Trump told us the horrifying reason why Kilmar Abrego Garcia is not back in the U.S.

The Trump administration wants to send anyone it wants, including U.S. citizens, to foreign prisons. Keeping Abrego Garcia in El Salvador is key to that lawless plan.

We are approaching one month since the United States illegally sent Kilmar Abrego Garcia to the CECOT “terrorism” prison in El Salvador on the third March 15 flight that took people to the prison.

On Monday, President Donald Trump told us why Abrego Garcia is not back. Abrego Garcia cannot be brought back because his continued imprisonment there — and the success of its underlying claim that the U.S. doesn’t have the authority to bring him back — is key to the Trump administration’s lawless plans to create an outside-the-law prison system to hold anyone it dislikes, including U.S. citizens.

“You know what I want them to do?” Trump told El Salvador President Nayib Bukele as the two walked into the Oval Office. “Homegrown criminals next.”

Repeating it to the others in the room — including Vice President JD Vance, Secretary of State Marco Rubio, and Attorney General Pam Bondi — Trump said, “I said, ‘Homegrowns are next.’ The homegrowns.” adding that Bukele would need to “build about five more places.”

Bukele responded, laughing, “We’ve got space.”

Trump later essentially repeated that to the press, saying, “I’m all for it,“ and adding, “We have others who we’re negotiating with, too.“

This came during the Oval Office meeting when the press was invited in — and where Stephen Miller brazenly lied at length about the Supreme Court’s order in Abrego Garcia’s case and where Bukele called a question about whether he would return Abrego Garcia “preposterous.”

Although there had been suggestions about the use of the prison in El Salvador for Americans previously, and although people had been warning of this possibility, Trump said it outright on Monday.

Everyone — from the courts to Congress to state officials to the public — must take Trump at his word and respond to this plan accordingly.

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The plan

The comments make unambiguously clear the ambition of the Trump administration’s lawless plans — and the reason why Abrego Garcia is not home.

Abrego Garcia was not, we have known, one of the people sent there under President Donald Trump’s proclamation invoking the Alien Enemies Act of 1798. That related exclusively to people who the Trump administration has decided are members of Tren de Aragua, a Venezuelan gang. The government does not claim Abrego Garcia has any connection to that gang. Instead, they argue that he is a member of the MS-13 gang — although Abrego Garcia denies that and the government’s evidence on that front is threadbare.

Aside for all of that, the government is under an order not to send Abrego Garcia to El Salvador. His removal, discussed by government officials as an “administrative oversight,” was illegal.

So, why are we here, and why is Abrego Garcia still there?

As Greg Sargent noted this morning at The New Republic, the Trump administration could bring Abrego Garcia back and seek to deport him under legal authorities as opposed to its current illegal route.

So, why isn’t it doing so?

In the Oval Office comments on Monday, Trump told us.

But, first, let’s go back to April 11. The day after the Supreme Court’s order in Abrego Garcia’s case, Trump said, “If the Supreme Court said, ‘Bring somebody back,’ I would do that.“ That seemed like good news — since that is, essentially, what the Supreme Court said.

But whether Trump was intentionally lying or accidentally being stupid, the truth is that the Justice Department has been arguing that no court — not even the Supreme Court — could say, “Bring somebody back.” That would be intruding on the president’s foreign policy powers, they argued to the justices, claiming that such an order “gravely offends the separation of powers.”

Whatever Trump’s April 11 comments were — and as the Justice Department’s actions (or inaction) before U.S. District Judge Paula Xinis since the Supreme Court’s order show — they were not an end to this.

Which brings us to Monday.

Trump said the plan: The Trump administration wants this foreign prison — and, perhaps, others — to hold many people sent from America, including U.S. citizens.

Importantly, Vance, Rubio, and Bondi did not appear surprised or upset by this news — in fact, it did not appear to be news to them at all. This is — including in terms of how all people must respond to this — the plan.

Trump and his top allies in the administration — including Vance, Rubio, and Bondi — do not like the ways in which U.S. courts have made their authoritarian plans more difficult to implement. Despite the 6-3 Republican-appointed majority on the Supreme Court, Trump policies — even from the Supreme Court — continue to face pushback.

In light of that, it appears that the administration — likely led by Stephen Miller, based on who is and how he performed in the Oval Office on Monday, with a pliant Homeland Security Secretary Kristi Noem helping him — has centered in on an approach to get out from under these pesky federal courts by shoehorning all manner of illegal and even unconstitutional actions into “foreign relations” and beyond the reach of the courts.

This is not hypothetical. The Justice Department made this argument on Sunday.

In arguing what “facilitate” means in the various orders in Abrego Garcia’s case, DOJ lawyers wrote that “requiring something more than domestic measures” would violate separation of powers because it would intrude on foreign relations, which — quoting the Trump immunity ruling — “is ‘conclusive and preclusive,’ and beyond the reach of the federal courts’ equitable authority.”

That filing was signed by Yaakov M. Roth, the acting assistant attorney general of DOJ’s Civil Division; Drew Ensign, the deputy assistant attorney general in the Office of Immigration Litigation; and Ernesto Molina, a deputy director of the Office of Immigration Litigation, and “filed by” Tarra DeShields, an assistant U.S. attorney in Maryland.

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Gitmo revisited

This is the follow-up, one-up effort from two decades ago, when the government sought to prevent detainees at the naval station at Guantanamo Bay from bringing habeas actions.

There, in 2008, the government unsuccessfully argued that “the United States does not claim sovereignty over [the naval station]” — despite having been there “for over 100 years,” under a long-term lease since 1903 — and, as such, those people sent there had no habeas right. The Supreme Court rejected that argument in Boumediene v. Bush, holding that “[o]ur basic charter cannot be contracted away like this.”

The new approach just seeks to go one step further — when it is unquestionably another nation’s sovereignty and it is not land on which the United States is operating. This time, the contract is the agreement between the U.S. government and El Savador’s government to imprison people. Notably, DOJ told Xinis on Sunday that the agreement might be “classified” or subject to the “state secrets privilege.”

All of this, however, is just an argument seeking to manipulate the law. It is not the law and it is not a court’s ruling.

As Justice Anthony Kennedy wrote for the 5-4 court in Boumediene, “[T]he writ of habeas corpus is itself an indispensable mechanism for monitoring the separation of powers. The test for determining the scope of this provision must not be subject to manipulation by those whose power it is designed to restrain.“

And though three of the four dissenters in Boumediene remain on the court — Chief Justice John Roberts and Justices Clarence Thomas and Sam Alito — the Trump administration is right to be concerned that federal courts are more interested in the rule of law and the rights of the people than they are.

Two federal judges — one Trump appointee in Texas and one Clinton appointee in New York — have temporarily blocked AEA proclamation removals in habeas cases filed after the Supreme Court held on April 7 that challenges to AEA-related actions must be brought in habeas.

Outside of the AEA, Xinis ordered the government to “facilite and effectuate” Abrego Garcia’s return, the U.S. Court of Appeals for the Fourth Circuit refused to block that order, and there were no justices dissenting to an order from the Supreme Court upholding Xinis’s order aside from the since-passed deadline and the need for clarification of what “effectuate” means. Xinis moved forward quickly by averting the need for that debate, ordering the Trump administration to “facilitate” Abrego Garcia’s return.

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Where do that leave us?

If we pull apart this past month, the situation becomes alarmingly clear. I believe the Trump administration thought the AEA removals were going to be the easy case — the way the open the door to this lawlessness. These are the “bad guys,” they argued, and this is a peak presidential power that courts review deferentially.

Look at the administration’s actions that day, their rhetoric surrounding the challenge in D.C., and their attacks on Chief Judge James Boasberg.

They expected to get away with it.

From there, they also had non-AEA people ready to go, based on other “authorities.” That was the third flight — the flight that Abrego Garcia, an “alternate” for placement on the flight, end up on.

The plan was that these were people who DOJ could argue were properly removed from the United States — but it would have been slightly different than the AEA-based argument. The Trump administration, however, made a significant error in removing Abrego Garcia to El Salvador. Not only was it an illegal action, it also brought more scrutiny to the subject — in courts and in the public eye — than other cases might have received.

In the meantime, we — and courts — have also seen how unprincipled and process-free the government’s determinations are in many of these decisions, as case after case arises where the government’s determination that a person was properly included on those flights can readily be called into question.

Why do they not bring Abrego Garcia back?

That would, ultimately, destroy the plan.

The Trump administration wants to create a Schrodinger’s box — quite literally, the CECOT prison is that box — where anyone can be sent under an agreement between the U.S. government and El Savador’s government but at which point the U.S. government can claim to no longer have any authority because people within that box are in the custody of a foreign sovereign.

If they can get Abrego Garcia out of the box, the plan does not work.

And Trump’s goal of sending Americans to foreign prisons will have failed. As it must — by way of the administration itself, the courts, Congress, or the people.

Note: This report was lightly edited after publication, but no changes to the substance of the report were made.