Fighting for "due process" misses the point entirely
The horrors are not those of judicial procedure
On March 12th, Kilmar Abrego Garcia clocked out from his job as a union apprentice. He picked up his five-year-old autistic son from his grandparents’ Maryland home. He drove away. Minutes later, ICE agents stopped his car. They detained him and his son. They called Abrego Garcia’s wife, a citizen, and told her that she had ten minutes before their son would be turned over to Child Protective Services. Three days later, Abrego Garcia was on a plane to El Salvador. His destination? A life sentence in the Terrorism Confinement Center, CECOT, a maximum security prison created by authoritarian president Nayib Bukele.
CECOT was created to permanently imprison members of MS-13, the gang Abrego Garcia fled to the United States to escape. If the Trump and Bukele administrations had their way, he would live out the rest of his days in a cage with 155 cellmates, sharing two toilets and two Bibles between them.
This is made all the more unthinkable by the fact that at the time he was abducted by ICE, Abrego Garcia was living legally in the United States, having been granted legal status in 2019. A federal judge even ordered that the flight taking Abrego Garcia and others to El Salvador return to the United States mid-flight. Both court orders were ignored, and El Salvador and the United States now claim that Abrego Garcia’s release is impossible. On Thursday, a federal appeals court proclaimed that the Trump administration is trying to assert “a right to stash away residents of this country in foreign prisons without the semblance of due process.”
Abrego Garcia’s deportation obviously proceeded without due process, a term from the Fifth Amendment that roughly means “following normal law-related rules so as to not totally obliterate somebody’s rights.” In this case, multiple judges rules that somebody was not eligible to be deported to a Central American mega-prison, and he got sent their anyway. Nationwide protests have highlighted the lack of due process as a major, perhaps predominant concern.
And that, in itself, is a problem.
Abrego Garcia would eventually be transferred from CECOT to another prison after the intervention of Maryland Senator Chris Van Hollen, who would tell press, “I’m not defending the man. I’m defending the rights of this man to due process.”
Here’s the thing: we should absolutely defend this man, and every person, from living out the rest of their days in a totalitarian prison hellscape, due process or not.
To put it another way: what is due process had been followed? What if a series of court orders had duly ruled that forcibly kidnapping this man and dooming him to die in CECOT was actually fine? US courts have after all allowed the existence of the Guantanamo Bay torture camp to the present day, where dozens of tortured detainees may live out their natural lives?
There are many horrors that the US government has committed with a hefty helping of “legitimate” legal authorization, especially on non-citizens. People shouldn’t be subjected to horrifying shit without due process but they probably shouldn’t be subjected to it regardless. The problem with Auschwitz wasn’t just that people were sent there without due process. The problem was that it was fucking Auschwitz.
We shouldn’t demand that the government cross its t’s and dot its i’s before filling the concentration camps. We should demand the freedom for all to live, work, and love wherever they please.
A triumphalist nativist far-right with a conservative majority across all branches of government gravely increases the likelihood that authoritarian violence is enacted on oppressed communities with full judicial approval. To put it bluntly: due process won’t save us, because the courts won’t save us, because the Empire will not save us from itself.
In 2020, millions of us chanted, “Who keeps us safe? We keep us safe!” Just five years later, have we already forgotten?
We are very at risk of liberals and “rule of law” dorks taking over this moment and signing us up to “vote for the democrats this mid terms!”. Pieces like this are important for combatting this. Thank you.