Due Process

"Nor shall any person...be deprived of life, liberty, or property, without due process of law." - Fifth Amendment

This article has been a long time coming, and with President Trump’s recent statements on the bigger issue, I think this chapter in our national saga can be pretty well summed up now. “Your secretary of state says everyone here, citizens and non-citizens, deserve due process. Do you agree?” To which the President of the United States replied, “I don’t know. I’m not a lawyer, I don’t know.”

Headlines and nightly news shows have been zeroed in on the story of Abrego Garcia’s deportation to El Salvador's maximum security prison CECOT since his transfer in mid-March. Hundreds of detainees from the US are being held there at approximately $25,000 per person, with more pouring in on regular chartered flights from across the country. There have been no estimates on the administration’s total goal, but Trump has asked El Salvador’s President Nayib Bukele to build “about five more places. It’s not big enough.” CECOT is currently at about half of its 40,000 inmate capacity.

And so we come to the test case that has captured our nation’s attention.

Kilmar Abrego Garcia grew up in El Salvador before leaving for the US in 2011, at age 16. He lived in Maryland with his partner then wife Jennifer Sura and three children - all American citizens. In 2019, following an arrest for loitering in a Home Depot parking lot, Prince George's County police accused three of the arrested men of being members of MS-13, a primarily El Salvadoran gang originating in 1980s Los Angeles. No charge - on loitering, gang membership, or otherwise - was filed, instead per standard procedure, Abrego Garcia was transferred to the custody of Immigration and Customs Enforcement for deportation.

At his immigration court proceeding, accusations of MS-13 membership were examined but ultimately not claimed. Garcia was ineligible for asylum as a request must be submitted within one year of crossing the border. Instead, he applied for "withholding of removal" which requires a higher burden of proof. The judge granted it, noting Garcia's testimony was "internally consistent, externally consistent" and "appeared free of embellishment." A recipient of withholding status is ineligible for a green card or permanent residency and must have no felony convictions, nor have committed serious crimes prior to arrival, nor judged a security risk to the US. It's a very limited status, but you’ve got to take what you can get.

On March 15th, Garcia and three planeloads of Alien Enemy Act deportees and Salvadorans - each with a life and a story their own - were flown to CECOT. Garcia has not been convicted or even charged of any crime. In a court filing in late March, US government attorneys wrote “Although ICE was aware of his protection from removal to El Salvador, Abrego Garcia was removed to El Salvador because of an administrative error,” but could not now fix that mistake as he was in El Salvador's custody.

Because playing by the established rules would be too hard.

Upon learning these three flights were en route, US District Court Judge James Boasberg issued an emergency hold to turn the planes around while the government’s legal reasoning was considered in court. To this, El Salvador’s Bukele, the self-ascribed “world’s coolest dictator,” tweeted, “Oopsie... Too late 😂.” which Steven Cheung, the White House Communications Director, then retweeted. Notably, Bukele is now fighting claims from journalists and gang leaders alike that the foundation of his rise to power was through secret financial and power-sharing agreements with the country’s gangs in contrast to his public “tough on crime” campaign.

There are other ongoing cases challenging the nature of American society. Consider Abdul Khalil, a green card holder, a Columbia University graduate student known for organizing pro-Palestinian efforts, which the Department of Homeland Security has cited as causing "adverse foreign policy consequences for the U.S." DHS agents detained him in his house on March 8th stating they had a warrant for his arrest without showing one. Immigration court proceedings have shown that there was not a warrant. He is currently in holding, but will likely be deported.

“We’re citizens. That’s what I kept saying. We’re citizens.” she cried.

Or for perhaps a very bleak future: on April 24th, ICE, DHS, and FBI agents executed an early morning search warrant on a home in Oklahoma City but instead of the names listed, they found a woman and her three daughters recently moved from Maryland. “They wanted me to change in front of all of them, in between all of them,” Marissa said. “My husband has not even seen my daughter in her undergarments—her own dad, because it’s respectful. You have her out there, a minor, in her underwear.” The family was moved out into the rain, while 20 agents ransacked their home taking phones, laptops, and cash. Marissa was not given a card or contact to get her property back. US Marshals say they’re aware but not responsible. FBI says likewise. DHS responded that they’d respond. So much for the 4th Amendment ensuring security “in their persons, houses, papers, and effects, against unreasonable search and seizure.”

All of this is a test.

How far can the White House push the courts? Push Congress? What number, what kind of person can be detained and deported without the people pushing back? The Supreme Court reaffirmed last month that even in the current context of the government’s argument, “Detainees are entitled to notice and opportunity to be heard appropriate to the nature of the case” granting limited but vital rights to due process in the court system. That doesn’t work for Trump who declares that we will not have “a million or 2 million or 3 million trials” for every illegal immigrant. Meanwhile, despite clear legal barriers to this, a Department of Justice memo says federal agents can enter your home without a warrant in search of an “alien enemy” member of Tren de Aragua.

Due process, in the American context, refers to that package of rights around the relationship between a person and the legal system, limiting the strength of the government and narrowing the avenue for prosecution supported foremost by the 5th and 14th Amendments. Procedural due process is why warrants, public notices, and fair hearings are key components before such a deprivation may occur. And the courts have repeatedly found in favor of these rights for non-citizens and corporations, not only for US citizens.

Even Speer, Göring, and Hess were given trials, defense attorneys, due process.

One of the most famous, most telling examples of America’s faith in due process was at the very end of World War II. Amid smoldering ashes and endless graves, Europe was broken but at peace. Nazi Germany was dead, and in that spirit of mournful, righteous vengeance, France, the Soviet Union, the United Kingdom, and the United States convened a joint tribunal under the Nuremberg Charter to give these monstrous survivors of the Nazi regime a fair trial. Despite proposals for summary execution from the UK or a quick show trial from the USSR, . For the first time in history, "crimes against humanity" were charged, accused, defended, and sentenced.

On March 6th, 1770, eight British soldiers shot and killed five protesting colonists. John Adams, then just a Boston attorney with dreams of liberty, volunteered to be their defense attorney.

“May it please your Honours and you Gentlemen of the Jury, I am for the prisoners at the bar, and shall apologize for it only in the words of the Marquis Beccaria: ‘If I can but be the instrument of preserving one life, his blessing and tears of transport, shall be a sufficient consolation to me, for the contempt of all mankind.’ . . . We find, in the rules laid down by the greatest English Judges, who have been the brightest of mankind; We are to look upon it as more beneficial, that many guilty persons should escape unpunished, than one innocent person should suffer. The reason is, because it’s of more importance to community, that innocence should be protected, than it is, that guilt should be punished.” - John Adams

Death amid protests against British tariffs and taxes.

Read his whole defense here. This was the first court case in the US (then-Thirteen Colonies of course) to use reasonable doubt as a standard, as well as sequestering of the jury. There are two key pieces here to highlight. First, liberty demands much of us; to balance the scales of justice, an accusation must be examined carefully to discern true guilt from the sieve of presumed innocence. How many innocents are we willing to punish alongside the guilty? Second, no matter the crime no matter the public sentiment, it is critical to the pursuit of fair and legitimate justice that a standard procedure be followed. After their sentencing - 6 acquitted, 1 soldier and the officer guilty of manslaughter and their thumbs branded - there were no protests despite the city’s heightened blood. Justice had been served. Ironically today, in 1798 then-President Adams would shape and sign the Alien Enemies Act, heightened powers in effect during times of war or invasion, that Trump is using for these deportations.

So, if giving every accused their time in court, with proper paperwork and representation all, was good enough for a young nation on the cusp of bloody revolution and for literal Nazi war criminals… what the hell are we doing here? If America is the land of the free and the home of the brave, what are we so afraid of that we will shackle our own feet, our 250 years of liberty-in-progress for this?

Both the Constitution as written and precedent across centuries of court cases affirm that the package of fundamental rights we hold dear - your freedom of speech, your right to bear arms, to be secure in your home - apply to all persons in the United States. First, the US Constitution makes clear, purposeful references to citizens when certain rights only apply to them. Article IV, Section II states "the citizens of each state shall be entitled to all privileges and immunities of citizens in the several states" before proceeding to describe how "a person" must be treated in the justice system. That distinction gives leeway to the states to differentiate how their laws would pertain to citizens and non-citizens, while ensuring the former are treated equally across state lines.

"All persons, whether citizen or strangers, within this land, shall have equal protection in every State in this Union in the rights of life and liberty and property." - John Bingham, Principal Author of the 14th Amendment

The 4th, 5th, and 14th Amendments are at risk, to put it lightly and concisely. While Congress watches from the bleachers, the executive branch is choking out the judicial. Stephen Miller, White House Homeland Security Advisor, and his organization America First Legal have filed a suit against Chief Justice John Roberts and the US Judicial Conference, accusing it of being an “unconstitutional shadow agency.” The goal is to make all of the federal government a part of the White House. And meanwhile, Trump has ignored the Court’s ruling on Garcia and further telegraphed his intentions, telling Bukele “Homegrown criminals are next. . . I don't know what the law says on that, I'm all for it.”

There are cracks digging deeper daily into the US Constitution, and it does not matter what party, what ideology, what faith is yours. When a federal agent knocking on the door wakes us up at 5:00 a.m., we’re just Americans.

“In final analysis, true justice is not a matter of courts and law books, but a commitment in each of us to liberty and mutual respect.” Take care of yourself, and if you can, a neighbor.