The Trump administration’s treatment of migrant children detained at the border — specifically, conditions that make it impossible for children to sleep — is considered inhumane under international military law.

A U.S. Justice Department attorney argued in federal court on Tuesday that the government does not need to provide migrant children in custody with soap, toothbrushes, or beds to fulfill the “safe and sanitary” conditions requirement laid out in a consent decree. The practice of sleep deprivation is barred when interrogating prisoners of war, according to international military law.

In viral videos of the court hearing, the three-judge Ninth Circuit Court of Appeals panel was left flabbergasted after Justice Department Attorney Sarah Fabian defended the Trump administration’s practice of forcing children to sleep in cold temperatures on cement floors with no bed, 24-hours of artificial light, and only an aluminum blanket to keep them warm.

“But you’re really going to stand up and tell us that being able to sleep is not a question of safe and sanitary conditions?” asked U.S. Circuit Court Judge Marsha Berzon. “You can’t be safe and sanitary or safe as a human being if you can’t sleep.”


Fabian argued that sleep was not mentioned in a 1997 consent decree called the Flores Settlement that forced the government to provide basic human rights for migrant children, such as being placed in safe and sanitary conditions.

Judge William Fletcher told Fabian that it was “obvious enough” that “putting people into a crowded room to sleep on a concrete floor with an aluminum foil blanket on top of them … doesn’t comply with the agreement … No one would argue that this is safe and sanitary.”

A Trump official tried to argue that detained children don’t need soap, toothbrushes, or beds to be ‘safe and sanitary’ while in Border Patrol custody pic.twitter.com/sRFPZsDbwy — NowThis (@nowthisnews) June 21, 2019

While the Trump administration tries to argue that sleep is not essential for being safe and sanitary, Canadian Military law suggests that it is actually an inhumane and illegal interrogation technique. A Canadian Armed Forces interrogation manual cites international humanitarian laws when outlining interrogation techniques that are considered “oppressive.”


The manual states the use of “physical force” and “acts of violence” to compel a detainee to cooperate is prohibited by law. So are “Interrogation tactics that aim to persuade or manipulate a detainee require close consideration. Whether stress, disorientation, and duress techniques (i.e. sleep deprivation, hooding, stress position) constitute some form of physical or mental coercion.”

According to the manual, the United Nations General Assembly’s International Covenant on Civil and Political Rights also considers sleep deprivation as a form of “inhumane treatment” that causes mental and physical suffering and deprives a person “of their liberty” and “dignity.”

The proscribed conduct outlined in Article 7 of the ICCPR must be read in concert with Article 10 which enshrines the following positive obligation: “ All persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person. ”155 In this respect, the HRC has explained that Article 10 imposes positive obligations on States parties with respect to persons who are particularly vulnerable because they have been deprived of their liberty. Coercive interrogation techniques including death threats156, solitary confinement157, sleep deprivation, hooding, and shaking, used alone or in combination constitute a violation of Article 7.