- “No person . . . shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law . . . .” US Constitution, Amendment 5 (part of Bill or Rights).
“Nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” US Constitution, Amendment 14, Section 1, written in the blood of the estimated 620,000 Americans, on both sides, who died in our Civil War.
Both the word and the concept of “gulags” are Soviet Russian inventions. The term is an acronym for “главноеуправлениелагерей” (glavnoye upravlenie lagerei), which means the “chief administration of (corrective) camps.” Eventually, it came to refer to the individual camps themselves.
These camps were and are isolated prisons, mostly in the frozen Russian Arctic. Escape from them is virtually impossible, due to their remoteness from civilization and the surrounding hostile climate and weather conditions. The German word “lager,” meaning “camp,” was derived from the similar prisons in Nazi Germany, which used vast “concentration camps” for war prisoners, undesirables and persons condemned to death in the Holocaust during World War II.
Whatever their precise names, all these camps had two things in common. First, their purpose was to isolate, immobilize and marginalize people deemed criminals or “undesirable” by a despotic regime, until they died of disease, hunger, mistreatment or hard labor, or until they outlasted their sentences and/or their political threat. Second, the gulags were mostly lawless places, designed to confine people at the whim of tyrants and their military governors, without due process of law, in places mostly inaccessible to the prisoners’ families, inquiring journalists, international media, and legal counsel, if any.
Until our new century, the United States of America never had a gulag, although the infamous Andersonville Prison run by the traitorous Confederacy might have fit the mold. But since the turn of the century, we have seen two attempts to create American gulags.
The first was a creation of George W. Bush, as President, in the aftermath of the 9/11 Terrorists attacks. He and his administration tried to create an American gulag “abroad” as part of our low-rent military base at Guantánamo, Cuba (“Gitmo”). That would-be gulag was designed to serve as a “Constitution-free” zone for interrogation (some might say “torture”) of suspected participants in those terrorists attacks, as well as for foreign soldiers and fellow-travelers captured in the wars of revenge that President Bush the Younger started in Iraq and Afghanistan.
Unfortunately for the Second Bush Administration, our Constitution then still had teeth. In 2008, in the case of Boumediene v. Bush, the Supreme Court upheld the rights of Guantánamo detainees to habeas corpus in federal courts. But no appeals court has yet established more general due-process rights for Guantánamo detainees, leaving the question whether Gitmo is a “legitimate” American gulag still unresolved.
Anyway, even more determined and ruthless minds appear to have been at work. Could we Americans have “our own” gulag if none of us controlled it? That, apparently, was and is the impetus for the dark deal between the Trump White House and Presidente Nayib Bukele of El Salvador. Enter the gulag for hire.
It is undisputed and indisputable that El Salvador’s gargantuan CECOT prison for alleged terrorists was founded and remains on the sovereign territory of El Salvador. (The acronym “CECOT” stands for “Centro de Confinamiento del Terrorismo,” or “Center for the Confinement of Terrorism,” which expresses the hope of a local tyrant that an abstract noun can be confined by imprisoning people, lots of them.) By shipping people deemed undesirable to this modern, reputedly inescapable gulag in El Salvador, free from American legal jurisdiction, the Trump Administration bids to have its own private gulag after all.
Our Founders had no word processors, let alone the Internet or social media. Unfettered by such distractions, they spent a lot of time debating, drafting, and redrafting the language of our Constitution and its amendments. In the cases of the Bill of Rights and the all-important Fourteenth Amendment, they took special care because all were written in the blood of Americans: the Fifth in the aftermath of our War of Independence and the Thirteenth through Fifteenth even sooner after our Civil War. (Many historians and legal scholars consider the Civil-War amendments a second Founding.)
The drafters of all knew full well the distinction between “citizens” and “persons,” which words appear separately in each of the Fifth and Fourteenth Amendments. Yet in both provisions they granted due-process rights to all “persons,” without regard to age, race, religion, identity group, or citizenship.
Today, the meaning of the quoted language of our Fifth and Fourteenth Amendments is as clear as it was centuries ago when our Founders and the survivors of our Civil War duly added them to our Constitution. By their explicit terms, they grant every human being, insofar as our federal and state governments are concerned, the rights to due process of law, including the right (at least in peacetime) not to be imprisoned without a fair trial by an independent authority, let alone at the whim of individual federal officials, however high.
These rights apply to you, to me, to every citizen and non-citizen in actions by our federal and/or state government. They certainly apply to Kilmar Abrego Garcia, the Maryland resident now reportedly confined in CECOT (by admitted federal mistake) without due process or, apparently, any way to get him home. When and if our government refuses to recognize these constitutional rights, and continues to permit confinement of anyone in a gulag for hire in El Salvador without due process, an important distinction between the USA, on the one hand, and Soviet Russia, Putin’s Russia, Castro’s Cuba, Xi’s China, and Kim’s North Korea on the other will have vanished.