Last week, in the midst of the latest dispiriting reports about the “jail-like” conditions at the border, where children are being held in dirty, dangerous conditions without basic amenities far longer than is legally or morally permissible, America was introduced to Sarah Fabian, the senior attorney in the Department of Justice’s Office of Immigration Litigation. Fabian emerged from bureaucratic anonymity when this clip, in which she argues on behalf of the Trump administration that the standard of “safe and sanitary” conditions for detained children doesn’t include a bed, soap, or a toothbrush:
In the aftermath, she was named and shamed, as the saying goes, by everyone from Soledad O’Brien to Shaun King to Lawrence O’Donnell, with plenty in between. It’s safe to say that Fabian’s days of living an anonymous life have come to an end.
The Atlantic has a good story on the context, and while it does Fabian no favors, it does show why she was making the argument to the Ninth Circuit Court of Appeals judges. To over-simplify: In 2017, a District Court judge ordered Customs and Border Protection to appoint a monitor to ensure compliance with a 1997 agreement that mandated “safe and sanitary” conditions, and which ICE was found to be violating during both the Obama and Trump administrations because of, among other things, cold temperatures and not enough food and water.
For technical reasons, the government couldn’t appeal, and the only way they could dodge the monitor injunction was to get an appeals court to agree that the district judge had altered the 1997 agreement. Their idea of a good loophole was that because the district judge mentioned clothes and toothbrushes and showers and beds, she was somehow changing the definition of “safe and sanitary.” That’s why Sarah Fabian was making that bizarre argument in front of the appeals court, it’s why the judges were so disgusted with her, and it’s why large swaths of America now think she’s a vile apparatchik.
This is actually not the first I’d heard of Sarah Fabian, who has been arguing immigration cases for the Trump DoJ for some time, and who, as the Atlantic noted, actually argued in 2015, under Obama, that ICE has the right to put young children in solitary confinement. I missed that one, but I came across her name a year ago when she argued for family separation in a California District Court. I found some of her prevaricating statements in that case so enraging that I made note. On family separations, and whether there was a “policy” governing the practice:
I would say, your honor, there is no—there is not such a policy. I think the statements that are referred to in the pleadings, that has been the consistent position of the agency. Whether there is a practice of separation, there is not.
On whether immigrant families have a right to not be forcefully separated:
Well, I would have to sort of dispute the premise. I think there is not a constitutional right to family unity in the face of otherwise lawful detention.
We know now that there was, in fact, a specific child separation policy unique to the Trump administration, and we know that it was designed purposefully to deter undocumented immigrants from crossing the border—in other words, the systematic cruelty we witnessed was initiated, in that case, because it was cruel, and because they thought that cruelty would function as a deterrent. Did Fabian know this, and lie? Or did she not know, and get stuck in the position of defending a position she might not endorse personally?
And there’s the rub: as horrible as her argument are and have been, it’s also easy to say that Sarah Fabian isn’t the problem—the worst immigration policies under Trump were designed by Jeff Sessions and Stephen Miller, among others, and as we see from Fabian’s own history, the inhumane conditions at the border and mass deportations and ICE cruelty existed and even thrived in the Obama administration, even if the outrageous child separation policy was a product of Trump. The problem doesn’t begin or end with Fabian, and if she wasn’t doing the job that she’s doing, somebody else absolutely would. It’s tempting to absolve her of all blame.
But it leads to a bigger question: To what extent should we be held responsible for the systems we actively or passively endorse? There’s an Internet-famous cartoon called “Mister Gotcha” by Matt Bors, and in the last panel, a suffering medieval peasant burdened by a load of sticks says “we should improve society somewhat.” In response, a man pops out of a nearby well and, with a smug grin, says, “yet you participate in society. Curious!” before adding, “I am very intelligent.”
The point here—and it’s a good one—is that critiquing people who exist under oppressive systems is cheap, because existence itself is hard and there are often no other options. And yet, while you or I may shop at Amazon, and we pay taxes that fund organizations like ICE, and we exist in an American system that sometimes disgusts us, some of us go a bit further. Some of us are active participants in the most oppressive, most disagreeable, and most morally reprehensible aspects of this society.
Sarah Fabian is one of those people.
I don’t know much about her, but I did take some notes out of curiosity in May 2018 when I read her previous case, and the facts I wrote down seem to be backed up by a Heavy.com profile that came out recently before Fabian deleted her LinkedIn profile. Here’s what I wrote, in shorthand, at the time:
Graduated from Amherst in 1998 with a degree in Religious Studies. Earned her J.D. from Georgetown Law in 2004. Passed the bar in D.C. that year, and in Massachusetts in 2007. Worked recently for a company called “Kirkland & Ellis.”
Heavy notes that William Barr also worked at Kirkland & Ellis, and one of Fabian’s main cases there was to defend a lead company accused of poisoning children.
The system, of course, has a way of sucking you in, and it’s difficult to know anything about Fabian’s inner morality based on the cases she’s worked, up to and including this one. Many will disagree with that statement, but it’s true: We don’t know what’s happening in her heart, whether her career has made her cold and callous or whether she lies awake at night pondering questions of the soul.
What we do know is that she keeps working. And while she’s not the architect of the policies she defends, she is a critical cog in maintaining them. She’s the metaphorical “good German”—the kind of person you need in the broader service of cruel bureaucracy.
There are many ways to push for reform in this country. The outrage about family separation eventually led Trump to reverse the “zero tolerance” policy, at least publicly (separation continues to happen on a reduced scale). The latest spate of outrage, spurred on by investigative journalism, has already led to hundreds of children being transferred out of appalling conditions. Public action works, and journalism works.
But maybe it’s time to consider the Sarah Fabians of the world, too. Maybe it’s time to consider that no, it’s not okay for someone like that to “just do her job” when that job contributes directly to moral atrocities. Maybe if people like Sarah Fabian are shamed—and boy, has she been shamed—it will make it less likely for others to take the job, and if they do, maybe they’ll be more likely to push for reform so they don’t suffer under the same harsh spotlight. Counting on the personal decency of the men and women who occupy these fraught jobs is clearly not enough, and if your heart is broken by what you see happening to children at the border, maybe it’s time to make people like Sarah Fabian pay the price for their complicity.