El Salvador is the new Guantanamo
Trump has outsourced his gulag. The Supreme Court is divided between those stating the "right" answers for a legitimate government -- and those who realize the government is no longer legitimate.
The Trumpian far right’s approach to deportations is, to borrow a phrase Paul Krugman used in 2002 to describe the George W. Bush administration’s approach to Iraq, “an obsession in search of a justification.”
Project 2025 made it crystal clear that, under Trump, immigrants were to be detained without any prior notice or due process, instead of being notified of their potential removal and given their day in court before an immigration judge. Once actually in office, Trump and his extremist cronies have gone even further, aiming to bypass the detention phase altogether and engage in immediate deportations before any legal process of any kind could take place, using the pretext of the Alien Enemies Act (AEA), a 1798 law that has only ever been used during the War of 1812, World War I, and World War II.
Whereas before, there had been talk of building massive tent city concentration camps, that seems to have been dropped for now, and Trump moved to a brief-lived attempt to use Guantanamo Bay to detain immigrants. Now the administration has struck upon an even more diabolical avenue: disappearing immigrants off American soil entirely and outsourcing their detention to El Salvador and its infamous prison, Centro de Confinamiento del Terrorismo (CECOT).
The administration has already sent hundreds of people to CECOT, and it then disingenuously claims that it is powerless to retrieve them once they are there. Detainees are then cut off from their lawyers and families and have no effective way to challenge the legality of their detentions — even if, for example, in the case of Kilmar Ábrego Garcia, the government admits it made an “administrative error” and that Garcia is innocent. In fact, 60 Minutes found that 75% of the immigrants sent to CECOT lacked any kind of criminal record — raising the likelihood that, if properly challenged in court, the administration would be unable to provide a legal basis for their detentions.
The Bush administration’s use of Guantanamo Bay is one of the most shameful acts undertaken by America in the last century — and yet Trump’s use of CECOT is ten times worse. Even during the worst part of Bush’s Guantanamo, there was at least some post-detention legal process established, a Combatant Status Review Tribunal; this was one-sided and constitutionally inadequate, as the Supreme Court ruled in the landmark decision of Boumediene v. Bush in 2008, but at least it allowed some way for the detainees to challenge the legal basis for their detentions. Ultimately, Boumediene provided that the Guantanamo detainees could file habeas corpus petitions, which finally resulted in the court-ordered releases of hundreds of prisoners against the government had virtually no evidence at all.1
At CECOT, though, there is seemingly no way out.
This is the utterly execrable set of circumstances now facing the courts, and in particular, the Supreme Court.
We received our first glimpse at how SCOTUS will handle this matter in Monday’s decision in Trump v. J.G.G. This was hailed as a victory by Trump and quickly framed as such by the mainstream media — but the truth is not so clear cut.
There was a significant upside to the J.G.G. decision: a seemingly unanimous 9-0 view that even those detained and slated for deportation under the AEA must receive advance notice of their removal with enough time for them to mount actual legal challenges and to receive their days in court. Loading people onto planes in shackles and chains before any judge can intervene is, apparently, not something that even Clarence Thomas or Samuel Alito wishes to co-sign.
But the devil is in the details — and the real divide on the Court now appears to be between those who still ascribe to a standard orthodox view of the law in a functioning, legitimate administration and those who realize that the executive branch is now anything but legitimate and simply cannot be trusted.
The 5-vote majority in J.G.G. — Roberts, Thomas, Alito, Gorsuch, and Kavanaugh — vacated the district court’s temporary restraining order (TRO) blocking the administration from deporting the plaintiffs and ruled that the plaintiffs had brought their challenge in the wrong court and on the wrong legal grounds. Instead of a challenge under the Administrative Procedure Act (APA) in district court in DC, the plaintiffs must now bring their challenge as a habeas corpus petition in the district(s) where they are being held (e.g. the Southern District of Texas). Meanwhile, the dissenters, led by Sonia Sotomayor (but interestingly, including Amy Coney Barrett), would have left the TRO intact, to protect the plaintiffs, and allowed for a more deliberate litigation of the questions of what legal avenues the plaintiffs must use, rather than making a snap decision on an emergency basis.
What is really going on here?
The majority still views the real world as one of normally functioning laws, courts, and government actions. It provided the answer that might have been viewed correct on a law school exam — one that may have been right on technical grounds (although even that is arguable). It still sees the world as one in which it can issue an order asking for plaintiffs to re-file their challenges in different courts, trusting that the administration will not suddenly frog-march the plaintiffs off, hooded and chained, in the dead of night, extraditing them to the Central American equivalent of Siberia, defying all judicial and legal authority, before any habeas challenge could be heard; then shrugging and throwing up their hands when challenged or criticized. The majority justices’ view of the administration is thus somewhere between naively ignorant and willfully blind.
The dissenters have a far more realistic view of Trump and his Gestapo. They are making their calculations based on what Trump has actually done — rather than what would normally be true in a normal administration. Plus, they are more shrewdly aware of the realities of these court challenges on the ground: the DC federal judges are likely to be more amenable to the plaintiffs’ claims than federal judges in Texas or Louisiana (where most of these people are being held) will be, all other things being equal.
There are still many things that have not been decided, including the core question of whether the AEA can be used to detain these immigrants at all, given that there is no “foreign nation” threatening “invasion or predatory incursion” into the US. There is still a very long road ahead.
But one thing is already becoming clear. While it is heartening to see at least some declaration of principle on the rule of law, it will be meaningless if it is not paired with a realistic view of what the administration is actually doing to circumvent and to flout it. SCOTUS must not let formalism trump realism.
One wonders if this factored into Trump’s decision to reverse course on the renewed use of Guantanamo — although I remain concerned that the current Supreme Court would likely overturn Boumediene if given the chance. Roberts, for one, was a dissenter in Boumediene, concluding that the CSRTs provided sufficient due process.
If they aren’t stopped, people are gonna start limiting their comments out of fear for themselves and for strangers. Goddamned
fascists and Nazis.
The punishing inhumanity gives me chills. That these men cannot even communicate with anyone outside the prison is simply horrific. And done in our name.