In an attempt to justify Alexandria Ocasio-Cortez’s absurd comparison of American detention facilities to Holocaust-era concentration camps, many figures within the media have shared a viral video clip of a legal hearing in which a Department of Justice attorney debates a panel of judges as to what constitutes “sanitary conditions.” The majority of the shares were of a version put out by NowThis News, which claimed that the video shows a Trump administration official arguing that “children don’t need soap, toothbrushes, or beds to be ‘safe and sanitary’ while in Border Patrol custody.” The claim has led to several days of outrage, and has been used repeatedly as evidence that the current administration is being intentionally cruel to migrant children. Countless journalists, along with clickbait outlets such as The Hill and the Huffington Post, have highlighted the video inside this framing.
Unsurprisingly, it is not that simple. Indeed, the hearing in the video was related not to actions taken by the Trump administration, but to a challenge of a 2017 ruling that the CBP under the Obama administration had violated the Flores Settlement agreement with its treatment of children in custody. The judge in that case cited specific infractions that she felt were in violation of the “safe and sanitary” requirement under the Flores agreement and recommended a special monitor be appointed to ensure these facilities were complying with the original standard. The DOJ attorney in the video, Sarah Fabian, was not arguing that the United States should decline to provide those items to children, but rather that the Flores Settlement agreement didn’t specifically require those items. The notoriously liberal Ninth Circuit judges disagreed with this argument, preferring to read Flores narrowly. Fabian has been arguing similar cases on behalf of the Justice Department for years; that is her job. Some of her legal arguments have upset immigration advocates before. But they have never led to this type of media coverage, or to the claim that her fulfilling her legal role is indicative of a moral shortcoming.
Predictably, the vast majority of the people and the outlets that shared this exchange failed to note that the violations being discussed had occurred during the previous administration, while those who did know failed to ask themselves (and others) why the violations didn’t receive similar coverage when they were first exposed. Instead, they jumped straight to the conclusion that the federal government, headed up by President Trump, was deliberately inflicting pain on babies. This isn’t true.
It wasn’t true during the Obama administration either. Then, as now, the violations weren’t part of an intentional or evil ploy, but were the product of the system’s being overloaded. Then, as now, the intended care at these facilities was humane, and consistent within the requirement under Flores. In 2014, the Obama administration was dealing with a serious crisis: a large influx of unaccompanied minors that strained the facilities. In 2019, the Trump administration is dealing with a serious crisis: a large influx of unaccompanied minors that strains the facilities. In consequence, across multiple years and multiple administrations, the DOJ has repeatedly argued in court that the Flores Settlement agreement should be read narrowly, or allow for exceptions in difficult times. Certainly, governments make mistakes. Certainly, some facilities have taken shortcuts, as the result of either bureaucratic incompetence or limited resources. But those infractions will be fixed by additional funding, additional facilities, better oversight, and quicker processing, not by pretending that the president is a tyrant. The situation at the border is a difficult one, but selective outrage based on misleading facts won’t do much to address it.
This incident has been reminiscent of the recent outrage over pictures of “kids in cages” at detention facilities that, after a period, were revealed to date from the Obama administration. And, like that one, it has done a great deal of damage to our institutions, not only because it seems to neutral observers that the media gauges newsworthiness based on who is in the White House, but because the selective coverage and focus on imagined motives rather than real structural problems permits members of Congress to deflect from their own inaction, and thereby to ensure that the issues will continue ad nauseam.