The global community has made significant progress in codifying the prohibition of torture in international law. And yet, torture continues in countries around the world, including in the United States, because it is cloaked in other names – such as “enhanced interrogation” – and is presented as an accepted form of brutality in times of crisis. There are also cases in which the public is not even aware that some government practices in fact constitute torture.
This familiar pattern played out on the U.S.-Mexico border from April through June 2018, when U.S. border officials forcibly separated migrant parents and children in the name of security. The United States denied that the families were fleeing targeted acts of violence in their own countries, ignored medical evidence that forced family separation results in psychological trauma, and equated child detention centers with “summer camps.”
Today, the U.S. government is considering separating families once again. With COVID-19 infections raging in family detention centers, a federal judge has ordered the government to release all children by July 17, 2020. But the judge is not able to order parents and children to be released together. As the judge pointed out, the authority to release families together lies with the U.S. Immigration and Customs Enforcement (ICE). Yet so far, the government has only offered parents a “binary choice”: sign away your parental rights and we will release your children from dangerous detention centers – otherwise, you may be detained indefinitely with your children in a potential COVID-19 hotspot.
In May 2020, ICE gave parents the option of consenting to family separation in order for their children to be released; at that time, there were 185 children in family detention centers. The parents, familiar with the harsh consequences of family separation, refused this option. Today, there are still approximately 124 children in family detention centers. The government reaffirmed the possibility that it may separate these parents and children before a federal judge on Tuesday.
An investigation published in February by Physicians for Human Rights (PHR) documented the dangerous consequences of the 2018 separations, which resulted in psychological distress and functional impairment even a year after children and parents were reunited. The practice, intended to threaten and frighten migrants, caused severe pain and suffering, and was used to intimidate and coerce asylum seekers to give up their asylum claims while deterring others from seeking asylum. These are the very features that constitute the definition of torture in the UN Convention Against Torture (CAT), Article 1(1). (Beth Van Schaack explained in an October 2018 analysis for Just Security how forcibly separating children from their parents constitutes torture under the CAT).
The PHR study (of which Kathryn is a co-author) found that the 26 cases documented constitute torture of asylum seekers by the U.S. government.
One of us, Juan, is a survivor of torture, targeted as a human rights lawyer in his own country of Argentina. After he was detained incommunicado by the Argentinian government, he was pressured to sign documents which would “legalize” his detention. Thankfully, his signature on these documents was invalidated by medical evidence, when a court doctor certified that marks on his skin were consistent with electrical torture.
In the U.S. legal system, evidence, statements, or signatures obtained under duress or coercion should not be given legal weight. But during the U.S. practice of forced family separation, parents separated from their children were pressured to sign deportation documents and documents signing away their right to parental custody with threats that they would never see their children again or would damage their child’s asylum claims. In Dora v. Sessions (D.D.C. 2018)—in which the government settled with 29 parents who were forcibly separated from their children by the federal government—the government admitted that on the basis of clinical evidence such as that provided by PHR evaluators, the separated parents were not able to meaningfully participate in immigration processes, due to the intense psychological pressure they experienced.
Today, amid the COVID-19 pandemic, detained migrant parents are faced with two options: consent to forced separation from their children, some as young as six months old and breastfeeding, or allow their children to be exposed to coronavirus in detention centers experiencing outbreaks, a highly coercive situation.
Indeed, the most troubling aspect of forced family separation is that this practice, and others like it, is still happening – and it can continue into the future. Because of the lack of adequate protections in U.S. immigration policy, the U.S. border enforcement and immigration detention system inherently creates conditions in which torture and cruel, inhuman, or degrading treatment can occur.
How can we create an immigration system that effectively prevents torture or cruel, inhuman or degrading treatment? The UN Committee Against Torture has detailed recommendations on how states can prevent torture by improving safeguards in detention systems, such as proper record keeping and tracking systems for detainee whereabouts and well-being, facilitating access to independent legal and medical assistance, and meaningful access to judicial remedies to challenge the legality of detention or treatment (UN CAT General Comment 2, para 13). These guarantees are especially essential in the case of populations in vulnerable situations, such as asylum seekers (UN CAT General Comment 2, para 21). While family separation is abhorrent, children should never be held in immigration detention, even with their parent(s).
These basic protections are not implemented in the U.S. immigration detention system. On the contrary, government agencies and non-governmental organizations have documented barriers to access adequate medical care and legal assistance, denial of access for independent monitoring, even by members of Congress, and a lack of recordkeeping across agencies, which did not track separated family members.
Immigration processes also should be reformed to prevent coercion and intimidation. One of us (Juan) was a member of the Inter-American Commission on Human Rights of the Organization of American States from 2000 to 2003, in the capacity of Special Rapporteur on migrant workers and their families. That work sought to decrease the very high risk of ill-treatment in immigration processing by developing due process standards for determining status and deportation. These standards were based on criminal law protections, such as exclusion of evidence obtained through coercion. Quite simply, coercion and intimidation can never result in efficient or accurate judicial rulings, including asylum decisions.
Whether interviews take place for the purpose of immigration proceedings or for any other reason, it is essential to ensure that interviews are conducted free from coercion. Over the past several years, Juan has worked with a group of experts to reform interviewing practices globally by developing a universal set of standards for non-coercive interviewing methods and procedural safeguards, to be applied in criminal inquiries but also in administrative processes such as immigration-related investigations.
Public pressure is critical to ensure that states comply with their obligations. In Juan’s case, a campaign by his family, friends, and Amnesty International put his government on notice that it would have to produce him, alive, and soon. In the case of family separation, massive public outcry pressured the administration to issue an Executive Order that affirmed the principle of family unity in immigration enforcement and was cited by a federal court as a factor in its preliminary injunction halting family separation (Ms L v ICE, Preliminary injunction). And yet, without systemic reform to the immigration system, just two years after the 2018 family separation crisis, 124 children are again facing separation from their families, this time compounded by the risk of coronavirus exposure.
But while public opinion and moral outrage have a significant impact, we must persist if we want to see long-term change. Even in these trying times, we must not become too jaded or resigned to care about the fate of those who are being subjected to inhumane practices. The U.S. government must take all measures to reunite separated families, to provide reparations to affected families, and, most of all, to enact systemic changes in accordance with international standards to ensure an immigration enforcement system that is free from coercion and has strong safeguards to prevent torture. Naming torture is one of the surest ways to prevent it in the future and to obtain justice for survivors.