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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.
That is not the argument. The argument is that if they deport people without due process and then once they're deported, claim they have no jurisdiction, then there is nothing stopping that from happening to American citizens. The argument is not that there is no difference between Americans and non-Americans. The argument is these deportations, specifically, can happen to Americans as well as non-Americans.
Suppose someone pointed out that Americans can have heart attacks just like non-Americans. Your argument is analogous to saying that this amounts to saying there is no meaningful difference between Americans and non-Americans. Just because two things are similar in one respect, that doesn't make them similar in all respects.
The problem is not that there is no legal obstacle. The problem is that there is no practical obstacle. It's not a slippery slope argument. They admittedly deported him by accident without any due process. There is literally nothing to prevent that from happening to an American citizen. It would be a slippery slope argument if they were saying they would target American citizens next. But the problem is that they are deporting people without regard to their legal status.
It doesn't matter if they are two morally distinct categories if there is no due process to determine under which category a given person falls. What do you even mean by morally distinct categories? I understand they are distinct legal categories, but to say they are morally distinct suggests they have different moral worth based on their citizenship, which strikes me as callous and absurd.
The US government is paying El Salvador to take, imprison, and abuse, not only its own citizens, but Venezuelan citizens as well. Of course there is a limit to what the US government should be obligated to do prevent such abuse, but it is totally reasonable to ask that they stop spending resources make the abuse happen for no benefit. The US government's treatment of its citizens (or non-citizens for that matter) is not actually unconstrained by law, but even if it were, that would not excuse its taking advantage of that fact to abuse people. One thing I find so shocking about this is, setting aside the legal questions of its responsibilities, the US government seems to have no desire to correct what it admits was a mistake. I don't understand why they are even taking up the position that they are taking, regardless of its legal merits.
I'm highly skeptical of this, but even if true, then the US government should not be deporting people to countries where it knows that people will be sent to prison without charge, nor should it be considering sending American convicts to prison in foreign countries. It's one thing to deport illegal El Salvadorans immigrants to El Salvador. It's another to deport citizens of other countries, legally resident in the US, who could be sent to a number of other countries or kept in the US. It's another to do this when it's known that they will be sent to a torture prison filled with gang members without charge. It's another to pay the El Salvadoran government to do this. It's yet another to invite them to come to the US from a safe third country and then send them to the El Salvadoran torture prison.
If you are going to argue for separation of powers, you should remember that the whole point of a democratically elected president is to avoid tyranny and to have certain powers reserved to an institution that represents the will of the people. They should be held to some kind of moral standard, if not a legal one. The point of the separation of powers is not to give carte blanche to the executive branch to do whatever it wants in its area of jurisdiction.
This is a bad system though. The US is supposed to follow the rule of law, not mob rule. That's the reason there are courts. That's the reason the law can only be changed through the legislature.
I know it's not a legal document, but I'll quote the declaration of the independence:
This is clearly inconsistent with the principle that some people are fair game to be lured into the country and then kidnapped and sent to torture prisons. The founding philosophy of the United States does not consider natural rights to be dependent on citizenship or physical location. They belong to all people. You will not get near-univeral agreement that the US government exists to deem 96% of the world's population to be without rights and free to be abused should they make the mistake of entering the reach of the US government.
See this comment in response to this point.
Whatever one may think about universal rights in an abstract philosophical sense, the fact remains that the US government is not an all-powerful deity sitting above humanity in judgement thereof, but is a collection of finite human beings who live in a particular time and place and have only a limited capacity to impose their will on the world. When the US goes around the world trying to spread democracy and human rights by force, it has generally not been very successful. It's not inconsistent to condemn human rights abuses abroad while acknowledging that the scope of the US government and its legal system ought to be limited to its citizens only.
But, returning to earth, it seems that Bukele's policies are widely approved by the people of El Salvador. On what basis can the American government (or, still less, an American judge) deny them?
Legally - not just morally - the US government's legal system is not limited to its citizens. Non-US citizens have rights in the US and the US prosecutes people outside of its borders, US citizens and non-US citizens alike.
On the basis that they are cruel and immoral. Popularity is not a justification. Moreover, if something is popular in the US and unpopular in El Salvador, it's popular in the two places considered together, since the US has 50 times El Salvador's population. If that shouldn't imply that the US gets to decide what happens in El Salvador, neither should the popularity of any given policy in either country justify the mistreatment of any minority there that objects.
But more importantly, you are ignoring the fact that the US government is paying El Salvador to imprison people that it is unnecessarily sending to El Salvador. It can stop doing either of these things at any time, yet it refuses.
The fact that the US is not all powerful is not an excuse for neglecting all moral and legal responsibilities to anyone who isn't a US citizen. The US government is not even trying to undo its mistakes. It would be one thing if the US government were taking all reasonable steps to undo the harm it has done to the people it has sent to El Salvador. Instead, it is doing everything it can to achieve the opposite.
We have Trump and Bukele sitting in a room together, amicably, with Bukele telling the press he can't force Trump to take any his prisoners and Trump telling the press he can't force Bukele to release any of his prisoners. Obviously, between the two of them, there exists the power to bring the prisoners to the US. There is no bona fide attempt on either of their parts to solve the problem. Everything you have said are excuses for subjecting people to inhumane treatment, not actual justifications for it.
Do you think Bukele’s policies were wrong?
Yes
I think you are evil in that case. For decades ES was a dangerous place run by gangs. Bukele was able to change that so now the average person can live a normal life. People aren’t being murdered left and right. They aren’t being extorted.
It seems incontrovertible to me that life is better in ES for the average person due to Bukele’s policies. So it would seem the argument is either: (1) violating so called due process is so bad that we’d rather society be a complete disaster or (2) the very few (ie probably less than 0.1%) innocently caught in the net via the policies are worth more than having a functioning society. I think we already reject the Blackstone formula in practice and while I’m willing to tolerate some process to protect the innocent it isn’t infinite and particular facts may argue against.
Now Bukele over time may turn into a negative authoritarian and at that time if criticize him.
If the alleged gang members had been treated more humanely (e. g. at or above the Geneva-Convention standards for POWs, long-term plan for their release following the dismantlement of the gangs), one would have been able to make the argument that the Salvadoran Government's actions were justified.
The actual conditions to which the alleged gang members have been subjected would not have been justified even had they been convicted beyond any doubt in regular trials, and were definitely not justified given the looser standards of evidence allowed.
Ok, ES tries a different, more humane method, BUT, for every gang murder above the current base rate, one Humane Prisons Advocate gets executed. You first.
Would you accept this deal?
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Why? These gang members made ES a living hell for the people. Why do we have such empathy for evil people but effectively zero empathy for good people who had to endure the wrongs brought about by evil people?
ES is a relatively poor country. They tried for decades applying “human rights” and all it got them was a country run by gangs. Now the average person can actually live a normal decent life. And the rate of mistake on gang members is incredibly low (thankfully for ES the gang members decided to cover themselves in specific tats making their appearance obvious).
I just don’t see the moral argument that ES ought to treat these gang members okay.
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