A federal appeals court in Virginia reaffirmed on Thursday that the White House needed to play a more active role in seeking the release of a Maryland man who was deported last month to a prison in El Salvador, despite a court order expressly forbidding that he be sent there.
In a sternly worded ruling, a three-judge panel of the U.S. Court of Appeals for the Fourth Circuit expressed exasperation at the Trump administration’s continued recalcitrance in refusing to help free the man, Kilmar Armando Abrego Garcia.
“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,” Judge J. Harvie Wilkinson III wrote on behalf of the panel. “Further, it claims in essence that because it has rid itself of custody 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 panel’s decision came in response to a request by the Justice Department to pause an order issued last week by Judge Paula Xinis directing the administration to follow instructions from the Supreme Court to “facilitate” Mr. Abrego Garcia’s release from the prison in El Salvador.
At a hearing on Tuesday in front of Judge Xinis in Federal District Court in Maryland, Justice Department lawyers offered an exceedingly narrow definition of “facilitate,” suggesting that all the White House had to do to comply with the Supreme Court’s directives was let Mr. Abrego Garcia into the United States if he somehow managed to make it to the border.
But the appellate panel disagreed, saying that “‘facilitate’ is an active verb” and does not “allow the government to do essentially nothing.”
The panel also took issue with the White House’s repeated efforts to describe Mr. Abrego Garcia as a gang member and a terrorist, effectively dismissing the accusations as a sideshow irrelevant to the central issue in the case: that a man had been wrongfully deported to a foreign prison and the administration that made the error had essentially washed its hands of him.
“The government asserts that Abrego Garcia is a terrorist and a member of MS-13,” the panel wrote. “Perhaps, but perhaps not. Regardless, he is still entitled to due process.”
“Moreover,” the panel went on, “the government has conceded that Abrego Garcia was wrongly or ‘mistakenly’ deported. Why then should it not make what was wrong, right?”
As part of their ruling, the judges also declined to shut down an effort by Judge Xinis to investigate whether the administration had willfully defied orders by both her and the Supreme Court. The judge has instructed the government within the next two weeks to answer questions about what it has done so far to help Mr. Abrego Garcia get out of prison and what further steps it intends to take.
Judge Xinis’s inquiry, coupled with the threat of a similar inquiry by another judge in another deportation case, has raised concerns that the judicial and executive branches could be headed for a showdown.
But striking a wistful note, Judge Wilkinson seemed to cling to the idea that the White House might steer clear of open confrontation.
“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,” he wrote. “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.”
Alan Feuer covers extremism and political violence for The Times, focusing on the criminal cases involving the Jan. 6 attack on the Capitol and against former President Donald J. Trump.
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