The Desert of Asylum: From Internment to Disappearance on the US-Mexico Border

By Sophie Smith, NACLA

09 November 18

When state-sanctioned practices of child kidnapping, family internment, and indefinite detention cut off the possibility of seeking asylum at official ports of entry, Central American refugees are increasingly forced to take ever-more dangerous paths into the United States.

While birds and warmer weather

are forever moving north

the cries of those who vanish

might take years to get here.

—Carolyn Forché

ine miles inside the United States, in the vast quiet of the saguaro-studded Sonoran Desert, half a dozen plainclothes Border Patrol agents in bulletproof vests shove a handcuffed 15-year old Salvadoran boy into the back of an unmarked vehicle. The skin of the earth bakes to 117°F. Two miles to the west, a Black Hawk helicopter chases a group of teenagers migrating through rural ranchlands, flying low to kick a brown cloud of dust, cacti, and gravel 20 feet into the air. A Guatemalan child fleeing the fury of the machine runs into the yard of a resident caretaker, screaming for help, vomiting. Six miles to the south, a tactical squad of border cops armed with long guns and night vision goggles tracks a 12-year old Honduran girl with no shoes. Three miles to the north, in the folds of an isolated dry river bed, the remains of a recently deported father turn skeletal and disappear to dust. Thirty-five miles to the southwest, in the snaking tunnel of the Nogales, Sonora/Arizona Port of Entry, dozens of Salvadoran asylum-seeking children camp out for days on the concrete, drinking donated sodas and propping flattened cardboard boxes up against a glass window that reveals travelers with passports moving rhythmically past armed customs agents, through the turnstiles, and out into the light of day.

This collage of recent incidents witnessed by those of us residing in the militarized zone of the southwest borderlands represents just a handful of the daily harms Central American children and their families have endured at the hands of Border Patrol operations in the rural desert over the last six months. This scenario promises to escalate as the Trump administration is moving to deploy up to 15,000 active-duty U.S. troops to the region. Although these scenes of struggle are blatant to those of us living and working in the region, the ongoing fight for survival taking place in this remote U.S. enforcement terrain has remained stubbornly obscure in the mainstream news cycle. Over the last two decades of increased border security operations, mention of the violence of immigration enforcement has been fleeting if not fully absent from the national conversation.

This all seemed to change over the summer when the plight of Central American refugee children being separated from their parents by U.S. Immigration and Customs Enforcement (ICE) burst onto the media landscape. With the popularization of the call to “#abolishICE,” a chorus of voices across the political spectrum rightly decried the practice of isolating children from their parents in lock-up, asserting that such measures only propel refugees back into mortal danger in their countries of origin. Consequently, there is a growing popular consensus that the logic of abducting children as a deterrent to seeking asylum in the United States represents a form of state terror.

This clandestine transnational passage was designed to be deadly decades ago through a logic of deterrence no less brutal than that of the detention system in the interior of the country.Yet, what is missing from this important moment of exposure is the third disastrous consequence of the policy of child separation and family incarceration: if denied official safe haven within U.S. borders, asylum-seekers do not only face possible death when deported back to their home countries. They also face possible disappearance in the remote deserts of the southwest borderlands when families, steadfast in reaching relative safety in the U.S. interior, attempt to circumvent the increasingly treacherous internment system on foot between ports of entry. Today, in the wilderness of the southwest borderlands, multitudes of Central American refugees are joining the untold thousands who have perished while attempting to navigate a dangerous Border Patrol enforcement terrain. This clandestine transnational passage was designed to be deadly decades ago through a logic of deterrence no less brutal than that of the detention system in the interior of the country. Too often, however, the cries of those who have vanished in the desert have yet to be heard.  

Detention as Deterrent

For Central Americans seeking safety within U.S. borders, conditions continue to slide into collective nightmare. In April, The New York Times revealed that U.S. authorities had separated hundreds of children from their asylum-seeking parents. Soon, news outlets revealed that the numbers were much higher: more than 2,500 children had been isolated from their guardians while in immigration detention. Though the state-sanctioned practice of child kidnapping has since been officially suspended, the threat of the return of child abduction still looms as the Trump administration fights for the right to indefinite family detention to court. Meanwhile, hundreds of those children have still not been returned to their parents. Other mothers have been ‘reunited’ with their small children only to be held together in cages separately from husbands and fathers.

The cruel treatment of Central American refugees by the U.S. immigration system is part and product of a cold law enforcement calculationThe cruel treatment of Central American refugees by the U.S. immigration system is part and product of a cold law enforcement calculation : in the words of former US Attorney General Jeff Sessions, punishing asylum-seekers through taking their children away intends to establish “a tough deterrent.” Customs and Border Protection’s growing business of incarcerating individuals and families fleeing for their lives also adheres to a deterrence-based rationale: by increasingly holding asylum seekers captive in detention centers, CBP uses the threat and impact of extraordinary punishment to deter others from seeking protected status inside the United States, despite the legal provisions ostensibly guaranteed by domestic and international asylum law.

Many commentators have aptly pointed out that the concept of child separation and family internment relies on a false premise: that those seeking aid have paths to safe haven. Yet those who knowingly enter into U.S. custody and who have endured indefinite detention and even the loss of their children have done so because they face certain violence if they return to their countries of origin. If there is a choice to turn back, it is likely a deadly one. Because of the widespread fear of return among the Central American refugee population, U.S. ports of entry continue to funnel masses of asylum-seekers into the swelling for-profit immigration detention system.

What has gone underreported, however, is the third possible fate for this population, beyond indefinite internment or death by deportation. When state-sanctioned practices of child kidnapping and mass incarceration cut off the possibility of seeking sanctuary at official ports of entry, many of the persecuted may instead be forced into taking another perilous path: attempting to avoid detection by crossing on foot through remote wilderness areas along the southern border, far from aid or rescue.

On the southern Arizona border, a vast web of migration trails carve through the Sonoran Desert, offering a possible route away from the disasters of captivity in the U.S. or summary execution in the Northern Triangle—if one survives the journey. Many have already taken this passage: the percentage of Central Americans among all those apprehended by U.S. Border Patrol in the remote desert have risen from less than 2% in 2000 to more than 50% in 2014. For residents living in the rural borderlands, encounters with minors and families fleeing violence who get caught in a struggle for survival just inside U.S. territory have become increasingly commonplace. In the wake of the recent news of child abduction by immigration authorities ringing out across the hemisphere, many families, women, and children have taken this third way through the tremendous heat of summer. Now, they continue the grueling trek as nighttime temperatures bend toward freezing and seaward superstorms echo flash floods across the desert basin. Increasingly, Central American refugees, many of them asylum-seekers, now follow in the steps of millions of others who have illicitly migrated into the United States over the past two decades by walking immense distances through a land of extremes.

This third path is often no less nightmarish than isolation in a U.S. detention center. Since the turn of the millennium, official records show that the rugged terrain of the southern borderlands has claimed the lives of more than 8,000 people. The journey has disappeared the remains of thousands more, who perish deep in the U.S. wilderness without ever being found. In this expansive theater of migration, an empty water bottle, a sprained ankle, a blister, a dead cell phone battery, or a disorienting chase by Border Patrol agents through the backcountry now act as forces of human destruction. The southwest desert is effectively transforming into what Jason DeLeón describes as “a land of open graves,” where the remains of those seeking refuge on U.S. soil are often never recovered from the oblivion of the desert. As more and more souls simply vanish, the true scale of this expanding tragedy is unknown.

The Desert as Deterrent

The grisly reality of border crossing is no accident. It is the result of a long legacy of deterrence-based policing that has structured border control for decades.The grisly reality of border crossing is no accident. It is the result of a long legacy of deterrence-based policing that has structured border control for decades. In the early 1990s, U.S. border enforcement agencies sought to convert the southwest wilderness into a deadly weapon. Coinciding with the free trade policies of the Clinton administration that unleashed fierce economic exploitation throughout the hemisphere, Department of Defense officials in collaboration with Border Patrol higher-ups invented a policing approach of “prevention through deterrence.” The authors of the 1994 policy paper outlining this strategy theorized that by pushing people without papers into crossing the border through “remote, uninhabited expanses of land,” they will be “forced over more hostile terrain,” where they will predictably “find themselves in mortal danger,” as a consequence of exposure to “the searing heat.” This approach still governs the transnational crossing today and underwrites the separation of small children from their parents.

From Clinton to Bush to Obama, the rapid influx of a growing army of Border Patrol agents, along with the construction and fortification of more than 650 miles of border walls and barriers in and around official ports of entry, reinforced this deterrence-based border policing approach by tactically deflecting unauthorized entrants away from civilization and out into the backcountry. In effect, the penalty for undocumented entry into the United States has since grown well beyond incarceration and deportation to include the possibility of death by exposure to extreme conditions in isolated areas where aid and rescue are often nowhere to be found.

U.S. border control doctrine dictates that the gradual proliferation of death and disappearance will work to prevent other potential unauthorized travelers from attempting the grueling journey. As such, the government approach to policing illicit entry into the interior is organized around another rationale of deterrence no less ruthless than the current experimentations with child abduction. When it comes to the masses of people seeking safety within U.S. borders, the official government response has been based in brute force. In the end, the military approach on the border security has not prevented unofficial migration; it has only succeeded in contorting unofficial entry into the U.S into ever riskier permutations. In both the case of family separation and with the crisis of death in the desert, deterrence practices do not compel general compliance with immigration law, but clearly work to proliferate human crisis and moral catastrophe.

Despite the staggering numbers of deaths and disappearances of people migrating through the rural southwest, the violent truth of the border security regime remains somehow trapped in shadow for most of the U.S. population living at any distance away from the border region. Yet, it is an operational reality of the Department of Homeland Security, its army of US Border Patrol agents, and public land managers, known all too well by rural border residents, tribal members, and humanitarian aid workers alike. For example, the shoe-string humanitarian search-and-rescue outfit Aguilas del Desierto recently discovered more than a dozen corpses while searching the Barry M. Goldwater Bombing Range near the border. The Tucson-based community organization Coalicíon de Derechos Humanos has opened thousands of missing persons cases over the past decade, and the U.S. Border Patrol even keeps its own (drastically diminished) tally of the dead. As the years drag on and the disaster grows to ensnare new refugee populations, the scene of mass death on the border appears to be less and less newsworthy, and more and more a matter of course.

The brutality of abducting asylum-seeking children from their parents and sequestering them in dog cages in former-Walmart buildings where they may not hug or touch one another is a sharp demonstration of the political order of the day. We must recognize that these measures work hand-in-hand with the design of deterrence in the desert, ushering in the most extreme of punishments for this population—slow death by dehydration in the remote desert as families attempt to circumvent the brutal internment system. The fate of those currently en route in search of safety—those who have heard of the horrors of children ripped from parents, who will attempt to avoid this fate by risking a journey through the desert—now hangs in the balance.

The suspension of the policy of child separation quickly followed the unprecedented frenzy in news coverage of the human crisis on the southern border this summer. The plight of asylum-seekers is now resurging into public view: an exodus of thousands of asylum-seeking Central Americans fleeing the legacy of violent U.S. destabilization of the region is presently on a collision course with the unprecedented deployment of up to 15,000 active-duty U.S. military troops being sent to the southwest U.S. border.

While this existential scenario promises to play out in and around official ports of entry, we must not turn away from the harrowing struggle for survival that the same population is already joining in the remote desert. If visibility is the condition of transformation under an administration whose politics live and die with the spasms of the PR machine, then this recent moment of outrage is a critical opportunity to shine a light not only on the incarceration of the already persecuted, but also on the growing sea of human casualty that has gone unseen for far too long in the U.S. borderlands.

The Mueller Probe Could Be in Mortal Danger

By Harry Litman, The Washington Post

09 November 18

ow serious is the forced resignation of Jeff Sessions and the installation of his chief of staff, Matthew G. Whitaker, as acting attorney general? And what does it portend for the Mueller probe and related investigations?

The first question is easy: It is as serious as a heart attack. Whitaker’s appointment, which President Trump effectuated before all of the midterm election results were even final, immediately divested Deputy Attorney General Rod J. Rosenstein of his oversight authority of special counsel Robert S. Mueller III’s investigation.

Rosenstein had bent occasionally in response to the gale-strength pressures on him from the White House, but had never broken, performing a tremendous service to the department and the country in safeguarding the integrity of Mueller’s work.

Whitaker, it is clear, is a far less trustworthy guardian. Indeed, he already expressed opposition to the Mueller probe in an 2017 op-ed for CNN, in which he wrote: “Mueller has come up to a red line in the Russia 2016 election-meddling investigation that he is dangerously close to crossing.”

And The Post previously reported that in an 2017 CNN interview, Whitaker speculated about a scenario in which a new attorney general doesn’t fire Mueller but instead “reduces his budget to so low that his investigation grinds to almost a halt.” That scenario is now a real — and chilling — prospect.

Moreover, Whitaker is a fundamentally political actor. He co-chaired Rick Perry’s 2012 presidential campaign and ran unsuccessfully as a Republican for the Senate in 2014 as well as state treasurer in Iowa in 2002. That’s a significant and foreboding fact in this setting. It’s not hard to envision that in some general way, he will have Trump’s back, even though it would be a stark dereliction of duty.

Other potential Sessions replacements, such as former associate attorney general Rachel Brand or Solicitor General Noel Francisco, belong to a professional class of D.C. lawyers with high institutional regard for the Justice Department and a reluctance to throw bombs. But Whitaker’s radical credentials could be a political boon for the president.

And on the topic of radical bomb-throwers, Whitaker has characterized Marbury v. Madison, the Promethean foundation of judicial review in the United States and probably the most important judicial decision ever rendered, as one of the worst decisions in the Supreme Court’s history. His critique was that “the courts are supposed to be the inferior branch of our three branches of government” whereas Marbury established the court as the final arbiter of constitutional issues. He similarly trashed “all New Deal cases that were expansive of the federal government.” These views are a stunning and deeply inappropriate set of opinions for the nation’s chief law enforcement officer.

So what havoc could Whitaker wreak on the Mueller probe and related cases that Mueller already has parceled out to other prosecutors, such as the Michael Cohen probe?

It’s a safe bet that he will not seek to fire Mueller or bring the investigation to an immediate close. A former U.S. attorney, Whitaker understands that Mueller is the gold standard and that smothering the investigation would be a political nonstarter. Moreover, unless he tries to replace the governing regulations, he can remove Mueller only for good cause, an impossible standard to satisfy in Mueller’s case.

But that leaves a long list of possible mischief that could cripple the probe. First, Whitaker has now assumed immediate control over Mueller’s budget and personnel matters. Second, he has authority to disapprove of requests to change or expand the probe’s jurisdiction.

Third, the regulations state that Mueller is not subject to the day-to-day supervision of the attorney general or anyone else in the Justice Department, but they permit the attorney general to request that Mueller provide an explanation for any investigate step. The attorney general can then halt such a step if he concludes that it is inappropriate or unwarranted under departmental practices. Properly read, that’s a narrow standard; but as a practical matter it will be Whitaker’s call how to read it.

Finally, Whitaker now assumes great power over any report Mueller produces, and it has been widely assumed that Mueller’s obstruction report would be ready not long after the midterms. He can decide whether the report’s release — which Team Trump has already indicated it would fight — would be “in the public interest.” Whitaker probably couldn’t bottle up or bury the report indefinitely, but he might be able to suppress it long enough to blunt serious political fallout for the president.

And of course, as acting attorney general, Whitaker now becomes the ultimate boss over the prosecutors in the Southern District of New York and the Justice Department’s National Security Division, where cases loosely related to the Mueller probe have been brought. Those assignments were a prudent divestiture to insulate the cases from any direct attack on Mueller himself, but Whitaker has even more direct authority over them than over Mueller himself.

In short, Trump has made his post-midterm move to bring the Mueller investigation under control, and it’s a broad one. The threat to Mueller’s ability to complete a comprehensive investigation is material and might yet be mortal.