Andrea Pitzer (0:00)

You're listening to Next Comes what from Degenerate Art. Each week we'll figure out how we got where we are and how to fight back. This is Andrea Pitzer. Too much has happened in recent days for me to cover, even though it's all very relevant to what I normally talk about. On Next Comes what? Over the weekend, the US Bombed Iran in support of Israel without going to Congress or making a case to the American public. The preliminary Pentagon report indicates at least two of the Iranian nuclear facilities targeted were not completely destroyed and that Iran's program was only set back a few months. On June 18, US Supreme Court affirming the lower court decision in the Scrometti case allowed the state of Tennessee to ban trans minors from access to gender affirming care. Now, in 2019, this court said that transgender people had workplace protections against discrimination. Why a different outcome today? We don't know exactly. And that was a 6 to 3 decision as well. And on Monday, we got another Supreme Court decision, this one on the shadow docket. The case stems from an instance last month when immigration officials sent eight people on a plane to South Sudan, though they were then diverted to Djibouti. A judge in Boston found that violated his court order, giving people a chance to argue that they could face torture if deported. Now, starting wars is a bad development in authoritarianism for sure. General Goering says that we have been spared so far because Nazi Germany is so humane. They cannot bear to do anything to hurt anybody. All they ask for is the right to live and to be let alone, to conquer and kill the weak, although when it's unpopular enough, it does sometimes hasten the collapse of a vulnerable leader. General Kaine Yes. He has said that Mr. Putin has territorial ambitions beyond Ukraine. Do you view that in the same way? It's possible. I mean, it's possible. I know one thing. He'd like to settle. He'd like to get out of this thing. It's a mess for him. And the Scrametti decision likewise involves further acceleration into authoritarianism because it involves denying the equal humanity and rights of a group of citizens in this case to have medical care that non trans children in the same states can get. The ACLU said today's ruling was a devastating loss for transgender people and creates a class of people who politicians believe deserve health care and a class of people who do not. So I'll talk more about the Scrometti case and Iran on another day, but for this episode, because matters of detention and removing people from society are right at the heart of what's in my wheelhouse generally, the way that I used it to frame Is this a concentration camp? Is this not a concentration camp? Was to say in the existing legal system in that place at that time, was this an add on, done extrajudicially, was it an end run around the existing legal system? I'm going to focus on the case of DHS v. Dvd, the Supreme Court's Monday decision authorizing deporting people from the US not to their country of birth, but to random third countries at the whim of the executive branch, without a chance to argue that the destination country assigned to them might be dangerous for them, that torture or forced labor or extrajudicial detention might await them there. It does, I think, green light the Trump administration's disturbing pattern and practice of not complying with lower court orders. As always, at the end of the episode, I'll cover things you can do to help stop the further degrading of democracy. But we'll spend most of today on Monday's Supreme Court case foreign either a 5, 4 or a 6, 3 decision. We don't know which one. Because this is a shadow docket decision, justices aren't obligated to reveal their vote. The U.S. supreme Court is allowing the administration to deport people without documentation. Though a dissent appeared, no legal rationale for the majority's decision about sending people to Third nations was included in documents released to the public on Monday. Right now, they have no legal recourse to challenge their detention. Justice Sotomayor wrote the dissent that seems not only furious but despondent about what the court has signaled in this case. And she noted that in matters of life and death, it is best to proceed with caution. In this case, the government took the opposite approach. It wrongfully deported one plaintiff to Guatemala, even though an immigration judge found he was likely to face torture there. Then, in clear violation of a court order, it deported six more to South Sudan, a nation the State Department considers too unsafe for all but its most critical personnel. An attentive district court's timely intervention only narrowly prevented a third set of unlawful removals to Libya. This decision sent shockwaves through the legal community. Steve Ladek and Aaron Reichland Melnick, the first, a voice on interpretation of Supreme Court decisions and law. The second, a really important voice on immigration. Both called the ruling disastrous. Unfortunately, this ruling came to us through the Shadow Docket, which is the title of a book by Stephen Vladek, a University of Texas law professor. So it's an umbrella term that basically describes everything the Supreme Court does. Other than the 60 or so big merits rulings we get each term, that's the ones that we're used to seeing big headlines about. It's only about 1% of what the court does, 99% of the dispositive rulings the Supreme Court, hands down, are these unsigned, unexplained orders. Most of them are anodyne, but increasingly, a lot of them are not. Consequential rulings can sometimes happen there, such as a refusal to take up a case or an order to a lower court. But typically, when an important case is considered, it usually happens on the merits docket, not the shadow docket. On the merits docket, there's an extended set of arguments and briefs involved a lot of the time and legal justification for the decision is laid out. What we think of as the modern flurry of this kind of emergency application, where the court's being asked to intervene early in a case and not as the court of last resort. Starts with the reinstitution of the death penalty in the late 70s. But, John, it stays over there in the death penalty space for the better part of 35 years. The current court is making greater and greater use of the shadow docket for things which would have normally been on the merits docket. What really shifts in the mid-2010s, and President Trump's Justice Department is a big part of the cause of this shift is the court taking approaches that had become normalized in the death penalty context. Full court decisions without oral argument, without a lot of briefing, with no explanation, and now applying it to whether particular immigration policies will be in effect or not. In addition, it often seems that the court does so in order to avoid having to justify controversial rulings. All of which means that we have no indication of how broad or narrow this ruling is, how the majority came to its opinion, or why they would grant emergency relief to an administration that has defied court rulings on this very issue. Way too often, the best predictor of who's going to win a shadow docket application is the partisan valence of the dispute, where the justices seem to be siding with Trump policies, but against Biden policies, with red states, but against blue states, where the absence of any explanation to deprives us of any reason to feel confident that there are neutral principles here at work and not just political actors acting politically. As far as we can tell, the ruling seems to say that for now, until full adjudication of the case, the government is free to send an immigrant in detention to a country with which they have no connection by birth or citizenship without any chance to argue that they're at risk of torture or other harms in that third country when it is presented absent context, one might simply imagine that an immigrant from El Salvador who can't be returned to El Salvador because of risk from gang violence or persecution by the government, or both might instead be deported to a neutral country willing to take them. Maybe France or Italy, who wouldn't want to have a little vacation. But the reality is somewhat different. Countries do not typically want to take in those who are not their own citizens. There is currently a global political crisis in which immigrants have been demonized in much of the developed world and elsewhere, many face closed doors in the rising tide of xenophobia. From Sudan to Ukraine, from Haiti to Myanmar, a record number of people are on the run for their lives while support is dwindling. The new host country is put in an especially bad position if the government deporting the immigrants is claiming that the detainees are violent criminals, even if everyone knows this is highly unlikely to be true. Domestic politics make the optics very difficult to absorb without damaging the government welcoming these immigrants. In some cases, the third country deportations are due to people refusing to return to their home country voluntarily and U.S. legal restrictions on being able to force them to go. At other times, the receiving country itself will not take unwilling nationals back. So third party deportations are likely to involve immigrants who do not want to go and countries that don't want them. How will the US Administration make it happen? By bribing or bullying the third country into accepting people. So how do you actually encourage a third country to accept immigrants? Well, if the bribe is big enough and the country is poor enough, that might suffice on its own. It really depends on the country. And these agreements have been really secretive in nature, so we don't know the exact details. If the US doesn't require any guarantees of safety for the people involved, perhaps the incoming immigrants can be trafficked or forced into indentured labor for the benefit of those involved. Or perhaps a country will be willing to do the US a favor by detaining them if the US Is willing to do a political favor in return. And keep in mind that since February, the Trump administration has already been sending or making plans to deport immigrants to a variety of third Panama, Libya, Rwanda, El Salvador, and South Sudan. What do nearly all of these places have in common? They further the government's attempt to instill dread in those it wants to target and to use public terror as a tool to appear brutal and omnipotent to noncitizens and citizens alike. Enjoying seeing noncitizens brutalized is part of the administration's public relations outreach to its base. But introducing this kind of terror also suggests to US Citizens that crossing the government's descent into violence against immigrants is dangerous to do. Trump has already mentioned to El Salvador's President Bukele that he has some interest in sending U.S. citizens to the prison there. Homegrowns next. Homegrowns. You get a little about five more places. Yeah. All right. Secretary of State Marco Rubio mentioned that Bukele had brought up the possibility in conversation with him. We spent over two and a half Dos Oro Jimenez, my home, end of two and a half to three hours with my friend, then President Bukele and his team. And then we had some time. Privately. He has offered to house in his jails dangerous American criminals in custody in our country, including those of U.S. citizenship and legal residence, before another official followed up to clarify that the option was not currently under discussion. It's clear that these detention projects are meant to be gray around the edges in terms of what categories of people can be detained and deported and where they can be sent. In fact, we know that in any large scale operation, U.S. citizens can and have been swept up by accident. Being able to rush the process is likely to lead to both unintentional and deliberate errors. The deportations were a turning point. Those who had managed to survive them had experienced a shattering trauma. Most gradually understood that no one was safe. Recall the night and fog operations conducted by the Germans in the Nazi era, by the French in Algeria in 2018. France admitted that during the war, France passed laws which allowed forces to detain suspects and systematically torture them by South American dictatorships in the 1970s and 80s. Torture and murder some of these political exiles to basically send a clear message to exiles and refugees that wherever you go, you are not going to be saved. And by the US itself. In the war on terror after 9 11, there were enhanced presidential powers to detain, render, interrogate, wiretap. So often in history, when you allow extreme measures to be carried out on opponents that a government labels as terrorists, the latter simply eventually designates a larger group of people as terrorists in order to punish others that they don't like. We're not very fond of releasing terrorists into our country. We are already seeing this expansion in the area of immigration. Hundreds of thousands of people here legally with temporary protected status saw that status revoked earlier this year under the first Trump administration. They were very Aggressive in saying, if you have tps, we're not going to keep extending it. You need to go home, it's over. Most of those decisions got held up in court because they were found to have violated the laws governing how you can make decisions like that. They weren't considering conditions in those countries. They were just saying, no, we don't want them. Send them home. This is even more aggressive than that. We've seen the shocking arrest and detention of foreign students for what appear to be merely political opinions that they've expressed. I just want to go back and just continue the work that I was already doing advocating for Palestinian rights. A speech that should actually be celebrated rather than punished. Two things are clear from this. Firstly, the denigration of immigrants for nearly a half century via competitive attempts between both parties to not be seen as weak on border policy has allowed a very concrete dehumanization that is now being exploited to commit horrific human rights abuses. Secondly, immigrants are only one group of people the administration would like to treat this way, even if it does not yet have the means to move against others. But no, if it's a homegrown criminal, I have no problem. Now we're studying the laws right now. Pam is studying. If we can do that, that's good. So I just want to look at a prior instance of this third nation detention and how it's happened before. The US Government has decades of experience trying to get countries to accept those it released without any charges from Guantanamo after holding those detainees without a trial year after year. There are some options for the US Government. One is to transfer individuals to military bases overseas in compliance with their legal and constitutional obligations. The second is to transfer them to governments. Those negotiations were an arduous process and took time even when the US offered certain motivating factors. Which means it's not just a question of deporting people to foreign detention. It's a question of holding them domestically until deals can be made. And this week, the government has introduced the idea of using FEMA money intended for the housing and care of migrants, to imprison them instead at what is being referred to as Alligator Alcatraz, a facility to be built in the Florida Everglades. Florida's attorney general claimed that security expenses will be low because alligators and pythons are endemic to the region. And while the newly announced facility could be up and running in just days, several groups are fighting to shut it down. All this recalls nothing so much as the Arctic Siberian camps of the Gulag, in which guards could be lax because across mile after mile of ice and snow. How could escapees possibly survive? This practice, often called internal exile, would uproot millions of families and change the face of the USSR forever. By the 1930s, the Gulag system consisted of hundreds of internment and forced labor camps extending from European Russia to Siberia. As many have noted this week, it's fascinating that the government will use FEMA money for the Florida detention facility because in right wing conspiracy theory circles for years, FEMA camps were always the supposed means by which President Barack Obama was somehow going to create domestic concentration camps. In terms of Monday's ruling, it's worth looking at another place where this has happened before. Most notably when Australia imposed draconian measures on immigrants arriving by Sea in 2001, Australia set up financial agreements for offshore immigrant detention not in Australia, but on the outposts of Manus island in northern Papua New guinea, as well as the world's smallest island nation, Nauru. There was insufficient water supply and sanitation there in Nauru. At the detention facility, the conditions were hot and humid, also saying that there was inadequate health care and so almost all of them suffered in terms of their physical and mental well being. Australia left immigrant detainees in horrific conditions for years, leading to suicidality and violence. Thousands of case reports of physical abuse and sexual assault recorded by detention staff were leaked to the press. And those are just the things that we know about the facility on Nauru is still open. Earlier this year, Australia's policy was condemned by Amnesty International and the United Nations Human Rights Committee reiterated its earlier stance that Australia remained responsible for any abuse or harm done to detainees it offshored at Nauru. These decisions send a clear message to all states. Where there is power or effective control, there is responsibility. The outsourcing of operations does not absolutely states of accountability. Offshore detention facilities are not human rights free zones for the state party. But if we want to step back and look for a minute at the bigger picture, although it's true that Supreme Court rulings have greater and more final effects, these kinds of adverse court rulings have been the anomaly. And if we recall that, I think it helps us keep in perspective that the courts have actually been trying to protect us. I would say at this point, far more than Congress. Since Trump's return to office, the courts have on immigration cases mostly provided sound legal interpretations that preserve individual rights and respect case law. When the administration has been defiant in terms of the courts, judges have acknowledged that that government lawyers or administration officials did not appear to be operating in good faith on immigration policy. The courts traditionally give the executive A lot of deference, but they've been withdrawing that deference where it's proved unwarranted and have issued some pretty stinging rulings. But the lower courts, too, like us, are up against a corrupt scotus. Despite Monday's ruling, though, I would argue that five months of support from the lower courts have brought documented and undocumented Americans time. It has likely held more aggressive legislation at bay, at least temporarily, where more Republicans in Congress could not be sure what would be interpreted as constitutional. The Trump administration has taken all these executive actions, but they're not changing U.S. immigration law. Yes, they're pushing the boundaries, but at the end of the day, only Congress can actually change immigration law. It has bought us five months in which the administration has proceeded recklessly, but not as violently as it could have if it would have been sure at an earlier point that SCOTUS would back rendition to third countries. Those five months have been invaluable. Remember, it was only June 14, less than two weeks ago, that Trump was watching his miserable birthday parade while millions of Americans showed up to defy him in the streets. We have begun to link together with one another in ways that let us know we're not alone and that we have power. As we follow the stories of the success of smaller efforts, such as protesters gathering at Dodger Stadium, pressuring ownership to to refuse use of its lots as a staging area for ice, people are coming together and have begun to realize what we're capable of on a bigger scale. It's not a given by any means that we can prevent or roll back all these harmful policies, but we have enough people committed to the effort that we can have real effects on what happens next. Still, we need millions more people. The larger the number of people we bring aboard nationwide, the more we can accomplish. I'm thinking of a woman Monday night who wrote to me to say none of it would do us any good if SCOTUS was against us. I told her that wasn't true. We're in a hard place, for sure, but every delay, every signal that what SCOTUS is doing corrupt every ruling. Asserting the actual rule of law and due process by lower courts is helpful. When every life is worth saving, every toehold matters. It's been said often that unlike the executive branch, the courts have no army. And I've said before that we are the court's army. That's us. And while the lower court decisions help give additional moral weight to public actions protecting immigrants, the truth is that we are our own army, too, in terms of the power of government which ultimately is vested in us. Though several negotiations are surely in process, it will take time to work out the deals to push third countries to to accept deportations. Which means the current backlog and overcrowding already underway is likely to get worse. You may even remember it. Earlier this month, these detainees spelled out SOS on the basketball court in protest of conditions and deportations. In recent months, Democratic lawmakers visited the center. They have been vocal critics of conditions at the center in the wake of overcrowding and detainees deaths in South Florida. In January and February, two men died after they had been detained at Crome. What can we do for those in detention in the US in conditions we regularly hear about as horrific? We can connect with groups representing people or helping families of those detained. We can write opinion pieces for local newspapers or organize social media campaigns, especially those that will reach people who don't already know about the crisis or those who don't agree with you. Make flyers to distribute in public areas about dangers facing immigrants in your community. Just last weekend, more than 100 people protested the reopening of an immigrant detention facility in Lake County, Michigan. I don't think anyone should be able to make a profit off of human trafficking throughout our state. Find out what facilities are near you and see if anyone is already making these same kinds of moves. Keep these things in the public spotlight. Eric Lamponen is with the Manistee County Democrats. He says he and others formed a coalition to organize a protest against the Geo Group, a company that runs private prisons across the country, including the North Lake Correctional Facility. When people really know what's going on, they won't support these policies. It's good for us to be here. I think it grounds us in our convictions to be here. So fight bills like those introduced by Marsha Blackburn, including her Protecting Law Enforcement from Doxxing act, which would allow agents to keep anonymous while they carry out their inhumane work. But there are quieter things to do as well. If you've ever imagined that you would have hidden Jews in your attic In World War II, I encourage you to think about what kind of roles might be available to you today. Getting involved with local programs, helping immigrants, or barring that, if you're in a deep red region, finding local churches where immigrants gather or reaching out to teachers at schools where there are large immigrant populations might help you to connect to these communities and find out what they feel their current needs are. There are a lot of public roles to take, from legal aid to supporting literacy, work and English as a second language programs for adults and children to babysitting while parents meet with legal staff, to volunteering to process information for nonprofit or local volunteer groups overwhelmed with requests. And in time, there may be private roles to take too something closer to that imagined World War II situation. But right now is the time to connect to the communities in need to build those relationships and understand what's required and what's possible at any given time. The truth is, we are much less likely to ever need to do that Hollywood movie drama stuff. There is usually so much more that can be accomplished by doing the right thing in our communities, by reaching out to people day to day. But you'll only know how you can fit in on the ground if you show up and start helping. And people will only know they can count on you if you already have a connection to them. What are you doing today to show you're one of the good guys? The sign that jumped out to me was the person not far from me on the road had a sign that said what is your conscience saying? And that should lead us to change. And that's it. Thanks for listening to Next Comes what? Please share this with anyone who's looking for ways to help each other survive this mess. To support this podcast, Please subscribe@Andreapitzer.com and consider giving Next Comes what? A five star review where you get your podcasts. Our goal is to keep this utterly free and we hope that we'll use it and that you will find ways for it to be helpful for you and keep you motivated and keep you going. But if you do have the means, I encourage you to become a paid subscriber and you can do that@Andreapitzer.com and just go to the newsletter link which is in the first paragraph of the home page, and you can sign up from there. Thank you for listening and thank you for watching.