Q&A – The MS-13 Terrorist ‘Maryland Man’s’ Case - Driven By Braman Motorcars
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Today’s Entry: Today’s Q&A features to related notes with excellent questions/points:
1) Now that the Attorney General Pam Bondi came out and said that he is part of the MS-13 gang. How do we the people go after the news media for still lying that he is innocent? Can President Trump and the DOJ go after those lying news media? Why is Law-fare allowed to go after MAGA side but never against the socials aside!
2) Something not being mentioned in this circus over the MS-13 suspect - our judicial system allows for suspects to be tried in absentia when they are not available. The president of El Salvador has said Garcia is not going to be released from that country's prison making him "unavailable. "Why doesn't our Justice Department simply move to have a "hearing in absentia" (it would be a precedent setting action), to determine the individual's right to be in our country?
Bottom Line: Yes, we’ve had many developments with the ‘Maryland Man’ as he’s been dubbed by the GSS media this week. According to a DOJ document release we learned that he illegally entered the United States in March of 2012. We learned he’d been apprehended by law enforcement multiple times under suspected gang activity previously (including for suspicion of human trafficking). Oh, and he’s an apparent wife beater.
In addressing the excellent questions and points being made in these two notes there’s a lot to consider. But in reality, what this case is about is much more, because based upon the way that this case plays out – effectively most of the Trump administration's deportation plans hang in the balance. It’s a bigger issue than just the dynamics associated with potentially being a member of a terrorist organization.
Before diving into the specifics of the questions the underlying principle behind this debate is due process. And specifically, who is entitled to due process under the law.
Fundamentally as Americans, regardless of ideology, the principle of due process isn’t a controversial one. With rare exceptions we believe in the premise that we’re innocent until proven guilty and deserve our day in court. Where it becomes controversial is when we’re talking about the extent to which people are afforded the protection of due process under our laws. Do you think illegal immigrants should be entitled to due process? That’s fundamental in this conversion. So about that...
The Due Process Clause in the constitution states this: no person shall be deprived of life, liberty, or property. Now, because there was subjectivity behind whether a “person” means someone lawfully in our country, or anyone in this country, the matter has been litigated overtime. The most recent ruling that currently shapes federal policy occurred in 2001 in the Zadvydas v. Davis case. Without getting into the nitty gritty of that case, which also involved a criminal illegal alien, the Supreme Court ruled that “persons” under due process, applies to anyone regardless of immigration status...with limitations.
The President of the United States has executive authority to designate foreign terrorist organizations and to declare national emergencies. Under law, when President Trump designated MS-13 and Tren de Aragua (and others) as terrorist organizations (while also invoking the Alien Enemies Act) it allowed for a bypassing of due process for those determined to be foreign terrorists operating on U.S. soil. A potential legal caveat that works against the Trump administration in the case of Kilmar Garcia is the 2001 Supreme Court case’s terminology about due process eligibility. The court said “resident aliens” qualified as “persons” under the law. That’s what inherently makes Garcia’s case different than other rounded up MS-13 gang members who’ve been deported. There’s no question that he was a “resident alien” having been established since 2012. For that reason, it can be argued (and is) that it DOJ first prove that he’s a member of a foreign terrorist organization. That takes us to the points in the second note.
As to the potential to try Garcia’s case in absentia... As noted, trials may take place in the absence of a defendant. Given the circumstances, that would seemingly be a sensible way to proceed. There’s one major hang up with attempting to proceed that way with Garcia’s case at present. In the settled case law of Smith v. Mann it was ruled that... Though federal rule of criminal procedure prohibits federal trials in-absentia where defendant is not present at beginning of trial, the Constitution itself does not prohibit trial from being commenced in defendant's absence so long as defendant knowingly and voluntarily waives his right to be present. Garcia hasn’t done that. So here we are...
It’s my view that no one unlawfully in this country should be entitled to due process rights under our constitution. The play for the Trump administration, whether it’s eventually with this case or another, would be to seek for the Supreme Court to overrule the 2001 ruling. A win in that ruling would make it much easier for the Trump administration to conduct deportations involving all illegal aliens going forward.