THE LIMITS OF MORAL CONDUCT, OR “I WAS JUST FOLLOWING ORDERS”

Abstract: The essay critically examines the recent surge in aggressive immigration enforcement in the United States, highlighting how non-citizens-including those with U.S. citizen children-are being detained and deported without access to legal counsel or due process. It draws sharp moral and historical parallels between these actions and the mass roundups of minorities in Nazi Germany, questioning the ethical justifications used by officials who participate in such operations. The text further challenges the notion that following orders absolves responsibility for inhumane conduct, arguing instead that those who carry out or support these policies share in the moral burden. The piece also underscores the broader social and economic consequences of these policies, noting the contributions of undocumented immigrants to the economy and the systemic denial of social services to this population. Ultimately, the essay warns of the dangers of unchecked state power and the erosion of democratic values when government agencies prioritize enforcement over compassion and justice.

Did I miss an important message? Isn’t this still America? Non-citizens living in the U.S. for years along with their U.S. born and U.S. citizen children under a program established by the Biden administration for processing amnesty requests are being snatched out of the offices where they are reporting to their amnesty parole officers and deported without access to telephones or their attorneys, along with their U.S. citizen children. (I’ll discuss U.S. immigration law in detail another time, but do bear in mind it is perfectly legal to request asylum at the U.S. border and follow the reporting rules while one awaits determination of the application.) Whoops, one actual citizen and several certified legal residents included in the sweep. No chance to call their lawyers, get the fathers or other responsible adult to take custody of the children, just grabbed and summarily deported -- no court appearance, no appeal, no mercy.

One commentator has observed that ICE is quickly running out of violent criminals to deport and must resort to compliant local police and collaborating private citizens to round up the meek and mild immigrants to pursue the myth of brutally cleansing America. Obviously the law-abiding gainfully employed undocumented are the easy pickings. Consider that undocumented immigrants paid almost $100 billion in state and federal taxes according to a 2022 estimate. Yet they are ineligible to receive food stamps, essentially excluded from Medicaid, and denied federal health insurance subsidies or SSI benefits or temporary assistance for needy families (TANF), and they cannot claim earned income or child tax credits.

According to West Hawaii Today recently, “[t]housands of agents [are] diverted to Trump immigration crackdown”; federal agents usually tasked with tracking down child abusers, money launderers, drug trafficking, tax frauds, are now spying on small businesses like restaurants to see if they can spot the working undocumented, round them up, and ship them to disgusting places without so much as the benefit of an appearance before a judge. Our government is utilizing a slew of privately operated concentration camps whose profit comes from inhumane treatment of the incarcerated with little regard for the niceties of due process or legal rights. (From Wired Magazine, May 9: “Louisiana’s nine immigration detention centers have faced allegations of human rights abuses in recent years, from physical and sexual assaults to medical neglect and bug-infested food.”) And an imperial president finds this alternately fine or funny.

Little Marco Rubio, before he had his own Trump-worm brain implant, characterized deportations to Venezuela as “effectively a very real death sentence.” Plainly substituting El Salvadorian or Guatamalan prisons is no better. In today’s world, however, Rubio not only happily dispatches people to such vile places but does so with no semblance of due process for people never convicted of a crime and guilty of nothing more than a misdemeanor -- or an ambiguous tattoo! So insofar as presidential power, we have now the makings of a lawless society where lawful and unlawful non-citizen residents alike can be rounded up and shipped off to possible disaster, along with the occasional citizen caught in the net by “mistake”, with no legal recourse and no real threat of imminent punishment to those who cooperate with this travesty. Trump supports this, arguing that it would take hundreds of years if we waste time letting these people contact lawyers and have a day in court as commanded by our constitution and laws.

I have lately been giving thought to the consequences of a government that operates in contravention of constitution and law, and like many commentators I’ve also been pondering obvious historical analogs. We’re witnessing an unparalleled cleansing of the public sector, sweeping away en masse any who might be critical of today’s Teflon Don. (Yes, I know that slippery pejorative was assigned originally to John Gotti, but our acting president wears it so well.) We’re seeing random deportations of MAGA’s declared undesirables. Domestically, agencies which feed the hungry or increase availability of medical services or expand education for the poor are summarily dismantled. The boss orders the Injustice Department to investigate Swing Left in a brazen attempt to handicap small-donor funding for Democrats. His tariffs will soon to kick in, and by all indications will devastate a large part of the U.S. economy while the boss sits back laughing at the rest of us who will bear the economic burden. Mass deportation becomes distraction and cover for these perils. All Donald needs to complete the picture is Nero’s fiddle while the nation burns.

Shift gears with me, if you will. In the 1930s it wasn’t just avowed racist Nazis who were involved in rounding up Jews, Romani (derisively called gypsies) and other minorities and shipping them off the concentration camps. Between 1938 and 1941 thousands of Jews were transported to Dachau, Buchenwald and Schsenhausen, so at least for those three years and possibly more, officers operating under federal orders were rounding up people based upon their ethnicity and subjecting them to horrific treatment, even before the mass exterminations which didn’t start until 1941.

I raise this somber note because I’m having trouble making a moral distinction between the German, Austrian, or Italian drones who rounded up Jews and others in the ‘30s and today’s morally compromised local and federal employees, whether DHS or Texas police or undercover ICE immigration officers who bust into a work place or home to grab up terrified women and children (mostly U.S. citizen children, mind you) and rush them off to distant immigration gulags and hasty deportation. What goes through their minds as these enforcers like police in upstate New York staging traffic stops targeting Hispanics and, if undocumented, turning them directly over to Border Patrol, knowing they’ll be shipped off to border camps or soon-to-be-resurrected concentration camp on the border, or worse -- to put them in chains aboard military aircraft to be deposited in potentially hostile Central or South American countries, thence to dismal lives in countries they may never have known and subject to crime, terror, poverty, illness and possible death. Guatemala, for example, has one of the highest rates of violent crime in the world but has kindly agreed to accept stateless American deportees. We’ve shipped migrants from Afghanistan, China, Pakistan and Uzbekistan to Panama because their heritage nations wouldn’t accept such deportations! Panama is then sending them to Darién Gap, a dangerous jungle in southern Panama, perhaps some day repatriating them “by air or sea to their countries of origin” -- assuming those countries are amenable. Is this not the stuff of Nazi Germany?

Now I’m not questioning how this is happening with evil madmen running the program. I’m puzzled that any employee of a democratic government cooperates in such a travesty. It requires a particularly mean spirited state of mind for a government officer to rip parents from children and dispatch them to the documented perils that await them. This cannot be what our “system of laws” was designed to accomplish. We have known since World War II that “just following orders” is no defense. American law provides that a soldier must disobey an illegal order. Should we not apply the same standard to law enforcement.

I’m suggesting anyone who would summarily put a crying child (and hysterical mother) on an airplane to some evil place without even trying to contact the other parent or a responsible adult or allowing a phone call to a lawyer should be prosecuted and perhaps even jailed for such inhumane and vicious conduct. I believe strongly that if the United States was a signatory to the treaty creating the International Court of Justice, many of these bullies would face charges of crimes against humanity and long-term imprisonment. Arguably the burden should fall upon each of these agents of evil to justify or face a possible jail sentence. Please tell me why I’m wrong.

I am by no means a moral philosopher by experience or education, but I have come to believe that officials who pretend to act under color of law, whether elected or self-appointed rulers or underling ICE, DHS, FBI or local agents who cooperate to order and carry out such a moral travesty should face severe sanctions. You will note news reports that many federal employees are resigning rather than executing the Musk/Trump illegal and morally repugnant directives. Consider these as ethical and moral turning points: The Gestapo abetted a genocidal attempt to cleans Jews and other minorities out of the country, but we know that many promoting summary mass deportation of undocs in the U.S. today are similarly motivated more by their race and color than by their legally minor legal misdemeanors in entering the country or thereafter. If the motivation is the same, the ethical transgression should be viewed similarly.

These are profound ethical issues of state power, dehumanization and pain to a vulnerable population. And nitpicking the intent or scale doesn’t resolve the issue. To me, the mad rush to destroy families under the guise of a “secure” border or combating antisemitism will turn out to be a huge moral stain on the United States and is creating a sizeable population of law enforcement officers and supporters who will be morally compromised for life. Police agencies begin to function like the fascist paramilitary forces of Romania, Hungary or Germany: ICE starts to look like the SA or SS. There is a point when cooperation becomes collaboration, and collaboration becomes complicity, Go along, get along, or Vichy France, or concentration camp guard -- it’s a damned slippery slope, and I for one would prefer not to live next door to such morally bankrupt people.

Arne Werchick, after fifty years as a litigation attorney with emphasis on medical-legal issues, pro tem judge, law writer and lecturer, former Presiding Arbitrator of the State Bar of California, and past president of the California Trial Lawyers Association, moved to Hawaii and lives with his wife Ruth and their rescue dog Topaz. He can be contacted at liberalmind@werchick.com.