President Donald Trump has a lot of big plans for the country and, as the song “New York, New York” goes, he wants to do it his way.

 However, when it comes to the case of Kilmar Armando Abrego Garcia – the El Salvadoran man that the Trump administration mistakenly sent to a notoriously brutal prison in that country – a federal court of appeals has put an end to Trump doing it his way, at least for now.

A lower court recently ordered Trump’s Department of Justice to take action to help bring Garcia back to America so he can receive the due legal process he has so far been denied.

The defendants listed on the Thursday, April 17 decision by the Fourth Circuit appellate court are Kristi Noem, Todd Lyons. Kenneth Genalo, Nikita Baker, Pamela Jo Bondi and Marco Rubio.

The three-judge panel, headed by a Ronald Reagan-appointed judge who’s known to be very conservative, refused to, as requested by the Trump administration, overturn a lower court order requiring the justice department and the Trump administration to help bring Garcia back.

The administration maintains that Garcia is a highly dangerous gang member, though advocates for his return point out that he has never been charged or convicted and, at the time he was taken by ICE agents and sent to the prison in El Salvador, there was a standing court order stating specifically that Garcia could not be deported to that country.

Donald Trump and other members of his administration argue that there is ample evidence Garcia is guilty of crimes and he should not have a right to due process.  They claim there is no need for judicial review, conviction, due process or any additional justification for sending Garcia to El Salvador to serve what appears to be a life sentence in prison.

Trump said earlier this week that he hopes to start deporting American citizens to prisons in El Salvador – if they are the worst of the worst and are repeat offenders – and he told the president of El Salvador that he would need to build five more similar prisons to hold these “homegrowns,” as Trump calls American citizens.

The three appellate judges, on the other hand, determined that, before people living in America could be sent to a prison in a foreign country, they should be allowed a chance to put up a defense in a court of law where they could make the case for their innocence.

It’s not clear why the administration is fighting so hard to keep Garcia imprisoned in the foreign country. The appellate court pointed out that the US Justice Department states it has a great deal of evidence that Garcia is a member of a violent gang, so it should be easy enough to bring him back, allow him due process, have the order against his deportation rescinded, and then deport him to another country.

Trump may not be doing himself any favors by refusing to cooperate with Garcia’s return.  The way the situation is being handled has turned a two-day news cycle story into a month-long one that’s still gaining steam and will not go away until Garcia is returned to America.  When US Senator Chuck Grassley conducted a series of town halls in Iowa, a state Trump won, crowd after crowd shouted for him to take action to help bring Garcia back to America.

 Also, every day, on the national news, Americans see Garcia’s tearful wife pleading for her husband’s return so he can be reunited with his family and help care for the couple’s two special needs kids.

One theory that has been put forward by some media pundits is that the Trump administration does not want Garcia to return because Garcia would then be able to give the media a detailed first-hand account of the brutal and inhumane conditions present in the prison.

In fact, legal scholars have argued that one major hurdle to Trump’s plan to imprison American citizens in these types of jail in another country is that every American has a constitutional right not to be subject to cruel and unusual punishment.

“Upon review of the government’s motion, the court denies the motion for an emergency stay pending appeal and for a writ of mandamus,” the decision by the appellate court states. “The relief the government is requesting is both extraordinary and premature. While we fully respect the Executive’s robust assertion of its Article II powers, we shall not micromanage the efforts of a fine district judge attempting to implement the Supreme Court’s recent decision.”

The decision adds: “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 that there is nothing that can be done.”

Trump and other administration officials have said they have no way to get Garcia back since El Salvador is a sovereign nation.

“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 decision adds. “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. If the government is confident of its position, it should be assured that position will prevail in proceedings to terminate the withholding of removal order.”

The appellate decision also points out that the US government has acknowledged that Garcia was wrongly and mistakenly deported, and the court asked why, even simply on moral grounds, the government should not try to right that wrong.

The court also provided guidance on the word “facilitate” since the US Supreme Court, in a unanimous decision, ordered the Trump administration to facilitate the return of Garcia.

“The Supreme Court’s decision remains, as always, our guidepost,” the appellate court decision notes.

“The Supreme Court’s decision does not… allow the government to do essentially nothing. It requires the government “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.  ‘Facilitate’ is an active verb. It requires that steps be taken as the Supreme Court has made perfectly clear….‘Facilitation’ does not permit the admittedly erroneous deportation of an individual to the one country’s prisons that the withholding order forbids and, further, to do so in disregard of a court order that the government not so subtly spurns.”

 Letting the current situation stand, the court found, would “reduce the rule of law to lawlessness and tarnish the very values for which Americans of diverse views and persuasions have always stood.”

Especially with Trump hoping to send American citizens to foreign prisons from which they can never be retrieved, the panel of judges determined that the stakes are even higher: “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.”

The order points out that, currently, both the United States and the El Salvadoran governments say they have neither the authority nor the responsibility to return Garcia.

“The respect that courts must accord the Executive must be reciprocated by the Executive’s respect for the courts,” it reads. “Too often today this has not been the case, as calls for impeachment of judges for decisions the Executive disfavors and exhortations to disregard court orders sadly illustrate.”

The decision also states that Trump’s attempt to circumvent and undermine the courts and US law does not do either branch of government any favors.

 “The Executive will lose much from a public perception of its lawlessness and all of its attendant contagions,” it reads. “The Executive may succeed for a time in weakening the courts, but over time history will script the tragic gap between what was and all that might have been, and law in time will sign its epitaph.”

The decision 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….In sum, and for the reasons foregoing, we deny the motion for the stay pending appeal and the writ of mandamus in this case. It is so ordered.”

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