Walter Olson
Walter Olson
Until yesterday, April 14, there was still some prospect of sidestepping the worst legal possibilities in the Kilmar Abrego Garcia case. First, and most obviously, the Trump administration could simply have brought Garcia home from El Salvador’s brutal gulag to face whatever further legal process it might choose to set in motion. Any normal administration would have done this after it emerged that the Maryland man had been sent to El Salvador by mistake against the terms of a previous and binding court order. Had the Trump administration simply been seeking short-term goodwill with the public, it would surely have taken this easy way out. That it did not suggests that it was instead building toward a longer-term objective it saw as more important.
Alternatively, or in addition, Salvadoran strongman Nayib Bukele could have expelled Garcia into the hands of the Trump administration once our courts had clearly ruled his continued captivity there is contrary to US law. That would have avoided the sort of insult to the authority of US law and the US courts that a small nation might not wish to hazard. (In practice, as we know, Bukele fired off a mocking “Oopsie” tweet after one person-snatching against a court’s direction, which was then shared by Secretary of State Marco Rubio and presidential adviser Elon Musk.)
As part of either move, the Trump administration could have endorsed the simple and logical idea that an inmate who was in the Salvadoran prison at the United States’ behest, under an agreement between the two governments, was in so-called constructive US custody. This would reassure doubters that whatever the other problems with such a foreign prison arrangement, the US executive branch would remain accountable to the courts for enforcement of inmates’ rights under US law and the Constitution, with the prisoners of US origin perhaps retaining roughly the same rights as if they had been imprisoned in Texas or Louisiana. » Read More
https://www.cato.org/blog/where-writ-courts-does-not-run