(Photo by JIM WATSON/AFP/Getty)
“We do not have a policy of separating families at the border. Period,” former Homeland Security Secretary Kirstjen Nielsen tweeted indignantly on June 17, 2018. Which was true, but only in the most literal sense. What DHS and the Justice Department did have was a policy to arrest virtually everyone who tried to enter the country between border stations, automatically rendering any children apprehended “unaccompanied” and forcing them into state custody.
“I have put in place a ‘zero tolerance’ policy for illegal entry on our Southwest border. If you cross this border unlawfully, then we will prosecute you. It’s that simple,” then-Attorney General Jeff Sessions announced on May 7, 2018. “If you smuggle illegal aliens across our border, then we will prosecute you. If you are smuggling a child, then we will prosecute you and that child will be separated from you as required by law.”
Which might have left the public with the impression that this was a measure meant to combat human trafficking. But later that month on a phone call with U.S. Attorneys, the AG was more clear. “We need to take away children,” he said, leaving no doubt that his intention was to disincentivize immigration with the threat of seizing migrant children.
Yesterday the Justice Department’s Inspector General released a scathing report on the family separation policy officially in place between April 6 and June 7, 2018. Prior to that, U.S. Attorneys had endeavored not to arrest adults crossing the border with minors, and there was no preparation for an abrupt policy shift that would necessitate taking thousands of children into government custody.
DOJ leadership, and the OAG in particular, did not effectively coordinate with the Southwest border USAOs, the USMS, HHS, or the federal courts prior to DHS implementing the new practice of referring family unit adults for criminal prosecution as part of the zero tolerance policy. We further found that the OAG’s expectations for how the family separation process would work significantly underestimated its complexities and demonstrated a deficient understanding of the legal requirements related to the care and custody of separated children. We concluded that the Department’s single-minded focus on increasing immigration prosecutions came at the expense of careful and appropriate consideration of the impact of family unit prosecutions and child separations.
The DOJ ignored the warnings from the Western District of Texas, where a similar “zero tolerance” program in 2017 encountered difficulty reuniting families, and instead the AG “focused solely on the increase in illegal entry prosecutions resulting from the El Paso Initiative and did not seek readily available information that would have identified for them the serious issues that arose as a result of the prosecutions of family unit adults and the corresponding child separations.”
Today, there are 611 children still not reunited with their families — an outcome which was entirely predictable based on information known to the DOJ and DHS before the family separation policy was implemented nationwide.
Jeff Sessions, who refused to cooperate with the inquiry, comes off second only to Stephen Miller in his fanatical zeal to inflict pain on migrants. But Sessions’ deputies at the DOJ look pretty awful, too.
Justice Department attorney Gene Hamilton, a close ally of White House Counselor Stephen Miller, blamed Homeland Security for the policy, telling the IG, “If Secretary Nielsen and DHS did not want to refer people with minors, with children, then we wouldn’t have prosecuted them because they wouldn’t have referred them. And ultimately that decision would be between Secretary Nielsen and the president.” Which conveniently ignores the fact that Sessions was the driving force behind the policy, and that Nielsen told the president it would be logistically impossible and maybe illegal.
But in some sense, you know what you’re getting with avowed xenophobes and dinosaurs from a bygone era, already shuffling toward the exit. It’s former Deputy Attorney General Rod Rosenstein, who knows it’s wrong but still marches loyally forward doing this horrible shit, who breaks your heart.
Here he is defending his complete indifference to DHS’s capacity to take care of the children in its custody and eventually reunite them with their parents, because “My approach was to trust them and presume that their folks were going to administer it as they should, and I thought it was not for me to micromanage someone else’s business.”
You would expect DHS and HHS to be able to manage the children who were entrusted to them. I think that’s something they should have considered. They should have said, “Hey, there’s problems if we do this, we’re going to lose track of the kids and we’re not going to be able to reunify the kids.“ That’s an issue that they should have flagged. I just don’t see that as a DOJ equity.
Here’s John Bash, the U.S. Attorney for the Western District of Texas, explaining in an email to his staff that he just got off the horn with Rosenstein, who ordered him to take babies into custody no matter how young.
I just spoke with the DAG. He instructed that, per the [Attorney General’s] policy, we should NOT be categorically declining immigration prosecutions of adults in family units because of the age of a child. In other words, our directive is that if [the Border Patrol] refers a single parent of a child of any age to us (or both parents of a child of any age), we should not decline prosecution absent case-specific special circumstances (e.g., the child is seriously ill, the child speaks only a native language, etc.). I had understood that [the Border Patrol] itself had a policy of not referring parents to us when doing so would separate children under 5 from the parents. But apparently [the Border Patrol] did so yesterday in El Paso in two cases, and we declined per our understanding of the policy. Under the directive I just received from the DAG, however, those two cases should not have been declined.
Rosenstein professed to be shocked that Bash would have interpreted this as curtailing his discretion not to prosecute parents if it would involve the government taking custody of young children, or non-Spanish speaking youths who would have no way of communicating with their caregivers.
“If somebody got the idea that they were supposed to be just like a soldier, prosecuting every case without regards to the facts, that didn’t come from me, and if you look at Bash’s emails, he says, consider case-based circumstances,” he told the IG.
“Since leaving the Department, I have often asked myself what we should have done differently, and no issue has dominated my thinking more than the zero tolerance immigration policy,” Rosenstein said in a statement released yesterday. “It was a failed policy that never should have been proposed or implemented. I wish we all had done better.”
Mistakes, it seems, were made. This policy should never have been implemented. By whom? Well, Rod Rosenstein cannot say. But he thinks about it a lot and wonders what, if anything, someone, somewhere could have done differently.
Justice officials respond to report on family separation by blaming Trump, expressing regret [NBC]
Review of the Department of Justice’s Planning and Implementation of Its Zero Tolerance Policy and Its Coordination with the Departments of Homeland Security and Health and Human Services
Elizabeth Dye lives in Baltimore where she writes about law and politics.