Abuse of Children Is Illegal, Even If the President Is Responsible

(Bloomberg Opinion) -- A crime was planned, then committed. Now, we’re waiting to learn if the U.S. criminal justice system has the capacity to punish the powerful perpetrators.

That might sound like news about the Trump gang colluding with Russian agents or paying off a porn star in 2016. But due to the extraordinary nature of the Trump administration, those are not the only chains of events that could fit the description. It also describes the administration’s policy of separating children from their undocumented parents at the U.S. border with Mexico.

Special counsel Robert Mueller has been tasked with charging miscreants involved in the subversion of the 2016 election. But who will hold the child abusers accountable?

Under the administration’s family separation policy, parents were detained in one facility, while their children were seized from them, transferred to the Office of Refugee Resettlement and taken elsewhere — in some instances hundreds of miles away. Some parents were subsequently deported without their children — or without the means of locating them. The whole enterprise was conducted with such a pristine contempt for its powerless victims that the administration lost track of some families altogether.

A complaint filed by immigration lawyers with the Department of Homeland Security states that Border Patrol and Immigration and Customs Enforcement agents inflicted verbal and physical abuse on parents, with ICE officers engaging in “threats, deception and intimidation to coerce multiple separated parents into signing forms relinquishing their rights.”

The architects of the policy knew what they were doing. “If you don’t want your child separated, then don’t bring them across the border illegally,” said U.S. Attorney General Jeff Sessions.

Secretary of Homeland Security Kirstjen Nielsen said: “In the United States if you break the law, you go to jail and you’re separated from your family. It shouldn’t be any different for illegal immigrants.”

An unnamed White House official told the Washington Post that the policy was designed to be used as political leverage in Washington. “The president has told folks that in lieu of the laws being fixed, he wants to use the enforcement mechanisms that we have,” the official said. “The thinking in the building is to force people to the table.”

In other words, if the policy was ghastly enough, opponents of other Trump policies would be more eager to compromise in order to stop the damage the administration was inflicting on children and their parents.

That damage was not secret either. Beginning early this year, the American Academy of Pediatrics began sending letters to Nielsen pleading with her to stop an “inhumane” policy that exacerbated the “suffering” of already vulnerable children and imposed “additional trauma” on them. “Prolonged exposure to highly stressful situations — known as toxic stress — can disrupt a child’s brain architecture and affect his or her short- and long-term health,” the academy’s president, Dr. Colleen Kraft, wrote in the Los Angeles Times.

The world also took note. In June, the United Nations High Commissioner for Human Rights, Zeid Ra’ad al-Hussein, said, “The thought that any state would seek to deter parents by inflicting such abuse on children is unconscionable.”

Abusing children is, of course, a crime. Legal scholar Erwin Chemerinsky, writing in the Sacramento Bee, said, “There is no doubt that the policy is illegal under international law.”

Michelle Brane, a lawyer who is director of migrant rights and justice at the Women’s Refugee Commission, has been researching the who, what, where and how of potential criminal charges. “We are working on it,” she said. “It’s tricky. Who is accountable? Who has immunity from prosecution?”

It’s possible that a criminal complaint could be filed locally in Texas, with the intent of triggering an FBI investigation into the abuse of children. A lawsuit filed by the American Civil Liberties Union could yield additional fodder for a criminal complaint if the judge establishes a clear violation of due process rights. And the International Criminal Court in The Hague remains an intriguing, if unlikely, venue if domestic alternatives fail to deliver accountability.

For now, however, there is little reason to believe anyone will pay for the crime. Like the torture of detainees during the early frenzy of the War on Terror, the abuse of children — which may prove tantamount to torture in some instances — challenges the judicial system to address crimes committed not as aberrations of government policy, but as the policy itself. It’s not something the U.S. is very good at.

“At this point, I do not foresee charges being brought against President Trump and the Trump administration for their illegal separation of families,” Chemerinsky, the dean of the law school at the University of California, Berkeley, said in an email. “I don’t know who could bring charges, or where they could be brought.”

Brane is not willing to surrender. “Really?” she said. “You can violate the fundamental human rights of 3,000 children — about 6,000 people — and nothing happens?” Without sustained public outcry, the most likely answer seems to be, “Yes.”

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

Francis Wilkinson writes editorials on politics and U.S. domestic policy for Bloomberg Opinion. He was executive editor of the Week. He was previously a writer for Rolling Stone, a communications consultant and a political media strategist.

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