No Person Shall Be Deprived...
"Except If We Say So"
On Monday, the Trump administration admitted that it had deported a Maryland man named Kilmar Abrego Garcia “because of an administrative error” to El Salvador where he was thrown in the nightmarish CECOT prison. In 2019, Abrego Garcia received protected legal status from an immigration judge who determined he could be tortured if he was returned to his home country. He was denounced by a secret informant as a member of MS-13, a characterization Abrego Garcia denies and local police in Maryland did not believe. But, of course, the entire regime is lying and claiming that Abrego Garcia was a “convicted” gang member. What they are really saying is, “We can declare people unprotected by the law and deport them by fiat.”
But now that Abrego Garcia is no longer in U.S. custody, the government says there’s nothing they can do — and technically they are right: A petition for habeas corpus, a Constitutionally-defined process where the imprisoning jurisdiction to produce justification of detention, only applies to someone who is held under U.S. authority. This is where I strongly suspect that this was not an “error” as such, but part of a deliberate policy experiment. What this regime is attempting to do is to find a way around habeas corpus protections: You spirit someone across the border quickly before their lawyer can file a petition, dump them somewhere—say, a concentration camp run by a friendly client state—and then say, “oopsie, no more habeas for them.”
They already have done this with the notorious “Tren de Aragua” flights that used the 1798 Alien Enemies Act. The government was ordered to block the flights and turn them around. It did not comply with the judge’s order, although it stopped future flights. When the DC Circuit Court questioned the government’s lawyers about the due process rights of the deportees, the government insisted that a habeas corpus petition was the correct remedy but had no answer about what to do about people who were not given the time to even file one.
In oral arguments, Justice Millett asked “My question is, if we were to grant the relief you request, would the government consider it necessary to allow time to file a habeas petition before removing people? … [Is it] the government’s position that it could immediately resume mass removals of the five named Plaintiffs and the class members, immediately?”And this was the government’s response: “Your Honor, we take the position that the [Alien Enemies Act] does not require notice [and] the government believes there would not be a limitation [on removal.]” Here’s what they are saying: “Habeas corpus might technically apply, but we don’t need to give anybody the chance to petition.” So, in practice, then habeas corpus does not apply. They are trying to suspend it without suspending it.
Let’s be clear: without due process rights, anybody — yes, that means you — could be swept up in a raid and dumped in some hellhole and then the government could say, “Well, too late.” Citizenship is no protection if there’s not even a process in place to determine one’s legal status. One need not have any sentimental feelings about the victims of these violations: it doesn’t matter if they are good people, bad people, or if you just don’t like the looks of them; they are entitled to Constitutional rights. Insisting on the rights of others is entirely self-interested because, in principle, if it can happen to them, it can happen to you. That’s the whole idea of rights: they apply to everybody. What we are deciding now is if we still have a Constitution in this country.
Max Read had a Gawker/Intercept guy on his podcast recently, and they discussed the Khalil kidnapping. The guest was being epic, and talking about how he didn't care about the procedural violations when the substantive conduct was bad (and indeed, complaining about process was bad, because it took the focus away from substantively bad decisions).
As you say here, though, they're fundamentally linked. It's not just abstract rule-of-law concerns. The procedural violations are what allow them to interfere with substantive rights. The two won't always dovetail, but here they do.
They're employing a particular, and very concerning, tactic here and with DOGE (I recommend the recent ALAB episode on that), which is to act in blatantly legal ways but work the process such that it's not practically justiciable even if under court supervision. There's a something of a tech/hacker ethos to it, like Uber running unlicensed cabs. In an administration filled with dumbies, they have some canny, amoral operators working on this stuff.
There is the harm done to those people deprived of any due process. There is the implied harm done to all of the rest of us citizens whose rights to due process have been extremely fragile if not moot.
And then there is another harm––not as profound, but I'm feeling it keenly. It's the shame of being part of a polity that does grotesque, horrific shit like this. It's my country that makes obscene videos like the Noem stunt in El Salvador and sends it around the world. Her face is our face.
I was never 100% persuaded by Richard Rorty's argument that the left needed to cultivate affirmative national narratives in addition to critiques. But I think he was right that nations, like individuals, require a base-line of self-respect if they are going to have the collective wherewithal to make progressive change.
Even for those of us who oppose and resist it, this is a shared degradation. It feels bitter and humiliating.