The Ethics of Separating Families at the Border

I have been thinking a lot lately about the reports that Customs and Border Protection (CBP) agents have been forcibly removing children from their parents who have illegally crossed the border and been apprehended by authorities or who crossed the border and requested asylum. In the abstract, the practice sounds bad enough; the details are even more horrible. Liz Goodwin of the Boston Globe reports that, according to a federal public defender in McAllen, Tex., CBP agents have told mothers that their children were being taken away because agents were “going to give them a bath.” The children did not return but, instead, have entered an unaccountable system of government detention or relocation. If you don’t know the terrible history of this particular line of deceit, look it up.

The separation of parents from children is a result of a deterrent policy the Trump administration has implemented to stop the flow of migrants from Mexico and Latin America. The Department of Homeland Security (DHS) and the Justice Department are coordinating to refer and prosecute nearly 100 percent of illegal-entry cases. This prosecutorial guideline is a departure from past policy, under which many such cases were not prosecuted. (This conforms with my recollection from my stint in a U.S. attorney’s office in Texas many years ago.) Some children apparently are placed with family members already in the United States; others are being placed by the Department of Health and Human Services (HHS) with foster families; some, thousands of miles away from the parent.

There are at least three government agencies involved in implementing this new policy: DHS, HHS and the Justice Department. Within DHS, Customs and Border Protection and Immigration and Customs Enforcement (ICE) have a role in processing, documenting, detaining, housing and otherwise engaging with these migrants. Within those entities, there are border patrol agents, ICE agents, security officers, lawyers and, presumably, a wide array of professional, administrative, and security personnel involved in implementing the policy.

These agents and other civil servants presumably have been told that what they are being ordered to do is lawful. Attorney General Jeff Sessions has publicly stated that the department will have zero tolerance for illegal entry on the southwest border. The result of this new enforcement policy is that the U.S. government is intentionally separating children from parents. In some cases, agents have been reported to have physically removed children from their parent’s arms.

This situation reminds me of guidance I was given as a young lawyer (and, before that, a law student) working at the Justice Department on counterterrorism investigations and accompanying requests for surveillance and search authority. It had to do with what was expected of me as a professional, career civil servant.

I worked in a small office that is now part of the Justice Department’s National Security Division, which handled counterterrorism cases after the terrorist attacks of Sept. 11, 2001. Our efforts were focused on preventing what we all understood were plans by al-Qaeda to conduct follow-on attacks in the United States. This assessment was based on real threat intelligence collected by U.S. intelligence agencies and those of our allies around the world. The office handled matters presented to the Foreign Intelligence Surveillance Court (FISC).

As an officer of the court, an attorney authorized to practice before the FISC would have the option of not signing a Foreign Intelligence Surveillance Act application if that attorney did not personally believe that an application met the statutory requirements. (The applicable statute calls for FISA applications to be signed by the attorney handling the case, as well as the attorney general and other high-level signatures.) The individual attorney’s discretion to sign an application was a matter of office policy, departmental ethics and an attorney’s specific state bar ethical obligations. In addition, this option to not sign was included as a specific point of guidance from senior management at the time: If an attorney exercised this judgment and discretion, there would be no adverse career consequences for doing so.

That didn’t mean that the Department of Justice would not necessarily present the application in question to the court. Line attorneys did not have the authority to deny an application. There were higher-level department officials—all the way up to the attorney general himself—who would be the final decision makers on whether the application was legally sufficient. But the point was that one had a choice as a lawyer and as a career departmental professional—a choice to follow one’s own legal assessment, professional ethical obligations or judgment.

Separate from “routine” cases, a situation arose during that period that was highly classified then but has since become part of the public record. The president had authorized certain surveillance activities for counterterrorism purposes in the United States that were conducted outside the authorization of the Foreign Intelligence Surveillance Court. These activities were later acknowledged, after an unauthorized disclosure of classified information, as the President’s Surveillance Program (PSP). Without getting into the details, there were certain cases that I and others worked on that were presented to the FISC and that were affected by activities authorized by what we understood as—but were not briefed into at the time—“the Program.”

Lawyers in the office were told by the office’s leadership that if anyone was not comfortable signing an application affected by these issues, that person didn’t have to. We were also told—and this is the important part—that a refusal to sign on would have absolutely no consequences for that person’s career. In other words, the lawyers handling these cases were told that if in their professional judgment they could not sign or if they were not comfortable doing so, they didn’t have to, and that was okay.

For my part, and generally, over the course of matters I worked on during these years, I can’t remember a case that I refused to take forward to the court on legal or ethical grounds, though I do remember specific cases that I debated seriously and substantively with my supervisors. I was, and remain, comfortable in the knowledge of the extent of the work that I and the agents and analysts I worked with put in to develop a legally sufficient case. Moreover, I am comfortable with what I experienced as the informed and serious engagement by the individual judges of the FISC who considered the cases brought before them. But I also was under the impression that there were lawyers in the office, who, from time to time, and for whatever reason, did not take a case forward.

I think about this experience when I think about the front-line CBP agents, ICE agents and HHS officials who have been ordered to forcibly separate children from their parents, attend to young children in government facilities, or supervise the placement of these children in foster homes thousands of miles from their parent. And I think about the government lawyers giving those agents and officials advice about how to implement the order they have been given.

It is beyond the scope of this post to further explore the potential civil rights or other legal theories implicated by physically removing children from their parents in the course of border and immigration enforcement—and, if the allegation noted at the outset is true, of government agents misleading migrant parents about where their children are being taken. But it is incumbent on the agents, lawyers and other personnel involved in these processes to carefully consider the guidance their agency is issuing. I wonder: Can they say no? Has anyone in a position of authority told them they can say no? Is anyone willing to say no?

Disclaimer: All statements of fact, opinion, or analysis expressed are the author’s alone and do not necessarily reflect the official positions or views of the Department of Justice or any other U.S. government agency. This article has been reviewed by the Department of Justice to prevent the disclosure of classified or otherwise sensitive information.