The case of Kilmar Abrego Garcia has gripped the attention of people across the country. Legal experts say the case could have major implications for the rule of law and the separation of power. Some fear that now anyone can be sent to a foreign prison. Scott Detrow speaks with law professor Laurence Tribe.
SCOTT DETROW, HOST:
Tomorrow, President Trump will host the president of El Salvador at the White House. And right now, a man named Kilmar Armando Abrego Garcia is incarcerated in El Salvador. He’s there because he was recently deported by the Trump administration. The deportation was a mistake. The White House acknowledges this. And yet, despite a recent order from the U.S. Supreme Court for the Trump administration to, quote, “facilitate” his return to the U.S., the federal government has yet to do so. It’s a case that legal experts say raises serious concerns about the rule of law and separation of powers. The worry? – that if this stands, the government could send potentially anyone to a foreign prison, regardless of citizenship, with no legal recourse.
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PRESIDENT DONALD TRUMP: I have suggested that, you know, why should it stop just at people that cross the border illegally? We have some horrible criminals, American grown and born.
DETROW: This is what President Trump said recently when asked about the government’s power to send American citizens to El Salvador.
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TRUMP: I think if we could get El Salvador or somebody to take them, I’d be very happy with it. But I have to see what the law says.
DETROW: In a recent New York Times op-ed that he cowrote, Harvard Law Emeritus Professor Laurence Tribe argued, quote, “we should all be very, very afraid of the implications of this case.” I spoke with him about it and asked him why.
LAURENCE TRIBE: The reason I think was made even clearer by Justice Sotomayor in her concurring statement. She said the government’s argument implies that it could deport and incarcerate any person, including U.S. citizens, without legal consequence, as long as it does so before a court can intervene. Think about what that means. What that means is that literally any of us – whether we are from Venezuela or were born in the United States, whether we are immigrants or not, whether we are citizens or not – any of us is vulnerable to basically being kidnapped by masked agents of the United States government who don’t tell us why they’re picking us up, perhaps never to be seen again because we are located somewhere in a dungeon, a prison cell, rotting away, whether it’s in El Salvador or anywhere else in the world.
DETROW: And that’s due to the way the administration has responded saying, well, we don’t have jurisdiction anymore. You’ll have to talk to El Salvador. We don’t have any say over who’s in El Salvadoran prison – to paraphrase the way they have responded to these rulings.
TRIBE: That’s right. I mean, they’ve taken the position that even if it’s clearly illegal and the government admits it, they say too bad, too late, oops. The person is gone, and we cannot get him back. And all nine justices reject the idea that suddenly, the greatest nation on Earth is powerless and its courts are powerless just because someone is outside the country. That’s not the law.
DETROW: You are laying out an explicit, broad concern that the things happening right now give the Trump administration the case to basically throw its enemies in foreign jails. It’s a very extreme circumstance you were laying out. Can you walk me through how you rationally get there, why you think that is not an overreaction?
TRIBE: The government removed this man, Kilmar Armando Abrego Garcia, from the United States in violation of an order. That’s not a hypothetical. It’s not imagination. That’s what they did. And the courts of the United States are told by the Trump administration, there’s nothing we can do about it. Now, the U.S. Supreme Court responds – all nine justices – saying it is simply not the law, that you have lost control. That sounds like a victory for liberty, a victory for all of us. But then when you look at the details, it’s clear that the Supreme Court is basically writing its opinion in yellow…
DETROW: Yeah.
TRIBE: …Because it says the district court should clarify the situation with due regard for the deference owed to the executive branch in the conduct of foreign affairs. Well, it’s not as though this is a foreign policy issue. Then the Supreme Court, in its order, says the government should be prepared to share what it can concerning the steps it has taken and the prospect of further steps to facilitate the return of this illegally removed person. And in the hearing that was held, the government said, well, we can’t share anything. It’s a very complicated issue. What’s complicated? The guy was illegally removed. He’s somewhere in El Salvador. Tell El Salvador to return him.
DETROW: Right. At the time you and I are talking, what happens next is an open question. The federal court hearing has taken place. The judge is clearly frustrated with the nonanswers from the administration, has set a daily check-in deadline for more details about what is happening to Abrego Garcia. When it comes to your larger points, your larger concerns, how much does it matter – again, it matters a great deal to Kilmar Abrego Garcia and his family as to whether or not he is immediately released. But when it comes to your larger concerns, how much would they be assuaged or heightened whether or not he’s released from this prison in the next few days?
TRIBE: If he is not released in the next few days, that will be a signal to everyone in the country that they can be detained indefinitely by stalling maneuvers on the part of the Trump administration, or any future presidential administration, unless courts get there before the government can move. It’s a very deadly game in which the government is told, if you take people who are perhaps ideological opponents of the administration, immigrants, citizens, what have you – people that the government would like to get rid of the way people have been disappeared to gulags throughout history – if you want to get rid of them, here’s how you do it. You just grab them quickly and disappear them. That’s where we will be if he’s not returned.
DETROW: And are you worried that could apply to American citizens as well as people in the country on any variety of immigration statuses?
TRIBE: Absolutely. Even if you are a citizen, when the government has grabbed you and taken you on a flight to nowhere, the fact that you might be a citizen is something they can contest. Oh, we don’t know for sure that he was a citizen or that she was a citizen. How do we know? The whole point of due process is to make sure that what the government claims about you is true.
DETROW: And let me ask you the flip side. If he is released in the next few days, do you still see a crisis here, based on how this initially played out and the administration’s initial response to the courts?
TRIBE: Well, if he’s released, I will be somewhat relieved. But the position the government is taking is so extreme that his release, unless they pull back and say in the future, we’re not going to try this with anyone else, that’s not going to be very much solace. It’s all voluntary on the part of the government. That doesn’t give you any guarantee. The whole point about a police state isn’t that it always acts to silence people or to imprison them or to torture them. It’s that the sword of Damocles hangs over all of us all the time. That has an enormous chilling effect. We’ve seen it with law firms. We’ve seen it with respect to universities. And sure, it would be good if Mr. Garcia were released, but until the government begins to recognize and act in accord with the recognition that it is bound by the law and not just by its own preferences, we will all be in great danger.
DETROW: That is Harvard Law Professor Emeritus Laurence Tribe. Thanks so much for talking to us.
TRIBE: Thank you, Scott.
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