Walter Olson
Until yesterday, April 14, there was still some prospect of sidestepping the worst legal possibilities in the Kilmar Abrego Garcia case. First, and most obviously, the Trump administration could simply have brought Garcia home from El Salvador’s brutal gulag to face whatever further legal process it might choose to set in motion. Any normal administration would have done this after it emerged that the Maryland man had been sent to El Salvador by mistake against the terms of a previous and binding court order. Had the Trump administration simply been seeking short-term goodwill with the public, it would surely have taken this easy way out. That it did not suggests that it was instead building toward a longer-term objective it saw as more important.
Alternatively, or in addition, Salvadoran strongman Nayib Bukele could have expelled Garcia into the hands of the Trump administration once our courts had clearly ruled his continued captivity there is contrary to US law. That would have avoided the sort of insult to the authority of US law and the US courts that a small nation might not wish to hazard. (In practice, as we know, Bukele fired off a mocking “Oopsie” tweet after one person-snatching against a court’s direction, which was then shared by Secretary of State Marco Rubio and presidential adviser Elon Musk.)
As part of either move, the Trump administration could have endorsed the simple and logical idea that an inmate who was in the Salvadoran prison at the United States’ behest, under an agreement between the two governments, was in so-called constructive US custody. This would reassure doubters that whatever the other problems with such a foreign prison arrangement, the US executive branch would remain accountable to the courts for enforcement of inmates’ rights under US law and the Constitution, with the prisoners of US origin perhaps retaining roughly the same rights as if they had been imprisoned in Texas or Louisiana.
But it didn’t do that. It is universally understood that the standup routine in which each country’s administration pretends the other is the one that needs to act is purely for stage purposes, as prearranged as any pro wrestling kayfabe. The administration has even refused to let a federal district court see the contents of its agreements, if any, with Bukele, claiming they’re classified, while also broadly asserting that its constitutional foreign affairs power forbids courts from probing into its disposition of US-origin prisoners abroad.
The point of the wink-wink buddy act between Trump and Bukele is to effectuate what we should reasonably assume has been Trump’s objective all along: to create an offshore zone in which persons of Trump’s choosing can be whisked out of the United States and taken to a place of detention “beyond the writ of” the US courts, to use an old-fashioned wording—a place where the Constitution no longer protects them because no US court has jurisdiction to identify and vindicate their rights.
The most immediate right at stake is the right of habeas corpus, which now cannot be enforced in pursuit of Abrego Garcia’s liberty or his return to a place of detention in the United States. But he has practically lost all constitutional rights, not just the one. The Eighth Amendment, for example, would ordinarily protect him from the infliction of cruel and unusual punishments. But Bukele and Trump smilingly assure us that its coverage stops at the water’s edge.
Trump has been loudly talking for weeks about sending native-born American citizens to the El Salvador prisons too; his spokesperson Karoline Leavitt confirmed this the other day. Trump did so again yesterday, telling Bukele that he would need to build several more prisons because the “home-grown” prisoners were coming next.
In other words, even assuming that the “home-grown” prisoners (unlike Abrego Garcia) have received fair process at previous stages, Trump aims to send them to a place where central constitutional rights such as habeas and the Eighth Amendment prohibition of cruel and unusual punishment will have been stripped from them. If they are held beyond the expiration of their original US sentences, who can sue and where?
Trump says he’s waiting to go ahead on sending US citizen prisoners until Attorney General Pam Bondi reports back as to whether it’s legal, but Bondi’s subservience is beyond doubt, so if he wants a “yes,” a “yes” he will get. He also talks of starting with the most violent prisoners, the sort who push innocents in front of subway trains—in practice, criminals of that sort usually are convicted under state law and aren’t in federal custody anyway—but we all know Trump’s definition of “violent” is elastic. An Axios Mar. 21 headline: “Trump suggests sending Tesla vandals to El Salvador prisons.”
We know where this is headed. Many who have not yet spoken up know too, if they’re honest.
[cross-posted from my newly launched Substack]