When Good People Make A Mistake They Try To Fix It; If They Don’t, They’re Not Good People
When most people make a serious mistake that harms someone else, they try to fix it. That’s basic human decency. But when the Trump administration admits to “mistakenly” trafficking someone with protected status to an El Salvador slave labor camp, their response is to mock the judge who ordered them to try to fix it.
Last week, I wrote about the lawless evil of denying due process, focusing on how the administration is human trafficking people (not “deporting” them — deportation requires due process) to El Salvadoran slave labor camps. I used the word “evil” deliberately, as it’s not a word I use lightly. The administration’s gleeful response to their admitted “mistake” only reinforces that conclusion.
That story discussed the case of Kilmar Armando Abrego Garcia, who goes by Abrego Garcia, who was mistakenly trafficked by the US. Remember, the US admitted this directly: they knew he had protected status in the US that prevented them from sending him to El Salvador. And did so anyway:
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
On Friday, the district court judge overseeing his case made what seems like a reasonable ruling in response to the DOJ’s direct admission of supposed “error.” The judge told them to fix it.
And, normally, when good people make an error, they will do their best to fix it.
But here, something very different happened. First, the DOJ went to court, telling the 4th Circuit Court of Appeals that the district court judge was being ridiculous in suggesting they fix things.
That order is indefensible. Foremost, it commands Defendants to do something they have no independent authority to do: Make El Salvador release Abrego Garcia, and send him to America. That is why Plaintiffs did not even ask the district court for an order directing Abrego Garcia’s return. As Plaintiffs themselves acknowledged, a federal court “has no jurisdiction over the Government of El Salvador and cannot force that sovereign nation to release Plaintiff Abrego Garcia from its prison.” Emergency TRO Mot., ECF No. 2, at 2. That concession is all that is needed to order a stay here. No federal court has the power to command the Executive to engage in a certain act of foreign relations; that is the exclusive prerogative of Article II, immune from superintendence by Article III. But that is exactly what this order does. Indeed, it is the only thing it does—requiring Defendants, on the clock, to try to force a foreign country to take a discrete action. That sort of FRCP 65 diplomacy is simply intolerable in our system of government.
But that was hardly the only thing the government did. El Salvador’s President, Nayib Bukele, first mocked the judge on ExTwitter, posting a gif meme from “The Secret Life of Pets.” While this kind of shitposting is the sort of thing you’d probably expect these days, watching US officials gleefully respond to a foreign nation mocking the US courts is… well… pretty fucked up.
Elon Musk laughing about it is all kinds of fucked up. He’s literally laughing at the fact the administration he works for trafficked an innocent man, who had protected status in the US, to a slave camp in a foreign country, which they admit was a mistake.
White House Press Secretary Karoline Leavitt’s response dripped with contempt for judicial authority: “We suggest the Judge contact President Bukele because we are unaware of the judge having jurisdiction or authority over the country of El Salvador.” This deliberately mischaracterizes the ruling — the judge isn’t claiming authority over El Salvador, she’s ordering the US government to attempt to fix its own admitted mistake.
Even more telling was Stephen Miller’s response. Miller, the architect of many of the administration’s cruelest immigration policies, called the judge a “Marxist” (based on nothing but her ruling against unconstitutional actions) and sneered that she “now thinks she’s president of El Salvador.” This isn’t just wrong — it’s a calculated attempt to delegitimize judicial oversight of executive power.
Let’s be clear about what the administration is really claiming here: that they can grab anyone — anyone — off the street, and traffic them to a notorious slave labor camp in another country with no due process, where the US is paying the El Salvadoran government for taking these people, and there’s nothing that can be done. Even when the US government admits it made a mistake.
And, again, this is why I pointed out why due process was so central to the rule of law in the first place. If you don’t want to make these kinds of mistakes, you have due process there to make sure that such mistakes don’t happen.
But this administration doesn’t care about mistakes. They don’t care about human trafficking innocent people. They don’t care that they’re sending people likely to their deaths in slave labor camps in another country by “accident.”
That’s just evil.
Even if we’re talking about it as a legal matter, law professor Steve Vladeck points out that the DOJ is full of shit in claiming there’s nothing they can do here:
Federal courts may not have the power to compel the release of an individual from a foreign prison, but they unquestionably have the power to order the U.S. government to take whatever steps it can to effectuate the same result.
And that’s all that the judge is doing: telling the US government to fix its own fuckup.
And there are clear precedents for this kind of judicial authority, as Vladeck explains. It’s settled law that someone can be in “constructive custody” even when physically held by another country, if that detention happens at the behest of U.S. officials. The courts have repeatedly affirmed their power to order U.S. officials to take steps to address such situations.
Consider the case of Ahmed Omar Abu Ali, a U.S. citizen who was being held in Saudi Arabia in 2004. Abu Ali’s parents brought a habeas petition in the D.C. federal district court (naming Attorney General Ashcroft as the respondent), alleging that, although their son was in a Saudi prison, he was being held (and interrogated) only at the behest of the U.S. government as a way of avoiding judicial review in the United States. Judge Bates ruled that, if those allegations were valid, he would have jurisdiction over the habeas petition—not because he could order the Saudi government to release one of its own prisoners, but because he could order the U.S. government to cease doing … whatever it was doing. Bates thus ordered jurisdictional discovery into the extent of the U.S. government’s involvement—at which point, the U.S. government … mooted the case (by indicting Abu Ali on criminal charges and promptly transferring him to U.S. custody in Virginia—indirectly vindicating the central allegation in his habeas petition).1
The Abu Ali case is evocative, but it’s no outlier. Every first-year Civil Procedure student who suffers through “personal jurisdiction” learns that courts can use their power over defendants who are in their jurisdiction to regulate conduct that occurs elsewhere. And so the question in the Abrego Garcia case is not whether Judge Xinis can order President Bukele to do anything (she can’t); it’s whether and to what extent Secretary Noem, who certainly is subject to Judge Xinis’s jurisdiction, can take steps to effectuate Abrego Garcia’s return.
So here’s the truly horrifying part about this. It would be one thing if Noem/DHS/DOJ tried to get Garcia back and Bukele told them to fuck off. They could then tell the court that, and it just becomes a foreign relations issue between two countries.
No, the horrific and fucking evil part is that the US government is making it clear they won’t even try to fix this error, and in fact they find the whole thing kind of amusing. They ignored basic due process and made a huge, life-destroying “error” in trafficking someone to a slave labor camp in another country when they knew he had protected status in the US. And they won’t even attempt to get the guy back.
And everyone knows if the US wanted him back, they could convince El Salvador to send him back.
But they won’t try. Because they don’t care.
It’s not that Judge Xinis is ordering El Salvador to do something. She’s ordering the US government to do something well within its power. And the US government is laughing at her.
As Vladeck powerfully explains, what’s at stake here goes far beyond one case:
And at a more fundamental level, it would be rather stunning if the law were otherwise. A world in which federal courts lacked the power to order the government to take every possible step to bring back to the United States individuals like Abrego Garcia is a world in which the government could send any of us to a Salvadoran prison without due process, claim that the misstep was a result of “administrative error,” and thereby wash its hands of any responsibility for what happens next.
That’s exactly what’s happening here. The administration isn’t just failing to fix a mistake — they’re establishing the principle that they can disappear anyone they want into foreign prisons, claim it was an “administrative error,” and face zero consequences. Their mocking response to the judge’s order isn’t just cruelty toward Abrego Garcia — it’s a declaration that they view themselves as completely unbound by the rule of law.
Most people, when they make mistakes, try to fix them. That’s basic human decency. But this administration has made it clear they’re not even willing to try — not because they can’t, but because they see “mistakes” like this as features of their system, not bugs. They’re telling us, through their actions and their sneering response to judicial oversight, that they intend to keep making these “mistakes.” That’s not just cruel or incompetent. That’s a sociopathic level of evil that this history books will remember. Future generations will question how anyone allowed this to happen.