Of all the lawless acts by the Trump administration in its first two and a half months, none are more frightening than its dumping of human beings who have not had their day in court into an infamous maximum-security prison in El Salvador — and then contending that no federal court has the authority to right these brazen wrongs.
In an astounding brief filed in the Supreme Court on Monday, the solicitor general of the United States argued that even when the government concedes that it has mistakenly deported someone to El Salvador and had him imprisoned there, the federal courts are powerless to do anything about it. The Supreme Court must immediately and emphatically reject this unwarranted claim of unlimited power to deprive people of their liberty without due process.
That would seem to be the obvious response. It was Thomas Jefferson who called the right of habeas corpus to protect against unlawful detention one of the “essential principles of our government.”
Jefferson’s concerns are underscored by the case of Kilmar Armando Abrego Garcia, a lawful resident of the United States, whom the federal government admits it wrongly deported to El Salvador. He has been incarcerated in El Salvador along with some 200 Venezuelan migrants deported there last month by the Trump administration, which says they were involved in criminal and gang activity.
On Friday, Judge Paula Xinis of the United States District Court in Maryland ordered Mr. Abrego Garcia’s return. In a subsequent opinion issued on Sunday, she wrote that “there were no legal grounds whatsoever for his arrest, detention or removal.” His detention, she added, “appears wholly lawless.”
One might think the Trump administration would at least try to correct its grievous mistake by attempting to secure Mr. Abrego Garcia’s release through diplomatic channels. El Salvador’s president, Nayib Bukele, has been called “a great friend of the United States” by Marco Rubio, President Trump’s secretary of state.
But no, the Trump administration does not seem willing to lift a finger to fix the calamity it created for Mr. Abrego Garcia and his family.
Karoline Leavitt, the White House press secretary, responded to Judge Xinis’s order by saying the judge should contact President Bukele because “we are unaware of the judge having jurisdiction or authority over the country of El Salvador.” Her suggestion that a federal judge play the role of a diplomat, rather than provide legal relief to Mr. Abrego Garcia, is unworthy of any presidential administration.
Why hasn’t the Trump administration acted to secure Mr. Abrego Garcia’s release? After all, he is there because of a government screw-up.
The answer can only be that it is using this case to establish a truly chilling proposition: that no one can stop the Trump administration from imprisoning anyone it wants anywhere else in the world. In its brief to the Supreme Court, the administration argues that the only remedy available to a person in custody is a writ of habeas corpus, a court order that a person in custody be brought before the court to determine if the detention is lawful. But the administration also contends that federal courts have no authority to issue such a writ when the person is held in a foreign prison.
There can be no doubt about what this means.
There would be nothing to stop the government from jailing its critics in another country and then claiming, as it is now, that the courts have no jurisdiction to remedy the situation. Armed with this power, the government would know that Immigration and Customs Enforcement or the F.B.I. or any federal law enforcement agency could apprehend anyone, ignore the requirements for due process and ship them to El Salvador or any country that would take them. These individuals would have no legal recourse whatsoever from any American court. The administration could create its own gulags with no more judicial review than existed when Stalin did the same thing in the Soviet Union.
Judge Xinis ordered the government to return Mr. Abrego Garcia by 11:59 p.m. on Monday. The Supreme Court paused that order on Monday to allow the justices to review the matter. But it shouldn’t take much time for the court to conclude that every minute Mr. Abrego Garcia is wrongly incarcerated is a minute too long.
The Supreme Court also handed down a ruling on Monday in a case involving the Trump administration’s mid-March decision to remove noncitizens in the United States who are members of the Venezuelan gang Tren de Aragua without any hearing at all. Five Venezuelans went to court to block the president’s plan, and a Federal District Court judge did just that. But roughly 200 Venezuelans were deported anyway. The administration has argued that, if it needed any authority to take that action beyond the power inherent in the presidency, such authority could be found in the Alien Enemies Act of 1798.
But as Judge Karen Henderson of the U.S. Court of Appeals for the District of Columbia Circuit explained in a March 26 decision concerning the deportation of those roughly 200 Venezuelans, that 1798 law was limited to formally declared wars or imminent military invasions of the United States. Until the Trump administration, the law had been invoked only three times — during the War of 1812, World War I and World War II, when it was used to intern Americans of Japanese ancestry. That action has since been all but universally condemned as a shameful overreaction to the attack on Pearl Harbor.
By invoking the Alien Enemies Act, the government claims it can circumvent the usual procedures for deportation, including due process.
In an unsigned opinion, which the Supreme Court handed down on Monday, a 5-to-4 majority (with Justice Amy Coney Barrett joining the three liberals in the minority) said the Trump administration could continue to deport Venezuelan migrants using the 1798 law. But the court also said migrants fighting deportation in this case could challenge their detentions, though only through habeas corpus petitions, which it said needed to be filed in federal court in Texas, where they were held, not in Washington, D.C., where the government officials who made the decision on their fate are. The court said these individuals should be given notice and a hearing before being deported.
As for those who have already been deported to El Salvador and imprisoned there, it is troubling that the court did not speak to whether they can get any relief from the courts.
The justices did not answer critical questions like: Can the government use the Alien Enemies Act of 1798 in this manner? Did the lower court have the authority to issue the order to stop individuals from being taken to El Salvador? Is there any legal basis for the Trump administration to put individuals in an El Salvador prison? And, crucial to Mr. Abrego Garcia’s pending case, will the court reject the Trump administration’s claim that no federal court can hear a habeas corpus petition of someone held in a foreign country?
Justice Sonia Sotomayor, in a dissent, identified how much is at stake: “The implications of the government’s position” are “that not only noncitizens but also United States citizens could be taken off the streets, forced onto planes and confined to foreign prisons with no opportunity for redress if judicial review is denied unlawfully before removal. History is no stranger to such lawless regimes, but this nation’s system of laws is designed to prevent, not enable, their rise.”
If the government can disappear anyone it wishes, dump him in a Salvadoran dungeon and prevent any court in this country from providing relief, we all should be very, very afraid.
#Opinion #Trumps #Gulag #Archipelago
