Consider This from NPR - Why one deportation case has legal scholars afraid for even U.S. citizens

Episode Date: April 13, 2025

The Trump administration admitted that it wrongfully deported a man named Kilmar Abrego Garcia.It had also been arguing that courts cannot compel the U.S. government to return him to this country.The U.S. Supreme Court has unanimously determined the government must "facilitate" his release from the El Salvador prison where he is being held, but the Department of Justice has so far only confirmed his presence at that prison.If he is not returned to this country to face due process, people following this case point out a troubling implication: The government could potentially send anyone to a foreign prison – regardless of citizenship – with no legal recourse.Harvard University emeritus professor of constitutional law Laurence Tribe explains his argument.For sponsor-free episodes of Consider This, sign up for Consider This+ via Apple Podcasts or at plus.npr.org.Email us at [e-mail] more about sponsor message choices: podcastchoices.com/adchoicesNPR Privacy Policy

Naib Bukele, the president of El Salvador, has called himself the world's coolest dictator. His government has put over 80,000 people in prison in a crackdown on gangs and has repeatedly touted the cruelty with which it treats prisoners. And on Monday, he will be visiting the White House, in part because he has offered the surfaces of a mega prison to the United States. He has agreed to accept for deportation any illegal alien in the United States. He has agreed to accept for deportation any illegal alien in the United States who is a criminal from any nationality, be they MS-13 or Tren Daragua, and house them in his jails.

That's Secretary of State Marco Rubio speaking in El Salvador in early February. President Trump's mass deportation initiative recently saw around 260 men apprehended across the U.S. and flown to that maximum security prison in El Salvador. The Trump administration says the men were criminals and gang members. But CBS's 60 Minutes reported, At least 22 percent of the men on the list have criminal records here in the United States

or abroad. The vast majority are for nonviolent offenses like theft, shoplifting, and trespassing. About a dozen are accused of murder, rape, assault, and kidnapping. For 3% of those deported, it is unclear whether a criminal record exists. But we could not find criminal records for 75% of the Venezuelans, 179 men, now sitting in prison. The Department of Homeland Security countered that reporting by saying these individuals are quote, terrorists, though it is not providing documentation. The Trump administration has admitted that one of the men was mistakenly deported in

an administrative error. A Salvadoran national living in Maryland named Kilmar Armando Abrego Garcia. The White House maintains that he is a member of the gang MS-13. His lawyers say he's been living in Maryland peacefully for 14 years and that he's never been charged with a crime in any country. In 2019, a judge granted Abrego Garcia protected legal status that was supposed to prevent him from being deported. Federal agents arrested and deported him anyway. Last week, the U.S. Supreme Court unanimously ordered the government to, quote, facilitate

his return to the U.S., though the language the court used stopped short of mandating his return. That case is now playing out in a lower court. But even if Abrego-Garia is returned, legal experts are still alarmed at what this means for everyone. People like Lawrence Tribe, a professor emeritus of constitutional law at Harvard University. Even if you are a citizen, when the government has grabbed you and taken you on a flight to nowhere, the fact that you might be a citizen is something they can contest.

Consider this. This standoff is raising major questions about due process and about the separation of powers that is key to the federal government. From NPR, I'm Scott Detra. This message comes from WISE, the app for doing things and other currencies. With WISE, you can send, spend, or receive money across borders, all at a fair exchange rate. No markups or hidden fees.

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Following the Supreme Court's ruling, a federal judge in the case of Kilmar Armando Abrego-Garcia has ordered daily status updates on the Trump administration's plans to bring him back to the U.S. A Department of Justice lawyer said the government intends to comply with the Supreme Court's order, but so far the Justice Department has only confirmed that Abrego-Garcia remains in El Salvador. If federal courts cannot compel the Trump administration to return him to this country, people following this case point out a troubling implication that the government could send potentially anyone to a foreign prison, regardless of citizenship, with no legal recourse.

I have suggested that, you know, why should it stop just the people that cross the border illegally? We have some horrible criminals, American-grown and born. This is what President Trump recently said when asked about the government's power to send American citizens to El Salvador. I think if we could get El Salvador or somebody but to take them, I'd be very happy with it,

but I have to see what the law says. In a recent New York Times op-ed, Erwin Chermioninsky and Lawrence Tribe wrote that we should all be very, very afraid of the implications of this case. I spoke with Tribe, an emeritus professor of constitutional law at Harvard University, and asked him why that is. The reason, I think, was made even clearer by Justice Sotomayor in her concurring statement. She said, the government's argument implies that it could deport and incarcerate any person,

including U.S. citizens, without legal consequence as long as it does so before a court can intervene. Think about what that means. What that means is that literally any of us, whether we are from Venezuela or were born in the United States, whether we are immigrants or not, whether we are citizens or not, any of us is vulnerable to basically being kidnapped by masked agents of the United States government who don't tell us why they're picking us up, perhaps never to be seen again, because we're located somewhere in a dungeon, a prison cell, rotting away, whether it's in El Salvador or anywhere else in the world. And that's due to the way the administration has responded, saying, well, we don't have

jurisdiction anymore. You'll have to talk to El Salvador. We don't have any say over who's in a Salvadoran prison. To paraphrase the way they have responded to these rulings. That's right. I mean, they've taken the position that even if it's clearly illegal and the government admits it, they say, too bad, too late, oops, the person is gone and we cannot get him back. And all nine justices reject the idea that suddenly the greatest nation on earth is powerless and its courts are powerless just because someone is outside the country. That's not the law. Soterios Johnson You are laying out an explicit broad concern that the things happening right now give the

Trump administration case to basically throw its enemies in foreign jails. It's a very extreme circumstance you were laying out. Can you walk me through how you rationally get there, why you think that is not an overreaction? The government removed this man, Kilmar Armando Abrego Garcia, from the United States in violation of an order. That's not a hypothetical, it's not imagination. That's what they did. And the courts of the United States are told by the Trump administration, there's nothing

we can do about it. Now the US Supreme Court responds, all nine justices saying, it is simply not the law that you have lost control. That sounds like a victory for liberty, a victory for all of us, but then when you look at the details, it's clear that the Supreme Court is basically writing its opinion in jello because it says the district court should clarify the situation with due regard for the deference owed to the executive branch in the conduct of foreign affairs. Well, it's not as though this is a foreign policy issue. Then the Supreme Court in its order says the government should be prepared to share what

it can concerning the steps it has taken and the prospect of further steps to facilitate the return of this illegally removed person. And in the hearing that was held, the government said, well, we can't share anything. It's a very complicated issue. What's complicated? The guy was illegally removed. He's somewhere in El Salvador. Tell El Salvador to return him. Right. At the time you and I are talking, what happens next is an open question. The federal court hearing has taken place. The judge is clearly frustrated. The non-answers from the administration has set a daily check-in deadline for more details

about what is happening to Abrego Garcia. When it comes to your larger points, your larger concerns, how much does it matter? Again, it matters a great deal to Kilmorrow Abrego Garcia and his family as to whether or not he is immediately released. But when it comes to your larger concerns, how much would they be assuaged or heightened whether or not he's released from this prison in the next few days? If he is not released in the next few days, that will be a signal to everyone in the country that they can be detained indefinitely by stalling maneuvers on the part of the Trump administration or

any future presidential administration unless courts get there before the government can move. It's a very deadly game in which the government is told if you take people who are perhaps ideological opponents of the administration, immigrants, citizens, what have you, people that the government would like to get rid of, the way people have been disappeared to gulags throughout history. If you want to get rid of them, here's how you do it. You just grab them quickly and disappear them. That's where we will be if he's not returned.

Are you worried that could apply to American citizens as well as people in the country on any variety of immigration statuses? Absolutely. Even if you are a citizen, when the government has grabbed you and taken you on a flight to nowhere, the fact that you might be a citizen is something they can contest. Oh, we don't know for sure that he was a citizen or that she was a citizen. How do we know? The whole point of due process is to make sure that what the government claims about you is true.

And let me ask you the flip side. If he is released in the next few days. Do you still see a crisis here based on how this initially played out and the administration's initial response to the courts? Well if he's released I will be somewhat relieved but the position the government is taking is so extreme that his release unless they pull back and say in the future we're not going to try this with anyone else, that's not going to be very much solace. It's all voluntary on the part of the government. That doesn't give you any guarantee.

The whole point about a police state isn't that it always acts to silence people or to imprison them or torture them. It's that the sword of Damocles hangs over all of us all the time. That has an enormous chilling effect. We've seen it with law firms, we've seen it with respect to universities, and sure it would be good if Mr. Garcia were released, but until the government begins to recognize and act in accord with the recognition that it is bound by the law and not just by its own preferences, we will all be in great danger. That is Harvard Law Professor Emeritus Lawrence Tribe. Thanks so much for talking to us.

Thank you, Scott. This episode was produced by Tyler Bartlem and Mark Rivers. It was edited by Patrick Jaren Watananan, Sarah Robbins, Courtney Dornig, and Eric McDaniel. Our executive producer is Sammy Yenigan. It's Consider This from NPR. I'm Scott Detro. There's a lot going on right now. Mounting economic inequality, threats to democracy, environmental disaster, the sour stench of

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