Undoing the Moral Shame of Family Separation


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The smile of man with career prospects despite illegally separating thousands of children from their parents. Greg Nash/Getty Images

The Architects of Trump’s Family Separation Policy Have Landed on Their Feet

During a conference call in May 2018, then-Attorney General Jeff Sessions told five U.S. Attorneys “we need to take away [the] children” of asylum-seekers and other migrants caught illegally entering the United States. The unprecedented policy of taking children away from parents to deter migration was cruel, illegal, and wrong; yet, the U.S. Attorneys on the call implemented it without moral objections, according to a recent report by the Justice Department’s Office of the Inspector General.

If our country is to “undo the moral and national shame” of family separation, as President Joe Biden has promised, we must ensure accountability for the lawyers who devised and carried out the policy, and who still occupy prestigious roles in the legal profession as if nothing happened.

While U.S. Immigration and Customs Enforcement has received the brunt of public ire for family separation, federal prosecutors have faced far less scrutiny. Yet it was these prosecutors, who enforce criminal rather than civil immigration laws, who actually caused the separation of more than 3,000 children from their migrant parents and guardians. They did so by carrying out Sessions’ “zero tolerance” policy, which instructed them to criminally charge all adults caught illegally crossing the U.S-Mexico border, even if that required separating them from their minor children.

The OIG report shows that when given the unambiguously immoral task of separating children, top federal prosecutors along the border raised mostly “practical implementation questions.” For example, during the policy’s rollout, Adam Braverman, then-U.S. Attorney for the Southern District of California, emailed a Justice Department official and his fellow border U.S. attorneys about implementation issues ranging from the lack of detention space to medical screening, but omitted any substantive concern with the policy itself of separating children.

When Sessions first publicly announced that his zero tolerance policy would cause child separation, the U.S. attorneys contacted Justice Department leadership—not to oppose the policy, but rather to request media talking points. According to an email summarizing the call, one “BIG CONCERN” raised by the U.S. attorneys was: “What is happening with these children when they are being separated from the parent?”; “What are the safeguards to the children[?]”; and … “How are they getting the child back to the parent?” The email is smoking gun evidence that the U.S. attorneys did not know of any plan in place to reunite the families Sessions was asking them to separate. This means that when the prosecutors decided to separate them anyway, they at best recklessly disregarded the welfare of hundreds of children, and at worst were knowing participants in taking children illegally from their families, potentially forever.

In the following weeks, prosecutors continued separating families even as public defenders and judges raised alarm over the unknown whereabouts of separated children as young as three years old. While the U.S. attor