Trump DOJ: Our Own Suggested Remedy For Illegally Renditioning Men To South Sudan Is Now Too Burdensome

The Trump administration has managed to achieve a remarkable legal double standard: ask a court for a specific remedy to address your own violations of an injunction, get exactly what you asked for, then ask for a do-over, and when you don’t get it, immediately run to the Supreme Court claiming that remedy is an unconscionable burden on executive power.

That’s precisely what’s happening with DHS’s emergency petition to the Supreme Court over a group of men the government tried to ship to South Sudan without due process.

Last Friday, we covered how the US government attempted to rendition a group of people to South Sudan — a country the State Department warns Americans not to visit due to safety concerns. As we noted, district court Judge Brian Murphy had called out that putting these folks on a plane without due process had defied earlier orders in the case, and after the government requested it (this becomes important in a moment), the court ordered the US to hold the men in Djibouti, and offer them basic due process in the form of “reasonable fear” interviews, including with their lawyers present.

Late on Friday, the government got snippy in response and asked Judge Murphy to reconsider the issue, claiming that it was apparently a pain in the ass to hold these men in Djibouti.

Defendants request that this Court reconsider its order finding that Defendants violated the preliminary injunction and its extraordinary follow-on orders imposing on Defendants additional and highly burdensome requirements…. Because of this Court’s Orders, Defendants are currently detaining dangerous criminals in a sensitive location without clear knowledge of when, how, or where this Court will tolerate their release…. This development has put impermissible, burdensome constraints on the President’s ability to carry out his Article II powers, including his powers to command the military, manage relations with foreign nations, and execute our nation’s immigration authorities.

As Judge Murphy pointed out in response on Monday, the US government made this very mess by ignoring his earlier injunction and putting these men on a plane, and the irony of complaining about the trouble they themselves created is not lost on him:

Defendants have mischaracterized this Court’s order, while at the same time manufacturing the very chaos they decry. By racing to get six class members onto a plane to unstable South Sudan, clearly in breach of the law and this Court’s order, Defendants gave this Court no choice but to find that they were in violation of the Preliminary Injunction.

On top of that, he points out that this was the remedy the DOJ itself presented:

Even after finding that violation, however, the Court stayed its hand and did not require Defendants to bring the individuals back to the United States, as requested by Plaintiffs. Instead, the Court accepted Defendants’ own suggestion that they be allowed to keep the individuals out of the country and finish their process abroad. In the interest of full transparency, the Court quotes at length from the hearing transcript:

THE COURT: [Plaintiffs’ counsel] is suggesting that the only remedy is for the plane to return here so that these individuals be given an opportunity to raise any objections they have to being sent to South Sudan. Do you have another suggestion as to what a remedy that would allow these people to have the process that they are due might be?

MR. ENSIGN: If I may, we think any remedy should be narrowly tailored to the violation. And so, you know, if Your Honor believes they weren’t given a meaningful opportunity to express a fear under CAT [Convention Against Torture], that the remedy should first be limited to giving them such a meaningful opportunity. If they were to do so, then they would be given that reasonable fear interview. But bringing them back would be a much broader remedy than necessary because this Court only requires compliance with procedures and, to the extent that Your Honor believes those procedures were not followed, the Government should be allowed to provide those procedures, and that should satisfy the due process as interpreted by this Court.

THE COURT: Thank you, Mr. Ensign. So let’s say that — I agree with you that I want to make the most narrowly tailored order to address the violation of my preliminary injunction that is possible. What you’re suggesting is that they can have a reasonable fear interview where they are now. Is that a practical possibility?

MR. ENSIGN: Your Honor, I don’t know. I’d have to speak to my client, but I think that would need to be at least one of the compliance options that’s presented, because that would be a much more narrowly tailored remedy that is actually tailored to the violation that Your Honor has found.

The judge gave Ensign time to talk to the government and find out that it was possible, and was told that it was. According to someone from ICE: “I know it’s possible and the Department can work it out. We’ve been working on it for the last couple of hours to make sure that we can do it, and it is possible to do it.”

Judge Murphy is not at all happy that they’re claiming this thing they asked for and said they could do is now a problem:

Since that hearing, merely five days ago, Defendants have changed their tune. It turns out that having immigration proceedings on another continent is harder and more logistically cumbersome than Defendants anticipated. However, the Court never said that Defendants had to convert their foreign military base into an immigration facility; it only left that as an option, again, at Defendants’ request. The other option, of course, has always been to simply return to the status quo of roughly one week ago, or else choose any other location to complete the required process.

Judge Murphy is also not persuaded by the Trump admin playbook of claiming “but these guys are, like, really bad.” As the court notes, that’s when due process matters most.

To be clear, the Court recognizes that the class members at issue here have criminal histories. But that does not change due process. “The history of American freedom is, in no small measure, the history of procedure.” Malinski v. New York, 324 U.S. 401, 414 (1945) (Frankfurter, J., concurring). “It is procedure that spells much of the difference between rule by law and rule by whim or caprice. Steadfast adherence to strict procedural safeguards is our main assurance that there will be equal justice under law.” Joint Anti-Fascist Refugee Comm. v. McGrath, 341 U.S. 123, 179 (1951) (Douglas, J., concurring). The Court treats its obligation to these principles with the seriousness that anyone committed to the rule of law should understand.

It appears that the Trump Justice Department is not at all happy about this. Rather than appeal to the First Circuit, as would normally be the next stage of the process, it has gone straight to the Supreme Court’s shadow docket, demanding emergency relief. The framing is predictable: this is about “removing dangerous criminals to protect Americans,” not about the government’s own procedural violations.

More striking is how the DOJ characterizes Judge Murphy’s decision to grant their own requested remedy as judicial overreach:

Those judicially created procedures are currently wreaking havoc on the third-country removal process. In addition to usurping the Executive’s authority over immigration policy, the injunction disrupts sensitive diplomatic, foreign-policy, and national-security efforts. Recent events vividly illustrate the injunction’s pathologies. Last week, the district court required the government to halt the ongoing third-country removal of the aforementioned criminal aliens to South Sudan. The court did so by exploiting an open-ended term in its injunction, holding that the government did not give them a “meaningful opportunity” to raise a fear of torture in that country— notwithstanding that they were all notified they were going to be removed there, and that none expressed any fear at the time, or even that day. Having slammed on the brakes while these aliens were literally mid-flight—thus forcing the government to detain them at a military base in Djibouti not designed or equipped to hold such criminals—the court then retroactively “clarified” its injunction to impose an additional set of intrusive and onerous procedures on DHS. As a result, the United States has been put to the intolerable choice of holding these aliens for additional proceedings at a military facility on foreign soil—where each day of their continued confinement risks grave harm to American foreign policy—or bringing these convicted criminals back to America. Most telling: The injunction creates such a diplomatic and logistical morass that the Secretaries of State and Defense both submitted declarations in the district court last Friday to stress the “significant and irreparable” harm that its orders impose.

Notably absent from this breathless description of judicial tyranny: any mention that the DOJ specifically requested this remedy and assured the court it was feasible.

The Trump administration is, once again, making it clear that basic things like “the rule of law” and “due process” are inconveniences that get in the way of them getting away with whatever they want to do, and they will whine and complain about any attempts by judges to actually follow the law.

Of course, it will be fascinating to see if Justice Alito agrees with the DOJ here, given that just a few weeks ago he complained about litigants racing to the Supreme Court for an emergency motion before waiting for an Appeals Court to weigh in. Will he do the same this time, when it’s his beloved Trump administration making the request?