The most profound and ominous aspect of the controversy surrounding the deportation of Kilmar Ábrego García to El Salvador is that the Trump administration has figured out a way to circumvent the right of habeas corpus, not just for foreigners but also for the American people.
Why is that important? Because without habeas corpus, a right that stretches all the way back to Magna Carta in 1215, there is no free society. As British and American legal scholars have maintained for centuries, habeas corpus is the linchpin of a free society.
For example, freedom of speech is a fundamental right that the federal government is prohibited from taking away. Let’s assume that one day, an American citizen castigates President Trump for policies he has adopted. A few days later in the middle of the night, Homeland Security agents bash down his door, take him into custody, and incarcerate him.
That’s where habeas corpus comes into play. The victim, through his lawyer, files a petition for a writ of habeas corpus with a federal judge. The judge issues the writ, which a U.S. Marshal serves on the person who is holding the critic in jail. The writ commands the custodian to immediately produce the critic in court. At the habeas hearing, the judge orders the government to show just cause as to why it is holding the critic. When it fails to do so, the judge orders the immediate release of the critic. The critic walks out of the courtroom a free person.
Thus, it is the right of habeas corpus that enforces the right of freedom of speech and the exercise of other rights. Without habeas corpus, people’s rights become a dead letter. That’s how important habeas corpus is.
The Framers understood the critical importance of habeas corpus to a free society. That’s why they enshrined it in the Constitution.
The right of habeas corpus developed over centuries of resistance by the British people to the tyranny of their own government. For example, after Magna Carta, English common law courts developed and applied the writ against the king’s arbitrary imprisonment of English citizens. In 1679, Parliament adopted the Habeas Corpus Act, which clarified and codified much of what English courts were doing from the 13th century through the 17th century.
Needless to say, rulers who have dictatorial proclivities hate habeas corpus. They don’t want any judicial interference with their decisions to incarcerate people who question their decisions, who they sometimes refer to by the label “terrorist.”
In the midst of the Civil War, for example, President Lincoln suspended habeas corpus, which enabled military officials to arbitrarily arrest and incarcerate critics of Lincoln. When the Supreme Court declared Lincoln’s act unconstitutional, Lincoln simply ignored the ruling.
After the 9/11 attacks, the Pentagon and the CIA established a torture and prison camp at their base in Guantanamo Bay, Cuba. The reason they established it in Cuba was because they figured that it would be totally independent of U.S. judicial interference and the U.S. Constitution, including habeas corpus. The Supreme Court ultimately held otherwise, declaring that Gitmo remained within the jurisdiction of the federal judiciary.
Salvadoran president Nayib Bukele taking a tour of El Salvador’s CECOT prison.
But the presumption of habeas corpus is that the federal courts have jurisdiction over the officials alleged to be unlawfully holding the person. That’s where the arrangement that Trump and El Salvador’s president Nayib Bukele have entered into comes into play. With this extremely clever — even ingenious — arrangement, Trump has figured out a way to circumvent the centuries-old right of habeas corpus.
Let’s assume that Trump initiates a real war with, say, Iran, much like President Bush initiated a war with Iraq. Trump declares a “national emergency.” Following the precedent set by President Wilson during World War II, Trump decrees that criticism of his war will not be countenanced. Anyone who violates his decree will be punished severely.
If a military commander starts taking people into custody, there is no problem, right? All that that the victims need to do is have their lawyer secure a writ of habeas corpus from a federal judge, right?
Not anymore. What would happen instead is that some well-armed military unit will bash down the door of the critic’s home in the middle of the night. They then take the critic into custody and quickly whisk him to a nearby airport, where a waiting military plane immediately flies him to El Salvador, where he is delivered into the clutches of Salvadoran officials who then incarcerate and torture him as a “terrorist.”
What then? Nothing. The accused “terrorist” remains in that Salvadoran prison being tortured and there is nothing anyone can do about it. U.S. officials, including the president, will say that they no longer have control over the critic. They will say that he is now under the sovereign control of a foreign nation. They will say that they have no power to issues orders to officials of another nation-state.
By the same token, the U.S. federal courts have no power over a foreign regime. The president of a foreign country can ignore rulings of U.S. courts to his heart’s content.
Once 25 or 50 American critics are whisked away in the dead of night and suddenly find themselves in El Salvador’s brutal prison the next day, I will guarantee you that silence will quickly spread across the land. Very few people will dare criticize the president or his war effort.
Whatever might be said of President Trump, he is clearly a very smart man. He has now displayed his brilliance by developing a practical way to circumvent a right that stretches back centuries — the right of habeas corpus. Time will tell whether it produces a subservient, silent, and even supportive populace, much like what has happened in other nations throughout history.
