While There Is Still Time
America is lurching into an extraordinary moral and political crisis.
You’ve probably heard of Kilmar Garcia by now.
You may think he’s a martyr. You may think he’s a monster.
But it doesn’t matter what you think of him. What matters is what the U.S. government is claiming: that it has the right to whisk someone off the streets and imprison him overseas without charging him with a crime.
The American Founders, you might recall, had something to say on this subject:
No person shall. . .be deprived of life, liberty, or property, without due process of law.
5th Amendment to the Constitution
In a sinful and fallen world, laws, due process, and trials are necessary to safeguard justice. After all:
The one who states his case first seems right, until the other comes and examines him.
(Proverbs 18:17)
So what happened with Kilmar Garcia? Why does it matter?
On March 12, Garcia was arrested in Maryland. Soon after, he was deported to El Salvador, where he was placed in a maximum security prison.
In a court document filed March 31, U.S. Immigration and Customs Enforcement (ICE) conceded that Garcia had been removed because of an “administrative error.”
Rather than make an effort to return him, government officials claimed that he was a member of the notorious MS-13 gang. Despite this accusation, he has never been charged with a crime. Although his wife, Jennifer Vasquez Sura, filed a protective order in 2021 alleging that Garcia abused her, she is now fiercely advocating for her husband’s return. An American citizen, Sura is now effectively a single mother to three children.
On April 7, the Supreme Court ordered the Trump administration to “facilitate Abrego Garcia’s release from custody in El Salvador and to ensure that his case is handled as it would have been had he not been improperly sent to El Salvador.” Not a single justice recorded a dissent.
On April 15, U.S. District Judge Paula Xinis said “nothing has been done” by the government to bring Garcia back to the United States.
The case is extremely emotionally charged, and the backstory makes it easy to see why. Garcia was born in El Salvador and illegally entered America around 2011. He later said he did so because he was fleeing a gang called Barrio 18. Due to the likely threat to his life, Garcia was granted what’s called a “withholding of removal” in 2019. Because of this, he was in America legally when he was arrested in March.
What we know of Garcia’s story is complicated. He may not be a morally upstanding man. It’s possible that he is, in fact, a gang member. But in America, a court of law determines whether a person is free or imprisoned. Not the whim of the government. Not the court of public opinion.
Though it’s changed over the centuries, our modern understanding of the law has Judeo-Christian roots. Today we hear expressions like “no one is above the law.” Or, conversely, that all are accountable “under the law.” This idea is ancient. Consider the laws that God gave to Israel through Moses. If they are upheld justly, a system of laws provides the same standards for all citizens. Consider what Deuteronomy 17:18-20 required of Israel’s kings:
When he takes the throne of the kingdom, he is to write for himself on a scroll a copy of this law. . .It is to be with him, and he is to read it all the days of his life so that he may learn to revere the Lord his God and follow carefully all the words of this law and these decrees and not consider himself better than his brothers and turn from the law to the right or the left.
Even Israel’s king was under the law. Especially Israel’s king was under the law. Contrast this with other ancient kings who simply decreed the law. Recall the story of Daniel in the lions’ den. Royal administrators in Babylon set a trap for Daniel by persuading King Darius to use this power:
“O King Darius, live forever! The royal administrators. . .have all agreed that the king should issue an edict and enforce the decree that anyone who prays to any god or man during the next thirty days, except to you, O king, shall be thrown into the lions’ den. . .So King Darius put the decree in writing.
(Daniel 6:6-7, 9)
A nation of laws offers consistent standards that make justice possible. In the sinful world we live in, the result will always fall short of our hopes. But it will still be far, far better than a nation where laws are created out of thin air.
Let’s return to America today. Kilmar Garcia is not the only person who has been arrested in the United States and imprisoned in El Salvador without charges. Over 200 Venezuelans were arrested and deported around the same time. Reportedly, many had no criminal record.
Some will be unbothered by this practice as long as it’s only illegal immigrants and other non-citizens who disappear. But what if an American citizen were accidentally swept up in a mass arrest? Without due process, that person may not have the chance to prove their citizenship. And as Garcia’s case shows, once someone is imprisoned overseas, the U.S. government may claim it can’t get them back. You don’t need to be a civil liberties lawyer to see the problem.
And what if the government simply decided it could do the same thing to U.S. citizens that it did to Garcia? For his part, President Trump says he’s open to putting U.S. citizens in foreign prisons. He says this would be for the most violent criminals. Such people need to be punished, but there are plenty of prisons in America for that. Again, consider where this could lead. The government has already sent people to a foreign prison based on accusations—but without criminal charges.
The potential for misuse of this tactic is extraordinary. Consider: have you ever disagreed strongly with your government, past or present? Can you imagine a future government, one you might not see eye-to-eye with, claiming this kind of authority? The slope is indeed slippery, and the possibilities that lie ahead are truly grim.
The most recent judge to rule on the Garcia case understands this. Still serving a federal appeals court at 80 years old, Chief Judge J. Harvie Wilkinson III was appointed by President Reagan. On April 17, rejecting the administration’s latest appeal, he wrote:
It is difficult in some cases to get to the very heart of the matter. But in this case, it is not hard at all. The government is asserting a right to stash away residents of this country in foreign prisons without the semblance of due process that is the foundation of our constitutional order. Further, it claims in essence that because it has rid itself of custody [meaning that Garcia is now in El Salvador] that there is nothing that can be done.
This should be shocking not only to judges, but to the intuitive sense of liberty that Americans far removed from courthouses still hold dear.
The government asserts that Abrego Garcia is a terrorist and a member of MS-13. Perhaps, but perhaps not. Regardless, he is still entitled to due process.
It’s a startling ruling, and one worth reading in full. Wilkinson acknowledges the conflict that the case has created between the Executive Branch (the presidential administration) and the Judicial Branch (the courts). He concludes:
It is, as we have noted, all too possible to see in this case an incipient crisis, but it may present an opportunity as well. We yet cling to the hope that it is not naïve to believe our good brethren in the Executive Branch perceive the rule of law as vital to the American ethos. This case presents their unique chance to vindicate that value and to summon the best that is within us while there is still time.
Lord, in your mercy, please summon the best that is within Americans.
While there is still time.
I especially appreciated this post, "While There is Still Time." I pray to the Lord to summon courage within me so I will take actions that work for justice for all in our country.
Thank you for the clear explanation.