Over the weekend, the Trump administration continued to forcefully assert that the courts can’t tell them what to do as it pertains to the imprisonment of Kilmar Abrego Garcia in the CECOT prison in El Salvador. Again, this is a man that the administration itself admits was sent there by mistake.
This story concerns, angers, and, indeed, offends me. Starting with the anger and the offense, I am angry and offended that the government of the United States is behaving with aggressive indifference to the plight of a human being that they mistakenly ripped from his family and tossed in a hell-hole.
Note that part of the reason that they are willing to do is that Abrego Garcia is actually a Salvadoran national (in the US legally, I would note), so that means he really isn’t a real person to the Trump administration. And anyone who thinks that characterization is unfair to the Trump administration, please note that they seem utterly unconcerned to have sentenced a man to life in prison in a place known to abuse human rights. Worse, they are fighting to keep him there because it serves their purposes.
As a human being, he is utterly unimportant to them.
But his imprisonment is very important to their power goals.
The concern (which is too mild a word) is that they are clearly trying to establish a zone of impunity for themselves, wherein they can send whomever they like to CECOT and then not have to answer to anyone.
Note that the administration is fighting to keep him there on a combined logic that a) the courts can’t tell the president what to do in terms of foreign affairs, and b) that the matter for El Salvador to address, not the US, because Abrego Garcia is in their custody, not ours.
Let’s boil this down to a core truth. The administration is arguing that if a person makes it to CECOT, whether guilty or not, whether taken there legally or not (and SCOTUS has deemed Abrego Garcia’s rendition “illegal”), they have to stay there unless the Salvadoran government decides to release them.
They are trying to establish the power to send anyone they want to CECOT and then tell US courts that they have no jurisdiction over them.
From the brief they filed over the weekend:
The federal courts have no authority to direct the Executive Branch to conduct foreign relations in a particular way, or engage with a foreign sovereign in a given manner.
[…]
But as explained, a federal court cannot compel the Executive Branch to engage in any mandated act of diplomacy or incursion upon the sovereignty of another nation.
The brief goes on to claim that discovery cannot be expedited because it requires classified documents and would interfere with diplomacy with the Salvadoran government, including Bukele’s visit to the US.
They conclude the brief as follows:
Defendants remain in compliance with the Supreme Court’s order. Based on the Supreme Court’s Order and respect for both the Executive Branch’s authority over foreign affairs and the sovereignty of El Salvador, the Court should take no further action in response to Plaintiffs’ motion.
So, they are asserting the laughable notion that defying the lower court’s order is compliance with SCOTUS while ultimately throwing up barriers in the form of foreign affairs and Salvadoran sovereignty.
There is a definite tone of defiantly talking down to the court from a position of superiority. I recommend people read the whole thing.
I would note that what we are currently seeing is the offshoring (oh, the irony!) of domestic policy. In this case, the policy is the imprisonment of criminals (except, of course, they are only alleged criminals, given their lack of even show trials). The implications that any judicial intrusion into the actions of the executive branch is invalid if the action is done via contract with a foreign government are massive.
By this logic, any policy action done offshore is foreign policy and cannot be touched by the courts. If the IRS’s tax collection duties were done via contract with a North Korean firm and they took your entire bank account and not just what you owed in taxes, oops!
This is a frightening, chilling, and grotesque. It is an attempt to utterly subvert the rule of law and to destroy due process for whomever the Trump administration wishes to seize and send to CECOT.
Let me be as plain as possible: they are looking for an excuse to leave an innocent man in a hellish prison as a power flex. And, worse, they are setting the stage to do it again, and on purpose next time.
Please tell me what would stop the administration from seizing an American citizen and flying them to El Salvador and, once imprisoned, claiming that the courts have no jurisdiction over that person.
Note that they have already demonstrated that they will ignore a court order to turn a plane around en route to El Salvador. They clearly believe that if they can get a person outside of the US that they can do whatever they want to that person.
This is about expanding their power.
If they win this and then send an American citizen to CECOT, then that person, guilty or innocent, will be stuck there possibly for the rest of their lives because the administration will have demonstrated that such an action is within their foreign policy powers and that a person once deposited in CECOT is outside any influence whatsoever of the US courts system.
This is all in the name of the rule of law and is fueled by the ongoing othering of migrants and the stoking of unnecessary fears in the broader population.
