Michael Kappeler/AP
On Wednesday, District Court Judge James Boasberg ordered the Trump administration to provide the due process it denied to Venezuelans in March when it sent them to a Salvadoran megaprison.
The order means that the roughly 140 men sent to the Terrorism Confinement Center (CECOT) under the authority of the Alien Enemies Act—a rarely used 18th-century wartime power—must be provided with a chance to argue their cases in court. Boasberg’s order follows two Supreme Court decisions holding that people targeted under the Alien Enemies Act are entitled to due process under the Constitution. The decision provides the first real hope of the men being released since they arrived at CECOT in March. (The case does not cover the approximately 100 Venezuelans sent to El Salvador who were subject to removal under other authorities.)
For now, Boasberg is not ordering the Trump administration to follow a specific set of steps to ensure the men receive due process. Instead, he is asking the government to suggest its own way of doing so. “Given that such a remedy may involve delicate questions relating to diplomacy and national security—core Executive Branch functions—the Court will proceed in measured fashion,” Boasberg explained. “It will begin by allowing the Government to propose how it will ensure that the CECOT Class receives the process it is constitutionally due. That process must nonetheless be forthcoming.” (If Boasberg finds that process insufficient he could order the administration to take more specific steps.)
The judge made clear in the decision that the government is already on a short leash. The case began with him ordering the government to “immediately” turn around the two planes headed for El Salvador carrying Venezuelans being removed under the Alien Enemies Act. The government refused to do so. (A criminal contempt inquiry launched by Boasberg in response is now ongoing.)
The government’s conduct in the case was contemptible enough for Boasberg to turn to Franz Kafka. The first paragraph of the 69-page decision reads:
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.” 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.” 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.” “I don”t know that law,” K. responds. “You”ll feel it eventually,” the guard says.”
(Page number citations have been removed for readability.)
After, Boasberg compares K.’s predicament to that of the Venezuelans sent to CECOT. “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,” the judge explained. “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.”
The Venezuelans at CECOT have now been held incommunicado for more than two months. They have not been allowed any calls to family members, much less the lawyers advocating on their behalf in the United States. Instead, they are stuck in one of the world’s worst prisons with no idea of when (if ever) they will get out.
According to the Trump administration, the men are in El Salvador because they are members of the Venezuelan gang Tren de Aragua. But the administration has provided almost no evidence to support that claim. It has refused repeated requests from Mother Jones and other outlets to refute overwhelming evidence that it falsely accused many—if not most—of the people it sent to CECOT of gang membership.
Instead, in a formulation worthy of K.’s tormentors, a senior Department of Homeland Security official has told me and other reporters that it would be “insane” to “share intelligence reports and undermine national security every time a gang member denies he is one.”
Boasberg is showing little patience for the government’s obfuscation. “In our nation—unlike the one into which K. awakes—the Government’s mere promise that there has been no mistake does not suffice,” he wrote on Wednesday. “Any government confident of the legal or evidentiary basis for its actions has nothing to fear from that requirement. It is, after all, ‘central to our system of ordered liberty.’”
