3:am magazine – “suffer the little children: Sessions zero-legality policy”

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suffer the little children: sessions’ zero-legality policy
By Alan Gilbert.

Hearing the voices of children separated from their parents at the US border calling for their mothers and fathers in secret detention centers makes any decent person, in the US and abroad, shudder. That the government uses secrecy even in grim public facilities, where at least the façade of the building is known to reporters, but also in nonpublic subcontracted warehouses for private military intelligence contractors like MVM to imprison children is both unsurprising – a sign of bureaucratically authorized crime – and appalling. Even some of the people who work in these centers – a nurse in Hastings, New York as well as someone who recorded the Propublica audio tape – take videos or make recordings with cell phones – at great personal risk and smuggle them out. Writing for Reveal and the Texas Tribune, reporter Aura Bogado was called by two witnesses because groups of children were being guided to two unknown, MVM “transition” warehouses/office buildings in Pheonix. There were no kitchens, few bathrooms; in one, children could only bathe in a sink.

The moral description of those responsible for these detention camps is shiveringly cruel or sadistic; the name for these practices is evil. On a whim of Steven Miller, Sessions and Trump – with near obliviousness to the rule of law – the US government does this harm on purpose, with malice aforethought, and also with casual incompetence. The want-to-be autocrat and his sycophants believe can do anything they want. They even flout judicial orders.

In response to Southern California Federal District Judge Dana Sabraw’s order to reunite children under 5 including some nursing babies, with their parents by July 10, the Health and Human Services Department initially reported that it couldn’t tell what happened to 16 out of 101 children under 5 years old – nearly 16% – and that they deported the parents of another 19 – 20% – and cannot even locate another 19 – 20% – released in the United States before hearings. The total missing was more than 56% – i.e. more than half of the families of children under 5. In a democracy with the rule of law, those responsible for kidnapping and abusing children be facing trial. Secretaries Alex Azar and Kirstjen Nielsen should have been sent to non-luxury jails for contempt of court by the day until there was information about and clear plans for the return of every child to her or his parents.

Instead, Secretary Azar then announced that the “Health and Human Services” Department would treat parents and their (violently by the US government) separated children as “unaccompanied” and subject them to a much longer review… Parents who often do not speak English or Spanish – many are Guatemalan Mayans, for example – and are often not allowed lawyers, have been browbeaten by detention guards and officials into and agreeing to be deported, sometimes back to likely death, as long as they could be reunited with their children. But the administration has now deported some hundreds without their children, and has, as Judge Sabraw angrily said, “lost track” of the parents.

These are parents who had believed in the United States enough to leave their murderous home for dangerous travel and often sexual abuse. Yet is there some other country which is now as cruel as the United States to these kidnapped children?
As of two weeks beyond the court order, only 57 of 102 children under 5 years old kidnapped from their parents had been reunited. Against Judge Sabraw’s injunction, 45 – 44% – were “declared ineligible” to be reunited. Judge Sabraw also ruled that the government must reunite all children seized – an additional, officially recognized 2551 children over 5 by July 26, As of today just under 1187 have so far been returned to parents or another “appropriate” family. But that figure may include some dumped in American foster homes (that is, kidnapped and resettled…). 917 – 36% – are deemed “not eligible,” including those whose parents had “agreed” to go so long as they could be reunited with their children and were deceived even in this.

These officials have legal “authority” – they can sadistically victimize children and families seeking asylum. The ACLU, represented particularly by Lee Gelernt, and many other attorneys, have fought heroically to get this much information on the chidren released. But reporting in the corporate press, though reporters are often horrified by Trump’s measures, is way too awe-struck about authority. About children, reporters dutifully listen to officials and report their views – really, half the parents are “criminals” or “smugglers or “agreed to be deported without their kids…”

One commentator on a CNN show said that what Secretary of State Nielsen had declared about asylum seekers – that they must present themselves at ports of entry – breaks the law. That is right. The rest of this article will report on 7 American laws which the implementers of this policy violate. But what legal and moral name is appropriate for administration officials and agents who are responsible for kidnapping large numbers of children and then “misplacing” them or settling them in foster homes?
The United Nations Convention against Genocide (1948) names the crime of genocide – a crime against humanity – as a pattern of action intended to destroy ‘a people in whole or in part.” The US government initially did not sign the Convention because segregation was genocidal toward black people (as was the government oppression of indigenous americans). But the US finally joined nearly every other country in the world by signing it under President Reagan. On February 19, 1986, it was finally ratified by Congress. Once the US ratified the convention, under Article 6, section 2 of the American constitution, that treaty became the highest law of the land. Since these are refugees, one may not initially see the broad pattern of American policy toward the peoples of Central America. But these are systemic efforts through military aid and coups in fostering oppression internally in, for example, Guatemala, Honduras, Salvador and Haiti, and harming the families who come to American borders for asylum.

Below I outline an indictment of major government officials under this Convention, the international Convention on Refugees (1951) and at least 7 American domestic laws. What I describe has been stressed by a statement below of 13,013 mental health professionals on trauma caused to children by forcible separation from their parents, by ACLU and New York lawsuits on behalf of the children and their families, by reporters like Aura Bogardo of Reveal and the Texas Tribune and Debbie Nathan at the Intercept, and by politicians like New York Governor Andrew Cuomo.

In a flash through Kafkaesque darkness, secrecy, casual incompetence and lunatic stupidity, the words of international and American domestic laws make clear just how obvious and monstrous these crimes are.

In light of the UN Convention against Genocide, Article 2, section (b) causing serious bodily or mental harm to members of the group; and section (e) forcibly transferring children of the group to another group, and in view of the Supremacy Clause, Article 6 section 2 of the US Constitution, which “establishes that federal laws made pursuant to it, and treaties made under its authority, constitute the supreme law of the land and override conflicting decisions by state legislatures or courts” and in view of the UN Declaration of Human Rights , specifying the basic rights of each person, regardless of nationality: article 16 section 3: “The family is the natural and fundamental group unit of society and is entitled to protection by society and the State” and article 25 section 2: “Motherhood and childhood are entitled to special care and assistance. All children, whether born in or out of wedlock, shall enjoy the same social protection” and taking account of the UN Convention on the Rights of the Child, Article 11 Section 1 “States Parties shall take measures to combat the illicit transfer and non-return of children abroad,” and Article 12 section 1: States Parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child as well as 12 section 2: For this purpose, the child shall in particular be provided the opportunity to be heard in any judicial and administrative proceedings affecting the child, either directly, or through a representative or an appropriate body, in a manner consistent with the procedural rules of national law” (immigration judges hear cases of many parents or children at one time ; a 3 year old climbed on a table, unrepresented while a “judge” disposed of his case…), and in view of international customary law on command responsibility – that higher officials/officers are responsible for crimes committed by their troops against civilians and prisoners of war if they do not explicitly warn against the crimes (the Tokyo war crimes tribunal; Yamashita v. Styer, U.S. Supreme Court, 1946) and in view of the facts concerning the violent separation of children from their parents and transportation to secret detention centers, imposing trauma on the children – see the statement signed by 229 mental health organizations and 13,013 Mental Health Professionals below –
and in view of particular crimes at those centers like physical and sexual assault by guards, use of psychotropic drugs at the Shiloh Treatment Center in Manville, Texas, extreme neglect (children sometimes returned unbathed for two months and with lice) and the unwillingness of the Trump administration even to make available girls and young women to senators and representatives after two weeks delay, and in view of the administration having “lost track” of over half of an ever shifting but at least 3,000 stolen children, attempting to defer and then disobeying a court order by Judge Dana Sabraw of the Southern District of California to reunite these children with their families, the “officials” now have the cheek to suggest that the parents may be “human smugglers,” and in view of Secretary Alex Azar telling Governor Inslee of Washington that placing children including of “tender age” (under 12) in foster homes, with strangers and even in other countries counts as “family reunification,” and in view of Secretary Azar/ICE claiming to be able to reunite barely half of children with their families by and beyond court deadlines and now to have “lost track” of many parents, and in view of the CIA role in the coup against the elected Arbenz regime in Guatemala, the Obama-Clinton military aid to and support of the coup against the elected Zelaya regime in Honduras, the US arming of Guatemalan genocide against 200,000 Mayans and other ordinary people, and the fact that most people who seek asylum are fleeing (U.S.-backed) disintegration of law and order in those countries, the following are guilty of crimes against humanity under international and American domestic law, as well as violations of six further domestic laws, and should be prosecuted in American courts (or in international courts if American justice lapses):

a) Attorney General Jefferson Beauregard Sessions
b) Thomas Homan, former head of ICE, Ronald Vitiello, current director of ICE and all other officers of ICE who have not resigned or denounced the policies
c) Kirstjen Nielsen, secretary of Homeland Security
d)Trump
e) Steven Miller, advisor on crimes against children,
f) Alex Azar, Secretary of Health and Human Services
g) John Kelly, White House chief of staff and former Secretary of Homeland Security
h) Michael Pence
i) the entire executive board of MVM, Southwest Key, Geogroup, Corp Civic and other “private” detention centers (the Northern Virginia Juvenile Detention Commission is the first and so far only such facility to refuse to take kidnapped children)
j) all other American officials and senior executives of American corporations who have willingly collaborated or acquiesced in this program that is, who have not spoken out against it as American and United Airlines have
k) all individuals responsible for specific acts of violence toward children (drugging, for example, at the Shiloh Center).

On CNN July 7th, one mother was reunited after two months with her daughter. She said heartbreakingly: “Forgive me, my darling for leaving you alone.” Five year olds often do not understand when the American government illegally imprisons their mother and kidnaps the child. At the end of June, Secretary Azar bragged to Congress about being able ”with a few keystrokes in seconds” at the ORR [Office of Refugee Resettlement’s] portal ”to find every child” in one of his now myriad, deceitful tales. The separation – kidnapping – is already a crime and is amplified by failure to reunite a large fraction of the families despite court orders to do so.

But these officials have also committed 6 further crimes:

They have violated 8 U.S. Code § 1158:
“(a) Authority to apply for asylum
(1) In general
Any alien who is physically present in the United States or who arrives in the United States (whether or not at a designated port of arrival and including an alien who is brought to the United States after having been interdicted in international or United States waters), irrespective of such alien’s status, may apply for asylum in accordance with this section or, where applicable, section 1225(b) of this title.”

Nothing in 8 U.S. Code § 1158 indicates the government may take custody of asylum seekers’ minor children, with or without force. Note also where the asylum seekers may apply — they are not limited to designated ports of entry and may apply any time within 1 year of arrival.

On June 17, Secretary Nielsen falsely tweeted:

“This misreporting by “Members, press and advocacy groups must stop. It is irresponsible and unproductive. As I have said many times before, if you are seeking asylum for your family, there is no reason to break the law and illegally cross between ports of entry.”

But it is not those “Members, press and advocacy groups” who are “irresponsible”; it is Secretary Nielsen’s own arrogant and baffling ignorance of the law which she directs balefully against children.

In addition, Border Patrol agents now – as a matter of policy – refuse entry to asylum seekers, making them wait out day after day in the sweltering Texas heat and permitting no legally required“credible fear”hearings. These acts violate Article 31 of the 1951 Convention Relating to the Status of Refugees, Article 6 section 2 of the American constitution, and 8 U.S. Code § 1158.

As immigration attorney Lindsay Harris notes:
“In early 2017, for example, Human Rights First documented 125 cases of Border Patrol agents unlawfully turning back asylum seekers. Lately, border officers tell asylum seekers to “come back later,” turning away one family nine times. This violates our legal obligation under Article 31 of the international Refugee Convention and under our own Refugee Act of 1980 not to return an asylum seeker to a place where she faces a threat to her life or freedom.”

These acts add a new category to those listed above:
l) all border patrol and ICE agents who bar asylum seekers rather than facilitate a “credible fear” hearing

Attorney General Jefferson Beauregard Sessions has personally sought to stop all asylum seekers with a zero-legality policy.

As Harris explains:
“In June, Sessions reversed a grant of asylum for a Salvadoran woman fleeing domestic violence, single-handedly undoing two decades of progress for gender-based asylum claims. He also changed the standard for asylum to require not only that the government in a migrant’s home country is unwilling or unable to protect the asylum seeker from harm, but also that the government is actively condoning persecution by non-state actors — a higher bar for applicants to meet. Asylum claims should be adjudicated on a case-by-case basis, but Sessions’s order states that generally, those fleeing domestic violence or gang violence will not pass a credible-fear interview.”
Contra Sessions, however, women who are beaten and raped where local government refuses to enforce the law or collaborates with the rapists, are a category: patriarchal violence. Similarly, “cartel” violence – often where former military figures trained in the United States and cooperators with American intelligence lead the organizations – is also a category. In both categories, the abetting role of local government and American cooperation/power are visible. By bizarrely forcing asylum seekers to trace exact causal aetiologies when they have barely escaped being beaten and threatened with death, Sessions seeks to conceal violent, trans-administration American government interventions.

Once again, hundreds of asylum seekers have been deported without their children. These were often misled because they don’t speak English or for Mayans from Guatemala, Spanish and coerced (at the least) without lawyers present. Yet Sessions proclaims:

“We also have dirty immigration lawyers who are encouraging their otherwise unlawfully present clients to make false claims of asylum providing them with the magic words needed to trigger the credible fear process.”

2. Sessions projects his own sadism on these attorneys (as Martin Luther King says in the “Letter from the Birmingham City Jail,” in law, a racist feels no obligation to treat the children of an “other” in the same way as his or her own children)The violent separation of children from their parents is kidnapping (18 U.S. Code § 1201), including section (a)(3), an “act against the person is done within the special aircraft jurisdiction of the United States as defined in section 46501 of title 49” for those children who are flown to other destinations in the U.S. out of their parents’ physical custody.

Spurred by protests by flight attendants, however, United Airlines and American Airlines have rightly published letters telling the Department of Homeland Security to stop using their services to move kidnapped children across the country.

3. The prison conditions in which many of the children are held – they have already been kidnapped… – are at best abusive and sometimes – the Shiloh Treatment Center – sadistic (on July 29, Judge Dolly Gee of the Central District of California ordered the removal of all children from this site because of the use of psychotropic drugs without parental approval).

Referring to a lawsuit to be filed by Attorney General of New York, Governor Andrew Cuomo names three further crimes:

4.“holding the children apart from their families is a violation of the constitutional rights of parents to care for, maintain custody of and communicate with their children. These parents are afforded the fundamental right to family integrity under the United States Constitution and under the New York State Constitution.”

5. “Detaining children is a violation of the terms of the 1997 Flores settlement agreement with the federal government, which set national standards regarding the detention, release and treatment of children in immigration detention. The settlement prioritizes the principle of family unity, requires juvenile immigrant detainees to be released within 20 days” On July 9, Judge Dolly Gee of the Central District of California pointedly reaffirmed this standard.

6.“we intend to invoke what is known as the ‘outrageous government conduct doctrine.’ In a 1973 case, United States v. Russell,the Supreme Court wrotethat it ‘may someday be presented with a situation in which the conduct of law enforcement agents is so outrageous that due process principles would absolutely bar the government from invoking judicial processes to obtain a conviction.’”

“Due process” – requiring habeas corpus, barring torture, and ensuring a day in court under well publicized laws is a cardinal feature of American law (see Amendment 14 to the constitution, article 1). For children and parents, the named officials have travestied this.

Trauma – also referred to as toxic stress – is today a widely agreed upon medical diagnosis, with evidence which has already come forth in the audio tape released by Pro Publica and the video recorded by a nurse from a detention center in New York – the weeping and silence. Trauma is the mental harm invoked in article 2b of the United Nations Convention against Genocide.

229 medical professional organizations and 13,013 mental health professionals have signed a statement on the often lifelong damage caused by child separation.

“Stop Border Separation of Children from Parents!

We would like you to remember what it feels like to be a child. To take a moment and remember how big and sometimes scary the world felt and how, if you were lucky, the adults in your life represented security and safety. We want you to remember what little say you had over what you did and what happened to you and that even though this was frustrating, some part of you trusted that your parents knew what was best for you. And that your physical and psychological survival depended on them…From decades of research and direct clinical experience, we know that the impact of disrupted attachment manifests not only in overwhelming fear and panic at the time of the separation, but that there is a strong likelihood that these children’s behavioral, psychological, interpersonal, and cognitive trajectories will also be affected. The National Child Traumatic Stress Network notes that children may develop post traumatic responses following separation from their parents and specifically lists immigration and parental deportation as situations of potentially traumatic separation. To pretend that separated children do not grow up with the shrapnel of this traumatic experience embedded in their minds is to disregard everything we know about child development, the brain, and trauma.

We find ourselves again upon a time where we will one day utter ‘how could we have let that happen?’ We cannot afford to forget that there is a history of separating children from their parents: during slave auctions; during the forced assimilation of American Indians; and during the Holocaust. The reverberations of these barbaric stains on our history are still felt today and future generations of these original victims will inherit the intergenerational transmission of these traumas. To try and argue that this policy of ripping children from their parents at the border is somehow different from the systematic traumatization of children during the times of slavery, forced assimilation, and the Holocaust is to disregard history. To somehow convince ourselves that this systematic traumatization of children has no bearing on the lives of these children and no impact on the legacy of our country is to be living in an alternate universe. And to not care about the impact these policies have on these children is to succumb to the worst potential of humanity.”

Jefferson Beauregard Sessions and Adolf Hitler both praise the racist 1924 US Immigration law which cut immigration from Italy by 90%, excluded Jews from Eastern Europe – turned back to Hitler – and also entirely barred Asians.

In a radio interview with Steven Bannon on Breitbart in October, 2015, Sessions asserted:

“In seven years we’ll have the highest percentage of Americans, non-native born, since the founding of the Republic. Some people think we’ve always had these numbers, and it’s not so, it’s very unusual, it’s a radical change. When the numbers reached about this high in 1924, the president and congress changed the policy, and it slowed down immigration significantly, we then assimilated through the 1965 and created really the solid middle class of America, with assimilated immigrants, and it was good for America. We passed a law that went far beyond what anybody realized in 1965, and we’re on a path to surge far past what the situation was in 1924.”

In Mein Kampf, Hitler belittled the Weimar Republic compared to the 1924 American exclusion law:

“At present, there exists one State which manifests at least some modest attempts that show a better appreciation of how things ought to be done in this matter. It is not, however, in our model German Republic but in the U.S.A. that efforts are made to conform at least partly to the counsels of common sense. By refusing immigrants to enter there if they are in a bad state of health, and by excluding certain races from the right to become naturalized as citizens, they have begun to introduce principles similar to those on which we wish to ground the People’s State.”

On the spirit of this law, here is Senator Ellison Durant Smith speech to Congress in 1924 to “Shut the Door!”:

“I think we now have sufficient population in our country for us to shut the door and to breed up a pure, unadulterated American citizenship. I recognize that there is a dangerous lack of distinction between people of a certain nationality and the breed of the dog. Who is an American? Is he an immigrant from Italy? Is he an immigrant from Germany? If you were to go abroad and some one were to meet you and say, ‘I met a typical American,’ what would flash into your mind as a typical American, the typical representative of that new Nation? Would it be the son of an Italian immigrant, the son of a German immigrant, the son of any of the breeds from the Orient, the son of the denizens of Africa? It is the breed of the dog in which I am interested. I would like for the Members of the Senate to read that book just recently published by Madison Grant, The Passing of a [sic – reading is not a strong point in this crowd] Great Race. Thank God we have in America perhaps the largest percentage of any country in the world of the pure, unadulterated Anglo-Saxon stock; certainly the greatest of any nation in the Nordic breed… let us shut the door and assimilate what we have, and let us breed pure American citizens.”

Because of abolitionism, the defeat of the slave-owners in the Civil War, and the civil rights movement, the United States has become – in spite of elite-sponsored racist movements – a welcoming place for people of many nationalities. It is the home of equal basic rights and their extension, with struggle from below, to women, blacks, latinos, indigenous Americans, gays, lesbians and transgender people. The crimes of the named officials are part of a concerted eugenic effort to drive large numbers of people out of the United States and harm millions of others.

White workers, like black and latin workers, have suffered the loss of health care under Trump. Money has been stolen from common good-sustaining programs – even food stamps for children – and funneled to the ultra-rich.

As Pastor Martin Niemoller underlined, no one escapes the harms of genocide.

“First they came for the Socialists, and I did not speak out—
Because I was not a Socialist.

Then they came for the Trade Unionists, and I did not speak out—
Because I was not a Trade Unionist.

Then they came for the Jews, and I did not speak out—
Because I was not a Jew.

Then they came for me—and there was no one left to speak for me.”

Allow children to be brutalized before our eyes and the criminals will soon treat all this way. Fortunately, some ¾ of the voting population (and an even larger percentage when including the 50% who did not vote in the last election) is against this administration and many are acting on this. That resistance will be strengthened by bringing the rule of law, more pointedly, in the United States of America to the fore.

ABOUT THE AUTHOR.
Alan Gilbert is a philosopher who specialises democratic theory, international relations theory, social theory, history of political thought, ethics, philosophy of science and social science, slavery and the American Revolution, comparative revolutions, violence and non-violence, democracy and the arts, medieval Islam and Europe.
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First published in 3:AM Magazine: Sunday, August 5th, 2018.

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