The U.S. Justice Department argued in federal court this week that government agencies like Customs and Border Protection have no responsibility to provide toothbrushes, toothpaste, and soap to migrant kids who are currently held in America’s vast network of concentration camps. Human rights organizations have previously reported that migrants don’t have access to these and other basic toiletries while in U.S. detention, increasing the individual health risks and the potential for outbreaks.
The U.S. government also argued on Tuesday that making immigrants sleep on a cold concrete floor with a Mylar blanket doesn’t violate the Flores Settlement, a 1997 federal court judgment that dictates what constitutes humane treatment while in custody. The Flores Settlement says that any living facilities for migrants must be “safe and sanitary,” a definition that the Justice Department under President Donald Trump is trying to twist because, as we say in the Trump era, the cruelty is the point.
The government’s appalling argument was made to a Ninth Circuit Court panel of three judges who were not shy about expressing shock at what they were hearing.
“You’re really going to stand up and tell us that being able to sleep isn’t a question of safe and sanitary conditions?” U.S. Circuit Judge Marsha Berzon asked DOJ lawyer Sarah Fabian.
The entire hour-long courtroom scene, first reported by Courthouse News, is available on YouTube for all to see. But it’s had just over 3,000 views since being posted on Tuesday and the entire story has had very little coverage in the mainstream media.
The DOJ lawyer argued that the Flores Settlement doesn’t say anything explicitly about sleeping, and therefore the government doesn’t need to provide anything like a cot or a bed. But the judges weren’t having it.
“Or it was relatively obvious,” said U.S. Circuit Judge William Fletcher. “And at least obvious enough so that if you’re putting people into a crowded room to sleep on a concrete floor with an aluminum-foil blanket on top of them that it doesn’t comply with the agreement.”
Migrants in America’s camps are regularly subjected to inhumane treatment, including being forced to sometimes sleep on dirt outside in large cages for days at a time. Migrants sleeping inside endure brutal conditions maintained to keep the environment inhospitable.
As Judge Fletcher noted in just a few examples on Tuesday, the lights are left on all night long, the facilities are overcrowded to the point of absurdity, and the buildings are kept extremely cold. In fact, Fletcher said, the facilities are made even colder when migrants complain, according to witness testimony.
As the DOJ lawyer stammered through her responses, U.S. Circuit Judge A. Wallace Tashima asked her point blank whether she thinks that basic toiletries qualify as something that should be provided in a safe and sanitary environment.
“It’s within everyone’s common understanding, that if you don’t have a toothbrush, if you don’t have soap, if you don’t have a blanket, it’s not safe and sanitary,” Tashima said. “Wouldn’t everybody agree with that? Do you agree with that?”
“Well, I think it’s.... I think those are... there’s fair reason to find that those things... may be part of safe and sanitary...” Fabian said.
“Not maybe! Are... a part. What do you mean maybe? You mean there are circumstances when a person doesn’t need to have a toothbrush, toothpaste and soap? For days?” asked Tashima, clearly annoyed.
Judge Tashima then got to the heart of what the government wants to achieve by arguing that they don’t need to provide basic necessities to the people they’re imprisoning. The Department of Justice would like to get Flores thrown out completely by arguing that the definition of things like “safe and sanitary” aren’t well defined.
“What you’re saying is that the agreement is so vague that it’s almost unenforceable,” Judge Tashima said.
“To some extent, yes, your honor,” Fabian responded.
You can watch a shorter clip of the exchange that we’ve uploaded below.
Meanwhile, U.S. political commentators are arguing over the use of the term concentration camps to describe what the Trump regime is doing at the U.S.-Mexico border. Chuck Todd, a frequent “both sides” political apologist on Meet the Press, clutched his pearls when Congresswoman Alexandria Ocasio-Cortez called them concentration camps in an Instagram story.
“You can call our government’s detention of migrants many things, depending on how you see it. It’s a stain on our nation, maybe. A necessary evil to others. A deal with an untenable situation, perhaps. But you know what you can’t call it?” Todd said on Wednesday before playing a clip of Ocasio-Cortez calling them for what they are.
Historians and experts on concentration camps agree with Ocasio-Cortez and they tell us it’s only going to get worse from here. Andrea Pitzer, the woman who literally wrote the book on concentration camps, acknowledges that’s what they are. They don’t have to be literally Nazi concentration camps for them to be horrible. This isn’t Auschwitz, and it’s not Dachau. But they’re still concentration camps on U.S. soil. And kids are dying. At least seven migrant kids have died in U.S. custody since last year. Seven that we know about.
All I can say, at this point, is that I don’t believe people of the future will be kind to any of us for letting this happen in our name.