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Is Kilmar Abrego Garcia a good person? I don’t know.
In 2021 his wife petitioned for, and received, an order of protection against him after she alleged domestic violence; she said last week that their marriage grew stronger after they worked through that low point and that Abrego Garcia “has always been a loving partner and father.”
The government has claimed that he is a member of a truly heinous criminal gang, MS-13. If that were true, given that he was in the United States illegally, I’d have no problem with deporting him, though perhaps not to a prison that our own State Department has condemned. We’ll get back to that.
The Trump administration, by its own admission, mistakenly deported Abrego Garcia in defiance of a court order to a Salvadoran prison. A judge had previously granted Abrego Garcia’s request not to be deported to his native El Salvador, because he feared for his safety. No one said he couldn’t be deported somewhere else.
On the other hand, is Abrego Garcia a terrorist or vicious criminal, as the administration claims? I don’t know that either. Is he even a member of MS-13? When the president sought to back up that claim, he posted a doctored image of Abrego Garcia’s hand tattoos to which the characters “MS13” had been digitally added.
The Trump administration has offered no evidence, in court or out, that Abrego Garcia is guilty of any violent crimes (save for the allegations that he abused his wife, and he never faced charges over those claims). He was originally apprehended for “loitering.” Andrew McCarthy, a former federal prosecutor and prominent conservative legal analyst, wrote for National Review that “the proceedings in the lower courts have shown that, to date, the government’s evidence tying Abrego Garcia to MS-13 is gossamer thin.”
As for the charge of being a terrorist, this is … misleading. Trump has arrogated to himself war powers to thwart what he incessantly calls an “invasion.” His administration has invoked the Alien Enemies Act of 1798 as a way to bypass what it considers onerous legal and constitutional niceties in pursuit of deporting illegal immigrants it deems “terrorists.” So the administration can now apply that label without much, if any, factual rigor.
MS-13 and Tren de Aragua, another gang the administration has designated as a foreign terrorist organization, are terrible. But the argument that they meet anything but a politically convenient definition of terrorist organizations is weak.
Much of the political argument over Abrego Garcia is what legal scholars might call “stupid.” The Trump administration and its supporters are going full tilt to paint Abrego Garcia as a vile and dangerous terrorist. Many Democrats, outraged by Trump’s methods, prefer benign descriptions like “Kilmar Abrego Garcia is an innocent man and the father of three,” as Sen. Bernie Sanders (I-Vt.) put it.
This framing — “Abrego Garcia innocent and good” vs. “Abrego Garcia guilty and bad” — is what is so stupid. None of the relevant legal and constitutional issues have anything to do with whether this individual is good (or a father). By insisting that he is an innocent man, Democrats are implying that if he were not innocent, what the Trump administration has done to him would be unobjectionable.
The relevant questions are whether the administration has the power to bypass due process — a right conferred to even illegal immigrants — and whether it has to try to remedy the mistake it made in sending Abrego Garcia to a foreign prison.
The administration has contracted with the authoritarian Salvadoran government to take “terrorists” off our hands, but Trump officials also claim that they are powerless to retrieve anybody mistakenly sent there. Judges, including the nine on the Supreme Court, think this is problematic, because it is problematic.
The idea that the government can simply assert that people on American soil, possibly including American citizens or legal residents, are criminals or terrorists runs completely counter to our legal system. The government has broad authority to deport illegal immigrants. It also has the authority to put convicted criminals in any prison it deems appropriate. It doesn’t have any authority to put people in prison without first proving — in court — that they are charging the right person and then convicting them of a crime.
If you were snatched up by ICE by mistake, you would want a chance to prove they got the wrong person. That right goes by habeas corpus, which has been a keystone of Anglo-American law and the heart of due process for centuries. The administration doesn’t seem to know this — or care.
The Constitution is designed to limit abusive government power. That is the only relevant issue here. Consider the case of Ernesto Arturo Miranda. He was a truly awful person. But so what? His case gave us the “Miranda rights” that are read to suspects upon arrest. The only way to make sure innocent people get such protections is to make sure everyone gets them.
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Ideas expressed in the piece
- The author argues that the legal and constitutional issues in Kilmar Abrego Garcia’s deportation case center on due process, not his personal character. They emphasize that the Trump administration bypassed judicial oversight by deporting him to El Salvador despite a 2019 court order prohibiting it, violating his right to challenge deportation in court[1][2].
- The administration’s claim that Abrego Garcia is an MS-13 member is criticized as unsupported by credible evidence. A doctored image of his tattoos and reliance on the Alien Enemies Act to label him a “terrorist” are cited as examples of politicized overreach lacking factual rigor.
- Legal scholars and judges, including Supreme Court Justice Sotomayor, have condemned the government’s refusal to rectify its error, noting that habeas corpus rights apply regardless of immigration status. The administration’s argument that U.S. courts lack jurisdiction post-deportation is deemed legally unsound[1][3].
Different views on the topic
- The Trump administration asserts that Abrego Garcia’s alleged MS-13 ties justify his deportation under national security priorities, arguing that gang affiliation inherently threatens public safety. They contend retrieving him from El Salvador would set a precedent undermining immigration enforcement[2][3].
- Officials defend the deportation to CECOT prison as part of a bilateral agreement with El Salvador, framing it as a necessary measure to combat transnational gangs. They dismiss the court’s injunction as secondary to broader enforcement goals[1][3].
- Conservative commentators support the administration’s use of broad executive power, arguing that immigration enforcement requires flexibility to bypass “onerous” legal hurdles. They claim Abrego Garcia’s protected status is nullified by his alleged gang ties, regardless of evidence[2].
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