Innocent (in a Brutal Prison) Abroad

The Trump administration’s latest stain on our values: sending a man without a conviction to a country where a judge ruled he couldn’t be sent.

Big night for developments in the field of White House mass-deportation rake steps. Let’s get right into it. Happy Tuesday.

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Prison security agents stand on patrol outside the Terrorism Confinement Center on February 2, 2023 in San Vicente, El Salvador. (Photo by Alex Peña/Getty Images)

Ordeal of Innocence

by William Kristol

Last night, Nick Miroff of the Atlantic reported that Trump administration lawyers admitted, in a court of law, that immigration officials mistakenly deported an individual with protected legal status to El Salvador’s “Terrorism Confinement Center.”

Kilmar Abrego Garcia fled gang threats in his native El Salvador in 2011, when he was 16 years old, and came to the United States. He has lived here since, has no criminal record, works full time as a union sheet-metal apprentice, is married to an American citizen, and is the father of a five-year old child who is a U.S. citizen. He was accused by an informant of being a member of MS-13, which his lawyer has strenuously denied and for which there seems to be no proof. He was never convicted of or even charged with any crime.

In 2019, Abrego Garcia filed an application for asylum and an immigration judge granted him legal protection from being sent to El Salvador based on legitimate fears of persecution and torture.

The administration admits in its court filing that it “was aware of this grant of withholding of removal” at the time it violated that court order and sent Abrego Garcia off to prison in El Salvador anyway.

And yet, the administration now claims that there is nothing a U.S. court can do to rectify their willful mistake. And they apparently have no intention of doing anything on their own to bring Abrego Garcia home.

As Abrego Garcia’s attorney told Miroff, “They claim that the court is powerless to order any relief. If that’s true, the immigration laws are meaningless—all of them—because the government can deport whoever they want, wherever they want, whenever they want, and no court can do anything about it once it’s done.”

What’s more, it seems that there are other innocent victims of the Trump administration suffering in El Salvador’s prison.

From its unlawful invocation of the Alien Enemies Act, to the frantic removal of these men already in custody in the United States to a brutal prison in a third country—the Trump administration had demonstrated purposeful contempt for the rule of law. They have compounded this contempt by defending their actions with demonstrable lies and misdirection.

So I’d go further than Abrego Garcia’s lawyer. If this reckless and lawless action by the administration is allowed to stand, it’s not just the immigration laws that are meaningless; it’s the rule of law that is meaningless.

There’s been much discussion in recent months of what the other branches would do, and of how the public would react, if the Trump administration were brazenly to defy the law and attempts by U.S. courts to uphold the law.

That’s no longer a hypothetical question. That future is now. The crisis is upon us. We’ll be judged as a nation by how we respond.

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A Noun, a Verb, and Tren de Aragua

by Andrew Egger

The facts of Abrego Garcia’s case are fairly straightforward. The government wasn’t allowed to deport him to El Salvador. They knew it—or should have known it—and they did so anyway. And they now insist a court can’t make them undo that action. But you’ve almost got to read the government’s filing to get the full bloodcurdling effect:

There is no jurisdiction in habeas. Plaintiffs admit—as they must—that the United States does not have custody over Abrego Garcia. . . . Plaintiffs do not argue that the United States can exercise its will over a foreign sovereign. . . .

While there may be allegations of abuses in other Salvadorean prisons—very few in relation to the large number of detainees—there is no clear showing that Abrego Garcia himself is likely to be tortured or killed in CECOT. . . .

He had the opportunity to give evidence tending to show he was not part of MS-13, which he did not proffer. . . .

An injunction as Plaintiffs request would harm the public interest by preventing the Executive from implementing a unified course of conduct for the United States’ foreign affairs. . . . The heavy interest in the President’s primacy in foreign affairs outweigh the interests on the Plaintiff’s side of the scale.

Will the government prevail on these legal technicalities? Brighter bulbs than I can speculate. As a political and moral matter, however, it is monstrous. The government has made El Salvador its unofficial Bureau of Migrant Prisons—only to turn around and suggest it has no say over whom El Salvador detains once they’re there. It sweeps away the evidentiary demonstration of Garcia’s lawyers that ICE never substantiated that he belonged to a gang, stating only that he hadn’t proved he wasn’t. And the government argues that President Trump’s ability to execute his foreign-policy program would be unacceptably hamstrung were he forced to give this man a proper chance to adjudicate these allegations.

There is no defending this. So maybe we shouldn’t be surprised the administration is barely trying to. Instead, they’re arguing that anyone who has the gall to ask them about such things is a subversive who is carrying water for gang members.

Here was Vice President JD Vance overnight, chirping at Pod Save America’s Jon Favreau: “According to the court document you apparently didn’t read he was a convicted MS-13 gang member with no legal right to be here. My further comment is that it’s gross to get fired up about gang members getting deported while ignoring citizens they victimize.” Vance is, of course, either wrong or lying: Abrego Garcia has not been convicted of anything.

And here was Press Secretary Karoline Leavitt yesterday, asked by a reporter to comment on a DHS document showing ICE had discretion to label Venezuelan migrants gang members based on a points system where tattoos and streetwear alone could qualify you for deportation: “Shame on you, and shame on the mainstream media for trying to cover for these individuals,” she said. “This is a vicious gang that has taken the lives of American women!”

Congressional allies are getting in on the same action. Yesterday, I asked Sen. Ted Cruz (R-Tex.) if he had concerns about the lack of due process for people accused of gang membership on flimsy pretexts. He responded by accusing The Bulwark of gang support: “It’s not surprising that The Bulwark’s focus is defending alleged Venezuelan gang members.”

But isn’t “alleged” the issue, I asked—shouldn’t that claim be substantiated in an adversarial process? “If you want to be a shill for violent gang members,” Cruz replied. “Listen, I’ve talked to too many Americans whose children were raped and murdered by these animals. You ought to be ashamed of yourself.”

It is now the explicit position of the Trump administration and its congressional allies that the possibility of gang affiliation is a ratchet that turns only one way. A migrant may have no criminal history, may be gainfully employed, may be married to a U.S. citizen, may have a strong asylum claim approved by an immigration judge. All that is swept away the second any ICE officer anywhere speculates “gang affiliate?” in a piece of paperwork. From that moment on, in the view of the White House and too many Republicans, he ceases to be a specific human being about whom specific factual claims must be substantiated. He’s tossed in with the inhumans—considered functionally equivalent to a murdering, raping, terroristic gang member.

From then on, it’s Kafkaesque. “Why are you calling this guy a gang member when you haven’t proven he is one?” one asks. They reply: “Why are you sticking up for a known gang member by asking me that?”

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AROUND THE BULWARK

• The Trump Administration’s Use of Signal Puts Service Members at Risk… ‘Operational security’, writes GEN. MARK HERTLING “is about reducing the danger for those in uniform.”¹

• Why Autocrats Hate Their Capitals… Trump and Orbán both seem to view the cities where their governments are based as foreign lands, argues ALAN ELROD.

• A Small-d Democratic Hero… Tune in to catch up on STEPHEN RICHER’s live appearance on the MONA CHAREN Show in Phoenix earlier this week, where he talked about standing up for reality, tangling with Kari Lake, and his political future.

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Quick Hits

MAKE AMERICA HEALTHY AGAIN: The mass culling of the labor force of the Department of Health and Human Services began on Tuesday morning. And early indications are that it’s a bloodbath.

Multiple officials who work in the department told The Bulwark that entire offices were being eliminated. Much of the focus appeared to be on the administrative side of things. But not all of it. We were sent an email, for instance, that Vence Bonham, the acting deputy director of the National Human Genome Research Institute, told colleagues this morning that he had been “unexpectedly” placed on administrative leave. He had a 20-year career as a researcher and leader at NIH. Within a few moments, it was gone.

To get a fuller sense of the despair, head over to the NIH’s Reddit forum; or the HHS forum. It’s bleak. That’s what happens, we suppose, when a weeks-old administration decides that it will eliminate 10,000 full-time employees from one of its most critical departments.

Elsewhere in HHS, another email we were sent shows that people put on leave were told they would no longer have access to their buildings starting today. That today happened to be April Fools was treated as a nice little sadistic touch. Was this a ruse?

Of course not. In fact, quite the opposite. Colleagues said they were spending their mornings fielding distraught emails and calls from friends whose lives had been upended, while simultaneously checking their own inbox to see if the ax would drop on them.

“These were dream jobs,” one told The Bulwark. “And these jobs are tough to get. I hate what will happen to science and health care and education . . . for all of it for the coming decades.”

—Sam Stein

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HEROIC WORK TO GRIM PURPOSE: A sad story out of Lithuania: The U.S. Army confirmed the deaths of three U.S. soldiers who went missing during a military drill last week in the small NATO nation. The tank they were in sank into a peat bog, and they were unable to escape; a fourth soldier whose body was not recovered is still missing.

The tank was 15 feet deep in unstable mud; the grim task of locating it and recovering the soldiers’ remains required a herculean and dangerous feat of engineering. Military divers, operating at zero visibility in the diesel-polluted muck, managed to attach cables to the vehicle. After hours of winching, the tank was free.

U.S. troops worked heroically here, but they didn’t work alone. Many NATO nations pitched into the effort. “All the Baltic allies were sending their top engineers and scientists and machinists to assist,” a military source tells The Bulwark.

“Our sense of partnership drives us forward,” Supreme Allied Commander Europe Gen. Christopher Cavoli told reporters. “You take care of our soldiers as if they were your own.”

None did more to help than Lithuania itself. Its troops were right there in the bog with our own; its people mobilized nationally in support of the fallen soldiers. A mass for the missing men was held Sunday in the nation’s Catholic cathedral and livestreamed on their leading TV channel; President Gitanas Nauseda said that “Lithuania mourns together with the American nation.”

It sure is nice to have allies.

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DON’T BURN CARS: It isn’t just Venezuelan barbers—the Trump administration is getting serious about other sorts of terrorist, too. People who vandalize Tesla dealerships, for instance. The Justice Department yesterday unsealed charges against Cooper Frederick, a 24-year-old who was arrested after allegedly throwing a molotov cocktail at Teslas parked at a Colorado dealership. (A police officer put out the fire.) And they’re throwing the book at him.

“If you take part in the wave of domestic terrorism against Tesla properties, we will find you, arrest you, and put you behind bars,” Attorney General Pam Bondi said in a video statement posted to social media. “All of these cases are a serious threat to public safety. Therefore, there will be no negotiating. We are seeking 20 years in prison.”

To state the obvious: Trying to damage other people’s cars is a crime and should be treated as such. To state more of the obvious: This stuff rings a bit hollow coming from a Trump administration that just pardoned and/or commuted the sentence of everyone who stormed the capitol on January 6th.

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Cheap Shots

1. Programming note: If you’re a current admin official, please don’t feel ashamed about using Signal to leak things to us.