The Trump administration has replaced the midwit
progressive Wokesters with midwit conservative Wokesters
I was an outspoken critic of the
Biden administration’s intentionally anarchic,
open border policy and supported President Trump’s decision to
deport illegal criminal
migrants.
However, as a result of the Trump administration’s sloppy
strategic legalist reading of the two-hundred-twenty-seven-year-old
Alien Enemies Act to justify their decision to fly 238 unidentified
“bad people” to El Salvador’s modern day Devil’s Island (CECOT), I
rescind my support until these operations are conducted in a manner
that is consistent with the U.S. Constitution. The 5th Amendment
protects even immigrants from “Deprivation of liberty without due
process of law.”
It does not include a “Trust me bro, they’re really bad people”
clause.
We have heard a lot in recent years about “lawfare,” the use of
law “to achieve an operational objective.” We have heard much less
about “strategic legalism,” the use of laws, legal arguments, or
legal tools to advance larger policy objectives, irrespective
of—and often at the expense of—facts and law.
“Lawfare” is rightly understood as the favored legal tactic of
subalterns—the use of the law by the weak to force the strong to
observe universal standards in their exercise of power. “Strategic
legalism” has deeper, less celebrated, and even more consequential
roots in American history. U.S. leaders used strategic legalism
to release Nazis convicted at Nuremberg, free Mai Lai
Massacre convict William Calley, prop up the genocidal Khmer Rouge
regime in exile, evade the International Court of Justice for
mining Nicaragua’s harbors, justify inaction during the Rwandan
genocide, and kidnap and torture suspected terrorists.
After less than two months in office, has President Trump
morphed from Orange Caesar into Orange Caligula? Today his
administration relies less on “strategic legalism” and more on the
well-worn legal strategy of criminal defense attorneys with guilty
clients: When the law is against you, argue the facts, when facts
are against you, argue the law, when both are against you, attack
the other side.
On March 15, Chief U.S. District Judge James Boasberg ordered
the Trump administration to stop the deportation of the supposed
Venezuelan gang members to El Salvador. Not only did the White
House ignore the order, President Trump attacked the judge in an
ALL CAPS Truth Social screed: “This Radical Left Lunatic of a
Judge, a troublemaker and agitator who was sadly appointed by
Barack Hussein Obama, was not elected President – He didn’t WIN the
popular VOTE (by a lot!), he didn’t WIN ALL SEVEN SWING STATES, he
didn’t WIN 2,750 to 525 Counties, HE DIDN’T WIN ANYTHING!”
More importantly, President Trump threatened to impeach the
judge who dared rule against him: “This judge, like many of the
Crooked Judges’ I am forced to appear before, should be
IMPEACHED!!! WE DON’T WANT VICIOUS, VIOLENT, AND DEMENTED
CRIMINALS, MANY OF THEM DERANGED MURDERERS, IN OUR COUNTRY. MAKE
AMERICA GREAT AGAIN!!!”
Most Americans do not want criminal illegal migrants in our
country, but Trump doth protest too much. After all, Boasberg is
the judge who released the Hillary Clinton emails. Although
President Obama appointed him to the U.S. district court for the
District of Columbia, President GW Bush first appointed Boasberg to
Superior Court for the District of Columbia, and Supreme Court
Justice John Roberts appointed him to the Foreign Intelligence
Surveillance Court. He is hardly comparable to Judge Arthur
Engoron, the magistrate who presided over New York Attorney General
Letitia James’s farcically flawed civil fraud case.
Trump’s threatening rant prompted a rare rebuke and warning from
conservative Supreme Court Chief Justice John Roberts who wrote,
“For more than two centuries, it has been established that
impeachment is not an appropriate response to disagreement
concerning a judicial decision. The normal appellate review process
exists for that purpose.”
Unphased by the Supreme Court justice’s slap down, Fox News host
now starring as Attorney General, Pam Bondi chastised Judge
Boasberg for daring to question Orange Caligula. She accused him of
“meddling in our government” and attempted to reframe the question
at issue. “Why,” she asked from her Fox News bully pulpit, “is the
judge trying to protect terrorists who invaded our country over
American citizens?”
Finally, Bondi resorted to an ad hominem attack:“Today, a DC
trial judge supported Tren de Aragua terrorists over the safety of
Americans. TdA is represented by the ACLU.”
Although Tren de Aragua is a dangerous gang whose members should
be deported, they are a strawman, not even a JV version of the
Mexican cartels who until recently operated with impunity on our
southern border. Wouldn’t the Trump administration’s charge of
“perpetrating, attempting, and threatening an invasion or predatory
incursion against the territory of the United States” apply more
accurately to the Cartels and China? Even though their asymmetric
Opiate War kills more Americans each year than the Vietnam War, the
Korean War, and the War on Terror combined, for decades, our
leaders have turned a blind eye to it in the name of profit.
After the 1994 NAFTA agreement opened the southern border, the
U.S. government, businesses, and financial institutions trumpeted
“globalism” as the flattener of worlds and leveler of playing
fields. As a result, they explained, anti-trust laws, banking
regulations, unions, workers safety laws, environmental protection
were now outdated and unnecessary hindrances to “the free
market.”
Of course, the politicians they owned and their mandarins in the
press agreed because multinational corporations needed cheap,
exploitable labor to keep their production costs down. Under the
messianic battle cry of “globalization,” millions of Latin
Americans took their chances and traveled north. Worse, the U.S.
government, businesses, and banks turned a blind eye to our most
immediate national security threat—the Mexican Cartels.
In the old days, Mexican Dons paid their bills in cash,
face-to-face. After NAFTA, the old Dons lost control. Under the new
cartel system, politicians and police had only one choice—plata o
plomo (silver or lead)—money or death. Unlike our government and
many multi-national corporations, the cartels had liquidity,
balanced books, production, distribution, transportation,
protection, and insolvent American and international banks to
launder their money. How can you hide the daily workings of
multinational corporations that ships five tons of cocaine at a
time into a nation whose military can read a wrist watch from outer
space? You can’t. But as long as the rich got their cocaine,
Cialis, Concerta, and Codones and the poor got their Crack, Smack,
and Crystal, nobody seemed to mind, much less notice
the greatest consolidation of wealth
in human history.
The collateral damage of this laissez faire anarchy was not
limited to just the American working class. After the U.S. began
deporting immigrants convicted of felonies in the 1990s, hardened
criminals with American gang affiliations returned to countries
they no longer knew and established satellite branches of these
gangs. By 2015, El Salvador had an estimated 55,000 gang members,
400,000 collaborators, and the highest murder rate in the
world.
In 2022, El Salvador’s Supreme Court declared the two main
gangs, MS-13 and Barrio 18, “terrorist organizations.” Police
arrested 55,000 gang members in seven months. Next, President Nayib
Bukele announced the construction of the Terrorism Confinement
Center, the Devil’s Panopticon, better known as CECOT. El Salvador
has realized the model of punitive incarceration that Michel
Foucault described in Discipline and Punishment. CECOT’s 14,000
inmates are not allowed personal items, visitors, or phone calls
and spend only 30 minutes a day outside of their cells. The rest of
the time they live in crowded cells, under the
twenty-four-hour-a-day glare of neon lights and unblinking gaze of
CCV cameras.
On March 22, after President Trump threatened to sentence the
American “domestic terrorists” who are damaging Teslas, to
twenty-year prison sentences, he added, “Perhaps they should serve
them in the prisons of El Salvador, which have become so recently
famous for such lovely conditions.”
Over the weekend, after Department of Homeland Security head Tom
Homan mocked an ABC reporter for raising a question about the due
process protections that are part of U.S. immigration law, I
reached out to the lawyer and scholar whose legal knowledge and
intellect I respect most. I asked William A. Preston for his
opinion on the implications of the illegal migrants’ denial of due
process.
He responded with the following five aphoristic text messages:
“The absence of due process for people deported by the Republican
administration to this supermax slave-labor prison means no one
knows for sure what their [these prisoners’] status is—they could
be U.S. citizens for all we (and the court before whom this is
being litigated by the ACLU) know—or why they really are being
deported and whether any of this could even properly be upheld as
lawful.”
“These are 5th Amendment basics: Deprivation of liberty without
due process of law.”
“If no due process exists, nothing stops the Republican
administration from deporting U.S. citizens who criticize Israel or
would oppose a U.S. war with Iran to this supermax slave-labor
prison in El Salvador.”
“The excuses put forward in court by DoJ [Department of Justice]
would justify this.”
“The 5th Amendment says no person shall be deprived of due
process. It doesn’t only apply to citizens or green card
holders.
DoJ’s response is, ‘Trust me bro, they’re illegal.’”
In other words, Tren de Aragua today and perhaps garden-variety
cranks and critics like me tomorrow. Unlike the Neocon apostates
and fallen Neoliberals who rolled like jailhouse snitches when it
mattered (9/11, torture, Iraq invasion, tech censorship, COVID, BLM
riots, illegal immigration, fealty to China, Mexico and China’s
Opiate War, criminal catch and release programs, men playing
women’s sports, Israel’s war crimes, the doomed Ukrainians, etc.)
during both Republican and Democratic administrations, I have
spoken out about what I believe is wrong and never made an
ideological 180.
For writing critically about Bush’s Global War on Terror, I was
called “naïve” and placed on a “watch list.” When I criticized
Hillary Clinton, Susan Rice and Samantha Power for expanding Bush’s
War on Terror, I was called “sexist” and a “nascent MAGA
supporter.” For questioning BLM’s shadowy leadership and dubious
funding, you guessed it, “racist.” For questioning the discredited
Steele Dossier, Russiagate, and the political objectives of the
Ukraine War, I was labelled a “Putinista,” then hacked and
deplatformed.
Last year, when I pointed out the obvious—President Biden would
not make it to election day and Kamala was unelectable—I was called
a Trump supporter again. The only problem with these indictments of
me was that not one of them was true.
The Trump administration has replaced the midwit progressive
Wokesters with midwit conservative Wokesters. They are opposite
sides of the same idiotic binary coin that has crippled America.
The Trump administration’s amateur hour, Signal pratfall has left
me with as little faith in Trump, Vance, Rubio, Hegseth, Bondi,
Homan, and Miller as I have in Obama, Clinton, Panetta, Holder,
Power, Biden, Blinken, Austin, Garland, Mayorkas, Sunstein, Cheney,
Powell, Rumsfeld, Ashcroft, and Chertoff.
I had fun for about a week watching Trump’s Crony Capitalist
Cadres rout the Corporate Cultural Revolutionaries. In such a short
time, the emotional blackmail strategies that worked so well during
the Biden administration were fully revealed to be blank
ammunition. The shrill cries of “fascist,” “racist,” “transphobe,”
“Nazi,” “oligarch,” and “white supremacist,” now fall on deaf ears.
Their overuse has turned these words into stale, meaningless
clichés. However, after the initial wave of schadenfreude passed, I
wondered where this leaves America as a nation.
Will we ever be able to transcend the dead end “better than
Biden/better than Trump” binary?
Orange Caligula’s theatrical bluster cannot hide the reality
that not since the 1860s has America been more divided or looked
weaker on the international stage. Under Bush, Obama, Trump, and
Biden, the U.S. military lost wars in Iraq and Afghanistan, and
proxy wars in Libya, Syria, Yemen and, most recently, Ukraine. More
importantly, at least to the Trump administration, Israel, the tiny
nation that we have built our foreign policy around for the past
quarter century, has never been more despised, isolated, and
insecure. As President Volodymyr Zelensky can attest, with friends
like Trump, you don’t need enemies.
“We are falling into the trap of imitating the ‘evildoing’ which
we accuse our enemies of initiating,” wrote Rich Arant who was a
contract interrogator who worked at Abu Ghraib and Afghanistan’s
Bagram Air Force base in 2003–4. He had a revelation one night
after questioning a former Afghan Mujahid who had fought against
the Soviets and was now in jail because a paid U.S. government
informant and well-known Soviet collaborator had fingered him. The
man broke down in tears and after he composed himself, he said, “I
fought Russians, our common enemy, and now you Americans have
imprisoned me on the word of a son of the Russians. This is my
reward.”
Arant quit shortly thereafter and offered this observation:
“‘Precautionary murder’ is the term once used by T. E. Lawrence,
Lawrence of Arabia. Former conventions regarding the treatment of
prisoners are now considered quaint, obsolete. But a prisoner is as
defenseless as a passenger held hostage on an aircraft. There is
little honor found in exploiting his fears, no matter how pressing
the requirement.” Former Navy General Counsel Alberto Mora, one of
the few brave enough to push back against the Bush administration,
put it best, “When you put together the pieces, it’s all so sad. To
preserve flexibility, they were willing to throw away our
values.”
The Trump administration would be wise to consider the words of
American Nuremberg prosecutor Robert Jackson’s now famous opening
address at those trials: “We must never forget that the record on
which we judge these defendants today is the record on which
history will judge us tomorrow. To pass these defendants the poison
chalice is to put it to our own lips as well.”
Like the Bush administration’s decision to deem War on Terror
prisoners “illegal enemy combatants,” then torture and warehouse
them in offshore dungeons, the Trump administration’s performative
deportations are already blowing back, and costing political
capital. Deport all the illegal criminal migrants you want, but
respect the Constitution.
Justice Roberts put it best: “Every Administration suffers
defeats in the court system — sometimes in cases with major
ramifications for executive or legislative power or other
consequential topics…. Within the past few years, however, elected
officials from across the political spectrum have raised the
specter of open disregard for federal court rulings. These
dangerous suggestions, however sporadic, must be soundly
rejected.”
Now, it is up to America’s other two branches of government to
rein in Orange Caligua.
If they can’t, our democratic experiment and our “shining hill
on the city” and “American exceptionalism” conceits will be exposed
as just that.
More overpriced, “6th generation” fighter planes can’t save us
and the United States will be the latest overstretched empire to
fall.
(Editor’s note: Peter Maguire is a surfer, war crimes
investigator and author ofThai Stick: Surfers,
Scammers, and the Untold Story of the Marijuana
Trade (movie rights optioned by Kelly Slater), Law and
War, Facing Death in Cambodia, Breathe,
the bio on jiujitsu icon Rickson Gracie and its follow up
Comfort in Darkness.
Ain’t much ol Petey can’t do. This story first appeared on Pete’s
substack Sour Milk, subscribe, it’s free
etc.)
