Trump official admits family separation policy ‘should never have been implemented’

For the first time, a senior Trump administration official who helped implement family separation has condemned the hardline immigration policy, which made it possible for the government to take more than 3,000 children, including infants, from their parents at the US-Mexico border in 2018.

In response to a damning report published on Thursday by the US justice department’s internal watchdog on the “zero-tolerance” policy, which made family separation possible, the former deputy attorney general Rod Rosenstein said the policy “should have never been proposed or implemented”.

The justice department’s Office of Inspector General’s (OIG) long-awaited report said department leadership knew the policy would result in children being separated from their families and that the former US attorney general Jeff Sessions “demonstrated a deficient understanding of the legal requirements related to the care and custody of separated children”.

“We concluded that the Department’s single-minded focus on increasing immigration prosecutions came at the expense of careful and appropriate consideration of the impact of family unit prosecutions and child separations,” the report said.

The OIG said justice department leadership “did not effectively coordinate” with the relevant agencies before implementing zero-tolerance, despite being aware of the challenges created by increasing prosecutions of adult asylum seekers under the policy.

In a conference call in May 2018, Sessions told prosecutors: “We need to take away children,” according to notes taken by people on the call and provided to the OIG.

Rosenstein, who publicly denounced the policy for the first time on Thursday, told the OIG he had known the zero-tolerance policy would result in family separations. He also told investigators he had not been involved with the formulation of the policy and had received reassurances about it that he now believed were wrong.

Revealed: Rod Rosenstein advised there was no age limit on child separations

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In July 2020, the Guardian reported that Rosenstein had made comments in a conference call with US attorneys charged with implementing the policy that in effect meant that no child was too young to be separated from their parents.

The call came after US attorneys on the south-west border had repeatedly raised concerns about how zero-tolerance was supposed to be operated. A month after the policy had been in place, to help attorneys, a list of questions was drafted for DHS and HHS, which included: “How does DHS deal with infants?”

At that point, it was clear no agency had a master list of separated children.

In a statement provide to the Guardian on Thursday, Rosenstein said he and his colleagues at the justice department “faced unprecedented challenges” compared with work he had done as a US attorney under previous presidential administrations.

“Since leaving the Department, I have often asked myself what we should have done differently, and no issue has dominated my thinking more than the zero-tolerance immigration policy,” Rosenstein said. “It was a failed policy that never should have been proposed or implemented. I wish we all had done better.”

Sessions, who resigned in November 2018, announced the zero-tolerance policy in April 2018. Facing intense pressure nationally and abroad, the Trump administration stopped mass family separations in June 2018, though asylum-seeking families continue to be separated today at a smaller scale.

Family separation, which legal experts and doctors said constituted torture, was supported by multiple federal agencies.

The homeland security department (DHS) separated families at the border and detained the parents, the health department eventually took custody of children separated from their parents and the justice department leadership provided the legal framework that made separations possible.

The justice department OIG report confirms earlier watchdog reports from the other agencies’ monitors, which found inadequate tracking systems were in place.

A January 2019 report from the health department OIG found the Trump administration might have separated thousands of migrant children from their parents at the border for up to a year before family separation was a publicly known practice.

The lead attorney on an ongoing family separation lawsuit brought by the American Civil Liberties Union, Lee Gelernt, said: “This new report shows just how far the Trump administration was willing to go to destroy these families. Just when you think the Trump administration can’t sink any lower, it does.

“The Biden-Harris administration will inherit the legacy of family separation, and we don’t doubt that more horrific details will continue to emerge,” Gelernt said. “We need them to act with urgency – every day without action makes it harder to find and reunite families.”

Dick Durbin, a Democratic US senator from Illinois, said he would hold the justice department officials responsible to account as the incoming chair of the US Senate judiciary committee. “Those who planned and executed the zero-tolerance policy will have to live with the knowledge that their cruelty and cowardice are responsible for the scars these children will carry for the rest of their lives,” Durbin said.

Despite being the driving force behind the zero-tolerance policy, Sessions refused to be interviewed by OIG investigators.

The report said Sessions told US attorneys on the south-west border that families would be quickly prosecuted and reunited, even though doing so was, “in most cases, a practical and legal impossibility”.

The former homeland security secretary Kirstjen Nielsen has repeatedly defended her decision to enforce the zero-tolerance policy, which was announced in April 2018.