An American constitutional crisis brews in a Central American prison
A test of American constitutional democracy is unfolding in an unlikely place: a shadowy Central American prison system.
U.S. President Donald Trump has done numerous things in his second term that have been deemed authoritarian or illegal, and he's threatening to do more.
But there's one line he hasn't crossed, at least not yet. He has not wilfully, clearly, defied a court order, crossing the Rubicon into a constitutional no man's land where rules don't apply.
That's what makes the case of Kilmar Abrego Garcia more than a murky tale about one man's banishment to different El Salvadoran prisons, including, initially, an infamous gulag-like anti-gang facility.
Much is unclear about the man himself.
A court decision this week acknowledged allegations that Abrego Garcia is a low-level gang member, beset by a history of domestic abuse allegations. Or was he actually escaping the gangs of his native El Salvador, to build a life as a construction worker in Maryland, with an American wife and child?
Of his alleged gang ties, a court decision this week said: "Perhaps, but perhaps not."
What's clearer about this case is that it has the potential to open the floodgates to the constitutional crisis under Trump that many have feared and predicted.
The administration is being ordered by the courts to at least try to follow the law. In other words, make an effort to get Abrego Garcia back; file the proper paperwork; and seek to deport him again — but legally.
The response from Trump's team, so far? Outright mockery. The administration was reprimanded by lower courts and ridiculed them. The Supreme Court weighed in, and now, for the first time, Trump may be defying the high court.
He clearly relishes this fight: Instead of talking about massively unpopular tariffs, Americans are now talking again about migration — a popular issue for Trump.
But members of the legal community, and not just liberals, insist this is bigger than migration, or any single case, and transcends normal domestic politics.
"We're fast approaching our first real moment of truth," said Harold Hongju Koh, the former dean at Yale Law School, a constitutional law professor and a legal adviser to the State Department during the Obama presidency.
"Will the Supreme Court let him get away with a transparent sham? If not, will Trump openly defy a court order?" Koh wrote in an email to CBC News. "And will the American public accept the shocking claim that Trump has the power to ship innocents like Abrego García and even American citizens to offshore hellholes without even a fig leaf of due process?"
A lower court described this case as staggering. In a decision penned by a Reagan appointee, the court said some legal disputes are complex. But not this one.
"It is not hard at all," the three-member Fourth Circuit Court of Appeals said in a unanimous decision released Thursday.
"The government is asserting a right to stash away residents of this country in foreign prisons without the semblance of due process that is the foundation of our constitutional order," the decision read.
"This should be shocking not only to judges, but to the intuitive sense of liberty that Americans … still hold dear."
Background on the caseHere's Abrego Garcia's version of the story, recounted in court filings.
He entered the U.S. illegally as a teenager in 2011. He says he was escaping El Salvador because a street gang in the capital was threatening his family. His mother Cecilia ran a business selling pupusas or cornmeal cakes, and was coerced into paying protection money to the Barrio 18 gang.
When the fees went up, she was told that if she didn't pay, one of her sons would either have to join the gang or be killed. In a panic, the family sent one son to the U.S., where he became a citizen.
Then the gang started asking about Kilmar — who fled.
In 2019, he was arrested at a gathering spot for day-labourers at a Home Depot in Maryland. He was slated for deportation. He tried and failed to claim asylum, but he did win a rare withholding of removal order. This meant a pause on deportation to El Salvador, because of the alleged risk from the gang.
He married an American, and they had a son, who is non-verbal and autistic. He got a full-time job as a sheet-metal worker, had no criminal record and satisfied the court conditions by appearing for regular check-ins with authorities.
Suddenly, two months ago, he was pulled over by immigration authorities. His wife learned from photos online, days later, that he'd been taken to El Salvador's anti-terrorism jail.
She spotted him among a group of men shown kneeling on the ground with their hair shaved and arms over their heads.
A federal lawyer admitted in court that the deportation had been a mistake. The courts have now demanded that Trump bring Abrego Garcia back, or at least try.
But the administration has brushed them off. In fact, it says, there was no mistake. It even suspended the federal attorney who admitted the error.
Team Trump's takeNumerous Trump officials, and the president himself, have dismissed the lack of due process.
"Do you think that we're going to sit around, wringing our hands, wondering if, 'Oh, maybe we should release this person, give them a little bit of extra time, give them a little extra chance to plead their case?' " asked White House aide Stephen Miller.
"Then what? They kidnap somebody? They slit their throat? They shoot them in the head and we say, 'Well at least the illegal alien got due process.' They're here illegally. The only place that they deserve to go is to some country other than our country."
Miller blamed the media for focusing on this case and said he wished they'd spend more time reporting on murders by unlawful migrants; the White House highlighted one such case by inviting a grieving mother to the media briefing room.
Trump's team then took the rare step of releasing case files questioning Abrego Garcia's innocence. One alleged that, when arrested in 2019, he was wearing symbols associated with gangs; was with two well-known criminals; and that a reliable informant identified him as a "Chequeo" — the lowest rank of an MS-13 chapter. The file also alleged his gang nickname was "Chele."
The administration has also publicized two separate police reports, filed on different occasions, where his wife accused him of battery — of punching and scratching her. It even released an old police report where, after a routine traffic stop, an officer opined that he might be involved in human smuggling.
But Abrego Garcia has never been charged with a crime. His lawyers also call the gang allegation, by a single source, illogical, as he was accused of belonging to a New York-based gang chapter but had only ever lived in Maryland.
A lower court ordered that Abrego Garcia be returned and given due process, and it wants sworn testimony from administration officials, by April 23, explaining why they haven't complied so far.
The Supreme Court hasn't gone that far. It said the administration must try to "facilitate" his return, and show how it has tried. It's also asked the lower court to adjust its instructions.
The final test will come when the courts deliver new instructions, and how Trump responds to them.
The initial signs aren't promising. The administration has continually mischaracterized the initial Supreme Court decision, calling it a 9-0 decision favouring Trump.
It has also thrown up its hands, saying that with all these procedures, it's impossible to deport millions of unlawful migrants. But this isn't about millions of cases: it's about the 1,000 people a year typically granted the withholding-order status, like Abrego Garcia.
El Salvador's president has joined in the mockery. Nayib Bukele professed to be powerless to put Abrego Garcia on a plane to the U.S.
He said Abrego Garcia wasn't going anywhere and trolled Democratic Sen. Chris Van Hollen, who visited with the inmate in El Salvador, claiming the two were "sipping margaritas." Van Hollen denied they had been drinking alcohol and claimed Bukele's people placed glasses on the table to stage photos.
In one of his numerous tweets, Bukele has described this as a chess game.
But it's not a game. It's a dead-serious issue for a constitutional republic. In its decision this week, the Fourth Circuit Court practically begged the government to respect the law. It called the behaviour lawless.
"[The administration] may succeed for a time in weakening the courts, but over time history will script the tragic gap between what was and all that might have been, and law in time will sign its epitaph," the ruling said.
"We yet cling to the hope that it is not naïve to believe our good brethren in the Executive Branch perceive the rule of law as vital to the American ethos. This case presents their unique chance to vindicate that value and to summon the best that is within us while there is still time."
cbc.ca
