Trump's Lawlessness Comes From Seeds Planted by Bush-Cheney

In 2003, the Macedonian police arrested Khaled el-Masri, a German citizen vacationing in their country. They handed the unfortunate man over to the CIA, who shipped him off to one of their “black sites.” For those too young to remember (or who have quite understandably chosen to forget), “black sites” was the name given to clandestine CIA detention centers around the world, where that agency held incommunicado and tortured men captured in what was then known as the Global War on Terror. The black site in this case was the notorious Salt Pit in Afghanistan. There el-Masri was, among other things, beaten, anally raped, and threatened with a gun held to his head. After four months he was dumped on a rural road in Albania.

It seems that the CIA had finally realized that they had arrested the wrong man. They wanted some other Khalid el-Masri, thought to be an al-Qaeda associate, and not, as Amy Davidson wrote in the New Yorker, that “car salesman from Bavaria.”

El-Masri was not the only person that representatives of the administration of President George W. Bush and Vice President Dick Cheney mistakenly sent off to another country to be tortured. In an infamous case of mistaken arrest, a Canadian citizen named Maher Arar was detained by the FBI at JFK Airport in New York while on his way home from a vacation in Tunisia. He was then held in solitary confinement for two weeks in the United States, while being denied contact with a lawyer before ultimately being shipped off to Syria. There, he would be tortured for almost a year until the Canadian government finally secured his release.

An “Administrative Error”

I was reminded of such instances of “extraordinary rendition” in the Bush-Cheney era when I read about the Trump administration’s March 2025 deportation of Kilmar Armando Abrego García to a grim prison in El Salvador. Because of threats against him and his family from Barrio 18, a vicious Salvadoran gang, Abrego García had fled that country as a young teenager. He entered the U.S. without papers in 2011 to join his older brother, already a U.S. citizen.

He was arrested in 2019, while seeking work as a day laborer outside a Home Depot store and handed over to U.S. Immigration and Customs Enforcement (ICE), which accused him of being a member of another Salvadoran gang, MS-13. This proved a false claim, as the immigration judge who heard his case agreed. While not granting Abrego García asylum, the judge assigned him a status — “withholding from removal” — which kept him safe in this country, because he faced the possibility of torture or other violence in his homeland. That status allowed him to work legally here. He married a U.S. citizen and they have three children who are also U.S. citizens.

Then, on March 12, 2025, on his way home from his job as a sheet-metal apprentice, he was suddenly stopped by ICE agents and arrested. They told him his status had been revoked (which wasn’t true) and promptly shipped him to various detention centers around the country. Ultimately, he was deported to El Salvador without benefit of legal assistance or a hearing before an immigration judge. As far as is known, he is now incarcerated at CECOT, the Center for the Confinement of Terrorists, a Salvadoran prison notorious for the ill treatment and torture of its inmates. While built for 40,000 prisoners, it now houses many more in perpetually illuminated cells, each crammed with more than 100 prisoners (leaving about 6.5 square feet of space for each man. It is considered “one of the most dangerous prisons in the Western Hemisphere” with “some of the most inhumane and squalid conditions known in any carceral system.” Furthermore, among the gangs reported to have a substantial presence at CECOT is Barrio 18, the very crew Abrego García fled El Salvador to escape so many years ago.

The Trump Justice Department has now admitted that they made an “administrative error” in deporting him but have so far refused to bring him home. Responding to a Supreme Court ruling demanding that the government facilitate his return, the Justice Department on April 12th finally acknowledged to the D.C. district court that he “is currently being held in the Terrorism Confinement Center in El Salvador.” Its statement continued: “He is alive and secure in that facility. He is detained pursuant to the sovereign, domestic authority of El Salvador.” On April 14, 2025, in contemptuous defiance of the supreme court, President Trump and his Salvadoran counterpart Nayib Bukele made it clear to reporters that Abrego García will not be returning to the United States.

Previously, the government’s spokesman, Michael G. Kozak, who identified himself in the filing as a “Senior Bureau Official” in the State Department’s Bureau of Western Hemisphere Affairs, had failed to comply with the rest of Judge Paula Xinis’s order: to identify what steps the administration is (or isn’t) taking to get him released. The judge has insisted that the department provide daily updates on its efforts to get him home, which it has failed to do. Its statement that Abrego García “is detained pursuant to the sovereign, domestic authority of El Salvador” suggests officials intend to argue that — despite paying the Salvadoran government a reported six million dollars for its prison services — the United States has no influence over Salvadoran actions. We can only hope that he really is still alive. The Trump administration’s truth-telling record is not exactly encouraging.

Extraordinary Rendition

The technical term for such detainee transfers is “extraordinary rendition.” “Rendition” involves sending a prisoner to another country to be interrogated, imprisoned, and even possibly tortured. Rendition becomes “extraordinary” when it occurs outside of normal legal strictures, as with the cases of el-Masri and Ahar decades ago,, and Abrego García today. Extraordinary rendition violates the United Nations Convention Against Torture, which explicitly prohibits sending someone to another country to be mistreated or tortured. It also violates U.S. anti-torture laws. As countless illegal Trump administration acts demonstrate, however, illegality is no longer a barrier of any sort to whatever its officials want to do.

Two other flights left for El Salvador on the day Abrego García was rendered. They contained almost 200 people accused of being members of a Venezuelan gang, Tren de Aragua, and were similarly deported under the Alien Enemies Act of 1798 without any hearings. Are they actually gang members? No one knows, although it seems likely that at least some of them aren’t. Jerce Reyes Barrios, for example, was a Venezuelan soccer coach who sought asylum in the U.S. and whose tattoo, celebrating the famous Spanish soccer team Royal Madrid, was claimed to be evidence enough of his gang membership and the excuse for his deportation.

Andry José Hernández Romero is another unlikely gang member. He’s a gay makeup artist who entered the United States last August to keep a pre-arranged asylum appointment. Instead, he was arrested and held in detention until the Tren de Aragua flights in March. The proof of his gang membership? His “Tres Reyes” or “Three Kings” tattoos that were common in his hometown in Venezuela.

In fact, all 200 or so deportees on those flights have been illegally rendered to El Salvador in blatant defiance of a judge’s court order to stop them or return those already in the air. None of those men received any sort of due process before being shipped off to a Salvadoran hellhole. In response, Salvadoran President Nayib Bukele tweeted, “Oopsie… Too late” with a laughing-face emoji.

Even U.S. citizens are at risk of incarceration at CECOT. After Secretary of State Marco Rubio met with President Bukele, the State Department’s website praised his “extraordinary gesture never before extended by any country,” an offer “to house in his jails dangerous American criminals, including U.S. citizens and legal residents.” Trumpreiterated his interest in shipping “homegrown criminals” to El Salvador during his press conference with Bukele. As former federal prosecutor Joyce Vance has observed, “If it can happen to Abrego Garcia, it can happen to any of us.”

It Didn’t Start with Trump

It’s tempting to think of Donald Trump’s second term as a sui generis reign of lawlessness. But sadly, the federal government’s willingness to violate federal and international law with impunity didn’t begin with Trump. If anything, the present incumbent is harvesting a crop of autocratic powers from seeds planted by President George W. Bush and Vice-President Dick Cheney in those war on terror years following the attacks of September 11, 2001. In their wake, the hastily-passed Patriot Act granted the federal government vast new detention and surveillance powers. The Homeland Security Act of 2002 established a new cabinet-level department, one whose existence we now take for granted.

As I wrote more than a decade ago, after September 11th, torture went “mainstream” in the United States. The Bush administration cultivated an understandable American fear of terrorism to justify abrogating what, until then, had been a settled consensus in this country: that torture is both wrong and illegal. In the face of a new enemy, al-Qaeda, the administration argued that the requirements for decent treatment of wartime detainees outlined in the Geneva Conventions had been rendered “quaint.” Apparently, wartime rights granted even to Nazi prisoners of war during World War II were too risky to extend to that new foe.

In those days of “enhanced interrogation,” I was already arguing that accepting such lawless behavior could well become an American habit. We might gradually learn, I suggested, to put up with any government measures as long as they theoretically kept us safe. And that indeed was the Bush administration’s promise: Let us do whatever we need to, over there on the “dark side,” and in return we promise to always keep you safe. In essence, the message was: there will be no more terrorist attacks if you allow us to torture people.

The very fact that they were willing to torture prisoners was proof that those people must deserve it — even though, as we now know, many of them had nothing whatsoever to do with al-Qaeda or the September 11th attacks. (And even if they had been involved, no one, not even a terrorist, deserves to be tortured.)

If you’re too young to remember (or have been lucky enough to forget), you can click here, or here, or here for the grisly details of what the war on terror did to its victims.

The constant thrill of what some have called security theater has kept us primed for new enemies and so set the stage for the second set of Trump years that we now find ourselves in. We still encounter this theater of the absurd every time we stand in line at an airport, unpacking our computers, removing our shoes, sorting our liquids into quart-sized baggies — all to reinforce the idea that we are in terrible danger and that the government will indeed protect us.

Sadly, all too many of us became inured to the idea that prisoners could be sent to that infamous offshore prison of injustice at Guantánamo Bay, Cuba, perhaps never to be released. (Indeed, as of January 2025, of the hundreds of people incarcerated there over the years, 15 war on terror prisoners still remain.) It should perhaps be no surprise, then, that the second time around, Donald Trump seized on Guantánamo as a possible place to house the immigrants he sought to deport from this country. After all, so many of us were already used to thinking of anybody sent there as the worst of the worst, as something other than human.

Dehumanizing the targets of institutionalized mistreatment and torture proved to be both the pretext for and a product of the process. Every torture regime develops a dehumanizing language for those it identifies as legitimate targets. For example, the torturers employed by the followers of Augusto Pinochet, who led Chile’s 1973 military coup, typically called their targets “humanoids” (to distinguish them from actual human beings).

For the same reason, the Israel Defense Forces now refer to just about anyone they kill in Gaza or on the West Bank as a “terrorist.” And the successful conflation of “Palestinian” with “terrorist” was all it took for some Americans to embrace Donald Trump’s suggestion that Gaza should be cleared of its people and turned into the “Riviera of the Middle East” for Israelis, Americans, and foreign tourists.

Trump’s representatives have used the same kind of language to describe people they are sending to that prison in El Salvador. His press secretary, Karoline Leavitt, referred to them as “heinous monsters,” which is in keeping with Trump’s own description of his political opponents as inhuman “vermin.” At a rally in New Hampshire in 2023, Trump told the crowd, “We pledge to you that we will root out the communists, Marxists, fascists, and the radical left thugs that live like vermin within the confines of our country.” Here he was talking not only about immigrants, but about U.S. citizens as well.

After years of security theater, all too many Americans seem ready to accept Trump’s pledge to root out the vermin.

It Can Happen to You

One difference between the Bush-Cheney years and the Trump ones is that the attacks of September 11, 2001, represented a genuine and horrific emergency. Trump’s version of such an emergency, on the other hand, is entirely Trumped-up. He posits nothing short of an immigration “invasion” — in effect, a permanent 9/11 — that “has caused widespread chaos and suffering in our country over the last 4 years.” Or so his executive order “Declaring a National Emergency at the Southern Border of the United States” insists. To justify illegally deporting alleged members of Tren de Aragua and, in the future (if he has his way), many others, he has invented a totally imaginary war so that he can invoke the 1798 Alien Enemies Act, which was last used during World War II to justify the otherwise unjustifiable internment of another group of dehumanized people in this country: Japanese-Americans.

Donald Trump has his very own “black site” now. Remember that El Salvador’s Nayib Bukele is perfectly willing to receive U.S. citizens, too, as prisoners in his country. Supreme Court Justice Sonia Sotomayor, joined by Justices Elena Kagan and Ketanji Jackson, made that point in a statement that accompanied that court’s recent order requiring the Trump administration to facilitate Kilmar Abrego García’s return to the United States. They wrote, “The Government’s argument, moreover, implies that it could deport and incarcerate any person, including U.S. citizens, without legal consequence, so long as it does so before a court can intervene.”

As the justices remind us, it can happen here. It can happen to you.