Departing State lawyer: Biden’s Title 42 use ‘illegal’ and ‘inhumane’ | #cybersecurity | #cyberattack


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A senior State department official is leaving his role in the Biden administration. And on his way out, he has sent a scathing internal memo criticizing the president’s use of a Trump-era policy to expel migrants from the southern border.

In a detailed legal memo dated Oct. 2 and obtained by POLITICO, HAROLD KOH, a senior adviser and the sole political appointee on the State Department’s legal team, called the use of the public health authority known as Title 42 “illegal,” “inhumane” and “not worthy of this Administration that I so strongly support.”

“I believe this Administration’s current implementation of the Title 42 authority continues to violate our legal obligation not to expel or return (‘refouler’) individuals who fear persecution, death, or torture, especially migrants fleeing from Haiti,” the memo reads. He added that “lawful, more humane alternatives plainly exist.”

Koh, the State Department legal adviser from 2009-2013 during the Obama administration, penned the memo as he is stepping away from his day-to-day job and taking a new role at Oxford University. An administration official said Koh would be staying on in a consulting role. Reached by phone, Koh declined to comment.

Koh’s letter has been circulating across the administration over the past 48 hours. It is the latest example of internal strife within the Biden administration over its immigration policy, with some officials believing the president has continued too many of the policies implemented by the Trump administration out of fear of Republican attacks.

At the center of that debate has been the continuation of “Title 42,” the shorthand for a law that gives the administration authority to bar people from entering the country during a health crisis. The administration has used Title 42 to kick out thousands of migrants without allowing them to seek asylum, which, critics say, is in violation of U.S. and international law.

Despite such internal dissent, the White House and State Department argue that their hands are tied in amending Title 42 and that the continued use of the authority was being driven by public health determinations made by the Centers for Disease Control and Prevention.

“Title 42 is a public health authority, not an immigration one, and that authority rests with the [CDC],” a White House official said. “The CDC has determined that the continued expulsion of certain individuals under Title 42 is necessary due to the risks of transmission and spread of COVID-19 in congregate settings, such as U.S. Customs and Border Patrol stations, as well as the threat from emerging variants.”

On Saturday, the CDC assessed that invoking Title 42 “continues to be necessary at this time.” The legal battles are ongoing.

In the memo, Koh suggested four new policies the administration should execute. He called for suspending all Title 42 flights, “especially” to Haiti; for clearly announcing to people aboard such flights where they are going; for instituting the standard of a “reasonable possibility of fear” test for deportation screenings; and to see if some of the Haitian immigrants may have legal status or family ties in other countries.

Read the full story on Koh’s memo, by your host and Alex Thompson.

CHINA’S RECORD-BREAKING TAIWAN HARASSMENT: China flew 52 warplanes toward Taiwan on Monday, the highest-ever number on record for a show of force, The Associated Press’ HUIZHONG WU reported. The 34 J-16 fighter jets and 12 H-6 bombers caused the Taiwanese Air Force to scramble to track the opposing aircraft.

China has sent warplanes close to Taiwan every day since China’s National Day on Friday, when it flew 38 of the aircraft near the island nation. Beijing then sent 39 warplanes on Saturday, the highest total since Taiwan started releasing figures in September 2020; and another 16 on Sunday.

In a major July 1 speech, Chinese President XI JINPING said “[r]esolving the Taiwan question and realizing China’s complete reunification is a historic mission and an unshakable commitment of the Communist Party of China.” Analysts argue the shows of force are meant as a message to three audiences: the Chinese public, the Taiwanese government and President JOE BIDEN.

“This is the latest manifestation of an ongoing psychological warfare campaign by the PRC to intimidate Taiwan but, even more important, to arouse concern in the U.S. and its allies,” said AARON FRIEDBERG, a former national security aide to Vice President DICK CHENEY and currently a professor at Princeton University. “The purpose is to dissuade us from doing things that we fear might further antagonize Beijing — selling more arms to Taiwan, cooperating more closely on defense planning.”

“We will see more of this,” he said.

“These Chinese incursions are meant to demonstrate both the will and capability to eventually retake the island by force. They are also meant to show that efforts to blunt this reality will be futile. The U.S. needs to demonstrate, through more than words, that these Chinese provocations are unacceptable,” said a House GOP aide.

The United States responded Sunday via a statement from State Department spokesperson NED PRICE, who said the administration “is very concerned by the People’s Republic of China’s provocative military activity near Taiwan, which is destabilizing, risks miscalculations, and undermines regional peace and stability. We urge Beijing to cease its military, diplomatic, and economic pressure and coercion against Taiwan.”

Last year, China flew warplanes inside Taiwan’s air-defense identification zone 380 times. In 2021, that number is already at 667.

TICE FAMILY URGES BIDEN ACTION: The parents of AUSTIN TICE, the journalist and former Marine detained in Syria, penned an open letter to the White House today, demanding the president make Tice’s return a higher priority for the administration.

“Our entire family urges you to prioritize Austin’s secure release and safe return to us and to the country he loves,” Debra and Marc Tice wrote. “Mr. President, Austin needs you to step out and boldly lead. Please say our son’s name in public. Talk about Austin Tice; let people in Washington and Damascus know you are thinking of him. Put courage in their hearts to do the right thing. We have no doubt your family will support you, and our government will unite behind you.”

The Tices also requested a meeting between their family and Biden’s to talk about Austin and “send a strong message across our country and overseas.” Tice has been held hostage in Syria for nine years, and efforts by U.S. officials to bring him home so far haven’t worked.

A National Security Council spokesperson responded to the letter after a NatSec Daily query: “We continue to emphasize that Austin’s release and return home are long overdue. The Biden administration continues to call on Syria to help release Austin Tice and every American unjustly detained in Syria. We are committed to following all avenues, including engagement with anyone who can help with Austin’s release and return home.”

“We have been and remain open to direct communication with anyone who can help us bring Austin and other American hostages home,” the spokesperson added.

INSIDE CIA’S SECRET KABUL BASE: The Taliban opened up a secret-yet-infamous CIA site near Kabul to reporters, and The Guardian’s EMMA GRAHAM-HARRISON has the goods.

“The cars, minibuses and armored vehicles that the CIA used to run its shadow war in Afghanistan had been lined up and incinerated beyond identification before the Americans left. Below their ashy grey remains, pools of molten metal had solidified into permanent shiny puddles as the blaze cooled,” she wrote. “The faux Afghan village where they trained paramilitary forces linked to some of the worst human rights abuses of the war had been brought down on itself. Only a high concrete wall still loomed over the crumpled piles of mud and beams, once used to practice for the widely hated night raids on civilian homes.”

“The vast ammunition dump had been blown up. Many ways to kill and maim human beings, from guns to grenades, mortars to heavy artillery, laid out in three long rows of double-height shipping containers, were reduced to shards of twisted metal,” Graham-Harrison continued.

And why did she get a tour of the compound? “We want to show how they wasted all these things that could have been used to build our country,” MULLAH HASSANAIN, a commander of an elite Taliban unit, told reporters.

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KOREAS REOPEN COMMS CHANNELS: Seoul’s Unification Ministry announced today that North and South Korea reconnected communication hotlines between the two countries that Pyongyang most recently abandoned this summer after South Korea and the United States held their annual joint military drills, per The Associated Press’ HYUNG-JIN KIM.

But it remains “unclear how substantially the move will improve ties between the Koreas, as Pyongyang has a history of using the hotlines as a bargaining chip in dealings with Seoul,” Kim writes. Plus, the seemingly conciliatory move comes as Pyongyang has ramped up its weapons testing — deploying a train-launched ballistic missile system last month and firing off an anti-aircraft missile last week.

In other aggressive actions by North Korea, the hermit kingdom appeared to threaten the United Nations Security Council over the weekend after the international body expressed concern about Pyongyang’s missile activity in an emergency meeting, Kim reports.

The council “had better think what consequences it will bring in the future in case it tries to encroach upon the sovereignty” of North Korea, said senior North Korean Foreign Ministry official JO CHOL SU in a statement Sunday.

COUNTER-RANSOMWARE INITIATIVE: Biden made some news last Friday in a message about Cybersecurity Awareness Month, saying the United States will gather 30 countries together in the coming weeks “to accelerate our cooperation in combatting [sic] cybercrime, improving law enforcement collaboration, stemming the illicit use of cryptocurrency, and engaging on these issues diplomatically.” The group will be known as the “Counter-Ransomware Initiative,” per reports in Reuters and Bloomberg News.

Our own SAM SABIN broke down what this announcement means in POLITICO’s Weekly Cybersecurity newsletter:

“While it’s unclear when exactly the event will take place, the planned meeting, announced Friday, is the administration’s latest move aimed at demonstrating its ability to fight cyberattacks coming from Russian and Chinese hackers.

— Building blocks: As the administration ramps up its cybersecurity policy posture, it’s been leaning hard on its international partnerships to come up with a strategic plan to fight ransomware and other major cyber threats. Biden walked away from both the G-7 and NATO meetings in June with promises to take action against cybercrime. Both AUKUS strategic partnership and the Quad Alliance among the U.S., India, Japan and Australia also have made promises to tackle cybersecurity issues together.

— What the people want: Cybersecurity policy experts have been pushing the administration to work with its international allies to tackle ransomware. CHRIS PAINTER, a former Obama administration cyber diplomat, said on Twitter that the forthcoming summit is ‘exactly the kind of initiative that is needed to foster a sustained and concerted international approach to combating ransomware.’ Establishing a coordinated, international approach to ransomware was one of the top recommendations of a report by the Institute for Security and Technology’s Ransomware Taskforce, which is referenced by policy officials and lawmakers.”

OSHKOSH WINS TRUCK CONTRACT: Oshkosh Defense won a $16.7 million contract to send three types of Heavy Expanded Mobility Tactical Trucks and Heavy Equipment Transporters to Lebanon, Iraq and Malaysia, Defense News’ AGNES HELOU reported.

The contract for the M1120A4, M977A4 and M978A4 HEMTTs — as well as the M1070A1 HETs — is scheduled to be completed by Jan. 31 of next year. Once delivered, the trucks should improve military mobility for all three nations.

INHOFE OFFERS “LESSONS LEARNED” ON AFGHANISTAN: The top Republican on the Senate Armed Services Committee released a lengthy list of his “lessons learned” from two hearings last week on Afghanistan. Let’s just say Sen. JIM INHOFE (R-Okla.) is worried. Here are his three key takeaways:

— “Afghanistan is now the safest place for radical Islamist terrorists in the world.”
— “Our ability to combat terrorist organizations in Afghanistan has been significantly diminished.”
— “As a result of President Biden’s surrender in Afghanistan, our adversaries question America’s resolve and see an opportunity to exploit a weak administration.”

There’s no doubt that it’ll be easier now for terrorists to operate in Afghanistan and that America has fewer military and intelligence tools in the country since the withdrawal. But Inhofe’s point about America’s resolve is more questionable, analysts say, as the United States spent 20 years fighting a war that many officials across multiple administrations felt was impossible to win.

AFGHAN ENVOY SAVAGES AMERICA’S STANDING: ADELA RAZ, Afghanistan’s ambassador to the United States, said she no longer trusted the U.S. government after the American military withdrawal from her country and the Taliban’s takeover. In an interview with JONATHAN SWAN of “Axios on HBO” that aired Sunday, Raz also was asked whether she still considered the United States to be the leader of the free world.

“If you talk about democracy,” she replied, “I probably will question it and laugh at it. … Because you were engaged in building one in Afghanistan, and the people believed in it. They fought for it. But when the negotiations survived with [the] Taliban, that was not the priority to be negotiated.”

Raz added it would be “not soon” until Afghans trusted an American president again. The blunt criticism of Biden’s foreign policy comes amid escalating violence in Afghanistan’s capital city. The Taliban reported that a bomb blast in Kabul on Sunday killed at least five civilians outside a mosque where a memorial service was being held for chief Taliban spokesperson ZABIHULLAH MUJAHID’s mother, per The Associated Press’ SAMYA KULLAB.

Later Sunday, the Taliban claimed to have wiped out an Islamic State cell in northern Kabul, per Reuters. “The ISIS base was entirely destroyed and all of the ISIS members inside were killed as a result of this decisive and successful attack,” Mujahid tweeted early Monday.

JACK GILLUM of ProPublica is joining Bloomberg News later this month as a cybersecurity correspondent in Washington, D.C.

ROD SCHOONOVER has joined The Council on Strategic Risks as head of the institute’s ecological security program.

— KATHY GANNON, The Associated Press: “Taliban-style security welcomed by some, feared by others”

— RYAN HEATH, POLITICO: “Who’s Biden gonna call after Merkel?”

— DEBASISH ROY CHOWDHURY, Time: “Is India Headed for an Anti-Muslim Genocide?”

— The Center for Strategic and International Studies, 9 a.m.: “Beyond Security: South Korea’s Soft Power and the Future of the U.S.-ROK Alliance in a Post-Pandemic World — with VICTOR CHA, BERNIE CHO, JOHN J. HAMRE, EUNY HONG, JIYOON KIM and more”

— The European Council on Foreign Relations, 9 a.m.: “Waves of Ambition: Russia’s Military Build-up in the Black Sea — with GUSTAV GRESSEL, RADU MAGDIN and VESSELA TCHERNEVA

— Senate Armed Services Committee, 9:30 a.m.: “Full Committee Hearing: Nominations — with GABRIEL CAMARILLO, ANDREW HUNTER, RACHEL JACOBSON and ALEX WAGNER

— Senate Banking, Housing, and Urban Affairs Committee, 9:45 a.m.: “Afghanistan’s Future: Assessing the National Security, Humanitarian and Economic Implications of the Taliban Takeover — with SUE ECKERT, NAHEED FARID, THOMAS JOSCELYN and ADAM M. SMITH

— The Foreign Policy Research Institute, 10 a.m.: “The Future of U.S. Strategic Interests in the South Caucasus: Challenges and Opportunities for the Biden Administration — with NINO EVGENIDZE, EKA GIGAURI, IAN KELLY, DAVID J. KRAMER, BATU KUTELIA and more”

— Senate Foreign Relations Committee, 10:15 a.m.: “Full Committee Hearing: Nominations — with STEVEN C. BONDY, LISA A. CARTY and MALLORY A. STEWART

— The Brookings Institution and Georgetown University’s Walsh School of Foreign Service, 12 p.m.: “NATO in a Competitive World: A Conversation With Secretary General JENS STOLTENBERG — with MICHAEL O’HANLON

— The Hudson Institute, 12 p.m.: “The Iran Nuclear Showdown: What’s Next? — with DAVID ALBRIGHT, JOSH BLOCK and OLLI HEINONEN

— House Foreign Affairs Committee, 1 p.m.: “Afghanistan 2001-2021: Evaluating the Withdrawal and U.S. Policies, Part II — with RICHARD L. ARMITAGE, RYAN C. CROCKER, DOUGLAS E. LUTE and H.R. MCMASTER

— The R Street Institute, 1 p.m.: “Taking Action: Why Diversity in Cybersecurity Matters and How You Can Make an Impact — with TATYANA BOLTON, BRYSON BORT, JUMOKE DADA,, ZINET KEMAL and CHRISTINA MORILLO

— Senate Foreign Relations Committee, 2:30 p.m.: “Full Committee Hearing: Nominations — with JEFFREY M. HOVENIER, VICTORIA REGGIE KENNEDY, MICHAEL J. MURPHY and JULISSA REYNOSO PANTALEON

— Senate Intelligence Committee, 2:30 p.m.: “Closed Briefing: Intelligence Matters”

— The Foreign Policy Research Institute, 3 p.m.: “The Meta-West as a Geoeconomic System — with MARK E. DUCKENFIELD and RONALD J. GRANIERI

— Washington Post Live, 3 p.m.: “Securing Cyberspace with JEN EASTERLY — with DAVID IGNATIUS

— The National Bureau of Asian Research, 8:30 p.m.: “South Korea’s New Southern Policy and Partnerships in Southeast Asia — with WOONGTAE CHUNG

Have a natsec-centric event coming up? Transitioning to a new defense-adjacent or foreign policy-focused gig? Shoot us an email at [email protected] or [email protected] to be featured in the next edition of the newsletter.

And thanks to our editor John Yearwood, who only writes us very nice letters.





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