Kevin McAleenan, the new acting secretary of the Department of Homeland Security, abruptly assumed office in April because his predecessor reportedly wasn’t tough enough for President Trump. Ironically, McAleenan claims that “you can be tough and compassionate at the same time.” But actions speak louder than words.

Don’t be fooled, McAleenan does not represent a new leaf. He is deeply implicated in many horrors over the last two and a half years. He recommended, and refuses to apologize for, family separations. He led Customs and Border Protection during the Muslim ban and oversaw the agency when two children died in its custody, toddlers were teargassed, and families were held for days in the dirt under a bridge. He stayed silent when Border Patrol abetted militias. No matter his job title, he serves and leads in an administration ideologically committed to dehumanizing immigrants — and that regrettably remains unchanged.  

McAleenan and the rest of the administration are doubling down on an overarching deterrence through cruelty approach. At a time when Trump is misappropriating funds from defense and other accounts for his wall, they have asked Congress for billions more in "emergency" detention and enforcement money. The facts at our border require humanitarian, not draconian, responses. A wall, even with a “large gate,” is nothing but a political facade to capitalize on racism and fear while hurting border communities.

Personnel changes are meaningless without changes to the Department of Homeland Security’s anti-immigrant, and frequently illegal, policies. The administration and the department are as dedicated as ever to its campaign of distorting the realities at the border to justify slamming America’s door on asylum seekers.

We’ve sadly come to expect statistical spin and misleading political rhetoric from DHS and politicians like Senate Homeland Security Chairman Ron Johnson, who has a noted history of misleading statements about immigration. He recently went to El Paso and said: “It was amazing to me — when I talked to people, not one of them claimed credible fear or that they were fleeing persecution.” But when misinformation and DHS’ own misrepresentations are penetrating even the New York Times opinion page, a reset is warranted.

First, walls don’t work — and they never have. They only serve to damage our borderlands and engender xenophobia. As research has shown, they result in border residents having their property confiscated, endangered species disappearing, and migrants being killed when forced into harsher terrain. 

Walls don’t contribute to the administration’s aim to unlawfully keep out those seeking safety. Asylum seekers have a right to seek protection no matter how they enter the United States.  Border barriers aren’t constructed on the precise line separating the U.S. from Mexico, meaning asylum seekers enter the United States before they even reach any wall, triggering their right to seek asylum. Building more border barriers wastes billions of dollars on pointless and damaging political theatre instead of upholding the law and processing arriving asylum seekers with adequate resources to ensure due process.

Second, there is no security crisis at the southern border, and DHS’s crackdown on asylum seekers has exacerbated, rather than addressed, humanitarian needs. For example, DHS hypocritically tells migrants to present themselves at ports of entry for asylum, then under an unsupportable policy called “metering” makes them wait in dangerous conditions for weeks or months. One family subjected to this policy was kidnapped shortly after, extorted by Mexican authorities, detained for months, and pursued in Mexico by their Central American persecutors, all with a child suffering from a chronic heart condition. Over 13,000 asylum seekers are currently subjected to this illegal policy across the border.

The Trump administration is also returning asylum seekers to Mexico during the pendency of their immigration cases, under its unlawful “Remain in Mexico” policy. No administration acting in good faith to address a regional refugee challenge would vilify mothers and children fleeing violence, prevent children from applying for protection in their home countries under the Central American Minors (CAM) program, or end programs to reliably supervise families in the U.S. through alternatives to detention. They certainly would not freeze the hiring of immigration judges needed to handle a massive backlog of cases.

The Trump administration may be committed to pushing false narratives to justify its xenophobic and illegal attack on asylum seekers and immigrants. But there is another way.

When policy makers and thought leaders seek real solutions to current border realities, by contrast, simple and smart answers exist. The administration should stop blocking asylum seekers at the border and strengthen regional protection options. DHS should allocate funds to modernize ports of entry and humanely, efficiently process asylum seekers as well as provide community-based alternatives to detention that are proven to ensure attendance at their legal immigration proceedings. As a country, we must prioritize work to address the problems in Central America that cause families to flee, not defund  assistance as Trump rashly did last month.

Real solutions exist. Ignoring or countermanding them only further proves this dishonest administration is committed to keeping immigrants out rather than following the law and addressing the reality at our border.

Chris Rickerd, Policy Counsel, ACLU National Political Advocacy Department
& Shaw Drake, Policy Counsel, ACLU Border Rights Center

Attorney General William Barr recently invoked a powerful, rarely used privilege to withhold information from the public, marking a dramatic turn of events in a battle over the release of a highly contested report.

Only this time, we’re talking about a report that would provide much-needed information on the government’s spying activities.

For the past five years, Twitter has been trying to make public a transparency report with detailed statistics about how often the U.S. government seeks to spy on Twitter’s users. At nearly every turn, the government has been putting up roadblocks to prevent that report from seeing the light of day.

In 2014, when Twitter first sent its draft report to the government for review, the company was told it couldn’t publish the report because it contained information the government deemed classified. Then, when Twitter took the government to court to challenge its censorship as a violation of the company’s First Amendment rights, the government moved to squash the lawsuit. In a secret declaration filed under seal with the court, the government purported to explain to the judge the harms that would result if Twitter published its transparency report. Twitter’s lawyers, notably, weren’t allowed to see the declaration at the time.

Fortunately, the judge was unpersuaded by whatever was in that secret document, and rejected the government’s attempts to dismiss the case, Twitter, Inc. v. Barr.

But that hasn’t stopped the government.

Now, Attorney General Barr is invoking the “state secrets privilege” in an effort to keep Twitter’s lawyers from seeing the secret declaration and to shut down the lawsuit altogether. But as we explain in an amicus brief filed in court this week, Barr’s assertion of the state secrets privilege is highly inappropriate and dangerous. If left unchecked, it would risk endorsing a dramatic expansion of the privilege — with far-reaching consequences for future cases involving classified material.

The state secrets privilege is a powerful tool that the government invokes to withhold evidence from litigation—and even force the dismissal of a case in the name of national security. Because the privilege can result in such severe consequences, it should be reserved for the most exceptional cases. To justify its use, the government has to show that any disclosure of the evidence — even disclosure limited to lawyers with security clearances — creates an unacceptable risk of harm to national security. It’s a high bar, and the government has come nowhere close to meeting it in this case.

Two years ago, the court found that the government’s secret declaration largely relied on “generic” and “seemingly boilerplate” descriptions of purported harms from the disclosure of the transparency report — and that these generic descriptions failed to establish that the government’s censorship of Twitter was constitutional. In part based on that finding, the court rejected the government’s effort to get Twitter’s case thrown out of court. Now, the district court seems poised to order disclosure of the declaration to Twitter’s counsel, who has a security clearance, and the government is arguing for the first time that the declaration is a “state secret.”

The law of the state secrets privilege doesn’t allow the government to invoke the privilege over “generic” and “seemingly boilerplate” information, and it certainly doesn’t justify the dismissal of Twitter’s lawsuit. The privilege is too powerful a tool, and too susceptible to abuse, to permit its casual invocation for a tactical advantage in litigation.

One example of how the privilege can result in injustice is a lawsuit we filed in 2007 on behalf of victims of President Bush’s post-9/11 rendition program. In that program, the government secretly and forcibly transferred people to CIA “black sites” or other foreign prisons run by intelligence agencies known to torture prisoners. The government argued that any litigation of these issues would create an unacceptable risk of disclosure of “state secrets.” The Ninth Circuit ultimately agreed and dismissed the suit. As a result, victims of rendition and torture were denied their day in court.

Government abuse of the privilege is also well-documented. For example, in United States v. Reynolds — the Supreme Court’s seminal state secrets case — it turned out that the government abused the privilege to improperly withhold evidence. In Reynolds, the families of civilians killed in a military plane crash sued the government and sought the Air Force’s report about the accident. In response, the government claimed that the report was shielded by the state secrets privilege because the aircraft was engaged in a “highly secret mission,” and disclosure of the report would harm national security. But decades later, the report was declassified, and the public learned the truth. The Air Force’s report turned out to contain “no details of any secret project the plane was involved in,” but instead detailed “a horror story of incompetence, bungling, and tragic error.”

Given the risk of abuse of the state secrets privilege, and given the harsh consequences for plaintiffs, it’s essential that courts closely and skeptically scrutinize any claim of it. In Twitter’s case, it’s clear that the government’s assertion of the privilege doesn’t stand up to scrutiny.

Ashley Gorski, Staff Attorney, ACLU National Security Project

At 3 a.m., inside her solitary jail cell in Broward County, Florida, Tammy Jackson began having contractions. It took hours for corrections officers to reach a doctor, who said he’d check on Jackson when he came into work later that morning. By the time he arrived at 10 a.m., Jackson had delivered the baby alone in her jail cell.

Not only was Jackson incarcerated and isolated without medical care while giving birth, she was also doing so while living with serious mental illness.   A few months before her arrest, she had been so acutely ill she was involuntarily committed to a local psychiatric facility.  And furthermore, she was not even in jail because she had been convicted of a crime. Jackson was a pretrial detainee. 

She was being held in the jail under supposed medical monitoring in a unit for high-needs detainees. Still, she had to suffer through the physical and emotional trauma of labor and delivery alone, ignored by officers who heard but failed to heed her cries for help.

Her suffering is egregious. And we must ask a broader question about the Broward County Jail and the criminal legal system that feeds it: Why was Jackson even there?

People with mental illness make up close to 70 percent of those detained in women’s facilities. They are often arrested for behavior that is a product of living with mental illness and, due to mental illness or because they are disproportionately low income and homeless, they frequently are unable to afford bail or comply with pretrial release requirements. Then, once in jail, they often decompensate due to the harsh conditions they endure, including traumatic strip searches and long-term isolation in cells roughly the size of a parking space.

As we know from Jackson’s story, the callousness with which incarcerated women are treated extends to pregnancy care.

At the Broward County Jail, Jackson’s care was entrusted to Wellpath, the largest for-profit private correctional health care provider in the country, with annual profits approaching $1.5 billion. Wellpath has a long and sordid history of being sued for endangering and neglecting pregnant prisoners in their care. In one case, a Kentucky woman alleges that health care staff ignored her pleas for help after she began suffering from contractions at 21 weeks and passed a blood clot. Nearly two hours went by before an ambulance was even called.

The woman gave birth to her child while cuffed in the ambulance. Her child did not survive. And heartbreaking stories like these are not exceptions. They are pervasive.

Three years ago, a woman with serious mental illness gave birth in a cell, alone, at the jail in St. Thomas, U.S. Virgin Islands. That jail, like Broward County, is under a consent decree with the ACLU requiring minimally adequate health care. But despite this, the St. Thomas jail still allowed the woman to slip through the cracks. Jail staff recognized she needed to be hospitalized when she entered the facility, but declined to transfer her to the local psychiatric hospital. Her mental and physical health deteriorated in the ensuing weeks, as she refused to eat or take medications, including prenatal vitamins. Instead of hospitalizing her, the jail placed her in solitary confinement as punishment for resisting an escort. They then compounded the problem by failing to monitor her pregnancy needs or her food and medication intake.

Given the jail’s lack of care, it is not surprising that like Jackson, this woman gave birth in her solitary cell.  Only after giving birth was she transferred to a hospital where she received appropriate medical and mental health care, the kind of care she needed months before and that the jail should have provided. According to a psychiatric expert in the case, “[h]er condition improved markedly within a few days of being in the hospital[.]”

Imagine listening to a woman scream through the agony of labor, or watching her decompensate to the point of refusing to eat during late pregnancy, and not stepping in to help. It is unconscionable, and yet a reality in our criminal justice system.

Too many jails are ill-equipped to safely house and adequately treat women with serious mentally illness. Some people refer to jails as the largest psychiatric hospitals in America, but jails and prisons are not hospitals and corrections officers are not healthcare providers. The budgetary concerns, privatization of jail healthcare, and the dehumanizing treatment that pervades correctional facilities render them incapable of ever providing the full spectrum of minimal treatment that people with mental illnesses need.

Jackson’s story, and the stories of women like her, provides a heart-wrenching look into the damage that can be done when mental illness, pregnancy, and the carceral state collide. That anguish will continue until we stop criminalizing mental illness and start treating it.