For a brief moment last week, Donald Trump acknowledged what everyone already knew — that the US government could bring Abrego Garcia home from the El Salvador torture facility known as CECOT, where he was wrongly sent in what the administration claims was an “administrative error.” But within days, Trump’s administration was back to mocking demands to secure Garcia’s return, refusing to take even basic steps while hiding behind twisted interpretations of both the Supreme Court’s ruling and constitutional authority.
On Friday, we noted that the Supreme Court gave a ruling mostly in support of Garcia, saying that a US court can order the executive branch to “facilitate” a return of Garcia, but then playing word games to say that it can’t “effectuate” such a return, because that’s a matter of foreign policy between the US government and the foreign sovereign of El Salvador. That makes the order sound good, but leaves tons of loopholes, and the administration seems eager to exploit every loophole.
This was even as Donald Trump initially said that if the Supreme Court said Garcia should be brought home, he should obviously be brought home:
Trump: “If the Supreme Court said bring somebody back, I would do that. I respect the Supreme Court.”
Reporter: “And the lower court as well…?”
Trump: “Oh no, no. I’m not talking about the lower court. I have great respect for the Supreme Court.”
That is, as Garcia’s lawyers quickly told the court, an admission that Trump knows he can and should bring Garcia back to the US.
Yesterday, President Trump confirmed that the United States has the power to facilitate Abrego Garcia’s release from prison and return to the United States: “If the Supreme Court said, ‘Bring somebody back,’ I would do that. … I respect the Supreme Court.”1 Of course, that is precisely what the Supreme Court did when it ruled that this Court’s injunction “properly requires the Government to ‘facilitate’ Abrego Garcia’s release from custody in El Salvador and to ensure that his case is handled as it would have been had he not been improperly sent to El Salvador.” Noem et al. v. Abrego Garcia et al., 604 U.S. ____, 2025 WL 1077101, at *1 (Apr. 10, 2025). The Government should be required to comply with the Supreme Court’s order that it “ensure that his case is handled as it would have been had he not been improperly sent to El Salvador,” by taking all available steps to release and return Abrego Garcia to Maryland.
District Court judge Paula Xinis demanded answers from the government regarding Garcia’s whereabouts and what steps had been taken to get him back to the US. But, when the DOJ lawyer on the case said he couldn’t provide more details, the only consequence from the judge was demanding daily status reports with answers to three specific questions:
(1) the current physical location and custodial status of Abrego Garcia;
(2) what steps, if any, Defendants have taken to facilitate his immediate return to the United States;
(3) what additional steps Defendants will take, and when, to facilitate his return
The DOJ’s response to the court’s demands for information has made it quite clear they have no intention of complying with the judge’s demands and (more importantly) they’re not even interested in trying to bring Garcia back. The first status report merely confirmed Garcia’s location while attempting to wash the government’s hands of responsibility and even the authority to do anything:
It is my understanding based on official reporting from our Embassy in San Salvador that Abrego Garcia is currently being held in the Terrorism Confinement Center in El Salvador. He is alive and secure in that facility. He is detained pursuant to the sovereign, domestic authority of El Salvador.
The second status report managed to be even less helpful, answering none of the court’s questions while introducing new, unsubstantiated claims to justify the government’s inaction.
Although Abrego-Garcia has an order of removal issued by an immigration judge, I understand that he should not have been removed to El Salvador because the immigration judge had also granted Abrego-Garcia withholding of removal to El Salvador. However, I also understand that Abrego Garcia is no longer eligible for withholding of removal because of his membership in MS-13 which is now a designated foreign terrorist organization
Again, the government itself has already admitted that Garcia was trafficked to El Salvador based on an administrative error. To come back now and try to claim it was legitimate to traffic him this way is beyond obnoxious.
This, also, should be extremely troubling. No one has presented any evidence that Garcia is a member of MS-13. Indeed, the evidence mentioned in the past has been beyond flimsy (basically some other random dude just said Garcia was a member). The US government suggesting that it can just flat out ignore protection orders by declaring someone a member of a group with no due process is just more crazed fascist bullshit.
Meanwhile, as for Trump’s claim that if the Supreme Court says Garcia should be brought back to the US (as it has), he sorta walked that back later in the weekend in the weirdest way possible, by talking about his planned meeting today with El Salvador’s ruthless authoritarian dictator Nayib Bukele… and then saying that the people the US has handed over to Bukele to shove in his concentration camp are under El Salvador’s “sole custody.”
In case you can’t see the image, it’s a Trump Truth Social post saying:
Looking forward to seeing President Bukele, of El Salvador, on Monday! Our Nations are working closely together to eradicate terrorist organizations, and build a future of Prosperity. President Bukele has graciously accepted into his Nation’s custody some of the most violent alien enemies of the World and, in particular, the United States. These barbarians are now in the sole custody of El Salvador, a proud and sovereign Nation, and their future is up to President B and his Government. They will never threaten or menace our Citizens again!
Except, if we’re talking about Garcia, he wasn’t sent to El Salvador under the “alien enemies” act, but under a different authority. And we also know the claim of “sole custody” is bullshit for a variety of reasons (some we already discussed).
More importantly, Trump’s claim about El Salvador having “sole custody” of Garcia is demonstrably false. The Associated Press has published snippets from the agreement between the US and El Salvador that show the US maintains significant control:
“The Republic of El Salvador confirms it will house these individuals for one (1) year, pending the United States’ decision on their long term disposition,” wrote El Salvador’s ministry of foreign affairs in a memo obtained by The Associated Press.
That same report confirms that the US is paying El Salvador $20k per year to house each prisoner and has sent an initial $6 million with another $15 million likely to follow soon. If, as the agreement notes, the US gets to decide “their long term disposition” that certainly means the US can determine that El Salvador needs to send Abrego Garcia back.
Furthermore, the fact that Trump and Bukele are meeting seems like the exact time when Trump — who again just days ago said we should bring Garcia back — can and should just straight up ask Bukele about sending Garcia back. And any political reporter who is in the room is committing journalistic malpractice if they don’t ask Bukele and Trump about this.
But it seems unlikely to happen. In another filing in the district court, the Justice Department put forth the argument that the court simply can’t order the Executive Branch to ask El Salvador to send Garcia back, because that’s “foreign policy” and the exclusive purview of the Executive:
Defendants understand “facilitate” to mean what that term has long meant in the immigration context, namely actions allowing an alien to enter the United States. Taking “all available steps to facilitate” the return of Abrego Garcia is thus best read as taking all available steps to remove any domestic obstacles that would otherwise impede the alien’s ability to return here. Indeed, no other reading of “facilitate” is tenable—or constitutional—here.
This reading follows directly from the Supreme Court’s order. Order, at 2 (holding any “directive” must give “due regard” to the Executive Branch’s exclusive authorities over “foreign affairs”). It tracks longstanding executive practice. Id. at 4 (Statement of Sotomayor, J.) (describing ICE Policy Directive as the “well-established policy” of the United States). And it comports with how the federal courts have understood the outer bounds of their own power. See Reply in Support of Application to Vacate the Injunction, at 5-7 (Sup. Ct.) (No. 24A949) (collecting authorities).
On the flipside, reading “facilitate” as requiring something more than domestic measures would not only flout the Supreme Court’s order, but also violate the separation of powers. The federal courts have no authority to direct the Executive Branch to conduct foreign relations in a particular way, or engage with a foreign sovereign in a given manner. That is the “exclusive power of the President as the sole organ of the federal government in the field of international relations.” United States v. Curtiss-Wright Export Corp., 299 U.S. 304, 320 (1936). Such power is “conclusive and preclusive,” and beyond the reach of the federal courts’ equitable authority. Trump v. United States, 603 U.S. 593, 607 (2024).
Plaintiffs’ additional relief runs headlong through this constitutional limit.
The DOJ’s sudden concern for constitutional limits would be laughable if it weren’t so cynical. This is the same administration that has repeatedly trampled constitutional rights — from due process to equal protection — in its broader campaign of human trafficking. Now, when asked to help correct its own admitted “administrative error,” it discovers a passionate devotion to separation of powers?
But even setting aside this rank hypocrisy, the DOJ’s argument completely misrepresents what the Supreme Court actually said. The Court’s order was crystal clear:
The order properly requires the Government to “facilitate” Abrego Garcia’s release from custody in El Salvador and to ensure that his case is handled as it would have been had he not been improperly sent to El Salvador
The emphasis on Garcia’s “release from custody in El Salvador” makes it impossible to pretend this was just about domestic procedures. The Court clearly expected the US government to take meaningful action to secure Garcia’s freedom.
But step back from the legal parsing for a moment and consider what the DOJ is really saying here: Even with clear authority under the US-El Salvador agreement, even with millions of dollars in leverage, even after admitting Garcia was wrongly sent there, they are deliberately choosing to leave him in a torture camp rather than simply ask for his return.
This has nothing to do with ordering El Salvador to do anything or to infringe upon their sovereignty. It is telling the US to take actions which are well within its power and control, to ask El Salvador to send him back, which seems well within the agreement the two countries signed.
But, even as Trump has said that’s what should happen, now the Trump admin is saying it won’t even ask El Salvador to do this.
This is pure evil. It made a mistake, human trafficking someone who was legally protected, to a torture concentration camp in another country with no due process. And when asked to correct that admitted mistake, the US government is saying “we won’t even ask” even though it’s clear that they could get him back.
That is sociopathic behavior.
As for the courts, Judge Xinis needs to stop accepting these paper-thin status reports and start demanding that officials with actual knowledge appear in her court immediately. The administration’s continued obstruction makes a mockery of judicial authority.
And when this case inevitably returns to the Supreme Court, as it must, Chief Justice Roberts will face a stark choice about his legacy. He can continue treating this as just another technical legal dispute about executive authority, or he can recognize the horrifying historical parallel unfolding before him: while Nazi Germany deliberately placed its concentration camps outside judicial review, Roberts risks going even further — using the power of judicial review itself to legitimize America’s own offshore torture camps.
The Chief Justice has always been acutely conscious of his place in history. He should consider that his legacy may well be remembered as the jurist who gave constitutional blessing to concentration camps used by the American government to disappear anyone they dislike. No amount of careful legal parsing can obscure that devastating truth.
Title: Trump Admits US Can Get Abrego Garcia Back From Torture Camp He Was Accidentally Sent To; But DOJ Makes Clear It Won’t Even Ask
URL: https://www.techdirt.com/2025/04/14/trump-admits-us-can-get-abrego-garcia-back-from-torture-camp-he-was-accidentally-sent-to-but-doj-makes-clear-it-wont-even-ask/
Source: Techdirt
Source URL: https://www.techdirt.com
Date: April 14, 2025 at 06:34PM
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