Rod Rosenstein is admittedly sorry about all these kids who’re separated from their mother and father. Oopsies!

(Photo by JIM WATSON / AFP / Getty)

“We do not have a policy of separation of families at the border. Period ”, the former Minister of Homeland Security Kirstjen Nielsen tweeted indignantly on June 17, 2018. That was true, but only in the truest sense of the word. The policy of DHS and the Department of Justice was to arrest virtually anyone who attempted to enter the country between border stations, to automatically “unaccompanied” children who were arrested, and to take them into state custody.

“I have introduced a zero tolerance policy for illegal entry on our southwest border. If you illegally exceed this limit, we will prosecute you. It’s that simple, “announced the then Attorney General Jeff Sessions on May 7, 2018.” If you smuggle illegal aliens across our border, we will prosecute you. If you smuggle a child we will prosecute you and that child will be separated from you in accordance with the law. “

Which may have made the public believe that this is an anti-trafficking measure. Later that month, the AG was clearer on a phone call with US lawyers. “We have to take children away,” he said, leaving no doubt that his intention was to discourage immigration by threatening to confiscate migrant children.

Yesterday, the Inspector General of the Ministry of Justice published a damning report on the family segregation policy officially in effect between April 6 and June 7, 2018. Previously, US lawyers had made efforts not to arrest adults crossing the border with minors, and there was no preparation for an abrupt policy change that would require the detention of thousands of children by the government.

The leadership of the DOJ, and in particular the OAG, did not coordinate effectively with the USAOs on the Southwest Frontier, the USMS, the HHS, or the federal courts before the DHS implemented the new practice of referring adults from family units for prosecution as part of the zero-tolerance policy. Implemented policy. We also found that the OAG’s expectations of how the family separation process would work significantly underestimated its complexity and demonstrated an inadequate understanding of legal requirements related to the care and custody of separated children. We concluded that the department’s single-minded focus was on increasing law enforcement for immigration at the expense of careful and appropriate weighing of the effects of law enforcement on family units and child separation.

The DOJ ignored warnings from the western district of Texas, where a similar “zero tolerance” program encountered difficulties with family reunification in 2017, and instead the AG “focused solely on the increase in law enforcement for illegal entry for the El Paso Initiative and Didn’t Look for readily available information that would have identified them as the serious problems that would have arisen from the prosecution of adults in family units and their separation with children. “

Today there are 611 children who are still not reunited with their families – an outcome that was fully predictable based on information known to the DOJ and DHS prior to the implementation of the Family Separation Policy nationwide.

Jeff Sessions, who refused to collaborate on the investigation, comes in second after Stephen Miller in his fanatical zeal to inflict pain on migrants. But the Sessions MPs in the DOJ look pretty awful too.

Justice Department attorney Gene Hamilton, a close ally of White House Advisor Stephen Miller, blamed Homeland Security for the policy and told the IG: “If Secretary Nielsen and the DHS would not refer people with minors or children, if we didn’t, they persecuted them for not having expelled them. And ultimately that decision would be between Secretary Nielsen and the President. “Which ignores the fact that Sessions was the driving force behind the politics and that Nielsen told the President that it was logistically impossible and possibly illegal.

But in a sense, you know what to get with avowed xenophobes and dinosaurs from a bygone era already shuffling towards the exit. It’s former Assistant Attorney General Rod Rosenstein who knows it’s wrong, but still marches forward loyally and does this terrible shit that breaks your heart.

Here he defends his utter indifference to the DHS’s ability to look after the children in its care and eventually reunite them with their parents, because “My approach has been to trust them and assume that their people will manage as they should and I thought it wasn’t my job to manage someone else’s business. “

You would expect DHS and HHS to be able to manage the children entrusted to them. I think they should have considered that. They should have said, “Hey, there are problems if we do this, we will lose track of the children and we will not be able to reunite the children.” That is a problem they would have reported should. I just don’t see this as DOJ equity.

Here is John Bash, the US attorney for the western district of Texas, who explains in an email to his staff that he just got off the horn with Rosenstein who ordered him to detain babies, no matter how young you are.

I have just spoken to the DAG. He directed that [Attorney General’s] Politics, we should NOT categorically oppose the prosecution of adults in family units for the age of a child. In other words, our policy is if [the Border Patrol] If a single parent of a child of any age is referred to us (or both parents of a child of any age), we should not refuse to prosecute unless there are special circumstances specific to the case (for example, if the child is seriously ill and the child is only one Native speaker speaks) language etc.). I understood that [the Border Patrol] himself had the policy not to refer parents to us if this would separate children under 5 from their parents. But apparently [the Border Patrol] did so on two occasions in El Paso yesterday and, as we understood the policy, we refused. However, according to the directive I just received from the DAG, these two cases should not have been rejected.

Rosenstein admitted that he was shocked that Bash would have interpreted this to mean limiting his discretion not to prosecute parents if the government were to take custody of young children or non-Spanish-speaking teenagers who were unable to interact with their caregivers to communicate.

“If someone got the idea that they should be like a soldier and prosecute any case regardless of the facts, it wasn’t mine, and when you look at Bash’s emails, you should consider the case-related circumstances,” said he of the IG.

“Since I left the ministry, I have often wondered what we should have done differently, and no topic has dominated my thinking more than zero-tolerance immigration policy,” Rosenstein said in a statement released yesterday. “It was a failed policy that should never have been proposed or implemented. I wish we’d all done better. “

It seems that mistakes have been made. This directive should never have been implemented. By whom? Well, Rod Rosenstein can’t tell. But he thinks about it a lot, wondering what, if anything, anyone could have done anywhere else.

Justice officials respond to the family separation report by blaming Trump and expressing regret [NBC]
Review the planning and implementation of the Justice Department’s zero tolerance policy and its coordination with the Ministries of Homeland Security, Health and Human Services

Elizabeth Dye lives in Baltimore, where she writes on law and politics.

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