Jonathan P. Baird

There is no more central concept in American law than due process. Due process laws act as a safeguard from arbitrary denial of life, liberty or property by the government. Typically, there is a balancing of the interests of the individual and the state and figuring out what process is legally due in a circumstance is dynamic and creative.

In our federal constitution, due process appears twice, first in the original Bill of Rights in the Fifth Amendment and then again in the Fourteenth Amendment where it was applied to all the states. No other constitutional provision gets two mentions. Due process also shows up in every state constitution. It is sometimes referred to as “the law of the land”.

The roots of due process run deep, all the way back to the Magna Carta. It was a concept that engaged the Founding Fathers. They compared the tyrannical rule of King George III to the arbitrary rule of King Charles I in 1628 when the British parliament struggled against the King.

So it remains a shock when the whole concept of due process is tossed overboard by the Trump administration. Their handling of the Venezuelan migrants abducted and renditioned to El Salvador is a travesty of law. These unfortunate people got no due process in complete contradiction to the normal requirements of the law.

The Trump administration treated the case like a reality TV show. They wanted the photo ops of chained and manacled men who they could label terrorists, monsters or gang bangers. They believed sending them out of the country was a political win that made Trump look strong.

The Venezualans were disappeared from America without notice and a hearing. The process was anything but normal. The government offered no proof of whether the individuals being renditioned were gang members. The word “deportation” should not be used because that implies some kind of legal process. Rendition or abduction are closer to the truth.

The case drew attention because the Federal Court judge assigned to the case, Judge James Boasberg, had ordered the flights to El Salvador to turn around and the Trump administration did not comply with the verbal order (as if verbal orders don’t count). But, of course, judges issue binding verbal orders from the bench all the time.

The Trump administration has used a 1798 law, the Alien Enemies Act, to justify the rendition flights of more than 200 Venezualans they sent to El Salvador, a country to which the Venezualans have no connection. That 1798 law has only been used three times in American history, the last time being the awful World War 2 internment of Japanese Americans. The law can only be used in war time and can be invoked when the United States faces an invasion.

President Trump is saying a gang in Venezuela, Tren de Aragua, is equivalent to a nation and that the actions of their members in the U.S. are equivalent to an invasion. The argument is preposterous even for bad lawyers.

The President is also asserting that he has King-like, limitless power to decide who can be in the United States. It that were true, it would render all the actual law there is about asylum and deportation meaningless. There is no law or court case which gives President Trump the legal authority he is asserting. There was an Executive Order, a post hoc rationalization, that didn’t get signed until after events unfolded and Trump later denied he signed it.

So far, the Trump administration has failed to release the names of the abducted Venezualans and, as noted, they have not offered proof of gang membership. On the contrary, family members of those abducted have come forward to say they recognized their relative in a photo and they deny the abducted are criminals or gang members.

To understand the rationale for the Administration’s actions, the declaration of Robert Cerna, the acting Director of ICE removal operations, is revealing. In a court filing, Cerna wrote:

“While it is true that many of the Tren de Aragua do not have criminal records in the United States, that is because they have only been in the U.S. for a short period of time. The lack of a criminal record does not indicate they pose a limited threat. In fact, based upon their asscciation with Tren de Aragua, the lack of specific information about each individual actually highlights the risk they pose.”

Cerna is apparently a mind-reader who can tell the future. He is actually saying the fact they don’t have a criminal record is why they are dangerous.

Many of those abducted were victimized by ICE because they had tattoos. But Tren de Aragua is not a gang that mandates tattoos. ICE is simply misinterpreting tattoos and utilizing them as justification. For example, Jerce Reyes Barrios was a professional soccer player. He was seeking asylum in the U.S. as an opponent of the Maduro government. He had a tattoo of a crown sitting atop a soccer ball and it was part of the reason he was considered a gang member but the tattoo was the logo for the Real Madrid soccer team, his favorite team.

I would suggest removal to El Salvador is like rendition flights during the war on terror when suspects were flown to black sites in other nations to be tortured. There is a massive racist dehumanization going on where faceless Venezuelans are being sent to a hellhole maximum security slave labor prison for an indefinite period where they have no rights. There is no legal authority for disappearing people like this and it violates international law. It is a Kafkaesque fate beyond lawyers, judges or rules.

President Trump’s response to the litigation about the Venezuelans has been predictable. He accused Judge Boasberg of being “crooked”, “a radical left lunatic of a judge” who should be impeached. Any judge who demonstrates independence immediately draws that type of response.

What the Trump administration has done to the Venezuelans is a lawless and sadistic spectacle. It is an embarrassment to the rule of law. Trump is testing the limits to see what he can get away with and I think he believes the system is too broken to stop him.