The Legacy Of Torture

The Supreme Court continues to abet the Trump administration’s war on immigrants. Earlier this week, the five conservative justices decided that undocumented immigrants convicted of crimes, even minor ones, can be picked up at any time by ICE, even decades after they have paid for those crimes, and held indefinitely without a bond hearing.

The ruling reverses a decision by the more liberal Ninth Circuit and hinges on the definition of the word “when”. At present, anyone non-citizen who has committed a deportable crime is to be apprehended by ICE after they are released from custody and held until a decision is made on their deportation. They are not entitled to a bond hearing where they can claim that they are not a danger to the community and ask to be released back into the public until the final determination of their deportation case. According to the statute, ICE must apprehend the non-citizen “when” he is released from the federal, state, or local custody where he/she was held. The Ninth Circuit ruled that those who were not apprehended by ICE in the immediate aftermath of their release but now, under the current Trump immigration crackdown, detained often months, years, or decades later should not be covered by the statute’s wording and should be entitled to a bond hearing. The conservatives on the Court disagreed and once again adopted the strictest interpretation of the laws regarding non-citizens.

For Justice Breyer and the liberals on the Court who joined his dissent, the dispute was less about the language of the statute than the belief that neither the Congress in writing this statute nor the Constitution “intended that persons who have long since paid their debt to society would be deprived of their liberty for months or years without the possibility of bail”. Justices Alito and Kavanaugh, at least, agreed that the constitutional issue of indefinite detention without possibility of bail could be at issue but declared that this case required a narrow ruling on the meaning of the statute and not the broader constitutional issue.  As we have seen, however, ICE has managed to keep detainees in custody for as long as eight years without a bail hearing or a determination on deportation, illustrating the reality of the liberals’ concern. This ruling may only add to those numbers.

A story that got far less traction than the Supreme Court decision but is truly horrifying was the reporting that the Trump administration has now resorted to using secret shelters in order to house unaccompanied immigrant children. There are at least five secret shelters in Arkansas, Florida, Oklahoma, Pennsylvania and Virginia that house a small number of children, some as young as 9 years old. These shelters specialize in the treatment of behavioral and mental health issues. The Office of Refugee Resettlement (ORR) has never admitted the existence of these shelters and has not even informed the lawyers representing the detained children where they are being held. (Separately, the ORR is also the agency that has denied immigrant detainees access to abortion and is apparently tracking immigrant women’s menstrual cycles.) According to Reveal, “the federal government is supposed to provide attorneys representing detained children with a regular and detailed census of each minor in the Office of Refugee Resettlement’s custody. The practice appears to violate the long-held agreement.”

At least two of the facilities have had a history of abuse allegations leveled against them and one of them has been accused of destroying evidence of such abuse. Two other facilities appear not to have the proper agreements with the government to provide the behavioral and mental health treatments they are providing. Shockingly, it also appears that some of these facilities may be receiving children from the ORR specifically because of their political connections. The former head of Vice Media, Oliver North, and Brit Hume sit on boards of two of the facilities.

A represenatative of a group of detainees under ORR’s care states, “Detained unaccompanied children with mental health issues are some of the most vulnerable children, and when the government does not provide access to their whereabouts, it calls into question the basic underpinnings of our democratic institutions”. She also has evidence that the government is still not being fully transparent about the whereabouts and status of unaccompanied minors.

While these horrors are clearly being driven by Trump and his administration’s xenophobic policies, it’s not a stretch to say that at least the tactics of the current administration is part of the legacy of the G.W. Bush administration and its decision to violate US and international law in the error-plagued “war on terror”. The de facto indefinite detentions that define Guantanamo are now slowly seeping into our dealings with people detained on American soil. The black sites where the US engaged in torture have turned into cages holding children and secret sites inside the US to hold unaccompanied minors and violate the law. The lies and lack of transparency surrounding these detainees is also typical of the Bush administration. Beyond the hundreds of thousands who needlessly died in the Bush’s wars initiated with lies, these tactics are also part of his administration’s criminal legacy and the result of our unwillingness to confront that brutal reality and acknowledge how it has eroded not only our standing in the world but the core of our democracy.