Thursday, June 28, 2018

Detention at the Border and Jewish Ethics

Families caught crossing the US border illegally, in detention
It's the latest contentious issue to explode in the marketplace of ideas; in many parts of the world, but here I'm addressing specifically the issue as it presents itself in the United States.  For a number of weeks, there has been a public outcry - from the Democrat Party, from much of the press, and from many citizens including Republicans, concerning one result of the Trump Administration's policy of 'zero tolerance' at the border:  the separation of migrant children from their parents.

The phenomenon apparently results from a settlement from 1993 between the courts and the Clinton Administration, known as 'the Flores Agreement.'  A lawsuit was filed against the administration on behalf of an under-aged refugee from El Salvador, who arrived unaccompanied by a a parent or guardian and was placed in detention until her status could be determined.  As a result of that lawsuit, the administration agreed that such children would be placed when possible, with a family member or friend in the US and if unavailable, they would be detained only under the least restrictive and safest possible conditions, and only for a limited period.  If the case took more than 20 days, and filing to find someone known to the family with which to place the child, they would be placed in temporary custodianship - ie, foster care - until an adjudication could be made.

Since Flores, this agreement has been understood by every administration to apply by extension to children who arrive with their parents; if their parents' status could not be adjudicated in a short time, the children had to be separated to avoid keeping them in detention for an extended period.

Previous administrations struggled to comply with Flores and all its ramifications, while trying to maintain some control over the border.  In 2014, the Obama Administration got into trouble with the courts when it decided to hold entire families in detention and try to adjudicate their status quickly.  That's when the US Ninth Circuit Court ruled that Flores definitely applies to accompanied children, and limits the government's ability to detain whole families, to 20 days.

So what changed, that this is such a hot issue all of a sudden?

Attorney General Sessions' replacement of 'Catch and Release' under the Obama Administration - and under the current administration until they'd had time to study the law and address the issue - with 'Zero Tolerance' happened, that's what.

Under 'Catch and Release,' many illegals caught on the US side of the border were given a scolding, then released back over the border.  The premise was that crossing the border without papers was illegal, but not a real crime; instead of clogging up our judicial system and prisons, they would be sent back whence they came.  But the problem was that such individuals, released from custody, would usually just try to enter the US on another day, perhaps by a different route.  And once they were able to reach a 'Sanctuary City,' they were home free.  In such localities, local law enforcement agencies are under strict instructions not to turn over anybody having an encounter with the law, and suspected of being the in US illegally, to federal authorities.  The result of these 'sanctuaries' is a string of sensational cases where illegals have committed terrible crimes, crimes that they wouldn't have been free to commit had they been detained at the border, prosecuted for illegal entry if indicated, and incarcerated for the crime of entering the country illegally.

Under Sessions' 'Zero Tolerance' policy, those caught in the country illegally are detained, prosecuted if warranted, and punished through the legal system.  This has led to a dramatic increase in illegal border-crossers coming with children, having been advised that those children cannot be held more than 20 days.  And the uproar is a result of the Trump Administration's efforts to comply with the law and previous agreements, while at the same time taking measures - such a 'Zero Tolerance' to keep the country safe from the hardened criminal element that has been entering the country through the leniency of previous border policies.

President Trump, under fire for the separation of children from their parents, challenged Congress to change the law.  But there's no change forthcoming, at least not in the immediate future.  For the congress and previous congresses, immigration is a 'hot potato' that they don't want to be caught holding.  So in the case of the Democrats - and some Republicans as well - the solution is to cry 'Nazi' to foment hatred and loathing of the President, while not offering  single solution.  President Trump, knowing that he has to do something, has issued an Executive Order dropping the 20-day limit on children being held, and called upon the military to assist in providing a number of facilities where families with children can be detained without mixing them in with populations of potentially hardened criminals.

Some conservatives have charged that the protests, and inability of the opponents of the administration policy to sit down and craft legislation allowing the administration to solve the problem at the border, represents that philosophical position that borders are, in and of themselves, bad and that a completely open borders policy is the only defensible immigration policy.  It's hard to deny that there's truth in that; there is a 'No Borders' camp in many places of the world, that decries any government's attempts to put some control into the movement of people from country to country.  I have seen this camp at work in Australia when I lived there, in Europe in recent years, and in Israel.  Talking to people outside Israel who are critical of the state's use of limited military force to prevent mass breakthroughs of the border from the Gaza Strip, it becomes clear that many of those who criticize Israel over the issue simply believe that there should be no obstacle to desperate people wanting to cross a border into another country.  So, this strain of thought in the US - and those outside of the US who are critical of the Trump Administration's action - is not surprising.

Among Jews, the argument is often made that keeping those who would declare themselves refugees out of the US, or at least vetting them on arrival to determine if they are bona fide refugees - is like the countries of the world closing their doors to Jews in Europe when the Holocaust loomed and those Jews were at great risk.  This creates, in many Jews' minds, a popular notion that the only valid Jewish ethic on the subject, is open borders to anybody who would claim refugee status, and whether they crossed the border legally or illegally.

I couldn't disagree more.  In statecraft, there are frequent tensions between compassion and doing what's good for the nation.  Sometimes, laws and policies have unintended consequences and should be looked at for revision.  In the 'immigration business,' finding a balance between compassion for those who claim to be fleeing persecution and personal danger, and the nation's need to allow those who truly rate that compassion to enter while protecting the public from those who. allowed to enter, would pose a danger to the nation's citizens, can be difficult.  If all parties are truly concerned about those fleeing danger, it is unhelpful to label the President and his advisors as Nazis and suggest the dismantling of ICE, the law enforcement agency charged with controlling the border.

If there's a position required by 'Jewish Ethics,' I would submit that it is the idea that it is the assumption - unless proven otherwise - that all sides desire a good result, and that they be prepared to discuss, negotiate and arrive at a best solution for a difficult problem.

No comments:

Post a Comment