By the time Donald J. Trump threw in the towel, who among us hadn’t seen or heard the chilling videos in which U.S. border officials shamelessly grabbed uncomprehending children and toddlers from their pleading mothers and fathers? Some were told they were being taken to bathe or shower by people with little sense of the resonances of history. They were, of course, creating scenes that couldn’t help but bring to mind those moments when Jews, brought to Nazi concentration camps, were told that they were being sent to take “showers,” only to be murdered en masse in the gas chambers. Some of those children didn’t even realize that they had missed the chance to say goodbye to their mothers or fathers. Those weeping toddlers, breast-deprived infants, and distressed teens were just the most recent signs of the Trump administration’s war against decency, compassion, and justice.
Because the victims were children, however, it was easy to ignore one reality: new as all this may have seemed, it actually wasn’t. Dehumanized, traumatized, and scared, those children — their predicament — shocked many Americans who insisted, along with former First Lady Laura Bush, that this was truly un-American. As she wrote in the Washington Post:
“Americans pride ourselves on being a moral nation, on being the nation that sends humanitarian relief to places devastated by natural disasters or famine or war. We pride ourselves on believing that people should be seen for the content of their character, not the color of their skin. We pride ourselves on acceptance. If we are truly that country, then it is our obligation to reunite these detained children with their parents — and to stop separating parents and children in the first place.”
Her essay essentially asked one question: Who have we become? Former CIA Director Michael Hayden, tweeting out a picture of the Birkenau concentration camp over the words “Other governments have separated women and children,” suggested an answer: we were planting the seeds that could make us the new Nazi Germany.
But let me assure you, much of what we saw in these last weeks with those children had its origins in policies and “laws” so much closer to home than Germany three-quarters of a century ago. If you wanted to see where their ravaging really began, you needed to look elsewhere (which, surprisingly enough, no one has) — specifically, to those who created the Guantánamo Bay Detention Facility. From its inception beyond the reach of American courts or, in any normal sense, justice, this prison camp set the stage structurally, institutionally, and legally for what we’ve just been witnessing at the border.
The fingerprints of those who created and sustained that offshore island prison for war-on-terror detainees were all over that policy. Not surprisingly, White House Chief of Staff and retired General John Kelly, former head of SOUTHCOM, the U.S. military combatant command that oversees Guantánamo, was the first official in the Trump administration to publicly float the idea of such a separation policy on the border. In March 2017, answering a question from CNN’s Wolf Blitzer about the separation of children from their mothers, he said,
“I would do almost anything to deter the people from Central America” from making the journey here.
Just such separations, of course, became the well-publicized essence of the Trump administration’s “zero tolerance” policy at the border and, until the president’s executive order issued last week, the numbers of children affected were mounting exponentially — more than 2,000 of them in the previous six weeks, some still in diapers. (And keep in mind that there already were 11,000 migrant children in U.S. custody at that point.)
Apprehended at the border, the children were taken to processing facilities, separated from their parents thanks to a mix of Department of Homeland Security, Department of Health and Human Services, and Department of Justice policy directives, and then locked up. From the moment they arrived at those facilities, the echoes of Guantánamo were obvious (at least for those of us who had long followed developments there over the years). First, there were the most visible signs; above all, the children being placed in wire cages that, as journalists and others who saw them attested, looked more like holding cells for animals at a zoo or dogs at a kennel than for humans, no less children. This was, of course, exactly how the first Gitmo detainees were held back in 2002 as that prison was being built.
President Trump foreshadowed the treatment to come.
“These aren’t people,” he said in May, referring to undocumented migrants crossing the border, “these are animals.”
To make the children’s caged existence worse still, the lights were kept on around the clock and the children subjected to interruptions all night, recalling the sleep deprivation and constant light used as a matter of policy on detainees at Guantánamo Bay. In addition, caregivers were not allowed to touch the children. Even shelter workers were forbidden to do so, which meant adults were not able to console them either. And bad as any of this sounded, such conditions were but a prelude to a much deeper tale of abuse at government hands.
As at Guantánamo, those children were also being subjected to a regime of intentional abuse. The cruel and inhuman treatment began, of course, with the trauma of separation from their parents and often from their siblings as well, since children of different genders were sent to different facilities (or at least different parts of the same facility). Such policies, according to pediatrician and Columbia professor Dr. Irwin Redlener, a leading authority on public policy and children in harm’s way, amount to “child abuse by the government.” In other words, it all added up to a new form of torture, this time visited upon children.
Asking for Congress and the White House to end the policy of separation, members of the American Academy of Child and Adolescent Psychiatry weighed in on the harm that the trauma of forced separation can cause:
“Separating these children from their families in times of stress creates unnecessary and high-risk trauma, at the very time they need care and support the most.”
the “children who experience sudden separation from one or both parents, especially under frightening, unpredictable, and chaotic circumstances, are at higher risk for developing illnesses such as anxiety, depression, post-traumatic stress disorder (PTSD), and other trauma-induced reactions.” (Ironically, one of the few characteristics Justice Department lawyers in George W. Bush’s administration acknowledged would constitute torture was “prolonged mental harm.” In their words, for severe pain or suffering to amount to torture would require that “the acts giving rise to the harm must cause some lasting, though not necessarily permanent, damage.”)
Name me the parent who doesn’t think that his or her child would suffer lasting harm if separated from his or her closest attachments. Yet, in a press briefing, Department of Homeland Security Secretary Kirstjen Nielsen bluntly insisted that
“claiming these children and their parents are treated inhumanely is not true.”
It’s worth mentioning, by the way, that the parents of the children were being tortured, too, not knowing where their children were being sent or held and when (or even if) they would ever see them again.
Perversely, administration spokespersons seemed to think that a trade-off had occurred: the loss of basic human rights for at least the pretense of pleasant cosmetic props. Some of the children at least were given toys and games. Nielsen even bragged that Trump administration officials had “high standards. We give them meals, we give them education, we give them medical care. There is videos, there is TVs.”
This, too, should have been a reminder of Guantánamo logic. The more the prisoners there were deprived of in terms of legal and human rights, the more the Bush administration boasted about the creature comforts offered to them, like movies, halal food, and even comfortable chairs (while they were being force-fed) — as if the presence of toys could counteract the wrenching separation from a parent (or a comfortable chair, force-feeding).
Dr. Colleen Kraft, president of the American Academy of Pediatrics, caught the hypocrisy of it all, reporting that the children she saw were surrounded by “toys, books and crayons,” but banging the floor and crying out in pain.
Beyond the physical and emotional deprivations, there were the legal ones. The stay of those children was indefinite, the defining characteristic of Gitmo. Before the Trump separation policy started, children, as minors whose parents were awaiting decisions on immigration status, could only be held by the government for 20 days. With “zero tolerance,” their saga suddenly became interminable.
Legally, like their parents, they were also reclassified. These were no longer the children of migrants or asylum seekers in immigration court, for whom there were strict policies and time limits on detention. They were now the children of alleged criminals, having essentially been rendered orphans. At Guantánamo, changing legal categories in a similar fashion — that is, defining the prisoners’ detentions as military, not criminal in nature — accomplished the same trick, avoiding the application of due process and rights for the detainees.
Which brings up yet another fundamental parallel between Gitmo’s prisoners and the children’s Gitmo at the border. Those being held were described in both places using the same crucial term: detainee. Guantánamo branded this word forever as beyond the bounds of normal legality because the Bush administration officials who set up that system wanted to ensure that the normal legal protections of both national and international law would not be extended to those captured and held there. Guantánamo, the government insisted, was not a prison. It was merely a “detention center.” So many years later, it still is, while those incarcerated there have often served “sentences” of a decade and more, even though only a handful of them were ever actually sentenced by a court of any sort. In 2018, that same label was taken from those accused of being battlefield enemies and slapped on the children of asylum seekers.
As with Guantánamo, lawyers who wanted to represent the parents, whose fates were to determine those of their separated children, found themselves impeded in their access to the detained adults. No one familiar with Gitmo could have missed the parallel. Lawyers seeking to provide assistance to war-on-terror detainees were kept out of Guantánamo for more than two years after it opened.
The Southern Poverty Law Center recently filed suit claiming that, at two detention centers, authorities had limited the access of those undocumented immigrants to lawyers, violating due process. To make matters worse, Attorney General Jeff Sessions’s Department of Justice recently decided not to renew two programs that offered legal aid lawyers to undocumented immigrants facing deportation. Meanwhile, that department has instituted a new policy in which pro-bono lawyers (those from NGO groups seeking to represent the detainees) now have to go through a certification process before taking them on at their own expense.
The media has been similarly restricted. Photographs of the detention “camps” for those children were left to the government alone to provide. So, too, when Guantánamo opened, visiting journalists were ordered to leave their cameras behind. These restrictions stayed in place as official policy, intensified by none other than John Kelly. (Ironically, the Pentagon itself sent out the iconic early 2002 images of kneeling, shackled, orange-jump-suited detainees.)
For 16 years now, opponents of the U.S. detention center on the island of Cuba have understandably warned that its remarkable disregard for the rule of law would inevitably creep into America’s institutions. For the most part, their worries centered on the federal court system and the possibility that defendants there might someday lose basic rights. Now, we know that Guantánamo found a future in those detention camps on our southern border. Don’t think it will be the last place that the influence of that infamous prison will pop up.
While this moment of crisis may have passed, consider this piece, at best, a requiem for a tragedy that has barely ended (if it has) — and also a warning. The legacy of Guantánamo continues to haunt our laws, our imaginations, and our way of life. It’s time to do what we have failed to do for so long now: push back hard on the truly un-American policies spawned by that prison and apparent in so much else of Donald Trump’s America. We need to do so now, before the way of life we once knew is largely erased. It’s time to insist on the right to bring up our children in an America of compassion, law, and respect for the rights of all, not in one whose leaders are intent on robbing them — and so many other children — of their future.
Karen J. Greenberg, a TomDispatch regular, is the director of the Center on National Security at Fordham Law (CNS) and the author of Rogue Justice: The Making of the Security State. She also wrote The Least Worst Place: Guantánamo’s First 100 Days. The summer interns at CNS contributed research for this article.