The Lawless Evil Of Denying Due Process
The U.S. government just demonstrated exactly why due process matters. In what should be a shocking admission, the Trump administration revealed in court that it had made a bit of an oopsie (they call it an “administrative error”) — one that resulted in trafficking a Maryland father with protected legal status to a Salvadoran prison. Their response to this horrific mistake? Not contrition or attempts to fix it, but rather an argument that U.S. courts have no jurisdiction to help bring him back.
This is what happens when you replace due process with authoritarian expediency. And it’s exactly what the MAGA movement is deliberately pushing for, as evidenced by Trump’s “border czar” Tom Homan, who sneered at the very concept of due process during an ABC interview last week:
“Due process? What was Laken Riley’s due process? Where were all these young women that were killed and raped by members of TdA, where was their due process?”
In making this argument, Homan inadvertently reveals himself to be embracing the same twisted logic as those he claims to be fighting: criminals who feel that the ends justify any means, that due process is an inconvenient obstacle rather than a fundamental safeguard of justice. It’s the kind of thinking that leads directly to “administrative errors” that destroy innocent lives.
The entire point of the rule of law in a civilized society is that we’re better than that. We provide due process precisely because it’s the only way to ensure we don’t punish innocent people. If Homan and his department were actually doing their jobs properly, due process wouldn’t be an obstacle — it would be an opportunity to demonstrate the legitimacy of their actions through proper legal channels.
Instead, we have this fucking mess:
The Trump administration acknowledged in a court filing Monday that it had grabbed a Maryland father with protected legal status and mistakenly deported him to El Salvador, but said that U.S. courts lack jurisdiction to order his return from the megaprison where he’s now locked up.
That’s one hell of an “administrative error.”
Let’s be crystal clear: this wasn’t a “deportation” — deportation requires due process. This was human trafficking, plain and simple. A U.S. resident with legal protection was grabbed by government agents and forcibly transferred to a foreign labor camp.
What stands out in the court filing is the government’s cavalier attitude in the filing. They admit, with bureaucratic sterility, that they trafficked a man they knew had legal protection:
On March 15, although ICE was aware of his protection from removal to El Salvador, Abrego Garcia was removed to El Salvador because of an administrative error
The normal response to discovering you’ve made a catastrophic error that has imprisoned an innocent person in another country would be to fix it immediately. Instead, the government’s response is essentially “ah well, nothing we can do!” They actually argue that because they’ve already illegally trafficked him to a slave labor camp in El Salvador, U.S. courts have no power to help:
Here, Plaintiffs seek review of the legality of the Executive’s restraint of and removal of Abrego Garcia to El Salvador, leading to his present detention there…. (alleging Defendants “decided to deport Plaintiff Abrego Garcia without following the law”). Plaintiffs make it clear that the ultimate relief they seek is his return to the United States to live at liberty with his family… (alleging irreparable harm from separation from his family and asking “the Court to immediately order Defendants to take all steps reasonably available to them, proportionate to the gravity of the ongoing harm, to return Plaintiff Abrego Garcia to the United States.”) Because Plaintiffs seek Abrego Garcia’s release from allegedly unlawful detention on the grounds that it was effected illegally, they make a core habeas claim, and they must therefore bring it exclusively in habeas.
But there is no jurisdiction in habeas. Plaintiffs admit—as they must—that the United States does not have custody over Abrego Garcia. They acknowledge that there may be “difficult questions of redressability” in this case, reflecting their recognition that Defendants do not have “the power to produce” Abrego Garcia from CECOT in El Salvador. … But even more, they concede that Abrego Garcia is not in Defendants’ custody. Id. (asking the Court to order Defendants to “request that the government of El Salvador return Plaintiff to Defendants’ custody”). Despite their allegations of continued payment for Abrego Garcia’s detention, Plaintiffs do not argue that the United States can exercise its will over a foreign sovereign. The most they ask for is a court order that the United States entreat—or even cajole—a close ally in its fight against transnational cartels. This is not “custody” to which the great writ may run. This Court therefore lacks jurisdiction.
The government’s argument is essentially: “Yes, we illegally trafficked someone we knew we shouldn’t have touched, but since we’ve already done it and he’s in a foreign prison, U.S. courts are powerless to help.” While the DOJ’s jurisdictional argument may be technically correct under current law, the implications are horrifying.
This is precisely why due process exists in the first place.
It’s not just some bureaucratic inconvenience — it’s a vital safeguard against exactly this kind of nightmare scenario. Without due process protections, government agents can make “administrative errors” that result in trafficking innocent people to foreign prisons, then shrug and say “oops, nothing we can do!” when the mistake is discovered. And, before long, those “administrative errors” become convenient ways to get rid of anyone the powers that be dislike.
A few weeks ago, law professor Steve Vladeck wrote an important piece about why we have due process, noting that it is the main thing that “separates democratic legal systems from … less democratic legal systems.” In that piece, he responded to people telling him (a la Homan) that it was fine to remove gang members from the US without due process since they were so bad.
Against that backdrop, there’s just no good argument for refusing to provide comparable process to accused members of TdA before removing them from the country. I say this not because, contra some of my Twitter fans and e-mail correspondents, I support TdA and want to keep “rapists and murderers” at large in the United States. Rather, I say this because that kind of process is how any of us can have confidence that the folks being packed onto airplanes and whisked off to El Salvador are Venezuelan citizens and members of TdA—as opposed to U.S. citizens; political dissidents; or others whom the Trump administration would just as soon be rid of. Indeed, one need not believe that the government is acting maliciously to believe that errors will be made.
Vladeck wrote that warning just a week and a half ago — well before the DOJ’s admission of this “administrative error.” But this case isn’t an isolated incident. It’s part of an emerging pattern that demonstrates exactly why his concerns about due process are so vital.
Consider the growing list of victims: There’s Andry José Hernández Romero, a makeup artist. There’s Neri Alvarado, a bakery worker. Neither had any gang connections. Their “crimes”? Having tattoos. In Alvarado’s case, it was a tattoo promoting autism awareness. This is what passes for “evidence” of gang activity when you dispense with due process.
These aren’t isolated incidents. The flood of similar cases reveals a systematic dismantling of due process. Take Jerce Reyes Barrios, detailed in the New Yorker piece linked above:
Jerce Reyes Barrios, a thirty-six-year-old soccer player and youth coach, fled Venezuela last year after marching in anti-government protests. His immigration file cites two grounds for suspicion: a gesture he made while posing for a photo that was posted to social media and a tattoo of a crown on top of a soccer ball with a rosary and the word “Dios.” His lawyer, Linette Tobin, worked with his family to secure documents from the police in Venezuela to show that he hadn’t committed any crimes. They also tracked down Barrios’s tattoo artist. “He wanted a tattoo related to soccer,” the artist said in a legal declaration. “We searched on the internet and the ball with a crown caught our attention to represent the king of soccer, and he liked the idea.”
The same article quotes a Tren de Aragua expert confirming that the gang “does not use any tattoos as a form of gang identification” — yet tattoos remain the government’s primary “evidence” for trafficking people to foreign prisons. This is what happens when due process is replaced with prejudice and paranoia: innocent gestures become evidence of crimes, and basic fact-checking is discarded as an inconvenient obstacle.
When confronted with these facts, the response from MAGA leadership has been to double down on authoritarianism while attacking anyone who dares to question their methods. Take White House Press Secretary Karoline Leavitt’s revealing freakout of a response to reporter Andrew Feinberg when he simply asked about due process safeguards against mistaken identification:
“You can get classified by simply having certain symbols in your tattoos and wearing certain streetwear brands—that alone is enough to get someone classified as TdA and sent to El Salvador,” Feinberg said.
“That’s not true, actually, Andrew,” Leavitt snapped. Feinberg insisted he was simply reading from court documents filed by the government.
“No, according to Department of Homeland Security and the agents—have you talked to the agents who have been putting their lives on the line to detain these foreign terrorists who have been terrorizing our communities?” Leavitt asked.
“I–I’m not denying that—” Feinberg said, but Leavitt continued.
“TdA is a vicious gang that has taken the lives of American women, and our agents on the front lines take up deporting these people with the utmost seriousness, and there is a litany of criteria that they use to ensure that these individuals qualify as foreign terrorists, and to ensure, to ensure that they qualify for deportation,” she said.
“And shame on you, and shame on the mainstream media for trying to cover for these individuals who have—this is a vicious gang, Andrew! This is a vicious gang that has taken the lives of American women!”
“I’m not trying to cover for anyone,” Feinberg insisted, but Leavitt continued to attack Feinberg for even asking about the documents, once again unable to account for the government she purports to represent.
“And you said yourself there are eight criteria on that document! And you are questioning the credibility of these agents who are putting their life on the line to protect your life, and the life of everybody in this group and the life of everybody across the country? And their credibility should be questioned? They finally have a president who is allowing them to do their jobs, and God bless them for doing it,” Leavitt fumed.
The performative outrage is telling. If there truly is a “litany of criteria” that “ensure” proper identification of gang members, as Leavitt claims, then providing due process should be trivially easy. The government could simply present its evidence in court, where it would stand up to basic scrutiny. Their aggressive resistance to any kind of oversight suggests they know their “evidence” won’t withstand examination.
The historical parallels are impossible to ignore. In his piece, Vladeck highlights Supreme Court Justice Robert Jackson’s prescient 1952 warning about due process:
[T]he Nazi regime in Germany installed a system of ‘protective custody’ by which the arrested could claim no judicial or other hearing process, and as a result the concentration camps were populated with victims of summary executive detention for secret reasons. . . . There are other differences, to be sure, between authoritarian procedure and common law, but differences in the process of administration make all the difference between a reign of terror and one of law. Quite unconsciously, I am sure, the Government’s theory of custody for ‘safekeeping’ without disclosure to the victim of charges, evidence, informers or reasons, even in an administrative proceeding, has unmistakable overtones of the ‘protective custody’ of the Nazis more than of any detaining procedure known to the common law. Such a practice, once established with the best of intentions, will drift into oppression of the disadvantaged in this country as surely as it has elsewhere.
Seven decades later, Jackson’s warning reads like a prophecy fulfilled. We now have a MAGA movement explicitly embracing the exact authoritarian tactics he feared: disappearing people through “administrative” mechanisms, trafficking them to offshore camps without due process, then declaring any “errors” in the process irreversible. The parallels to the “protective custody” system he described are not subtle.
The dangerous implications of this mindset are perfectly captured by MAGA Rep. Victoria Spartz, who recently declared at a town hall that:
“There is no due process if you come here illegally because you violated the law. Period! You violated the law, you are not entitled to due process.”
This statement reveals a fundamental misunderstanding of both law and logic that would be merely laughable if it weren’t so dangerous. Follow her “logic” to its inevitable conclusion: if merely being accused of breaking a law strips you of due process rights, then there is no rule of law at all. Under this framework, government agents need only accuse someone of a crime to justify trafficking them to a foreign prison camp. No evidence required. No hearing needed. Just an accusation.
This isn’t just wrong — it’s an explicit endorsement of exactly the kind of authoritarian system that Justice Jackson warned would “drift into oppression.” It creates a perfect circular logic: you lose your right to due process because you’re accused of a crime, and you have no way to challenge that accusation because you’ve lost your right to due process.
This is inhumane. It is unconscionably evil.
I tend to hate calling anyone’s actions “evil” as that’s a strong charge that feels loaded. But at some point you have to call it out for what it is. It is pure evil.
And just to confirm what kind of inhumane evil this all leads to, when confronted about the case of Abrego Garcia — who, again, the administration admits it wasn’t supposed to remove — Vice President JD Vance just flat out lied and claimed (falsely) that the court documents say he was a “convicted MS-13 gang member.”
It’s quite something for JD Vance to accuse others of not reading the court document when it becomes clear that it is he who did not read the court document. Nowhere does it say he was a convicted MS-13 gang member, and the DOJ’s own filing admits that he had a legal right to be here. Even the replies to Vance’s tweet include a number of MAGA supporters asking why Vance is just making shit up.
The mask is slipping so badly that even reliable MAGA cheerleaders are recoiling in horror. Joe Rogan has admitted that the human trafficking program is “horrific.” Even Rod Dreher — who loved authoritarianism so much he literally moved to Hungary to live under an authoritarian leader — is saying “whoa, dude, too far.”
This is the line that due process draws: between a government bound by law and one ruled by whim, between justice and terror, between civilization and barbarism. When Trump, Homan, Leavitt, and Spartz argue against due process, they aren’t just attacking a legal principle — they’re attacking the very foundation of the rule of law itself.
Their vision of America is one where government agents can disappear anyone they want based on nothing more than an accusation, where “administrative errors” are features rather than bugs, and where the mere act of questioning their actions is treated as treason. They’ve made it crystal clear that they don’t believe in due process, the rule of law, or any coherent moral philosophy beyond raw power used to inflict suffering on those they deem unworthy of basic human dignity.
This isn’t just un-American. It’s a deliberate embrace of the exact authoritarian evil that America was supposed to resist.