If you work in the Donald Trump administration, you will find yourself steadily violating any ethical principles you might have started with until at some point, you end up not having even a shred of decency. That point was reached on Tuesday for Sarah Fabian, the justice department lawyer arguing before a US Appeals Court that the appalling conditions under which detained migrant children taken into custody at the US-Mexico border were being treated, such as keeping them in freezing cages where they had to sleep on the floor, were justified.
Fabian claimed that these children are not entitled to what most people would consider the most basic sanitary necessities. This was in a court case where the administration was sued that they were not complying with the requirements laid down under the earlier Flores guidelines for how children should be treated. (Incidentally, cases are always referred to by the names of the party or parties involved though Donald Trump, genius that he is, thought that Flores was the name of the judge who made the ruling and because it was a Hispanic name, concluded that it meant he was a biased judge.)
The settlement at issue came out of Jenny Lisette Flores v. Edwin Meese, filed in 1985 on behalf of a class of unaccompanied minors fleeing torture and abuse in Central America.
Finally agreed upon in 1997, the settlement established guidelines for the humane detention, treatment and release of minors taken into federal immigration custody. The guidelines include the right to a bond hearing and requirements that immigration authorities timely release children to parents or guardians and place those not released in facilities that meet certain standards. The facilities are supposed to be “safe and sanitary.”
In a recent case, a judge ruled that the administration was not complying with Flores.
U.S. District Judge Dolly Gee in Los Angeles granted the class’ motion and ordered the appointment of an independent monitor to ensure government compliance with Flores.
Gee said the administration had breached Flores by failing to provide detainees with adequate food and clean drinking water, or with hygiene items like soap, toothbrushes and towels. She also concluded that the children were being deprived of sleep and access to bathrooms, and were subjected to near-freezing temperatures.
In appealing that decision, the lawyer for the administration argued that the requirements only said that conditions should be ‘safe and sanitary’ and that if the judge in Flores had wanted beds, soap, clean water, and the like provided, he would have listed them and thus it was acceptable for the children to not be given any of those or other non-listed items and have them sleep on concrete floors in frigid, overcrowded cages.
The three judges on the Ninth Circuit Court of Appeals could not believe what they were hearing. One judge responded that the absence of a listing of items like soap may be because the judge thought that it went without saying that such basic items should be provided.
The Trump administration argued in front of a Ninth Circuit panel Tuesday that the government is not required to give soap or toothbrushes to children apprehended at the U.S.-Mexico border and can have them sleep on concrete floors in frigid, overcrowded cells, despite a settlement agreement that requires detainees be kept in “safe and sanitary” facilities.
All three judges appeared incredulous during the hearing in San Francisco, in which the Trump administration challenged previous legal findings that it is violating a landmark class action settlement by mistreating undocumented immigrant children at U.S. detention facilities.
“You’re really going to stand up and tell us that being able to sleep isn’t a question of safe and sanitary conditions?’” U.S. Circuit Judge Marsha Berzon asked the Justice Department’s Sarah Fabian Tuesday.
U.S. Circuit Judge William Fletcher also questioned the government’s interpretation of the settlement agreement.
“Are you arguing seriously that you do not read the agreement as requiring you to do anything other than what I just described: cold all night long, lights on all night long, sleeping on concrete and you’ve got an aluminum foil blanket?” Fletcher asked Fabian. “I find that inconceivable that the government would say that that is safe and sanitary.”
On Tuesday, Fabian asked the Ninth Circuit to reverse Gee’s findings because they added new requirements – such as giving detainees soap and toothbrushes – that were not specifically included in Flores.
“One has to assume it was left that way and not enumerated by the parties because either the parties couldn’t reach agreement on how to enumerate that or it was left to the agencies to determine,” Fabian said.
“Or it was relatively obvious,” Fletcher shot back. “And at least obvious enough so that if you’re putting people into a crowded room to sleep on a concrete floor with an aluminum-foil blanket on top of them that it doesn’t comply with the agreement.”
“It wasn’t perfumed soap, it was soap. That’s part of ‘safe and sanitary.’ Are you disagreeing with that?” he added.
If you work for Trump, you will end up in the gutter.