OT: Kidnapping or Not, That Is The Question

...or, how to think clearly about politics.

Are you being led by media narratives, unable to countenance claims which seem extreme or radical, or are you a clear thinker, able to critically think for oneself? Almost all of us would place ourselves in the latter category, but how do we know? One clue is this: if in reading the title alone you've concluded I'm crazy, hysterical, or stupid and ipso facto wrong, it's more probable that you're in the former category. No worries, though. Let's reset, I'll provide my argument, and you can be the judge.

a) Whoever unlawfully seizes, confines, inveigles, decoys, kidnaps, abducts, or carries away and holds for ransom or reward or otherwise any person, except in the case of a minor by the parent thereof...

...shall be punished by imprisonment for any term of years or for life and, if the death of any person results, shall be punished by death or life imprisonment. ~ US Federal Statute

"So it’s not, it’s certainly not our goal to separate children, but I do think it’s clear, it’s legitimate to warn people who come to the country unlawfully bringing children with them that they can’t expect that they’ll always be kept together. "~ Jeff Sessions with Hugh Hewitt

(a) Every person who forcibly, or by any other means of instilling fear, steals or takes, or holds, detains, or arrests any person in this state, and carries the person into another country, state, or county, or into another part of the same county, is guilty of kidnapping...

(e) For purposes of those types of kidnapping requiring force, the amount of force required to kidnap an unresisting infant or child is the amount of physical force required to take and carry the child away a substantial distance for an illegal purpose or with an illegal intent. ~ California Penal Code

We have California law among other states, Federal law, and of course international law to which the US is a party. These two definitions give us enough of a sense of the legalcomplexity that we can establish several basic principles inherent in kidnapping, however:

1) Exertion of physical force

2) Confinement or restraint, duress

3) Deception

4) Ransom, reward or gain of some kind

5) Aggravating circumstances, such as the death of the victim

6) Legality

“This is the worst thing I’ve seen in 25-plus years of doing this civil rights work,” Lee Gelernt, deputy director of the American Civil Liberties Union’s immigrants’ rights project, said on MSNBC recently. “I am talking to these mothers and they are describing their kids screaming, ‘Mommy, Mommy, don’t let them take me away!’ … The medical evidence is overwhelming that we may be doing permanent trauma to these kids, and yet the government is finding every way they can to try and justify it.” ~ The Washington Post

There have been a variety of defenses of the Trump Administration in this regard. The old propaganda technique of "whattaboutism" is alive and well, with apologists for Trump pointing out that this was made policy under the Obama Administration. Like all good propaganda, this is partly true: the Obama Administration did explore this kind of policy for the purposes of deterring illegal immigration.

There are several differences between Trump and Obama in this regard, however. Obama never implemented the policy, concentrating instead on arresting and deporting actual criminals among the immigrants. Sessions architected a much, much broader policywhich relied on seizing children from their parents to deter immigrants illegally entering the US.

But a big name of the game is deterrence...It could be a tough deterrent — would be a tough deterrent. ~ John Kelly, Trump Chief of Staff, to NPR

We expect the new policy will result in a deterrence effect. ~ HHS Official in charge of caring for undocumented minors, The Hill

The public outcry in the wake of publicity into these policies quickly put the Administration to backtracking their rhetoric, and gone was the language of deterrence. Instead, Sessions argued that the seizure of these children was necessitated by law. Sort of. What he has claimed, to Hugh Hewitt and in a speech given in Montana, is that the settlement of the Reno v. Flores case limits the time minors may be held by the government with their parents. This is an outright lie. What the Flores settlement does is to demand that minors should be released in as little time as possible, with a subsequent time frame quoted by Sessions as being 20 days. The argument goes that if they can't keep the child with the parents throughout the term of the parents' incarceration, separation is mandated. Only problem is that Flores doesn't refer to this circumstance at all, but rather to unaccompanied minors suspected of being deportable. In other words, children without any parents to be separated from.

Sessions also claims that DHS must transfer the children of incarcerated immigrants to HHS within 72 hours by law. This refers to the William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008. Here's Sessions argument:

They stay under the Secretary of Homeland Security for only 72 hours maximum, and they’re then to be placed with Health and Human Services. And they, we have had some surges that have stressed HHS and DHS and how they handle the children, but for the most part, we’ve been able to transport them. 

Can there be any mystery about the truth of this claim? The Wilberforce Act refers explicitly to unaccompanied minors - just like Flores. In other words, the entire architecture of the separation policy, as articulated by the DoJ, is a legal fiction.

So what have we, then? Is Trump's Administration kidnapping kids? We have many Administration and DoJ officials openly discussing the policy as a deterrent, which is clearly a political reward ( 4 ) for the Administration. Children are seized, under threat of force( 1 ) or by deception ( 3 ), and transported to caged or constricted facilities where they are held against their will ( 2 ). Sadly a few of these children have died while under care of HHS or DHS ( 5 ), and all will suffer serious trauma.

That's five of the six criteria. The last criteria however does not apply. These seizures of children is not illegal, but in fact mandated by DoJ policy. It might be that in the future these policies and their implementations will be ruled illegal, but for now this remains the strongest, and perhaps only, argument against the accusation that the Administration is kidnapping children.

Now it isn't lost on me that most who defend this policy - more likely something approaching all - are "conservatives" or rightwing ideologues or libertarians. In every case a major component of their political outlook involves protecting individual liberty from the predations of the state. Yet to accommodate Trump's policy here, they must cede their own integrity to state authority. If Trump's policy in this regard is notkidnapping, it is only because the state says it's not. When the state interrogator asks how many fingers it's holding up, what will the Winston Republicans say?

Those who refuse to even engage the question have answered quite clearly that their minds are not their own.