Children detained at border don't need soaps, toothbrushes and beds to be 'safe and sanitary', argues Justice Dept lawyer
A Justice Department attorney has argued in a court recently that the federal government should not be required to provide soap, toothbrushes, or even beds to detained children apprehended at the US-Mexico border, according to reports.
Federal attorney Sarah Fabian argued before the US Court of Appeals for the 9th Circuit on Tuesday, June 18, that it was "safe and sanitary" to make children sleep on cold concrete floors in cells. The federal government, earlier this month, also scrapped English language classes, recreational programs like soccer games and legal aid for detained children.
According to the requirements of a 1997 settlement agreement in the case of Jenny Flores, which formulated a framework for the humane treatment and release of detained migrant minors, children must be housed in "safe and sanitary conditions". However, attorneys for the detained children have argued that the government is not following the requirements, which also states that they are provided with toothbrushes and soaps.
When Fabian presented her arguments against providing them with these basic amenities, the members of the three-judge appellate pane appeared shocked.
Judge William Fletcher directed a question at the government attorney, asking: "Are you arguing seriously saying that you do not read the agreement as requiring you to do something other than what I just described: cold all night long, lights on all night long, sleeping on concrete and you've got an aluminum foil blanket? I find it inconceivable that the government would say that that is safe and sanitary."
Judge Marsha Berzon asked the lawyer: "You’re really going to stand up and tell us that being able to sleep isn't a question of 'safe and sanitary' conditions?... You can’t be sanitary or safe as a human being if you can't sleep."
US District Judge Gee in Los Angeles reportedly appointed an independent monitor to make sure that the federal government was complying with the Flores settlement and specifically required such items as soap and toothbrushes. The federal attorney was present in the court on June 18 to challenge Judge Gee's order, arguing that such requirements were not mentioned in the original settlement.
Fabian argued: "One has to assume ... parties couldn't reach agreement on how to enumerate that or it was left to the agencies to determine." Judge Fletcher, however, responded with: "Or it was relatively obvious — 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 doesn't comply with the agreement."
"It may be they don’t get super-thread-count Egyptian linen, I get that. ... I understand at some outer boundary, there may be some definitional difficulty. But no one would argue that this [current situation] is safe and sanitary," he added.
Judge A. Wallace Tashima said that such items are "within everybody’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. Wouldn’t everybody agree to that?" he asked. "Do you agree to that?"
The children's attorney Peter Schey, during the hearing, said that "today we have a situation where once a month a child is dying in custody. Certainly, the Border Patrol facilities are secure, but they're not safe and they're not sanitary."