Watchdog: Jeff Sessions, Justice aides led ‘zero tolerance’ policy

The former US attorney general played a direct role in the policy that led to family separations at the border

Jeff Sessions walks as the casket of former Senator John McCain lies in state at the U.S. Capitol on Aug. 31, 2018.  (Kevin Dietsch/UPI file photo)
Jeff Sessions walks as the casket of former Senator John McCain lies in state at the U.S. Capitol on Aug. 31, 2018. (Kevin Dietsch/UPI file photo)
Posted January 14, 2021 at 4:18pm

Former Attorney General Jeff Sessions knew in advance that the Trump administration's "zero tolerance" policy in 2018 would lead to family separations at the southern border yet moved forward with rolling it out, according to a report released Thursday by the Justice Department’s inspector general.

The government also failed to adequately prepare for and manage the policy’s implementation, leading to more than 3,000 children being separated from their parents, the report said.

The Justice Department's "single-minded focus on increasing prosecutions came at the expense of careful and appropriate consideration of the impact that prosecution of family unit adults and family separations would have on children traveling with them and the government's ability to later reunite the children with their parents," the report said. 

The “zero tolerance” policy called for criminally prosecuting every adult captured illegally crossing the border. Even before the policy was officially rolled out in April 2018, Justice Department officials knew of various challenges that could result from increased immigration prosecutions and family separations, the federal watchdog concluded, “but they did not attempt to address many of those issues until after the policy was issued." 

The policy was created with the direct input of Sessions, starkly contrasting with statements previously made by Justice officials who insisted it came directly from Department of Homeland Security leaders, according to the report.

After its implementation, Sessions told a group of five U.S. attorneys who expressed concerns about the program that the Justice Department was committed to prosecuting everyone who entered the country illegally “to ensure a conviction was on the record,” the report said. Sessions also told the group “we need to take away children.”

[Emails show internal agency confusion on family separations]

The federal watchdog concluded that DOJ officials underestimated how difficult it would be to carry out the policy and did not fully understand that children would be separated for more than just a few hours. Former Deputy Attorney General Rod J. Rosenstein said he only learned about such difficulties after the policy was issued.

“‘My thought was maybe we just release [the defendant] back to DHS and they can just hold the kid for a few hours while the parent was in court, and then they would be back together that night,’” he told watchdog investigators. 

Under current laws, since children cannot be jailed with their parents, they were ultimately taken into the custody of the Office of Refugee Resettlement, the Health and Human Services agency responsible for taking care of unaccompanied minors. 

The Justice Department report, and other watchdog findings released previously, revealed the government failed to create a formal system for reuniting children with their parents. Sessions did not agree to be interviewed for the report.

Sen. Richard J. Durbin, D-Ill., the incoming Judiciary Committee chairman and one of dozens of Senate Democrats who in 2018 called for the Justice Department investigation, said Thursday that he planned to hold a hearing on the report’s findings.

“The separation of these children was not a mere collateral consequence of legitimate law enforcement. These children were targets of a cruel strategy to create a gruesome warning to any others seeking refuge in our country that their children would pay a price,” he said in a statement.

“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. They must be held accountable for the fundamental human rights violations that they perpetrated,” Durbin said.

House Homeland Security Chairman Bennie Thompson, D-Miss., issued a statement criticizing the Trump administration for knowingly implementing a policy that harmed children . 

"They knew the consequences and did it anyway. Administration leaders did not coordinate the policy among agencies or plan for basic measures to help the children traumatized by this policy,” he said. 

In response to the report, Bradley Weinsheimer, associate deputy attorney general, said the Justice Department would “examine and modify as necessary its procedures” to ensure any significant policy affecting multiple agencies “will coordinate directly with affected stakeholders to ensure effective implementation.”

President Donald Trump terminated the zero policy weeks after it was officially implemented following widespread backlash from lawmakers in both parties. Shortly after, a federal judge forced the government to reunite parents with their children.

Last month, court-appointed attorneys responsible for reuniting the separated families, said in a court filing that they still have not located the parents of 628 children.

President-elect Joe Biden has said he will issue an executive order to form a federal task force that will focus on reuniting immigrant children who have been separated from their families.

In recent weeks, Democratic lawmakers have urged him to fulfill that pledge as soon as possible.

"We cannot effectively promote human rights and decency abroad if we do not assist the children the Trump Administration has effectively orphaned in the United States," said the lawmakers, led by Thompson, in a letter last month to Biden. "We believe this is an urgent, Day One initiative that can help provide some stability for the children who suffered the trauma of family separation.”