Find Ken Feinberg
This is my fifth essay on the border crisis. The “unwritten rules” of Trump World are to not get stuck on one subject, and not “chase” the headlines. As General MacArthur said, rules are made to be broken.
President Trump signed an executive order yesterday to end his “policy” of separating children from parents who cross the border illegally. He did so under extreme public pressure, and even greater pressure from the Republicans in Congress. They saw the policy as a huge campaign liability for November.
President Trump states that separating children from their parents will stop. He also stated that the policy of “zero tolerance” at the border will continue. This means that every person who crosses the border outside of the designated “ports of entry” will still be charged with a crime, and held for trial.
This was the change that started the entire border crisis. Prior to the beginning of May, those caught crossing illegally were processed for a “civil” offense, then released until trial. Ninety-nine percent of those released were returning for their trial, even though the result might well be deportation. The “zero tolerance” policy made the crossing a criminal action, and those charged are held in custody.
So the arrests will continue. Families will be held together in custody. Within eight days all of the existing facilities designed for families are likely to be filled. This will be the first of a series of cascading crises keeping this issue at the fore of American thought.
The second crisis is centered around the Flores Agreement. This legal understanding, originally settled in 1997, determines how long children can be held in custody by the Departments of Homeland Security or Justice. The agreement states that after twenty days, the children must be removed from custody. If the parent(s) is still held in legal custody, and the children are not released to a custodial parent or relative, then the government is obligated to transfer the child to a “least restrictive” situation.
The government considers that “ least restrictive situation” the camps and facilities, run privately under contract to the Department of Health and Human Services. They are holding 2342 separated children now, as well as several thousand other minors who crossed the border on their own. Lawsuits have already been filed questioning that action. The Attorney General has given notice that he will go to court to get the Flores Agreement modified, giving him more time to hold families in jail. As a twenty-year old decision, it is unlikely the courts will do so.
The second crisis under “zero tolerance” will be when the “families in custody” reach the twenty-day limit. Under Flores, those children have to be released. Under the Executive Order, they cannot be separated from their parents. Will the Government release the families, or ignore the courts, or separate the children again?
Or will President Trump declare “victory in defeat;” release the families, and blame the Congress for failing to build “the Wall?” This could make his policy failure into a “hot” political issue for the November elections. “My hands are tied by Congress, give me a bigger Republican majority,” might be his tweet the day that the families walk out.
All of these are a few days out. But the greatest crisis arising from the President’s actions is occurring right now. 2342 children, from eight months to seventeen years old, have been “seized” by the US government, and literally scattered across the country. While the government has kept the locations and conditions of these privately run facilities secret, we already know that they are located in New York, Pennsylvania, Virginia, and Michigan, as well as in the southern border-states.
There is no plan to return these children to their parents.
The parents are in the custody of the Justice Department. The children are held in private facilities, ostensibly under control of Health and Human Services. There is no direct method, no wristband or bar code, that connects these kids to their parents. The numeric coding used by the Border Patrol doesn’t transfer to HHS. And if the parent gets deported, there is no process to send the kids with them.
There are already multiple cases of parents returned to their home country and unable to get their kids for months. Former leaders of the Department of Homeland Security have made it clear that there will be children who will NEVER BE RE-UNITED with their parents.
The United States has taken these kids from their parents. We have kidnapped them. The penalty for the parent’s misdemeanor offense of crossing the border illegally: loss of their child, maybe forever.
This cannot be allowed.
Ken Feinberg is the attorney America turns to in its greatest moments of need. Feinberg was the “special master” who distributed the funds from 9-11, from the BP oil spill, from the Penn State molestations, and from the Virginia Tech, Sandy Hook and Aurora shootings. Ken Feinberg sorts out the biggest problems that our country has, and while he isn’t always perfect, he is able to take these incredibly complicated actions and provide some relief.
The Immigration, Customs and Enforcement Agency had no plan to put these kids back together with their parents. The Department of Health and Human Services didn’t either. The kids, some infants, have been “disappeared” into the maze of facilities and foster care programs. It will take a special person with special powers to get them back to parents, who might well be back in the dangerous slums of El Salvador or Guatemala before they can be reunited.
Ken Feinberg should be appointed as the “special master” by the courts, and given whatever powers and authorities he needs to get the job done. The US government is willing to spend over $750 a night per kid to keep kids in tents in the desert; if they can afford that, they can afford Ken Feinberg. Whatever the cost, it’s the right thing to do, and it needs to be done NOW.
