Lunch Address: The United States' Role in International Human Rights under the Trump Administration.

• Author: Massimino, Elisa
• Position: International Law and Policy in the Age of Trump

Good afternoon. It is a special treat to be reunited with my former Human Rights First colleague, Professor Avi Cover. I was sorry to have to miss dinner last night at the Rock and Roll Hall of Fame, but I am happy I could be here today with some real international law rock stars. Dean Scharf has built an amazing institution here, and it is a privilege to be part of this important discussion.

Now is an incredibly important time to be a lawyer, and the kind of lawyer you will be is especially important. We are here today to talk about the impact of the Trump administration on international law. But as I learned during the fight against torture in the Bush administration, sometimes lawyers--who they are, their guiding principles, their personal qualities and commitment to the rule of law--can matter even more than the law.

This morning, John Bellinger set out the low expectations that he and others had of this administration based on what candidate Trump said during the campaign, and we are witnessing every day the fulfillment of that prophecy. President Trump has, as John pointed out, praised dictators, withdrawn from the Human Rights Council, and failed to appoint an assistant Secretary of State for human rights. (1) So, I have to admit that it feels a bit surreal talking about international law and the Trump administration. We have a president who has a hostile relationship with facts and seems mostly disinterested in law, international or otherwise. I have worked on human rights in Washington for more than thirty years, and one thing I have learned is that arguing for policies based on international legal obligations is always a tough road, even in the most sympathetic political environment. Today, with an administration that sees little benefit in the rules-based international order that the United States did so much to create, it seems downright quaint.

There is a good reason that Orwell is back on bestseller lists. (2) And that David Simon is adapting Phillip Roth's The Plot Against America for television. (3) And that Yeats' poem The Second Coming--which foresaw the rise of fascism--is a favorite on Facebook. (4) "Things fall apart," Yeats wrote. "The centre cannot hold." (5)

Yet so far, the center seems to be holding. Our democratic institutions appear, for the most part, to be up to the challenge. The media, the courts, and Congress have, to varying degrees, served as checks on the Trump administration's efforts to impose its vision on the country. (6)

This is not to minimize the damage Trump has done and will still do. Still, we are not on the brink of a dictatorship. President Trump has not significantly expanded the scope of his power nor neutralized opposition. It appears that our country will emerge from the Trump years--I know it feels like forever, but it has only been twenty months, so let us not call it an "age" just yet--capable of a course correction. That correction may well begin before Trump leaves office. The mid-term elections are in fifty-three days.

But the Trump presidency should be a wakeup call. We cannot take the institutions of our democracy, including the rule of law, for granted. We have to fight to preserve and restore them. So whether President Trump is hostile or just indifferent to international law, there is ample evidence that he is violating it.

I have spent most of my career as an activist, so I have a bias toward action and against spending a lot of time admiring the problem. My instinct is to focus on what we are going to do about it. That is what I want to focus on this afternoon. John did a great job this morning laying out the challenges we are facing. So I want to try to link the last panel with the next one and focus my remarks on the connection between two issues that have occupied much of my attention over the last fifteen years: refugee protection and national security. It seems self-evident that refugee protection, like the broader issue of immigration, is linked to national security. After all, the United States has a clear interest in ensuring that dangerous people do not enter the country. Yet the intense political connection is relatively new. I do not want to overstate this point: At times in our history, debates over whether to take in immigrants and refugees have included national security questions--especially when the immigrants and refugees come from countries the United States regards as enemies. (7) More often, however, politicians and others have sought to block immigrants and refugees not on national security grounds but because they pose a supposed threat to the American social fabric, to the jobs of American workers, or to government budgets.

That changed after 9/11, which led to a massive increase in funding for immigration enforcement, and stepped up efforts to block, detain, and deport immigrants who pose a security risk. (8) In the months after 9/11, Congress passed the Patriot Act, the Homeland Security Act, and the Enhanced Border Security and Visa Entry Reform Act. (9) There were immediate implications for immigrants from the Middle East and Southeast Asia, and before long, those from Latin America were similarly affected. (10) And they included refugees. As legal scholar Teresa A. Miller notes, "After the attacks ... zero-tolerance enforcement of immigration laws was extended to immigrants who had not passed through the criminal justice system, such as asylum seekers and undocumented immigrants." (11) The issue of refugee protection became entangled in the so-called "war against terror." (12) 9/11 gave us, for example, material support provisions, under which the government has treated victims of terrorism as if they were terrorists. (13)

Ever since 9/11, politicians of both parties have cited security threats real, exaggerated, and imagined, to slam the door on refugees. (14) It is important to remember that the mounting hostility toward asylum seekers and other refugees predates the Trump presidency, but he has taken it to dangerous new depths. I have been working in this field for three decades, and in that time there have been a lot of changes in law and policy, many of them ill-considered and grounded in a fundamental misunderstanding of who refugees are and why they flee. But I have never seen refugees--people who are running for their lives from persecution and violence--demonized in the way we are seeing today. President Trump is exploiting real problems--the threats from terrorist groups like ISIS and criminal gangs like M-13--to sell shameful policies that undermine America's historical commitment to refugees and inflict horrific suffering on people--many of them children--who have already suffered unspeakable harm. Indeed, as his official National Security Strategy shows, he sees immigrants and refugees as a core threat to national security. (15) That document was hailed for being in the bipartisan mainstream, yet his focus on the alleged security danger posed by immigrants is a departure from prior administrations of both parties. (16) Declaring that "[o]penness imposes costs, since adversaries exploit our free and democratic system to harm the United States," President Trump advocates "enhancing the screening and vetting of travelers, closing dangerous loopholes, revising outdated laws, and eliminating easily exploited vulnerabilities" and vows to "reform our current immigration system, which, contrary to our national interest and national security, allows for randomized entry and extended-family chain migration." (17)

This is a challenging issue for those of us who believe the United States should remain a safe haven for people fleeing persecution. There is a perpetual reservoir of anti-immigrant sentiment that can be tapped into, and the victims have little political clout. Moreover, immigration enforcement authorities have enormous power that they exercise largely in the shadows, and it is difficult to shine a light on their abusive or illegal actions, especially when Congress is not adequately performing its oversight role. (18)

We have to do a better job of pushing back. We need to work harder to debunk the lies used to demonize refugees and depict the asylum system as vulnerable to terrorist groups and other threats. And we need to articulate an affirmative national security case for protecting refugees.

I am going to do that. But first I want to review the history of American leadership on refugee protection, so that it is clear what is at stake, and I will also discuss the mounting threats to refugees, so that it is clear what we are up against.

Following the mass displacement and inhumane treatment of refugees after World War II, the world came together to produce the 1951 Refugee Convention. (19) The United States played a key role in crafting the treaty; the late Lou Henkin, a longtime member of Human Rights First's board, led the U.S. delegation and was one of the chief architects of the convention. (20) Its purpose was to protect the right to seek and enjoy asylum enshrined in the 1948 Universal Declaration of Human Rights. (21)

The U.S. commitment to refugees grows out of our history and is a core aspect of our identity. We are a nation founded by refugees fleeing religious persecution. (22) If we stopped providing protection to the persecuted, the United States would, in a very real sense, stop being the United States.

Of course, the American record on refugees is not unblemished: there have been failures of leadership, and decisions about who is deserving of protection have sometimes been tainted by politics and racism. Nonetheless, the United States has long been a leader in this area based on the strength of a bipartisan consensus that, to put it in contemporary terms, protecting refugees is part of the American brand.

Consider the U.S. response to the mass exodus of refugees following the war in Vietnam. Among American political leaders, there was not an overwhelming consensus in favor...