it has a US license to do some business with Iran, but so far has sold only drugs from outside the US to distributors there.
Amusingly, at least for observers, there doesn’t seem to be a lower threshold to the disclosure requirement. So Dell, the Texas computer company, disclosed a whopping £106.13 ($169.90 at the time) in revenue from Iran, collected by a United Kingdom subsidiary to Quest Software, which Dell said last year it would acquire. The fees were paid by a unit of Bank Melli, which the US government links to Iran’s nuclear and missile programs, for maintenance licenses on software that helps search email and other communications. Drafting Dell’s 374-word disclosure probably cost the company more than the licenses brought in. (Dell says it canceled the service contract and won’t do further business with Bank Melli.)
Other picayune disclosures include Hyatt Hotels, which said the Park Hyatt Hamburg collected $9,300 for 33 room nights under a preferred-rate arrangement with Europaeisch-Iranische Handelsbank, which is on the US Treasury’s Blocked Persons List. And CME Group said it received $3,150 in revenue for selling market data to Iran’s Government Trading Group and a European subsidiary of the National Iranian Oil Company.

Wall Street to Clinton Foundation: $40 Million

For what exactly? A question likely to never fully be answered…Unless we get the rest of ‘those’ emails.

Clinton Foundation Discloses $40 Million in Wall Street Donations

Hillary Clinton is facing more questions about her close ties to Wall Street financial institutions. Last week, the New York Times urged Clinton to release transcripts of her highly-compensated speeches to Wall Street firm Goldman Sachs.

Breitbart: The paid speeches are just a slim chapter of her relationship with financial titans. According to Clinton Foundation records, Wall Street financial institutions have donated around $40 million to the eponymous family foundation.

As a non-profit, the Clinton Foundation isn’t legally required to disclose its donors or contributions. The Foundation has publicly disclosed some contributions on its website. It only provides ranges for contributions, e.g. $1-5 million, and doesn’t detail when the contribution was made or for what purpose, if any.

Here’s the chart of contributions from Wall Street to the Clinton Foundation.

Four major Wall Street institutions stand out; Barclays, Barclays Capitol, Goldman Sachs and Citi. Each are listed as given between $1 million and $5 million to the Foundation. Citigroup, UBS, Banc of California and Bank of America are listed as giving up to $1 million to the Foundation.

All together, contributions from readily identifiable Wall Street institutions to the Foundation total somewhere between $11 million and $41 million in contributions. If we assume the donations fall in the middle of the ranges disclosed by the Clinton Foundation, the contributions would total just under $30 million.

As with most things involving the Clintons, the devil is in the details. This total of contributions does not include those made by individuals with strong Wall Street ties. It also does not necessarily represent the total amounts contributed to the Foundation from those donors listed. It only accounts for the donations which the Foundation has chosen to disclose.

The failure of the Foundation to include any information on the timing of the donations is especially worrisome. In terms of donor relationships, there is a real difference between a one-time gift of $1 million and an ongoing gift of $200,000 for 5 straight years. The total dollar amount may be the same, but an ongoing gift usually requires a more substantive relationship between the Foundation and the donor.

There is, of course, an added dimension to the timing issue with the Clintons. During the life of the Foundation, Hillary Clinton has been a US Senator, Secretary of State and two-time candidate for President.

When the Clinton Foundation discloses that the “Friends of Saudi Arabia” contributed $1-5 million, it begs the obvious question of when that donation was made. The specific date of that donation is particularly important, given Clinton’s considerable focus on the Middle East while she was Secretary of State.

It is also important to note that these contributions are completely seperate from the paid speeches made by Bill and Hillary Clinton. In 2013 alone, Hillary earned just over $3 million in paid speeches to financial firms and institutions.

These contributions, obviously, also don’t include direct contributions made by Wall Street institutions and individuals to either of Clinton’s Presidential campaigns.

In a recent Democrat debate, Clinton’s sole challenger, Sen. Bernie Sanders (I-VT) challenged her, “Can you really reform Wall Street when they are spending millions and millions of dollars on campaign contributions…And when they are providing speaking fees to individuals?”

He should have added that Wall Street has showered Clinton’s family foundation with millions in contributions.

Wall Street, and the financial industry generally, is not simply a special interest contributing to Clinton’s political ambitions. It is woven into the very fabric of the Clinton’s lives. It fuels her politial ambitions, provides employment to Bill and Hillary through generous speaking fees, and it underwrites a significant amount of the work undertaken by the family’s Clinton Foundation.

If the Clintons were any closer to Wall Street and financial firms, they would probably have to file SEC disclosures. They could very well be the first American family with their own Dodd-Frank regulation.