Refusing To Lift a Finger for Justice
By leaving Kilmar Abrego Garcia in El Salvador, the administration has lurched into dark new territory.
In a court filing on March 31, the Trump administration acknowledged that an “administrative error” led to the deportation of Kilmar Abrego Garcia, a Maryland father who fled to the United States aged 16 to escape gang violence in El Salvador. Garcia was granted protected legal status by an immigration judge in 2019, due to threats to his life from the Barrio 18 gang. Having admitted its error, the Trump administration now claims Garcia is a member of the gang MS-13 whose return would pose a risk to public safety. The administration is refusing to bring him back to America.
The evidence that Garcia is a member of MS-13 is extremely thin. In 2019, ICE stated that a confidential informant accused him of being in the gang. But Garcia—who has lived and worked in the United States for over a decade—denies the allegation and hasn’t been charged with any crime. The 2019 claim of MS-13 membership appears to be based on an unverified source of very dubious credibility.
On April 4, the Federal District Court in Maryland ordered the government to “facilitate and effectuate the return” of Garcia. On April 10, the Supreme Court issued a unanimous ruling that this order “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.”
However, the Supreme Court also ruled that the order to “effectuate” Garcia’s return “may exceed the District Court’s authority,” and called upon the court to “clarify its directive, with due regard for the deference owed to the Executive Branch in the conduct of foreign affairs.” It is currently unclear what “due regard” for the executive branch’s authority over foreign affairs means in the eyes of the Supreme Court. But distinction between “facilitate” and “effectuate” makes a big legal difference: the obligations implied by “effectuate” go much further than “facilitate,” seeming to require the American government to somehow guarantee an outcome which now depends in part on the actions of another sovereign country.
In light of this, the District Court revised its order to require only that the government “facilitate” Garcia’s release.
On Monday, Trump met with Salvadoran President Nayib Bukele in the Oval Office, and the two leaders made it clear that they would not pursue the return of Garcia to American soil in any way. When Trump was asked whether he would request Garcia’s return, he referred the question to Attorney General Pam Bondi, who falsely claimed that two courts had “ruled” that Garcia is a member of MS-13. She said it’s “up to El Salvador if they want to return him, that’s not up to us.” When a reporter asked Bukele if he would send Garcia back, he replied: “The question is preposterous. How can I smuggle a terrorist into the United States? I don’t have the power to return him to the United States.” While Bondi and Miller insisted that the United States has no power to retrieve Garcia, Bukele insisted moments later that he has no power to release him.
Of course, this is all just political theater—if Trump requested the return of Garcia, Bukele would likely comply. The central question is whether the Trump administration will be able to get away with its brazen attempts to avoid taking any real action to return Garcia from El Salvador.
There are several major problems with the Trump administration’s handling of the case. The administration has already admitted that Garcia was deported illegally. Although the DOJ suspended the attorney who acknowledged that the administration made an error which led to the wrongful deportation, Trump’s own Solicitor General, D. John Sauer, said the “United States concedes that removal to El Salvador was an administrative error.” An immigration judge ruled in 2019 that Garcia could not be sent to El Salvador, where he faced a “clear probability of future persecution.” As the Supreme Court notes, the Trump administration hasn’t even tried to contest this. The moral case for correcting the mistake is therefore overwhelming.
What’s more, the administration’s declared intention to leave Garcia in a foreign prison comes precariously close to open defiance of the courts. It flouted the District Court by refusing to provide substantive updates on its efforts to return Garcia. It then presented the Supreme Court ruling as a unanimous decision in favor of keeping Garcia locked up in El Salvador, arguing that the interpretation of “facilitate” in ICE policy requires it merely to ensure that Garcia can cross the border, rather than take any action that might result in his return.
But this definition was rejected by District Judge Paula Xinis, who issued the ruling on April 4, at a hearing yesterday. And the Supreme Court ruling didn’t just call for the facilitation of Garcia’s return—it also stated that the government “should be prepared to share what it can concerning the steps it has taken and the prospect of further steps.” If Bondi and Miller are correct that this requires nothing more than allowing him to cross the border—and that there’s nothing left for the government to do but let Garcia languish in a foreign prison—what steps could the Court possibly be referring to?
At the very least, whether or not the administration will succeed may depend on how “facilitate” comes to be defined in the coming weeks. As Andrew McCarthy writes in National Review:
Judge Xinis (and the higher courts, if it comes to that), should be forcing the Trump administration to disclose in full the parameters of the agreement it made with President Nayib Bukele’s regime in El Salvador to detain U.S. prisoners in CECOT. That would elucidate what needs to be done to facilitate Abrego Garcia’s return.
In a statement accompanying the Supreme Court’s decision, Justices Sonia Sotomayor, Elena Kagan, and Ketanji Brown Jackson outline the chilling implications of the Trump administration’s refusal to return Garcia. They observe that there was “no basis in law” for Garcia’s arrest, deportation, and confinement. They note that the government “has not challenged the validity” of the 2019 order to prevent his removal to El Salvador. And they argue that the administration’s position “implies that it could deport and incarcerate any person, including U.S. citizens, without legal consequence, so long as it does so before a court can intervene.” During the Oval Office meeting, Trump said the United States would support the construction of more prisons in El Salvador and that he would be open to deporting U.S. citizens to those facilities.
We have entered a dangerous new era of executive lawlessness. Homeland Security Secretary Kristi Noem, J.D. Vance, Bondi, and Miller have publicly and repeatedly accused Garcia of being a terrorist—the “worst of the worst,” as Noem puts it—without a shred of evidence. The administration has stonewalled a District judge and maintained that the Supreme Court issued a sweeping unanimous decision in its favor, when this is far from the truth. And Trump is now claiming that he wants to start sending U.S. citizens to a foreign prison.
The Garcia case is relevant to many of the most important aspects of the rule of law in America: due process, the presumption of innocence, and the separation of powers. The Trump administration has shown flagrant disregard for all three.
Matt Johnson is an essayist and the author of How Hitchens Can Save the Left: Rediscovering Fearless Liberalism in an Age of Counter-Enlightenment.
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Anne Applebaum "Autocracy Inc" and Timothy Snyder "On Freedom" have been warning about this possibility for years. And now the dark prospect of a dictator President has come to fruition. Even George Washington recognized the threat in his "Farewell Address".
"I have already intimated to you the danger of parties in the State, with particular reference to the founding of them on geographical discriminations. Let me now take a more comprehensive view and warn you in the most solemn manner against the baneful effects of the spirit of party generally.
This spirit, unfortunately, is inseparable from our nature, having its root in the strongest passions of the human mind. It exists under different shapes in all governments, more or less stifled, controlled or repressed, but in those of the popular form, it is seen in its greatest rankness, and is truly their worst enemy.
The alternate domination of one faction over another, sharpened by the spirit of revenge, natural to party dissension, which in different ages and countries has perpetrated the most horrid enormities, is itself a frightful despotism. But this leads at length to a more formal and permanent despotism. The disorders and miseries which result gradually incline the minds of men to seek security and repose in the absolute power of an individual, and sooner or later, the chief of some prevailing faction, more able or more fortunate than his competitors, turns this disposition to the purposes of his own elevation, on the ruins of public liberty.
It serves always to distract the public councils and enfeeble the public administration. It agitates the community with ill-founded jealousies and false alarms, kindles the animosity of one part against another, foments occasionally riot and insurrection. It opens the door to foreign influence and corruption, which finds a facilitated access to the government itself through the channels of party passions. Thus, the policy and the will of one country are subjected to the policy and will of another."
President Washington did not have a degree in psychology from a prestigious Ivy League college. Yet he seems to have understood much about humanity and social interaction. Could he have become the king of America with such a fundamental knowledge of how human minds work and can be swayed? No doubt, but he did not. He chose a higher road.
All of us, on both sides of this now great divide, would do well to reflect upon George Washington's concerns and recommendations.
I'd suggest Garcia's wife and children file a civil suit against the federal government. Given that the wrong was willful and intentional, with full undisputed knowledge of its illegality, damages should be, oh, say, a billon dollars. Plus punitive damages. Then use The money recovered to sue everyone involved. Since it's a civil matter, Trump's corrupt wielding of the pardon power would avail the pigs nothing.