BREAKING: South Sudan flight violated court order, judge says
A federal judge left arguments about whether the violation was criminally contemptuous for another day.
Editor’s Note:
Kristi Noem says habeas corpus gives the executive the power to expel people. That’s wrong and Medieval — the early part of the High Middle Ages to be exact, before King John was forced to sign the Magna Carta in 1215.
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The Trump administration violated an order by sending immigrants to South Sudan, a human rights abusing and war-torn country that none of them are from.
“It was impossible for these people to have a meaningful opportunity to object to their transfer to South Sudan,” U.S. District Judge Brian Murphy said in court, calling the notice provided to the men as “plainly insufficient.”
“The Department’s actions in this case are unquestionably violative of this court’s order,” he continued, adding that questions of criminal contempt can wait until another day.
Judge Murphy called the emergency hearing after immigration attorneys reported on Tuesday that two of their clients — a Burmese national identified as “N.M.” and a Vietnamese citizen “T.T.P.” — were sent to South Sudan for reasons unknown and without giving them an opportunity to seek protection under the Convention Against Torture.
Shortly before the hearing, the Department of Homeland Security released the names and photographs of many of the men on the flights, including named plaintiffs Nyo Myint and Tuan Thanh Phan. The government then told the court that information about them was too sensitive to disclose in open court.
“Not one of those hard cases”
Judge Murphy issued the order at around 12:45 p.m., the earlier part of a hearing that that stretched from 11:30 a.m. to 4 p.m. Eastern Time. His scathing remarks about the government’s “obvious” violation of his order set the tone.
At one point, Murphy also suggested that a government official may committed perjury.
“It is a really big deal to lie to a court under oath… I could not take this more seriously,” he said.
The judge saved inquiries into possible criminal contempt and an evidentiary hearing for another time, but he spent the remainder of a hearing discussing a remedy.
In a written memorandum following the hearing, Murphy made clear that it wasn’t a close call to find the notice that government provided inadequate.
“To be clear, this is not one of those hard cases,” Murphy wrote. “Giving every credit to [the government’s] account, the non-citizens at issue had fewer than 24 hours’ notice, and zero business hours’ notice, before being put on a plane and sent to a country as to which the U.S. Department of State issues the following warning: “Do not travel to South Sudan due to crime, kidnapping, and armed conflict.”
According to court documents, an attorney for “N.M.” received a notice that his client was served with a notice of removal read to him in English, a language he does not understand. “N.M.” refused to sign the document, and the notification stated he would be transferred to “South Africa.” The actual destination, the lawyer learned, was South Sudan. Attorneys later found out that “T.T.P.” suffered the same fate.
The Trump administration sent at least 12 immigrants on these flights, and roughly half of those are the subject of the judge’s narrowly tailored order. For now, Murphy did not order the return of the flight, which landed earlier this morning in Djibouti, according to the New York Times.
That is where federal authorities must conduct “reasonable fear” interviews to establish whether the men will be persecuted in South Sudan.
In a subsequent ruling, Murphy ordered the government to provide the men with right to counsel, interpreters, telephones, and confidential communications “commensurate with the access they would receive were they in DHS custody within United States borders.”
“Full-blown and catastrophic civil war”
In a 17-page legal brief filed on Tuesday, the immigrants’ lawyers provide the geopolitical and history backdrop that makes the Trump administration’s actions so egregious.
“The world’s youngest country, South Sudan descended into civil war just two years after its independence in 2011,” the brief states. “A 2018 peace deal, long flawed, finally collapsed this week, with the result that Defendants are flying N.M. into a country that is now returning to full-blown and catastrophic civil war.”
“Conditions in South Sudan have long been poor and dangerous even for the South Sudanese: the country is the source of one of the most significant refugee crises on the African continent, with 2.3 million of its own nationals currently refugees or asylum seekers in neighboring countries and an additional two million internally displaced,” it continues.
The Trump administration claimed that they had interpreted Murphy’s previous injunction as permitting the flights to South Sudan, but the judge easily brushed that assertion aside.
“As detailed on the record during today’s hearing, further facts regarding the unavailability of information, the hurried and confused notice that the individuals received, language barriers, and attorney access compound and confirm this Court’s finding that no reasonable interpretation of the Court’s Preliminary Injunction could endorse yesterday’s events,” Murphy wrote.
CORRECTION: A previous version of this story mistakenly stated that a federal judge made a finding about the return of the flight. The judge ordered the government to perform “reasonable fear” interviews of the men on the flight to establish if they should be sent back to the United States.
As a voracious watcher and reader of movies and books with a current political element, Watch or Read “Seven Days in May”
Or thoughts on this (from Robert Reich substack): “No court of the United States may use appropriated funds to enforce a contempt citation for failure to comply with an injunction or temporary restraining order if no security was given when the injunction or order was issued….”
Translated: No federal court may enforce a contempt citation.
Obviously, courts need appropriated funds to do anything because Congress appropriates money to enable the courts to function. To require a security or bond to be given in civil proceedings seeking to stop alleged abuses by the federal government would effectively immunize such conduct from judicial review because those seeking such court orders generally don’t have the resources to post a bond.
Hence, with a stroke, the provision removes the judiciary’s capacity to hold officials in contempt.
As U.C. Berkeley School of Law Dean and Distinguished Professor of Law Erwin Chemerinsky notes, this provision would eliminate any restraint on Trump.
‘Without the contempt power, judicial orders are meaningless and can be ignored. There is no way to understand this except as a way to keep the Trump administration from being restrained when it violates the Constitution or otherwise breaks the law. …
‘This would be a stunning restriction on the power of the federal courts. The Supreme Court has long recognized that the contempt power is integral to the authority of the federal courts. Without the ability to enforce judicial orders, they are rendered mere advisory opinions which parties are free to disregard.”