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Yahoo
2 days ago
- Politics
- Yahoo
The case a federal judge called 'Kafkaesque'
Welcome back, Deadline: Legal Newsletter readers. Have you ever had a word stuck in your head? I can't seem to shake this one from a court decision this week: entombed. The haunting term came from the chief federal trial judge in Washington, D.C., James Boasberg. He's presiding over a lawsuit from scores of Venezuelan immigrants held in a Salvadoran prison known for human rights abuses, called the Center for Terrorism Confinement, or CECOT for short. The judge wrote a 69-page opinion, published Wednesday, explaining why the Trump administration must work to let the immigrants challenge their rushed renditions to that prison back in March. Boasberg opened with a nod to Franz Kafka's 'The Trial.' The Obama appointee compared the ordeal to that of Kafka's protagonist, Josef K., whose absurd legal saga is a helpful shorthand to draw attention to farcical affairs. While the term Kafkaesque can seem dramatic, it applies here. After all, U.S. agents hustled the men out of the country without due process, backed by the purported authority of an 18th-century wartime law, the Alien Enemies Act, whose factual and legal propriety has been called into grave doubt not only by judges around the country but by U.S. intelligence agencies. On the latter front, a declassified memo released last month showed that officials had rejected President Donald Trump's basis for citing the act. He had claimed the Venezuelan government controlled the gang to which these men allegedly belonged. But experts in Trump's own government disagreed. So, Trump's use of the law was bogus from the start. On top of that, at a hurried hearing in March, Boasberg had ordered the U.S. to keep custody of the men — an order the government ignored, and that disobedience is the subject of separate contempt litigation that the administration is appealing. But that foundational sham and defiance wasn't the issue in Boasberg's ruling this week. His narrower, modest point was that the men never got due process to challenge their removals under the act. 'Perhaps the President lawfully invoked the Alien Enemies Act. Perhaps, moreover, [government] Defendants are correct that Plaintiffs are gang members,' the judge wrote, adding: 'But — and this is the critical point — there is simply no way to know for sure, as the CECOT Plaintiffs never had any opportunity to challenge the Government's say-so.' Our word-of-the-week then emerged when the jurist observed that 'significant evidence has come to light indicating that many of those currently entombed in CECOT have no connection to the gang and thus languish in a foreign prison on flimsy, even frivolous, accusations.' Entombed in CECOT. Now what? Boasberg said the government must facilitate the plaintiffs' ability to challenge their removals. But he left it to the government to decide how to make that happen. 'Exactly what such facilitation must entail will be determined in future proceedings,' the judge wrote, giving the administration a week to come up with a plan. We'll be eagerly awaiting the official response — or, the latest emergency Supreme Court appeal from a judge's effort to bring the administration into legal compliance. At any rate, it doesn't seem like anyone is going anywhere anytime soon, even if Boasberg's order stays on track, which is not a sure bet. Until then: entombed. Have any questions or comments for me? Please submit them on this form for a chance to be featured in the Deadline: Legal blog and newsletter. This article was originally published on
The Hill
21-05-2025
- Politics
- The Hill
Trump's threats to send citizens to El Salvador aren't idle
The Trump administration launched a war against the Constitution and due process when it took the unprecedented step of sending immigrants allegedly present illegally in the United States to a notorious prison in El Salvador — the Center for Terrorism Confinement or CECOT. It has floated the idea of sending others to Libya — a country the State Department warns American citizens not to visit — before being blocked, at least for now, by a federal judge. When individuals are sent to other countries, the administration has a habit of claiming it lacks the authority to bring them back. It has refused to facilitate the return of one man, Kilmar Abrego Garcia, in defiance of a Supreme Court decision, and even though the administration admits he was sent there in error. The administration won't even tell the lower court overseeing Abrego Garcia's case what it has done, arguing that it is a state secret. Stephen Miller, the White House deputy chief of staff for policy, threatened suspension of habeas corpus next, meaning the administration would refuse to answer to any court when it detains someone. This looks more like human trafficking than a lawful immigration enforcement program, and there is no telling how far it might go. Although the administration argues these drastic measures are necessary to fight illegal immigration, American citizens would also be at risk. The administration's position is that once people are placed inside CECOT, they are under 'the sovereign, domestic authority of El Salvador,' and the U.S. lacks the authority to bring them back, even if they have been sent there mistakenly. Presumably, this same argument would apply if people were sent to Libya or other countries. Justice Sotomayor warned against the implications of the government's position, writing that 'not only noncitizens but also United States citizens could be taken off the streets, forced onto planes, and confined to foreign prisons with no opportunity for redress if judicial review is denied unlawfully before removal.' Trump has already indicated that he would 'love' to send U.S. citizens to CECOT and told Salvadoran President Nayib Bukele that he should 'build about five more places' because 'homegrowns are next.' White House press secretary Karoline Leavitt has tried to sugarcoat Trump's comments by stating Trump 'simply floated' deporting citizens as 'an idea' and he would only send 'heinous, violent criminals who have broken our nation's laws repeatedly.' Moreover, she implausibly argued that they would only pursue 'legal' options, even though there is no legal path to sending citizens to torture camps abroad. Leavitt's assurances are empty. The administration is already flouting the law because people in the U.S. — whether legally or illegally present — are entitled to due process before they are deported or detained. Nor has the administration carefully selected dangerous people for removal. Approximately 90 percent of the noncitizens sent to El Salvador have no criminal convictions on their record. If the hope is that the Supreme Court will put the brakes on the administration's efforts if they are extended to American citizens or make sure they are only limited intrusions, history offers a cautionary tale. One need look no further than America's history of pretrial detention to see the slippery slope we would be on. More than 50 years ago, the newly elected President Richard Nixon decided he wanted to send a law-and-order message about 'dangerous' people who commit crimes. For almost 200 years, the U.S. recognized that its constitutional commitment to due process meant that the government could not detain someone just because they had been arrested and the government claimed they were dangerous. The government had to prove them guilty at trial. However, Nixon, like Trump, wanted to test the waters of what was 'legal.' Nixon had a member of his administration, William Rehnquist, help draft a District of Columbia law to lock accused criminals in jail after arrest on the basis of the danger they supposedly posed. Nixon's attorney general, John Mitchell, drafted a law review article in an attempt to create a new normal and defend the constitutionality of pretrial detention after arrest on the basis of danger to the community. Mitchell claimed that any such regime would be 'quite narrow' and result in detention in only 10 percent of cases. This effort ultimately led to the previously unthinkable becoming law. With crime rising and the government fearmongering about the necessity of pretrial detention, perhaps it is not surprising that lower courts deferred to the government and upheld the D.C. law. States then passed their own laws modeled after the D.C. law, and Congress passed a sweeping federal version. When the Supreme Court finally weighed in and approved pretrial detention on the basis of danger to the community, in a case called Salerno v. U.S., Rehnquist, who had become the chief justice, wrote the opinion. He ignored the Constitution's text and almost 200 years of history and instead deferred to the solicitor general's claim that detention should be viewed as a mere regulatory matter. In making that argument, the solicitor general relied on the now-discredited case of Korematsu v. U.S., which allowed people of Japanese descent during World War II to be placed in internment camps. The solicitor general argued in Salerno that Korematsu supports the proposition that the president can deport and detain not only dangerous aliens during wartime, but also American citizens. After the court's decision in Salerno, pretrial detention for those deemed a danger became the default. Today, a whopping 75 percent of all federal defendants are detained pretrial for an average stay of almost a year, even though the Constitution guarantees the presumption of defendants' innocence until they are proven guilty. One can hear the echoes of Korematsu and Salerno in the claims the Trump administration is making today. Just as in those cases, the government is playing on fear and an inflated sense of presidential power to justify what had been previously unthinkable. Benjamin Franklin warned us long ago that those 'who can give up essential liberty to obtain a little temporary safety deserve neither liberty nor safety.' No one should be sent to a center of torture in El Salvador or to Libya. No one should face any punishment or deportation without due process of law. The writ of habeas corpus must remain sacred. Once the dam that holds back illegality breaks, there will be a flood of injustice, and none of us will have liberty or safety. Rachel E. Barkow is a law professor at New York University and the author of 'Justice Abandoned: How the Supreme Court Ignored the Constitution and Enabled Mass Incarceration.'
Yahoo
24-03-2025
- Politics
- Yahoo
Trump resurrects George W. Bush's rendition regime
Among all the political atrocities committed by the second Trump administration — and there are many — perhaps the most egregious, so far, is the plane loads of Venezuelan men sent to an infamous mega-prison in El Salvador called the Center for Terrorism Confinement (aka Cecot) in direct contravention of a federal judge's order. The men have disappeared into the prison and no one is even sure who all of them are much less if they are actually members of the Venezuelan Tren de Aragua gang that President Trump claims has "invaded" the United States. But reports are starting to emerge that this was a sloppy operation that swept up some innocent people. One can only imagine what's happening to them in that dystopian hellhole of a prison. Over the weekend TIME published a first-person account by photojournalist Philip Holsinger of the Venezuelans' arrival and processing in El Salvador the week before. We had seen the grotesque propaganda video produced by the Salvadoran government (and celebrated by the White House) but this is the first time we've heard about their treatment from someone who was on the ground. It is harrowing, to say the least. The intake began with slaps. One young man sobbed when a guard pushed him to the floor. He said, 'I'm not a gang member. I'm gay. I'm a barber.' I believed him. But maybe it's only because he didn't look like what I had expected—he wasn't a tattooed men were pulled from the buses so fast the guards couldn't keep pace. Chained at their ankles and wrists, they stumbled and fell, some guards falling to the ground with them. With each fall came a kick, a slap, a shove. The guards grabbed necks and pushed bodies into the sides of the buses as they forced the detainees forward. There was no blood, but the violence had rhythm, like a theater of fear. Inside the intake room, a sea of trustees descended on the men with electric shavers, stripping heads of hair with haste. The guy who claimed to be a barber began to whimper, folding his hands in prayer as his hair fell. He was slapped. The man asked for his mother, then buried his face in his chained hands and cried as he was slapped again. There is good evidence that this young man is who he says, a barber and make-up artist from Texas, not a gang member. How he got caught up in this we have no idea. I cannot even imagine what he's going through in this prison full of hardcore gang members. It was not entirely unexpected. Trump has reportedly been angry at the pace of deportations and told his henchmen to speed it up. By invoking the Alien Enemies Act of 1789, the very rarely used wartime power to remove non-citizens without following the usual immigration laws, Trump was able to finally get the satisfaction he'd been desperate to achieve. The case is currently being heard in federal court, where the judge is beside himself at the government's uncooperative behavior. It will almost certainly end up before the Supreme Court before too long. It shocks the conscience to see America completely abandoning any semblance of due process to kidnap people and take them to another country to be dealt with by governments that have no respect for human rights. But let's be honest. It's not the first time, and I'm not talking about the Palmer raids in WWI or the Japanese Internment in WWII, both of which were shameful episodes in which the president used this obscure wartime power to detain, imprison and deport people based solely on their ancestry or national origin under the suspicion that they might commit sabotage or espionage. America perpetrated something this ugly in this century, only 20 years ago. During the presidency of George W. Bush, the U.S. government kidnapped hundreds of people around the world and sent them to black sites in foreign countries where they were tortured by the CIA. They were also sent to countries notorious for their lack of human rights where they were also tortured. It was called "Extraordinary Rendition" and what was so extraordinary about it was that it required no due process. Rendition has been used since the 1880s to grab suspected criminals on foreign soil to bring them to America to stand trial. Grabbing them to torture them (or what they euphemistically called "enhanced interrogation") in secret prisons in ways that were beyond our imaginations was on a whole other level. We know what we know about all this from great reporting in the media and some dogged investigations by the U.S. Congress. (They even made a movie about the Senate investigation starring Annette Bening and Adam Driver.) But the country has never seen the full Senate report, only the summary which was pretty damning, because the White House under Barack Obama, Donald Trump and Joe Biden all refused to release it. I think that says something very disturbing about what must be in it. The torture regime under the Bush administration was one of the most shameful moments in our history. We've let it go down the memory hole as we do with virtually everything we hate about ourselves. But that cruel, unnecessary and counterproductive set of policies along with Guantanamo, Abu Ghraib and all the rest of the gruesome acts of overkill committed in the wake of 9/11 set the table for what Donald Trump is doing today. However, while the Bush policies were barbaric and un-American, they were in response to an actual attack on the United States. The reaction was insanely excessive and motivated by some longstanding policy goals that had little to do with the attack but the casus belli wasn't conjured up out of thin air. On the other hand, Trump's rationale for dredging up wartime powers to render foreigners to a foreign prison notorious for its inhumane treatment is completely made up. Crime is down. Illegal immigration is down. To the extent that these Venezuelan gang members are dangerous criminals (assuming they are gang members at all) it's nothing that can't be dealt with through the American justice system. Trump's immigration crisis is, and always has been, a campaign strategy to scratch the ids of his racist base. They are all too happy to believe it and he and his GOP accomplices are all too happy to take advantage of that to seize more and more power. It's as if Hitler made up the fact that the Reichstag was on fire and his Nazi followers all nodded their heads and insisted they smelled the smoke. 20 years ago the U.S. government completely lost its bearings and began the process of finally destroying our society's belief that while it often fails, America still believed in the ideals set forth in the founding documents. It became a lot harder to accept our "shining city on a hill" myth once we saw how our powerful country discarded its values the minute we faced a serious threat. Now we don't even pretend anymore. The president simply proclaims that we have been invaded without any evidence at all and seizes the powers that come with that, all to give his followers the strongman spectacle he promised.
