In the increasingly surreal second Donald Trump administration, a 29-year-old Salvadoran named Kilmar Abrego Garcia now embodies the most fundamental restructuring of the US constitutional order, arguably in its history.
Mr Garcia is being used as a test case for the Trump administration to decouple Americans from the rule of law and protection of courts. His case may be operating at the margins of American society, but its implications potentially represent a redefinition of the relationship between the individual and the US government.
The Trump administration is rapidly erecting a police state. The Constitution’s framers were aware that their system would rest on the willingness of all – particularly the president – to respect and maintain it.
A tyrannical US state is no longer hypothetical. It exists. The Trump administration is craftily dismantling the rule of law over accused Salvadoran and Venezuelan gang members.
In March, along with about 200 other migrants, Mr Garcia was abducted and whisked off to a prison in El Salvador. A federal judge ordered the planes to turn around, but the administration declared that the court had no authority in international air space. Numerous judges have since upheld their right to due process under the Constitution. The administration shrugs. The men have been rotting in one of the world’s worst prisons ever since, most never having been accused of a crime.
The Trump administration admits Mr Garcia was deported due to a clerical error. But, they claim, it’s too late. They can work to free Israeli hostages or the accused human trafficker Andrew Tate. The Salvadoran government notes that the Trump administration is paying it to jail these abductees.
Mr Garcia’s situation might be labelled “Kafkaesque”, but nightmarish novels such as The Trial – in which a man can’t discover what he’s accused of – don’t involve casual sadism. Homeland Security Secretary Kristi Noem breezily opines that all, including Mr Garcia, should remain in prison “for the rest of their lives”.
The Salvadoran government and the Trump administration insist Mr Garcia is a “gang member” and “terrorist”, even though his abduction was admittedly an administrative error. The truth cannot be both. Either he’s a dangerous criminal or the victim of a dreadful snafu.
But Mr Garcia must be a “terrorist” because he was deported. Logic is perforce inverted to serve this evolving new state. He was arbitrarily deported, so he’s, by definition, a terrorist. The fact that his arrest was due to clerical error is immaterial.
This is less Franz Kafka or George Orwell, and more Lewis Carroll: it’s through the looking glass into a realm where logic is inverted, and facts must serve the state. Four plus four equals five.
Mr Garcia is told that no US court can intervene because he’s no longer in US territory. As soon as his flight entered international air space, it became a matter of foreign policy entirely under the control of the White House and independent of any court or the law.
This could just as easily be done to anyone else. Citizens are potentially beyond the reach of legality as well, assuming they are abducted and swiftly removed from US territorial jurisdiction.
The Supreme Court timidly ordered the administration to honour lower court rulings to return him and afford due process to the other migrants. But the order had so many loopholes that it amounted to a de facto plea for the courts and White House to craft a solution protecting rule of law.
However, the Trump administration is insistent that there’s zero they can, will, or should do to free a person they have plunged into a notorious prison simply because of a clerical error.
The cruelty is unmistakable, particularly the nonchalant disregard for Mr Garcia’s circumstances by Mr Trump personally – who, unlike the Salvadoran migrant, is in fact a convicted felon – and his apparatchiks. If they get their way, as soon as an American is abducted and whisked out of the country, they will have no recourse and the rule of law will cease to apply. Indeed, the President vows that “homegrown criminals are next” to experience the Salvadoran solution to the irritant of law and order.
There have been other historical moments in which the rights of Americans to due process and liberty have been abrogated, particularly during the Civil War and both world wars. But none went nearly this far in restructuring the fundamental relationship between the individual and the state, and all took place during genuine national security crises, which isn’t presently the case.
This is taking place in a broader context, in which the Trump administration is seeking to bolster harsh, incipient strongman rule by seizing control of major universities, only recently to be rebuffed by Harvard University. That has initiated a battle that will probably roil the country for the next four years or beyond.
Harvard is being ordered to eliminate anything remotely connected to diversity, equity and inclusion for historically disadvantaged minority groups or women, but to rigorously implement – subject to outside review – “ideological diversity”, which can only mean bringing in Trump supporters notwithstanding their qualifications. Some people are more diverse than others.
The administration has ordered the Justice Department to launch a criminal investigation of the first Trump administration’s official in charge of cybersecurity, Chris Krebs, who had the audacity to truthfully confirm that the 2020 election was free and fair. This is now a felony.
But the Trump administration will face its truest test trying to control courts, not the media or universities. It’s already defying several clear-cut court orders, including to restore press privileges to the Associated Press, which has the temerity to continue to refer to the Gulf of Mexico by its traditional and appropriate name rather than Mr Trump’s neologism, “the Gulf of America”.
If the judiciary, particularly the Supreme Court, effectively bows to Mr Trump’s dictates, rule of law in the US will be all but eliminated. It will be a generational process to rebuild, when and if that begins. Worse, if Mr Trump simply ignores court orders, then the implementation of a brazen, gleefully uncontrolled, tyrannical state beyond the bounds of legality will be deeper, harder to dislodge, and far more dangerous.
Mr Garcia, however improbably, appears poised to become the subject of the most important, and insidious, test case in all of US judicial history.
