Passover began this past weekend with the traditional meal and discussion known as the “seder.”
“Seder” means order, and the meal requires a precise liturgy unchanged for thousands of years. (The English translation has undergone a few rewrites to soften up the edges of what is a fairly martial story.) I was struck, as I hadn't been previously, by the following line recited during the breaking of the middle matzoh: “For the sake of our redemption, we say together the ancient words which join us with our people and with all who are in need, with the wrongly imprisoned and the beggar in the street.”
The reference to the "wrongly imprisoned” this weekend of course brought immediately to mind Kilmar Abrego Garcia, now residing in a hellhole gulag due entirely to his wrongful, mistaken deportation by the United States. I have previously analyzed the rank lawlessness and unconstitutionality of his abduction by the Trump Administration. And last Thursday, a unanimous Supreme Court affirmed that the Constitution requires the government to facilitate his release from custody in El Salvador
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The Administration filed its latest response in the case on Sunday. It is a model of disingenuousness and arrogant contempt. The response simply ignores Judge Paula Xinis’s demand to explain what steps the government has taken—or contemplates taking—to reverse the deep injustice. It goes on to misconstrue the Supreme Court order, replacing the Court’s affirmation of Judge Xinis’s command to facilitate Abrego Garcia’s return with a made-up distinction between 1) steps to remove domestic obstacles that impede his return (there are none), and 2) any efforts whatsoever to effect Abrego Garcia’s release from custody in El Salvador.
The supposed distinction tracks neither what the Supreme Court ordered nor the law. On the contrary, it mangles the Court’s opinion in what could only have been a purposeful way. The DOJ filing asserts that the Court ordered it to take “all available steps to facilitate the return of Abrego Garcia.” But in fact, the Court expressly held that Xinis’s order “properly requires the Government to ‘facilitate’ Abrego Garcia’s release from custody in El Salvador.” It would have been a cynical and empty judicial command had it been limited to removing domestic obstacles to his return—whatever that even means.
Yes, there must be limits to the judiciary’s ability to nudge the Executive where the commands transgress demonstrable national security prerogatives, and those limits could be reached if El Salvador flatly refused to cooperate. Here, though, nobody with any sophistication doubts that El Salvadoran President Bukele will leap to do exactly what he thinks will please the U.S. president.
(In fact, an easy face-saving way out of the Abrego Garcia mess for the United States would be for President Bukele to announce today that, in his sovereign mercy, he is returning Abrego Garcia to the United States. If that happens, no one should be fooled: Bukele is a two-bit dictator who will do exactly what he thinks—or is told—Trump wants.)
The Administration’s filing sets the stage for a showdown with Judge Xinis on Tuesday, when she can be expected to excoriate DOJ lawyer Drew Ensign and demand actual answers and a good-faith showing that they’ve tried to comply with the order the Supreme Court affirmed.
But I want to focus today not on the patent lawlessness of the Department’s response but on its monstrousness. From the moment this grievous mistake was revealed, the Administration’s prevailing view about the ultimate Kafkaesque nightmare they have imposed has been a mixture of indifference and enthusiasm.
Thus, Trump, Attorney General Bondi, Vice President Vance, and immigration czar Homan have all trotted out versions of the argument that the "administrative error” is insignificant because Abrego Garcia belongs in the El Salvador Center for Terrorism Confinement (CECOT) anyway.
Vance argued, completely falsely, that Abrego Garcia was a “convicted MS-13 gang member,” when in fact he has never been convicted of that crime or any other in the United States. We’ve learned Vance was jumping to conclusions based on a stray suggestion from a confidential informant.
Bondi tried to deflect responsibility for the mistake onto immigration authorities. When a DOJ attorney acknowledged in court that the detention was an error—which was the only answer the attorney could have given consistent with his duty of candor to the court, and an answer the U.S. had already acknowledged—Bondi placed him and his supervisor on administrative leave for failing “to zealously advocate on behalf of the United States.”
Trump most recently has asserted that Abrego Garcia is in the "sole custody of El Salvador" and that his return is therefore "up to President Bukele and his government.”
This contention is at best highly misleading, and designed to frustrate Judge Xinis, who has current control of Abrego Garcia's case with the support of a unanimous mandate from the Supreme Court to “require” the Government to facilitate Abrego Garcia’s release.
It is preposterous to argue—and the Administration has done nothing to show—that it would be anything other than a light lift to secure Abrego Garcia's release with a simple request to Bukele, who is due to visit the White House today. And the Court, in effect, has required the Administration to undertake that light lift, and not to try to play games with national security assertions that are really beside the point.
Again, though—bogus legal assertions aside—it is stunning that the Administration remains so committed to not remedying its own grave error. Its bullheaded, reflexive position is basically: “Oh well, so we made a mistake, but there’s nothing to be done about it.”
This stance is a grotesque rejection of the most fundamental axiom of the rule of law and civilized society.
Here is how one eminent American jurist put it: “[i]f the rule of law is not the same for everyone, then it is not the rule of law.” His colleague echoed the sentiment when he proclaimed that equal justice under law “means that every person, regardless of wealth or power or station, is entitled to the same fair process.”
As the passage in the Seder makes plain, this recognition—far more than a precept of American law—is an axiom in the Judeo-Christian tradition, central to the rule of law everywhere it exists. It is firmly endorsed in the writings of the Founders. Ben Franklin is the source of the famous maxim: better one hundred guilty persons should escape than one innocent person should suffer.
Consider that idea, and the recognition of the ultimate horror of punishing the innocent that it encapsulates. Franklin is asserting—and his assertion has become talismanic—that a high cost to public safety and justice is better than the conviction of a single innocent. How much worse, then, is the summary delivery to barbaric life imprisonment of a man who should never have been rounded up in the first place?
The Administration has stood the Franklin adage on its head, changing it to something like: it is great that 100 persons we think are guilty should suffer, but greater still that 100 guilty persons and one innocent person suffer.
The U.S. government is ostensibly our government—a government of the people. Exercising power in our name, the president has brought shame upon all Americans with his embrace of a paradigmatic injustice, coupled with the lie that letting an innocent man rot in prison is a foreign policy imperative against which the law, the Constitution, and fundamental morality all must give way.
The coming test in the Supreme Court will pit first principles of justice and human decency against an arid claim that the intonation of the words “foreign affairs” or “national security” is a license for evil. As it did unanimously last week, the Court must stand firm against that grotesque assertion.
By the way, the names of the eminent jurist and colleague who so firmly recognized the principle that requires the return of Abrego Garcia: Chief Justice John Roberts and Associate Justice (and Trump appointee) Brett Kavanaugh.
Talk to you later.
Reprinted with permission from Substack.
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