Re-Post: "Concentration Camps and the Deportation of American Citizens"
Jonathan V. Last of The Bulwark makes the case for how the U.S. government could start deporting U.S. citizens to foreign prisons. Trump has publicly expressed support for the idea.
So when JVL sets out in clear, simple, bullet-pointed prose how the Trump regime is already laying the legal groundwork for sending U.S. citizens to prison in other countries — deporting them, essentially — this isn’t some alt-left tinfoil hat hysteria.
Moreover, a recent Supreme Court opinion could make it virtually impossible for any individual — U.S. citizen or not — to challenge such actions in a U.S. court.
Per JVL:
A simple legal question: Can the U.S. government send American citizens to prison in another country?
The Trump administration’s position is that:
If it deports an individual to foreign soil,
And this individual leaves U.S. airspace before a court order forbids it,
Then the government has neither the ability to bring, nor an interest in bringing, the individual back to U.S. soil. Ever.
We have seen this argument deployed in pieces already.
The deportation flight which a judge forbade, but the government then claimed the plane was over international waters so it could not legally be recalled.
The shipping of individuals to El Salvador without due process.
The refusal to repatriate an individual whom the government admits it deported in error.
If these precepts are allowed to stand—and so far, they have been—what would stop the government from apprehending a U.S. citizen, putting the American on a plane to El Salvador, and handing him to that country’s government with the expectation of indefinite imprisonment?
It is true that an American citizen cannot be jailed on American soil without due process. But couldn’t he be jailed on foreign soil without due process?
Enabling the Trump Regime to Engage in Extraordinary Rendition
On April 7, 2025, the U.S. Supreme Court vacated a temporary restraining order — put in place by Judge James Boasberg of the federal district court in Washington, D.C. — against the Trump regime’s invocation of the Alien Enemies Act in the deportation to El Salvador of a group of Venezuelan migrants.
Purely procedural on its face — ruling that lawyers had filed the wrong kind of case in the wrong venue — the Supreme Court’s decision is actually a death blow to due process. The Court held that each deportee would need to file an individual petition for habeas corpus in the location where they had been detained before they were deported (in this case, the location was Texas for most of the Venezuelan deportees).
Oh, and lifting the TRO means that the government can continue to engage in extraordinary rendition — disappearing people from homes, workplaces and streets in the United States and shipping them to foreign gulags — before any U.S. court rules on the merits of whether the Alien Enemies Act can be used as the legal justification for doing so.
Ensuring Deportees Have No Legal Recourse
The Venezuelan deportees (and Kilmar Armando Abrego Garcia, the Salvadoran man illegally deported from Maryland) are being held in El Salvador’s Centro de Confinamiento del Terrorismo (CECOT, or Center for Terrorism Confinement in English.) Prisoners in CECOT are reportedly kept in communal cells holding up to 100 men each for 23½ hours a day.
According to Human Rights Watch, “People held in CECOT, as well as in other prisons in El Salvador, are denied communication with their relatives and lawyers, and only appear before courts in online hearings, often in groups of several hundred detainees at the same time.” These “online hearings,” mind you, refer to hearings in Salvadoran courts. None of the deportees have been charged with any crimes in El Salvador (or in the United States, for that matter). There is no provision for U.S. deportees to have access to counsel or any kind of U.S. court hearings, online or otherwise.
Query: Given their conditions of confinement, how, exactly, are deportees already imprisoned in CECOT supposed to file individual habeas corpus petitions in Texas (or any state in the United States)? Inquiring minds want to know.
Kudos to the American Civil Liberties Union (ACLU), which immediately filed class habeas petitions in both New York and Texas, where a number of detained Venezuelans were about to be removed to El Salvador. This means that petitions have been filed not only on behalf of several (unnamed) individuals, but that the ACLU has asked the courts to certify these matters as class actions.
Laying the Groundwork for Deporting U.S. Citizen Dissidents
This is a fast-moving story, and much of the legal steps and decisions outlined above may be out of date by the time you read this. I am nonetheless taking the time to discuss the possibility that the government could start illegally arresting and deporting U.S. citizens because I think we need to take the danger very seriously.
We need to take very seriously the danger that the government could start illegally arresting and deporting U.S. citizens. Donald Trump has said publicly that he likes the idea.
Donald Trump has said publicly that he likes the idea of sending “American-grown and -born” criminals to prisons in El Salvador. White House Press Secretary Karoline Leavitt has confirmed that the notion of deporting U.S. citizens is under discussion.
In both cases, Trump and Leavitt have sought to make this idea more palatable by suggesting it would only be “heinous criminals” who would be subject to deportation. But how big a step would it be to deport U.S. citizens who criticize government policies?
, the well-known author and activist, has been very public about his experience of being imprisoned as a child in an internment camp with his family. His recent public post, featured at the top of this article, is an important reminder for us all.First they came for the immigrants….
UPDATE: After I posted this, I saw that Erwin Chemerinsky (Dean of the UC Berkeley Law School) and Laurence H. Tribe (Emeritus University Professor of Constitutional Law at Harvard Law School) wrote an opinion piece in the New York Times on exactly this topic. Here is a gift link: We Should All Be Very, Very Afraid (NYT, April 9, 2025). Some highlights:
Of all the lawless acts by the Trump administration in its first two and a half months, none are more frightening than its dumping of human beings who have not had their day in court into an infamous maximum-security prison in El Salvador — and then contending that no federal court has the authority to right these brazen wrongs.
and
[The Trump administration] is using this case to establish a truly chilling proposition: that no one can stop the Trump administration from imprisoning any people it wants anywhere else in the world…. There would be nothing to stop the government from jailing its critics in another country and then claiming, as it is now, that the courts have no jurisdiction to remedy the situation.
and
If the government can disappear any people it wishes, dump them in a Salvadoran dungeon and prevent any court in this country from providing relief, we all should be very, very afraid.