Holding the Government Accountable

Just Following Orders: Overdue Oversight and Unanswered Questions on Family Separations

(Illustration: CJ Ostrosky / POGO)

This piece originally appeared on Just Security.

Nearly three months after the Trump administration’s family separation policy began and over one month after a public outcry led to its end, Congress finally held its first hearing on the subject on July 31. It was a necessary step, but not nearly enough.

None of the key officials responsible for the “zero tolerance” policy and the resulting family separations testified, nor did their deputies. All of the witnesses were career officials who implemented the orders rather than gave them. Except for some moments of candor from U.S. Public Health Service Commander Jonathan White, the federal public health official overseeing the court-ordered reunification of separated parents and children, the witnesses’ testimony proved less revealing than their awkward silences.

Senator Sheldon Whitehouse (D-R.I.) asked the entire panel, “What went wrong?”

“Senator, what went wrong was [that] children were separated from their parents and referred as unaccompanied alien children, when in fact they were accompanied,” White said. The four other witnesses gave non-responsive answers.

Senator Richard Blumenthal (D-Conn.) asked any of the witnesses who thought zero tolerance or family separation were a success to raise their hands. None did.

He then asked, “Who here can tell me who is responsible, which public official, which member of this administration is responsible for zero tolerance and family separation?” The witnesses were silent. Finally, after Blumenthal repeated the question, James McHenry, the head of the Justice Department’s Executive Office for Immigration Review, said, “The zero-tolerance prosecution policy…was issued by the attorney general.”

Blumenthal asked whether any of the witnesses had objected. Again, the only response came from White, who was the deputy director for the Office of Refugee Resettlement until March. He said that over the past year, “we raised a number of concerns in the ORR [Office of Refugee Resettlement] program about any policy which would result in family separation, due to concerns we had about the best interest of the child, as well as about whether that would be operationally supportable with the bed capacity we have.”

He also told the committee, “There’s no question that separation of children from parents entails significant potential for traumatic psychological injury to the child.”

Yet White said that, in response to these concerns, he was “advised that there was no policy which would result in separation of children from family units.”

White was the non-political head of the Office of Refugee Resettlement’s unaccompanied minor program until mid-March of this year, when he took a different position at the Department of Health and Human Services. He testified that, “as of my last day in that role, when I would ask questions about family separation, I was advised that that was not the policy of the United States.”

By March, the Justice Department and Border Patrol had run a months-long pilot of the zero tolerance/family separation program in the Border Patrol’s El Paso sector, which covers New Mexico and western Texas. As a result, hundreds of children some as young as 18 months old, were rendered unaccompanied and transferred to the Office of Refugee Resettlement. Based on White’s testimony, the Justice Department and Department of Homeland Security may have done this without even informing the government agency responsible for caring for the children torn from their parents for months after separations began, and in disregard of Office of Refugee Resettlement experts’ explicit warnings that family separation would traumatize children in their care.

It is unknown if political appointees who outranked White, like Secretary of Health and Human Services Alex Azar and Office of Refugee Resettlement Director Scott Lloyd, were informed and whether they raised any objection or notified White and his colleagues. Members of Congress have described Azar as refusing to answer substantive questions in briefings. Lloyd, whose policies obstructing minors in federal custody from being released or obtaining access to abortion have been enjoined by three separate courts, has not given briefings on family separation at all. A government spokeswoman told The Washington Post in June in response to questions about Lloyd’s involvement in family separation, “As director of ORR, Mr. Lloyd is responsible for ensuring the office is effectively carrying out that mission.”

Despite the lack of clarity about Azar’s and Lloyd’s roles and the awkward silence at the hearing, we know the names of many of the officials most responsible for the family separation experiment. The most obvious are President Donald Trump, Attorney General Jeff Sessions, Secretary of Homeland Security Kirstjen Nielsen, White House aide Stephen Miller, and White House Chief of Staff John Kelly.

Within the Department of Homeland Security, then-Acting Director of Immigration and Customs Enforcement Thomas Homan, Director of Citizenship and Immigration Services L. Francis Cissna, and Customs and Border Protection Commissioner Kevin McAleenan reportedly wrote a memo to Nielsen in April urging her to refer for prosecution “100 percent” of individuals apprehended by the Border Patrol. These should include “those initially arriving or apprehended with minors,” according to reporting on the memo. Referring parents for prosecution in the El Paso sector had a strong deterrent effect on families trying to cross illegally, the memo also claimed.

Homan, who retired last month, first suggested separating families as a deterrent in 2014 during the Obama administration, in response to a large increase in children and families from Central America turning themselves in to the Border Patrol. The homeland security secretary at the time, Jeh Johnson, rejected the idea.

Kelly was more receptive to Homan’s proposal during his tenure at the Department of Homeland Security. In a March 2017 interview with CNN, Kelly said that he was considering family separation as a deterrent. A month later, he backed away from that statement in congressional testimony, assuring Senator Heidi Heitkamp (D-N.D.) that he would only consider separating families in situations where a child was in danger. But the El Paso pilot program began before Kelly officially left the Department of Homeland Security to become White House chief of staff on July 31, 2017.

Within the Justice Department, on April 11, 2017, Sessions instructed U.S. attorneys’ offices in Arizona, New Mexico, Texas and California to work with “the U.S. Department of Homeland Security and any other appropriate agency” to revise their guidelines for prosecuting first-time, misdemeanor unlawful entry. It appears that this instruction may have been a precursor to the 100 percent prosecution initiative in the Western District of Texas and District of New Mexico that began a few months later, but we do not know the details.

As noted above, we do not know who, if anyone, at the Department of Health and Human Services was informed of the separations. We don’t know if anyone in the Justice Department or the Department of Homeland Security attempted to establish a system to reunify parents and children, or take any steps to mitigate the trauma of separation, before announcing the expansion of “zero tolerance” this spring.

We don’t know whether the Justice Department or Department of Homeland Security ever conducted a legal analysis of whether family separation violated parents’ or children’s constitutional rights, or children’s rights under the legally binding Flores settlement. We do not know whether any federal prosecutors raised concerns about the policy harms of prioritizing petty misdemeanors over serious crimes, or the violations of defendants’ constitutional rights to counsel and due process.

None of the relevant agencies responded to the Project On Government Oversight’s requests for comment.

But even more important than getting official answers to these questions is access to documentary evidence of how the family separation policy was developed and implemented. There must be a paper trail, but no one in Congress has seen it despite many written requests from representatives and senators. Few of those requests have come from Republican committee chairs, and none have been accompanied by subpoenas. As a result, the administration has largely ignored them. The July 31 hearing, and its lack of meaningful information, demonstrated how urgently that needs to change.