In its pursuit of a policy, Donald Trump’s government is content to destroy a man
What’s at stake in the case of Kilmar Abrego Garcia
KILMAR ABReGO GARCIA moved to America illegally when he was 16. His lawyers say his parents sent him north after a gang in El Salvador threatened to kidnap him and rape his sisters. Eight years after coming to America, he was detained while looking for work in a Home Depot car park. Maryland’s police thought he might be a gang member, though that claim was never tested in court. His case was heard by an immigration judge, who denied Mr Abrego Garcia’s asylum claim. But the judge ruled that he could not be deported because he had a well-founded fear of persecution, and so he was released. This is how the law works in America: it can be slow, evidence is not always clear and judgments can frustrate everyone.
Then the law broke down. In defiance of that ruling, Mr Abrego Garcia was deported to El Salvador in March, without a trial or a chance to appeal, and put in a prison that specialises in the degrading treatment of alleged gang members. Then the Trump administration said it had made a mistake. The Supreme Court issued a 9-0 ruling that the federal government should “facilitate” his return to America.
A few days later Nayib Bukele, El Salvador’s president, appeared in the Oval Office and was asked about Mr Abrego Garcia. He could not possibly return a “terrorist” to the United States, he said. President Donald Trump, usually quick to assert his power over others, smiled as if to say: I would so like to obey the Supreme Court, but what can you do?
Governments have the right to deport people who migrate illegally. Mr Trump promised a campaign of mass deportation and voters gave him a mandate to carry it out. In Mr Abrego Garcia, the administration has picked a soft target. An illegal immigrant, tainted by the allegation of being a gang member, he will not command the sympathy of many Americans. As a non-citizen, he does not enjoy the full panoply of protections. Even so, Mr Abrego Garcia does have rights, and by trampling them Mr Trump is undermining the rule of law.
Many of America’s freedoms were established by plaintiffs whom the majority condemned. The right to free _expression_ of every churchgoing midwesterner is underpinned by court rulings in favour of a Ku Klux Klan leader (in Brandenburg v Ohio), a pornographer (Hustler Magazine v Falwell) and a man who burned an American flag outside a Republican convention (Texas v Johnson). The courts upheld their rights, and thereby secured the rights of everyone else. The Trump administration is turning this idea on its head.
In addition, the administration cannot deny someone the protection of the courts just because they are not a citizen. Even the detainees at Guantánamo Bay, site of the worst abuse of domestic liberties ordered by the White House this century, could appeal to a judicial process of sorts. Mr Abrego Garcia had expressly been spared from deportation to El Salvador. Mr Trump’s grin mocked the principle that America is a place where the government cannot suspend rights whenever it chooses and where the head of government willingly defers to the highest court. In other words, that America is not El Salvador (see Americas section).
Last, Mr Abrego Garcia’s case shows that the Trump administration is prepared to destroy a man’s life in pursuit of its policies. The right not to be locked up indefinitely without trial, or habeas corpus, is absolute and a fundamental principle by which people can limit the arbitrary exercise of state power. Even by the time of Thomas Jefferson’s first inaugural address it had existed in common law for centuries. Jefferson called it one of the elements forming a “bright constellation” that had guided the young nation through revolution and reformation. That is still true. But as long as Mr Abrego Garcia remains in El Salvador’s Terrorism Confinement Centre, that constellation will be dimmed—and Americans should worry. ■