Why We Have Due Process

Here’s a textbook explanation for why due process is so important: the case of Kilmar Armando Abrego Garcia, a native of El Salvador, who was included on the third plane full of aliens the Trump administration deported to that country on March 15. Only one problem, as the government now concedes in an affidavit filed in the case by Robert L. Cerna, the Acting Field Office Director for Enforcement and Removal Operations at ICE, “this removal was an error.”

Why was it an error? Because in 2019, an immigration judge entered an order that, while acknowledging Abrego Garcia was removable, granted a “witholding of removal” under a law that provides, “the Attorney General may not remove an alien to a country if the Attorney General decides that the alien's life or freedom would be threatened in that country because of the alien's race, religion, nationality, membership in a particular social group, or political opinion.” That order is still valid today—the government doesn’t contest that fact and Cerna acknowledges it in his affidavit. But Abrego Garcia was mistakenly added to a flight manifest as an alternate, and when others were removed from the list and he moved up, “The manifest did not indicate that Abrego Garcia should not be removed.”

So, now he’s in a hellhole of a prison in El Salvador at taxpayer expense. That’s your money and my money at work. The affidavit calls it “an administrative error,” an “oversight,” and says that “the removal was carried out in good faith.” I doubt that’s much consolation to Mr. Abrego Garcia and his family.

White House Press Secretary Karoline Leavitt

How many others were made? That’s what happens when you hustle people—yes, people, because those who are here without legal status are still human beings, no matter what this administration would have you believe—onto a plane and dispense them into a prison in a foreign country from which they have little, if any, recourse.

Press Secretary Karoline Leavitt claimed today that there was “a lot of evidence” Abrego Garcia was a convicted member of the gang MS-13, saying that “I saw it this morning.” But he has not been convicted or even prosecuted—a case a local U.S. Attorney would have likely been eager to take if it had merit—and reporting suggests that what the government has is little more than an informant’s claim he belonged to the gang. No one is suggesting Abrego Garcia isn’t deportable and shouldn’t be in ICE proceedings, but he was entitled to at least minimal due process given the pending withholding order before he was consigned to prison, and perhaps much worse, in violation of an immigration judge’s order.

If anyone can be swept up and taken away without recourse to a lawyer and court proceedings to determine the validity of the removal, then you or I could share Abrego Garcia’s fate. And according to the government, it’s too late. Once you’re in El Salvador’s custody, neither a habeas petition nor the order of a federal judge is sufficient to release you. You are at the mercy of the authorities of that foreign country.

Due Process.

It’s one of the foundations of the legal system that makes our democracy great. People are entitled to due process regardless of their citizenship or immigration status under the Fifth and Fourteenth Amendments of the U.S. Constitution. Today’s events help us understand why.

The press secretary insisted that she must be believed when she said that Abrego Garcia was affiliated with the MS-13 gang: “Fact No. 2, we also have credible intelligence proving that this individual was involved in human trafficking. Fact No. 3, this individual was a member, actually a leader, of the brutal MS-13 gang, which this president has designated as a foreign terrorist organization.” Maybe. But given that they made an admitted “clerical” error in deporting him despite the immigration judge’s order, I’d rather let due process take its course than trust the press secretary before the government takes irrevocable steps. You can see why this situation is a textbook explanation of the need for due process.

If you skipped Sunday night’s The Week Ahead post, you may want to go back and read the immigration section to put this into context. Why the rush and hurry on the part of ICE? Why did flights, as the New York Times has reported, fail to turn around and return to the United States after a federal judge ordered them to? One possible answer is the imposition of quotas that require ICE to detain and deport a set number of people every month. As I wrote to you Sunday night:

There is a real cost in human terms when the law is disregarded. I’m a former federal prosecutor. I believe in enforcing the laws and keeping our communities safe. I also believe in following the law and believe that obligation falls on the government just as sharply, if not more so, than it does on private citizens.

The Trump administration uses the law to its advantage when it can, ignores it when it can’t, and makes the lines between the two muddy in hopes they can get away with it. But the judiciary has been holding the administration accountable so far, and continues to offer hope that we can hold on until the midterm elections. Today, a federal judge in New Jersey ruled that the government couldn’t defeat former Columbia student and immigration detainee Mahmoud Khalil’s ability to challenge his detention in court by moving him to Louisiana from New Jersey after his petition was filed. It is the small, precise, even mundane, steps like this that force compliance with the rule of law and forge a chance of protection for Americans and people without legal immigration status alike. Due process.

Today, New Jersey Senator Cory Booker, on his way to delivering the longest filibuster ever in the Senate and breaking the record held by South Carolina’s Strom Thurmond, asked if Americans thought they were better off than they were 72 days ago when Trump took power. There is little doubt that the answer is no. Trump is damaging our economy and our foreign partnerships in ways that feel inexplicable for someone who claims to be making America “great again.” Booker went beyond that, saying that this was our moral moment and that inaction was not enough: “Where does the Constitution live? On paper, or in our hearts?”

Here at Civil Discourse, it lives in our hearts and stays on our minds. Thank you for being here with me. I know you have lots of choices about where to get your facts, what’s most important, and how to process what this administration is doing to our democracy. I appreciate that you’re spending some of that time with me. Your paid subscriptions help me devote the necessary time and resources to writing the newsletter, and I’m very grateful. Thank you to everyone who cares about holding onto the American experiment and keeping the Republic. Our strength comes from being in community.

We’re in this together,

Joyce