What the Viral Border-Patrol Video Leaves Out

News outlets seized on the video as evidence of the Trump administration’s cruelty, but they omitted the crucial context.

In an attempt to justify Alexandria Ocasio-Cortez’s absurd comparison of American detention facilities to Holocaust-era concentration camps, many figures within the media have shared a viral video clip of a legal hearing in which a Department of Justice attorney debates a panel of judges as to what constitutes “sanitary conditions.” The majority of the shares were of a version put out by NowThis News, which claimed that the video shows a Trump administration official arguing that “children don’t need soap, toothbrushes, or beds to be ‘safe and sanitary’ while in Border Patrol custody.” The claim has led to several days of outrage, and has been used repeatedly as evidence that the current administration is being intentionally cruel to migrant children. Countless journalists, along with clickbait outlets such as The Hill and the Huffington Post, have highlighted the video inside this framing.

Unsurprisingly, it is not that simple. Indeed, the hearing in the video was related not to actions taken by the Trump administration, but to a challenge of a 2017 ruling that the CBP under the Obama administration had violated the Flores Settlement agreement with its treatment of children in custody. The judge in that case cited specific infractions that she felt were in violation of the “safe and sanitary” requirement under the Flores agreement and recommended a special monitor be appointed to ensure these facilities were complying with the original standard. The DOJ attorney in the video, Sarah Fabian, was not arguing that the United States should decline to provide those items to children, but rather that the Flores Settlement agreement didn’t specifically require those items. The notoriously liberal Ninth Circuit judges disagreed with this argument, preferring to read Flores narrowly. Fabian has been arguing similar cases on behalf of the Justice Department for years; that is her job. Some of her legal arguments have upset immigration advocates before. But they have never led to this type of media coverage, or to the claim that her fulfilling her legal role is indicative of a moral shortcoming.

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