Deported to Torture? The Supreme Court Greenlights Trump

The Oath and The Office

The episode examines several recent legal developments involving the Trump administration's impact on constitutional norms. The hosts discus

Key takeaways

• The Supreme Court lifted a lower court injunction, allowing deportations to countries like Eswont/Eswatini without providing notice to the individuals.
• The Trump administration is utilizing taxpayer-funded advertisements that function as partisan campaign ads despite being framed as PSAs.

Main topics

• Third-party deportations and human rights
• Taxpayer-funded campaign advertising

Notable quotes

The word is torture.

Conclusion

The episode serves as a warning about the erosion of constitutional ch

Transcript preview

Speaker 1 (0:00) Today's episode is brought to you by Americans United for Separation of Church and State. Americans United has spent the last 80 years defending your right to live as yourself and believe as you choose, as long as you don't harm others. Most recently, this work has taken AU to the state of Texas. where they're defending the rights of freedom of and from religion for more than a dozen families who are fighting against the Ten Commandments being posted in their children's classrooms. Learn more at au.org slash T-E-N-C. That's au.org slash T-E-N-C. Speaker 2 (0:51) to another edition of The Oath and the Office, the podcast. I'm John Fuglesang. It's so good to be here with you. Right now, we're enjoying a time when the Republican candidates for the midterms are running away from Donald Trump like Trump runs away from light rain on his hair. They're not breaking up with the president. They're just changing their relationship status to, uh... It's complicated. So let's bring in the star of our show, the author of The Oath in the Office and the Presidents and the People, a book all y'all should own as well. Rock star from the Poli Sci Department at Brown University. Please welcome the man that Wu-Tang Clan calls the Mac, Professor Corey Bretschneider. It's good to see you, sir. Speaker 1 (1:29) Good to see you, John. We have quite a show. We're going to talk about this Supreme Court. order, clearing the way for third country deportation, sending people to countries that they're not from. We'll talk about that in depth. And of course, there's a lot more to discuss and update on what's going on with Trump's attempt to ban whole news organizations that he doesn't agree with from the White House and a lot more. Speaker 2 (1:52) Well, let's talk about this because the ruling just came through now. Back on... September 18th, years ago, the First Circuit ruled that people facing removal to a country that isn't where they come from have to get effective notice, right? And they have to have a meaningful opportunity to raise their fears about persecution in this third-party country or torture. And the administration thought, well, that's too humane. So they asked the Supreme Court to intervene. And the six justice majority, the dirty six, just... lifted that lower court decision and said, go ahead. Yeah, who cares? No, go ahead. If they get persecuted, it's on them. The justices did not explain why. Sotomayor, Kagan, and Katanji Brown Jackson all dissented from the ruling. Professor, I mean, what's the fundamental constitutional question in this third party deportation case beyond the fact that these folks appear to be sadists? Speaker 1 (2:47) Well, you know, I'll sum it up in one word, because third party deportation sounds like an abstract idea. And the word is torture. We have examples of people who are being sent to countries, being deported to countries that they're not from. And that's, you know, should raise a lot of questions as it is. But I'll give you one of the main examples. And I should say, too, there are 25,000 cases. This isn't a small amount. Speaker 2 (3:12) One Speaker 1 (3:12) of the people involved here. was born in Cuba, Cuban national, and was deported to a country that used to be Swaziland and is now known as Eswatini. This is an absolute... authoritarian country with essentially no human rights. He didn't know where he was headed. And all of a sudden, he found himself being led through, as he describes it, these metal doors and was in a prison, isolated, and no access to his cell phone. He had to go on hunger strike as a way of trying to get attention. Finally, there was some recognition of what was going on and realization that he had been sent to this country. But imagine that, being sent. From the United States, where you've lived and... being deported, not back to a country where you're familiar with it, but one that you don't even know its name. This is a country that's name changed not too long ago. Not a lot of people in the world know. Eswatini, you can't even find that on a lot of maps. Yeah, I mean, it's. Yeah, exactly. And, you know, so what's the issue? The issue is that the Constitution of the United States guarantees due process. And the argument is that if you have no way to meaningfully check to make sure that you're not being deported to a country. that is going to torture you, then there is no due process. There are other examples, a case in which there were deportees to Equatorial Guinea in which there was documented torture. So, you know, these are human rights abusing countries that the Trump administration has made a deal with. And although the lower court said, hey, this is a due process violation, the Supreme Court on a shadow docket cleared the way for these deportations to continue to happen. There'll be more litigation over this. This isn't the end final decision, but it certainly clears the way for a massive human rights abuse by this administration. Speaker 2 (4:59) Oh, my God. So, I mean, let me let me ask some very dumb questions about this, Professor, because the First Circuit, I know. They didn't say the government can never deport someone to a third country. They said that the person must get notice and this meaningful opportunity to argue that they face persecution. Now, the administration says, oh, no, no diplomatic assurances from foreign governments. That's sufficient to protect deportees. I mean, they're literally saying, trust us, they promise not to torture you. You know, the bad guys gave us their word. I mean, why did the First Circuit reject that as a substitute? for giving the individual the opportunity to be heard. Speaker 1 (5:38) Well, that phrase meaningful opportunity might sound abstract, but what it means is that you actually have to have a chance to show that you're demanding that the administration show that you're not going to be tortured, that there really was an actual investigation of these countries where the deportations, these third countries that individuals are being deported to. And as you said, the First Circuit didn't say that this can never happen. But what it certainly did say is that there has to be meaningful evidence, not just any kind of evidence. any kind of claim that the place that you're going to be deported to isn't going to torture you. And when it's an authoritarian regime, as is true of Equatorial Guinea, for instance, not only is there no guarantee, there's probably a likelihood that you will be tortured or a good chance of it, to say the least. And so, you know, what this means, meaningful opportunity, is that there is some substance to it. The administration's argument, and this is just reiterating and elaborating on what you already said, John, is this just trust me theory. And it's like, you know what? We asked these countries, are you going to torture the people that we're sending to you? And they said, just trust me, we're not going to do it. But when it's an authoritarian regime, when there's no transparency, when people don't even know the name of the country that they're going to, you know, we're so far from it. any process that's due. It's just basically the administration sending people places that they want. And again, the Supreme Court just cleared the way for this to happen. Speaker 2 (7:03) I mean, the First Circuit Court's decision, I guess, Professor, was maybe don't put human beings on a plane to an undisclosed third-party country without letting them explain to you why they might be tortured there. It's really radical. Tell the person where you're sending them. But this administration is also just saying quite flatly. They have final removal orders and therefore the authority to carry them out. I mean, where does that authority end? Speaker 1 (7:28) Well, what the administration is saying, and, you know, when you and I talked about this earlier in the week on your radio show, I predicted that the Supreme Court was going to do precisely this, because when it comes to matters of immigration, they tend to be just extremely deferential to the president of the United States. And that was true too. Oh, Speaker 2 (7:46) they Speaker 1 (7:46) enjoy it a Speaker 2 (7:46) bit too, Corey. They enjoy it a bit themselves. Speaker 1 (7:49) That was true in the travel ban case. When it came to who gets into the country, they deferred enormously, even in the face of an explicit Muslim ban, one that the president kept telling us was a Muslim ban. They said, well, the administration is saying it's just about security, even though we've seen no evidence of that. Let's trust them. And now this administration is saying, just trust us. We made a deal with Eswatini. And I should say that Equatorial Guinea, Eswatini, these. Countries are being paid to take these deportees, and they are treating them not just as prisoners, but in some cases as prisoners who are going to be tortured. What process is due? Well, first of all, it's a right of persons under the Fifth and Fourteenth Amendment. No person shall be deprived of the due process of Speaker 2 (8:34) law. That's right, Speaker 1 (8:34) not citizen. And it isn't just a limit to citizens. So certainly these deportees are owed that. And I would think, I mean, I just don't want to miss this point. Forget about torture. OK, that is obviously required. But a minimum as well is that you know where you're headed and that they just sent this Cuban national to Eswatini without any knowledge of where he was going and that he found himself. in a prison cell behind closed doors. They transported him, by the way, in a military truck once he arrived in the country, still not knowing where he was. He had to ask again and again, where am I, before he figured that out. And this is not a small number. I should say most of these deportees are being sent to Mexico, but we're talking about 25,000 people, so it is in the thousands of people who are being sent. to these countries. There's an attempt to document them. That's where the number 25,000 comes from, from a nonprofit that's been tracking all of this. But the whole point is there's no transparency. We don't know what's going on in these countries. Yes, we have this story out of Eswatini, this story out of Equatorial Guinea, but how many stories do we not have out of these thousands? Speaker 2 (9:43) Well, also, I mean, there's that, you know, wild factor that let's say country B sends you to country C. And now you've unlocked the human rights version of connecting flights, right? I mean, just because you're sent to country C and the Supreme Court said that's okay doesn't mean that's where you're going to stay either. But if the administration says, well, we have diplomatic assurances that these people will be safe, I mean, does a court have to accept that representation? Or does the individual have to have the opportunity to contest that? That's what I don't get. Speaker 1 (10:17) It's a great way to dig. deep into this, John, because to my mind, Common sense tells you, in any legal sense, frankly, that if you have a right to due process, that just trust me is not due process. I think that's almost law 101. Due process means that there has to be a meaningful way that you're assuring people that their rights are being respected, including the basic right that's at issue here, which is the right not to be tortured. And yes, I would think that information about where you're headed and what this country is to assure people that, yes, they really are not going to be tortured. Richard, would be part of it. And I should say, you know, the administration, Trump, cites a lot of statutes in which Congress has handed over massive power to the executive, to the president, when it comes to issues of deportation and immigration. But the Constitution stands above that. The right of due process constrains any law, any action by a president. And it's not a meaningful idea of due process of saying, deferring to this administration, which says. Just trust me. And of course, there are three dissents from the liberals on the court saying exactly that. Speaker 2 (11:23) Yeah. So, I mean, here's my question, though. How should courts think about the possibility of this? It's chain refoulement, I think it's called, right? Someone being sent to a third country that then sends them, again, somewhere else where they could face persecution and torture. I mean, are the courts obliged to consider that? And it sounds like you're also saying that. The courts are obliged to give an individualized hearing every time the government changes anyone's destination country. Speaker 1 (11:49) You know, I don't want to say, and I think none of the courts are saying, that there's never a case in which a third-party deportation would make sense. And so I'll just give you an example. If somebody's been convicted of a crime and after they've served their time in prison, they're being deported, a lot of countries don't want to take the person back, even if they were... born in that country. Okay, so what does the government do? They don't have a right to remain in the United States, and they don't have the ability to go back to their home country. In that instance, a third country deportation might, and I'll emphasize might, make sense, but it's subject to a guarantee, and this is part of the law, and it's part of basic