Steve Russell :
In the aftermath of ‘The Photo’

Is the United States becoming a rogue nation?

Rio Grande river. Creative Commons photo by Ryan Moehring /
USFWS / Flickr.

By Steve Russell | The Rag Blog | June 27, 2019

Unless you live under a rock, you saw the photo— the same one I saw, the one that set my stomach churning even worse than those of the filthy conditions in our kiddie jails, yours and mine. We also own that picture: Óscar Alberto Martínez Ramírez and his almost two year old daughter, Valeria, face down where their bodies washed up. In death, the baby’s arm was still around her father.

I would show you the photo if the copyright laws allowed it. It’s all over Fake News: CNN, The Washington Post, The New York Times. You can bet it’s all over Europe as well, and the countries that mean us ill will keep it around to illustrate our president’s crazed tweets on immigration. Remember the “caravans” that required a military response the day before the election and evaporated as the votes were being counted?

Those who accept the task of apologizing for the photo will claim the fault lies with the dead man who fled El Salvador with his family and chose to die in the river between Matamoros, Tamaulipas, and Brownsville, Texas. He died trying to break U.S. law.

There are so many things wrong with that rationalization of palpable evil it’s hard to know where to begin, but I’ve lived in the borderlands most of my adult life and I have crossed between Brownsville and Matamoros many times and my gut level reaction to the false claims about the dead man is let them be true and I don’t care.

Valeria came within a month of seeing two candles on her birthday cake.

Valeria came within a month of seeing two candles on her birthday cake if they had birthday cakes in our kiddie jails…but if they don’t have soap or toothbrushes, cake is out of the question. The Trump administration no doubt employs lots of people willing to tell Central American refugees to eat that non-existent cake.

The fundamental lie in the rationalization of the photo is that the family was not on the wrong side of U.S. law; Mr. Trump’s border guards were. The deceased refugee presented his family at the border crossing to turn himself over to the authorities and press a claim for political asylum. That claim is proper under U.S. law and that is the proper way to present it. The family was turned away.

Suppose the claim that the deceased refugee violated U.S. law were correct. Unlawful entry is a misdemeanor; the death penalty is not on the table. It should be a crime to turn away a lawful claim for asylum, because it leaves people who have walked or begged rides almost 2,000 miles within sight of their goal needing to take one more risk that is less than the one they just finished taking. Some will die in the desert and some will die in the river, but how many died crossing Central America and Mexico?

The objection to following the law is that most asylum claims will be denied.

The objection to following the law is that most of the asylum claims will, upon hearing, be denied. The last complete figures I have are for 2016 when, indeed, the denial rate was 56.6 percent and that is “most.” But it’s worse than that. The denial rate for the home country of the deceased, El Salvador, was 82.9 percent.

The denial rate has been rising as the Justice Department has changed the rules. For example, we will no longer provide asylum for women fleeing a credible threat from a former intimate partner. It is also worth mentioning that introducing a lawyer for the person claiming asylum causes the percentages to turn upside down. Most petitions are granted when tried by a professional, but there is no right to counsel.

The process of granting bail to asylum-seekers is mocked as “catch and release.” In the words of Donald J. Trump himself: “When we release the people, they never come back to the judge, anyway  —  they’re gone.” Punditfact found 60–75 percent of all persons scheduled in immigration courts who are out on bail appear, with rates slightly higher for asylum-seekers. There was an Obama policy that assigned case managers to asylum-seekers out on bail, but Trump sent it the way he has sent all Obama policies. Those with case managers had a no-show rate of two percent.

This entire argument about who comes to court is avoidable but Mr. Trump dismissed the means to avoid it out of hand: more immigration judges to cut the backlog and therefore the delay in hearing asylum claims.

A judge does not need to know the law.

As a retired judge, I claim a personal privilege digression here. A judge does not need to know the law. I know that sounds shocking, but we used to have libraries full of law books and now we have them on line. The judicial skill set is about rules of procedure and evidence, not substantive law. I have successfully tried many cases in areas of law I knew nothing about. What this has to do with the crisis at the border is that the federal government employs lots of administrative law judges and any of them could be thrown into the breach to staff immigration courts until more immigration specialists can be hired.

The judicial skill set cannot be found among a random sample of people, but rather among a random sample of judges. It is rational to move judges from agencies not experiencing emergencies. Here is Mr. Trump’s comment on immigration judges:

They want us to choose 5,000 judges. How do you choose 5,000 judges? Can you imagine the corruption, just from a normal standpoint? Just common sense. Can you imagine the corruption? Go to the barber shop, grab somebody. Make them a judge. Everybody’s being made a judge. They want 5,000 judges more. It’s crazy. Other countries it’s called, ‘I’m sorry, you can’t come in, you have to leave.’ This one, we have judges. If they step on our land we have judges. It’s insane. So we’re going to have to change our whole immigration policy.

See how easily I get derailed answering the nonsense used to justify a family in the water or on the desert. Honestly, more migrants die in the desert but we don’t get photographs.

Reporters claimed the stench in the detention facility made it hard to enter.

The photo kicked off the front burner the appalling conditions in the kiddie jails the family separation policy has created on the border. Reporters claimed the stench in the detention facility made it hard to enter, while government lawyers were in court explaining to a skeptical panel of the Ninth Circuit Court of Appeals why the children did not need toothbrushes or soap or clean clothes. There were no diapers for young children who were being cared for by older children to whom they were not related.

Congressman Michael Burgess (R-TX), asked by reporter Chris Hayes for comment on the squalid conditions, harrumphed, “You know what? There’s not a lock on the door, any child is free to leave at any time. But they don’t and you know why? Because they are well taken care of.”

Once more, it’s hard to know where to start. There is a lock on the door. The youngest child is five months old. If they did escape custody, where are they going to go?

it’s time to focus international shame on what is fast becoming a rogue nation.

When the Justice Department is in court arguing against a court order to provide the necessities of basic hygiene, when a congressman from the party in power defends human rights abuses with arrant nonsense, and when the president of the United States is in no hurry to get immigration cases tried because that might make a politically advantageous emergency go away, it’s time to focus international shame on what is fast becoming a rogue nation.

The Inter-American Commission on Human Rights is conveniently headquartered in Washington, D.C., but the filing of a complaint requires exhaustion of remedies at the nation-state level. Many lawsuits are still pending. There is a Rapporteurship on the Rights of the Child that engages in data gathering, so that body and the International Red Cross would be logical places to start.

The Trump administration has an announced policy of denying visas to persons investigating cases before the International Criminal Court, so it’s not hard to picture defiance of other international bodies. At some point, a nation operating so far outside recognized human rights norms ought to be embarrassed over the attention.

But if the photo does not fill everybody involved with shame and embarrassment, it’s hard to imagine what it would take.


This article was published on Medium and was cross-posted to The Rag Blog by the author.


[Steve Russell comes to The Rag Blog after writing for The Rag from 1969 to the mid-seventies. He is retired from a first career as a trial court judge in Texas and a second career as a university professor that began at The University of Texas-San Antonio. He is now associate professor emeritus of criminal justice at Indiana University-Bloomington. Russell is a citizen of the Cherokee Nation and a ninth grade dropout. He is living in Sun City, just north of Austin, and working on a third career as a freelance writer. His current project is a book of autobiographical essays explaining how an Indian ninth grade dropout was able to become a judge and a professor without picking up a high school diploma or a GED. He can be reached at swrussel@indiana.edu. ]

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2 Responses to Steve Russell :
In the aftermath of ‘The Photo’

  1. larry says:

    Good to read Steve always, now more than even before.

    FYI Hasnt the U.S. been a rogue nation for a long long time?

  2. Leslie C. says:

    Answer to the question in the title is “yes.” Or, as larry says above, it has been for a while now.

    Did you see where the union representing asylum officers says the officers are being made to violate both US and international law? They are joining the ACLU in taking the Trump administration to court.

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