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.“
