Is Kilmar Abrego Garcia a good person? I don’t know.
In 2021 his wife petitioned for, and received, an order of protection against him after she alleged domestic violence; she said last week that their marriage grew stronger after they worked through that low point and that Abrego Garcia “has always been a loving partner and father.”
The government has claimed he is a member of a truly heinous criminal gang, MS-13. If that were true, given that he was in the United States illegally, I’d have no problem with deporting him, though perhaps not to a prison that our own State Department has condemned. We’ll get back to that.
The Trump administration, by its own admission, mistakenly deported Abrego Garcia in defiance of a court order to an El Salvadoran prison. A judge had previously granted Abrego Garcia’s request not to be deported to his native El Salvador, because he feared for his safety. No one said he couldn’t be deported somewhere else.
On the other hand, is Abrego Garcia a terrorist or vicious criminal, as the administration claims? I don’t know that either. Is he even a member of MS-13? When the president sought to back up that claim, he posted a doctored image of Abrego Garcia’s hand tattoos to which the characters “MS13” had been digitally added.
The Trump administration has offered no evidence, in court or out, that Abrego Garcia is guilty of any violent crimes (save for the allegations he abused his wife, and he never faced charges over those claims). He was originally apprehended for “loitering.” Andrew McCarthy, a former federal prosecutor and prominent conservative legal analyst, wrote for National Review that “the proceedings in the lower courts have shown that, to date, the government’s evidence tying Abrego Garcia to MS-13 is gossamer thin.”
As for the charge of being a terrorist, this is … misleading. The Trump administration has arrogated to the president war powers to thwart what it incessantly calls an “invasion.” It has invoked the Alien Enemies Act of 1798 as a way to bypass what it considers onerous legal and constitutional niceties in pursuit of deporting illegal immigrants it deems “terrorists.” So the Trump administration can now apply that label without much, if any, factual rigor.
MS-13 and Tren de Aragua, another gang the administration has designated as a foreign terrorist organization, are terrible. But the argument that they meet anything but a politically convenient definition of terrorist organizations is weak.
Much of the political argument over Abrego Garcia is what legal scholars might call “stupid.” The Trump administration and its supporters are going full tilt to paint Abrego Garcia as a vile and dangerous terrorist. Many Democrats, outraged by Trump’s methods, prefer benign descriptions like “Kilmar Abrego Garcia is an innocent man and the father of three,” as Sen. Bernie Sanders put it.
This framing—“Abrego Garcia innocent and good” vs. “Abrego Garcia guilty and bad”—is what is so stupid. None of the relevant legal and constitutional issues have anything to do with whether he is good (or a father). By insisting that Abrego Garcia is an innocent man, Democrats are implying that if he were not innocent, what the Trump administration has done to him would be unobjectionable.
The relevant questions are whether the administration has the power to bypass due process—a right conferred even to illegal immigrants—and whether it has to try to remedy the mistake it made in sending Abrego Garcia to a foreign prison.
The administration has contracted with the authoritarian El Salvadoran government to take “terrorists” off our hands, but Trump officials also claim they are powerless to retrieve anybody mistakenly sent there. Judges, including the nine on the Supreme Court, think this is problematic—because it is problematic.
The idea that the government can simply assert that people on American soil, possibly including American citizens or legal residents, are criminals or terrorists runs completely counter to our legal system. The government has broad authority to deport illegal immigrants. It also has the authority to put convicted criminals in any prison it deems appropriate. It doesn’t have any authority to put people in prison without first proving—in court—that they are charging the right person and then convicting them of a crime.
If you were snatched up by ICE by mistake, you would want a chance to prove they got the wrong person. That right goes by habeas corpus, which has been a keystone of Anglo-American law and the heart of “due process” for centuries. The administration doesn’t seem to know this—or care.
The Constitution is designed to limit abusive government power. That is the only relevant issue here. Consider the case of Ernesto Arturo Miranda. He was a truly awful person. But so what? His case gave us the“Miranda rights” that are read to suspects upon arrest. The only way to make sure innocent people get such protections is to make sure everyone gets them.
