Due Process and the Matter of Kilmar Abrego Garcia

It’s all about the right every defendant has to due process in America. It’s really that simple.

The Constitution of the United States guarantees the right of due process to Kilmar Abrego Garcia, the man our country has acknowledged it mistakenly banished to El Salvador. There is not a scintilla of doubt, other than that expressed by President Trump, whether or not Mr. Garcia is entitled to the due process denied him by the Trump Administration.

Everyone subject to the jurisdiction of the United States of America is constitutionally guaranteed the right to due process. Everyone! The right to due process in America is what keeps a reckless or overbearing government from using the American legal system to disappear defendants without according them their day in court. Due process is also what levels the playing field when an overzealous or self-absorbed prosecutor or politician decides to target anyone in America. The deliberate and deceitful denial of due process to any defendant in America, should be an affront to every American. No one, and certainly not the President of the United States, should countenance the denial of due process to any person in America who stands accused of violating the laws of our country.

It was, therefore, breathtaking to hear the President of the United States opine, as he did in a commencement address at the University of Alabama this week, “They have to let us do the job that the voters want us to do. Judges are interfering, supposedly based on due process. But how can you give due process to people who came into our country illegally? They want to give them due process. I don’t know.”

Well, the President of the United States should know. The fifth and fourteenth amendments to the Constitution of the United States guarantee every person in America who is subject to the jurisdiction of our laws the right to due process. It is a right in America, not a courtesy or privilege that can be extended or retracted.

Kilmar Abrego Garcia has not been charged with committing any crime while he has been in America. While he may be subject to deportation for fleeing to America as an undocumented person when he was sixteen years old, that is a decision for our immigration courts to make. Thus far, the only action taken by our immigration courts with respect to Mr. Garcia was to grant him the special status, “withholding from removal” which prohibited the government from deporting him to El Salvador, his home country, from which he fled when threatened by gangs there. Nonetheless, El Salvador is precisely where he was remanded by Immigration and Customs Enforcement, without even a pretense of due process, and that is where he is still confined today.

No one can be dragged to stand before a court in America for summary judgment without due process. Due process in America is a bedrock principle of the American legal system. Understand this: everyone subject to the laws of the United States of America is constitutionally entitled to due process whenever subject to prosecution or other punishment such as summary removal from our country. That President Trump seems to lament that reality should be troubling to everyone.

Due process is a right that no one, not even the President of The United States, can summarily abrogate or otherwise deny an accused person in America. Only a fool or a tyrant would abrogate that right in the interest of expediency. Due process is the jewel of American jurisprudence.

President Trump has decided to fight Mr. Garcia’s right to due process. It is a foolish, hardheaded and dangerous position for President Trump to embrace. The Trump Administration acknowledges that Mr. Garcia was mistakenly banished to El Salvador, and, therefore he, by definition, was denied his right to due process.

The United States Supreme Court has ruled that the Trump Administration must “facilitate Mr. Garcia’s return to the United States,” a ruling the Trump administration has chosen to ignore.

This week a Trump-appointed Republican federal judge in Texas ruled that the Trump administration’s invocation of the Alien Enemies Act in order to deport Mr. Garcia and other undocumented migrants without due process is unlawful because the Alien Enemies Act is predicated on an armed act of war against the United States.

To add insult to injury, an immigration court, in 2019 had specifically determined that Mr. Garcia was not to be remanded to El Salvador, where Mr. Garcia had a well-founded fear for his safety. He was, nonetheless, banished to, essentially, a Salvadoran prison-for-hire by the Trump Administration. According to Salvadoran President, Nayib Bukele, El Salvador requires that an individual has been found guilty of a crime in the United States, before it will accept that person for incarceration. There has been no such finding of criminality against Mr. Garcia since he entered the United States as a teenager several years ago.

This week Judge Fernando Rodriquez, a Trump-appointed federal judge in Texas, ruled that the Trump administration’s invocation of the Alien Enemies Act in order to deport Mr. Garcia and other undocumented migrants without due process was unlawful. The Alien Enemies Act is predicated on an armed act of war against the United States. No president prior to President Trump has invoked the Alien Enemies Act since the end of the Second World War. Judge Rodriquez’s decision means President Trump cannot rely on the Alien Enemies Act to detain or deport anyone from the United States.

The ruling is a significant blow to President Trump’s decision last month to invoke the Alien Enemies Act, to deport undocumented aliens. President Trump’s efforts to deport individuals under the Alien Enemies Act (AEA) have faced numerous legal challenges. Judge Rodriguez’s ruling, however, is the first to conclude that the president exceeded his authority by relying on a law that was intended to be used during war time.

The Trump administration, Rodriguez wrote, “does not possess the lawful authority under the AEA to detain Venezuelan aliens, or transfer them within the United States, or remove them from the country.”

“The President cannot summarily declare that a foreign nation or government has threatened or perpetrated an invasion or predatory incursion of the United States, followed by the identification of the alien enemies subject to detention or removal,” Judge Rodriquez found.

“Allowing the President to unilaterally define the conditions when he may invoke the AEA, and then summarily declare that those conditions exist, would remove all limitations to the Executive Branch’s authority under the AEA, and would strip the courts of their traditional role of interpreting congressional statutes to determine whether a government official has exceeded the statute’s scope. The law does not support such a position,” Judge Rodriquez ruled.

Although President Trump’s use of the Alien Enemies Act has been litigated in multiple courts nationwide, including the Supreme Court, Rodriguez is the first judge to have reached a final decision on the merits.

I carry no specific brief for Mr. Garcia. However, I and hopefully all Americans have enormous appreciation of the importance of due process in America. Mr. Garcia has never been convicted or charged with any crime while living in America, and in 2019 he was granted "withholding of removal" status, which allowed him to legally work and live in our country. The Department of Homeland Security granted Mr. Garcia a work permit which allowed him to work in Maryland prior to his deportation and denial of due process. President Trump should facilitate Mr. Garcia’s return to the United States and end his war against Mr. Garcia and the due process to which he is clearly entitled.

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Recent podcasts have featured my commentary on Liz Cheney’s book, “Oath and Honor,” as well as my commentaries regarding:

U.S. Representative Jim Jordan,

Brian Kemp and Those Republicans of Georgia,

The Trump Indictments,

The Fox Corp Settlement,

The CNN Trump Town Hall,

The Hunter Biden plea deal,

The New American Cult of Personality,

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Rikki Klieman, Attorney, Network News Analyst, and best-selling author;

John Thoresen, Executive Director, Barbara Sinatra Children’s Center;

Katherine Gehl, co-author of The Politics Industry and founder of the Institute for Political Innovation;

Jazz artist Ann Hampton Callaway;

Outlander author Diana Gabaldon;

AI Data Scientist Lawrence Kite;

Ryan Clancy, Chief Strategist of No Labels;

Former Senator Barbara Boxer;

Former Senator Joe Lieberman;

and former Maryland Governor Larry Hogan.

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