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Notes -
The crux of the Abrego Garcia controversy is a dispute about who "morally" counts as an American citizen.
The rallying cry of the pro-Abrego Garcia camp is: "If they can do it to him, they can do it to any of us." In other words, they see no meaningful difference between him and a legal US citizen, and so there is no Schelling Fence that can be drawn between the two. On other hand, the pro-Trump camp who wants Abrego Garcia to stay in El Salvador are not at all concerned that they will be next, because in their view citizens and non-citizens are two morally distinct categories.
The slippery slope argument (e.g. Laurence Tribe yesterday, and Justice Sotomayor's concurrence) is that if the government gets its way with Abrego Garcia, there will be no legal obstacle preventing them from treating citizens in the same way.
But the thing is, this is already the case. The US government's treatment of citizens abroad is already effectively unconstrained by the law. The government can negotiate for the release of a citizen imprisoned by another country, but nobody would argue that the government is legally obligated to do this, and it's absurd to imagine a court compelling them to do so, because that effectively makes diplomacy impossible. (The US government must be able to value the citizen's return at less than infinity, or else they lose all negotiating leverage.) On the other hand, the government can drone-strike a citizen abroad without due process, and while that may stir up political pushback here at home, there are effectively no legal repercussions.
This is because, according to the constitutional separation of powers, foreign affairs are a quintessentially "non-justiciable political question". In common parlance this means: If you don't like what the government is doing, the proper way to fix it is through advocacy and the democratic process, not through the court system.
To which the pro-Abrego Garcia camp will gesture around at the crowd of protesters they've assembled, waving "Free Abrego Garcia!" signs, and say "Great, come join us. Here's your sign!"
But of course the pro-Trump immigration hawks see no need to take it up, because even if these protests have no effect, this does not in any way diminish their confidence that if a citizen were to be treated in the same way, then the backlash would be swift, universal, and sufficient to compel the citizen's return - no court order needed. For them, it is simply obvious that the failure of the Abrego Garcia advocacy has no implications whatsoever for the success of the hypothetical advocacy on behalf of a fellow citizen, and this is no cause for cognitive dissonance because citizens and illegal-immigrant non-citizens are two entirely separate categories.
Prior to anything else in the political life of a nation, there must be near-universal agreement on who constitutes the body politic for whose benefit the government exists and to whom they are accountable. If there is factional dispute over this basic question, then morally speaking there is no nation, but multiple distinct nations that happen to find themselves all mixed up in the same land. But I'm sure this is no great surprise.
Wait, I'm a little confused here: is the foreign country in this case holding him for any reason other than on the USA's request?
Well he’s a Salvadoran citizen so presumably they can do what they want with their own citizens….
Yep.
I still remain a bit confused as to why the onus remains on the U.S. to seek his release.
Even if a U.S. Judge asserts jurisdiction and El Salvador chooses to humor this, a non-U.S. citizen being held by a non-U.S. country is not something we'd expect U.S. Judges to devote resources towards without some strong U.S. interests at stake.
The actual basis on and circumstances under which he was arrested and removed might bear scrutiny, but let us say that the Judge does determine he was wrongfully removed. Seems like the remedy is to release him and he can find his own way from there.
If a foreign national is being held in an El Salvadoran prison, then their home country ought to be the one they're contacting to seek release.
The emotional component becomes clearer to me when I flip the script. Imagining some random U.S. citizen sneaks into, I dunno, Italy. They catch him but a judge rules he can't be removed for the time being, and he marries an Italian lady and has some young kids in the meantime, but never goes through the naturalization process.
Then the next Italian Prime Minister comes in and actively starts deporting migrants, but not necessarily to their home countries. If the U.S. Citizen ends up in an Albanian prison, do we actually expect him to cry to the Italian government to bring him back? Does anyone really feel like a U.S. citizen is entitled to activate the Italian Justice system to come to his rescue?
OR more absurdly if Italy ships him to the U.S. and has the U.S. agrees to hold him in prison, do we really, REALLY think he's going to succeed by asking Italian courts to intervene, rather than taking it up directly with the U.S. government to get himself released and, lets say, his wife and kids brought over here?
The weight of the argument in favor of bringing Abrego Garcia back seems to be
If we discard those arguments, if Garcia is released, only "LEGAL" positions (not really moral ones) that make sense are that he could try to return to the U.S. on his own dime and through legal channels, or he can return 'home' and bring his wife and kids with him to reunite the family.
The comparable scenario would be if Italy was paying the US government for use of US prisons and sent an American citizen who had illegally immigrated to Italy, due to a procedural fuckup, and Italy's judiciary told the executive they were procedually required to request his return. If it's an intra-Italian government procedural dispute and the US government is acting as an agent of Italy, rather than imprisoning the American of its own prerogative, what then?
Setting the side the question of how this fiasco, itself, affected his safety in El Salvador, I don't see a procedural problem with returning him to the USA, for the purposes of the "Article III" District Court investigating ICE compliance with court orders, followed by ICE having its "Administrative" immigration court reassess Garcia's original claim of threats to him in El Salvador and, if they no longer applied, re-deporting him. Bringing him back, so that ICE could follow the correct process to re-deport him would be embarrassing to ICE, but it's their fuckup, so...
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