Looking for help on immigration, the Trump administration is silent in the face of Guatemala’s effort to seal its dirty war archive.
With the quiet acquiescence of the Trump administration, the Guatemalan government is threatening to bar access to a collection of national archives that have been at the core of various attempts to prosecute Guatemalan politicians and officers responsible for some of Latin America’s most heinous atrocities.
The move to suppress the archives is part of a larger campaign by Guatemalan President Jimmy Morales, who faces allegations of receiving illicit campaign funds, to undercut the rule of law through the purge of judges, police officials, and archivists who have been at the forefront of Guatemala’s effort to investigate corruption, narcotrafficking, and war crimes, according to foreign diplomats and independent experts.
But senior U.S. officials in Washington and Guatemala City have rebuffed appeals from working-level staffers and foreign diplomats to publicly challenge Guatemala’s action. And U.S. President Donald Trump’s administration, which is seeking Guatemala’s help in stemming the flow of asylum-seekers and refugees into the United States, has remained largely silent over these developments.
One U.S. official said that America’s reluctance to confront Guatemala is part of a crude unwritten bargain between Morales’s government and the Trump administration: “They promise not to let brown people into the country, and we let them get away with everything else,” the official said.
The “assault on the police archive [is part of a] broader attack against human rights, justice, and anti-corruption efforts,” said Kate Doyle, a researcher at the National Security Archive and an expert on the Guatemalan archives. “The U.S. is saying nothing. The U.S. Embassy has been incredibly absent on these issues. They are not doing anything.”
In the latest sign of U.S. reluctance to challenge Guatemala on human rights, Kimberly Breier, the U.S. assistant secretary of state for Western Hemisphere affairs, blocked the release of a public statement in early June that would have urged Guatemala to back down on its effort to restrict access to the archives.
“These archives are an essential source of information to clarify and understand critical historical truths from Guatemala’s history,” reads the statement obtained by Foreign Policy, which was suppressed in June. “Access to the archives by historians, victims of abuse recorded in these archives and their families, the public, and the international community, has furthered Guatemala’s progress towards accountability, justice, truth and reconciliation.”
Foreign Policy sought a response from the Trump administration last Wednesday. The State Department did not respond until nearly an hour and half after this article was published Tuesday.
“The United States strongly supports continued public access to the Historical Archive of the National Police,” according to a statement from a spokesperson from the State Department’s Bureau of Western Hemispheric Affairs. The Tuesday statement included the two sentence cited by Foreign Policy in the suppressed statement.
The initial decision to block the statement—which had been approved by the State Department press office, the U.S. Embassy in Guatemala, and several other key bureaus—came as the United States was engaged in sensitive negotiations on a so-called safe third country agreement, which would commit Guatemala to process political asylum claims from foreigners, particularly from El Salvador and Honduras, who cross its border in transit to the United States. “My understanding is Kim Breier killed this because she didn’t want to do anything that would piss off the Guatemalans,” said one congressional aide.
During the past two decades, the United States has invested in efforts to strengthen the rule of law in Guatemala,
- funding a United Nations commission that investigates corruption and illicit activities by armed groups,
- strengthening the judiciary, and
- training and equipping police units with expertise in counternarcotics and corruption.
- The United States has spent millions of dollars over the years to preserve the police archives, including through the provision of document scanners and the funding of a digitized archive maintained by scholars at the University of Texas at Austin.
Guatemala’s bloody 36-year-long civil war resulted in the deaths of about 200,000 people, mostly at the hands of the Guatemalan security forces. A 1996 U.N.-brokered peace agreement paved the way for the return of exiled rebels, established a new national police force, and pried open the door to the prospect of public reckoning for crimes committed during the war. The Guatemalan military and police resisted, denying that they had preserved detailed records of their activities during the conflict. But in 2005, more than 80 million documents and records, dating from 1882 to 1997, were discovered in seven rat-infested rooms at an unused hospital building in Guatemala City owned by Guatemala’s now-defunct National Police.
Since then, the Guatemalan National Police Historical Archive has helped convict more than 30 military officers, soldiers and paramilitaries, including a former presidential chief of staff, Manuel Callejas y Callejas, convicted of crimes against humanity, and Guatemala’s late dictator, Gen. Rios Montt—who was found guilty in 2013 of genocide for overseeing mass atrocities in the early 1980s — though his conviction was later overturned by Guatemala’s constitutional court.
The archive has proved a valuable resource for U.S. law enforcement. The Department of Justice and Immigration and Customs Enforcement have used the archive to identify Guatemalan rights abusers living in the United States.
But the management of the archives has long infuriated some of those in Guatemala’s most powerful business and security sectors, who believed that it has been used as a tool of the left to gain revenge against their former enemies. They have cited the role of the archive’s former director, Gustavo Meoño Brenner, a former guerrilla leader who has recruited staff from the country’s left wing to run the archives. In August 2018, the U.N. Development Program, which has helped administer the archive program since 2008, abruptly dismissed Meoño Brenner. He has since fled the country, following death threats.
The move to restrict archive access is only one element of a wider effort to defang justice institutions in Guatemala. In September, a landmark U.N. International Commission Against Impunity in Guatemala—known by its Spanish acronym, CICIG—whose corruption investigations landed a Guatemalan president and vice president in jail will shutter its office.
The demise of the commission, which had also exposed alleged illegal campaign contributions in Morales’s 2015 presidential campaign, came after a two-year-long effort by the president and his allies, including sympathetic Republican lawmakers and Trump administration officials in Washington, to undermine it. Pro-military lawmakers in the Guatemalan Congress, meanwhile, have been pressing to pass an amnesty law that would result in the release of dozens of military officers and death squad leaders from jail. That effort has been stalled by Guatemala’s Constitutional Court.
The effort to suppress the archives is being spearheaded by Guatemalan Interior Minister Enrique Degenhart, a popular figure in Washington, who has represented Guatemala in the safe third country negotiations.
In a May 27 press conference, Degenhart announced that his office and Guatemala’s National Civil Police would seek greater control of the archive. He also threatened to limit access to the archives by foreign institutions, an apparent reference to the University of Texas at Austin, which has assembled a massive digitized version of a large portion of the police archive. “You can’t allow foreign institutions to have the complete archives,” Degenhart told reporters.
In response, the U.N. and other foreign envoys invited the U.S. ambassador to Guatemala, Luis Arreaga, to join ambassadors from several other countries, including Canada, Germany, Switzerland, Sweden, and the United Kingdom, on a visit to the archive to voice opposition to granting police greater control over the archives. Arreaga declined. The spokesperson from the State Department Bureau of Western Hemispheric Affairs declined to comment on whether Arreaga declined the invitation.
In Washington, State Department officials sought support within the administration for a public statement that would place the United States squarely on the side of those seeking to preserve broad public access to the archives.
“The message [Guatemalan authorities] are getting is we don’t care what you do as long as you do everything in your power to prevent” foreigners from reaching the U.S. border, said Rep. Norma Torres, a California Democrat who was born in Guatemala. If that requires “supporting a corrupt government, that is what [the Trump administration] is going to do.”
Public messaging and statements from U.S. envoys and the State Department can have an outsized political impact in Central America, former diplomats say. “It’s astonishing how important the U.S. voice is in terms of journalists, human rights defenders, civil society … in this region,” said Roberta Jacobson, a former U.S. ambassador to Mexico and assistant secretary of state for Western Hemisphere affairs. “There are clearly things that governments would do, actions it would take, but for the U.S. watching and speaking out,” she said.
The lack of response, according to diplomats, emboldened Guatemala to ratchet up its campaign against the archives.
In early July, the Guatemalan Ministry of Culture and Sports informed the U.N. Development Program, which administers the archive budget on behalf of foreign donors, that it would take over full management of the archives, raising questions about its financial viability. The U.N., which pays staff salaries, was forced to lay off the archives researchers and archivists.
On July 10, Guatemala fired its chief national archivist, Anna Carla Ericastilla, on the grounds that she provided access to foreign institutions, including the University of Texas, and improperly raised funds from donors to pay salaries to archivists.
Degenhart, meanwhile, has overseen a massive purge of Guatemala’s reformed police force after being named interior minister in January 2018. The following month, he fired the director of the National Civil Police, Nery Ramos, along with three other top cops. All told, Degenhart fired some 25 ranking officers and more than 100 agents, including 20 of the 45 police agents assigned to work with the U.N. anti-corruption office.
Guatemalans “have observed a systematic process of dismantling the National Civil Police, ordered by the interior minister himself, who seems determined to destroy 20 years of progress,” according to an August 2018 study by the Forum of Civil Society Organizations Specializing in Security, or FOSS.
The fate of the archive has become inextricably linked to the White House immigration policy.
The threat to curtail access to the archives came on the same day that Degenhart had signed an agreement with Kevin McAleenan, the acting U.S. secretary of homeland security, for the deployment of 89 agents from U.S. Immigration and Customs Enforcement and Customs and Border Protection in Guatemala to help stem the flow of refugees through the country. It also coincided with the Trump administration’s negotiation of a safe third party agreement with Degenhart.
Trump in March ordered all U.S. aid to Guatemala, El Salvador, and Honduras to be cut until they drastically reduced the number of migrants traveling north through Mexico to attempt to enter the United States. Critics, including both Democratic and Republican lawmakers, said the move would only exacerbate the migration crisis, as U.S. assistance helped address root causes of instability that caused people to flee north.
In June, the State Department announced it would release $432 million of the $615 million in aid to Central America, but it warned that new funding would not be released until the Northern Triangle governments took more steps to address migration.
Last week, the Trump administration announced that it had reached agreement on the safe third country pact, which would commit Guatemala to processing political asylum claims from migrants who cross its border in transit to the United States. The U.S. has yet to publish a copy of the pact, leading to speculation about what the deal actually entails.
Still, the move has raised concern about the constitutionality of the agreement. Guatemala’s constitutional court has already asserted that such an agreement would require approval by the Guatemalan Congress. Democratic lawmakers and other activists have criticized the move and vowed to fight it in courts. Democratic Rep. Eliot Engel, the chairman of the House Foreign Affairs Committee, said it is “cruel and immoral. It is also illegal.”
“Simply put, Guatemala is not a safe country for refugees and asylum seekers, as the law requires,” Engel said in a statement released on July 26, after the Trump administration and Guatemalan government signed the agreement.
Behind the flailing lies a potential disaster for immigration hawks.
Across the decade that preceded Donald Trump’s election, American politicians of both parties consistently tried to pass big, sweeping immigration bills that would legalize most of the country’s illegal population and increase immigration overall. These bills failed because of populist opposition, at first bipartisan (the resistance of a certain socialist senator from Vermont helped doom the 2007 effort) but increasingly simply conservative, and over time the conservative opposition developed a well-founded suspicion of Republican elites, whose plans on immigration always seemed to require ignoring their own base.
This sense of betrayal was fertile ground for Trump, who used bigotry and bluster to sell himself to immigration hawks as a Republican who wouldn’t, indeed couldn’t, sell them out. You could trust him more than the Bushes and Rubios because he was willing to be disreputable, willing to give the finger to elite opinion, willing to play not only the tough guy but the bad guy. And you had to trust him, some hawks argued, because the Democrats had been radicalized on the issue and the hour was late; it was either Trump or a Californian future, in which waves of immigration transformed the entire United States into a one-party, Democratic-governed state.
But the irony was that the populist resistance had already itself been reasonably effective in achieving some of the goals that Trump promised to pursue. Over the years when bipartisan elites were seeking the grail of “comprehensive” reform, they tried to appease skeptics with various forms of border-security spending, and this spending really did gradually harden the United States-Mexico border and make it much more difficult to simply slip across. Combine this with economic and demographic change in Latin America, and by the time Trump took office, border crossings had fallen by two-thirds since the presidency of George W. Bush.
In this sense Trump was a lagging, not a leading, indicator. He represented the political triumph of an attitude that had already changed policy, albeit in piecemeal and only half-intentionally, and partially sealed the porous borders of 15 years before. And his chief proposal, the famous wall, would have been a (literal) extension of the existing border-security project rather than a radical addition.
This reality created an interesting opening, especially in Trump’s first year, for a different kind of comprehensive deal, between restrictionists feeling a little more secure in their position and immigration advocates feeling chastened by populist backlash. And there was even some evidence that the White House might be groping in this direction — toward reforms that would seek stability more than radical change, tilting the entire system away from low-skilled immigration and toward recruitment, and compromising between restrictionists and enthusiasts by trying to keep the overall immigration rate about the same.
But that possibility has evaporated because of the second irony of immigration in the Trump era. Having inherited a border situation that was somewhat better than his rhetoric of crisis suggested, Trump has now been handed an actual crisis — a wave of Central American families claiming asylum, which has returned monthly crossings to their highest levels in a decade and overwhelmed the system for handling new arrivals.
There is a sense in which this crisis vindicates immigration hawks, who warned from the late-Obama era onward that the immigration decline wasn’t necessarily permanent, that there could easily be another wave, that United States policy — particularly the Obama precedent of a tacit amnesty for child migrants — created specific incentives for families and children to come north.
But those same hawks ended up electing a president whose signature immigration policy, more walls to deter border-crossers, has proved largely ineffective in dealing with an immigration crisis created by people surrendering to Border Patrol officers and asking for asylum.
The flailing also absolves the Democratic Party, currently torn between radicalism and evasion on immigration, from actually having to propose a coherent alternative to the White House’s approach.
If this sort of crisis were happening on President Hillary Clinton’s watch, it would create all kinds of political problems for the Democrats; as it stands, they can point at the man who once boasted of Washington that “I alone can fix it” and say, well, why don’t you?
There is still some political peril here for liberals, who may be inclined to confuse the public’s distaste for Trump with a consensus for an open door (though that Vermont socialist is still willing to swat down calls for open borders). But the greater peril by far is for conservative immigration skeptics, for whom the Trump presidency is at risk of turning into a policy disaster.
The attempts to increase deportation have been real enough, but they will be evanescent should Trump lose in 2020. The attempt to legislate sustained legal-immigration cuts has conspicuously failed. Someone in the administration is making deals behind the scenes to increase visas for low-skilled guest workers — one of the policies that hawks resisted for years in “comprehensive” bills. And the longer the current border crisis goes on, the more this White House’s most important legacy may be offering evidence that even Donald Trump, even Donald Trump, can’t really stop illegal immigration when enough people get the idea to bring their kids and come.
should Trump lose in 2020. The attempt to legislate sustained legal-immigration cuts has conspicuously failed. Someone in the administration is making deals behind the scenes to increase visas for low-skilled guest workers — one of the policies that hawks resisted for years in “comprehensive” bills. And the longer the current border crisis goes on, the more this White House’s most important legacy may be offering evidence that even Donald Trump, even Donald Trump, can’t really stop illegal immigration when enough people get the idea to bring their kids and come.
For every conservative faction, supporting Trump was a gamble — do you reach for short-term victory, even though his incompetence and unfitness might cost you in the long run?
The danger for immigration hawks is that the long run has already arrived.
If he did, and used soldiers to build it, they would all be committing a federal crime.
President Trump on Friday said that he was considering the declaration of a “national emergency” along the border with Mexico, which he apparently believes would allow him to divert funds from the military budget to pay for a wall, and to use military personnel to build it.
While it is hard to know exactly what the president has in mind, or whether he has any conception about what it would entail, one thing is clear: Not only would such an action be illegal, but if members of the armed forces obeyed his command, they would be committing a federal crime.
Begin with the basics. From the founding onward, the American constitutional tradition has profoundly opposed the president’s use of the military to enforce domestic law. A key provision, rooted in an 1878 statute and added to the law in 1956, declares that whoever “willfully uses any part of the Army or the Air Force” to execute a law domestically “shall be fined under this title or imprisoned not more than two years” — except when “expressly authorized by the Constitution or Act of Congress.”
Another provision, grounded in a statute from 1807 and added to the law in 1981, requires the secretary of defense to “ensure that any activity (including the provision of any equipment or facility or the assignment or detail of any personnel)” must “not include or permit direct participation by a member of the Army, Navy, Air Force, or Marine Corps in a search, seizure, arrest, or other similar activity unless participation in such activity by such member is otherwise authorized by law.”
In response to the Hurricane Katrina disaster in New Orleans, Congress created an express exception to the rules, and authorized the military to play a backup role in “major public emergencies.” But in 2008 Congress and President Bush repealed this sweeping exception. Is President Trump aware of this express repudiation of the power which he is threatening to invoke?
The statute books do contain a series of carefully crafted exceptions to the general rule. Most relevantly, Congress has granted the Coast Guard broad powers to enforce the law within the domestic waters of the United States. But there is no similar provision granting the other military services a comparable power to “search, seize and arrest” along the Mexican border. Given Congress’s decision of 2008, this silence speaks louder than words. Similarly, the current military appropriations bill fails to exempt military professionals from criminal punishment for violating the law in their use of available funds.
It is, I suppose, possible to imagine a situation in which the president might take advantage of the most recent exception, enacted in 2011, which authorized the military detention of suspected terrorists associated with Al Qaeda or the Taliban. But despite President Trump’s unsupported claims about “terrorists” trying to cross the border, it is an unconscionable stretch to use this proviso to support using the military for operations against the desperate refugees from Central America seeking asylum in our country.
It is even less plausible for the president to suspend these restrictions under the National Emergencies Act of 1976. From the Great Depression through the Cold War, presidents systematically abused emergency powers granted them by Congress in some 470 statutes, culminating in the Watergate fiasco. In response, the first section of the 1976 act terminated all existing emergencies and created a framework of checks and balances on the president’s arbitrary will.
If President Trump declared an emergency, Section Five of the act gives the House of Representatives the right to repudiate it immediately, then pass their resolution to the Senate — which is explicitly required to conduct a floor vote within 15 days. Since President Trump’s “emergency” declaration would be a direct response to his failure to convince Congress that national security requires his wall, it is hard to believe that a majority of the Senate, if forced to vote, would accept his show of contempt for their authority.
The Supreme Court’s 1953 decision in Youngstown v. Sawyer would be critical in Congressional consideration of such a decision. In a canonical opinion by Justice Robert Jackson, the court invalidated President Truman’s attempt in 1952 to use his powers as commander in chief to nationalize steel mills in the face of labor strikes. The decision imposed fundamental constitutional limits on the president’s power to claim that a national emergency — in this case, the Korean War — allowed him to override express provisions preventing him from using those powers domestically.
Question: What does CNN’s Jim Acosta crave more than anything? If you said “attention,” go to the head of the class. It’s a mystery why the White House has given Acosta way more than that. By yanking his “hard pass” after last week’s press conference (don’t ask who was obnoxious; they all were), Acosta has literally become a federal case. CNN filed suit claiming that its reporter’s First and Fifth Amendment rights were violated. More than a dozen news organizations, including Fox, have filed amicus briefs supporting CNN, and even Trump-friendly Fox News judicial analyst Andrew Napolitano has opined that Acosta has a strong case. Mr. Showboat is just where he wants to be — the center of attention — but thanks to President Trump’s gratuitous swipe, he is also a free-press martyr.