The government’s allegations against Kilmar Abrego Garcia have not held up well under even the slightest scrutiny. On the one hand, Homeland Security Secretary Kristi Noem, who favors cosplaying, obedient dogs and holding anything related to her president near to her head, called him a “monster” though he’s yet to be convicted of anything. Then there’s the president himself, who knows an MS-13 gangbanger when he sees one.
After insisting repeatedly that there was no way the United States could get El Salvador President Nayib Bukele to return Abrego Garcia to American custody, even though he was being held without any due process and tortured in a Salvadorean prison at Trump’s request and with American payment, it turned out that all that was needed was to ask and, boom, he was back.
Abrego Garcia is now being prosecuted in the Middle District of Tennessee for human trafficking. But the allegations against him, coupled with the government’s position that regardless of anything else, they were going to deport him, lacked sufficient merit to forestall his release on bond. He was to be released Friday, and the government was not happy about it.
In a seven-page filing in Federal District Court in Nashville, the lawyers said that on Thursday evening, one day before Mr. Abrego Garcia was set to be released from criminal custody, federal prosecutors offered him a deal. The prosecutors said that if he agreed to remain in jail until Monday and then pleaded guilty to charges of having taken part in a long-running conspiracy to smuggle undocumented immigrants across the United States, they would agree to deport him to Costa Rica after he served whatever sentence he was given in the case.
The filing, it should be noted, was a motion to dismiss for selective prosecution, which has a long and storied tradition of being denied. This time, however, the motion has both significant weight and a flurry of press statements by high ranking administration officials that pretty much nail down the fact that they are going to burn Abrego Garcia one way or the other. Selective prosecution barely scratched the surface of what the government intends to do to him.
But after Mr. Abrego Garcia was freed from custody in Tennessee on Friday afternoon, they said, the Trump administration suddenly changed course. Working together, the Justice Department and the Department of Homeland Security informed the lawyers that if Mr. Abrego Garcia did not accept the offer to plead guilty and be sent to Costa Rica by Monday morning, then Immigration and Customs Enforcement would start the process of expelling him to Uganda.
In the ordinary scheme of coercive plea bargaining, the constraint is being found guilty. Plead and you get a lighter sentence. Go to trial and lose, and you get life plus cancer. But there remains an alternative. Go to trial and win, and you walk free. This is not an option, according to the government. Win or lose, he’s going to lose.
The only question is where he gets shipped off to. Will he be sent to a country where he speaks the language and has a similar culture, that is willing to take him in and allow him to be free, or a country on another continent on the other side of the world, known for its horrific human rights abuses, where his future seems limited by months, if not weeks.
If Costa Rica will take him, then it will take him either way. Cool. But then, if he refuses to plead guilty, he gets sent to Uganda rather than Costa Rica because the Trump administration wants to be as openly and flagrantly coercive as possible.
For the thinking challenged, no, this is not the typical coercion that comes with all plea bargaining. This is very different. The option is plead out and live or go to trial and even if acquitted, spend the rest of your life, however long that may be, in a Ugandan prison.
I have no clue whether Abrego Garcia was engaged in human trafficking. Neither do you, no matter how deeply you believe what your lord and savior says. But that’s why we build courthouses and hold trials in America, to determine whether the government’s accusations of criminal conduct against an individual are provable or not. We do not simply take Kristi’s word for it, and we do not use a future in Uganda as a wedge to get a guilty plea even if acquitted after trial.
There are two very separate moving parts to this story. If Abrego Garcia can be proven to have committed the crimes with which he is charged, then he should be punished for them according to law. And then, because he is already subject to a removal order with the limitation that he not be sent to El Salvador, an appropriate deportation should follow. Regardless of the outcome of his criminal trial, it does not change the status of his being unlawfully in the United States.
But removal doesn’t mean being punished by being sent to Uganda, which is purely punitive and coercive. Especially when Costa Rica will be happy to take him.
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Why does the US get to decide where he is deported to? It makes sense that a country can remove aliens it doesn’t want, but why isn’t it up to the deportee to choose where he will go (subject of course to the willingness of the country to accept him)?
Why doesn’t a convict get to choose which prison they go to? Once you are at the level of official action I don’t believe the system cares much about your preference. Plus all the people from Central and South America choosing to be deposited 5 miles over the border with Mexico wouldn’t do much good for preventing them from just crossing right back over the next day.
If an illegal alien wants to choose which country they are sent to they are free to self-deport themselves to that locale at any time before they end up in ICE custody. Now it makes more sense fiscally to send them to the closest country that will accept them and is far enough to make it a burden to walk back but that wouldn’t be punitive and petty enough for the current administration.
The situations are not parallel. Criminals don’t get to choose which prison they go to because they have been convicted of a crime and are in custody. A person excluded from a country is not necessarily a criminal and deportation is not, in general, a criminal penalty.
The important thing is for Trump to “win,” even though the case was started by mistake.
If Garcia manages to survive until a Democrat is elected, he will likely be brought back with a ticker-tape parade as a great, leftist hero of the anti-Trumpian resistance.