Sad parallels between the Texas polygamy raid and Guantanamo.

The law, lawyers, and the court.
May 22 2008 6:09 PM

Yearning for Evidence

The sad parallels between the Texas polygamy raid and Guantanamo.

FLDS women at the YFZ Ranch. Click image to expand.
FLDS women at the YFZ Ranch

For those of you who haven't been following the many legal twists and turns of the Texas polygamy story, today's news of a state appellate court ruling that child welfare officials impermissibly seized hundreds of children from a polygamist ranch over three days in April will be shocking. It seemed an open-and-shut case of child abuse, right? Young girls married to much older men, trapped on a compound, bearing babies. The question was not so much why the state removed 465 children from the Fundamentalist Church of Jesus Christ of Latter-day Saints on April 3 but, rather, what the heck took them so long?

Dahlia Lithwick Dahlia Lithwick

Dahlia Lithwick writes about the courts and the law for Slate. Follow her on Twitter.

More recent reporting has shown that the legal apparatus intended to protect abused children in Texas was strained to the breaking point by what turned out to be one of the largest child welfare cases in American history. Earlier today, attorneys for Child Protective Services confirmed that 15 of the 31 "child" mothers placed in foster care were actually adults. One is 27. A 14-year-old removed as a child mother apparently has no children. The state had raided the ranch after a 16-year-old girl called an abuse hotline saying she had been beaten and raped by her 50-year-old husband, but that girl has not been found. And interim custody placements made parental visits difficult, if not impossible. Seized children were not even permitted to hear sect prophet Warren Jeffs' name. The original custody proceedings had been hasty, chaotic, and confused. And estimated court costs were being projected at $2.25 million (before lawyers' fees).

In other words, what was intended as a noble effort suddenly got mired down in tricky factual disputes, cultural and religious clashes, and the practical necessity of warehousing hundreds of human beings for an indefinite period of time. If this sounds a whole lot like the Bush administration's fruitless, costly, and ultimately cruel exercises in mass justice at Guantanamo Bay, that's because the parallels are hard to miss. In both cases, government actors hurled themselves at a problem with the best of intentions. The prospect of averting just one more terror attack, or protecting just one more molested child, has a way of making all those technical legal details seem trivial. But both cases have been plagued by glaring errors of fact and identification: Names and ages and associations were all jumbled up, hearsay and double hearsay piled up in place of real evidence. At the time, it probably seemed like all the who's and where's could eventually be sorted out later. But there were real costs to surging forward ahead of the legal niceties.

The most important parallel between the seizure of the 465 children from the Yearning for Zion Ranch and the warehousing of 775 alleged prisoners at Guantanamo Bay in 2002 is that legal processes are slow and careful and cautious—or, at least, they trend that way over the long haul. That makes them poorly suited to exigent situations in which the rights of hundreds of different individuals are at risk. It also makes them poorly suited for grand political gestures.

In ruling that a lower-court judge exceeded her discretion when she ordered the state to take custody of children from the FLDS, the 3rd Court of Appeals did not find that there were no pregnant girls on the compound or that there was no risk of future abuse of others. In its brief opinion, the court merely found that the mass removal was strong medicine for which the state had provided insufficient justification.

"Removing children from their homes and parents on an emergency basis before fully litigating the issue of whether the parents should continue to have custody of the children is an extreme measure," wrote the court. "It is, unfortunately, sometimes necessary for the protection of the children involved. However, it is a step that the legislature has provided may be taken only when the circumstances indicate a danger to the physical health and welfare of the children, and the need for protection of the children is so urgent that immediate removal of the children from the home is necessary."

The court went on to reject the two central arguments proffered by the state: that evidence of a handful of pregnant minors was enough to prove that all the children were endangered, since they lived under a single "umbrella of belief," and that all the children reside in an abusive "household" because the entire ranch constitutes a single home. Nope, said the court. The raid swept too broadly in seizing prepubescent children who were in no imminent danger. Minors residing in different households faced no immediate physical danger, either. In the end, most of the 400-plus children were grabbed merely because they shared a "pervasive belief system," and in the eyes of the appeals court, that simply doesn't rise to any kind of imminent physical danger. Some of these children may well face harm someday, but that wasn't reason enough to grab all of them on April 3.

You may well be horrified by the prospect of hundreds of children being returned to a compound in which a girl's highest aspiration is to be married, at age 15, to a guy born when Harry Truman was president (a guy whose other wives are old enough to be your grandmother and—in some cases—may even be your grandmother). But what the Texas appeals court found today was that your horror alone, or the horror of the incredibly well-meaning folks at Child Protective Services, does not rise to the legal standard of imminent physical danger to that child. There are formal legal steps to be taken before removing a child from her home and family, and you don't get to cut corners in the interest of grand symbolic gestures, even when the grand symbolic gesture is that incest, abuse, and polygamy have no place in America.

A long history of eliding detailed legal rules and procedures is the reason we've yet to see a single trial end in a conviction at Guantanamo Bay. Let's hope it will not now prove the reason we don't see a single conviction at the Yearning for Zion Ranch.

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