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.
Stephen Miller's been working on that for the latest years. There was a NYT profile back in january explaining how he's been working on Trump's executive orders, looking for the legal strategies that would allow them to circumvent counterpowers and vetting them with a team of lawyers from outside the Justice departement so the contents wouldn't get leaked. As with Project 2025, they drew lessons from Trump's first term. Here's the article, it's really interesting.
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.
As you say, the court orders have already been violated and it looks like we've just moved on. I guess judges are too wary to trigger a constitutional crisis by attempting to jail whomever was involved in ignoring the court orders, from the plane pilots upwards the chain of command. As long as the fig leaf of explanation and pinky promise of a better behavior is offered, salami slicing of the rule of law will continue.
My personal position, which is definitely quite kooky at the moment but the history books might have a more favorable view, is that the Constitution was suspended when the Supremes declared that the 14th amendment needs an enabling legislation, and we've been living in the extralegal world ever since.
Thanks for calling attention to this scariest of Trump regime abuses to date. I agree, if the govt can disappear people to a foreign torture prison in defiance of the courts, then the game is up. Constitutional government has been toppled, not even with a whimper.
I’m no legal expert but the admission in court of their error seems almost menacing, like they mean to emphasize their human rights violation committed in violation of the court’s order is irreversible and hideous.
This same issue has been haunting me: I thought the whole point of rights is that they are innate and inalienable so that everyone has them, and the point of the Constitution is to enshrine those rights in law. If only U.S. citizens have rights, then they aren't really rights at all; they are privileges and could be revoked at any time, whether you are a citizen or not. We all have rights, or none of us do.
I think that this post is a bit too court-centric. What courts say they will do is very different than what actually happens on the ground. First, the state has a lot of extra-legal power. Cops have an enormous amount of discretion within the limits of the law, and their exercise of discretion determines peoples' day-to-day lives. Second, many judicial rights are unaccompanied by a meaningful remedy. Think of Brown v. Board, and then think of today's strong de facto school segregation. Even when the courts try, they often fail: prison conditions litigation. Third, courts are very deferential toward the state in defining and applying rights. Judge Posner spent the last few years of his life fighting for courts to take prisoner pro se litigation seriously. He failed.
This doesn't always work to the detriment of freedom. Nobody has a right to create or consume porn, but the prosecutors and courts seldom interfere. Marijuana is still a federal crime, but ….
The way they’re using the Alien Enemies Act seems to be the m.o they’ve settled on - simply redefine a social or policy issue (‘undocumented immigrants’) to fit an existing wartime emergency law (‘foreign invasion’) which then authorizes national security measures. Miller’s repeated use of “invaders” to describe immigrants is more than just the usual fascist smear - he’s aligning his language with military “necessity” and with a specific legal argument. I expect this same tactic to be used with the supposed “problems” of Greenland and Canada.
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.
Stephen Miller's been working on that for the latest years. There was a NYT profile back in january explaining how he's been working on Trump's executive orders, looking for the legal strategies that would allow them to circumvent counterpowers and vetting them with a team of lawyers from outside the Justice departement so the contents wouldn't get leaked. As with Project 2025, they drew lessons from Trump's first term. Here's the article, it's really interesting.
https://www.nytimes.com/2025/01/16/us/politics/stephen-miller-trump.html
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.
As you say, the court orders have already been violated and it looks like we've just moved on. I guess judges are too wary to trigger a constitutional crisis by attempting to jail whomever was involved in ignoring the court orders, from the plane pilots upwards the chain of command. As long as the fig leaf of explanation and pinky promise of a better behavior is offered, salami slicing of the rule of law will continue.
My personal position, which is definitely quite kooky at the moment but the history books might have a more favorable view, is that the Constitution was suspended when the Supremes declared that the 14th amendment needs an enabling legislation, and we've been living in the extralegal world ever since.
Its been touch n go ever since Citizens United imo. That was the first sham ruling as far as I can tell, and has enabled the one’s since.
I agree the line was probably crossed with that 14th amendment ruling and not the immunity ruling.
Thanks for calling attention to this scariest of Trump regime abuses to date. I agree, if the govt can disappear people to a foreign torture prison in defiance of the courts, then the game is up. Constitutional government has been toppled, not even with a whimper.
I’m no legal expert but the admission in court of their error seems almost menacing, like they mean to emphasize their human rights violation committed in violation of the court’s order is irreversible and hideous.
This same issue has been haunting me: I thought the whole point of rights is that they are innate and inalienable so that everyone has them, and the point of the Constitution is to enshrine those rights in law. If only U.S. citizens have rights, then they aren't really rights at all; they are privileges and could be revoked at any time, whether you are a citizen or not. We all have rights, or none of us do.
I think that this post is a bit too court-centric. What courts say they will do is very different than what actually happens on the ground. First, the state has a lot of extra-legal power. Cops have an enormous amount of discretion within the limits of the law, and their exercise of discretion determines peoples' day-to-day lives. Second, many judicial rights are unaccompanied by a meaningful remedy. Think of Brown v. Board, and then think of today's strong de facto school segregation. Even when the courts try, they often fail: prison conditions litigation. Third, courts are very deferential toward the state in defining and applying rights. Judge Posner spent the last few years of his life fighting for courts to take prisoner pro se litigation seriously. He failed.
This doesn't always work to the detriment of freedom. Nobody has a right to create or consume porn, but the prosecutors and courts seldom interfere. Marijuana is still a federal crime, but ….
Rights are secondary; norms are primary.
I think that's a series of valid and interesting points that don't have much to do with the issue being discussed here.
How close are we to something like "Nacht und Nebel"? Is this comparable?
The way they’re using the Alien Enemies Act seems to be the m.o they’ve settled on - simply redefine a social or policy issue (‘undocumented immigrants’) to fit an existing wartime emergency law (‘foreign invasion’) which then authorizes national security measures. Miller’s repeated use of “invaders” to describe immigrants is more than just the usual fascist smear - he’s aligning his language with military “necessity” and with a specific legal argument. I expect this same tactic to be used with the supposed “problems” of Greenland and Canada.
It's kinda like reverse extraordinary rendition.
Begun under Clinton, lest we forget
And speaking of lower court efforts pending the Roberts court endorsing Trump’s lawlessness, this which is already playing out:
https://balkin.blogspot.com/2025/03/the-appellate-void.html?m=1
Typo on Alien Enemies Act. It was 1798, not 1789. (I’m sure you know better.)
Other examples of not being safe. https://newrepublic.com/article/192831/tourists-detained-ice-cbp-trump-abusive-immigration-authorities. and https://www.theguardian.com/us-news/2025/mar/19/canadian-detained-us-immigration-jasmine-mooney