A Justice Department attorney this week argued in court that the federal government should not be required to provide soap, toothbrushes or even beds to detained children apprehended at the U.S.-Mexico border.

Government lawyer Sarah Fabian argued Tuesday before the U.S. Court of Appeals for the 9th Circuit that forcing children to sleep on cold concrete floors in cells is both “safe and sanitary.”

Attorneys for the detained children are arguing that the government is not following the requirements of a 1997 settlement agreement in the case of Jenny Flores that established a framework for the humane treatment and release of detained migrant minors. Children must be housed in “safe and sanitary conditions” under the settlement. A district judge added the specific requirements that children be provided with soap and toothbrushes.

Members of the three-judge appellate panel appeared stunned by Fabian’s arguments, Courthouse News Service reported.

“Are you arguing seriously that you do not read the agreement as requiring you to do something 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?” asked Judge William Fletcher. “I find it inconceivable that the government would say that that is safe and sanitary.”

Judge Marsha Berzon asked Fabian: “You’re really going to stand up and tell us that being able to sleep isn’t a question of ‘safe and sanitary’ conditions?... You can’t be sanitary or safe as a human being if you can’t sleep.” (See the video below at 24:30.)

Fabian was challenging an order by U.S. District Judge Gee in Los Angeles, who appointed an independent monitor to ensure that the federal government complies with the Flores settlement and specifically required such items as soap and toothbrushes. Fabian argued that such requirements are not detailed in the original settlement. (In the video at 26:40.)

“One has to assume ... parties couldn’t reach agreement on how to enumerate that or it was left to the agencies to determine,” Fabian argued.

Fletcher responded: “Or it was relatively obvious — at least obvious enough so that if you’re putting people into a crowded room to sleep on a concrete floor with an aluminum foil blanket on top of them, that doesn’t comply with the agreement.”

He added: “It may be they don’t get super-thread-count Egyptian linen, I get that. ... I understand at some outer boundary, there may be some definitional difficulty. But no one would argue that this [current situation] is safe and sanitary.”

As for soap, it “wasn’t perfumed soap, it was soap. That sounds like it’s part of ‘safe and sanitary,’” he added. “Are you disagreeing with that?”

Judge A. Wallace Tashima said that such items are “within everybody’s common understanding that if you don’t have a toothbrush, if you don’t have soap, if you don’t have a blanket, it’s not safe and sanitary. Wouldn’t everybody agree to that?” he asked. “Do you agree to that?”

Fabian, who appeared to stumble throughout much of her presentation, responded: “Well ... maybe.”

The attorney for the children argued that, although soap and toothbrushes weren’t specifically mentioned in the 1997 settlement, they must be provided because they would be “reasonably interpreted” as part of the agreement under contract law.

The “first thing you do is honor the plain meaning” of words like “safe and sanitary,” said Peter Schey. “Today we have a situation where once a month a child is dying in custody. Certainly the Border Patrol facilities are secure, but they’re not safe and they’re not sanitary.”

It’s not clear when the 9th Circuit, based in San Francisco, will issue a decision in the case.

The federal government earlier this month stopped English language classes, recreational programs like soccer games and legal aid for locked-up children.

Fabian’s argument before the 9th Circuit can be seen here: