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North Korean travel ban marks return to Cold War-era restrictions on US citizens abroad

July 22, 2017 by  
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American student Otto Warmbier in Pyongyang, North Korea, on March 16, 2016. (Jon Chol Jin/AP)

U.S. citizens have long been able to visit North Korea as tourists, but that will soon change. On Friday, the Trump administration announced that it was planning to bar U.S. tourists from traveling to North Korea next month.

The move coincides with increasing tension between the Trump administration and Pyongyang about North Korea’s nuclear weapons program. It also comes after Otto Warmbier, an American student, was detained while on a trip to North Korea and sentenced to 15 years of hard labor.

Warmbier later died, just six days after being released, in a comatose state, and flown to Ohio.

The decision to ban travel by U.S. citizens to a foreign country marks an unusual policy shift for the State Department, harking back to restrictions on travel not widely used since the Cold War era.

Though the State Department routinely issues alerts and warnings about travel to certain countries (a warning is currently in place for North Korea), these serve only as recommendations and do not bar travel. And while U.S. nationals may in some cases find themselves barred from certain countries, that is generally the decision of a foreign government rather than the State Department.

“The safety and security of U.S. citizens overseas is one of our highest priorities,” State Department spokeswoman Heather Nauert said late Friday morning as the ban was announced. “Due to mounting concerns over the serious risk of arrest and long-term detention under North Korea’s system of law enforcement, [Secretary of State Rex Tillerson] has authorized a Geographical Travel Restriction on all U.S. citizen nationals’ use of a passport to travel in, through, or to North Korea.”

Peter Spiro, the Charles Weiner chair in international law at Temple University, said such a policy would be a revival of “area restrictions” that were common during the mid-20th century.

“At various points, Americans were barred from traveling to various communist countries during the Cold War,” Spiro said in an email, noting that the practice went back as far as the 1920s.

These restrictions were noted explicitly on the passports themselves. A passport issued in 1954 to Jacqueline Kennedy, later the first lady, shows a page noting that the passport was not to be used for travel to “Albania, Bulgaria, China, Czechoslovakia, Hungary, Poland, Romania or the Union of Soviet Socialist Republics,” for example.

The logic behind these bans was varied. Sometimes they were used to restrict travel to a country after U.S. citizens were captured or detained there, such as after the Iran hostage crisis between 1979 and 1981 or the kidnappings of Americans in Lebanon during the late 1980s.

Such restrictions were last implemented against countries in the late 1980s and early 1990s, and none of those bans remain in place. The U.S. government appears to have moved away from State Department-ordered travel bans and instead used the Treasury Department to restrict tourism-related transactions in foreign countries (most notably Cuba).

Spiro argued that a return to the use of travel bans would have legal standing, however. “The Supreme Court found the secretary of state to have the power to impose these restrictions in its 1965 decision in Zemel v. Rusk,” Spiro wrote. “In that case, the court rejected a First Amendment challenge to an area restriction (a ban on travel to Cuba) and also rejected the assertion of a constitutional right to international travel.”

Though Spiro said he expected any ban on U.S. travel to North Korea to face legal challenges, he said he thought the legal precedent would allow the ban to stick.

What was less clear, however, was how the law would work practically. Even when area restrictions were more widely used, legal experts argued that they were very difficult to enforce. State Department area restrictions on Iran were undermined when Ramsey Clark, a former attorney general, traveled to Tehran in 1980 in a bid to help defuse the ongoing hostage crisis. The Justice Department ultimately decided not to prosecute Clark, in part because of legal uncertainty about the outcome.

There are no direct connections between the United States and North Korea, with most travelers instead going through China to reach the country. Matthew Bradley, regional security director for the Americas at the travel safety firm International SOS and Control Risks, said he imagined that tourists who went to China or other neighboring countries would have their passports flagged before they reached U.S. immigration officers.

“They’ll be looking for indications that you were in the country you said you were in,” Bradley said in a phone call, adding that he would expect “pretty strict enforcement for the first six months to a year” after the new rules took effect. Even considering the threat of  prosecution, he said it was likely that U.S. citizens would still try to visit North Korea. “It’s very difficult to remove the incentive,” Bradley said. “There will still be people who risk it.”

Instead, Bradley said, it would probably be the companies that organize trips to North Korea for foreigners that respond. Two of these companies, Koryo Tours and Young Pioneer Tours, have issued statements acknowledging the new rules. (Young Pioneer Tours had already announced that it would no longer take Americans to North Korea after Warmbier’s death.)

Bradley added that, ultimately, the biggest responsibility lies with tourists — and his company has long advised against U.S. citizens traveling to North Korea.

“The risk is that the government will seize you. And the reasons that they might seize you are arbitrary,” he said. “And when the risk cannot be mitigated through conventional means, it has to be avoided.”

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Parliamentarian deals setback to GOP repeal bill

July 22, 2017 by  
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Major portions of the Republican bill to repeal and replace ObamaCare will require 60 votes, according to the Senate parliamentarian, meaning they are unlikely to survive on the floor.

The parliamentarian has advised senators that several parts of the bill could be stripped out, according to a document released Friday by Sen. Bernie SandersBernie SandersParliamentarian deals setback to GOP repeal bill OPINION | Hey Dems, Russia won’t define 2018, so why not fix your party’s problems instead? OPINION | They told us to abandon ObamaCare — then came the resistance MORE (I-Vt.), the ranking member of the Senate Budget Committee. (Read the guidance here.)

The provisions that would likely be removed include polices important to conservatives, such as restrictions on tax credits being used for insurance plans that cover abortion.

Language in the bill defunding Planned Parenthood for a year also violates budget rules, according to the parliamentarian. That guidance is sure to anger anti-abortion groups who backed the bill specifically because of those provisions.

In a statement, Planned Parenthood said it was “obvious” that the defunding provision would be a violation of the reconciliation rules.

“No amount of legislative sleight of hand will change the fact that the primary motivation here is to pursue a social agenda by targeting Planned Parenthood,” the group said.

The parliamentarian has also not yet ruled on a controversial amendment from Sen. Ted Cruz (R-Texas) that would allow insurers to sell plans that do not meet ObamaCare regulations. If that provision were struck, conservative support for the bill would be in doubt.

Republicans are trying to use the budget reconciliation process to pass their healthcare bill with only a simple majority. The provisions deemed impermissible under that process can be stripped if a senator on the floor raises an objection.

Democrats would be virtually certain to deny Republicans the 60 votes they would need to keep portions of the bill intact.

The result is that the arcane rules of the Senate could end up making the bill harder for Senate Majority Leader Mitch McConnellMitch McConnellParliamentarian deals setback to GOP repeal bill OPINION | How Democrats stole the nation’s lower federal courts Flight restrictions signal possible August vacation for Trump MORE (R-Ky.) to pass.

A spokesman for McConnell was quick to point out that the parliamentarian only provides guidance on the legislation to help inform subsequent drafts. The bill will have to change before it gets to the floor if Republicans want to salvage any of provisions in question. 

GOP leaders have said they want to vote on a procedural motion to begin debate on ObamaCare repeal legislation early next week. However, it’s still not clear if they have the votes, or which legislation they will be voting on; the replacement bill, or repeal-only legislation. 

Some conservatives were already questioning Friday why the Senate parliamentarian, Elizabeth MacDonough, would rule against Planned Parenthood defunding, when that provision was allowed under reconciliation in 2015. 

A spokesman for Sanders said the guidance has changed because it is now clear that Planned Parenthood would be the only organization affected by the defunding language.

“It passed last time because there was at least a question that other entities could be affected by the language,” the spokesman said. “In the interim, Republicans have not been able to show that any entity other than Planned Parenthood is affected, and the new [Congressional Budget Office] score confirms that.”

In a blow to the insurance industry, the parliamentarian has advised that two key market stabilization provisions in the bill would be against the rules. First, the legislation can’t appropriate the cost-sharing reduction subsidies insurers rely on to keep premiums and deductibles low; it can only repeal them. 

Additionally, a “lockout” provision requiring consumers with a break in coverage to wait six months before buying insurance also violates the rules, according to the guidance.

The provision was added to the bill to address concerns that people would only sign up for health insurance when they’re sick, if insurers are still prevented from denying coverage for pre-existing conditions.

The parliamentarian also advised that a specific provision dealing with New York State’s Medicaid program would be a violation of the rules. Senate Minority Leader Charles SchumerCharles SchumerOPINION | How Democrats stole the nation’s lower federal courts OPINION | Hey Dems, Russia won’t define 2018, so why not fix your party’s problems instead? Lawmakers send McCain well wishes after cancer diagnosis MORE (D-N.Y.) seized on that decision.

“The parliamentarian made clear that state-specific provisions” violate the rules, Schumer said. “This will greatly tie the majority leader’s hands as he tries to win over reluctant Republicans with state-specific provisions. We will challenge every one of them.”

Peter Sullivan contributed. Updated at 7:18 p.m.

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