Sioux Falls lawyer: Welcome to the new America, where Trump and his minions can act as they please
“Authoritarianism,” in politics and government, is understood as the blind submission to authority and the repression of individual freedom of thought and action. Authoritarian regimes’ central focus is on a strong leader who favors a nationalist interest over the rights of individuals.
These same regimes are not opposed to using force, whether the force of law or even the military, to accomplish their goals. Authoritarian governments have covered a wide range of ideologies, from the Soviet Union, China, and Cuba (communists) to Nazi Germany and Italy under Mussolini (fascists).
Modern-day authoritarian governments are operating in places like Turkey, as well as Hungary, under Viktor Orban (who is highly regarded in many Republican and conservative organizations).
An important case that is currently in the news demonstrates how far our country has steered toward an authoritarian ideology. The removal of Kilmar Abrego Garcia is a case in point in developing an understanding of how the Trump administration is embracing an authoritarian ideology in its actions under the leadership of Department of Homeland Services (DHS) Secretary Kristi Noem, Attorney General Pam Bondi and others.
Not only was Abrego Garcia swept up in a raid by government agents, he was also transported by plane to Texas and then ultimately to a notorious maximum-security prison in El Salvador (CECOT) pursuant to an agreement the president of that country has with the U.S. (reportedly $6 million to house and hold approximately 300 detainees).
Abrego Garcia is a legal resident of Maryland, married to a U.S. citizen, and has children who are also citizens. He immigrated from El Salvador as a teenager and was ultimately granted protective status by a U.S. immigration judge. All of these facts afford him all of the protections under the U.S. Constitution provided to every American.
While the government has made claims that Abrego Garcia has ties to the violent gang MS-13, his lawyers maintain this is not the case at all. Additionally, a federal judge who has heard this case called on the government to present facts in support of this claim, and since that time, the government has admitted that Abrego Garcia’s wrongful arrest and detention was due to an “administrative error.” As a side note, the attorney who admitted to the administrative error has now been put on leave by Attorney General Bondi, who claimed that he was not representing the government “zealously” — by admitting to the truth of the matter.
Administrative error or not, Abrego Garcia’s rights under the First (freedom of expression and assembly), Fourth (unreasonable search and seizure), Fifth (right to due process), and Eighth (cruel and unusual punishment) Amendments have been violated in addition to several key federal statutes.
Judge Paula Xinis, a federal district judge in Washington, D.C., has ordered the government to return Abrego Garcia to the U.S., recognizing that he was wrongfully arrested, detained and transported out of the country. The reaction from the Trump administration has been consistent and predictable.
Stephen Miller, the deputy chief of staff to President Trump, who is said to be the architect of Trump’s anti-immigration policies, has even gone so far as to sharply criticize the judge, calling her a “Marxist judge [who] now thinks she’s president of El Salvador. On April 7, Chief Justice John Roberts issued a temporary stay of Judge Xinis’s order. Late on April 10, the U.S. Supreme Court, in a 9-0 decision, ordered the government “to take all available steps to facilitate the return of Abrego Garcia to the United States as soon as possible.”
One of the key principles in our system of laws is that all persons can seek the remedy of “habeas corpus,” which requires the government holding a person in custody to produce that person in court to determine whether their imprisonment is lawful. In this case, Abrego Garcia has numerous fundamental constitutional rights, but pursuant to the Trump administration, no remedy to protect them.
Government lawyers have made the claim that even though he was wrongly arrested in the U.S. and detained pursuant to policies at the direction of the Trump administration, ultimately a federal judge has no authority over this case because Abrego Garcia is not being held in custody in the U.S. With the most recent ruling, it is clear that the Supreme Court did not buy the administration’s argument.
The government’s position disregards basic legal principles of contract and agency law in order to deny basic human rights. The U.S. has to have some form of agreement with El Salvador. According to news reports, in exchange for detaining deportees, El Salvador receives $6 million.
One has to assume that responsible people in the DHS would require certain terms and conditions in a contract, such as maintaining minimum housing standards, basic care, such as food and water, and assurances that there is no torture of detainees. Evidence of this close relationship was clearly demonstrated to the world when Kristi Noem was able to inspect the CECOT facility and be photographed with her expensive jewelry and ICE costume in front of a group of jailed detainees.
Additionally and probably most important, El Salvador presumably cannot simply release any of these detainees without U.S. approval. Therefore, for government officials to claim that their hands are tied is outlandish and untruthful.
Translation: We can’t run the “gulags”, but we can contract them out to other countries. While on its face, this case applies to Trump administration’s aggressive anti-immigration policies, there are alarming undercurrents of its approach that could apply to every American citizen who may find themselves on some sort of “enemies list”.
How is this case a clear example of a government exercising authoritarian powers?
Starting with the broad nature of the immigration roundups by government agents. Officers determined a point scale based upon the type of tattoos that a person had. While violent gang members tended to have tattoos, not all tattoos indicate gang membership.
This and other cases are indicative of an overreliance on what can be faulty observations. These individuals were simply profiled (mostly identified as Hispanic) and detained without establishing any probable cause in many instances.
Individual liberties granted to all persons in this country, whether citizen or not, are now supplanted by the anti-immigrant sentiments of the Trump administration, and fundamental protections granted to everyone in this country under law are discarded. Government accountability for violating basic rights is denied by playing a shell game with human beings. Whisking people away to foreign prisons resembles the worst of the Russian gulags and even concentration camps.
One must then ask what authority does the Trump administration have over every American, and can the approach used to remove and hold Abrego Garcia be used against average citizens? The answer, unfortunately, is yes.
Under the Trump administration’s policies, once a person is out of the country it’s too late — out of sight, out of mind. As such, the arrest and removal of anyone without basic due process rights could be accomplished in the same fashion, and as long as the person is being held in custody in another country (or even in foreign airspace in another case), there is no remedy for removal and return to the U.S. according to the government.
Ask the question, why would the U.S. government pay a foreign country to house several hundred people when there is most certainly adequate capacity among all of the detention facilities in the U.S.? Even in past statements, President Trump has remarked about sending as many as 30,000 detainees to Guantanamo Bay’s detention facility, as well as internment camps along the southern border. The answer should be both obvious and very alarming. It is to avoid accountability and eliminate all remedies afforded by our laws.
Let’s say the recent protests around the country have people in the administration upset.
Taking it further, let’s say that Kristi Noem decides that she wants to make a point and sets out to have any or even all of the protesters in Rapid City and Sioux Falls arrested and removed from the U.S. This case is no different. Under the policies of the Trump administration, once out of the country, a citizen has no habeas protection remedy.
It bears repeating: The only reason to remove anyone from the U.S. is to get around the system of laws that protect individuals’ rights.
The Supreme Court has heard this case and ruled that the government may not avoid accountability for violating one’s constitutional rights simply by removing a person from the country. With this ruling by courts, an equal branch of government, the ultimate test is how the Trump administration responds, and whether it will follow the Constitution.
If it disregards the court … welcome to the new America.
Dave Zimbeck is an attorney living in Sioux Falls.
Photo: public domain, wikimedia commons
