Trump’s Policy of Shipping Innocents to the Salvadoran Gulag Shows Utter Contempt for Not Just the Constitution but Law Itself
His repudiation of due process, civil rights, and basic rules of justice means there is no check on who he can disappear next, citizen or noncitizen
The Trump administration has sent an innocent man to the notorious “Terrorism Confinement Center” (CECOT) in El Salvador, using it as a kind of outsourced contract prison. The White House has openly admitted that it was an “administrative” mistake in violation of a court order specifically protecting him from removal to El Salvador. Now, the government is in openly contemptuous defiance of a court order requiring that it rectify the matter, backed by a unanimous Supreme Court ruling. Kilmar Abrego Garcia’s case is the most striking example, but he is by no means the only victim. A CBS investigation found that, of the nearly 250 Venezuelan migrants who were deported in March from the U.S. and committed to a maximum security prison in El Salvador ostensibly for terrorists and gang leaders, “an overwhelming majority have no apparent criminal convictions or even criminal charges.”
Trump’s El Salvador scheme is more than just flouting American constitutional law. It repudiates the fundamental principle of due process with roots dating back four millennia. It is, as a Reagan-appointed judge on the Fourth Circuit searingly put it, “a path of perfect lawlessness."
A History of Habeas
Almost 4,000 years ago, the Babylonian king Hammurabi promulgated a set of laws, the oldest extant written legal code we have. It wasn’t pretty by modern standards, much of it concerning slavery and patriarchy, and the punishments were severe. But even then, it took for granted a principle (at least regarding non-slaves) which was already by then well understood. For someone’s life or liberty to be taken, an accusation must be made and then adjudicated. There was, in other words, a right to due process—a right so fundamental that the very concept is inseparable from what it means to have laws and judges.
In ancient Rome, the tribunes (from which we get “tribunal”) had the power to interdict—overrule—any executive magistrate’s unlawful actions against a plebian, who made up the vast bulk of the population. This power was not a mere formality—it was grounded in a collective belief that the tribunes were sacrosanct and any violation would be met with instant violence from the people themselves. Over time, as Roman law expanded beyond Rome itself, a formal written order—a writ—was developed that was known as de homine libero exhibendo—literally, present the free man, an order to physically produce the person being held so that the authorities couldn’t just disappear someone. When the Emperor Justinian sought to codify the sprawling precedents and statutes of Roman law, this was the first precedent discussed. And it was this system of laws that was in effect for the four centuries of Roman rule in Britain, and remained in place long after the Romans were gone.
In 1166, the Assize of Clarendon was issued by Henry II as a statement of English law as it stood, again recognizing this inherent judicial function for protecting personal liberty. And when King John was forced to agree to the Magna Carta a few decades later, it stated: “Nullus balivus ponat aliquem ad legem, simplici sua loquela”—that is, nobody ought to be subject to legal punishments on the mere say-so of an executive officer. There must be evidence and a process, a chance to vindicate your rights before an impartial arbiter.
Over time, English common law came to carry out this function by means of the “Great Writ,” under the name we know it today: habeas corpus. Echoing the ancient Roman equivalent, this is an order to literally “produce the body” of a person being detained before the court so a judge can rule on their incarceration. In 1640, in the lead-up to the English Civil War, Parliament enacted a statute providing that even the king’s authority could not interfere.
This legacy was of acute importance to the American Founders, and protection for it was entrenched in the original Constitution even before the amendments adopted in the Bill of Rights. Of course, it has always been recognized, as a matter of practical reality, that in some cases of extreme urgency the courts would be unavailable. But in American law it has been firmly settled that this kind of exception only applies when courts are shut down by being in a literal war zone or an equivalently disruptive catastrophe. And even then, within those narrow confines, the right can only be suspended according to a law passed by Congress.
In some cases, habeas has been supplemented with other laws and causes of action, such as those giving individuals standing to sue over civil rights violations. But the heart of the matter has always remained: Nobody can simply be disappeared by the government without an opportunity to seek relief from the courts. It is the core feature from time immemorial distinguishing free people from slaves, the latter a category we have now abolished altogether.
Disappearing Due Process
This brief march through the history of legal protection for personal liberty is not just an intellectual curiosity. On Monday, it came crashing down in the Oval Office, in the meeting between Donald Trump and his client autocrat, Nayib Bukele, the president of El Salvador.
Abrego Garcia was abducted by the federal government and rushed on a flight to El Salvador’s notoriously brutal “Terrrorism Confinement Center” (CECOT), along with more than 200 others. These flights proceeded despite a federal judge ordering them to turn around while they were in the air. Abrego Garcia’s lawyers obtained a district court order for the government to facilitate his return to the United States, in part because the government even admits his removal was illegal and in violation of a court order. Abrego Garcia, who fled to the United States as a teenager, was the subject of an immigration judge’s order that he not be sent to El Salvador.
This ruling was appealed to the circuit court, where a three-judge panel unanimously affirmed it in a blistering ruling denouncing the administration’s blatant lawlessness. This was then appealed to the Supreme Court, which again unanimously upheld the order. Though slightly tweaking its terms, all nine justices agreed that the court could and should order the government to return Abrego Garcia and answer the judge’s questions about what they had done and what steps they were taking.
Since then, the government has openly defied the courts: refusing to take any steps to facilitate Abrego Garcia’s return and, even more flagrantly, refusing to provide any clarification about the nature of its agreement with El Salvador. The migrants condemned to the El Salvador prison are not being held under any accusation of breaking Salvadoran law; rather, CECOT is functioning like a kind of contract prison for the United States. For all his bluster, Bukele has stopped short of denying this, and has never said that he would refuse an order that the U.S. issued him regarding a prisoner’s release or return. His flippant suggestion that returning Abrego Garcia would require him to smuggle “a terrorist into the United States” implies he has not received an order from the U.S. to return him, since, definitionally, returning a prisoner at the U.S.’ request would not involve smuggling.
The origin and source of this problem is not in El Salvador but in the White House—Trump and his subordinates have been resolute in refusing to issue any instruction or request to rectify their egregious error, despite a direct and unambiguous court order. Instead, while Abrego Garcia languishes in CECOT amidst actual gang members, and while his young son remains without his father, Trump and Bukele were in the Oval Office laughing and lying about being powerless to free an innocent man.
Worse, Trump openly mused about his desire for American citizens to suffer the same fate, under the same logic whereby the government can rush somebody out of the country to a foreign torture camp, admit they did so unlawfully, but then sit back and claim there’s nothing courts can do about it.
To describe this as a constitutional crisis would be accurate, though it would actually understate it. In a way that’s never happened before in American history, a president and his subordinates are openly defying not just a court order but one upheld without dissent on appeal all the way up to the Supreme Court. The most basic way in which the judicial and executive branches of government interact has been shattered. But more fundamentally than that, Trump has repudiated the very foundation of law itself. Its deep roots are at the core of human civilization as we know it, and Trump has trampled over them with no remorse.
We are staring into the abyss. Any person, citizen or not, can now be shipped off to a gulag from which they have no hope of release, no opportunity for judicial review, no protection of any law. This could be done not just to criminals, not just to those falsely accused of a crime, but to anybody who attracts Trump’s personal displeasure, which is no short list of names.
Our most ancient ancestors would have recognized this for what it is. If they could see it, and have left us a legacy stretching back millennia, there is no excuse for acquiescence or looking the other way. If this scheme is not repudiated root and branch, we are not merely no longer living under the Constitution. We will have forsaken the very idea of law and courts, the most elementary notion of what law is. The choice is stark: we now face, directly and its purest distilled form, the question of if we will be ruled by the unchecked absolute power of a single man.
© The UnPopulist, 2025
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Trump has done this, so we as Americans bear some guilt for it - even if we personally abhor the action and the man. We must suffer the loss to national reputation for bringing Trump to power under our Constitution.
Also fundamental basic natural justice. Innocents who are known to be innocent ought not to be punished. Period. It is state terror. The arbitrary use of cruelty is the point. No one is exempt from possible punishment.