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The outcry against the Trump administration’s exile of hundreds of Venezuelan immigrants and one Salvadoran, Kilmar Abrego Garcia, to CECOT, a notoriously abusive prison in El Salvador, has largely focused on the denial of due process. This complaint is correct. But it misses a second and more important point. There is no legal process that would authorize the transfer of these men to Salvadoran custody or their immurement in the Terrorism Confinement Center, or CECOT. Indeed, what President Donald Trump and his minions are doing is a cynical evasion of multiple provisions of the Constitution, and, arguably, a serious federal crime.
Trump is not merely deporting these people, which is to say expelling them from the United States to the territory of another sovereign nation. Rather, he is arresting them in the United States, shackling them, shipping them directly to a prison in El Salvador, and paying the Salvadoran government to imprison them there, apparently indefinitely inasmuch as the Salvadoran government has declared that CECOT prisoners “will never leave.” Worse, the prison in question is, according to a Salvadoran human rights expert, “a facility whose very design is cruelty. … [T]he whole prison itself is designed to reduce human life to not dying.”
To say that some government action violates due process is to say that the government did not give you a proper trial or hearing before doing something to you that, if it could prove legally specified facts, it had a legal right to do. For instance, if the government can prove in traffic court that you drove 50 miles per hour in a 25-mph zone, it can take your money in the form of a fine. If the government can prove in district court that you embezzled $10,000 from your employer, it can lock you up in a prison. If the government can prove that you murdered your neighbor with malice aforethought and under aggravating circumstances, it can, at least in states with the death penalty, kill you.
But there is no law in the United States, federal or state...
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