Yesterday a Federal Judge Nancy Brasel (a Trump appointee) ruled that the Trump Regime has violated the Constitutional right to access counsel for thousands of people rounded up in immigration raids and held at the Whipple Federal Building near Minneapolis. You can read the decision HERE.
That the detainees had a Constitutional right to counsel was undisputed and conceded by DHS. The 5th Amendment grants due process rights to “any person,” whether citizen or not. The Supreme Court is clear on this. “It is well established that the Fifth Amendment entitles aliens to due process of law in deportation proceedings.” —Reno v. Flores, 507 U.S. 292, 306 (1993). This principle was upheld again by the Supreme Court last year in the Abrego Garcia case.
The Trump Regime’s defense amounted to “we’re doing the best we can.” DHS argued that given the scale of the operation that complying with the United States Constitution is just too darn hard.
The judge did not accept this excuse. The judge notes that despite DHS’s claims of best efforts to ensure access to counsel that the evidence shows DHS’s “policies and practices at Whipple all but extinguish a detainee’s access to counsel.” The judge spends a fair amount of ink detailing the evidence and practices involved. I wish MAGAs would read it. The denial of undisputed Constitutional rights is beyond doubt, and horrifying.
As for the Regime’s excuse that complying with the Constitution is too hard, Judge Brasel was unsympathetic: “Defendants chose to operate a detention facility, so they must meet constitutional standards.” The judge pointed out that DHS devoted plenty of resources to rounding up those detained and “cannot suddenly lack resources when it comes to protecting detainees’ constitutional rights.” Citing and quoting another case involving this Regime Judge Brasel declared:
“Defendants may not properly choose a facility that is unfit for a particular purpose and then use the inadequacies of the facility as a justification to deprive detainees of meaningful, confidential access to legal counsel to the extent demanded by the Constitution.”
Quite simply, failing to plan for ensuring Constitutional rights is the government’s problem.
“It appears that in planning for Operation Metro Surge, the government failed to plan for the constitutional rights of its civil detainees. The government suggests—with minimal explanation and even less evidence—that doing so would result in ‘chaos.’ The Constitution does not permit the government to arrest thousands of individuals and then disregard their constitutional rights because it would be too challenging to honor those rights.”
Judge Brasel ordered nearly five pages of sweeping remedies. They amount to requiring the Regime to give detainees generous access to phones to call their attorneys, allowing attorneys to meet in person with their clients at the detention facility, and restricting the practice of DHS moving detainees from location to location to make it more difficult for attorneys to contact their clients. A status conference is set for February 24th to review the government’s compliance with the judge’s orders.
This judge did not address what other judges have suggested might be the easiest and best solution. Not all of these people should even be detained. As I previously noted, federal judges in Minnesota are fed up with DHS’s defiance of orders to release hundreds of detainees after habeas corpus review. Putting these cases together, the Regime is using unconstitutional mass incarcerations to justify unconstitutional denial of due process. Most of these people could be released pending their deportation proceedings, and they should be.
