June 22, 2018 Harvard FXB Statement on US Zero Tolerance Policy

President Trump introduced a “zero tolerance” immigration policy on April 6, 2018, as a seemingly fail-safe measure to prevent what he calls undesirables from seeking to enter the US across the border with Mexico. He launched the policy to elevate his stature as the defender of an American populace under threat. His account is eerily reminiscent of pronouncements by genocidal regimes dehumanizing targeted groups. Rwandan Hutus described their Tutsi targets as cockroaches, Nazi doctors referred to Jews as “bacteria”, Trump has denounced the desperate families trying to cross the Mexican border as aiming to “infest” our country—a vicious code word that evokes the most evil times of our collective world history.

Trump’s directive to criminalize a flight from misery and his extraordinarily inflammatory rhetoric has led to immediate widespread damage. For the first time ever, all adult migrants crossing into the US without prior approval or entitlement to enter, including some at recognized ports of entry, are being arrested, detained and charged with a criminal offense. This criminalization of asylum seekers and others fleeing violence and oppression does not defend the American people. Our borders and our safety are well protected by long-standing immigration controls and procedures that enable the authorities to deport or remove those ineligible to remain. By blanket criminalization, Trump has on the contrary dramatically undermined a core American norm– the founding belief in providing safe haven for those fleeing tyranny. Historical deviations from that belief are not celebrated, they are deeply regretted. Coupled with the recent orders from the Attorney General to radically curtail access to refugee protection for people fleeing persecution by non-state actors (murderous spouses, violent drug cartels), these measures undermine one of the founding self-images of America.

For more than two months, the policy has led to the enforced and willful separation of forced migrants from their accompanying children. To our knowledge, no democratic government in peace time, since the long-reviled separation from their parents of children born into slavery (US) or indigenous or indigent children (UK/Canada), has deliberately executed such a policy against the manifest interests of children, in the absence of a criminal court prison sentence. To be sure, over the past century, the US government, in times of war, deliberately interned persons wrongly considered enemies. But the executive order issued in 1942 interning Japanese living on the US West Coast, including those born in the US and thus US citizens, did not separate children from their families. These egregious acts have been acknowledged for what they were – violations of core American values, and apologies and reparations have ensued.

Shock at a manifestly inhumane policy intentionally leveraging potentially irreversible harm to innocent children as a bargaining chip to extract party political advantage in the immigration arena galvanized a broad bipartisan protest. The tape recordings, images and testimonies shocked the nation’s conscience. Reporters and legal representatives, defying the attempts at concealment by the authorities, disseminated documentation of babies wailing, of toddlers huddled visibly traumatized, of young children bottle feeding unrelated infants, of adolescents crammed into holding cages. An attorney spoke of the 4 year old child of her detained client experiencing hair loss from the separation trauma. It was not just human rights activists, legal experts, pediatricians, university presidents, immigrant groups and democratic groups that protested. Rank and file members from both political parties, religious communities, unaffiliated citizens did too.

Apparently, and perhaps surprisingly, the ensuing avalanche of outrage was unanticipated by the administration, Right up to the dramatic about turn on June 20^th, administration officials staunchly defended the family separation policy either as a necessary and appropriate legal measure or as the unchangeable legacy of the previous administration. But, across the political spectrum, Americans balked at the instrumental use of children as hostages to political calculus. Some offered expert testimony about the well-established fact of potentially irreversible, life-long damage caused by the sudden loss of a parent. Others, including experienced administrators with government immigration experience, voiced ominous warnings that bureaucratic challenges generated by the policy might separate some children from their parents forever, as where a parent had been deported without prior knowledge of their child’s whereabouts. An immigrants rights organization reported that they were making donations to incarcerated parents to enable them to phone their children because the detention facilities required an unaffordable $25 down payment and $8 per minute per call.

Evidence emerged of an astonishing absence of documentation regarding the dispersal and tracking of all detained and separated family members. Central American consular officials expressed marked dismay that no clear account could be given of their young nationals’ location. Instead of enhancing the administration’s image, these aspects of the criminalization of misery have dramatically discredited it. They provide further evidence of the bungling and harshly impetuous policy making that has characterized this administration’s immigration policy from the very start. More troubling still, these recent half-baked maneuvers reveal the deeply racist underpinning of “America First”.

As the President scrambles to neutralize the storm of growing protest, he has grasped at a policy alternative that may serve his political ends better than the family separation policy. However, this insidious course correction is one that will continue to generate traumatizing experiences for the migrant children and families touched by it. Family detention will now replace family separation. As of this writing, the precise length, form and location of that detention are unclear. The President’s most recent executive order attempts to reverse existing policy which prohibits the incarceration of migrant children for more than 20 days; it seeks to eliminate the current provision that requires these children to be held in certified facilities, guaranteeing minimum standards of care and supervision; it attempts to dramatically extend responsibility for holding migrant children and their families to agencies with no prior experience of this work. And what is more, it anticipates doing this on a very large scale – the first request has been for detention space that can accommodate 20,000 children. Alone amongst its peers – the US will continue in its willful disregard of the needs and best interests of children. It remains to be seen whether the American public will tolerate this opaque policy shift any more than they did its grossly harmful predecessor.

No European country, many of them addressing immigration pressures proportionately heavier than the US, intentionally incarcerates migrant children. Why? Not because they have unlimited reception capacity, not because they lack a deeply xenophobic element in their electorates, not because arguments about deterrence and moral blackmail as pragmatic migration control tools do not circulate. Countries do not incarcerate migrant children as a matter of fundamental moral and legal principle: it is a breach of the best interests of the child, a violation of the central tenet of the UN Convention on the Rights of the Child. Why does this reasoning not have purchase in the US? In part, because, ALONE among member states of the UN, the US has not ratified the Convention and so does not consider itself subject to normative principles in respect of children that bind all other countries. The high irony in the history of the US refusal to ratify this Convention is that obeisance was given to the central authority of US families over the care and protection of their children.

These brutal polices regarding distress immigrant arrivals together with the willful traumatization of migrant children highlight the growing outlier, even rogue status of the US in the international sphere. American exceptionalism has long been acknowledged in relation to gun ownership, capital punishment, mass incarceration, and – in recent history – unapologetic use of torture. But this country’s long history of celebrating its immigrant identity, of offering opportunity and freedom of expression to large numbers of people fleeing tyranny, of generous leadership in material support for international organizations was a welcome counterpart. Trump’s infliction of harm on current populations of distress migrants vitiates the resonance of our best history and traditions. In our time, now, we are witnessing the evisceration of the American polity itself. Fake facts might spread temporary smoke over these violations of our Constitution, but science and international norms confirm their terrifying illegitimacy.