Welcome back, Deadline: Legal Newsletter readers. Have you ever had a word stuck in your head? I can’t seem to shake this one from a court decision this week: entombed.
The haunting term came from the chief federal trial judge in Washington, D.C., James Boasberg. He’s presiding over a lawsuit from scores of Venezuelan immigrants held in a Salvadoran prison known for human rights abuses, called the Center for Terrorism Confinement, or CECOT for short. The judge wrote a 69-page opinion, published Wednesday, explaining why the Trump administration must work to let the immigrants challenge their rushed renditions to that prison back in March.
Boasberg opened with a nod to Franz Kafka’s “The Trial.” The Obama appointee compared the ordeal to that of Kafka’s protagonist, Josef K., whose absurd legal saga is a helpful shorthand to draw attention to farcical affairs. While the term Kafkaesque can seem dramatic, it applies here.
After all, U.S. agents hustled the men out of the country without due process, backed by the purported authority of an 18th-century wartime law, the Alien Enemies Act, whose factual and legal propriety has been called into grave doubt not only by judges around the country but by U.S. intelligence agencies. On the latter front, a declassified memo released last month showed that officials had rejected President Donald Trump’s basis for citing the act. He had claimed the Venezuelan government controlled the gang to which these men allegedly belonged. But experts in Trump’s own government disagreed.
So, Trump’s use of the law was bogus from the start. On top of that, at a hurried hearing in March, Boasberg had ordered the U.S. to keep custody of the men — an order the government ignored, and that disobedience is the subject of separate contempt litigation that the administration is appealing.
But that foundational sham and defiance wasn’t the issue in Boasberg’s ruling this week. His narrower, modest point was that the men never got due process to challenge their removals under the act. “Perhaps the President lawfully invoked the Alien Enemies Act. Perhaps, moreover, [government] Defendants are correct that Plaintiffs are gang members,” the judge wrote, adding: “But — and this is the critical point — there is simply no way to know for sure, as the CECOT Plaintiffs never had any opportunity to challenge the Government’s say-so.” Our word-of-the-week then emerged when the jurist observed that “significant evidence has come to light indicating that many of those currently entombed in CECOT have no connection to the gang and thus languish in a foreign prison on flimsy, even frivolous, accusations.” Entombed in CECOT. Now what? Boasberg said the government must facilitate the plaintiffs’ ability to challenge their removals. But he left it to the government to decide how to make that happen. “Exactly what such facilitation must entail will be determined in future proceedings,” the judge wrote, giving the administration a week to come up with a plan. We’ll be eagerly awaiting the official response — or, the latest emergency Supreme Court appeal from a judge’s effort to bring the administration into legal compliance. At any rate, it doesn’t seem like anyone is going anywhere anytime soon, even if Boasberg’s order stays on track, which is not a sure bet. Until then: entombed. Have any questions or comments for me? Please submit them on this form for a chance to be featured in the Deadline: Legal blog and newsletter.
Jordan Rubin is the Deadline: Legal Blog writer. He was a prosecutor for the New York County District Attorney’s Office in Manhattan and is the author of “Bizarro," a book about the secret war on synthetic drugs. Before he joined MS NOW, he was a legal reporter for Bloomberg Law.
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