What Happens When the Government Lets People Disappear?
What seems like the initial plot of an Alexander Dumas novel – a person wrongfully imprisoned – is, in reality, the starting point of a very real and troubling situation. Unlike Edmond Dantès in The Count of Monte Cristo, who eventually escapes and finds a treasure, many individuals who are wrongly detained or deported may never have the chance to reclaim a life of purpose and happiness, to live with dignity, contribute to the world, and find joy and fulfillment.
That’s what makes the case of Kilmar Abrego Garcia, and countless others who have disappeared, so troubling. What happens when there’s no Abbé Faria to guide you, no opportunity to build a meaningful life, and no guarantee that justice will ever be served? What happens when the government, the very entity that should protect you, seems indifferent to your plight?
The Kilmar Abrego Garcia Case: A Quick Recap
Kilmar Abrego Garcia, a Salvadoran citizen who had lived in Maryland for about 15 years, was mistakenly deported to El Salvador. He is currently in custody in a mega-prison known as CECOT. A U.S. judge ordered the government to “facilitate” his return.
Now, the Supreme Court last week largely upheld a trial judge’s order that said the government must bring Kilmar Abrego Garcia back to the United States after illegally deporting him to El Salvador. But the high court needlessly complicated the matter by not simply rejecting the government’s appeal to reverse the judge’s order; rather, in the process of backing the judge in principle, the justices took issue with some of the wording of her order and sent the case back to her for further litigation, in which government lawyers have predictably tried to continue avoiding compliance.
A Timeline of Actions
Here’s a timeline to illustrate the government’s actions, based on reporting from MSNBC and NPR:
- Illegal Deportation: The government sent Abrego Garcia to El Salvador despite being granted protections by a U.S. immigration judge, admitting it lacked the legal authority to do so.
- Judge’s Order: U.S. District Judge Paula Xinis ordered the government to “facilitate and effectuate” his return.
- Supreme Court Intervention: The Supreme Court mostly vindicated the judge but sent the case back to her to clarify her order, adding that she needs to afford “due regard for the deference owed to the Executive Branch in the conduct of foreign affairs.”
- Continued Obstruction: After Xinis amended her order, the government continued to try avoiding sharing details, leading Xinis to issue another order saying the administration failed to comply.
The Stance of El Salvador’s President
El Salvador’s President Nayib Bukele has stated that he is not inclined to return Abrego Garcia to the United States. During an Oval Office visit, the U.S. administration indicated that it was up to the Salvadoran government to decide whether to return him.
Legal Gymnastics and “Domestic Obstacles”
The government’s response to the court orders has been to interpret its obligations in the narrowest possible way. Justice Department lawyers argued that “taking ‘all available steps to facilitate’ the return of Abrego Garcia is thus best read as taking all available steps to remove any domestic obstacles that would otherwise impede the alien’s ability to return here.”
In other words, they’re claiming they only have to deal with obstacles within the U.S., not actively work to get him released from El Salvadoran custody.
Why This Matters: A Slippery Slope
If the government can get away with this in one case, what’s stopping them from doing it in others? This sets a dangerous precedent, particularly for people who have disappeared across borders.
Think about it: If someone is taken to another country against their will – maybe they were lured with false promises or simply vanished – and the U.S. government decides it doesn’t have to actively help them return home, what happens then?
- More Vulnerability: It makes those who have disappeared even more vulnerable. They’re already in a terrifying situation, and now they have to worry about whether their own government will lift a finger to help.
- A Signal to Abusers: It sends a message that those who cause people to disappear can operate with less fear of intervention. If the U.S. isn’t actively working to bring them home, it might embolden those who exploit and abduct.
- Potential Impact on U.S. Citizens: This could affect U.S. citizens who disappear abroad. If the government sets a precedent of non-intervention, what’s to stop them from using the same argument when a U.S. citizen is being exploited or held against their will in another country?
What We Should Fear?
Laurence Tribe, a Harvard Law Emeritus Professor, didn’t mince words in a recent New York Times op-ed. He argued that we should all be “very, very afraid” of the implications of the Abrego Garcia case. Why? Because, as Justice Sotomayor pointed out, the government’s argument suggests it could “deport and incarcerate any person, including U.S. citizens, without legal consequence, as long as it does so before a court can intervene.”
Sotomayor’s Warning: An “Extraordinary Threat to the Rule of Law”
Justice Sotomayor has been particularly vocal about the dangers of the government’s actions in this case. In a separate case with similar themes, she criticized the majority’s intervention on the government’s behalf, writing: “The Government’s conduct in this litigation poses an extraordinary threat to the rule of law.”
Sotomayor also said she would’ve let Xinis’ order go forward undisturbed, while noting the government’s extreme positions in this litigation and concluding: “In the proceedings on remand, the District Court should continue to ensure that the Government lives up to its obligations to follow the law.”
The “Foreign Relations” Excuse
The Justice Department is hiding behind the idea that the courts can’t tell the Executive Branch how to conduct foreign relations. But at what point does “foreign relations” become a convenient excuse for not doing what’s morally right?
We’re talking about human lives here, not trade deals or diplomatic negotiations. Is it really too much to ask for the government to actively help someone who was wrongly deported, or someone who has disappeared in another country?
In Closing But Hopefully Not An End To A Story
Unlike the Count, Kilmar Abrego Garcia, and countless others who have disappeared, may not find their way out of the darkness. They may remain trapped, forgotten, victims of a system that seems indifferent to their plight.
This isn’t just about one man in El Salvador. It’s about the kind of country we want to be. Do we want to be a nation that turns a blind eye to suffering, rationalizing inaction with legal technicalities and geopolitical considerations? Or do we want to be a beacon of hope, a nation that upholds its values even when it’s difficult, and actively works to protect the vulnerable, regardless of where they are? The answer should be obvious: A nation’s true strength lies not just in its power, but in its compassion and unwavering commitment to justice.
What Can We Do?
Honestly, it’s easy to feel helpless in situations like this. But there are things we can do:
- Stay Informed: Keep up with cases like Abrego Garcia’s and understand the implications.
- Support Organizations: Donate to or volunteer with organizations like Luminus that fight for the rights of immigrants
- Contact Your Representatives: Let your elected officials know that you believe the government has a responsibility to help those who have disappeared and those wrongly deported.