Descriptive Terms Have Power in Human-Rights Narratives 

Not for the first time, in watching developments in my native U.S., I am struck by similarities between governmental actions after the 9/11 attacks and actions by the current U.S. Government. I wrote a blog post, back in 2015, talking about the importance of precision in language used to describe people being wrongfully detained as “suspected terrorists” or “convicted war criminals” when neither term was accurate. That post specifically related to the Omar Khadr case, which I criticized on various other levels as well. See eg here, here, and here. 

The same admonition applies here. Descriptive language, even when used in an otherwise neutral sense, can create a false narrative in itself. Particularly when discussing human-rights violations, it is important not to, even inadvertently, feed into false narratives being advanced by governments committing those violations. That applies to legal and public discourse.  

The other thing I wrote about back then was the layering of half-truths in political, and, too often, legal narratives. After 9/11, the U.S. Government borrowed terms, sometimes slightly altered, from various areas of the law, and then incorrectly layered that borrowing in a way that created confusion over the legality of what it was doing. Once layered, those half-truths become much more difficult to untangle, leading to a temptation to refute one part, while leaving other parts undisturbed. Breaking down the narratives, and reconfiguring them in their correct form, is important for accuracy as to what is happening. That admonition applies to current events as well. See my book for an in-depth discussion of these ideas. 

This issue has been particularly obvious in relation to the 238 Venezuelan nationals (“the men”) sent to the notorious Terrorism Confinement Center, the Centro de Confinamiento del Terrorismo (“CECOT”) in El Salvador. I wrote about their plight here and here. It is also obvious in other high-profile cases, such as that of Kilmar Abrego Garcia, the man who was “accidentally” sent to CECOT, in spite of a court order barring the U.S. Government from sending him to El Salvador. 

In various publications and posts, there have been references to the men as having been “deported,” and other references saying that “most” of the men are “innocent” and/or have no criminal record. There is much discussion of the need for due process, including by the Supreme Court of the United States (“SCOTUS”), which is obviously correct. But when these concepts are combined, they create a problematic narrative that mixes immigration-law concepts with criminal-law concepts and ultimately leads to a “remedy” that cannot be supported under either legal regime. The Government has created this confusion, perhaps intentionally. 

Deportation of a non-citizen might be appropriate in a case in which someone is found to have had a previously undisclosed criminal record, for example, but deportation would involve removal from the country, typically to the person’s country of origin. Due process is, indeed, required in both immigration deportation cases and in criminal proceedings, although what that means is different between the two. The Supreme Court of the United States just reiterated this in relation to the men in JGG v Trump.  

In neither instance, however, is the proper remedy to send a person to a third country for imprisonment, and additional issues arise from the knowledge that prisoners in CECOT have been egregiously mistreated. By incorrectly mingling concepts from immigration and criminal law, the U.S. Government has created an impression of legitimacy to its actions that cannot exist under any circumstances. 

This mingling of language has, understandably, happened even in strong commentary that has been rightly critical of the U.S. Government’s actions. This post argues for the use of different terminology in these cases.

The Men Were Not Deported 

Deportation is an immigration tool, under which a person is found, after a form of due process, to be inadmissible to the country and is thus expelled, most commonly to the person’s country of origin. Illegal presence in the U.S. is generally considered to be a civil, not a criminal, matter, and deportations typically result in the person simply being released in their country of origin after removal. The intention is removal, not imprisonment. There is some ongoing dispute as to this distinction, which is acknowledged here, but that ultimate difference generally remains.  

The 238 men were rounded up by the U.S. Government and provided with no due process at all. Instead, they were put on a plane and taken out of the country, not to their native Venezuela, but to the notorious CECOT prison in a third country, El Salvador. There, if President Bukele (“Bukele”) of El Salvador is to be believed, the U.S. Government paid El Salvador to imprison the men, apparently indefinitely, and El Salvador intends to use the men as slave labour. All of this was done under the questionable claim by the U.S. Government that it was justified in its actions because it invoked the Enemy Aliens Act of 1798. I discussed some of the problems with invocation of this Act in a prior post. 

That is not a deportation. 

The lack of any process obviously took this situation out of the realm of a deportation, as did the remedy of indefinite imprisonment in a third country. President Nicolas Maduro, of Venezuela, called what happened to these men a kidnapping and demanded that El Salvador release them to Venezuela. Using fraught language himself, he told supporters, referring to the 238 men, “[t]hey were not brought to trial, they were not given the right to a defense, the right to due process, they were deceived, handcuffed, put on a plane, kidnapped, and sent to a concentration camp in El Salvador …” 

What happened to these men resembles what the U.S. Government euphemistically called “extraordinary rendition” after 9/11, where people were grabbed by the U.S. Government and sent to third countries for the purpose of being tortured. See my book for a detailed critique of the system of “extraordinary rendition.” The U.S. Government used this euphemism to suggest that what they did was legally sound, when it was not. Because the euphemism has, itself, gained some degree of notoriety, that impression from its use has perhaps changed. 

The 238 Venezuelan men may have been rendered to El Salvador, or kidnapped, or simply “disappeared,” although their locations are known. It is, however, misleading to say that they were deported. 

One concerning twist from this imprecise use of language is the increasing suggestion by the U.S. Government that it can also “deport” citizens. Deportation is an immigration proceeding, which, by definition, applies to noncitizens. Imprecise use of language gives the false impression that this is a remedy available to also use against U.S. citizens. Extradition in a criminal matter might be applied to a citizen, but deportation in an immigration proceeding cannot be. For some discussion of related issues regarding the rights of U.S. citizens on detention in the so-called “War on Terror,” see the SCOTUS opinion in the Hamdi case.  

It is problematic to describe these cases as people having been deported, as that changes the understanding of what a deportation means. The Fourth Circuit alluded to this problem in saying: 
 

“If today the Executive claims the right to deport without due process and in disregard of court orders, what assurance will there be tomorrow that it will not deport American citizens and then disclaim responsibility to bring them home?∗ And what assurance shall there be that the Executive will not train its broad discretionary powers upon its political enemies? The threat, even if not the actuality, would always be present, and the Executive’s obligation to ‘take Care that the Laws be faithfully executed’ would lose its meaning. (citations omitted)” 

  

U.S. Government narratives about these men have a false aura of criminality attached to try to legitimize human-rights abuses. Although the invocation of the Enemy Aliens Act of 1798 implies criminality, and is problematic in itself as discussed elsewhere, these men were all in U.S. custody. The U.S. did not, however, charge any of them with any criminal activity. Similarly, not one of these men has been transferred to another country under anything resembling a valid extradition process for trial there. Had the U.S. Government had such evidence, it no doubt would have happily charged the men or sought to extradite them for criminal proceeding elsewhere, as that would advance its proffered and flimsy narrative. 

Although this post is, in some ways, mingling together the issues regarding the 238 men and those of Kilmar Abrego Garcia, there are some obvious procedural differences in Abrego Garcia’s case. The similarities, however, are relevant to this post, especially since much more information is available on Abrego Garcia. 

The U.S. Government has gone to great lengths, in light of heated court battles in Abrego Garcia’s case, to paint him as a “terrorist,” a member of the MS-13 gang, and as a domestic abuser. This week, the Government also made an unsubstantiated but “bombshell” claim that he is a human trafficker. Abrego Garcia is a busy man, indeed, to listen to the Government’s version of things, but, again, none of this has been proven in court (the domestic violence allegation is discussed below). It is obvious that this barrage of accusations is a narrative tool designed to counteract the “sympathetic narrative,” described in a Homeland Security post on X. It is also notable that the litany of offenses the Government has ascribed to Abrego Garcia does not include membership in Tren de Aragua, which was the basis for the U.S. Government’s invocation of the Enemy Aliens Act of 1798 and supposedly the justification for these removals to prison in El Salvador. 

In its ruling this week, the 4th Circuit said of some of these allegations, 

 

  

Although the Court was referring to a particular order relating to deportation, the logic holds in relation to criminal matters as well. If the U.S. Government has evidence that Abrego Garcia is a “terrorist” or actively participating in an illegal organization or in human trafficking, then why not charge him with these crimes while he was in their custody, or, alternatively, work via extradition to have him charged in another venue if that is appropriate? Instead, the U.S. “accidentally” just sent him directly to prison in El Salvador. 

Attempted conviction by insinuation, of course, is not new either, and that was the underpinning of so many of the post-9/11 abuses. Those held at Guantanamo Bay, for instance, continue to be painted with the brush of terrorism, without ever having been criminally charged, much less convicted. Some were brought before fabricated and highly problematic “Military Commissions,” which are not, of course, a venue for criminal proceedings under the U.S. Constitution. See my book for a much more detailed discussion of problems with the Military Commissions. 

A foundational principle of the U.S. Constitution is that one is not rendered a criminal via mere accusation. When a government paints somebody with an aura of criminality, but fails to pursue any form of criminal charge, that assertion is unproven and thus invalid. All of the men sent to El Salvador, therefore, are “innocent,” until the Government proves, not just insinuates, otherwise. If the Government lacks the proof to succeed in a criminal case, it should say so in these widely publicized comments. It could still seek to prove the matter on the lower level of proof required in a deportation proceeding, but it did not do that either. 

Some of the public commentary about “some” of the men being innocent no doubt arose after media reports into whether the 238 men had criminal records. These reports provided an important refutation to many of the narratives of criminality from the government, so they are not criticized here. 

Much of that commentary, however understandably, misses a major point. People are not imprisoned in the present for criminal records or criminal backgrounds that were resolved in a past proceeding. Referring back to the case of Abrego Garcia, the U.S. Government makes much of a domestic-violence order of protection that was later dismissed. His wife, who sought the order, says now that the couple went to counseling and that they have addressed the issue. While such an allegation is serious indeed, it does not support the Government’s actions here. Noncitizens may be deported for a criminal record or criminal background in some circumstances, but, again, deportation is simply removal from the country, as the person has been deemed inadmissible based on that background. To imprison Abrego Garcia indefinitely on the basis of a past allegation that was resolved elsewhere is not supported in law. Even refuting that Governmental narrative is confusing, as well, since the Government had previously admitted to sending Abrego Garcia to El Salvador by mistake, causing the 4th Circuit to ask why it would not seek to remedy an admitted mistake. 

It was after this allegedly erroneous sending of Abrego Garcia to El Salvador that the U.S. Government began painting a picture of him as a criminal. That is, at best, a rather odd sequence of events. The peculiar nature of this sequence became apparent when U.S. President Donald Trump (“Trump”) was asked about efforts to return Abrego Garcia. Much attention has rightly been placed on his saying he is not involved in the case. But another part of his comment illustrates the layers of underlying problems here, where he said “I’ve heard many things about him, and we’ll have to find out what the truth is.” 

How does one “find out what the truth is?” 

Due process. That is how. That is the whole point. 

There is No Form of Due Process That Allows the U.S. Government to Ship People Overseas for Mistreatment 

There is no form of due process or criminal conviction/background that would grant the U.S. Government permission to ship people overseas for indefinite detention, forced labour, and aggressive mistreatment. Although the U.S. Government might have tried to argue that it was contracting its prison functions to El Salvador, its assertion that it lacked any jurisdiction to order Abrego Garcia returned from another country undermined any such potential, albeit always unpersuasive, claim. If El Salvador President Nayib Bukele (“Bukele”) is to be believed, the U.S. Government paid El Salvador to imprison the men, as well as Abrego Garcia, and Bukele has stated his intention to use them as forced labour. See my prior post for a more detailed discussion of his claims. 

The U.S. Government may detain people in some circumstances pending an immigration disposition. Nothing in the facts of these cases suggests that that was the intention here, as no deportation proceedings appear to have been contemplated, so I will not elaborate on those parameters. Even under those circumstances, shipping people to a different national jurisdiction for obvious and indefinite mistreatment is never a permissible remedy. While the discussion of due process in these cases is certainly very important, it cannot be lost that there is no degree of due process that would allow the specific fate that befell these men. 

The Painting of Different Pictures Continues 

The point of this post is that language matters. The narrative created by the use of certain language has an impact on the political realm. The response to a political narrative can have a direct impact on how the legal realm responds. Precision in language is therefore important. There is a difference between the picture of deportation due to criminality painted by the U.S. Government in these cases and that of innocent people being kidnapped and rendered to El Salvador for torture. It is also possible that the truth is not captured by either narrative. Precise language can help to untangle these contradictory narratives. 

Moreover, the presumption, absent due process, must be one of innocence for all of the men. If the Government does nothing to pursue a process to prove its claims via proper due process, then those claims are nothing but legally meaningless smears. Conviction via insinuation is not a legally available remedy, and even for deportation, proof is required. 

Due process was thus required before any remedy could be imposed, but that remedy can never be to render people to a third country for indefinite detention, forced labour, and torture. Using common or legitimizing legal language obscures the appalling nature of this sequence of events. As the Fourth Circuit said in relation to Abrego Garcia: 

  

  

One last narrative note. The narrative in the political and legal commentary must take note of the fact that there is reason to believe the U.S. Government is not acting in good faith. That may well affect the appropriate response.  

The Abrego Garcia case provides a disturbing example of a lack of good faith. After Maryland Senator Chris Van Hollen travelled to El Salvador to try to see Abrego Garcia, he was initially denied access to him. He ultimately was allowed to speak with him in a restaurant with Abrego Garcia wearing street clothes. Much can and will be said about the optics of that meeting and about what Bukele had to say about it, as the scene appears to have been staged by El Salvador. 

The focus here is on the U.S. Government response. When the meeting was reported by the New York Times, the official “The White House” site posted on X, correcting the language of their headline. By the time of that meeting, there was a Supreme Court order that the U.S. Government “facilitate” his release, as well as orders by the federal court and the Fourth Circuit, some of which is posted above. 

U.S. Attorney General Pam Bondi has stated, in spite of what the courts have said, that Abrego Garcia is never returning to the U.S. And this is what The White House posted, taken in a screenshot from The White House’s X account (caption from the original): 

Abrego Garcia’s fate remains uncertain, as do those of the 238 men in the prison in El Salvador. Reports suggest that the U.S. is planning to send more people there, and, as of the writing of this post, an emergency motion for a temporary restraining order had been filed on behalf of other men reportedly being prepared to be sent to El Salvador, as early as the evening of April 18th. At approximately 1:00 am on Saturday, April 19th, SCOTUS issued a brief order (with two Justices dissenting) halting removals until further order of the Court. Overnight the same day, the Fifth Circuit denied the motion before it. 

This situation is rapidly developing, and that is no doubt intentional. The Government is obviously acting quickly in an apparent attempt to get ahead of court orders. As this all continues to develop, it is important that critiques of these actions do not, even inadvertently, use language that bolsters false governmental narratives.