The Torture of Forcibly Separating Children from their Parents

As discussed in my prior post, President Donald Trump’s family separation policy has come under legal assault from a number of civil society organizations, 17 U.S. states, and the District of Columbia. Some of these lawsuits challenging family separations date back to earlier administrations, (e.g., Flores, see our backgrounder), but new lawsuits have proliferated since Trump’s promulgation of the “zero tolerance” policy, which intends to ramp up criminal prosecution of those crossing the border without prior authorization. At the same time, the Trump administration is considering a return to the practice of separating children from their parents, but this time under the guise of giving parents an excruciating Sophie’s choice: Keep your children in detention with you for months, or even years, or hand them over to U.S. authorities.

Although many of the cases in U.S. courts have focused on constitutional and other domestic legal protections, international human rights law also speaks to the family separation policy. In terms of international fora for pressing these claims, the Texas Civil Rights Project and others have activated the Inter-American Commission of Human Rights, which monitors states’ compliance with the American Declaration of the Rights and Duties of Man and other relevant treaties. The Commission has jurisdiction over the United States by virtue of our membership in the Organization of American States. Over the years, the Commission has scrutinized the United States’ use of the death penalty, immigration and racial justice policies, protections against gender-based violence, and Guantánamo Bay detention practices. Our readers may recall that in March 2017, the Commission was scheduled to consider the Trump administration’s travel ban, but—in an unprecedented move—no U.S. government official attended the session. The hearing went forward nonetheless. In the new petition involving family separations, lawyers for the victims have argued that the family separation policy runs afoul of the United States’ human rights obligations (including the right to a family, to seek asylum and protection, to due process, etc.). In August, the Commission adopted so-called “precautionary measures” on behalf of children who had been separated from their parents at the border.

As is beginning to be argued by human rights organizations, journalists, the United Nations, academic psychologists, and doctors, the family separation policy as implemented implicates the international prohibitions against torture; cruel, inhuman or degrading treatment or punishment; and even forced disappearances. In the following analysis, I compare the impact of the family separation policy against the international and domestic definitions of torture and other forms of mistreatment prohibited by international law. I rely upon the medical literature on Adverse Childhood Experiences compiled by the Stanford Human Rights in Trauma Mental Health Program (with which I am affiliated) to demonstrate that the neurological, physiological, and psychological impact of acute childhood traumas like forcible family separation and indefinite detention rises to the level of severe pain or suffering—and thus torture—under international law. Most importantly, this policy has the potential to cause long-lasting psychological harm to all the parties involved. This is especially true for children, who can experience enduring damage if subjected to toxic stress at crucial developmental stages. The threshold at which treatment or punishment may constitute torture is thus lower when it comes to children, especially when they are deprived of their liberty, because children are still developing physically and emotionally. All told, the family separation policy amounts to government-sanctioned torture.

The Prohibition Against Torture and CIDT

The Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment defines torture at Article 1 as:

any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.

The Torture Convention in Article 16 also prohibits cruel, inhuman or degrading treatment or punishment (CIDT) in equal measure. CIDT encompasses abusive acts that do not constitute torture, for example because the gravity threshold of “severe” pain or suffering is not met (due to the conduct’s duration or the characteristics of the victim), because the specific intent elements of torture are not satisfied (e.g., the harm was not committed for one of the listed purposes), or because the victim is not within the perpetrator’s custody or control (e.g., situations of police brutality). The ill treatment of individuals who are powerless, for example in situations of detention, is more likely to amount to torture. Human rights law also considers the personal characteristics of the victim, such as age, health status, and other vulnerabilities.

Article 3 of the Convention prohibits any state party from expelling, returning, or extraditing anyone to another country where “there are substantial grounds for believing that he would be in danger of being subjected to torture.” The International Covenant on Civil & Political Rights, which the United States ratified in 1992, prohibits these two categories of abuse in the same breath:

No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.

The United States ratified the Convention Against Torture in 1994 subject to certain declarations, reservations, and understandings. Of relevance to the family separation policy, the Senate issued an understanding that “mental torture” refers to “prolonged mental harm caused or resulting from”: (1) the intentional infliction or threatened infliction of severe physical pain and suffering; (2) the administration of mind-altering substances or procedures to disrupt the victim’s senses; (3) the threat of imminent death; or (4) threats to others of the foregoing. In addition, the prohibition applies only to persons in the offender’s custody or physical control.

Within U.S. law, these alterations to the terms of the Torture Convention are included in 28 U.S.C. §1350 (the Torture Victim Protection Act, which supports civil suits for torture in U.S. courts), and 18 U.S.C. §2340, the provision of the federal penal code criminalizing torture. The former statute applies only to individuals acting under actual or apparent authority, or color of law, of any foreign nation. The latter statute applies only to torture committed outside the United States and may be invoked against U.S. nationals or other nationals who are “present in” the United States, regardless of the nationality of the victim or perpetrator. The Committee Against Torture, which monitors compliance with the Torture Convention, routinely takes issue with the United States’ incomplete incorporation of the Convention’s prohibition in U.S. law.

As defined by international law, torture thus comprises the following essential elements:

1. The intentional commission of severe pain or suffering, whether physical or mental;
2. That is inflicted for a particular purpose (to obtain information, to punish the victim or another, to intimidate the victim or another, or for any reason based upon discrimination); and
3. That is inflicted with the consent or acquiescence of a state actor.

The family separation policy as implemented satisfies each of these elements, even when the idiosyncrasies of U.S. law are taken into account. In addition, to the extent that instances of detention do not rise to the level of torture, they constitute CIDT, which is also prohibited by U.S. treaty obligations and constitutional principles.

The remainder of this post focuses on the harm to children by forcible separation, but the medical literature also indicates that parents and other caregivers experiencing forced separation suffer intensely since they are faced with a significant threat to their child’s well-being. From the parents’ perspective, their child is at risk of experiencing a whole range of potential harms, including neglect, disappearance, physical violence and injury, sexual violation, or even death. As the next section recounts, these fears are valid in light of the demonstrated harm suffered by children in U.S. immigration detention.

Element #1: Severe Pain or Suffering

The immediate and long-term impacts of the family separation policy easily surpass the gravity threshold of severe physical or mental pain and suffering, particularly when it comes to children.

a. Physical Torture/CIDT

Starting with physical harm, lawsuits challenging the policy, as well as media reporting, have revealed that children are being subjected to physical abuse and horrific conditions while in Customs & Border Protection (CBP) detention facilities.

First, allegations have emerged of children being abused in these detention facilities. This abuse is consistent with earlier accounts of unaccompanied minors being subject to physical and verbal mistreatment in detention by federal agents or contractors charged with their care. (The ACLU’s report from 2009-2014 is here). These include allegations that children were sexually abused by facility employees. There are also allegations that one toddler died after receiving inadequate medical care in an immigration detention facility run by a private contractor.

Second, children are being held in inhumane, unsafe, and unsanitary conditions. Lawyers representing children held in some CBP centers have compiled copious evidence revealing that their clients have been subjected to cruel and inhumane conditions, including inadequate food, enforced dehydration, lack of privacy, sleep deprivation, cold temperatures, and unsanitary conditions. Media have reported that children were kept in cages (which Fox & Friends insisted are not cages but rather holding pens with walls built “out of chain-link fences”). (Harrowing photos are here). In addition, there appear to be little to no educational services to speak of.

Following an evidentiary hearing, Judge Dolly Gee of the U.S. District Court for the Central District of California (which monitors the Flores settlement) ruled that one set of plaintiffs in a suit predating the current crisis had established that their conditions of detention were in violation of the Flores settlement. Proven facts include:

• The government has provided inadequate, frozen, or inedible food. Children reported getting nothing but a cookie for a meal or being fed at 2 a.m., hours after arriving at a facility.
• The government has provided insufficient fresh water or dirty and contaminated water.
• Toilets are placed in open areas and children have no access to a shower for days.
• Children have no access to clean bedding. Instead, they are being forced to sleep on a concrete floor with only aluminum “sheets” (photos here) or in wet clothes.
• Holding centers were described as “ice boxes.” Human Rights Watch has reported that officers actually turned up an air conditioner in response to complaints by children or their parents.
• Over-crowded cells with constant lighting have prevented families and children from lying down or sleeping.
• Individuals are being held in unlicensed facilities, including facilities that had earlier had their licenses revoked.

In response to these allegations, the government tried to argue—ludicrously—that words such as “sleep,” “showers,” “bedding,” “toothbrushes,” or “soap” were not contained in the Flores settlement. Judge Gee ruled, however, that each of these basic supplies would be required, at a minimum, to satisfy the “safe and sanitary” conditions standard set forth in the Flores settlement. (Even more Orwellian, Trump administration officials later testified before Congress that these centers are “more like a summer camp”).

Given frequent violations of the Flores standards, Judge Gee ordered the parties to choose an expert to monitor conditions in CBP detention facilities along the Texas border or she would appoint one herself. At the end of July, she ultimately decided to appoint someone to give her an independent assessment of these conditions. Former U.S. Attorney Andrea Sheridan Ordin has been recently appointed to take on this task.

Incidentally, under Flores, children are entitled to the least restrictive detention conditions, but, in reality, are routinely being housed in more restrictive conditions. A lawsuit has challenged the practice of Office of Refugee Resettlement (ORR) in stepping up children from shelters to medium-secure, secure, or even psychiatric facilities without procedural fairness or transparency. In addition, the statements children are making to social workers or doctors are being used against them. Lawsuits have revealed that such statements at ORR facilities are being used to keep them in detention longer, ramp up the security conditions of their detention, or even subject them to psychiatric treatment. Such statements are not, apparently, subject to the Health Insurance Portability and Accountability Act (HIPAA), which contains privacy protections for health information. Children cannot fully exercise their HIPAA rights without the consent of their parent or guardian.

b. Mental Torture/CIDT

Arguably, as any parent would attest, the mere fact of being forcibly separated from your child, potentially indefinitely and under such coercive circumstances and without knowledge of their wellbeing, constitutes a form of mental torture. This common sense wisdom is supported by the medical literature on forcible family separations and indefinite detention, which confirms the long-term harm to parents and especially children. The medical literature also reveals that forms of psychological torture often cause more long-term harm than torture techniques that involve the imposition of physical pain, as I have written about more extensively here.

1. Psychological Harm Associated with Early Childhood Trauma

As a general matter, experiencing any form of traumatic event during childhood can have lasting effects on a child’s psychological health and neurological functioning. Children who have experienced trauma are at a significantly elevated risk of developing enduring mental health problems, including emotional and behavioral problems as well as post-traumatic stress disorder (PTSD), mood disorders, anxiety disorders, learning disorders, and personality disorders. Emotional and behavioral problems seen in survivors of early childhood trauma include fearfulness, nervousness, restlessness, impulsivity and disobedience. Children also manifest other symptoms of trauma-related disorders including depressed mood, anhedonia or an inability to feel happiness or pleasure, changes in appetite/weight, panic symptoms, excessive worry, difficulty concentrating, insomnia, fatigue, emotional numbing, negative changes in cognitions, intrusive thoughts, nightmares, muscle tension, feelings of guilt or worthlessness, psychomotor agitation or retardation, experiential avoidance, and suicidal thoughts.

Exposure to childhood trauma may also contribute to the development of personality disorders that disrupt the child’s development of his or her sense of self, as well as their ability to regulate emotions and form positive interpersonal relationships. In addition to these psychological harms, trauma experienced during childhood can generate deleterious psychosocial outcomes, such as increased risk of self-harm, substance use, domestic violence, and suicide. Childhood exposure to abuse has been linked to disrupted attachments, poor social skills, difficulties with trust and security in relationships, and poor interpersonal effectiveness. As a result, trauma exposure in childhood is commonly associated with functional impairment including social isolation, impaired security and stability in relationships, and risk for further trauma or victimization.

Experiencing trauma alters the child’s development by prioritizing tasks of survival. This, in turn, interferes with other developmental tasks by diverting cognitive and other resources away from learning and growth. A child exposed to abuse, violence, and threats will utilize his or her survival skills (i.e., fight/flight) more than his or her executive control, emotional regulation, and other functional skills. This reaction is adaptive in an immediate emergency; if left on, however, this fight/flight response becomes maladaptive. A child living in chronic fight/flight mode will continue to allocate their resources to survival, rather than to developing other cognitive skills. In prolonged threat situations, the child may receive input that his or her efforts to make the world a safer place have failed. As a result, the child can develop dissociative responses as the best means of self-preservation. In addition, children often assume that they are responsible for the traumas they experience and for being forsaken by their parents, leading to lasting feelings of guilt, self-blame, shame, and worthlessness.

2. The Special Trauma of Childhood Separation from Parents

Early separation from parents is particularly associated with a range of psychiatric symptoms that can persist even into adulthood. This is confirmed by a longitudinal study of Finnish children separated from their parents during World War II. This research shows that the loss of a parent, and especially a same-sex parent, during early childhood can affect the severity and course of depressive symptoms and personality disorders throughout the child’s lifespan. This holds true even for temporary separations from parents in childhood. Forcible separations are also associated with increased rates of substance abuse.

In addition to these psychological harms, the long-term impact of early childhood separation is attributable to physiological changes in children. Such separations often lead to a significant impairment in the ability of the child’s central nervous system to respond to and recover from stress. The psychiatric and neurological effects of being detached from their parents appear to be the most pronounced in children who are separated after infancy and before the age of five. In other words, children’s brains are physically changed in connection with these sorts of traumas.

And, this harm is not easily remedied. Indeed, increases in depressive symptoms related to childhood parental separation have been demonstrated nearly 60 years post-separation. Further, the biological effect eof traumatic stress exposure is passed down across generations through alterations in gene expression.  This harm thus becomes intergenerational.

In essence, parents serve as a buffer for children from the adverse effects of a toxic stressor—a traumatic experience that engages the prolonged activation of the body’s stress management system. Remove that buffer and children are incapable of managing trauma without long-term damage.

3. Deleterious Effects of Detention on Children

Even separate and apart from childhood separation, immigration detention in and of itself has a substantially detrimental effect on the psychological wellbeing of children. The detention of children prevents their basic needs from being adequately met and bars them from enjoying a sense of stability, an appropriate education, and recreation during a period of their development when these experiences are critical to healthy physical and psychological development. Unsurprisingly, research has consistently found that children in immigration detention experience negative mental health outcomes similar to those occasioned by other forms of severe trauma (including significantly elevated rates of emotional and behavioral problems, anxiety, depression, and PTSD). Additionally, suicidal ideation (recurring thoughts of suicide) is not uncommon among detained children.

4. Compounded Traumas at Times Amounting to Enforced Disappearances

These negative outcomes are compounded in situations in which children experience repeated, or prolonged, traumas such as that occasioned by indefinite immigration detention coupled with forcible family separation. Research has found that the duration of detention (and the possibility of indefinite detention) is positively correlated with deterioration of mental health and overall functioning. Further, not knowing where one’s loved ones are, or if they are ok, compounds uncertainty and distress of being incarcerated, leading to further psychological harm. The fact that the government was unable to locate family members, or ensure that they remained in touch with each other, approaches practices of enforced or involuntary disappearances. The International Convention for the Protection of All Persons from Enforced Disappearance defines this international crime as:

the arrest, detention, abduction or any other form of deprivation of liberty by agents of the State or by persons or groups of persons acting with the authorization, support or acquiescence of the State, followed by a refusal to acknowledge the deprivation of liberty or by concealment of the fate or whereabouts of the disappeared person, which place such a person outside the protection of the law.

All told, the medical research is unequivocal that immigration detention puts children—even when they are accompanied by their parents—at significant risk for negative mental health outcomes and overall poorer socioemotional functioning. These impacts become more acute when accompanied by indefinite family separation.

5. The Administration of Psychotropic Drugs to Detained Children

As mentioned, U.S. law significantly minimizes the types of mental torture that are actionable domestically (for example, because mental harm must be incidental to actual or threatened physical harm). As a result, not all of these circumstances of mental pain or suffering would necessarily satisfy the idiosyncratic definition of “mental torture” under U.S. law (although the international prohibition still applies).

However, it is worth pausing on one particularly troublesome facet of the policy—revealed through litigation—that is acutely relevant to the U.S. definition of mental torture: “the administration of mind-altering substances or procedures to disrupt the victim’s senses.”

Judge Gee has found that children in detention are being over-medicated and administered psychotropic drugs without parental consent or judicial authorization through a court order. Separated children in detention have alleged that they had been forced to take multiple psychotropic medications simultaneously. These medications, which react with the central nervous system, can have long-term side effects (hallucinations, self-harm, suicidal ideation, etc.) when administered to adolescents or children. For this reason and others, many of these drugs are not approved for use on children by the Food & Drug Administration. Lawyers have alleged that detention facility personnel are administering these medications solely to control the behavior and “pacify” the children and not because the children have a psychiatric disorder in need of treatment. (Redacted versions of documents filed under seal are available here). Court records reveal that children were in some cases given bogus “psychiatric diagnoses” that were inconsistent with their actual behavior in order to justify the provision of such pacifying medications.

This practice of forced psychiatric medicating, particularly as applied to children, satisfies even the heightened standards for proving mental torture under U.S. law.

Element #2: Prohibited Purposes

The Torture Convention contains a non-exhaustive list of purposes that must be shown to have animated the commission of torture. This is the “specific intent” element of the crime. These are:

• obtaining from the victim or a third person information or a confession,
• punishing the victim for an act the victim or a third person has committed or is suspected of having committed,
• intimidating or coercing the victim or a third person, or
• for any reason based on discrimination of any kind.

As addressed in my prior post, there are multiple statements in the public record indicating that the family separation policy was implemented in order to punish families for crossing the U.S. border without authorization and also to deter other families (third parties) from following suit.

The separated and detained children are thus suffering for the immigration transgressions of their parents or to deter future potential border-crossers.

The policy is also disproportionately applied to families coming across our Southern border as compared to people arriving at other ports of entry, implicating the discrimination prong above.

Trump administration statements explaining the purpose and motivation behind the policy reveal that the harm to children and their parents was a specifically intended consequence of the policy.

Element #3: State Action

This element is easily satisfied since this was an express federal policy implemented in governmental facilities. This is the case even when private contractors are involved, because they are working at the direction and instigation of federal authorities. Indeed, several private contractors stand to profit mightily in light of new proposals to detain families, most notably GeoGroup and CoreCivic, who run massive facilities near the border. In addition, any custodial requirement is easily satisfied.

Family Separations Constitute Torture for Both Parents and Children

This conclusion that the family separation policy constitutes torture is consistent with the jurisprudence from human rights courts charged with interpreting the key human rights treaties. For example, the European Court of Human Rights has recognized that the mental pain and suffering that comes from knowing that a child has been detained but not knowing the child’s fate can constitute torture and/or ill-treatment of the parents. Similarly, the Inter-American Court of Human Rights has recognized that separations occasioned by forced disappearance can constitute torture and ill-treatment of the disappeared persons and family members.

Family reunions will not necessarily mark the end of these children’s struggles. As a result, child survivors of the Trump administration’s “zero tolerance” policy are likely to have lasting psychological effects. These harms are further compounded by the fact that many of these children have faced horrific trauma in their home countries, which caused their families to flee in the first place. Accordingly, the ACLU is seeking psychosocial rehabilitation for their clients as a form of reparation. Prompt access to appropriate physical and psychological health services is critical to mitigating the harmful effects of immigration detention, especially in children.