Zero Tolerance Equals Less Than Zero Humanity

It all began quietly last autumn, not with a bang but a whimper. It was quiet until this spring, when it came out into the open that the Trump administration had initiated its most despicable policy to date.

The bang arrived with “zero tolerance,” a program to halt immigrant families caught entering the country, refugees without proper papers or families seeking asylum from horrors at home. The country’s borders must be secure to save our republic and our “American way of life.” Moreover, to ensure the success of this heartless new policy, the government would institute the separation of children from their parents. There was to be no structure or plan for returning children to their parents once the adults’ cases were disposed. Although illegal immigration across our southern border was the lowest it has been in years, the administration was convinced that this policy must be implemented, and that it needed to happen now.

The program was ordered by Attorney General Jeff Sessions and enthusiastically supported within the administration by Stephen Miller, a senior Trump adviser and one-time aide to Sessions in the Senate.

“A big name of the game is deterrence,” John Kelly, Trump’s chief of staff, told NPR in May.

Perhaps a more accurate term would be “terrorism.”

The program was implemented with the typical Trump thoughtlessness and lack of planning. Children were taken from their parents and then labeled “unaccompanied minors” and dumped into the foster care system, where the administration often lost track of them. Since last October, at least 2,700 children have been taken from their parents, nearly 2,000 between mid-April and the end of May. In some cases, the families were separated by deceit. Juana Francisca Bonilla de Canjura described how her two daughters, Ingrid, 10, and Fatima, 12, were taken from her. “Nobody knows anything. Nobody says anything — just lies. They said they were taking them for questioning, and we were only going to be apart for a moment. But they never came back.”

With the number of children growing beyond the foster system’s ability to deal with them, makeshift places were found or created to hold them. We don’t know all the details but we are aware of 26 different facilities scattered across the country, from facilities in Washington State to warehouses in California and Florida to a former Walmart in Brownsville, Texas — and that’s just one of five shelters in that state. Recently we learned of group homes in Harlem and Camden. The courts, where the parents were tried for misdemeanor prosecutions, have no idea where the children have gone, or how parents and children will be reunited. Indeed, as far as the courts and judges are concerned, that’s not their department, and they have said as much.

While the parents may be the targets of this terrorism, the children are its most significant victims. In a letter of protest against the Trump policy of family separation, the National Association of Pediatric Nurse Practitioners wrote, “Traumatic life experiences in childhood, especially those that involve loss of a caregiver or parent, cause lifelong risk for cardiovascular and mental health disease.”

The policy has evoked a rising wave of opposition. Former first ladies, both Democrat and Republican, have spoken out. Roselyn Carter declared, ““The practice and policy today of removing children from their parents’ care at our border with Mexico is disgraceful and a shame to our country.” Hillary Clinton wrote, ““Every parent who has ever held a child in their arms, every human being with a sense of compassion and decency, should be outraged.” Laura Bush tweeted, ““I live in a border state. I appreciate the need to enforce and protect our international boundaries, but this zero tolerance policy is cruel. It is immoral. And it breaks my heart.” She added, “It is our obligation to reunite these detained children with their parents — and to stop separating parents and children in the first place.”

Loud voices from within the Jewish community were not silent either. More than 25 Jewish-American organizations published a letter to Attorney General  Sessions strongly denouncing the Trump administration’s policy of separating migrant children from their families. It said: “This policy undermines the values of our nation and jeopardizes the safety and well-being of thousands of people.”

The signatories added that “as Jews, we understand the plight of being an immigrant fleeing violence and oppression. We believe that the United States is a nation of immigrants and how we treat the stranger reflects on the moral values and ideals of this nation.”

The groups note that “many of these migrant families are seeking asylum in the United States to escape violence in Central America. Taking children away from their families is unconscionable. Such practices inflict unnecessary trauma on parents and children, many of whom have already suffered traumatic experiences.”

The signatories include the American Jewish Committee, the Union for Reform Judaism, the United Synagogue of Conservative Judaism, the Anti-Defamation League, and Hadassah. But politically, the most significant endorsement is that of the Orthodox Union, which earlier had hosted Sessions as a keynote speaker at an event the group held in Washington.

Orthodox Jews, unlike Reform and Conservative Jews, awarded the majority of their votes to Trump and the Republican party in 2016. The Orthodox Union, an umbrella group for the Orthodox community, has expressed strong support for Trump’s policies on Israel, and also on key issues such as religion-and-state questions and Trump’s judicial appointments.

Other Jewish groups praised the Orthodox Union for endorsing the letter on Friday. Michael Lieberman of the ADL said the group’s position is “always value added,” while Ori Nir of Americans for Peace Now wrote: “The Orthodox Union has joined a letter by American Jewish organizations condemning the separation of children from their migrant parents when they cross the border. Kudos to all signatories including the Orthodox Union. Kol Hakavod!” — ”good job” in Hebrew.

Caught in a firestorm of criticism, the administration pulled out all the stops to defend this travesty. “The party of family values” sent out Jeff Sessions, who took on the role of a Bible-thumping Elmer Gantry when he said, “I would cite you to the Apostle Paul and his clear and wise command in Romans 13, to obey the laws of the government because God has ordained the government for his purposes.”

Sessions elected to ignore the direct commandment from Leviticus 19:34 that “The foreigner residing among you must be treated as your native-born. Love them as yourself, for you were foreigners in Egypt. I am the LORD your God.”

As the cry to end this moral outrage grew, Trump initially responded in his familiar fashion. He lied. “The Democrats have to change their law — that’s their law…we can not end it with an Executive Order,” Trump said. In fact, there was not then and never has been any law requiring family separation of illegal immigrants. Trump administration officials continued the lies. “We do not have a policy of separating families at the border. Period.” tweeted Homeland Secretary Kirstjen Nielsen. This was explicitly contradicted by a Homeland Security fact sheet, with a section called “Why Are Parents Being Separated From Their Children?” which goes on to explain the new Trump administration policy.

It was only when Republicans sitting in the Congress began to recognize that this policy could threaten their success in the midterm elections that they managed to put enough pressure on Trump to attempt to quell the protests. Proving his previous lie, the president signed an order ending family separation. America breathed a sigh of relief — until we realized that while Sessions believes that God ordained both the policy and perhaps the executive order to repeal it, as always, the devil is in the details.

The order is good only for 20 days. That’s because the president has no intention of ending his zero tolerance policy of prosecution. The only difference is that now children will be penned with their parents. However, there is a 21-year-old agreement, the Flores settlement, which restricts the incarceration of undocumented minors to 20 days. That fine print in the executive order can be found in Section 3(e), which orders  Sessions to ask the Los Angeles court to modify the Flores settlement and allow the government “to detain alien families together throughout the pendency of criminal proceedings for improper entry or any removal or other immigration proceedings.”

Judge Dolly Gee had declined to waive this same decision when the Obama administration was faced with an influx of unaccompanied minors from Central America. Stephen Yale-Loehr, who teaches immigration law at Cornell University and doesn’t think the judge will modify it, said, “Assuming Judge Gee bars the Trump administration from modifying the Flores settlement, the administration can either cave, and blame the judge for illegal immigration, or defy the court, which will lead to more litigation.”

While Trump and his supporters hailed the executive order as a fix to a policy that sparked public outrage and widespread condemnation, the fine print acknowledges that it is no more than a bait and switch tactic. It’s unclear what Trump will do if the judge balks at his request. One option is for the government to just go back to taking the kids away from their parents indefinitely.

Illegal immigration is not new. Previous administrations all have had to deal with border security and large-scale migration. President Obama was derided as deporter-in-chief for the large numbers of undocumented migrants who were removed by his administration. His predecessor, George W. Bush, initiated streamlined procedures for deportation hearings. What was common to both administrations was that first-offenders and families were not prosecuted; rather they were processed through administrative hearings and deported. It was this practice that Sessions and Miller worked actively and successfully to change. Their zero-tolerance policy requires all entrants crossing outside of ports of entry, even entrants claiming asylum, to be prosecuted. It is this change of policy that has resulted in family separation as an administrative tool of prosecution.

The real issue behind the family separation crisis is Trump’s use of a zero tolerance policy instead of using any kind of discretion, said Lori Nessel, a professor at Seton Hall University School of Law in Newark. “Discretion as to who to prosecute, target for deportation, and detain, has been an essential component of immigration regulation throughout prior administrations,” she said. “The Trump Administration’s move away from discretion and prioritization for enforcement and detention, and toward mass criminalization of all immigrants, including those seeking asylum, is costing taxpayers billions of dollars and threatening our core values as a nation.”

“We should not have to choose between separating parents from their children and expanding the shameful practice of imprisoning families,” Beth Werlin, the executive director of the American Immigration Council, said in a statement. Mark Hetfield, president of HIAS, a refugee-rights group, said, “The problem with the policy boils down to the simple truth that children don’t belong in jails. Transitioning from the cruel and inhumane policy of family separation to the cruel and inhumane policy of indefinite family detention cannot be the solution here

Globally, humanitarian crises are propelling large movements of people to seek a safe haven, so immigration has become an issue of great concern. While these waves of desperate men, women, and children are flowing at rates in numbers larger than can be accommodated either economically or politically in the developed world, we cannot allow ignorance, racism, and cruelty to taint our response. In more unguarded moments, Trump has exploded in tirades against migrants, describing them as animals and criminals, revealing a racial animus that seems to be an essential element in the creation of his policy.

Trump’s administration policy is particularly focused on asylum seekers and is particularly egregious. Many are refugees fleeing extensive gang violence and gender violence in Central America. The administration is requiring asylum seekers to apply exclusively through ports of entry, claiming that any other border crossing constitutes a crime. However, the U.N. 1951 Convention Relating to the Status of Refugees recognizes the severe difficulties that getting to a recognized port of entry entails for a refugee and therefore prohibits signatories from imposing penalties based on a person’s manner of entry into a country of refuge. Trump may not know, or if he does, he choses not to care, but the United States is a signatory to that convention. Once we were a proud signatory, but thanks to our elected president’s innate racism, this is just one more promise America has broken.

Family separation is a terror tactic. The question is who is being terrorized. Certainly the children are, and without a doubt their parents are too. But we would offer that the entire political system, our republic, and its institutions are being threatened by this terrorist act. Many have said, and we agree, that Trump wants to use these children, these broken families, these tired, these poor, these huddled masses yearning to breathe free, as nothing more than bargaining chips to obtain concessions from Congressional Democrats. The American dream is being threatened by this government-sponsored terror.

About the Author
Mark Gold is a Board Member of Partners for Progressive Israel (PPI). He has served as Secretary of the American Zionist Movement, President of Americans for Progressive Israel, and has been a delegate to the World Zionist Congress. Hiam Simon of Englewood, NJ, is the past chief operating officer of Ameinu. He lived in Israel for many years, where he was the dean of students for what is now the Alexander Muss High School, and he served in the IDF as a noncommissioned officer in the artillery.
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