The national conversation in the United States recently shifted to reports revealing that lawyers and human rights advocates still cannot find the parents of hundreds of migrant children separated by Donald Trump’s administration in its dry run in 2017.
The conversation brings to the forefront a horrifying truth: the Trump administration intended to rip families apart by prosecuting parents, and cruelty was absolutely the point.
As this policy was formally rolled out in May 2018, I was documenting cases of family separation that Amnesty International determined constituted torture. The obligation to prevent and punish torture is well-established under international law. This includes the United Nations Convention against Torture to which the United States is a party. It states that all those responsible for the crime of torture must be held accountable.
A group of distraught, scared fathers approached us as we interviewed people being held at an immigration detention facility. Each of them said that the government had taken away their sons and daughters when they entered the US. They did not know where their children were or how to find them. They had last seen them as they were taken to buses and watched in despair as they were driven away. One father cried as he implored staff to help him find his child.
One mother described the feeling of being separated from her child: “they ripped my heart out of me … for me, it would have been better if I had dropped dead.” Parent after parent described the extreme anguish, confusion, and terror they felt being separated from their children.
Horrific Zero Tolerance Policy
These mothers and fathers were among the traumatized survivors of the horrific “Zero Tolerance” policy. This policy was documented in a bombshell draft report of a Department of Justice (DOJ) investigation.
It revealed that former Attorney General Jeff Sessions ordered prosecutions of safety-seeking parents with the explicit aim of tearing them from their children. Sessions reportedly told the prosecutors who reported to him at the time, “We need to take away children.” His deputy Rod Rosenstein reportedly insisted that prosecutors pursue even parents with infants.
Amnesty International, among other organizations, medical experts, and affected asylum-seekers, extensively documented the damage inflicted on both parents and children who were subjected to the breathtakingly inhumane act of ripping families apart. The trauma wrought by the separation of one’s family is a harm so grave, psychologists have called it “soul murder.”
The DOJ’s findings reinforce our conclusion that the US government’s policy and practice of forcible family separations was intentional, inflicted severe pain and suffering, and was carried out to deter others from coming to the US to seek asylum and to coerce people seeking asylum to give up their claims. In other words, it amounted to torture.
Call for Investigation
Therefore, government officials who participated in, ordered, authorized, condoned, or acquiesced in torture or other crimes under international law should be investigated.
An investigation should be conducted irrespective of whether these officials acted on behalf of the Department of Justice, Department of Homeland Security, or any other US government agency. If there is sufficient evidence, they should be prosecuted — no matter the level of office or former level of office. The US government is obliged to do so under international law.
If, as the two-year DOJ report investigation indicates, that Sessions and Rosenstein ordered or authorized blanket prosecutions of parents and caregivers of children with the aim of separating them from their children, they should be subject to criminal investigation and, if sufficient admissible evidence is found, be prosecuted.
The vociferous pushback from government officials involved in the family separation policy indicates the taint and liability they rightly fear. The paper trail will not lie, spin will fall flat, and history will be damning. The actions that should be taken in response to the DOJ draft report should send a chilling message to government officials — no one is above the law.
Redressing the Damage
Redressing these harms undoubtedly requires holding all those responsible accountable for their crimes. It also requires providing additional mechanisms for redress and guaranteeing that these harms will not be repeated. As the report underscores, this suffering was deliberately inflicted to punish people seeking safety in the United States.
Government officials — from President Trump to the heads of Department of Justice and the Department of Homeland Security — have relentlessly and falsely derided the right to seek asylum as a legal loophole being exploited. However, it is in fact a human right, a cornerstone of refugee protection enshrined in domestic and international law.
We must also undo this damage and restore this country’s respect for the right to seek asylum.
Irreparable Harm
The divisive and discriminatory attacks of government officials on the right to seek asylum has had more than legal consequences. It has jeopardized an untold number of people’s lives and caused irreparable harm.
It has dehumanized people and stripped away compassion. Furthermore, it has enabled a mindset that would implement a policy such as family separation that knowingly results in trauma. That is why, as the media reports, many officials flinched and were aghast at the proposal. But not enough did.
There must be accountability among those at the very top of the US government who authorized or ordered this heinous policy. This includes those named in the draft report as well as those who directly participated.
While the harms wrought by family separation can never fully heal, a criminal investigation is a critical and necessary step to ensure that such wrongs are never repeated.
There must be an effective criminal investigation of all government officials, personnel, and contractors who are responsible for this shameful period of our history — no matter their current or former level of office.