Top CBP Officer Testifies He's Unsure if 3-Year-Old Is "a Criminal or a National Security Threat"

By Jeremy Stahl, Slate

28 July 19

It was one of a number of disturbing revelations.

ne of the country’s top border officers cannot say whether a 3-year-old child might pose a “criminal or national security threat.” This was one of a number of astonishing takeaways from Thursday’s latest hearing into family separation.

The 3-year-old in question was Sofi, a little girl who was separated from her grandmother after they arrived at a port of entry in El Paso, Texas, last June seeking asylum. She was separated from her family for 47 days, until the Trump administration was forced to reunite them by court order. Chief of Law Enforcement Operations for Customs and Border Protection Brian S. Hastings still isn’t sure if she posed a threat, he told Rep. Ted Lieu during the Judiciary Committee hearing on Thursday.

Ted Lieu: Sofi is not a criminal or a national security threat to the United States as a 3-year-old, correct?

Hastings: I don’t know the background in this case, sir.

Ted Lieu: Do you know any 3-year-olds that are criminal or national security threats to the United States?

Hastings: No, I don’t.

Ted Lieu: Sophie’s grandmother was not a national security or criminal threat to the United States, correct?

Hastings: I don’t know—again, I don’t know the background of what her grandmother or relatives were.

The Judiciary Committee hearing into family separation came one day after Robert Mueller testified before the committee on presidential obstruction of justice, and it was greeted with a tiny fraction of the attention the former special counsel received. While Mueller’s testimony was ultimately banal political theater that revealed no new facts, though, the family separation hearing was full of revelations and is likely to have real-world consequences.

Hastings repeatedly contradicted his boss, Acting Homeland Security Secretary Kevin McAleenan, including on a key issue pending before the same court that brought family separation to an end. Hastings’ disastrous testimony could now be used in that court to end some of the administration’s ongoing separations that might be in violation of that court’s order.

In short, the hearing was a dramatic demonstration of what Democrats might be able to accomplish if they actually forced Trump officials to answer for the incompetence and cruelty that have resulted from the administration’s treatment of asylum-seekers and migrants.

It’s worth reviewing some of the highlights of the day’s testimony to truly grasp how effective the hearing was.

Permanent Separation

During a lightning round of opening questions from Judiciary Committee Chairman Jerry Nadler, the CBP official confessed what many had long suspected but that the administration has repeatedly denied against all evidence: The Trump administration intended for family separation to be permanent.

First, Nadler cited new evidence offered by members of the Trump administration itself that many cases of family separation conducted by Hastings and his officers had been done in as inhumane a manner as possible. As CNN reported, “Hundreds of red flags were raised internally within the Trump administration” about family separation between October 2017 and June 2018. Nadler noted during the hearing that 850 such complaints filed to the Department of Homeland Security’s Office for Civil Rights and Civil Liberties had been turned over to the committee. CNN, which reviewed the confidential documents, reported that children were “allegedly blindsided when they were separated from their parents” in deceptive ways:

One referral received by the Department of Homeland Security’s Office for Civil Rights and Civil Liberties describes a 14-year-old who said he was separated from his father in May 2018 “after a meal break while in custody, and was told by officers that his father would be deported.”

In another, an 11-year-old stated that he “was called aside by an officer and then he did not see his father again.” A 10-year-old with “poor communication skills” was allegedly separated from his mother in June 2018.

These documents “are marked law enforcement sensitive” and will not be turned over to the public, according to a committee spokesman. Nonetheless, Nadler asked Hastings specifically about some of these incidents.

Hastings could not explain in even the simplest terms how his officers had gone about removing children from their parents; he further admitted there was no “minimum time” for warning parents they were about to be separated from their children perhaps forever. The denouement came when Hastings confessed what the administration had long denied: that there was no intent ever to reunite the families when the policy was first implemented.

Nadler: After it was determined that the adult was being deported, was the child supposed to be returned to the parent before the deportation, or the parent is suddenly in some foreign country and the child is here?

Hastings: It’s probably a better question for HHS.

Nadler: Who did the deportation?

Hastings: We would do the deportation.

Nadler: You would do the deportation while the child was in a different city in the United States.

Hastings: We don’t do the reunifications is my point, sir.

Nadler: So you would do the deportation before the reunification without any knowledge of whether the parents are being reunified?

Hastings: Yes.

Nadler: So, in other words, you’re kidnapping the child.

Hastings: We’re not kidnapping the child. We follow the guidelines that are out.

Nadler: Deporting a parent without their child is literal kidnapping.

This is the exact opposite of what the administration had previously said. “[Zero tolerance] did have the impact of … 2,000-plus families being separated during that prosecution [period],” McAleenan told NBC’s Lester Holt in April. “They were always intended to be reunited.”

If this was the intent of the policy as claimed by McAleenan—who was one of the primary architects of family separation—but it was carried out in the exact opposite manner, as Hastings testified, why have both men since been promoted?

Ongoing Illegal Separations

Hastings contradicted his boss one more time on the key point of ongoing family separations. He testified that—per the court order—separations were continuing according to internal guidance that they only occur if a parent is a danger to a child, has committed a violent misdemeanor or felony, or has a communicable disease. After hearing these guidelines, Rep. Jamie Raskin asked if families were being separated because a parent is HIV-positive, as was reported earlier this month in Quartz.

Hastings answered without hesitation:

Raskin: If a mother or father has HIV-positive status, is that alone enough to justify separation from a child?

Hastings: It is. It’s a communicable disease under the guidance.

This is the exact opposite of what McAleenan said during his testimony before the House Oversight Committee last week in response to the same question from Raskin.

Raskin: We’ve seen evidence to suggest that three sisters were taken away from their father in November of 2018 allegedly because he was HIV-positive. Is that a proper basis upon which to remove children from their parents?

…

McAleenan: The simple fact of being HIV-positive does not sound like it would meet the standard. There could be other complications medically that would have required a temporary separation.

(The Department of Homeland Security did not respond to Slate’s request for comment.)

In this case, it appears that McAleenan is correct about how things should be done, but not about how Hastings is actually doing them. As Quartz noted, U.S. Citizenship and Immigration Services removed HIV from the list of communicable diseases that bar entry in 2010.

The ACLU’s Lee Gelernt, who has litigated the ongoing Ms. L v. ICE case that brought an end to the family separation policy, told Slate that he would be filing a motion in that case asking the government to halt any separations because a parent has HIV. “We will be raising the HIV issue in a motion next week in the family separation Ms. L case because we have learned that the government was unlawfully separating based on HIV,” Gelernt wrote. “At the hearing, the government doubled down on that unlawful position.” During a July 19 hearing in the Ms. L case, Gelernt brought to the attention of the court instances of potentially unlawful family separations. “There are now hundreds and hundreds of separations since the injunction,” Gelernt told the court. “We have asked the government to clarify the standard they’re using and given them specific examples.” DOJ attorney Scott G. Stewart accused Gelernt of highlighting separations that Stewart implied were abnormal. “For him to kind of cherry-pick something that gives him a good headline is inappropriate,” Stewart told Judge Dana Sabraw at the time. Now, using Hastings’ testimony, Gelernt can seek to show the court that these ongoing unlawful separation cases are not abnormal and request a court order putting a halt to them.

Such an outcome would be more tangible than anything that came out of the Mueller hearing the day before.

Ultimately, with family separation—as we also saw with the Mueller hearing and report—all of the administration’s lawbreaking and lies about its lawbreaking may seem too dense for the general public to grok.

But as demonstrated on Thursday, it’s really quite simple: The Trump administration, in the words of the chairman of the House Judiciary Committee, was doing “literal kidnapping.” Many of the people who did the “literal kidnapping” are still there and would do it all over again if so ordered. The acting Homeland Security secretary is lying about all of this in plain sight. Indeed, top administration officials lying under oath has become so common that it’s barely even news. And Democratic leadership is terrified of initiating the one mechanism for at least attempting to hold the president and his shock troops accountable.

If Democrats can hold more hearings like Thursday’s, maybe we’ll at least begin to learn the extent of the rot.

Update, July 26, 2019, 5:01 p.m.: On Friday, Hastings issued a statement changing his previous testimony that HIV is considered a communicable disease under the guidance.

New: CBP chief clarifies testimony, says CBP "would not separate families due to the communicable nature of HIV."

"Separations of this type are due to the potential requirement for hospitalization and whether it is in the best interest of the child..." pic.twitter.com/jIQneB8VM8

— Chris Johnson (@chrisjohnson82) July 26, 2019