Will ICE “Disappear” You to El Salvador?
Our constitutional crisis has begun
The details of the Kilmar Abrego Garcia case should chill you to the bone.
On March 15, the government arrested Abrego Garcia, a citizen of El Salvador living lawfully in Maryland. They claimed he was a member of the gang MS-13.
But they didn’t just deport him to El Salvador. They transferred him to CECOT, a notorious mega-prison, pursuant to an agreement with the Salvadoran government.
That decision was unlawful, it turns out.
Abrego Garcia already had a court order, from an immigration judge in 2019, that prohibited his deportation because it was likely he’d be persecuted if returned to his home country.
Abrego Garcia also had no criminal record and denied being a gang member. A federal district court in Maryland, Judge Paula Xinis, agreed that his deportation was unlawful, as did the Supreme Court, who said the government had to “facilitate” his return.
The government admits that Abrego Garcia’s deportation was an “administrative error,” yet it says nothing can be done because El Salvador is a sovereign nation — as if the district court had asked the U.S. government to send in the military and bust him out of prison.
The government, which is paying El Salvador to house U.S. deportees, could simply request, as it has done in the past with other foreign nationals, that Abrego Garcia be returned.
The government hasn’t done so and insists that Abrego Garcia is a gang member and a terrorist. That may or may not be true. But that’s precisely why the Supreme Court ordered the government to facilitate his return: He is entitled to evidence and procedure in a court of law.
Until recently, the government has provided no real evidence to support the claim that he is affiliated with MS-13. Newly released documents point to some evidence, but none of it is a smoking gun.
Due process is the backbone of the rule of law. The government can’t simply say you’re a criminal and then deport you. It first has to follow procedures and meet certain requirements.
Due process prevents “administrative errors” from becoming death sentences.
Yet the errors are mounting. Take the chilling example of the ICE raid where a 19-year-old Venezuelan teenager was reportedly swept up in a raid and sent to CECOT. When one agent said, “No, he’s not the one,” another said, “Take him anyway.” As far as I am aware, the government has made no effort to correct that “administrative error.”
You might ask, what’s to prevent the government from sending U.S. citizens abroad?
In case you think I’m being paranoid, the Fourth Circuit asked this very question: “If today the Executive claims the right to deport without due process and in disregard of court orders, what assurance will there be tomorrow that it will not deport American citizens and then disclaim responsibility to bring them home?”
That option’s on the table. In a recent meeting with the Salvadoran President, Nayib Bukele, Trump said that the United States now wants to send him “home-grown” criminals and asked him to expand the mega-prison to accommodate more people.
That option likely violates the 8th Amendment prohibition on cruel and unusual punishment. But naturalized citizens convicted of certain offenses could have their status revoked, subjecting them to that kind of prison sentence.
You might also retort that only violent criminals would be subject to such punishment, yet one of the President’s deputy assistants, Sebastian Gorka, asserted on television that merely exercising your First Amendment rights in support of due process might subject you to charges of “aiding and abetting” a terrorist.
Free speech and due process may no longer be protections that the Constitution affords you if you are accused of a crime.
A more likely scenario in the short term is that U.S. citizens will be swept up by an “administrative” error. Such errors have already ensnared citizens like Nicole Micheroni, a U.S. citizen and immigration attorney who erroneously received a form letter stating that her parole was canceled — a status that she never had — and she had to self-deport.
She isn’t alone. It turns out that DOGE is attempting to “automate” deportation with the Department of Homeland Security, and now other citizens (including people who aren’t even in the U.S.) are getting these letters. Although the recipients won’t be deported, these kinds of errors create confusion, anxiety, and expense to clear up.
Another chilling example is a U.S. citizen who was detained in Florida on April 17. Even though he presented a birth certificate, a judge would not release him from an ICE hold. At the time of writing, he’s still detained.
Errors can snowball, and these scenarios are likely to grow in number as the administration seeks to ramp up its deportation efforts using AI.
The government’s “Catch and Revoke” AI program, and others in development, are being used to scan social media for “pro-Hamas” protesters like Mahmoud Khalil, the Columbia University student, arrested for his public protests. Marco Rubio’s memo supporting the revocation of Khalil’s green card was premised on the idea that his continued presence “would compromise a compelling U.S. foreign policy interest.”
So why couldn’t some AI program decide, based on equally vague criteria, that you’re a threat to national security?
AI is notoriously bad at handling complex tasks like finding fraud. It makes tons of mistakes. No doubt it’s equally bad at determining someone’s intentions when reading social media posts. What confidence do you have that AI won’t determine, based on some biased algorithm, that you are a criminal or a terrorist and ought to be removed?
Nor does it necessarily end with AI “errors.” What’s to stop the administration from using AI to target Americans with whom it disagrees because of their identity or political opinion? DOGE is reportedly using AI to spy on federal employees who are critical of Trump or Elon.
You might think that putting U.S. citizens on planes to El Salvador without due process is a line that can’t ever be crossed, but the administration has already targeted individuals, universities, and law firms for their ideas.
For now, our courts are the bulwark against this kind of abuse of power. But for how long? As the Fourth Circuit recognized, the collision between the Executive and the Judiciary, which seemed settled with Marbury v. Madison, has reached a critical juncture.
Judge Xinis may ultimately hold the government in contempt if she finds they violated her order (backed by the Supreme Court) to “facilitate” Abrego Garcia’s return. In a different case, Judge Boasberg is close to holding the government in criminal contempt for ignoring his order that planes carrying deportees to El Salvador return mid-flight to the U.S.
These cases will surely wind up before the Supreme Court, whose conservative majority has gifted the President immunity and shown great deference to executive authority. Will the Supreme Court abdicate the judicial branch’s power as Congress did with its appropriation power?
Even if it doesn’t, what happens if the government ignores what the Justices say the law requires?
These are the questions you have to ask. Because I’m not feeling confident that nine people in black robes are enough to protect us from an AI-driven stint in a Salvadoran mega-prison.
And if that doesn’t qualify as a constitutional crisis, I don’t know what does.
