What does “safe and sanitary” mean?

Helen Christophi at Courthouse News:

The Trump administration argued in front of a Ninth Circuit panel Tuesday that the government is not required to give soap or toothbrushes to children apprehended at the U.S.-Mexico border and can have them sleep on concrete floors in frigid, overcrowded cells, despite a settlement agreement that requires detainees be kept in “safe and sanitary” facilities.

All three judges appeared incredulous during the hearing in San Francisco, in which the Trump administration challenged previous legal findings that it is violating a landmark class action settlement by mistreating undocumented immigrant children at U.S. detention facilities.

Tell us again that these are not concentration camps, that they’re nothing like concentration camps, that they have nothing to do with concentration camps.

“You’re really going to stand up and tell us that being able to sleep isn’t a question of safe and sanitary conditions?’” U.S. Circuit Judge Marsha Berzon asked the Justice Department’s Sarah Fabian Tuesday.

U.S. Circuit Judge William Fletcher also questioned the government’s interpretation of the settlement agreement.

“Are you arguing seriously that you do not read the agreement as requiring you to do anything other than what I just described: cold all night long, lights on all night long, sleeping on concrete and you’ve got an aluminum foil blanket?” Fletcher asked Fabian. “I find that inconceivable that the government would say that that is safe and sanitary.”

We get a useful explainer of the Flores settlement, which governs this:

The settlement at issue came out of Jenny Lisette Flores v. Edwin Meese, filed in 1985 on behalf of a class of unaccompanied minors fleeing torture and abuse in Central America.

Finally agreed upon in 1997, the settlement established guidelines for the humane detention, treatment and release of minors taken into federal immigration custody. The guidelines include the right to a bond hearing and requirements that immigration authorities timely release children to parents or guardians and place those not released in facilities that meet certain standards. The facilities are supposed to be “safe and sanitary.”

In an interesting plot twist, the Obama administration tried to tweak it:

The settlement landed back in court in 2015, when class members moved to enforce it following the Obama administration’s announcement that it would scrap bond hearings because they conflicted with newer immigration laws. In legal filings, the class contended the elimination of bond hearings and dirty and dangerous conditions at short-term holding facilities operated by the Border Patrol violated the agreement.

U.S. District Judge Dolly Gee in Los Angeles granted the class’ motion and ordered the appointment of an independent monitor to ensure government compliance with Flores.

Gee said the administration had breached Flores by failing to provide detainees with adequate food and clean drinking water, or with hygiene items like soap, toothbrushes and towels. She also concluded that the children were being deprived of sleep and access to bathrooms, and were subjected to near-freezing temperatures.

So that wasn’t on Trump’s watch, it was on Obama’s watch.

Trump’s people argued that soap wasn’t included in Flores, the judges retorted that it was too obvious to be spelled out.

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