The Longest Road to Justice

The men sent to CECOT deserve habeas corpus rights, but allowing them to challenge their detention is not enough.

June 12, 2025 (Updated)

Yesterday, Courthouse News Service reported that an appeals court has stayed the order given by District Court Judge Boasberg that men deported to CECOT in El Salvador must be given an opportunity to file habeas petitions contesting their confinement. Habeas corpus is a bedrock principle of law in our democracy, with roots in the Magna Carta. The idea is intuitive: before the government can strip an individual of rights (by imprisoning or deporting them, say), it must provide evidence for its decision, and a chance for the person to contest that evidence.

In June 2004, the Supreme Court found in Rasul v. Bush that the 700-odd men confined at Guantanamo Bay as “unlawful combatants” had the right to habeas corpus. This ended the Bush Administration’s effort to keep these alleged terrorism suspects under the control of the U.S. but not U.S. courts, in a “legal black hole” by virtue of the fact Cuba reserves sovereignty over the territory, which was leased to the U.S. in perpetuity after the Spanish-American War. Effectively, the Supreme Court said that as long as a person is in U.S. custody, they have rights under U.S. law.

Faced with this precedent, the Trump Administration crafted a workaround. If the standard was that U.S. law applies to anyone in the hands of the government, the solution is to find a place where detainees are beyond our grasp.

And indeed, the Administration’s dealings with the court continue to try to ply this slippery line:

In a filing, the Justice Department argued there was no way for the government to facilitate habeas petitions as it no longer had constructive custody over the migrants, whom the administration maintains are members of the Tren de Aragua gang.

“Even if the class members could file habeas (as the named petitioners have) there would be no jurisdiction,” the Justice Department said. “So the only way to facilitate the filing of meaningful petitions would be to force the executive to engage in diplomatic negotiations to regain custody over the petitioners.”

This, the argument goes, is an illegal foray into the powers reserved in the Constitution for the executive branch. Separation of Powers must be respected, and so Judge Boasberg’s ruling should be overturned.

Irony is not dead.

The ruling was en banc, meaning that it was issued by the full panel of all judges from the court of appeals in the circuit, a step taken to facilitate quicker rulings in some cases. The judges issued an emergency stay pending further argument, meaning that they recognized that the ruling would put a heavy burden on the Administration and have irrevocable consequences on foreign policy, even though a final decision on the order could go either way. The ruling does not mean that the Administration won’t lose and Judge Boasberg’s order won’t stand. Indeed, the 2004 precedent suggests the men in CECOT have a strong though not surefire claim.

Image: Matthew Henry

But even with a speedy resolution of the appeal, habeas is a long road to justice. Lawyers for the plaintiffs are seeking to pursue a class action case – in theory, all the individual claims will be subject to one ruling. But it’s not certain that a class action will survive judicial scrutiny. The Supreme Court has not prohibited this approach in habeas corpus cases, but the justices have a mixed record in upholding it that suggests skepticism that class certification is valid when, in the end, the individual circumstances of a person’s detention are what matter.

It’s possible that the Supreme Court will take the case, and will allow the class certification. If they then extend the ruling in Rasul to say that men sent by the U.S. to CECOT have habeas rights, there is a short road to justice. Depending on the issues before the court, they may grant relief to the class, and in theory, the government would have to secure their release; more likely, it would go back down to the district court, and the process would drag out longer.

But it is also possible, though unlikely, that the courts will find that the government proves its case, and let the renditions to El Salvador stand. More likely, the Supreme Court will deny the class certification, and rule that while the plaintiffs do have a right to contest their confinement in court, each must bring his own case to court.

This seems not unlikely: the circumstances of the men sent to CECOT vary: reporting by Pro Publica and others suggests that most have no criminal convictions, and that criteria for judging gang membership were arbitrary, but there seem to be some who were deportable after serving prison sentences, or that had clearer gang ties. Whatever the merits of sending even the criminals among them to prison without trial, such differences might be enough to undermine “commonality” and lead to the class being decertified, possibly leading to a series of appeals that, upon reaching the Supreme Court, seem likely to lose.

At that point, each detainee would have the option of filing a habeas suit for himself. This will mean that each detainee has their day in court, but scheduling alone (even without the government dragging its feet) could stretch to months or likely years. Justice delayed is indeed justice denied if you are in one of the harshest prisons in the hemisphere.

Moreover, because it is individuals contesting the grounds of their own confinement, I don’t think this approach would get to the overall legality of the U.S. government’s assertion that it has the authority at least sometimes to do what it has done in this case. It seems illegal on its face, but proving that one person is wrongfully detained, that 230 people are wrongfully detained, is not the same as proving that the government wholly lacks the power to do what it did to these men.

In short, as the en banc panel issues its ruling on the merits, and the case goes to the full appeals court and probably the Supreme Court, justice may not be served regardless of the outcome.

After the 2004 ruling, Gitmo detainees were challenging their detention for years, and a dozen or so remain in the facility.¹ That ruling, further, only spurred the Trump Administration to be more creative in the search for a new black hole.

The 2004 precedent is not enough: the CECOT plan shows that there are still sneaky ways to the same lawless end Gitmo was to serve. A “hands on” principle to determining when habeas is required in U.S. courts will no longer do. We need a “no returns or exchanges” policy, a ruling that whatever our government does with human beings in their custody, they are responsible for the results. The DOJ’s appeal complained that the ruling would require it to pursue the return of the men through diplomacy. So be it. Diplomacy, sanctions, what have you: when the United States puts someone willingly in a situation that violates their human rights, addressing that wrong should be a legal responsibility.

The alternative will be ever more cruel and contrived actions whenever the inheritor of the Bush-Trump view of American power wants to assert its freedom to do whatever it wants with members of the next demonized group.

1. By and large, the few remaining detainees at Gitmo are there because of the difficulty of releasing and repatriating them. A large number of Uighurs, for example, remained on the base for years because sending them back to China would put them in grave danger.