April, with the “sweet showers” Chaucer told about, is winding down. But April, as T.S. Eliot wrote, can be “the cruelest month,” as it has been for Kilmar Abrego Garcia and other migrants who have been illegally rendered by the Trump administration to El Salvador — 90 percent of whom, unlike the incumbent president, have no U.S. criminal record and their alleged ties to gangs are not at all evident.
Abrego Garcia was illegally deported in March to the infamous CECOT prison in his home country of El Salvador, flouting a 2019 U.S. court order barring his deportation to that country due to fear of persecution.
The Holocaust Encyclopedia defines a concentration camp as a place of imprisonment “of unlimited duration ... not linked to a specific act, and not subject to any judicial review.” CECOT prison fits the bill neatly.
The Supreme Court has unanimously ordered the Trump administration to “facilitate” Abrego Garcia’s release from custody so that he can have a hearing. But the administration has so far defied the court, hiding behind the autocratic government of El Salvador, which it claims is unwilling to send him back. I expect that a phone call from the White House would return Abrego Garcia to his family, who just happen to be American citizens. But Trump has vowed never to do even that much.
In El Salvador, authorities fobbed off Sen. Chris Van Hollen (D-Md.) who travelled there for a meeting or a phone call with Abrego Garcia, who is Van Hollen’s constituent. Van Hollen reported that when he asked Salvadoran officials why El Salvador was continuing to imprison Abrego Garcia when it had no evidence he was a gang member, they answered that the Trump administration is paying millions to hold him. I wonder what Elon Musk and his Department of Government Efficiency have to say about that.
After cooling his heels for 24 hours, the meeting occurred. Van Hollen reported that Abrego Garcia was “traumatized” with fear over his imprisonment at CECOT. The good news is that he had been transferred to another prison, and that he is alive and apparently well.
The courts have been responsive to Abrego Garcia’s predicament. The Supreme Court held 9-0 that the administration must take steps to “facilitate” Abrego Garcia’s “release from custody in El Salvador and to ensure that his case is handled as it would have been had he not been improperly sent to El Salvador.”
Trump appealed, demanding clarification. In a sizzling opinion, conservative Judge J. Harvie Wilkinson, joined by two other judges on the Fourth Circuit Court of Appeals, rebuffed the administration’s request to stay a lower court’s attempt to implement the Supreme Court’s guidance in the case, warning Trump not to reduce the rule of law to lawlessness.
“‘Facilitate’ is an active verb,” Wilkinson wrote. The Supreme Court’s instruction that lower courts respect the executive’s primacy in foreign affairs, he said, does not “allow the government to do essentially nothing.”
Wilkinson was referring to the administration’s attempt to wiggle around the meaning of “facilitate.” Attorney General Pam Bondi argues that all the government must do is “‘remove any domestic barriers to [Abrego Garcia’s] return.’” Not so, wrote Wilkinson, in light of the Supreme Court’s command.
“Perhaps” Abrego Garcia is a gang member, Wilkinson wrote, “but perhaps not. Regardless, he is still entitled to due process,” the sacred right to notice and hearing before deprivation of liberty. After doesn't count.
Wilkinson continued: “If today the Executive claims the right to deport without due process and in disregard of court orders, what assurance will there be tomorrow that it will not deport American citizens and then disclaim responsibility to bring them home? And what assurance shall there be that the Executive will not train its broad discretionary powers upon its political enemies?”
Trump has already raised the possibility of deporting criminals who are American citizens.
“Now the branches come too close to grinding irrevocably against one another in a conflict that promises to diminish both,” Wilkinson wrote. “The judiciary will lose much from the constant intimations of its illegitimacy ... The executive will lose much from a public perception of its lawlessness and all of its attendant contagions.”
It is all about politics. Trump thinks what he is doing to Abrego Garcia plays well to his MAGA base. There are reports that the White House has “heavily encouraged” Republican lawmakers to lean into the idea of Abrego Garcia as an example of the dangerous criminals they insist Democrats want to bring to America.
In a separate case, Federal Judge James Boasberg, whom Trump trashed as “radical left,” filed an opinion stating that the administration’s “hurried removal” of certain men to El Salvador — after Boasberg had issued a temporary restraining order prohibiting them from doing so — demonstrated “a willful disregard of its order, sufficient for the court to conclude that probable cause exists to find the government in criminal contempt.”
“The Constitution does not tolerate willful disobedience of judicial orders — especially by officials of a coordinate branch who have sworn an oath to uphold it,” Boasberg wrote.
If the government decides not to try to purge itself of contempt, Boasberg says the court will identify the individuals responsible for making the judgment to ignore the court. Then he will ask Bondi to prosecute the contempt, but if — as is likely — she refuses, Boasberg says he will then appoint a private prosecutor to mount the case, as he is entitled to do.
The Abrego Garcia case, like the cases of the other illegally deported migrants, presents an assault on the entire constitutional system, where the courts have the obligation to make the executive branch comply with the law.
As Justice Sonia Sotomayor put it in a separate statement, “the Government must comply with its obligation to provide Abrego Garcia with ‘due process of law,’ including notice and an opportunity to be heard, in any future proceedings.”
Former U.S. Attorney and legal analyst Joyce White Vance said it all: “These cases are about making sure that, American citizen or not, criminal or not, peoples’ right to have the day in court that the Constitution guarantees them is honored. That’s all. But it’s everything.”
James D. Zirin, author and legal analyst, is a former federal prosecutor in New York’s Southern District. He is also the host of the public television talk show and podcast Conversations with Jim Zirin.
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