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Angry Mom: Hiding the Trumpian Genocide’s Records

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When I think can’t get any angrier at this miserable excuse for governance, the Trump administration proves there isn’t a limit to how low they will go.

Sleazy, unlawful executive action without adequate oversight followed by a fog of obfuscation and prevarication is bad enough. The administration will now double down now to hide what it’s done and hope like hell nobody notices.

It doesn’t help that members of Congress, journalists, and the public still haven’t grasped the true nature of the crimes before them.

The Trump administration hasn’t merely ignored or broken existing U.S. laws on handling of asylum seekers. See 8 U.S. Code § 1158:

(a) Authority to apply for asylum
(1) In general
Any alien who is physically present in the United States or who arrives in the United States (whether or not at a designated port of arrival and including an alien who is brought to the United States after having been interdicted in international or United States waters), irrespective of such alien’s status, may apply for asylum in accordance with this section or, where applicable, section 1225(b) of this title.

(2) Exceptions
(A) Safe third country
Paragraph (1) shall not apply to an alien if the Attorney General determines that the alien may be removed, pursuant to a bilateral or multilateral agreement, to a country (other than the country of the alien’s nationality or, in the case of an alien having no nationality, the country of the alien’s last habitual residence) in which the alien’s life or freedom would not be threatened on account of race, religion, nationality, membership in a particular social group, or political opinion, and where the alien would have access to a full and fair procedure for determining a claim to asylum or equivalent temporary protection, unless the Attorney General finds that it is in the public interest for the alien to receive asylum in the United States.

(B) Time limit
Subject to subparagraph (D), paragraph (1) shall not apply to an alien unless the alien demonstrates by clear and convincing evidence that the application has been filed within 1 year after the date of the alien’s arrival in the United States.

There’s more but the key part in boldface above. The “zero tolerance” approach to border protection violated this code. Asylum seekers do not have to apply from outside the country; they can apply once inside the country. I’m not a lawyer but I don’t see anything here that indicates asylum seekers are suddenly not eligible to apply for asylum because they crossed the border.

And nothing in the entirety of 8 U.S. Code § 1158 indicates the government may take custody of asylum seekers’ minor children with or without force.

Note also where the asylum seekers may apply — they are NOT limited to designated ports.

DHS Secretary Nielsen’s claim that border crossers had not applied through ports of entry is a lie because it wasn’t required of them.

What happens to the children appears to fit the description of kidnapping (18 U.S. Code § 1201), including section (a)(3), an “act against the person is done within the special aircraft jurisdiction of the United States as defined in section 46501 of title 49” for those children who are flown by aircraft to other destinations in the U.S. out of their parents’ physical custody. It’s no wonder carriers like United Airlines and American Airlines wrote and published letters yesterday telling DHS to stop using their services for moving the children across the country.

The conditions in which many of the children have been placed also appear to be abusive; based on the children seen so far there are reports of not enough food, sedation, restraints, disruption to sleep habits, etc.

But that’s not the end of it. The entire separation of children from their families appears to be genocide under The Convention on the Prevention and Punishment of the Crime of Genocide which the U.S. has signed (1948) and ratified (1988):

Article 2
In the present Convention, genocide means any of the following acts committed
with intent to destroy, in whole or in part, a national, ethnical, racial or religious
group, as such:
(a) Killing members of the group;
(b) Causing serious bodily or mental harm to members of the group;
(c) Deliberately inflicting on the group conditions of life calculated to bring about
its physical destruction in whole or in part;
(d) Imposing measures intended to prevent births within the group;
(e) Forcibly transferring children of the group to another group.

We have not yet seen evidence of child deaths, but section (b) is likely and (e) of Article 2 is definite — the children are now in custody of the United States government and disbursed to others’ care.

Wednesday’s executive order does nothing to remedy the situation. It doesn’t even stop the separation of children from families due to its murky wording. It exacerbates the problem by foisting some of the responsibility on the military, placing the Defense Department at odds with the Posse Comitatus Act (18 U.S. Code § 1385) as the EO expects the military to perform a domestic function — DHS’ border patrol and immigration services — which is not in response to a natural disaster.

(Oh, this is definitely a disaster, but it is human made.)

Ordering the military to provide assistance also draws defense resources away from where they may be needed, potentially creating security risks.

And yet this is not enough insult. DHS’ Immigration and Customs Enforcement (ICE) asked the National Archives and Records Administration (NARA) last year if it could change its record retention practices, according to The Memory Hole:

Immigration and Customs Enforcement (ICE) has asked for permission to destroy all its documents about the deaths of detained immigrants in custody 20 years after a case is “closed.” (Deaths in ICE custody are almost always investigated by ICE itself. A minority are investigated by the Department of Homeland Security’s Inspector General. [report])

Similarly, ICE wants to destroy all its documents about sexual assaults of detained immigrants in custody. The time frame is 20 years after a case is “closed.” (Again, ICE almost always investigates itself in these cases. The Department of Homeland Security’s Inspector General investigates around 1% of complaints/reports. [article]) NARA argues that this information is “sensitive,” implying that documents containing the identities of victims and the accused should not be kept indefinitely. ICE itself did not offer this (or any) justification.

Thankfully The Memory Hole followed up and asked for status on ICE’s request, to which NARA replied:

No final action has been taken on this schedule. NARA appraisal staff have reviewed the comments received, and held several meetings with ICE records management and program staff regarding the records being scheduled.

Proposed changes to the schedule are being reviewed internally by NARA stakeholders for internal concurrence, after which NARA will inform ICE of the required changes. NARA will then publish a follow-up Federal Register notice responding to the public comments we received. This notice will be open for public comment for 15 days from the date of publication.

But it is not yet impossible that records related to the current human-made disaster affecting thousands of children may be destroyed prematurely, depriving them of justice.

There’s simply no way that ICE should be allowed to change its records retention given the scale of the separated families disaster. And yet I have a horrible, angry feeling the Trump administration will do whatever it can to hide its role in this genocidal activity along the U.S. southwest border.

EDIT — 5:45 P.M. EDT —

I meant to add one more thing to this post. It’s imperative I add this now that the White House has tried to change the subject by using FLOTUS as a human shield with a target literally painted on her back. Do not be derailed by their bullshit. Keep asking:

Where are the girls?

Where are the babies?

Where are ALL the bodies???

Curiouser: The Blindsiding of Sally Yates

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Remember back in early May I noted the curious timing of events leading up to former Lt. General Michael Flynn’s departure from the Trump administration and the launch of Trump’s ‘travel ban’?

It looks like former Deputy Attorney General Sally Yates was completely blindsided by the travel ban, according to The New Yorker.

Yates told McGahn that she would have the Flynn materials for him by Monday morning. She left the White House, stopped at the Justice Department to pick up some documents, and continued on to the airport. She was returning to Atlanta for a dinner honoring a camp for children with serious illnesses and disabilities, which her husband has supported for years. On the way to the airport, she received a call from her deputy, Matt Axelrod. “You’re not going to believe this, but I just read online that the President has executed this travel ban,” he said.

It was the first Yates had heard of the order. “I had been sitting in Don McGahn’s office an hour before that,” she said. “He didn’t tell me.” She later learned that lawyers in the Office of Legal Counsel, at the Justice Department, had reviewed the order, and that they had been instructed not to share it with her. A source familiar with the process said that even the most senior Trump aide assigned to Yates’s office didn’t know about the order until he saw the news on CNN.

Yates was in the White House meeting with the White House Counsel and the administration couldn’t bother to flag her and tell her, “By the way, we have something new for you to enforce”?

They couldn’t brief her on the order in advance?

The Office of Legal Counsel was  “instructed not to share it with her”?

They couldn’t call her directly and tell her about the order even after they signed and implemented it?

She had to look up the text of the order on the internet and read it. It doesn’t look as if the Trump administration ever bothered to contact Yates directly about the order, yet they expected her and the rest of federal law enforcement to blindly defend it.

Come Monday evening — after she told the Justice Department that afternoon it cannot enforce the travel ban — she was summarily fired. Trump called her “weak on borders and very weak on illegal immigration” in her dismissal letter.

Either this administration was (is) completely out of its depth, unable to read organizational charts, understand how to administer operations changes, and muster basic team management skills, relying instead on media across the internet and television to disseminate information about executive orders throughout the executive branch…

Or they wanted to completely derail and swamp Yates from pulling together “underlying evidence” describing Flynn’s conduct for the following Monday morning after she left the White House on Friday evening, January 27.

Nor did they have any intention of successfully rolling out a legitimate ban on travel to thwart credible terrorist threats.

Curiouser and curiouser.

When All Executive Orders Turn to Pixie Dust

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I promised to respond to Marty Lederman’s response to Sheldon Whitehouse’s speech today; though I should admit right away that the Libby non-appeal has changed my approach dramatically. So you won’t see everything today.

Marty assesses the three propositions that Whitehouse has had declassified and is unimpressed.

The Administration has now permitted Whitehouse to talk about three aspects of the OLC Opinions, and that’s what he did yesterday. He expressed incredulity about all three. But there’s a reason the Administration gave him the green light on those three matters — because the OLC statements in question are boilerplate, and fairly uncontroversial (with one possible, important exception, noted below). There are undoubtedly very audacious and disturbing aspects of many of those OLC memos — such as the arguments that the AUMF superseded FISA and that the President has a constitutional right to violate FISA; and almost certainly descriptions of how much broader and more indiscriminate the NSA program was before Jack Goldsmith reined it in a bit in early 2004 — but the three statements Whitehouse identified, standing alone, are not terribly noteworthy, at least not from a constitutional perspective. [my emphasis]

Marty is assessing these, of course, as a former OLC lawyer. And he finds, for the most part, the three propositions are constitutional. Let me be clear that, as a non-lawyer, I’m assessing the propositions by what they suggest about Bush’s activities, which is part of the difference between Marty’s calm and my outrage. I’m going to come back and look at the two propositions Marty is least excited about (numbers 2 and 3 in Senator Whitehouse’s list). For now, though, let me jump ahead to the one that both Marty and I were most troubled by: Read more →