Chutzpah, according to the humorous definition of the Yiddish word, is when a man kills his parents and then throws himself on the mercy of the court as an orphan. The Trump crowd has done that one better. Chutzpah in the Trump era is snatching kids from their parents, losing track of the parents and telling the court that the parents’ lawyers (the American Civil Liberties Union in this case) should find them. That’s the sort of argument that an ethical lawyer would be embarrassed to make; naturally, it was the Trump administration’s position.
A federal judge called the Trump administration’s slowness to track down migrant parents it had separated from their children and then deported “unacceptable,” saying the responsibility is “100%” on the government.
The stern admonishment from District Judge Dana Sabraw came a day after the administration argued that immigrant advocacy groups — not the government — should be responsible for tracking down the more than 500 parents it had separated from their children at the border and deported without them.
Sabraw delivered a tongue-lashing that the Trump administration’s lawyers richly deserved. “The reality is there are still close to 500 parents that have not been located, many of these parents were removed from the country without their child, all of this is the result of the government’s separation and then inability and failure to track and reunite,” Sabraw told them. “And the reality is that for every parent who is not located, there will be a permanent orphaned child, and that is 100% the responsibility of the administration.”
This is not the first outrageous legal argument made in defense of the administration’s actions. Lawyers claimed that about a hundred parents “waived” their objection to deportation, allowing their children to remain. The administration later backed off the number, after the ACLU and others rejected the notion that these parents acted voluntarily and with a full understanding of what they were agreeing to do, lowering the number from 120 to 34. The Post reported: “The court filing does not explain why the number of parents waiving the right to be reunited has plummeted. [Department of Health and Human Services] officials have said they continue to ask parents in immigration custody whether they want their children back and that, if any change their minds, they are being reunited.” (“Changed their mind” likely encompasses those under duress.) The Post’s report continued:
At a hearing this week before the Senate Judiciary Committee, Matthew Albence, a senior ICE official, sidestepped questions about whether every parent who had left the country without a child had signed a waiver.
“Is there documentation for what you claim?” asked Sen. Richard J. Durbin (D-Ill.).
“Right now, the form that we’re utilizing … is an ACLU-developed form, approved by the court,” Albence replied.
“I know you can get to a yes or no,” Durbin countered, “and that’s what I’m looking for.”
Albence repeated his answer.
Cmdr. Jonathan White, the public-health official who has led the reunification effort for HHS, told the senators that, while signing away reunification rights may be difficult to fathom, “many parents have made this journey to deliver their children here because that is the desperate, last act of a parent trying to take the child out of some of the most dangerous places to raise a child in the world.”
And if they are taking their children from the most dangerous places in the world, running for their lives, why have they not been granted refugee status? How did we expect to deter desperate people by making an example of others through inhumane child separation policies?
The harm inflicted on hundreds of families is incalculable. Nevertheless, those responsible for devising and executing this monstrous policy — who were told that it would inflict substantial and lasting trauma on the children — remain in office. Understandably, Democrats have called on Homeland Security Secretary Kirstjen Nielsen, herself a lawyer, to resign.
Beyond her, the officials who oversaw this scheme or who defend it in court bear some level of moral and professional responsibility. When asked to carry out unconscionable orders or make ludicrous arguments in court, these taxpayer-funded employees have a moral, professional and legal obligation to refuse to do so. That’s the concept at the heart of human rights law and legislation. It is up to professional associations (such as the bar) and their fellow Americans to hold them accountable.