from the when-do-we-turn-into-cockroaches dept
Generally speaking, if a judge begins an order — in a case where hundreds of men were illegally renditioned to a Salvadoran concentration camp directly against that judge’s orders — by talking about Franz Kafka’s The Trial, you’d think that the judge is going to go hard against the government.
Instead, Judge James Boasberg delivers quite a frustrating ruling: after eloquently explaining why the government’s actions mirror Kafka’s nightmarish bureaucracy, he proceeds to accept the Trump administration’s transparently ridiculous claim that they have no control over people they literally paid El Salvador to imprison.
He does try to concoct a workaround — arguing that while the prisoners can’t file habeas because they’re supposedly not in US custody, their due process rights were violated, so the remedy is to somehow restore their ability to file the habeas petitions they can’t file. But as we’ll see, this “solution” seems quite toothless.
The ruling starts with this somewhat incredible paragraph:
One morning, Kafka’s Josef K. awakens to encounter two strange men outside his room. As he gets his bearings, he realizes that he is under arrest. When he asks the strangers why, he receives no answer. “We weren’t sent to tell you that,” one says. “Proceedings are under way and you’ll learn everything in due course.” Franz Kafka, The Trial 5 (Breon Mitchell trans., Schocken Books Inc. 1998). Bewildered by these men and distressed by their message, K. tries to comfort himself that he lives in “a state governed by law,” one where “all statutes [are] in force.” Id. at 6. He therefore demands again, “How can I be under arrest? And in this manner?” “Now there you go again,” the guard replies. “We don’t answer such questions.” Undeterred, K. offers his “papers” and demands their arrest warrant. “Good heavens!” the man scolds. “There’s been no mistake.” “[O]ur department,” he assures K., is only “attracted by guilt”; it “doesn’t seek [it] out . . . . That’s the Law.” Id. at 8–9. “I don’t know that law,” K. responds. “You’ll feel it eventually,” the guard says. Id. at 9.
And then he makes the direct tie-in from that story to what’s actually happening:
Such was the situation into which Frengel Reyes Mota, Andry Jose Hernandez Romero, and scores of other Venezuelan noncitizens say they were plunged on March 15, 2025. In the early morning hours, Venezuelans held by the Department of Homeland Security at El Valle Detention Facility in Texas were awakened from their cells, taken to a separate room, shackled, and informed that they were being transferred…. To where? That they were not told…. When asked, some guards reportedly laughed and said that they did not know; others told the detainees, incorrectly, that they were being transferred to another immigration facility or to Mexico or Venezuela.
Before long, Reyes Mota, Hernandez Romero, and the other detainees were shuttled onto buses, driven to a nearby airport, and loaded onto planes…. As the planes waited on the tarmac, many passengers aboard reportedly began to panic and beg officials for more information, but none was provided…. The planes eventually departed that evening and, after a stop in Honduras, landed in El Salvador…. Upon their arrival, the detainees were transferred into a Salvadoran mega-prison known as the Center for Terrorism Confinement (CECOT).
And he reminds everyone that the government literally ignored his pretty clear order to not take these men out of the country:
This Court, at a swiftly convened hearing on March 15, ordered the Government not to relinquish custody of the men, but that mandate was ignored. Such defiance is currently the subject of the Court’s contempt inquiry.
So far, so good. The judge has laid out a perfect analogy for what happened and documented the government’s contempt of his direct orders. Then he completely undermines himself:
While it is a close question, the current record does not support Plaintiffs’ assertion that they are in the constructive custody of the United States. Even crediting the public statements characterizing the arrangement as outsourcing the U.S. prison system and acknowledging the President’s unofficial assertion of his power to request a release, such comments cannot overcome a sworn declaration from a knowledgeable government official attesting that the CECOT Class’s ongoing detention is a question of Salvadoran law
This is where the ruling goes completely off the rails. Judge Boasberg claims that further details that the DOJ filed under seal about the nature of the deal between the US and El Salvador suggest that the deal is basically “we ship ‘em to you, you do whatever the fuck you want with them,” and thus they shouldn’t be seen as being in “constructive custody” of the US any more.
This is obvious bullshit, and the judge knows it. Because there’s almost no one in the world who thinks that if the US government called up President Bukele and said “yo, we need that person back” that Bukele wouldn’t do it. Hell, we know this because the US already did that. As an article the NY Times wrote back in April revealed (buried so deep down that I haven’t seen much commentary on it) El Salvador has already sent back at least eight people that were incorrectly sent there:
In Washington, the Trump administration was working to address Mr. Bukele’s confusion about whom the United States had sent him. Eight women who had been mistakenly sent were swiftly flown back.
So when the US wants someone back from CECOT, they get them back. But somehow that information isn’t at play here.
Judge Boasberg does admit that it’s entirely possible the government is lying to him, but basically says his hands are tied by the Supreme Court:
This conclusion, to be sure, presumes the truthfulness and reliability of the Kozak Declaration, which is rendered more difficult given the Government’s troubling conduct throughout this case. The Court nonetheless follows the lead of the Supreme Court, the D.C. Circuit, and other courts within this district in taking Kozak at his word. In Munaf, the Supreme Court instructed federal district courts not to “second-guess” assessments of the political branches as to the nature of detention under a foreign sovereign. See 553 U.S. at 702. Applying that principle, our Circuit has found governmental submissions similar to the Kozak Declaration to be conclusive on the question whether ongoing detention is “on behalf of the United States.”
Seems bad!
He also admits that the Trump admin’s claims in this case aren’t nearly as detailed or believable as in the precedents he feels bound by, but basically says the plaintiffs (who, again, are mostly disappeared in a concentration camp no one gets released from) really need to provide more proof that the US government has some say in their detention, even as he admits it contradicts other statements that [checks notes]… the US government is making.
Plaintiffs, however, have unearthed no comparably reliable evidence to rebut the Kozak Declaration. The Court must therefore at this point accept the Government’s representations as to the nature of the CECOT Plaintiffs’ ongoing detention, despite their incongruity with multiple public statements made by both Salvadoran and U.S. officials.
Great.
The judge then proceeds to explain why this exact scenario — shipping prisoners beyond the reach of habeas corpus — was one of the grievances that led to American independence. But apparently that’s just an interesting historical footnote now:
The Court is nonetheless mindful of the possibility, raised by Plaintiffs, that the Government has adopted and presented its arrangement with El Salvador as a “ruse — and a fraud on the court — designed to maintain control over the detainees beyond the reach of the writ.” …. Our legal tradition is wholly incompatible with the establishment of a network of overseas prisons, shielded from the Great Writ by the facade of foreign control, to which the Government routinely exports detainees without due process — a legal no man’s land. Indeed, the Habeas Corpus Act of 1679 generally prohibited detention “beyond the seas” to places where the writ did not run, … and such abuses partly animated this nation’s War for Independence. See Declaration of Independence para. 21 (U.S. 1776) (listing amongst grievances against the King that he “transport[ed]” colonists “beyond Seas to be tried for pretended offences”). Were such a scheme to subsequently be made apparent to the Court, it would follow the Supreme Court’s instruction to “take such action as will defeat attempts to wrongfully deprive parties entitled to sue in Federal courts [for] the protection of their rights in those tribunals.”
It feels like he’s begging for evidence that the Justice Department is lying to him and reminds the government that “any official who makes knowingly false statements in a sworn declaration subjects himself to perjury prosecution.”
Having accepted the government’s lie about custody, the judge then concocts a workaround that’s somehow even more absurd: since the men’s due process rights were violated, the equitable remedy is… to have the Trump admin somehow restore their ability to file habeas petitions they can’t file because they’re supposedly not in US custody.
That principle permits Plaintiffs to proceed here. Just like litigants have since the beginning of our legal tradition, they may invoke this Court’s equitable authority to restrain the Government from infringing upon constitutional protections. They need not do so in habeas, nor are they obligated to identify a cause of action conferring that right.
The judge does conclude the due process violation is clear, citing recent Supreme Court holdings in this and related cases:
In light of those Supreme Court holdings, this Court ultimately agrees with the CECOT Plaintiffs that they are likely to succeed on the merits of their due-process claim. Defendants plainly deprived these individuals of their right to seek habeas relief before their summary removal from the United States — a right that need not itself be vindicated through a habeas petition. Perhaps the President lawfully invoked the Alien Enemies Act. Perhaps, moreover, Defendants are correct that Plaintiffs are gang members. But — and this is the critical point — there is simply no way to know for sure, as the CECOT Plaintiffs never had any opportunity to challenge the Government’s say-so. Defendants instead spirited away planeloads of people before any such challenge could be made. And now, significant evidence has come to light indicating that many of those currently entombed in CECOT have no connection to the gang and thus languish in a foreign prison on flimsy, even frivolous, accusations.
This is the point we’ve raised before. Without due process, there is no rule of law.
So what’s the remedy for this constitutional violation? The judge orders the government to “facilitate” the prisoners’ ability to seek habeas relief — the same meaningless directive that’s already been ignored (if not mocked) in similar cases:
Because the other preliminary-injunction factors also support the CECOT Plaintiffs, the Court concludes that their Class is entitled to preliminary relief. In short, the Government must facilitate the Class’s ability to seek habeas relief to contest their removal under the Act. Exactly what such facilitation must entail will be determined in future proceedings. Although the Court is mindful that such a remedy may implicate sensitive diplomatic or national-security concerns within the exclusive province of the Executive Branch, it also has a constitutional duty to provide a remedy that will “make good the wrong done.”
Let’s recap this judicial pretzel: The prisoners can’t file habeas because they’re supposedly not in US custody. But their due process rights were violated by being denied the chance to file habeas before removal. So the remedy is to restore their ability to file habeas… which they still can’t do because they’re not in US custody.
As is now clear, CECOT Class members were entitled to notice and an opportunity to challenge their removability pursuant to the Proclamation. That process — which was improperly withheld — must now be afforded to them. Put differently, Plaintiffs’ ability to bring habeas challenges to their removal must be restored. In light of the well-established law of remedies and the example that has already been set by all three levels of the federal judiciary, then, Defendants must facilitate Plaintiffs’ ability to proceed through habeas and ensure that their cases are handled as they would have been if the Government had not provided constitutionally inadequate process.
The judge acknowledges what’s really at stake here:
The Court determines that such a remedy balances Defendants’ distinct role in conducting foreign affairs with the grave need to right their legal wrongs; absent this relief, the Government could snatch anyone off the street, turn him over to a foreign country, and then effectively foreclose any corrective course of action. See Abrego Garcia, 145 S. Ct. at 1019 (statement of Sotomayor, J.).
Well, duh. That’s the whole fucking concern. And, yes, the government already did snatch people off the street to send to a foreign country, effectively foreclosing any corrective course of action.
So what happens now? The judge punts, asking the government to submit a “plan” for facilitating something they’ve already shown zero interest in facilitating:
Mindful of national-security and foreign-policy concerns, the Court will not — at least yet — order the Government to take any specific steps. It will instead allow Defendants to submit proposals regarding the appropriate actions that would “allow [Plaintiffs] to actually seek habeas relief.”
We all know how this ends: the DOJ will file some theatrical bullshit claiming they’d love to help but gosh, foreign sovereignty and all that. The judge will wring his hands some more. And hundreds of men will continue rotting in CECOT because everyone involved would rather play legal theater than acknowledge the obvious solution: if you shipped them there, you can damn well get them back.
Perhaps Judge Boasberg will surprise us and come up with something that has actual teeth, but it feels long past the time for that.
Meanwhile, the men who were disappeared into this Kafkaesque nightmare remain trapped in a foreign prison, casualties of a legal system more interested in procedural niceties than actual justice. The judge opened with Kafka, which would lead you to believe his goal is to not be just another cog in a Kafkaesque machine, but the authority who puts an end to the nonsense. Instead, we just keep getting another round of bureaucratic bullshit.
Filed Under: alien enemies act, cecot, dhs, doj, donald trump, due process, el salvador, facilitation, habeas corpus, james boasberg, rendition
