Wednesday, June 20, 2018

We don't have to prosecute them/but then we're not prosecuting them

Francisco de Goya, St. Peter Repentant, 1823-25. Via Wikipedia.

The truest Trump is perhaps the one who's spare and blank and at the same time musically repetitive, like the Eliot of "Ash Wednesday" ("Because I know that time is always time/ And place is always and only place/And what is actual is actual only for one time/ And only for one place...")—in this case literally true, because, speaking to the National Federation of Independent Businesses on their 75th anniversary, uncharacteristically using fairly elaborate notes but no prepared text, he found himself hovering around, if not quite landing on, a helipad of contrition:

by Donald J. Trump

We have one chance
to get it right.
We might as well
get it right or let's
just keep it going but
let’s do it right.
We have a chance. We want to solve
this problem. We want to solve
family separation. I don’t want
children taken away from parents
and when you prosecute the parents
for coming in illegally, which should happen,
you have to take the children away.
Now, we don’t have to prosecute them
but then we’re not prosecuting them
for coming in illegally. That’s not good.

It's the acknowledgment that this crisis of concentration camps for children is of his own making: he did it, personally, voluntarily, in some kind of knowledge of what the consequences were going to be. "We don't have to" but it "should happen" (dodging the responsibility with the impersonal verb).

And then what do you know? After contrition comes atonement, and lo and behold!

Homeland Security secretary "Kirstjen" Nielsen (I can't tolerate the illiteracy of this name, which is an error for Norwegian Kjirsten or more properly Kjersten—parents so proud of their ultrawhiteness but can't be bothered to learn to spell) is said to have been drafting an "executive order" allowing families to stay together in detention, even as she was telling the public that "only Congress can fix this".

We'll see how effective it is, or who it applies to, or whether anything is going to be done about prosecuting the civil violation of illegal entry as if it were the equivalent to money laundering or bribery or obstruction of justice or other real crimes. Or whether it does anything to reunite the thousands of parents and children who have already been separated. I'm afraid I have my doubts. Flint still doesn't have drinking water and thousands of Puerto Ricans still aren't on the electricity grid.

The media coverage seems to be getting a lot better from all angles meanwhile, even the legal one, which I'd like to dwell on for a minute, because it's important for us to start telling this story well. Dahlia Lithwick has covered it as clearly as anybody could:
There are two different policies in play, and both are new.
First is the new policy that any migrant family entering the U.S. without a border inspection will be prosecuted for this minor misdemeanor. The parents get incarcerated and that leaves children to be warehoused. The parents then typically plead guilty to the misdemeanor and are given a sentence of the few days they served waiting for trial. But then when the parents try to reunite with their children, they are given the runaround—and possibly even deported, alone. The children are left in HHS custody, often without family.
Second is a new and apparently unwritten policy that even when the family presents themselves at a border-entry location, seeking asylum—that is, even when the family is complying in all respects with immigration law—the government is snatching the children away from their parents. Here, the government’s excuse seems to be that they want to keep the parents in jail-like immigration detention for a long time, while their asylum cases are adjudicated. The long-standing civil rights case known as Flores dictates that they aren’t allowed to keep kids in that kind of detention, so the Trump administration says they have to break up the families. They do not have to break up families—it is the government’s new choice to jail people with credible asylum claims who haven’t violated any laws that is leading to the heartbreaking separations you’ve been reading about.
This second thing doesn't seem to be happening consistently; there are many more reports of overcrowding at the official points of entry, five-day waits (with no indoor waiting stations with sinks and toilets such as there used to be), and border guards simply ordering people away, as this from AZ Central (which is getting to be one of my favorite papers, weirdly):

"We have seen an active effort to deter asylum seekers legally crossing the border to get to the inspection where they can actually petition for asylum or refugee status,” said Fernando Garcia, the executive director and founder of the Border Network for Human Rights. His group has documented many cases over the past few weeks of asylum seekers turned away from border crossings linking El Paso to Ciudad Juarez.
Over the past week, media reports have also revealed U.S. Customs and Border Protection officers doing the same along other parts of the Texas border, from El Paso to Brownsville. Officers stand in the middle of the international bridges crossing the Rio Grande, turning away asylum-seekers.... 
But on any given day [at Nogales], they process an average of about three families, she added, and frustration is setting in.
With no alternatives but the thousand-mile walk back to Mexico's southern border, people end up wandering away from the port of entry and crossing into the US without authorization, and then they get picked up and their children are taken to camps.

Thus the brand new idea of prosecuting people for illegal entry as if it were a felony—the "zero tolerance" concept espoused by Sessions, although it's far from zero tolerance, since it won't affect the millions of undocumented people making their lives in the US—is the fundamental cause of this crisis, interacting with the Flores v. Reno holding of 1997 that prevents immigration authorities from detaining minor children for more than 20 days, who are supposed to be placed in foster care, preferably with relatives, without delay.

That holding, incidentally, is an editing error, as I learned from a very good interview getting into the details on NPR with Leon Fresco, who was a deputy assistant AG in the Obama administration at the time of the 2014 unaccompanied children crisis. The case was only about unaccompanied minors, children who'd traveled up through Mexico without their families (like the 1500 kids who supposedly went "missing" in May, remember that one?), and was meant to prevent them from being detained on their own, not from being detained with their parents, but whoever drafted the opinion left out the word "unaccompanied", so now it's held to apply to all minor children, even though the provisions
Facilities will provide access to toilets and sinks, drinking water and food, as appropriate, medical assistance if the minor is in need of emergency services, adequate temperature control and ventilation, adequate supervision to protect minors from others, and contact with family members who were arrested with the minor.
—show that separating the child from parents is a violation of the order!

In fact the Flores case was a progressive attack on the overly harsh treatment of unaccompanied minors in the Clinton administration. It's the highest possible irony that Kelly and Sessions and Trump are using the decision as an excuse for creating children's concentration camps.

"It's going to be just as tough," says Donald, "but you're going to be seeing a lot of happy people." In the future it will be merely as bad as the internment of Japanese Americans in World War II. For those whose suffering we've been contemplating all week, seems clear there are no plans for reunification for the children currently encamped. No text of the "executive order" has been released, which may be a tell in its own right, but TPM says it's a request to Sessions to request federal courts to allow the administration to allow families to stay together, or fourth-hand maybe.

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