Halloween 2018: A Great Day For Scaring Kids, Also a Frightful Time For All Else

 

ALSO IN FRIGHTFUL NEWS: The United States could deploy 7,000 armed troops to the US-Mexican border a week before Election Day. It could go up to 15,000, roughly what we have in Afghanistan and three times what the United States deployed to Iraq. Since Mexico refused to fund that wall, the President of the United States now says “”We have to have a wall of people”. Presumably, our friends to the south are not going to pay for this “wall of people” either, so U.S. taxpayers are already saddled with this tab. And since the deployment to the border number will likely kept growing the next few days, the Pentagon probably should ask how deep is this “wall of people” the Commander-in-Chief is talking about.

Meanwhile in Yemen, people have been dying the last three years. Now 14 million people face starvation as the U.S. government continue its military support of Saudi Arabia’s war (see Secretary Pompeo Saves $2Billion Weapons Sales From Jeopardy). USG is now seeking a cease-fire over there. Why now? Is it because half of Yemen’s population is on the brink of famine? Or is it because the world is finally paying attention to US-support of the war in Yemen after the Khashoggi murder?  Former USNATO Ambassador Robert Hunter writes that “blanket U.S. support for the Saudi air campaign means that it cannot escape its own share of responsibility.”

Also back in 2010, a State/OIG report estimated that the Yemeni-American community in that country was about 55,000. There were no USG-organized evacuations when war broke out. For those covering Yemen, please ask the Secretary of State his department’s estimate on how many Yemeni-Americans were killed in this war.

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Yemen Non-Evacuation: Court Refuses to Second-Guess Discretionary Foreign Policy Decisions

Posted: 4:38 am ET
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The State Department’s Yemen Crisis page notes that due to deteriorating situation, it suspended embassy operations on February 11, 2015, and U.S. Embassy Sana’a American staff were relocated out of the country.  “All consular services, routine and emergency, continue to be suspended until further notice. The Department notified the public of this move, and its impact on consular services, and urged U.S. citizens in Yemen to depart while commercial transportation was available.”

The U.S. Embassy in Sanaa went on mandatory evacuation in May 2011 (see US Embassy Yemen Now on Ordered Departure), and again in August 2013 (see US Embassy Yemen Now on Ordered Departure) and November 2014 (see US Embassy Yemen on Ordered Departure Once Again). In July 2014, the State Department issued a Travel Warning, see New Travel Warning for Yemen — Don’t Come; If In Country, Leave! But Some Can’t Leave).

See our other posts:

The case below was filed on April 9, 2015 by a Nora Ali Mobarez, a United States citizen residing in Yemen.  She was joined by “25 other people, all of whom are U.S. citizens or permanent residents with Yemeni connections” in filing a cases against the Secretaries of State and Defense and seeking a court order to “compel Defendants to comply with an alleged duty of the Executive Branch to provide a means of evacuation from Yemen for them or their relatives.”

Excerpt from the Memorandum of Opinion dated May 17, 2016 by Judge Ketanji Brown Jackson of the U.S. District Court for the District of Columbia:

Plaintiff Nora Ali Mobarez, a United States citizen, is currently residing in the war-torn and conflict-ridden Republic of Yemen. (See Compl., ECF No. 2, ¶¶ 4, 55– 59.) Mobarez has joined with 25 other people, all of whom are U.S. citizens or permanent residents with Yemeni connections, to file the instant official-capacity complaint against the Secretary of the Department of State (“State”) and the Secretary of the Department of Defense (“DOD” and, collectively, “Defendants”). These plaintiffs seek a court order to compel Defendants to comply with an alleged duty of the Executive Branch to provide a means of evacuation from Yemen for them or their relatives. (See id. ¶¶ 3–24, 29–77.) Specifically, their complaint asserts that the United States has closed its embassy in Sana’a, Yemen, has evacuated embassy staff, and has removed Marines from the country, but that the U.S. government has yet to execute any plan to secure the safe removal of private American citizens. (See id. ¶¶ 34–36, 77.) According to Plaintiffs, Defendants’ forbearance violates the Administrative Procedure Act (“APA”), 5 U.S.C. §§ 701–06, insofar as Defendants “have failed to provide through direct military assistance or contracting with commercial entities the necessary equipment, ships, airplanes, and other items that are available to Defendants to [e]nsure the security, safety, and well-being of United States citizens[,]” and have therefore “unlawfully withheld and/or unreasonably delayed agency action to which the Plaintiffs are entitled” and/or “have taken action that is arbitrary and capricious and an abuse of discretion and not in accordance with law[.]” (Id. ¶ 81.)

Before this Court at present is Defendants’ Motion to Dismiss the instant complaint. (See Defs.’ Mot. to Dismiss (“Defs.’ Mot.”), ECF No. 8.) Defendants contend that Plaintiffs are wrong about the existence of any duty to evacuate them. (See Defs.’ Reply in Supp. of Defs.’ Mot. (“Reply”), ECF No. 12, at 6–8.)1 Furthermore, as a threshold matter, Defendants insist that legal claims such as the ones Plaintiffs bring here require the judiciary to second-guess the discretionary foreign- policy decisions of the Executive Branch, and thus, are nonjusticiable under the political-question doctrine. (See Defs.’ Mem. in Supp. of Defs.’ Mot. (“Defs.’ Mem.”), ECF No. 8-1, at 12–14.)

On March 31, 2016, this Court issued an order GRANTING Defendants’ Motion to Dismiss Plaintiffs’ complaint. (See Order, ECF No. 13.) The instant Memorandum Opinion explains the Court’s reasons for that order. In short, the Court agrees with Defendants’ justiciability argument, and has therefore concluded that it lacks jurisdiction to entertain Plaintiffs’ complaint.
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Plaintiffs have asked this Court, in no uncertain terms, to issue an order that compels the Executive Branch to conduct an evacuation of American citizens in Yemen. Not surprisingly, Defendants insist that any such order would impermissibly encroach upon the discretion that the Constitution affords to the political branches to conduct foreign affairs; therefore, prior to considering Defendants’ contention that Plaintiffs’ complaint fails to state a claim under the APA, this Court must first determine whether or not it has the authority to traverse the thicket of thorny foreign-policy issues that encompasses Plaintiffs’ allegations. Precedent in this area makes it crystal clear that federal courts cannot answer “political questions” that are presented to them in the guise of legal issues, see infra Part III.A., but identifying which claims qualify as nonjusticiable political questions—and which do not—can sometimes be a substantially less lucid endeavor. Not so here: as explained below, after considering the parties’ arguments and the applicable law regarding the boundaries of the political-question doctrine, this Court is confident that Plaintiffs’ claims fit well within the scope of the nonjusticiability principles that the Supreme Court and D.C. Circuit have long articulated. Accordingly, in its Order of March 31, 2016, the Court granted Defendants’ motion and dismissed Plaintiffs’ case.
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It cannot be seriously disputed that “decision-making in the fields of foreign policy and national security is textually committed to the political branches of government.” Schneider, 412 F.3d at 194; see also id. at 194–95 (collecting the various explicit “[d]irect allocation[s]” in the Constitution of those responsibilities to the legislative and executive branches). And, indeed, Plaintiffs seek to have this Court question the Executive Branch’s discretionary decision to refrain from using military force to implement an evacuation under the circumstances described in the complaint, despite the fact that, per the Constitution, it is the President who, as head of the Executive Branch and “Commander in Chief[,]” U.S. Const. Art. II, § 2, decides whether and when to deploy military forces, not this Court. See El-Shifa, 607 F.3d at 842 (explaining that a claim “requiring [the court] to decide whether taking military action was wise” is a nonjusticiable “policy choice[] and value determination[]” (second and third alterations in original) (internal quotation marks and citation omitted)).

Plaintiffs’ suggestion that the court-ordered remedy they seek could very well stop short of a direct mandate for military intervention (see Pls.’ Opp’n at 15 (asserting that “[t]his Court can order Defendants to [effectuate the evacuation] by simply directing the evacuation to happen and leaving it to Defendants to determine the means”)) makes no difference, as far as the political-question doctrine is concerned. Regardless, the clear basis for the complaint’s assertion that Plaintiffs are entitled to any relief at all is the contention that the Executive Branch has abused its discretion— in APA terms—in refusing to evacuate U.S. citizens from Yemen thus far (see, e.g., Compl. ¶ 81), and the Court’s evaluation of that contention would necessarily involve second-guessing the “wisdom” of these agencies’ discretionary determinations.
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[T]he “strategic choices directing the nation’s foreign affairs are constitutionally committed to the political branches[,]” and once it becomes clear that a plaintiff wishes the courts to “reconsider the wisdom of discretionary foreign policy decisions[,]” the judicial inquiry must end.

Read the Memorandum of Opinion here (PDF) or read below:

 

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US Embassy Djibouti: Over 300 Americans/Family Members Evacuated From Yemen on 12 Ships, 1 Plane

Posted: 6:48 pm EDT
Updated: 7:23 pm EDT
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On April 13, we posted about US Embassy Djibouti’s ongoing response to the crisis in Yemen (see US Embassy Djibouti Welcomes 140 American Evacuees From Yemen, Thanks India and Djibouti For Help). We sent Ambassador Tom Kelly a consular staffing question on Twitter and he responded.

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Hey, ain’t Twitter great!

Approximately 300 U.S. citizens and family members have made it to Djibouti to date. Below is a quick rundown of evacuees:

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We asked about consular staffing support because we anticipate that the evacuees coming from Yemen would have a good number of undocumented family members. Not all embassy staffers are well-versed in citizenship and passport regulations. So we are pleased to hear that reinforcements are there with more in the works.

Ambassador Kelly was nominated to serve as the U.S. Ambassador to the Republic of Djibouti on On April 7, 2014.  He assumed the ambassadorial duties on September 8, 2014. Prior to this appointment, he served as Principal Deputy Assistant Secretary of the Bureau of Political-Military Affairs from August 2011 to September 2014.

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Updated with details from April 8 Daily Press Briefing:

QUESTION: Right. The ambassador said today earlier, I think, that they were getting reinforcements to help. What does that mean?

MS HARF: Yeah, so I have some – yep, I have some more information on that. So while awaiting security screening and processing by Djiboutian immigration officials, U.S. citizens and their families have been offered food, water, medical attention, hygiene items, infant care items, access to phones to contact relatives, and when feasible, a place to – it’s quite hot there; I think a place to stay and remain that’s out of the heat and a little more comfortable. These have been – much of this food and the items have been provided by embassy employees and local staff, which I think is important. The Department of Homeland Security has granted exceptional authority for the consular team in Djibouti to accept and approve immigrant visa petitions for spouses, children, and parents of U.S. citizens. The State Department is working to transfer immigrant visa cases for recently arrived refugees to Djibouti. We are also increasing consular staffing in Djibouti in order to process petitions for immigrant visa cases as quickly as possible; also to help Yemeni – help U.S. citizens with Yemeni family members find long-term housing while they work through their options here.

So we are doing a number of things in Djibouti. This is where many of people – the people leaving Yemen have gone. Our ambassador, I think, is sharing some of these experiences on Twitter, so I’d check those out as well.

QUESTION: Yeah, that’s where that came – but do you have a rough estimate? Is it a couple hundred people? How many are we talking about?

MS HARF: We’re not exactly sure. We’ve – I think he tweeted something like 149 or something like that. We know of a couple hundred; we just don’t know if that’s everyone.

QUESTION: Right.

MS HARF: So we don’t know how accurate it is.

QUESTION: But that doesn’t – that’s only the ones who have American citizenship. That might not include —

MS HARF: Correct.

QUESTION: — their families and spouses.

MS HARF: That is my understanding.

QUESTION: And so when you have – DHS has given your – are they sending people there, or is it they’ve just basically delegated —

MS HARF: Our – I think our consular team is sending additional people there.

QUESTION: So if you are a – the wife of an American citizen who is trying to get an immigrant visa, what’s the timeframe we’re talking about – looking at here?

MS HARF: I don’t know what the timeframe is. I’m happy to check. I don’t know.

QUESTION: But they would have to stay, though, in Djibouti until —

MS HARF: Well, they couldn’t come to the United States, ostensibly.

QUESTION: Okay. So —

MS HARF: Right.

QUESTION: But the process, though, is not a short one, is it? I mean, it’s —

MS HARF: I – Matt, I —

QUESTION: I’m not saying – I’m not making the argument that it is.

MS HARF: I don’t know. I’m happy to check. I don’t know.

QUESTION: Okay. All right.

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For U.S. Citizens in Yemen, a New Website and a New Hashtag Shows Up: #StuckInYemen

Posted: 5:27 pm EDT
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The State Department suspended embassy operations at the U.S. Embassy in Sanaa, Yemen and American staff were relocated out of the country on February 11, 2015.    This followed  the previously announced suspension of all consular services  on February 8 (see State Dept Suspends US Embassy Yemen Operations, Relocates Staff Until Further Notice).  There was no USG-sponsored evacuation for U.S. citizens residing in the country. At that time, and many times previously, the State Department urged U.S. citizens to defer travel to Yemen and those U.S. citizens living in Yemen to depart the country (see here, here, here, here, and here).

On March 25, Saudi Arabia launched military operations in Yemen in a coalition with reportedly 10 other countries. (see New Front in Regional Chaos: Saudi Arabia Launches Air Strikes Against Houthis in Yemen).  As the situation deteriorated, the following countries have evacuated their citizens from Yemen:

India

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China

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Pakistan

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Russia

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Turkey

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Guys, Somalia!

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Foreigners Evacuated

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26 Countries Requested Evacuation Assistance from India

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Whatabout the Amcits in Yemen?

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On April 3, the State Department issued an updated Travel Warning for Yemen that says in part:

The level of instability and ongoing threats in Yemen remain severe.  There are no plans for a U.S. government-coordinated evacuation of U.S. citizens at this time. We encourage all U.S. citizens to shelter in a secure location until they are able to depart safely. U.S. citizens wishing to depart should do so via commercial transportation options when they become available.

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Somebody noticed

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Meanwhile, a new website and a new hashtag just showed up online for U.S. citizens in Yemen:

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Today, April, 6, the US Embassy Sana’a issued an Emergency Message advising U.S. citizens in Yemen that the Indian Government has offered to evacuate U.S. citizens from Yemen to Djibouti:

The Indian government has offered to assist U.S. citizens who want to depart Yemen for Djibouti.  This potentially includes flights out of Sana’a and ships from Aden.  U.S. citizens wishing to take advantage of this opportunity should contact First Secretary Raj Kopal at the Indian Embassy in Sana’a at 00967 734 000 657; you may be required to present a valid U.S. passport for boarding.  The next flights from Sana’a are scheduled to depart early on April 7.  The Department of State cautions that U.S. citizens should consider carefully the risks of traveling to or within Sana’a and Aden in order to board evacuation transport given security conditions in both cities.

On February 11, 2015, due to the deteriorating security situation in Sanaa, the Department of State suspended embassy operations and U.S. Embassy Sanaa American staff were relocated out of the country.  All consular services, routine and emergency, continue to be suspended until further notice.  The Department notified the public of this move, and its impact on consular services, and urged U.S. citizens in Yemen to depart while commercial transportation was available.

The level of instability and ongoing threats in Yemen remain extremely concerning. There are no plans for a U.S. government-coordinated evacuation of U.S. citizens at this time.  If you wish to depart Yemen, you should stay alert for other opportunities to leave the country.  U.S. citizens who are able to depart Yemen for another country and are in need of emergency assistance upon arrival may contact a U.S. embassy or consulate in that country.

Read more: Emergency Message for U.S. Citizens – Updated Departure Options (April 6, 2015)

U.S. Embassy Djibouti is a small post with a low consular workload. At least, until 2010, the consular section there consisted of one entry-level officer (who occupied an FS-03 position) assisted by three local employees  (source-pdf).

We don’t know what is the current US citizen population in Yemen. A State/OIG report from June 2010 estimated that the U.S.-Yemeni community there numbered at least 55,000.  The report also noted that the serious threat of terrorism in Yemen has put “Sanaa’s visa and passport services in the homeland security cross-hairs.”

We have reached out to Consular Affairs but have not heard anything back.

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