Below is a response to an email I received from Virginia’s 5th Congressional District Representative John McGuire. It was written in response to a letter or email I sent to him. I am appreciative and grateful for his response. I expected it would be one of those form letters, pandering and short on substance.
To my delight it was long, specific, and expressed his world view and take on recent controversial actions by the Trump administration, in particular the alleged unlawful deportation of hundreds of alleged Venezuelan gang members to El Salvador’s maximum security prison. To my dismay, it demonstrates a fundamental break in who is and who is not entitled to basic constitutional rights.
The letter below is my response. I will mail him a hard copy.
Dear Mr. McGuire:
Thank you for your email dated March 28, regarding the recent deportation of hundreds of Venezuelans alleged to belong to a criminal gang to an El Salvadoran maximum security prison. I appreciate your candor and directly addressing my concerns. However, I would like you to consider some of my observations regarding your response. They are based on my 29 years of federal law enforcement experiences.
In your letter you stated that “Law enforcement spent weeks drafting the list of deportees to make sure all were connected to the violent Venezuelan Tren de Aragua gang.” Adding, that if some were mistakenly identified as a gang member, it really didn’t matter because they were in the country illegally: “I am aware there has been some discourse surrounding whether all those deported were connected to Tren de Aragua. I have full faith in our law enforcement, but on the rare chance that some of those who were deported happen to not be gang members they were still here illegally and therefore have committed a crime.”
I would rather have 150 guilty men go free than imprison 50 innocent men. It is cruel to send someone who would maybe get six months in a U.S. minimum security prison, than an indefinite stay at a high risk maximum security prison in El Salvador. Cruel and unusual punishment don’t you think?
What you didn’t mention is that despite a Federal District judges order to stop the deportations and return the flights pending hearings for the deportees, the government deported them anyway. Claiming they were over ‘international waters.’ How could this be if they were over the Gulf of America?
I believe your claim that you venerate our Constitution, but you seem unaware that our great Constitution has a Habeas Corpus clause. That is the government must produce “the body” in a court so that the defendant has a right to challenge the charges and their detention. Basically, that their arrest and confinement were legal. This fundamental legal concept goes all the way back to the Magna Carta. That is an 850-year-old tradition bequeathed to us by the British. And Trump throws it out like yesterday’s trash. The Judge’s order to stop the deportation was basically a Writ of Habeas Corpus in name and spirit.
I think we can both agree with the proposition that all inhabitants of the United States, regardless of citizenship or immigrant status have the following basic, fundamental human rights we cherish as a nation:
- The presumption of innocence
- To be secure from unreasonable searches and seizures (an arrest is a seizure)
- The right to counsel
- Right to a speedy and public trial
- Not to be deprived of life, liberty, property, without due process of law
- Not subjected to cruel and unusual punishment
The Venezuelans, it appears, were denied every one of these rights enumerated above. I am curious then, why you think these rights do not apply to them?
The arrests and deportations of these Venezuelans is the exact opposite of how our judicial system is supposed to work. The law enforcement agency making the arrests – the ones you have ‘full faith in’ – are not the prosecutor or the judge or the jury. Our system is designed to be adversarial, where the government must present evidence, to either a grand jury or magistrate before an arrest is made; or, after a warrantless arrest brought before a judge, and in the end convince a jury.
Even the basic right to challenge the government’s assertions of either criminality or being in the country illegally, was denied the Venezuelans, it appears. From what I can gather, the government presented no evidence. The court decides whether their detention is legal not ICE or you or Trump. I can see the discussion now: Judge, “What proof do you have that the defendant is a gang member?” Agent: “He has gang tattoos.” Judge: “WTF! Get out of my Court.” And it goes downhill from there.
Tattoos? That would be like rounding up everyone who was near Capitol Hill on January 6 wearing a red MAGA hat and deporting them to Guantanamo without due process. Don’t you think?
Spuriously invoking and using the Alien Enemies Act of 1798, the government denied their rights, disappearing them: No due process, no right to counsel, no hearing before a judge, sent to prison in El Salvador without trial for indefinite detention. That should scare the crap out of everyone. Then, to top off this charade of justice, DHS Secretary Noem shows up in El Salvador for a photo opportunity. Thank God there were not gravel pits nearby.
I know I can be pedantic about American history, but did you know that the Alien Enemies Act can only be invoked after a declaration of war? I really, really, really, hope you are aware that only Congress has the constitutional and legal prerogative to declare war. The President’s use of the Alien Enemies Act was therefore illegal, extra-Constitutional.
You and I both swore an oath to preserve and protect the Constitution. I did my best to uphold that oath and I expect you to faithfully execute that oath for the people of Virginia’s 5th Congressional District. It’s your duty to challenge these trespasses and gross injustices by Trump, not excuse them.
Listen, I am not against deporting criminal aliens and believe in protecting our borders. One of the last cases I oversaw resulted in a child sex trafficker getting 25 years in federal prison. But let me ask you this, why protect our borders when a sitting president destroys the country from within by attacking the fundamental rights we agree are essential to this great country’s democracy? When police ‘gather lists’ at the direction of political leaders we are in dangerous territory. Whatever you think ails this country, strangling democracy to save it is not the right answer.
Thank you and I look forward to our continued dialog.
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