There was an awkward quiet during the Senate Judiciary Committee’s hearing on family separations Tuesday. Richard Blumenthal, the Democratic senator from Connecticut, had asked the five officials seated before him to raise their hands if they believed that the Trump administration’s program of “zero tolerance” along the U.S. border had been a success. None of the officials, each representing a different agency involved the crackdown, moved. Blumenthal then asked them to raise their hands if they believed that the systematic separation of thousands of immigrant children from their parents had been a success. Again, stillness. Blumenthal then tried a third angle.
“Who here can tell me who is responsible, which public official, which member of this administration, is responsible for ‘zero tolerance’?” he asked.
“Can anyone tell me?” the senator asked again.
Finally, James R. McHenry, a top immigration official within the Department of Justice, noted that his boss, Attorney General Jeff Sessions, had signed the April 6 order making “zero tolerance” official border-wide. This was not news, but rather an acknowledgement of a publicly known fact. For anybody hoping for a mea culpa from administration officials appearing before lawmakers, this was not it.
Just Following Orders
Many of the answers provided Tuesday were similarly more of the same. Matthew Albence, the executive associate director for Immigration and Customs Enforcement’s deportation directorate, continued his defense of the agency, going so far as to argue that the detention centers migrant children have been shipped to are like “summer camps.” It was the kind of minimization that has become standard among Trump administration officials describing their roles in perpetuating a humanitarian crisis. Still, Blumenthal’s line of questioning, and other exchanges during the hearing, pointed to an important component of the evolving story of family separation: accountability and the emerging narrative of how family separation came to pass.
The government’s program of forcibly removing thousands of children from their parents, including toddlers and babies, was the result of conscious decisions made by specific Trump administration officials. Tuesday’s hearing added new data points to that story, with a career civil servant testifying that his office, tasked with providing care for minors in the immigration system, raised concerns with administration officials in the year leading up to “zero tolerance” becoming an official policy, warning that the separation of children from their parents would put the children at risk of serious psychological harm and that the system was not built to handle such an initiative. Additionally, officials testified that there was little warning within their respective agencies that “zero tolerance” was actually being implemented until it was imminent, or already happening.
The Trump administration’s decision to break from past practices and seek the criminal prosecution of every adult accused of crossing the border illegally, including asylum-seeking parents arriving with their children, was part of a sweeping series of actions spearheaded by Sessions, his former aide turned White House adviser Stephen Miller, and former DHS chief turned White House chief of staff John Kelly, and have been underway since Trump’s first week in office. It began with a pilot program in Texas last summer before going border-wide in the spring. Thousands of families were pulled apart in the process. Kids taken from their parents were sent to approximately 100 centers around the country; hundreds of parents were deported without them.
While the project was premised on the idea that everyone eligible for prosecution would be charged — an embrace of the law and order rhetoric Trump bellowed about on the campaign trail — government data published last week by the Transactional Records Access Clearinghouse at Syracuse University indicated that, in fact, many adults who crossed the border without children during the height of “zero tolerance” were not prosecuted. “Since less than a third of adults apprehended illegally crossing the border were actually referred for prosecution, the stated justification does not explain why this administration chose to prosecute parents with children over prosecuting adults without children who were also apprehended in even larger numbers,” the analysis noted.
Facing a national uproar, Trump issued an executive order to halt the separations (though “zero tolerance” remains official DOJ policy), and a federal judge ordered the government to commit to a mass reunification process. While a majority of families separated in the spring have been reunited in one form or another, hundreds remain separated. Meanwhile, the predictable consequences of ripping little kids from their moms and dads, then keeping them locked up for weeks or months with little to no communication, have become increasingly evident. Multiple news outlets have documented stories of parents reunited with their children, only to find their little ones profoundly traumatized, with vacant stares, night terrors and, in more than one case, incorporating activities associated with incarceration — including handcuffing and forced medication — into their play.
It was toward the end of Tuesday’s three-and-a-half-hour hearing when it became clear that these foreseeable consequences were raised with Trump administration officials before “zero tolerance” went into effect.
Mistakes Were Made
Blumenthal had posed a question to officials assembled before him. “Did anyone, any member of this panel, say to anyone, ‘Maybe this isn’t such a good idea’?” he asked. Blumenthal turned his attention, specifically, to a bald-headed man in uniform seated in the middle of the row of speakers: Cmdr. Jonathan D. White of the U.S. Public Health Service Commissioned Corps. The senator’s focus was understandable. Until recently, White had served as deputy director of the unaccompanied minors program within the Office of Refugee Resettlement, the Health and Human Services office tasked with providing care for children separated from their parents.
“Commander?” Blumenthal asked.
The exchange that followed provided a glimpse at the pushback that administration officials received in the run-up to “zero tolerance” becoming border-wide policy.
White explained that “during the deliberative process over the last year, we raised a number of concerns in the ORR program about any policy that would result in family separation, due to concerns we had about the best interests of the child, as well as whether that would be operationally supportable with the bed capacity we had.” Blumenthal asked White if he was saying that he had told the administration “that kids would suffer as a result; that pain would be inflicted.” White acknowledged that “separation of children from their parents entails significant risk of harm to children.”
He added: “There’s no question that separation of children from parents entails significant potential for psychological injury to the child.”
The two went back and forth with Blumenthal seeking to confirm exactly what White was testifying to. “Would I be correct in assuming that the answer to you was, in effect, that’s the whole purpose of the policy: to inflict pain so as to deter asylum-seekers from coming here?” the senator asked. “No, sir,” White replied. “We were advised that family separation was not the policy.” Did that mean “family separation just happened to result from ‘zero tolerance’ without anybody knowing in advance, even though you raised the concern?” Blumenthal asked. White again testified that his agency “raised concerns about the effect on children, as well as the program.”
“And what was the answer?” Blumenthal asked. White replied that “at no time during the time that I was in ORR was there an actual policy announcement of family separation. It was merely a discussion of possible future consequences.”
Blumenthal asked if there was an “awareness” within the administration of those consequences, such as the likely psychological harm to children, prior to the implementation of “zero tolerance.” After all, Blumenthal said, “You raised it.” White acknowledged that was true. “I did raise it,” he said. Blumenthal again asked what the response from the administration had been. “The answer I received was that family separation was not a policy — that there was no policy that was going to result in family separation,” White said. Blumenthal then asked White if it was his understanding that family separation would simply be a consequence of “zero tolerance.”
“No,” White testified. “I was advised that there was no policy that would result in separation of children from family units.”
The comment was revealing. White had testified, quite specifically, that as he raised concerns about the potential consequences of “zero tolerance” with Trump administration officials, he was advised that family separation was not happening, not as a policy nor as a byproduct of a policy. According to testimony he provided earlier, White’s last day of work at ORR was on March 15, 2018. He testified that when he left the office that day, he had still received no word of “zero tolerance,” let alone family separation, becoming an official government practice. As McHenry, the DOJ official, noted, “zero tolerance” became “official” with Sessions’s order on April 6, roughly two and a half weeks after White left ORR. “I became aware of the announcement of the ‘zero tolerance’ policy when it was on television on the 6th of April,” White testified.
White was not alone in being the dark. Each of the officials at Tuesday’s hearing testified that they learned of “zero tolerance” becoming official as it was unfolding, despite the fact that they were leading the very agencies responsible for executing the policy.
Carla L. Provost, acting chief of the U.S. Border Patrol, the agency responsible for the arrests that led to family separations, testified that she first learned “zero tolerance” would become the official policy on the day that it happened. Albence, the ICE deportation chief, whose agency would be responsible for sustaining or ending those separations, said he too learned of the April 6 order “beyond or about that date.” Jennifer Higgins, associate director of the Refugee, Asylum and International Operations Directorate at U.S. Citizenship and Immigration Services, testified that she “found out about the decision when the decision was announced.” Even at Sessions’s DOJ, where the call for “zero tolerance” came from, McHenry testified that he learned about his boss’s order “only a few days before it came out … on or about April 6.”
Tuesday’s hearing left several questions unanswered because they went unasked: Who within the Trump administration did White and ORR describe the potential consequences of “zero tolerance” to? Was the lack of foreknowledge about the policy’s implementation specific to the officials who testified, or consistent across the leadership of their agencies? Were White and the others truly unaware of the hundreds of separations that occurred before “zero tolerance” became “official” policy? Did something happen between the time White left ORR in mid-March and the rollout of “zero tolerance” in early April? How seriously did Trump administration officials take the concerns raised about widespread psychological trauma impacting children specifically? Did they change their minds, or were they ignoring warnings from the beginning? Did the midterms ever come up?
Other critical questions were asked but responses that came back were less than illuminating. Sen. Sheldon Whitehouse, a Democrat from Rhode Island, asked a simple one: What went wrong?
Hewing to longstanding traditions within their respective institutions when faced with the prospect of accountability, Provost, of the Border Patrol, and Albence, of ICE, both offered up boilerplate descriptions of their agencies’ mandates that dodged the issue entirely. McHenry, the DOJ official, said despite issuing the order that led to family separations in the first place, his department did not play an “operational or logistical role” in the crisis, so he couldn’t comment. Higgins, with USCIS, said her agency’s role was a “very narrow one,” so she would have to defer to her colleagues. Of the five, White was the only speaker to provide a clear answer.
“Senator,” he said, “what went wrong was the children were separated from their parents and referred as unaccompanied alien children, when in fact they were accompanied.”