Attorney General Jeff Sessions graduated from law school 6 years after I did. While the schools were in different parts of the country, there is no reason to believe that, by virtue of geography or timing, the law taught to him was significantly different than the education I received. I can’t be sure of that, of course. But I am sure that going to law school does not, by itself, make you a better human being. I will explain why below.
Among the well-known graduates of the University of Alabama Law School are Harper Lee (wrote To Kill a Mockingbird); Hugo Black (Associate Justice of U.S. Supreme Court); and Howell Heflin (Democratic Senator who preceded Jeff Sessions and who voted against most progressive legislation but came to realize “we live in a nation that daily is trying to heal the scars that have occurred in the past. We’re trying to heal problems that still show negative and ugly aspects in our world that we live in today, and perhaps racism is one of the great scars and one of the most serious illnesses that we suffer from still today.”)
On the other hand, the notables list of UALS includes George Wallace (as Alabama’s governor, sworn to uphold the law, he defied the school integration ruling of the U.S. Supreme Court); Spencer Bachus (at the center of insider trading scandal under rules that exempt Congress from the prohibitions); and, not least, Roy Moore (defeated Senate candidate for Jeff Sessions’ vacated seat, multiply accused of sexual harassment of underage females and twice evicted from his job as Chief Justice of the Alabama Supreme Court for refusing to comply with federal court decisions).
No doubt there are many other notable UALS graduates on both sides of the divide that separates the two groups I have singled out. The same is certainly true of my law school, which graduated Ted Cruz, Anthony Scaramucci and Mitt Romney, all on the wrong side of the humanity divide.
I use the phrase the “humanity divide” because law school should instill in its students not only a respect for the law and legal institutions operating under a complex federal-state system with a constitution as the overarching legal framework for the whole, but also some sense of what is right, what is fair, what is justice. I do not suggest that “justice” is always obvious; clearly, it is not and we have long strings of conflicting Supreme Court decisions to prove it. Justice is hard sometimes but if you search deeply enough, you can usually find it.
As a people, we have, imperfectly for sure, but generally over time. adopted certain norms of civilized conduct from which we do not permit deviations that deny basic human rights and individual dignity to humans. (We are far behind the curve when it comes to protecting animals, but set that aside for today).
For example, we don’t torture prisoners. It’s not that we’ve never done it. We have, but as a societal norm under most controllable circumstances we don’t accept torture as legitimate. A soldier in combat conditions might torture a prisoner in an effort to get information that could save the lives of his comrades in arms. As a society we don’t approve of that torture but perhaps we can at least understand it in the circumstances. But, we don’t accept that behavior when it occurs in circumstances where imminent threats to safety are not present. Those situations are hard to identify sometimes, but we keep trying.
We don’t summarily execute criminals as a lesson to others. To reverse paraphrase our Attorney General’s position on separating children at the border, we don’t say “if you didn’t want to be shot in the head, you shouldn’t have committed a crime.” We don’t say “if you didn’t want to be drawn and quartered, then disemboweled in front of your family, you shouldn’t have robbed that bank.”
In declaring our country’s independence, our founders declared that we hold as self-evident truths that all men (defined now as humans, not by gender) are created equal and are endowed with inalienable rights, among them Liberty. Over time, in our quest for a “more perfect union,” as you would expect, the standards of what “justice” entails will change, and they have, sometimes dramatically. Recall, for example, that until 1954, it was permissible for schools to segregate students by race on the false premise that they were “separate but equal.” The Supreme Court changed that and, as a country and as a people, it is indisputable, I believe, that we are better off because of it. Men once were permitted to own other people as property. We put an end to that too, at the cost of much blood and sacrifice.
Remember that the second opening clause of the U.S. Constitution says “establish Justice.” We don’t always get it right but we keep trying. We have humanity. We show humanity in our treatment of others, even those found to have committed serious crimes against society. It would be more efficient to eliminate court appeals and just take convicted criminals out back and hang them from a tree. Or burn them at the stake. We don’t do that anymore. We have humanity. We have learned. At least we thought we had.
The Trump administration has shown little humanity since coming to power in 2017. It has departed, deliberately and with malice aforethought, from the moral standards that have governed our progress as a people for more than 200 years in a multitude of situations, none more egregious than the policy and practice of separating children from their parents who bring them across the border without required documents.
The Trump/Sessions deportation policy may, I emphasize may, be legal in some technical sense (I am not an expert in that field), but it is certainly not just. It lacks humanity in any meaningful sense. The practice of separating children, some mere babies, from their parents when they have arrived in the United States, whether illegally or legally seeking asylum, and placing the children in cages with no contact with parents who are in some cases deported without process and without their children, is, by any reasonable standard, inhumane, an offense against decency and against higher values to which we aspire. It is a practice of which the German Nazi Party would have been proud.
Among the many things wrong with the policy is that it conflates what the child did with what the parent did and punishes the child for the parent’s transgressions against U.S. law. Self-evidently, a toddler has no control over the parental decision to attempt entry into the United States without proper documentation. Yet, the children are removed from their parents and sent to “camps,” often hundreds of miles away. There are reports that many are unaccounted for. Whatever the reason behind that, there is simply no excuse for creating or maintaining such a system on the theory that it will teach the parents a lesson.
I believe the Trump/Sessions policy, on its face and as practiced, violates the 8th Amendment to the U.S. Constitution, which prohibits “cruel and unusual punishments.” In 2016 the U.S. Supreme Court said, ““Protection against disproportionate punishment is the central substantive guarantee of the Eighth Amendment.” Montgomery v Louisiana, 577 U. S. __. Surely locking a child in a cage away from her parents is disproportionate to anything the child did.
The Supreme Court elaborated on the history of imposing mandatory life sentences without parole on person who were juveniles at the time of their capital offense, noting that
Miller v. Alabama, 567 U. S. 420 (2012 … held that mandatory life without parole for juvenile homicide offenders violates the Eighth Amendment’s prohibition on “‘cruel and unusual punishments.’” [citations omitted]
My point is not that the children being wrenched away from their parents on the southern border are being given life sentences. They are, however, being punished for a crime that they, acting on their own, could not have committed in many, if not most, cases. Locking a child in a cage is punishment. Put Donald Trump or Jeff Sessions in a cage and see how fast they agree.
In addition to U.S. law, there are other resources that inform our understanding of what treatment is appropriate, is just, for children of illegal immigrants caught at the border. According to the United Nations,
The International Law Commission was established by the General Assembly, in 1947, to undertake the mandate of the Assembly, under article 13 (1) (a) of the Charter of the United Nations to “initiate studies and make recommendations for the purpose of … encouraging the progressive development of international law and its codification”.
Article 17 of the Draft Code of the International Law Commission states:
“A crime of genocide means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnic, racial or religious group, as such: … (b) Causing serious bodily or mental harm to members of the group; (c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; … (e) Forcibly transferring children of the group to another group.” [emphasis added]
The Commentary on Article 17 includes this:
“(With regard to subparagraph (e), the phrase “forcibly transferring children of the group to another group”, was drawn from article II, subparagraph (e) of the Convention on the Prevention and Punishment of the Crime of Genocide. The forcible transfer of children would have particularly serious consequences for the future viability of a group as such. Although the article does not extend to the transfer of adults, this type of conduct in certain circumstances could constitute a crime against humanity under article 18, subparagraph (g) or a war crime under article 20, subparagraph (a) (vii). Moreover, the forcible transfer of members of a group, particularly when it involves the separation of family members, could also constitute genocide under subparagraph (c). [emphasis added]
Article 18 of the Draft Code of International Law Commission states:
“Crimes against humanity A crime against humanity means any of the following acts, when committed in a systematic manner or on a large scale and instigated or directed by a Government or by any organization or group: … if) Institutionalized discrimination on racial, ethnic or religious grounds involving the violation of fundamental human rights and freedoms and resulting in seriously disadvantaging a part of the population; (g) Arbitrary deportation or forcible transfer of population; (h) Arbitrary imprisonment; (h) Forced disappearance of persons; (i) Rape, enforced prostitution and other forms of sexual abuse; (A) Other inhumane acts which severely damage physical or mental integrity, health or human dignity, such as mutilation and severe bodily harm.” [emphasis added]
I am aware that international lawyers can, as lawyers will, make all manner of arguments about what exactly each word or phrase means and will argue that this draft language is not binding on the United States, and more. Maybe, but I don’t believe they can overcome the fact that this language frames the concept of inhumane treatment, especially of very young children, as understood by civilized people of the world.
In addition, the ACLU has reported that it has
“uncovered tens of thousands of pages of evidence documenting U.S. Customs and Border Protection (CBP) officials physically, sexually, and verbally abusing children. The majority of these children are asylum seekers fleeing violence in Mexico and Central America. Some are teenage mothers. Some are escaping gang violence. Some are in need of medical attention. All of them have risked their lives to find safety – and tragically, CBP has shattered that dream for so many.
CBP’s abuses are not only unconscionably inhumane, but they also violate United States law and international human rights law, which give protections to migrants, refugees, and asylum seekers – no matter their country of origin.
The uncovered documents show CBP officials – including Border Patrol agents – committing the following abuses:
- Threatening children with rape and death
- Depriving children of food and water and holding them in freezing and unsanitary detention cells
- Shooting children with Tasers and stun guns
- Punching a child in the head repeatedly
- Running over two 17-year-olds with patrol vehicles
- Subjecting a 16-year-old girl to a search in which they forcefully spread her legs and touched her genitals
The violations are numerous. By law, CBP can’t hold unaccompanied children for longer than 72 hours. Children in CBP custody are entitled to safe facilities, adequate food and water, and proper medical care. And as federal officials, CBP officers are legally required to report all allegations of child abuse to law enforcement, child protective services, or the FBI.
All human beings deserve to be treated with dignity and respect, regardless of their immigration status – and children, in particular, deserve special protection. The misconduct demonstrated in these records is breathtaking, as is the government’s complete failure to hold officials who abuse their power.
https://action.aclu.org/petition/cbp-stop-abusing-children [bolding in the original]
Also, read this if you have the stomach for it: https://www.aclu.org/blog/immigrants-rights/ice-and-border-patrol-abuses/ice-cruelty-knows-no-bounds
Who bears the burden of guilt here? Apologies for the length of this, but you really need to grasp the enormity of what is being done to these children and their parents:
In an interview on Tuesday morning with conservative radio host Hugh Hewitt, Attorney General Jeff Sessions doubled down on his defense of the Trump administration’s practice of tearing apart families seeking refuge in the United States, including those seeking asylum. The interview revealed not only Sessions’ lack of basic empathy and compassion but also his willingness to deceive the public in defending this cruel policy.
During the conversation, Hewitt pushed Sessions to consider the implications of separating a child from his or her parent, even asking if Sessions could imagine his own grandchildren being taken from their parents. Yet Sessions would not be moved, opting instead to paint these devastated, vulnerable parents as criminals who are “just coming here because they’d like to make more money.”
Further questioned on the morality of detaining people seeking asylum, Sessions resorted to outright lies. The issue, Sessions explained, is that people are not pursuing asylum in the correct way, by arriving through a U.S. port of entry: “If you come to the country, you should come through … the port of entry and make a claim of asylum.”
Here’s what the Attorney General is not saying: Under its family separation policy, asylum seekers who have followed this exact protocol are still having their children ripped away. It happened to both Ms. L and Mirian G, two mothers who are a part of our class-action lawsuit. Fleeing the Congo, Ms. L, arrived at a port of entry near San Diego with her then 6-year-old daughter to seek asylum. Despite having committed no crime and having followed the correct protocol for seeking asylum, Ms. L and her daughter were detained. Four days later, her daughter was taken from her and sent to a government facility in Chicago. Ms. L was sent to an immigration detention center. The mother and daughter were kept apart by 2,000 miles for more than four months until the ACLU intervened on their behalf. Mirian G., an asylum seeker from Honduras, experienced similar cruelty: After presenting herself at port of entry, Border Patrol agents took away her 18-month-old son. She didn’t see him again for more than two months.
Sessions would have us believe that those who follow the rules will not be subjected to this kind of inhumane treatment, but that’s simply untrue. No one seeking asylum, even those not entering through ports of entry, should be treated like a criminal. But for Sessions to claim that the administration is only separating families who cross the border illegally is just wrong. Our clients did everything by the book and still had their children taken from them.
Sessions also spent much of the conversation attempting to portray the administration’s family separation policy as par for the course. “Every time somebody … gets prosecuted in America for a crime, American citizens, and they go to jail, they’re separated from their children,” Sessions argued. Parents seeking refuge in the United States who are prosecuted for crossing the border someplace other than a port of entry, Sessions’ line of reasoning goes, are simply being treated as any American citizen who is incarcerated.
But since when does the government refuse to reunite a parent and child after someone has served her time?
Crossing the border without proper documentation is a misdemeanor that typically carries the penalty of a few days in jail if you’re prosecuted. What the Attorney General failed to mention is that the government is refusing to give kids back to parents once they have served their time. Our client, Ms. C, experienced this firsthand. After Ms. C, an asylum seeker who was prosecuted for entering the country illegally, served her 25-day criminal misdemeanor sentence, she expected to be reunited with her 14-year-old son who had been cruelly taken from her. Instead, Ms. C was forced to wait more than eight months after serving her sentence before the two were reunited.
It is one thing to defend a morally reprehensible policy, but it is another thing entirely to spew lies in making that defense. On Tuesday Sessions crossed that line.
What, I ask, do these fools in the Trump administration think the long-term consequences of these practices are going to be? What impact will they have on the attitude of people whose rights are disrespected in this way? How are they likely to think about the United States when they mature? Through these practices, the United States is guaranteeing a new generation of enemies who will see the promise of America as a vast lie perpetrated knowingly by a government that resembles the Nazi regime that took over Germany and overran most of Europe.
I submit that the practices and policies of the Trump administration being enforced by the Attorney General as outlined above are crimes against humanity and may be a form of genocide under international standards. As has been the case elsewhere, in time there will be a reckoning about all of this. The callous indifference and blatant disregard for human rights that is evident in these practices and policies will be returned one day to those that are responsible for it. The maintenance of civilization requires nothing less.
To help bring that about, please support the ACLU. It is using our legal system, the one designed as a bulwark against authoritarianism and the critical pillar of the checks and balances of the Constitution, to help defenseless children against egregious violations of human rights. If the government can get away with doing this to these children, it can do it to anyone. We must #RESIST with every means at our disposal.
SHINING SEA 