ACLU Attorney Lee Gelernt on How Rights Groups Are Preparing to Fight Trump’s Mass Deportations

AMY GOODMAN: This is Democracy Now!, democracynow.org, “War, Peace and the Presidency.” I’m Amy Goodman.

Immigrant rights lawyers are preparing to battle with Donald Trump as he vows to carry out the largest mass deportation in U.S. history once he takes office in January. This week, Trump named several key figures who will oversee his plan.

Stephen Miller has been tapped to serve as White House deputy chief of staff for policy. During the first Trump administration, Miller helped orchestrate the Muslim ban, pushed for the separation of immigrant families and backed the termination of DACA — that’s the Deferred Action for Childhood Arrivals program that’s granted protection to certain undocumented people brought to the U.S. as children.

Trump has also picked Thomas Homan to serve as his so-called border czar. Homan served as acting director of ICE — that’s Immigration and Customs Enforcement — during Trump’s first term and has also been described as one of the intellectual authors of Trump’s zero-tolerance policy that separated thousands of migrant children from their parents at the U.S.-Mexico border.

Trump has also nominated South Dakota Governor Kristi Noem to serve as the next secretary of homeland security.

NBC News is reporting the incoming Trump administration is already talking to private prison companies about drastically expanding immigrant detention centers, including building some near major U.S. cities.

Days before last week’s election, Trump spoke about invoking the Alien Enemies Act of 1798.

DONALD TRUMP: And on day one, I will launch the largest deportation program of criminals in American history. We’re going to get them out. We have to. … I will invoke the Alien Enemies Act of 1798. You know, 1798, that’s when they ran the country a little tougher than we run it today.

AMY GOODMAN: So, that was Donald Trump speaking a day before the election. This is Stephen Miller speaking in February at the CPAC, the Conservative Political Action Conference, where he outlined how mass deportations could be carried out.

STEPHEN MILLER: Seal the border, no illegals in, everyone here goes out. That’s very straightforward. In terms of the policy steps to accomplish this, as President Trump showed in his first term, it’s a series of interlocking domestic and foreign policies to accomplish this goal. In no particular order, just to rattle off a few facts, you have your safe third agreements. You have “Remain in Mexico,” finish the wall. You have robust prosecutions of illegal aliens. You do interior repatriation flights to Mexico, not back to the north of Mexico. It’s very important. You reimplement Title 42. You have several muscular 212(f)s. That’s the travel ban authority. We did a few of those in the Trump administration. You would bring those back and add new ones on top of that. You would establish large-scale staging grounds for removal flights. So you grab illegal immigrants, and then you move them to the staging grounds, and that’s where the planes are waiting for federal law enforcement to then move those illegals home. You deputize the National Guard to carry out immigration enforcement.

AMY GOODMAN: So, that’s Stephen Miller.

We’re joined right now by Lee Gelernt, deputy director of the ACLU Immigrants’ Rights Project, argued some of the most high-profile immigration cases during the first Trump administration, including the one to stop Trump’s family separation policy.

Welcome back to Democracy Now!, Lee.

LEE GELERNT: Thanks for having me again.

AMY GOODMAN: It’s great to have you with us. OK, so, you hear Stephen Miller laying it out, and it’s the first appointments that Trump has made. How are you beginning to deal with this? What do you see is being laid out here?

LEE GELERNT: Yeah, so, we have been preparing nearly a year for this. I think the first time around, we were caught off guard. We moved very quickly. But this time I think we were prepared for it more. And so, since the winter, we have had multiple, multiple attorneys at the nationals of the ACLU preparing for all these policies that are being threatened. And the military is being threatened to be used. We’re preparing for that, the mass deportations, potential for more family separation, border policies that would restrict asylum seekers. So, we’re preparing for all, but we’re clear-eyed that it’s not going to be easy.

And the one thing I would stress is that it can’t be done solely through the courts. We will be in the courts, but it needs to be a national effort, similar to what happened with family separation, where the public said, “Wait. Enough is enough. That’s a red line, taking little babies away,” went out to the streets peacefully to protest, let it be known, “Yes, we want immigration reform, but not something like this. We don’t want the military walking through the streets.” People need to make that clear. We need some kind of balanced approach. We are not opposed to basic immigration reform, but this cannot be a situation where we’re just going after immigrants left and right.

AMY GOODMAN: So, talk about what Miller is threatening, and, of course — 

LEE GELERNT: Right.

AMY GOODMAN: — most importantly, what Trump is threatening.

LEE GELERNT: Right.

AMY GOODMAN: They are building detention centers. They are saying they’re going to prepare them between New York and Philadelphia, outside Denver and Chicago. How does this work?

LEE GELERNT: Well, we’ll see how they try and do it. I mean, we don’t know yet. I mean, I’m not sure the logistics are there, but we’re concerned about it, and we are not going to underestimate how egregious the policies may be.

The first thing we’re preparing for is what President Trump has said about the Alien Enemies Act, the law from 1798. He’s saying he can use the military to start deporting people. We think that’s absolutely wrong. It would be illegal. The law is very clear that you need an invasion from a foreign government. This is not an invasion from a foreign government, immigrants coming to seek safety or a better life. So, if he tries to use the military under the Alien Enemies Act, we would be prepared for it. We’re prepared for if he tries to use the National Guard. But if it’s just going to be straight enforcement, egregious enforcement, I mean, we’re going to have to do what we can do, try to get individual lawyers for people.

But I think people also need to recognize that from a policy standpoint, we need immigrants here for a variety of reasons, including for the economy. And so I hope that businesses will push back and say, “We need these workers.”

The other thing that’s going to happen is if he starts deporting everyone like he’s claiming, we’re going to be seeing more family separation. There’s U.S. citizen children who have undocumented parents. They’re going to be left alone, or they’re going to have to move to a country that they’ve never stepped foot in.

But to your question of how it’s going to work logistically, we don’t know, but we’re not underestimating how much resources they’re going to put into it.

AMY GOODMAN: So, let’s go to Homan. During a recent interview on 60 Minutes, Trump’s pick to be the so-called border czar, Tom Homan, said the mass deportation campaign could also target U.S.-born children, you know, born to undocumented parents. He was interviewed by Cecilia Vega.

CECILIA VEGA: We have seen one estimate that says it would cost $88 billion to deport a million people a year.

THOMAS HOMAN: I don’t know if that’s accurate or not.

CECILIA VEGA: Is that what American taxpayers should expect?

THOMAS HOMAN: What price do you put on national security? Is it worth it?

CECILIA VEGA: Is there a way to carry out mass deportation without separating families?

THOMAS HOMAN: Of course there is. Families can be deported together.

AMY GOODMAN: “Of course there is.” Take those U.S. babies and deport them with their parents. Lee, you have directly dealt with all sorts of cases like this. What is he talking about?

LEE GELERNT: Yeah, so, I suspect he’s not claiming that they can actually deport the U.S. citizen. That would be flatly illegal, and obviously we would challenge it.

AMY GOODMAN: He said, “Of course.”

LEE GELERNT: Right, but I think what he’s saying — I mean, I don’t know. You’re right. It’s ambiguous. But what he may be saying is we’re going to deport the parents, and then, of course, the children are going to have to go with them. That’s not necessarily true. That means, I think, there’s going to be family separation, because children are going to stay behind with a relative, and so they’re never going to see their parents again potentially, or they’re going to have to move their children to a country that they have no connection to. If he is actually, as maybe that clip is suggesting, thinking he can deport U.S. citizen children, I’ve never heard that. That is flatly illegal, and we would challenge it.

But even if that’s not what he’s talking about, even if he’s just forcing this choice on parents — either bring my child with me to this country or leave them behind — that’s, you know, as egregious as it gets. Every president has had the authority to deport parents with U.S. citizen children, but they’ve all used their discretion not to. So, we don’t separate families unless we’re talking about hardened criminals or national security threats. So we’re really talking about a sea change in American immigration law that I think is ultimately going to be something history looks back on and says, “What have we done?”

AMY GOODMAN: Homan started working under Obama. He then became the interim ICE director under Trump. Five thousand kids, a number you know well, what, 5,500 kids — 

LEE GELERNT: Right, right.

AMY GOODMAN: — separated from their parents. Still a thousand kids are separated from their parents?

LEE GELERNT: So, the amazing thing is that we don’t have all the records. We’re still looking for families. But we estimate that there may be a thousand children, little children, still separated from their parents, that it’s been now six, seven years they haven’t seen their parents. Many of them were separated when they were just babies or toddlers, will not even really remember their parents.

And the other thing I want to stress is that people think, “Well, if they’re reunited, you know, the 4,000 the ACLU has been able to reunite, they’re fine now.” They are suffering so much trauma. I mean, I’m talking to families. A 3-year-old boy who got reunited, he’s standing by the window, looking to see if men are going to come and take him away again; a little boy saying, “Mommy, I don’t want to go to bed, because that’s when they took me away.” So the trauma is unbelievable even for the families who are separated.

You know, this is, I think, the worst thing I have seen in 30 years, the family separation. President Trump is not ruling it out again, and Thomas Homan is trying to whitewash how bad it was, saying that it wasn’t really that bad. It was as bad as anything you can imagine. And now they’re talking about doubling down on separating families.

AMY GOODMAN: So, Trump was forced to reverse his executive order separating children. As you said, that didn’t just come from lawyers like you going to court; it came from millions of people in the streets.

LEE GELERNT: Right.

AMY GOODMAN: It was universal condemnation. You have the Bush-appointed judge calling the separations one of the most shameful chapters in the history of our country. Now, under Obama, he engaged in the largest number of deportations in U.S. history.

LEE GELERNT: Right.

AMY GOODMAN: Then we move into Trump. At this point, since Trump has made very clear what he’s about to do, what can President Biden do preemptively? I mean, a number of people have argued in law journals about pardoning undocumented immigrants preemptively.

LEE GELERNT: Yeah, I think there’s some things he can do. I’m not sure that he has the power to really stop all this in these next two months, and I don’t know whether the administration will do it. We are certainly talking to them about things they can do to make sure that, for example, our settlement, giving rights to these families who were separated, is secure, and some other things. I don’t know that he’s going to be able to pardon all these people.

I think we need to do what we can in these next two months, but really start gearing up for a Trump administration where I think it’s going to be, you know, worse than anything we’ve seen. We’re talking about really horrible anti-immigrant sentiment. And I think that’s one of the things we really need to reverse here, is how bad the anti-immigrant sentiment has gotten. You know, in my 30 years, I have never seen it this bad.

The one thing that I’m hopeful for is that the American public says, “Well, look, we wanted immigration reform, but you’re now starting to cross the line past what we wanted,” the same thing that happened in the first administration, where people said, “Wait. We wanted immigration reform, but we don’t want you taking little babies away.” I think if the public sees the military in the streets or these huge deportation camps or family separation again, I’m hopeful that they will come out and say, “Wait. That’s not what we wanted.”

AMY GOODMAN: I wanted to end with that famous audio track of the children in 2018 that ProPublica obtained, kids who were being held at a Customs and Border Protection facility after being separated from their families, the kids believed to be between the ages of 4 and 10. They can be heard screaming “Mami” and “Papi.” This is an excerpt. It’s incredibly disturbing.

We’re not hearing it right now. We’re going to try to bring it up. Well, I think most people maybe who are tuned into this — unfortunately, we can’t play it at the moment, hearing the crying and the mocking by the guards of this — of the agony. And the reason I also brought it up is ProPublica brought it out — 

LEE GELERNT: Right.

AMY GOODMAN: — a nonprofit news organization. And I wanted to get your comment on a different story, but it is the news from Capitol Hill that the House yesterday voted down a bill that would have allowed incoming President Trump to target nonprofit organizations as political enemies. The bill did get a majority of the vote, but it failed to win the two-thirds majority needed for approval. Can you talk about the significance of this? The ACLU was involved in — 

LEE GELERNT: Yeah.

AMY GOODMAN: — really explaining its dangers.

LEE GELERNT: Yeah, I mean, we were involved with a coalition of groups that’s vehemently opposed to giving that kind of unilateral power to the executive branch to start going after nonprofits. I think it’s a very dangerous situation when you’re starting to give the Treasury Department the ability unilaterally, without any real due process, to start going after nonprofits they disagree with. The bill could come back, so we’re not going to rest. But you’re right, it did get a majority, and so that’s very scary.

AMY GOODMAN: Lee Gelernt, I want to thank you for being with us, deputy director of the ACLU Immigrants’ Rights Project, arguing some of the most high-profile immigration cases during the first Trump administration, including one to stop Trump’s family separation policy.