Detention Camps and Deadlock: US Immigration Policy Is in Disarray

Jeff Merkley
Sen. Jeff Merkley (D-OR) superimposed over protesting ICE and deportation raids in Chicago, IL, on July 13, 2019. Photo credit: NRCS Oregon / Flickr (CC BY-ND 2.0) and Charles Edward Miller / Flickr (CC BY-SA 2.0)
Reading Time: 13 minutes

Sen. Jeff Merkley (D-OR) does not represent a border state. Immigration is not a high priority issue in Oregon. Yet, motivated by compassion, curiosity, and a commitment to the rule of law, he became the first member of Congress to travel to the border to visit the now-infamous immigrant detention centers.

What he saw shocked him and ultimately the nation. The traumatic detention of children and the internment-camp-like facilities reminded him of the missed legislative opportunities that could have prevented this from happening.

In this week’s WhoWhatWhy podcast, Merkley talks about some of the specific failures of past legislative efforts and the sharp disagreements between Republicans and Democrats on what to do next.

Merkley points out the irony of these facilities. Through their very cruelty, they were meant to serve as a deterrent to would-be immigrants. At the same time, however, they are shrouded in secrecy.

He explains that while his early visits — and those of other members of Congress and the media — may have shined some light on what’s going on, the brutality to children, the chaos at the border, and the physically substandard detention  facilities are going to take a lot more than legislation to redress.

While the senator emphasizes his own legislative proposals and the “Stop Cruel Treatment Act” that he has introduced, it’s clear from listening to him that the solution lies not just in action by lawmakers in Washington, but by ordinary citizens demanding an end to the inhumane treatment of asylum-seekers in a country built, developed, and defended by generation after generation of immigrants.

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Full Text Transcript:

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Jeff Schechtman: Welcome to the whowhatwhy podcast. I’m your host, Jeff Schechtman.
Jeff Schechtman: We’ve all seen the pictures of what’s going on at the border, migrant families and refugees living in subhuman conditions, a breakdown of the rule of law of sanitation and basic human decency. Children torn from their families. But seeing it on the nightly news or on cable is far different than seeing it up close and personal. What’s worse is that none of it is necessary. It’s all the result of cruel actions, bad policy and its net result for America is not to make us safer, but to fuel bigotry, hate and scapegoating. Worst of all, it comes from a deep strain in the America DNA that has reared its ugly presence too many times in our history. It’s a history we don’t seem to learn from, and one we should have outgrown by now.
Jeff Schechtman: We’re going to talk about this with a man who has seen it all, up close and personal, and is trying valiantly to redress the situation. He’s Oregon Senator Jeff Merkley, and in addition to authoring legislation to try and deal with some of these issues, he’s the author of a new book entitled America Is Better Than This, Trump’s War Against Migrant Families.
Jeff Schechtman: Senator Merkley, thanks so much for joining us.
Jeff Merkley: Well, you’re very welcome. Good to be with you.
Jeff Schechtman: Talk about your early trips, your early forays down to the border and what you saw there personally.
Jeff Merkley: Yes, it was just in the beginning of June of last year, 2018, when I was reading a speech by the former Attorney General Jeff Sessions that he’d given a couple days before, called Zero Tolerance. And I thought, “Oh, zero tolerance, well, that sounds like tough on crime, not surprising from a Republican administration six months out from the election.” And as I read the details, it became clear to me that it envisioned ripping children out of their parents’ arms at the border. And I said to those around me, “There is no way they’re actually doing this. No American president or presidential team would ever embrace deliberately harming children as a political strategy to deter immigration.”
Jeff Merkley: And someone said to me, on my team said, “Well, there’s one way to find out. Go down to the border,” and I thought that absolutely right. So I flew down to the border that Sunday and became the first member of Congress to get into a customs and border protection processing center, saw the children after they had been torn from their parents arms being sorted into these chain-link cages in a warehouse, and I was just stunned, just absolutely stunned. I could not believe it. The press had never been allowed in. And shortly after, a couple hours later, I went up the road to Brownsville, I had heard that many of these separated children, these boys, were by the hundreds being stuffed into a place, a former Walmart, run by Southwest Key, it’s called Casa Padre.
Jeff Merkley: So I went up there, knocked on the door and asked to see what was going on. They didn’t like the fact that I was in the parking lot and called the police on me and conveyed to Americans that the administration wanted to keep secret what it was doing. But it also ended the secrecy. So that launched me on this effort to find out all the details at the different complex parts of the system and take on trying to end it.
Jeff Schechtman: There’s this weird irony in the whole thing where the idea of some of this going back to what Sessions said, and certainly what’s been said by others in the administration, that it is meant to be a deterrent, that it is meant to be punitive and yet there is this sense of secrecy about it that, in a way, there’s a kind of cognitive dissonance to that.
Jeff Merkley: Yes, the administration did talk publicly about this, just 13 days after the inauguration of President Trump. And the following month, the head of the Department of Homeland Security, John Kelly talked about it. The following month, they launched a pilot project in San Diego sector of the border. But at that point, they went secret. And they went secret through May of the following year when Jeff Sessions gave his speech. I think the reason they went from the secret program to the public speech about it, was because it was six months out from the election, the Republicans were looking for a fear factor to stir up Americans in the November 2018 election and nothing seemed to fit. Ebola didn’t fit, ISIS didn’t fit any longer, so they doubled down on immigration and said we’re just going to be super tough on immigration and send that message that super tough, in this case, meant harming kids.
Jeff Schechtman: One of the things that is going on down there is that so much of the activity there flies in the face of existing laws, existing court decisions. Talk a little bit about that.
Jeff Merkley: The President’s team keeps implementing regulations that are in direct contravention of American law and the courts keep striking them down. For example, the Trump team said, “We’re not going to allow there to be an asylum process for folks who cross the border between ports of entry.” And our law specifically says that you can apply for the asylum process crossing between ports of entry because it’s in contravention of existing law and of the refugee convention to turn away someone and not give them safe harbor if they’re fleeing persecution. Also, those folks crossing between the ports of entry, those are often the folks who came to the port of entry or the administration is blockading them, sending them back into Mexico, putting them on wait-lists that can be months so they’re stranded in dangerous border towns with no friends or family or funds. And so in desperation, they cross between ports of entry deliberately to surrender themselves to border patrol officials. So they put forward this regulation and the courts immediately struck it down.
Jeff Schechtman: And to what extent has the administration responded to those court decisions?
Jeff Merkley: They seem to be on a plan where they have a list of items that they roll out every few days just to keep immigration in the news. For example, the President talked about, “I don’t have enough money, so we’re not going to let kids outside to play soccer because that costs money,” at the child prisons that the administration is operating. And then they said, “Well, we’re not going to give flu shots at the CVB processing centers,” even though three children died of flu. Then they said, “We’re going to appeal a decision that we have to provide toothpaste and soap and bedding to children.” That’s horrific. Who can imagine an American government saying they want the freedom to not provide soap or bedding or toothbrushes, just basic hygiene necessities, to children. And yet that goes right along with this administration’s strategy of inflicting trauma on the kids.
Jeff Schechtman: How much of what we’re seeing today is a result, not just of the policy of the Trump administration, but really has been something that has been festering for a long time because of such long neglect of this issue, with really dealing with immigration in a more holistic way?
Jeff Merkley: Well, I think mostly we’re seeing a manifestation of the strategy of division that Trump campaigned on and has taken into the Oval Office. He campaigned, he attacked African Americans, Haitian Americans, Latino Americans, women Americans, Americans with disabilities, Muslim Americans. And, I must say, in office, he really then directed the bulk of his attacks on immigrants. Maybe they’re the easiest target because they’re coming from outside the country, but it’s a manifestation and there’s a racist strain to this. The President talks about liking refugees from Norway. He has a member of his administration who just announced that the words carved into the Statue of Liberty, “Give me your tired, your poor, your huddled masses,” were only meant for Europeans, in other words, white people.
Jeff Merkley: So we’re seeing a real manifestation, I mean, there’s something tribal in the human instincts and when you have a president deliberately exacerbate those tribal divisions by ethnicity, by color of your skin, by the country you come from, it’s an easy target. This is used by folks who have a dictatorial intent across the world, but it’s not America. We need to stand against this strategy of hate and division. And we certainly have to stand against the strategy of deliberately targeting children.
Jeff Schechtman: What tools does Congress currently have, or trying to have, to address some of these issues?
Jeff Merkley: Well, existing law and existing court decisions are a tool, and then, of course, modifying those. The challenge with modifying them is that the Republican Party has stood in the way of past deals. For example, we had in 2013, Democrats and Republicans in the Senate come together, it was called the Group of Eight forged it, four Democrats, four Republican senators. And it passed overwhelmingly in the Senate with bipartisan support to address … it was a comprehensive immigration bill to fix this broken system. Security at the border, security at the point of employment, security for folks overstaying their visas, which, by the way, is the largest source of undocumented individuals in the United States of America. A pathway to citizenship for those who arrived previously, an instant legal recognition, and using visas to address the job shortage that might emerge in agriculture and high tech, etc.
Jeff Merkley: It was a comprehensive fix, it was killed by the Republican leadership in the House without a debate and without a vote. Bipartisan Senate bill killed by the Republicans. I feel they want to maintain immigration as an election issue. They don’t want to fix a broken system.
Jeff Schechtman: Talk a little bit about the legislation that you have introduced to try and address some of these issues, particularly with respect to children.
Jeff Merkley: As this legislation shows the deep division that has become present between the two parties, you have on the Republican side a bill that allows the long-term imprisonment of children, and it has 40 sponsors. It would also allow internment camps across the country to lock up migrant families for long periods of time. No Democrats have sponsored it. And there’s my bill which basically says, “Treat children humanely.” It’s called the Stop the Cruel Treatment of Migrant Children Act. It has 40 Democratic sponsors, and I haven’t been able to get a single Republican to sponsor it. But it would end the border blockade that leaves children stranded in Mexico. It ends the holding in freezing cold holding cells that are referred to as ice blocks by the Spanish word ‘hieleras’. It would stop the process of keeping kids locked up for months in influx facilities that are essentially prisons currently exempted from the Flores requirement of no more than three days of imprisonment. It would apply Flores to them.
Jeff Merkley: In fact, it would shut down the for-profit versions of this. There should be no for-profit contracts in a child prison system that incentivized keeping kids locked up. And it would make sure that children … we had the caseworkers and the field workers to be able to establish the sponsors so children could be with families and in school and in parks and playgrounds as they awaited adjudication of their asylum status. So it’s just basic humane treatment of children as they await the outcome of their legal proceedings.
Jeff Schechtman: Talk a little about the Flores Agreement from 1997 which really was intended to limit the amount of time the children could be held.
Jeff Merkley: Yes, it did several things. It said that you can only hold children for three days in a non-state licensed facility. That had more flexibility added to it, up to 20 days during a period of high influx, just recognizing there’s a huge wave of immigrants arriving that might, at moments, overwhelm the system. It said that not only state licensing, but state inspection, that outside groups, both lawyers and doctors can inspect to see if the standards are being maintained. It’s laid out humane treatment standards for hygiene and for nutrition and for the housing. It proceeded to do these things and the administration hates it. It has been their primary target. They do not want there to be in place an agreement, a settlement, for the humane treatment of children. And that includes, they don’t want the state licensing, the state inspections, the outside inspections, the humane treatment standards, and they certainly, most of all, don’t want the restriction on how long they can imprison kids.
Jeff Schechtman: Where does this go from here?
Jeff Merkley: I should add, that this last week, they issued a regulation to try to replace Flores. Flores says that if it’s implemented by regulation, it goes away. However, what the administration is doing is not implementing Flores, they’re destroying Flores. And so, in that sense, I think it will be another case where the courts are going to step in and say, “You’re violating the law, this regulation cannot stand.” I certainly hope so.
Jeff Schechtman: And to the extent that the administration continues to violate that law, even if the courts say otherwise, what recourse is there?
Jeff Merkley: Well, the recourse really is only going back to the judge who administers the laws or the settlement, Judge Gee, and get a new ruling saying, “No, you really have to obey this,” because it isn’t like a law that says if you violate this, it’s a civil penalty or a criminal penalty, so that’s the challenge. Administration, it doesn’t want to give flu shots and doesn’t want to hand out toothbrushes and doesn’t want to provide a sleeping mat, is not one you can trust to administer humane treatment under existing settlements or laws. And that’s a big piece of the problem. It’s why ultimately, we will fight in every level, but in the end, I don’t think the inhumane determination to inflict trauma on children is going to end until Trump is voted out of office.
Jeff Schechtman: To what extent do you see the situation down there continuing to get worse? Has anything been done to improve sanitation, to improve the conditions in any way?
Jeff Merkley: The intense public attention has brought improvements. Also, I won the ability, through the appropriations bill, I pushed for a specific provision that gives congressional access because administration was doing all it could to block congressional access. That has helped increase transparency. Within transparency, people are a little more on edge about how they provide conditions in the camps. So there has been some improvement in that. The Tornillo influx facility, a notorious facility in the desert, has been shut down last January after a lot of public attention to it, and pressure, as well as internal pressure from the contractor, a nonprofit BCFS, that decided that the children were not being well-served. And it wanted to get out of the contract and no other contractor picked it up because of the bad reputation of the administration’s strategy. So it was shut down, but meanwhile, the administration expanded Homestead, a for-profit child prison in Florida run by a corporation called Caliburn and there is corruption at the heart of this.
Jeff Merkley: The first level of corruption is that John Kelly served on the board of the company that ran the camp before he became the Secretary of Homeland Security. As Secretary, he advocated for the imprisonment of children and then as soon as he was out of the administration, he immediately was returned to a high paying position on the board of the company that controls the camp. That’s one level of corruption. The other level of corruption is simply incentives for a for-profit company to keep children locked up. It’s a noncompete contract worth hundreds of millions of dollars in the form of payments that equate to about 750 dollars per day per child.
Jeff Schechtman: And finally, Senator, talk a little about your involvement in this. We talked about you going down to the border early on, but being from Oregon, it’s hardly a border state. Talk a little bit about how you’ve been personally galvanized by this issue.
Jeff Merkley: This treatment of children is something that touches the heart of every American, it doesn’t matter where you live. We all grew up with the vision of the Statue of Liberty shining her torch to the oppressed. This administration has snuffed out that torch and I think all Americans are determined, are concerned about ending this period of darkness and relighting that torch. So that’s why it’s relevant no matter where you live in the country. And I can tell you, I’ve traveled the country and people come up to me everywhere and say this matters to them. They can’t believe it’s happening. American government, our government, our taxpayer money, our land, attacking and afflicting cruelty to children. It’s absolutely evil and wrong under any religious tradition or moral code, and we have to end it.  No one else will. We, the American people, have to end it.
Jeff Schechtman: Oregon Senator, Jeff Merkley. Senator, I thank you so much for spending time with us today on the whowhatwhy podcast.
Jeff Merkley: You’re very welcome. We need to make sure as the President does one tweet after another, changing the topic, we don’t forget that children are being mistreated by our government and that we have to end it. Thank you so much.
Jeff Schechtman: Thank you. And thank you for listening and for joining us here on radio whowhatwhy. I hope you join us next week for another radio whowhatwhy podcast. I’m Jeff Schechtman.
Jeff Schechtman: If you liked this podcast, please feel free to share and help others find it by rating and reviewing it on iTunes. You can also support this podcast and all the work we do, by going to whowhatwhy.org/donate.

Related front page panorama photo credit: Adapted by WhoWhatWhy from BBC World Service / Flickr (CC BY-NC 2.0) and U.S. Department of Agriculture / Flickr.

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