Welcome to this week’s Weekly Constitutional, where a judgment or other formal document is used as a basis of a discussion about law and policy. This week’s document is the witness statement of Robert L Cerna of United States Immigration and Customs Enforcement (ICE), which has been filed in the current federal case dealing with deportations of Venezuelans from the US to El Salvador.
Franz Kafka, himself legally qualified, would have appreciated one paragraph in a witness statement made on behalf of the US federal government during the ongoing case on the legality of forced deportations under the Alien Enemies Act of 1798.
The deportations concern Venezuelans allegedly associated with the Tren de Aragua (TdA) criminal gang. And in paragraph nine of this statement, Robert L Cerna—the acting field office director of enforcement and removal operations within ICE—states:
While it is true that many of the TdA members removed under the [Alien Enemies Act] do not have criminal records in the United States, that is because they have only been in the United States for a short period of time. The lack of a criminal record does not indicate they pose a limited threat. In fact, based upon their association with TdA, the lack of specific information about each individual actually highlights the risk they pose. It demonstrates that they are terrorists with regard to whom we lack a complete profile.
It is an extraordinary statement, which warrants careful reading and rereading. In essence, Cerna is contending that a person would be removed if there is information against them, and if there is no information against them, that is just as bad, and that person would still be removed.
A close look at the paragraph shows the chord progression of evidential standards from “not indicate” to “highlights” to “demonstrates” in the final sentence. By the end of the paragraph, Cerna finds himself saying that absence of evidence “demonstrates” that a person is a terrorist.
This, of course, is the logic associated with the ducking stool of early modern times. For all of President Donald Trump’s claims to have faced “witch hunts”, we now have his own department employing the legal and evidential devices that one would associate with the witch-finder general Matthew Hopkins. Indeed, Hopkins may himself have blanched at going this far.
It means that the individuals detained—effectively kidnapped—and sent under a commercial deal between Trump’s government and the government of El Salvador for imprisonment in a harsh, industrial-scale “mega prison” may not have any evidence against them and that, if so, that lack of evidence rendered them just as culpable.
Even if the Alien Enemies Act applied (which is disputed, given the United States has not, well, declared war) there would still be a need for each individual case to be determined on its merits. But it is impossible that a case can be determined on its merits if both evidence and lack of evidence point to the same outcome. Due process is not only absent but conceptually impossible.
And the overall transaction—the forcible taking of individuals from one country and sending them under an agreement with a third country to perform forced labour—is indistinguishable in its essence from slavery. That the flow of cash is from the provider of the individuals to the recipients, rather than the other way round, is an incidental detail in this ghastly arrangement.
Whatever the outcome of the case before the federal court in the District of Columbia, it is unlikely that those who have already been sent can be returned. What has now been done may not easily be undone. And those without any actual information against them are now stuck in a prison in El Salvador without any evidence of wrongdoing.
This, of course, cannot be right: but it necessarily follows from the plain and ordinary meaning of paragraph nine of Cerna’s witness statement. Proof does not matter; evidence does not matter; the relevant human beings do not matter.
Those of us in what we like to call modern times like to think we are now far away from such horrors from history as witchcraft and slavery. But elements of witch-hunts and slave trading are never really far away. Exceptions to due process can often been found by the powerful. Attacks on human dignity and human rights can easily get claps and cheers if framed in the right way.
That this is the case is set out, in black and white, in the formal prose of a legal document of the United States only this week. In essence: you can be deported if we have got the evidence, and you can also be deported if we do not have any evidence.
