Confidential settlement negotiations between the Justice Department and counsel for migrant families forcibly separated during the Trump administration, which leaked recently, revealed that financial damages may reach $450,000 for some of the traumatized families.
President Biden called that news report “garbage” and said “it’s not gonna happen,” remarks later walked back by White House staff. The recent media focus on the potential dollar figure and President Biden’s inflammatory comments have diverted attention away from the real matter at hand: The horrific suffering of forcibly separated parents and children, inflicted intentionally by the U.S. government.
Expert clinicians at our organization, Physicians for Human Rights, have conducted evaluations of 44 parents and children affected by this abhorrent policy. We concluded in our 2020 report, “You Will Never See Your Child Again,” that the experiences of these individuals and their families meet the criteria for two grave human rights violations: Temporary enforced disappearance and torture. Parents and children displayed severe symptoms of trauma and met diagnostic criteria for mental health conditions such as post-traumatic stress disorder, anxiety and depression — life-altering conditions that have persisted even years after family reunifications.
The cruel acts that the U.S. government perpetrated against asylum seekers demand more than a financial settlement.
U.S. and international law requires the government to ensure access to an effective remedy for victims of torture. But can money alone ever compensate for the deep trauma suffered by separated families? In addition to financial compensation, other types of remedies are also crucial to obtain a measure of justice.
A better way to look at what we, as a nation, owe those affected by the “Zero Tolerance” or family separation policy of the Trump administration is through the lens of reparations. Reparations recognize that human rights violations affect not only our physical and mental health but are also an attempted assault on our essential human dignity and worth. Reparations include not only financial compensation but also full acknowledgment, policy reforms and guarantees of non-repetition.
The United Nations Convention Against Torture, which the United States has ratified, obligates national governments that have committed torture to provide redress to survivors and to ensure that the domestic legal system ensures “an enforceable right to fair and adequate compensation, including the means for as full rehabilitation as possible.”
The “as possible” is heartbreaking — it acknowledges that physical and emotional scars from torture can be lifelong, even with treatment. This poignant reality only underscores the urgency of providing remedy and redress as speedily as possible, especially for the children. Torture affecting children should be assessed with special consideration for their total dependence on adults, their extreme vulnerability, their sensitivity to pain and the possibility of long-term trauma due to their developmental stage. The suffering of small children was at the heart of this heinous policy and should weigh heavily in our thinking about the reparations and redress that are due.
Currently, the U.S. government, compelled by litigation, is providing only rehabilitation to separated families, in the form of some psychological services.
But given the profound mental health trauma that parents and children experienced, the U.S. government should also offer access to long-term health services and psychosocial care, and family social support. The concept of reparations goes beyond monetary damages, rehabilitation and restitution and can be interpreted more broadly and creatively to address the root causes of the issue while recognizing that nothing can restore the months or years that young children were forced to be away from their parents, often not knowing where they were.
We strongly advocate for the government to implement transformative reparations, which Dr. Michelle Bachelet, the U.N. High Commissioner for Human Rights, herself a pediatrician, endorses as underscoring the “catalytic power” that genuine remedies hold for victims, families and even entire countries”.
While reparations can take many forms, they must respect culture and community. Reparations must be carried out in consultation with the affected groups since what may matter to them may be different than what lawyers or government officials may perceive to be important. Such practices may include validation of the claims, an acknowledgment of wrongs by the state, special inquiries, truth commissions and symbolic reparations (e.g., ceremonies and formal apologies), as well as efforts to reform domestic legislation. Survivors of the U.S. family separation policy should have a seat at the table in all deliberations over reparations.
Based on the horrific stories that survivors have bravely recounted and that PHR research has documented, we believe that the United States will not fulfill its obligation under the U.N. Convention Against Torture by only focusing on a dollar figure. Settlements must be paired with an official apology to all of the families that fully acknowledges the harm the U.S. government perpetrated, a concerted effort to meaningfully reform U.S. immigration laws and border enforcement policies so that such separations can never happen again and a grant of permanent immigration status so that these affected families do not have to fear that they will be separated in the future.
Kathryn Hampton, MST, MA, is deputy director at Physicians for Human Rights’ Asylum Program. Ranit Mishori, MD, MHS, FAAFP is the senior medical advisor at Physicians for Human Rights and a professor of Family Medicine at Georgetown University School of Medicine.