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Child Separation at the Border: A Call for Criminal Prosecution

Roger Lowenstein: Although child separation is the occasional by-product of any criminal prosecution of a single parent, what we are talking about here is a completely different phenomenon. Child separation was not a byproduct — it was the object.
Child Separation

President Biden has referred to the forced separation of children from their parents at the border as “criminal”. Much has been written about the permanent psychological damage inflicted on children ripped from their primary caregivers, and the horrors of “kids in cages”. No one has analyzed the mechanics of the criminal justice system to determine whether such a prosecution is practicable, much less identified the prospective defendants, or whether the traditional immunity of government actors for discretionary policy might apply. This article answers those questions by wholeheartedly recommending vigorous prosecution, and suggests a number of avenues to achieve that goal.

The facts: Although the occasional family was separated during the Obama administration it was never a policy. Obama’s policy was to avoid separating families. Although child separation is the occasional by-product of any criminal prosecution of a single parent, what we are talking about here is a completely different phenomenon. Child separation was not a byproduct — it was the object. It was a cruel strategy designed to deter migration from Central America. The criminal prosecution of all asylum seekers with children was the legal pretext to achieve the object. Prior to Trump, parents with children presenting themselves at the border in order to seek asylum were not charged criminally, even though there was always a misdemeanor statute on the books for illegal entry.

Although child separation is the occasional by-product of any criminal prosecution of a single parent, what we are talking about here is a completely different phenomenon. Child separation was not a byproduct — it was the object.

Because of climate change, drought has killed the crops in a broad swath of Guatemala, spreading starvation and malnutrition. Guatemala has lost half its forests in the last 40 years and deforestation rates are increasing, causing erosion and floods. 70% of the population lives in poverty; 40% in extreme poverty. Migration north from Guatemala has increased 800% in the past two years. The Trump administration, denying the existence of climate change, ended all foreign aid to Guatemala and instead relied solely on the deterrent effect of child separations to discourage migration.

Child separation became a policy on the southern border within weeks of Trump’s inauguration. By swiftly deporting the parents and kidnapping the children it was hoped the word would spread to others considering the trip. The child separators eliminated any institutional procedure for tracking the separated children or maintaining contact between children and their parents. Stephen Miller’s plan was to separate 26,000 children in the first few months of the operation, hundreds of thousands thereafter. Public outcry and a federal judge stymied the program at several thousand, with 450 children still separated as of this writing more than two years later. 

In July 2017, without public announcement, the Administration implemented a family separation pilot program in the El Paso Border Patrol Sector. The pilot program lasted five months and resulted in hundreds of children being taken from their parents and placed in ORR custody. The Administration expanded the policy nationwide in May 2018.

The program of child separation was being intensely promoted and directed by Stephen Miller in the White House along with the President himself. One infamous cabinet meeting in the Situation Room had Miller insisting that the Cabinet vote on the policy in order to diffuse responsibility — all indicated a yes vote except Kristjen Nielsen of Homeland Security, who abstained, but then approved the policy a few days later.

Steven Miller

Steven Miller

On April 6, 2018, Attorney General Sessions announced the implementation of a “Zero Tolerance” policy along the southwest border, mandating the prosecution of all detained adults. The DOJ directed U.S. Attorneys along the southwest border to work with DHS to increase the number of such prosecutions to the maximum extent practicable. Hundreds of families had already been torn apart by family separation policies prior to April 2018.

When U.S. Attorneys at the border pushed back against their superiors, Rod Rosenstein told them that the President wanted every adult prosecuted and the children taken away, regardless of age. One U.S. Attorney noted the removal of a nursing baby from its mother. Months later, when interviewed by the DOJ Inspector General about the impact of the policy on children, Rosenstein remarked “I just don’t see that as a D.O.J. equity.”

Parallel to DOJ efforts DHS Secretary Nielsen was being pressured to make child separation an official policy of the department. The department’s top legal counsel, John Mitnick, warned her that such policy might run afoul of the “INA, Administrative Procedure Act, or the Fifth Amendment Due Process Clause.” 

During this same period, the ACLU sued the Trump Administration to reunite an asylum-seeking mother and her 7-year-old daughter who were fleeing violence in the Congo, only to be separated in the United States and detained 2,000 miles apart. The lawsuit, Ms. L. v. ICE, eventually expanded to a class action, alleged that the Trump policy violated the parents’ substantive due process rights to familial integrity protected by the Fifth Amendment.

On May 4, 2018 the government attorney in the Ms. L case falsely denied in court that there was a government policy or practice to separate children. This is the same attorney who asserted that soap and tooth brushes were not required to be provided to captive children. The next day, without public announcement, Secretary Nielsen signed the memo authorizing the policy. Two days later, on May 7, Sessions announced the coordinated policy between DHS and DOJ to refer 100% of illegal southwest border crossings for prosecution. He said: “If you don’t want your child to be separated then don’t bring them across the border illegally”.

Worldwide condemnation of the policy caused the Administration to back off and reverse the policy by Executive Order on June 20, 2018. On June 26, the federal judge in Ms. L v. ICE issued a preliminary injunction against the continuation of the child separation policy, and ordered reunification. The Court agreed with the ACLU that the policy shocked the conscience,, and identified the parents’ substantive due process right of familial integrity as requiring injunctive relief.

The civil right of familial integrity appears in cases derived from substantive due process, the first amendment and the fourth amendment. These decisions recognize that the right of a man and woman to marry, and to bear and raise their children is the most fundamental of all rights — the foundation of not just this country, but of all civilization. Wisconsin v. Yoder, 406 U.S. 205 (1972) ("The history and culture of Western civilization reflect a strong tradition of parental concern for the nurture and upbringing of their children.”).

Now let’s turn from the civil context to the criminal law.1

Child Separation

Deprivation of Civil Rights 

Following the publication of the Pentagon Papers, John Ehrlichman, Nixon’s Assistant to the President for Domestic Affairs, was put in charge of a secret White House “Special Investigations” unit. One of the activities of that unit was the burglary of Daniel Ellsberg’s psychiatrist’s office. Ehrlichman was convicted of conspiracy to violate civil rights — to wit, the warrantless search of the office in violation of the Fourth Amendment. 18 U.S. Code Sec. 241 makes it a crime for “two or more persons [to] conspire to injure, oppress, threaten, or intimidate any person in any State, Territory, Commonwealth, Possession, or District in the free exercise or enjoyment of any right or privilege secured to him by the Constitution or laws of the United States, or because of his having so exercised the same. . . .” 

Section 241 is a conspiracy statute. The substantive counterpart is 18 U.S. Code Sec. 242, which is identical, except for its requirement that the conduct be “under color of any law.”

On his appeal Ehrlichman made two arguments: First, the burglary was legal because “it was undertaken pursuant to the President’s delegable constitutional prerogative in the field of foreign affairs”; and second, the specific intent requirement of Sec. 241 was not met because he agreed to the search in the good faith belief that the search was legal and had been authorized. Neither argument prevailed. “A mistake of law is no defense in a conspiracy case to the knowing performance of acts which, like the unauthorized entry and search here, are malum in se.”

The Court went on to hold that “belief in the legality of one’s conduct is no defense, so long as the prosecutor showed simply that the object of the conspiracy and the purpose of each defendant was to carry out a warrantless entry and search . . .without permission.”

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The Court continued: “The fact that the defendants may not have been thinking in constitutional terms is not material where their aim was not to enforce local law but to deprive a citizen of a right and that right was protected by the Constitution.”

Government officials who craft and impose an illegal public policy that routinely kidnaps children are depriving parents of their civil right of familial integrity. Those families are protected by the due process clause, and the perpetrators are subject to Sec.241 and 242 prosecution. 

Section 242 has been successfully utilized to prosecute federal border patrol agents who without provocation beat migrants in their custody at the southern border. See Judge Pregerson’s opinion in U.S. v. Otherson, 637 F.2d 1276, 1285 (9th Cir. 1980), affirming the conviction of a group of agents who organized regular beatings, and referred to the primary beater of migrants that day as the DH (designated hitter).

The Court concluded: “In the present case, appellants slapped, beat, and kicked defenseless persons in federal custody. It cannot reasonably be claimed that they believed these actions were lawful, or that they had no fair warning that their conduct could subject them to criminal penalties. . .The message of this case is clear. So long as the American flag flies over United States courthouses, the federal courts and the federal justice system stand as bulwarks to assure that every human being within the jurisdiction of the United States shall be treated humanely and dealt with in accordance with due process of law by those entrusted with the power to enforce the law.”

Hate Crime

18 U.S. Code 245 has two sections that apply to the intimidation of migrants who are attempting to seek asylum, or who is using a facility of interstate commerce and is injured because of race or national origin. A group of skinheads and their organization leaders decided to clear a park of people of color. After chasing three persons and threatening them with violence they were apprehended and successfully prosecuted under Section 245.

The Ninth Circuit Court of Appeals, in affirming the convictions, noted that the statute was constitutional as passed pursuant to the authority of the 13th Amendment. Depriving persons of color the use of a public facility was a “badge and incident” of slavery. Breaking up family units illegally is even more so.

Kidnapping

Another approach to this proposed prosecution is simply to describe the child separation as kidnapping. 18 U.S. Code Sec. 1201 prohibits the seizing and taking away of any person for ransom “or otherwise” and willfully transporting the victim in interstate or foreign commerce. The punishment is any term of years up to life imprisonment. There is no exception for kidnapping pursuant to a government policy, in the same way that Ehrlichman could not claim to be immune because the President had delegated foreign policy authority to him.2

Nor is it a defense that it was anticipated that parent and child would be ultimately reunited. After all, that is the expectation held by kidnappers for ransom — upon the payment of ransom, the child will be released. The intentional failure to keep track of separated children and their parents is further evidence of the perpetrators mens rea.

Child Separation

RICO 

18 U.S. Code Sec. 1961 et. seq. Is the Racketeering Influenced and Corrupt Organizations Act, passed by Congress in order to address and prosecute the infiltration of legitimate businesses by elements of organized crime. The statute has been broadly applied to include prosecution of corrupt government officials who direct a criminal enterprise, often simply an “association in fact”, that has committed a pattern of specific predicate crimes (including kidnapping) over a period of time. The association in fact in this case is the joint effort of leadership in DOJ and DHS, under pressure and direction from the White House, to kidnap children and use that forced child separation to deter lawful asylum seekers, and to coerce guilty pleas to illegal entry.

A RICO conviction, substantively and along with RICO conspiracy, is punishable up to life imprisonment if the predicate racketeering act allows for life imprisonment. No doubt Ehrlichman’s Special Investigations group, or the secret group of border patrol agents (the “designated hitters”) who routinely beat migrants, could have been prosecuted as a racketeering conspiracy.

Commentators have analogized Trump’s leadership style to that of a mafia boss. It would be a fitting irony to prosecute him and his team by means of a statute aimed at prohibiting the infiltration of organized crime into legitimate businesses or government.

This Is a Crime of Race

There is something about wholesale prosecution of government officials that requires reflection before proceeding. We know the harm is real and in many cases permanent. We are, as the trial judge in Ms.L held, clearly shocked by the conduct.

But there is something about well-educated professional government employees that makes us pause because we too are well-educated professionals. We identify with the class of the defendants, and have a difficult time accepting their willingness to inflict pain.

We have no problem prosecuting white supremacist skinheads who clear a public park of black and brown citizens. Likewise, prosecuting an organized group of border patrol agents who take turns beating migrants in their custody seems absolutely proper.

But middle class public servants? Although it is painful to make the analogy, the truth here is that Stephen Miller is no better, and because of his privileged upbringing in many ways much worse, than a skinhead in the park.

He and his colleagues have joined a long and ugly tradition of racial crimes in the United States perpetrated by government, beginning with the genocidal elimination of native populations, carried through slavery and then with post-slavery public lynchings, purposeful infection of black men with syphilis, the placement of Japanese-Americans in concentration camps, the forced removal of native children placed in boarding schools where their culture and language would be systematically eliminated, and just this year, the forced sterilization of refugee migrant women in detention.

When will there be contemporary accountability? For deterrence to be effective, punishment must be swift and certain.

roger lowenstein 202

The Biden Administration cannot delay, so long as the image of children in cages is fresh in our consciousness. The Attorney General needs to appoint a special prosecutor who will, through vigorous prosecution, restore the rule of law and prevent this regrettable cruelty from ever recurring.

Roger Lowenstein

Footnotes

  1.  Who are the prospective defendants here? The ACLU has filed a civil complaint seeking damages against the following officials: Jefferson Beauregard Sessions III, Former Attorney General of the United States; Gene Hamilton, Counselor to the Attorney General; John F. Kelly, Former White House Chief of Staff and Former Secretary of the United States Department of Homeland Security (DHS); Stephen Miller, Senior Advisor to the President; Kirstjen Nielsen, Former Secretary of DHS; Kevin K. McAleenan, Former Acting Secretary of DHS and Former Commissioner of United States Customs and Border Protection (CBP); Mark Morgan, Acting Commissioner of CBP; Thomas Homan, Former Director of United States Immigration and Customs Enforcement (ICE); Ronald D. Vitiello, Former Acting Director of ICE; Matthew Al- bence, Acting Director of ICE; L. Francis Cissna, Former Director of United States Citizenship and Immigration Services (USCIS); Carla Provost, Former Chief of CBP U.S. Border Control; Alex Azar, Secretary of the United States Department of Health and Human Services (HHS); Margaret Wynne, Former HHS Counselor for Human Services Policy; E. Scott Lloyd, Former Director of the United States Office of Refugee Resettlement (ORR). This is a good start for any federal prosecutor managing a grand jury considering indictment of those responsible. We would recommend adding Trump and Rod Rosenstein to this list.
  2. Even if the initial seizing of a child could be considered lawful, which it isn’t if done for an unlawful purpose, holding a child for any reason beyond 72 hours is specifically prohibited. The William Wilberforce Trafficking Victims Protection Reauthorization Act (“TVPRA”), Pub. L. 110-457, 122 Stat. 5044 (2008), permits ICE or CBP, absent exceptional circumstances, to detain unaccompanied children for up to 72 hours to allow ORR to locate an appropriate facility or attempt to place the child with available parents or legal guardians. ORR must locate relatives, friends, or caretakers in the United States to serve as sponsors and care for the children during the pendency of their immigration proceedings. This they did not do.