“I was pissed, and still am,” said Ben Johnson, the executive director of the American Immigration Lawyers Association. “I thought that he had a shocking disregard for due process.”
Before long, the Obama administration would face legal challenges, and be forced to stop detaining families indefinitely. A federal judge in Washington ordered the administration in 2015 to stop detaining asylum-seeking Central American mothers and children in order to deter others from their region from coming into the United States.
Under a 1997 consent decree known as the Flores settlement, unaccompanied children could be held in immigration detention for only a short period of time; in 2016, a federal judge ruled that the settlement applied to families as well, effectively requiring that they be released within 20 days. Many were released — some with GPS ankle bracelets to track their movements — and asked to return for a court date sometime in the future.
It was Mr. Bush, who had firsthand experience with the border as governor of Texas and ran for president as a “compassionate conservative,” who initiated the “zero tolerance” approach for illegal immigration on which Mr. Trump’s policy is modeled.
In 2005, he launched Operation Streamline, a program along a stretch of the border in Texas that referred all unlawful entrants for criminal prosecution, imprisoning them and expediting assembly-line-style trials geared toward quickly deporting them. The initiative yielded results and was soon expanded to more border sectors. Back then, however, exceptions were generally made for adults who were traveling with minor children, as well as juveniles and people who were ill.
Mr. Obama’s administration employed the program at the height of the migration crisis as well, although it generally did not treat first-time border crossers as priorities for prosecution, and it detained families together in Immigration and Customs Enforcement custody — administrative, rather than criminal, detention.
Discussions began almost immediately after Mr. Trump took office about vastly expanding Operation Streamline, with almost none of those limitations. Even after Mr. Kelly stopped talking publicly about family separation, the Department of Homeland Security quietly tested the approach last summer in certain areas in Texas.