New Proof Surfaces That Family Separation Was About Deterrence and Punishment

Newly obtained government documents reveal that the underlying intent of the Trump administration’s brutal practice of separating migrant families at the border was, in fact, to deter additional immigration and asylum petitions. This is significant, because Trump administration officials have earlier claimed that the forcible separations were mandated by law (thus necessitating congressional action to end the policy) or compelled by “national security” concerns. We now know neither of these purported justifications is true—this was nothing short of a deliberate policy choice to brutalize parents and their children in order to stop others from seeking refuge in the United States. This strengthens the argument I made in an earlier post that the family separation policy is a form of torture for both parents and their children.

The new insights came from an important and hard-hitting story aired by 60 Minutes over the weekend entitled “Chaos on the Border.” The story confirms Just Security’s earlier reporting that the forcible separations began much earlier than had been thought and involved many more children than has been admitted by the government. It now appears that upwards of 5,000 children were taken from their parents since Trump’s presidency began. The 60 Minutes piece includes an interview with Scott Shuchart, who recently left the Department of Homeland Security (DHS), where he worked in the civil rights and civil liberties division (which he claims has been “frozen out” of these decisions in the administration). Shuchart reveals how terrible the government’s record-keeping was: The Trump administration literally lost track of separated parents and their children (including infants) and thus had no way of reuniting them. This bungling made the family separation policy and reunion implementation all the more harmful, prolonged, and capricious.

The 60 Minutes story also includes an interview with a child psychologist, who discusses the acute harm caused to children by cumulative traumatic stresses, such as separation from their loved ones. (I go through this scholarship in greater detail in my earlier post). These proven harms include permanent detachment from their family members, delays in reaching developmental milestones, difficulties in forming and maintaining relationships, diminished and faulty cognitive functioning, and permanent trouble regulating emotions. In short, permanent psychological harm. Indeed, the segment shows a heartbreaking “reunion” of a 3-year old boy with his parents in which the boy clearly cannot reconnect with his mother, causing everyone great distress. It’s tough to watch. Needless-to-say, the report drew Trump’s ire: it’s a “phony story” by “fake 60 Minutes,” he tweeted Sunday night.

The predictable harms to children by forcible family separations are also detailed in a new article written by two colleagues—Dr. Daryn Reicherter and Dr. Ryan Matlow—recently published in the New England Journal of Medicine. As part of the public comment process, the article discusses—and opposes—proposed regulations that would dismantle the protections provided by the Flores settlement, a consent decree that governs the detention of children. The new regulations proposed by the Trump administration would give legal cover to many of the abusive practices undertaken during the period of time in which forcible family separation was in place.

The key lesson from the 60 Minutes story is that the underlying intent of the policy was deterrence. This is revealed in un-redacted government documents obtained by the reporters, including the DHS order to arrest and detain all adults who crossed the border illegally to seek asylum. The document clearly states the reason for the policy is deterrence, because it would have “the greatest impact on current flows” of immigrants.

Torture is a specific intent crime under international and domestic law. This means that to prove that a policy or practice constitutes torture, it must be shown not only that severe pain and suffering was inflicted, but that it was done for particular purposes, including to:

  • Obtain from the victim or a third person information or a confession,
  • To punish the victim for an act s/he or a third person has committed or is suspected of having committed, or
  • To intimidate or coerce the victim or a third person, or
  • For any reason based on discrimination of any kind.

There is little question that the policy caused severe harm to children and their parents, but proving this specific intent on the part of the Trump administration was more elusive. In the documents obtained by 60 Minutes, we now have definitive proof that the purpose was to punish current asylum-seekers in order to intimidate or coerce others from exercising their human right to seek asylum here. As I wrote in my earlier post:

The separated and detained children are thus suffering for the immigration transgressions of their parents or to deter future potential border-crossers

Incidentally, as has been shown at Just Security, and elsewhere, the policy doesn’t even work as an effective deterrent, which makes the harm caused all the more cruel and arbitrary. The proposed regulations should be rejected, and the Flores settlement maintained.

On family separations, see our prior coverage here (history of the policy and litigation in response), here (Flores explainer), here (Congress finally holds hearings), and here (testing the waters with a pilot program in El Paso in 2017). A timeline of relevant events can be found here.

Image:  Honduran father Juan and his six-year-old son Anthony walk on their way to attend Sunday Mass on September 9, 2018 in Oakland, California. They fled their country, leaving many family members behind, and crossed the U.S. border in April at a lawful port of entry in Brownsville, Texas seeking asylum. They were soon separated and spent the next 85 days apart in detention. Juan said it took six weeks from the time of separation until he was able to make a phone call to his son. They were finally reunited in July and are now living in Oakland as their asylum cases are adjudicated. (Photo by Mario Tama/Getty Images)

 

About the Author(s)

Beth Van Schaack

Leah Kaplan Visiting Professor of Human Rights, Stanford Law School; Former Deputy to the U.S. Ambassador-at-Large for War Crimes Issues in the U.S. State Department. All views are her own. Follow her on Twitter (@BethVanSchaack).