The End of Due Process?

Image of the CECOT prison in El Salvador, posted to X by Salvadoran dictator Nayib Bukele

We are now over a month into a slow-motion Constitutional Crisis, after Kilmar Abrego Garcia and more than 275 other men were illegally renditioned to CECOT, a brutal El Salvadoran prison camp funded by the United States. Justifying their actions through a hodge-podge of unproven allegations and the invocation of the Alien Enemies Act, the government turned these men over to the care of a foreign dictatorship without providing any chance for the accused to argue their case or petition the courts. Since then, the Trump Administration has openly defied court orders - including a unanimous decision by the Supreme Court - and has continued to make broad and unproven claims about Garcia and others.

Where Things Stand

The brilliant Legal Eagle has published a detailed video recounting the events surrounding the Kilmar Abrego Garcia case, the legal issues in question, and highlighting the true depth of the Trump regime's lawlessness. Note that, as events are moving rapidly in this case, this doesn’t reflect the latest developments, but it is still an excellent explanation of the background:

Last week, Maryland Senator Christopher Van Hollen travelled to El Salvador to meet with the government there, and was ultimately able to meet with Garcia and confirm his welfare. Though - perhaps predictably - the Salvadoran government attempted to spin the event with manipulated propaganda, the net effect was positive. According to Van Hollen, Kilmar Garcia has been moved out of CECOT into better conditions. Most critically, coverage of the Senator’s trip has begun to break through the media bubbles in our own country, with polls showing mounting disapproval of Trump’s handling of immigration. At the present time, there are indications that some sort of agreement with the government has been reached with the court and Garcia’s lawyers, although details are sketchy. 

This is a spot of good news in an incredibly awful and dangerous situation. But it is critical to remember that this is only one case among countless abuses and illegal actions, and Kilmar Garcia is only one of the administration's many other victims: 

• Mahmoud Khalil, a pro-Palestinian student activist at Columbia University, husband of an American citizen and a new father  

• Andry Hernandez Romero, a gay makeup artist from Venezuela who came to the United States in search of asylum, who was sent to CECOT in El Salvador. The government claims - without evidence - that Romero is a member of the Tren de Aragua gang

• Rumeysa Ozturk, a Tufts University graduate student snatched off the street by ICE for co-writing an op-ed critical of Israel

• Kseniia Petrova, a Harvard biomedical researcher who was publicly critical of Vladimir Putin, held since February, allegedly for failing to declare frog embryos

• Jose Hermosillo, an American citizen and resident of New Mexico who asked a Border Patrol agent for assistance, and was detained under false pretenses for 10 days.

Public opposition to these illegal detentions and deportations is growing, and court cases are progressing. But we must also be prepared for the very real possibility that the Trump regime will not only dig in and defy the courts, but may escalate.

First They Came for the Immigrants

On Tyranny author Timothy Synder (Bluesky)

The Trump Administration seems to believe it has found an unassailable loophole to due process in the form of an (assumed) absolute Executive authority over foreign affairs. All they need do is declare someone an enemy combatant, whisk them off of US soil, and then do as they will.

Simultaneously, the Administration has claimed they have no ability to return the individuals it wrongfully deported, due to the sovereignty of El Salvador. If this stands, they have effectively created a lawless zone where they can send anyone they like, any time they like, based on nothing more than "because we say so."

Already, Trump has stated that he would like to expand the illegal rendition process to include American Citizens. On a hot mic at a White House press event earlier this week, Trump suggested to El Salvadoran dictator Nayib Bukele that he would need to build at least five more prison camps.

The Administration claims that this would apply only to hardened criminals and terrorists, a fig leaf of rhetorical cover offered for Republican legislators to hide behind as they face an increasingly concerned public. This is a bit like giving the proverbial boiling frog a sip of ice water so they won't realize how hot things have become. It is increasingly clear that Trump and his cabinet are laying the groundwork for a full-on suppression of dissent, should they feel threatened. And the way things are going? We will likely be crossing that particular line in the very near future.

Only a few weeks ago, AG Pam Bondi began pursuing charges of domestic terrorism against three accused of vandalism in connection with TeslaTakedown protests. Would these individuals be subject to rendition to El Salvador or elsewhere? Under the Administration's assertions, yes. Simply declaring someone a terrorist effectively removes all their rights, regardless of the merits of the claim.

It seems important to ask: what happens when other events turn up the heat on Trump and his regime? What will they do if this likely recession becomes a depression, when the tariffs really begin to bite, if/when people continue to lose their jobs, when the cutbacks to essential services cause more and more people to take to the streets in protest? How do authoritarians usually behave when they begin to feel threatened, when they realize that a loss in the next election might mean a day of reckoning in court for all the illegal things they have already done?

Regardless of whatever other abuses and disasters this Administration perpetrates, if we lose due process, our options for redress become fewer and more desperate. We need to push back now, before Trump and his minions can consolidate power further.

What Can We Do?

Despite the grim nature of the current crisis, we are not powerless, far from it. But we face the same challenges that have gotten us to this point on so many other issues, and there are many hills we have to climb.

Protect Vulnerable Communities

It is now clear that ICE has effectively become Donald Trump's secret police: abducting people without warrants, masked and refusing to identify themselves, approaching people under false pretenses in order to capture them, and authorized to operate within 100 miles of the border, which puts two-thirds of Americans within their reach. The sudden and secretive nature of ICE raids makes them seem difficult to properly counter, and it's easy to feel powerless in the face. But it is possible, and increasingly we are seeing communities fight back to protect vulnerable persons.

Activist groups need to begin coordinating with those who are already in the fight. We need to study and replicate the tactics that have worked to thwart ICE, including human chains, rapid response "flash mobs" to film and protest ICE agents in numbers, informing the vulnerable (and protesters!) about their rights, and get informed about the state of the issues. We need to be witnesses when illegal detentions and abductions occur, and not allow ourselves to be shocked and intimidated into silence.

Keep Pressuring Elected Officials

As we have seen on so many other issues, our institutions have largely failed to respond to the growing threat of Trump's ICE Gestapo. Prior to the election, there were many who assumed they would be safe in blue states and municipalities, but we have now seen that the opposite is true: the Trump regime is aggressively targeting people in Democratically-controlled areas. While a few in Congress like Senator Van Hollen have stood up, many other officials, including prominent Democratic governors and mayors, have acted like deer caught in the headlights, claiming there is little they can do.

Simply put, we need to help these elected officials find their spines. We need to remind them of the stakes and ask them point-blank if they are capable of protecting their own citizens and constituents. If they say it's a Federal matter, ask them to explain how abduction without a warrant is legal. If they say it's a matter for the courts to decide, ask them what happens when the executive ignores the courts? Pin them down, push them, and don't let up until they commit to fighting back by whatever means are at their disposal.

And if they cannot answer the moment? We must begin a movement to primary and replace them. Elected officials who cannot commit to protecting their citizens are worse than useless. They are collaborators.

Secure Legal Representation

Many of us in the activist community have talked about the need to get a good lawyer before we consider civil disobedience or similar actions. But how many of us have done it? (I count myself in this group, by the way.) Given the current trajectory, we should begin to share resources and consider fundraising mechanisms for legal representation should the need arise. We should also not assume that, if we refrain from civil disobedience, we are protected. If there is no due process, we cannot assume that erroneous or false accusations will be dismissed. We need experts in our corner who are experienced and committed.

Keep Building the Movement

It's easy for a repressive government to identify a handful of troublemakers in a protest of a few hundred, and make examples of them. It is not so easy to do when there are thousands, or tens of thousands.

Image Credit: Titima Ongkantong

There is power and safety in numbers, and we need to build them - not just within a single organization, but by continuing to build a network of organizations, with open lines of communication between them, so that everyone can assemble when it counts. That is, of course, easier said than done. It's easy to grow weary when faced with the continually broken information environment we see across this country every day, when we encounter people who are cynical, or fearful, or misinformed. It's sometimes difficult to make time for protests and direct actions when life continues to throw the same challenges at us. But we need to continue plugging away, building our numbers and our strength so we have numbers to call on when it counts the most.

This is all frightening, to be sure. The prospect of needing to consider getting a lawyer might make us wonder if this is too risky. But if we allow ourselves to be intimidated into silence, then Trump and the MAGA authoritarians have already won. The next months and years are our best chance to defeat the plans of this fascistic regime, and return America to the rule of law, where everyone gets their day in court.