Words did not do justice to Fabian’s performance

In an earlier post, I described how Department of Justice lawyer Sarah Fabian tried to defend the awful conditions that detained migrant children were being kept in, being denied soap, toothpaste, toothbrushes, showers, beds, and cloth blankets tin very cold rooms with the lights permanently on, to an incredulous panel of three justice in the Ninth Circuit Court of Appeals. There is now video of her exchanges with the justices and it is well worth watching as she tries to escape from the close questioning of the justices as to what children in captivity are entitled to.

As Mark Frauenfelder writes, reactions to Fabian’s arguments came from all over. Jason Rezaian, a writer for Washinton Post Global, who was held in custody in Iran for a year and a half, tweeted he was given toothpaste and a toothbrush from the very first day and allowed to shower every couple of days. New Yorker editor David Rohde, who was held hostage by the Taliban for seven months, tweeted that “The Taliban gave me toothpaste & soap”. Michael Scott Moore, who had been held captive by Somali pirates, also tweeted that “Somali pirates gave me toothpaste & soap.”

So there we are, even pirates treat their captives better than the US treats the children it detains.

Ken White traces the history of how this kind of abuse became normalized back to the Obama administration and that there is a lot of blame to go around.

Before Sarah Fabian defended concrete floors and bright lights for President Donald Trump, she defended putting kids in solitary confinement for President Barack Obama.

The fault lies not with any one administration or politician, but with the culture: the ICE and CBP culture that encourages the abuse, the culture of the legal apologists who defend it, and our culture—a largely indifferent America that hasn’t done a damn thing about it. This stain on America’s soul will not wash out with an election cycle. It will only change when Americans demand that the government treat the least of us as both the law and our values require—and firmly maintain that demand no matter how we feel about the party in power.

White writes that the Trump administration made a grave mistake in appealing the lower court decision that its treatment of children violated the Flores guidelines.

The judges ultimately suggested that the United States should consider whether it wanted to maintain the appeal—a signal that litigants ignore at their grave peril.

The United States’s loathsome argument—that it is “safe and sanitary” to confine children without soap, toothbrushes, dry clothes, and on concrete under bright lights—is morally indefensible. It’s also a spectacularly foolish argument to raise in the famously liberal Ninth Circuit, where the United States should have expected exactly the reception that it got.

It should be noted that one of the justices hearing the case was A. Wallace Tashima, who as a child in World War II was confined to an internment camp with other Japanese Americans.


  1. johnson catman says

    It should be noted that one of the justices hearing the case was A. Wallace Tashima, who as a child in World War II was confined to an internment camp with other Japanese Americans.

    Well, there you go. Biased judges. Was there a Mexican on the panel as well?! (/s in case anyone has doubts.)

  2. Matt G says

    Well, if these migrant children wanted to be treated humanely in America, they should have entered as fetuses.

  3. jrkrideau says

    Again the USA is it total violation of the Declaration of the Rights of the Child which according to US law (constitution?) they are obliged to adhere to.

    If the UN manages to get a Human Rights Interlocutor into those concentration camps the report will be damning. And damned the bastards should be.

    I notice that the US Gov’t wants to use the term “tender age”. Uh, anyone read Jonathan Swift recently? While I am not actually vomiting, that was the thought that flashed through my head.

  4. Dunc says

    jrkrideau: The US is the only member of the UN which is not a party to the Convention on the Rights of the Child, nor have they ratified it, so they’re under no obligation to adhere to its provisions (which they routinely violate in a number of other ways too).

  5. jrkrideau says

    @ 5 Dunc
    IANAL but I thought the US was an signatory to the Declaration of the Rights of the Child . I could well be mistaken.

    The Convention on the Rights of the Child is a different and newer document. I have no problem believing that the USA is not a signatory to it. The USA is not a signatory to just about anything.

  6. Dunc says

    AFAIK, the Declaration carries no legal weight. It’s just an aspirational statement.

  7. jrkrideau says

    @ 7 Dunc
    Could well be. As I said IANAL. Still, as one of the foundational documents of the fledgling UN it should be a bit embarrassing for the US to violate it.

    While it is not an issue at the moment, later international criminal trials might note this as Trump and Co. are in the dock.

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