Due Process and the Abrego Garcia Case

One hardly had to be Nostradamus to have predicted, as I did soon after Trump was sworn in, that the day was fast approaching when President Trump would openly defy a court order to do (or to refrain from doing) something, and then we'd have a constitutional crisis of some magnitude. The Abrego Garcia case shows that we're either getting closer to, or have already reached, that grim milestone.

I assume everyone, by now, is aware of the basic outlines of the Abrego Garcia story,[*] but here's a very brief recap of the key facts:

[*] A good summary is in the district court's 4/6/2025 order [available here].

• A 2019 court order expressly prohibits Abrego Garcia's removal to El Salvador because he faced a "clear probability of future persecution" there and had "demonstrated that El Salvadoran authorities were and would be unable or unwilling to protect him."
• In March, 2025 without any notice or a warrant, ICE agents seized him, placed him on a plane, and transported him to an El Salvadoran prison (the "Center for Terrorism Confinement," (CECOT)).
• Abrego Garcia has not been charged with any crime. No warrants have been issued against him or his property. The government has asserted - in various court papers and, yesterday, at a presidential news conference and a televised meeting in the Oval Office - that he is a member of MS-13, a designated terrorist organization. That may be true; the government, however, has provided no evidence, to a grand jury or to a magistrate or to any third party, that it is true. The President has told us, though, that it is true - but he is, remember, the Chief Prosecutor.
• The US district court in Maryland ordered the government to "facilitate and effectuate" Abrego Garcia's return to the United States, and gave the government a deadline for his return.  The 4th Circuit affirmed, and refused to stay the district court's order.
• The Supreme Court affirmed the order last week, with a qualification.  The Court declared - with no dissents - that Abrego Garcia's removal was "illegal," that the government "acknowledged" that his removal was illegal, and that the district court's order "remains in effect [and] properly requires the Government 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."
• The qualification:

The intended scope of the term "effectuate" in the District Court's order is, however, unclear, and may exceed the District Court's authority. The District Court should clarify its directive, with due regard for the deference owed to the Executive Branch in the conduct of foreign affairs.

• The district court immediately revised its order, dropping the reference to "effectuating" Abrego Garcia's return. The order now requires the government to submit information regarding

"(1) the current physical location and custodial status of Abrego Garcia;

 (2) what steps, if any, Defendants have taken to facilitate Abrego Garcia's immediate return to the United States; and

(3) what additional steps Defendants will take, and when, to facilitate his return."

That's the background to yesterday's meeting between Trump and El Salvadoran President Bukele. It is now abundantly clear, first, that the Administration is content to leave the decision about whether to release Abrego Garcia from custody to the Salvadorans; if they decide to release him, the US will allow him back into the country and will even, as AG Biondi said at yesterday's meeting, provide him with a plane to transport him back here. But that's as far as we will go to "facilitate his immediate return."

And President Bukele made it abundantly clear that, for his part, he has no intention whatsoever of releasing Abrego Garcia. To see him snickering with Our Leader about how he doesn't see how he can "smuggle" him back into the US was not an edifying spectacle.

Second, the government appears to be taking the position that the courts cannot require more than this degree of "facilitation," because to do so would constitute an improper interference with the Executive's ability to conduct foreign affairs. "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."

So here is my question: Under our government's view of the matter, what prevents it from snatching anyone off the street whom they don't particularly care for for one reason or another - me, for instance, since I have been known to describe Our Leader as a jackass [or worse] - and throwing me in the back of a van, sticking me on an airplane and transporting me to a prison in El Salvador?

It is, of course, "illegal," just as the seizure and transport of Abrego Garcia was, as everyone acknowledges, "illegal." It's illegal because I'm entitled to "due process," which includes notice of the charges against me, the opportunity to contest the charges, a warrant executed by a neutral magistrate, etc., and because the government may not punish me for expressing my dismal opinion of Our Leader.

But when my family obtains a court order requiring the government to get me back, the government can throw up its hands and say "Sorry, he's outside of our jurisdiction now; that's up to the Salvadorans"? Really!?

That can't be right - can it?  Talk about an end run around the Due Process Clause, the First Amendment, the Right to Counsel, … the whole edifice of Constitutional protections! If the government can just get me out of the country before a court intervenes, they can get rid of me forever.

Is there really anyone out there who is not worried by this?  Does anyone out there still not see what is going on?  Really?? Do you think you'll be protected because you're an American citizen?  What difference does that make? Once you're outside the jurisdiction, you're outside the jurisdiction, and that's the end of it - no?

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