Rod Rosenstein, the former deputy attorney general, advised U.S. attorneys implementing the 2018 zero tolerance policy that there could be no blanket ban on prosecuting migrant parents who had children under the age of five, The Guardian has learned.
Comments in a conference call in May 2018 privately shocked some state border prosecutors because, in effect, it meant that no child was too young to separate from their parents under the policy, which required all migrants to enter illegally to the US processed
The family separators that followed are seen today by experts as one of the most serious human rights violations that have occurred under the Trump administration.
The policy was in force for six weeks and resulted in the separation of 2,814 children from their parents and guardians, of whom 105 were under the age of five and 1,033 were under the age of 10.
Rosenstein issued his guide to US prosecutors in the border states approximately two weeks after then-Attorney General Jeff Sessions issued an order that there would be an “intensified effort” to process all illegal entries into the US A along the southern border, according to sources familiar with the matter who spoke to The Guardian on condition of anonymity.
Previously, under the Obama administration, most families who crossed the border illegally were detained together if they were arrested or released pending an immigration trial, but were only separated if authorities deemed the children to be in danger.
There were questions among U.S. border state prosecutors at the time about how the zero tolerance policy would be implemented, and the conference call with Rosenstein sought to address those issues.
In the call, a U.S. attorney, John Bash, of the Western District of Texas, said he had refused to prosecute several cases that were referred to him by Customs and Border Protection (CBP) involving children under the age of five. years.
In response, sources familiar with the matter said, Rosenstein told US attorneys that they could not refuse to prosecute cases based on the age of children who would be separated from their parents because “there was no categorical exemption. “In the order.
During the call, Rosenstein was also asked if prosecutors could refuse to prosecute parents with children who only spoke indigenous languages., meaning they were unable to communicate in English or Spanish, or those whose children had intellectual disabilities. Rosenstein said prosecutors may choose to refuse to prosecute people with children in those two circumstances on a case-by-case basis, the sources said.
The comments were surprised by some of the U.S. attorneys, the sources said, because there was concern that children under the age of five might not know their own names or those of their parents, and that it posed a risk to children potentially lost in the system.
“Everyone, but especially the Justice Department, should have known that separating children from their parents was clearly unconstitutional. The ACLU should never have had to file a lawsuit to establish that obvious point, ”said Lee Gelernt, a senior immigration attorney for the ACLU.
Rosenstein, who retired from the Justice Department in 2019 and is now a partner at King & Spalding, a leading Washington law firm, said in a statement to the Guardian: “Federal prosecutors did not separate the parents of the children. The policy that the Attorney General adopted for the Department of Justice in April 2018 was unequivocal: all those accused of being arrested and referred by the Department of Homeland Security for prosecution would be evaluated by federal prosecutors without any categorical exemption. ”
Under the zero tolerance policy, hundreds of parents were deported to their home countries without their children, and the family separations were later deemed by a California judge to be unconstitutional, “brutal” and “offensive.” The government’s conduct, Judge Dana Sabraw said, arbitrarily ripped apart the “sacred bond between father and son.”
The policy went into effect from April 6, 2018 to June 20, 2018 when, under intense legal and congressional pressure, it was terminated under an executive order from Donald Trump.
A former Justice Department official defended the Justice Department’s actions and told The Guardian that the attorney general’s order “had no effect” unless DHS referred the cases, which the person alleged were under the sole responsibility of the DHS.
DHS repeatedly complained to the White House that the Justice Department was not processing enough cases. They were driving the train, ”said the former official.
Kirstjen Nielsen, who served as DHS secretary at the time, defended her actions in that period and said she was “enforcing the law.”
An investigation by the Department of Homeland Security’s internal oversight agency found that CBP, a division of DHS that enforces border controls, relied on “ad hoc” measures to record and track family separations and that, in November 2017, I knew Systems were lacking.
So far, the Justice Department has received far less scrutiny for its involvement in the child separation policy than the Department of Homeland Security or the Department of Health and Human Services, who had custody of the children once they were separated.
The Justice Department has consistently denied that it has ever had a policy to separate children from their parents. But the new information suggests that the Justice Department’s knowledge cooperation facilitated the implementation of the zero tolerance policy and that it was fully aware that immigration policy would result in the separation of children from their parents, including children under the age of five. years.
Other conference participants included Iris Lan, a deputy assistant attorney general who has been nominated by the Trump administration to hold a lifetime position as judge for the southern district of New York, and Adam Braverman, who served as the United States. in functions. Attorney in the Southern District of California at the time and has been nominated to serve as a judge in that district. Their nominations have not yet been reviewed or approved by the Senate.
Details about Rosenstein’s call with American attorneys have been shared with the Justice Department’s inspector general’s office, which is conducting a review of the department’s “planning and implementing” zero tolerance policy.
A Justice Department spokesman said that lawyers for the United States “had maintained discretion to make procedural decisions on a case-by-case basis.” He declined to comment on “internal deliberations” but, in response to questions sent to Lan by The Guardian, said that Lan “would not have had a political decision-making role.” The Guardian also requested a comment from Braverman, but did not receive an immediate response.
A spokesman for the US Attorney’s office in the Western District of Texas declined to comment.
Rosenstein is not believed to have been a driving force behind the zero-tolerance policy, which was launched by Sessions in conjunction with the White House as part of the Trump campaign to crack down on undocumented immigrants.
He earned an unusually high profile in his role as the number two official at the DoJ because he oversaw Robert Mueller’s investigation into Russian interference in the 2016 election.
For many Democrats, Rosenstein’s long career at the Justice Department and his institutional role were seen at the time as a guarantee that the investigation would be protected from possible interference from the Trump administration. Its role in the zero tolerance policy has received much less scrutiny.
Rosenstein publicly defended the zero tolerance policy at an American Bar Association conference in August 2018, where he said he believed it was consistent with the rule of law and reflected an increase in illegal immigration to the United States.
“It would be a mistake to say that we are prosecuting everyone without regard to the law,” he said, adding that the Justice Department was committing resources to ensure that everyone was treated equally under the law rather than “choose and choose. “who will be prosecuted.
Federal government agencies, including the Department of Justice, had already experimented with a “pilot program” of child separation in the Western District of Texas in 2017, which resulted in the separation of 1,556 children from their parents. Court-ordered efforts to reunite parents with their children in hundreds of those cases have largely halted in Latin America during the coronavirus crisis, according to immigration attorneys at the ACLU, which has helped lead the effort. .
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