When President Trump met with El Salvador’s president, Nayib Bukele, at the White House, the fate of one man was hanging in the balance.Adam Liptak, who covers the Supreme Court, discusses the Maryland man who was mistakenly sent to a notoriously brutal prison in El Salvador, and what his case means for the limits of presidential power and the rule of law.Guest: Adam Liptak, who covers the Supreme Court and writes Sidebar, a column on legal developments, for The New York Times.Background reading: The Supreme Court sided with the wrongly deported man.El Salvador’s leader said on Monday that he would not return the man.For more information on today’s episode, visit nytimes.com/thedaily. Transcripts of each episode will be made available by the next workday. Photo: Jose Luis Magana/Associated Press Unlock full access to New York Times podcasts and explore everything from politics to pop culture. Subscribe today at nytimes.com/podcasts or on Apple Podcasts and Spotify.
Chapter 1: Who is Kilmar Abrego Garcia and why was he deported to El Salvador?
So his name is Kilmar Abrego Garcia. He was born in El Salvador in 1995. He moved to the United States when he was 16 years old after a gang in El Salvador threatened him in trying to extort money from his family's business. He arrives here in 2011, enters without authorization, finds work, goes about his business, and is arrested in 2019 on immigration offenses.
He has then and now never had a criminal record in El Salvador or the United States. And goes before an immigration judge, and the judge, and this is important, issues a ruling that says he faces dire consequences if he were to be sent back to El Salvador. And the judge issues a ruling that says you may not deport him to El Salvador.
Chapter 2: What were the legal and procedural errors in Abrego Garcia's deportation?
And he goes on living in the United States, has a work permit, checks in with the immigration authorities every year, gets married, is raising three kids. And a few weeks ago, he is detained again. And this time he gets no process. He is sent to Louisiana, a detention facility, and then is put on an airplane to El Salvador, the one place he cannot be deported to under the immigration law.
And moreover, he's sent to El Salvador. to a notoriously inhumane, squalid, and dangerous prison there called the Center for Terrorism Confinement. And there he sits. And his lawyers go to court in Maryland. And the lawyer says, there's been a terrible injustice here. We've got to get him back. And the government's initial response is, that's right. There's been an administrative error here.
This shouldn't have happened. He shouldn't be in El Salvador. The lawyers initially say, we're looking into it. We're trying to figure out how to fix it. The lawyer says he's not getting cooperation from his superiors.
At the government.
Chapter 3: How did the U.S. government respond to the deportation mistake?
Yes, but everybody agrees this shouldn't have happened. And you might think the answer is to take steps to bring them back. But then the administration, as this goes up the food chain in the Trump administration, starts to dig in his heels. And here's a bad sign for Mr. Obrego-Garcia. The government lawyer who made those concessions is put on administrative leave Because Pam Bondi, the U.S.
Attorney General, says the lawyer had not zealously represented the position of the United States.
Just because they admitted a mistake?
Because the lawyer did the ordinary thing expected of an American attorney in an American courtroom. which is to be candid with the court. Zealous advocacy is one thing, but you also have an obligation as an officer of the court to tell the truth.
So what does the Maryland judge say about all of this?
She couldn't be more appalled. She says this shocks the conscience. that this kind of lawless behavior is un-American. And she orders the government to facilitate and effectuate, and those words may become important as we talk about this, his return in very short order. She tells the government to bring him home.
And can we just pause here for a second before we get to the facilitate and effectuate language? Why does the judge say that this shocks the conscience? Like, what exactly is she finding so egregious about all of this?
A couple things. One, that this was in plain violation of a court order. Two, that he wasn't afforded the merest amount of due process for And if he had been afforded that, he could have made two points. One, that he's exempt from being deported to El Salvador. And two, that if there are other things to be said about his life, he could dispute that, put in evidence, call witnesses.
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Chapter 4: What did the Maryland judge rule about the deportation case?
He was afforded neither of those things.
And so how does the government respond to all of this? What is the case that they're making exactly about why they deported this man?
So as the case moves up through the legal system, the government never backs off its concession that this was an oversight, a mistake. But they now say that they're not capable of fixing the mistake because Mr. Obrego Garcia is in the custody of El Salvador. And the United States is powerless to retrieve him.
And the government starts to lean on a theory that Abrego Garcia is a member of an El Salvador gang, MS-13. They have very little evidence for this. A confidential informant—we don't know who this is— accused Obrego Garcia of being affiliated with an upstate New York branch of the gang. He says he's never been to upstate New York. And in any event, even if everything was true,
even if he's a member of this gang, even if that's criminal conduct, even if it's criminal conduct in the United States, that still doesn't give the government the right to deport him. Maybe it gives them the right to prosecute him in the United States. Maybe it gives them the right to send him somewhere other than El Salvador.
But the one thing we know is that it's unlawful to send him to El Salvador. And their legal argument basically consists of It's a pity it happened. Shouldn't have happened. But now that he's in El Salvador, we have no way of getting him back.
So then what happens next?
It goes to a federal appeals court. All three judges on the federal appeals court say the government needs to take steps to get him back. It then goes to the U.S. Supreme Court. And in what is basically a unanimous decision, The Supreme Court affirms most of what the trial judge said. Remember, the judge used two verbs, facilitate and effectuate.
And the court, in an unsigned decision, bears down on those two words and endorses facilitate. You've got to get to work. people. You have to take steps. Clearly, something has gone wrong here. And the court says, take steps to fix it. But the court stops short of endorsing effectuate. It says it's not quite clear what the judge meant by that and that it's possible that it goes too far.
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Chapter 5: What arguments did the government make about the deportation legality?
The court doesn't like to, doesn't want to tell the president how to conduct foreign affairs, how to supervise the immigration system.
And in practical terms, what does this mean for the government's obligation, this distinction between effectuate and facilitate?
I think what it means is that the court is not ordering an outcome. It's ordering process. But the thrust of the court's decision is, let's be serious, you've got to get them back.
So basically, it's the difference between a should and a must. The court is basically saying, do everything you can, but if you ultimately can't bring him back, then you've fulfilled your obligation.
That puts it very well. That's right.
It also feels like the ruling gives the administration some leeway, right? Because the ruling is basically telling the government, please try. So if the government, for example, you know, says, well, look, we called up the president of El Salvador and we asked him nicely and he said no, we did our job. That's the end of it, right? Yeah.
So there are things the United States could do. You could extradite Abrego Garcia. If the U.S. contends he's a criminal, start extradition proceedings and have him returned here. Recall also that we are paying the government of El Salvador $6 million to house these people we've deported there. You would think that alone would give us the power to say, you know what? We're not paying for this guy.
Send him back. The United States is a very powerful country. And if it wants to achieve something as simple as having an ally to accomplish something, it just beggars belief that it couldn't be achieved.
So if we are in a scenario where facilitate is the order of the day, that essentially still means that the government should be trying all avenues to get this guy home.
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Chapter 6: How did the federal appeals court and Supreme Court rule on the case?
So tell us about that. What does the administration do right after the ruling?
So the court rules on Thursday evening, and Friday morning the trial judge says, I want answers. I want a status report. I want to know what you're doing, what steps you're taking to bring Abrego Garcia home. That also echoes language in the Supreme Court's order. And the administration on Friday morning says, you know what? We need more time. We're not ready to come talk to you.
Why don't you set this down? Not for Friday, not over the weekend, not for Monday, but for Tuesday. And the judge is flabbergasted by that idea. After all, Abrego Garcia has been wrongly confined in El Salvador for a month by then. And she says, no, I want answers right now. And I want daily reports on what's happening here, what you're doing to get him back.
And those daily reports start to come in. And they are very thin reports. They don't indicate that the administration is doing anything. The administration almost grudgingly says, well, he's alive and he's being held at this terrorism prison and essentially says nothing more other than that. We are powerless to get him back. He's in the hands of another nation's sovereign authorities.
And the judge's attempts to get this thing rolling are stymied.
It sounds like they're not really doing anything to heed any of the requests or demands that they do something to bring this man home.
No, the government gets more and more hostile, more and more dug in, until on Sunday they, in essence, tell the judge that she's powerless to do anything.
So basically, we're back where we started, right? The government is returning to this argument that you, the courts, can't tell us what to do when it comes to foreign policy.
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Chapter 7: What is the significance of the Supreme Court's 'facilitate' versus 'effectuate' ruling?
Right. And also that we don't want to get them back.
Mr. President, it's an honor to have you. Thank you. You're doing incredibly for your country.
So this was brought into vivid relief on Monday. when El Salvador's president, President Nayib Bukele, pays a visit to Donald Trump in the Oval Office and is asked, Can President Bukele weigh in on this?
Do you plan to return him?
Are you going to send Obrigo Garcia back?
How can I return him to the United States? Like, could I smuggle him into the United States or what do I do? Of course, I'm not going to do it.
And he treats that as a kind of laughable question.
The question is preposterous. How can I smuggle a terrorist into the United States? I don't have the power to return him to the United States.
He says, what am I going to do, send a terrorist into the United States? So you could tell that the two presidents, Trump and Bukele, were on the same page and had no interest in returning Abrego Garcia to Maryland.
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Chapter 8: What happened after the Supreme Court decision regarding Abrego Garcia's return?
Exactly. They say that the Supreme Court has essentially said, not, we're nudging you, you should bring him home, but rather, you decide. You get to decide in the area of foreign affairs and immigration. who gets deported, who doesn't, whom you bring back, whom you don't. And so the two sides managed to read the same judicial decision quite differently.
So Adam, we have had you on the show before talking about whether the various showdowns between the administration and courts are leading toward a constitutional crisis.
And it feels like a distinction that has been made before is that there's a difference between the administration making a legal argument, no matter how bad legal scholars say it is, and the administration openly flouting a court and saying, we're not going to listen to you. And I just sort of wonder, like, where this case sits within that distinction.
So that's a very good question, Rachel. And we used to think that there are two things that could go on. There's the administration making weak, not very persuasive arguments, but still kind of doing law. And then at the other end of the spectrum, the administration being told to do something and refusing to do it. And that's defiance, and that's the classic constitutional crisis.
So here we have something I didn't anticipate, a third thing, where everybody acknowledges that the initial deportation in the Abrego Garcia case was unlawful. And yet the administration continues to make kind of legalistic arguments defending it. And this third thing may be the constitutional crisis everyone's been waiting for.
It doesn't take the classic form, but it gets you to pretty much the same place.
Adam, I think that probably there are a lot of people out there that might say something along the lines of, this man was in the country illegally. There's a reason to think that he's a gang member. You know, trust the president. Maybe there are some mistakes along the way. But by and large, why are you guys getting all worked up about this? We send him back to where he belongs.
What would you say to those people that might think that?
What I would say is that there's really nothing in the administration's legal logic that would prohibit the administration from picking an American citizen off the street, send them to a vicious prison in another country where torture is routine, conceitedly lawlessly, and then say, whoops, sorry, nothing we can do about it. You're going to spend the rest of your days there.
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