CLANDESTINO

How ICE disappeared one man for 36 hours and deleted the court record of our efforts toward his release

Perdido en el corazón [lost in the heart]
De la grande Babylon [of the great Babylon]
Me dicen "el clandestino" [they call me ‘the clandestine’]
Por no llevar papel [because I don’t carry papers]

—Manu Chao, “Clandestino”

ICE probably disappeared a lot of people today, but all I can tell you is as much as I know about one of them.

I have been hearing that word “disappeared” used a lot recently in reference to ICE actions, and honestly it can hit like hyperbole until I remember that most people in this country aren't already used to cops in regular clothes getting out of regular cars to stop regular people in the street and take them in cuffs with no criminal charges on the table. It's actually been good for me to remember that these are disappearances, because yes--it is totally unreasonable to drag somebody who is already about to be ordered released by a judge on bond two time zones away. That is just a manifestly fucked up thing to do to someone who should be playing with his five-year-old son tonight.

It's been years since I was really angry about it, like actually mad. It's been an ambient kind of rage for so long, but the moral clarity of enough strangers I can I trust truly seeing it for the first time has been refreshing honestly. I have to appreciate that in all of this.

Anger and love are both verbs, and I think Manu Chao knows this better than most people. If you know a Manu Chao song, it is “Me Gustas Tu,” which is just really just a dittified list of things that Manu Chao loves. (You'll be glad to know that you make the list, although cinnamon, wind, chestnuts, and the nation and people of Guatemala all make their own appearances too.) But “Clandestino” is his best song, and also probably the best song ever written about irregular migration. It's a beautiful piece of art, but like most good art there is real anger just behind it.

In the video above (which you really should watch now), Chao plays his song about how the global North oppresses and persecutes the strangers among us in front of one of the most infamous places in the country where that has happened most publicly: then-Sheriff Joe Arpaio's Maricopa County Jail.

Joe Arpaio once sued the New York Times for $143 million for publishing an op-ed in which he was called out as (among other things) “a sadist masquerading as a public servant.” He lost, because of course that has always been true. He was MAGA before MAGA, making a public career out of being as cruel as possible to the people Maricopa County voters entrusted to his care. Pink jumpsuits, outdoor sleeping arrangements in the Arizona summer heat, and just all around low-key torture were what made Sheriff Joe's life worth living. (Or is that “make”? I have rarely cared less if someone is alive or dead, and I'm not going to check.)

Joe Arpaio was the first person ever pardoned by Donald Trump, which is really just perfect because Arpaio elevated racism to an actual crime. He was so psychologically addicted to racially profiling Latinos that he was facing a sentence for criminal contempt of court because he just wouldn't stop doing it even when a federal judge directly ordered him not to. Seven months into his first term, this was the guy Trump wanted to be sure came out okay: a fellow authoritarian racist who put his heart into his performative cruelty, except not so much his heart as the bulging plastic sack of rancid dogshit packed in where his heart should be. If Arpaio is still alive--a fact to which, again, I really do find myself to be completely indifferent--he must really be enjoying our current moment in the worst way.

I made a lot of calls today. Navigating phone trees is a big part of the job, and as with so many other customer service experiences the people you reach are not usually the ones you most need to speak with. It took awhile, but I learned some things.

The precis here is that my detained client presented a very easy bond case in immigration court: no record other than once driving without a license before MA offered them to everyone, people depending on him, and strong community ties. (In times past ICE might have even just released him on a decent amount themselves without waiting for a judge, but those are long past.) He was detained in Plymouth (yes, that Plymouth), and scheduled for a bond hearing Monday morning with a lot of supporters who were ready to log in to join. But it never happened.

They never brought him in, and he and the entire bond case disappeared and his name was changed to “N/A” in the system just before it was deleted.

I still haven't been able to talk to him, so I don't have an exact timeline of events yet. But all I know is that the immigration court clerk's office told me that this has been happening and the circumstances in which it has been observed. The best I can piece together so far is that there is some kind of glitch--or perhaps it is less a bug than a feature--which now erases the bond record when ICE changes the location where it intends to file the removal proceedings. (Removal and custody review are handled on separate records.) No matter what it is, all I know so far is that there seems to be a way that ICE can feint initiating the removal proceedings with some kind of placeholder which destroys the existing bond case when it is changed or removed.

The real takeaway here is that ICE can delete pending bond cases in immigration court, and I need to know who gave them this power and why.

I'm still waiting for answers on the technical question here, but I should mention that I do know that ICE's systems were somewhat integrated with the immigration courts so that they could initiate cases more easily, but it was not my understanding that they could simply delete an entire bond case as if it never happened. (The clerk's office was adamant that it was not and would never be them who would ever do that, and I believe this.) I can't fully explain the game yet, but I can see how it's playing out.

I am not the first person to warn that ICE is building a true American Gestapo, a unified federal force accountable only to one man which has normalized dominating state and local authorities to bully and disappear people. In the name of anything that is still holding this country together we absolutely can't give these people the 45 BILLION they are looking for.

This is what I have always believed, and I am now prepared to be among the first people sent to prison for saying it. That's where all of this is going, and where it has inevitably been going for more than nine years now.

ICE agents are now wearing hoods and masks when they abduct mild-mannered graduate students for the same reason that bank robbers do: they know it's wrong, and they don't want to be held accountable for what they are doing. The popular sentiment has rightfully turned so hard against them that there will be some dumbass act of violence sometime within the next three years which will give them the Reichstag moment they need to start prosecuting their critics as “terrorists.” I fully expect this to happen, and for the benefit of the US Attorney who is now reviewing my public statements looking for material support for terror sometime in the coming years let me say now that I fully condemn it in advance. (And I do mean that. I am personally committed to nonviolence as a way of life, but also healthcare CEOs are a very different thing from a massively overfunded police force which already knows how to throw people into unmarked vans.)

Anyway. My day has all unfolded within hours of the Supreme Court normalizing the Presidents’s right to call some people in this country “enemies” and forcefully remove them to a hell which the government now argues in open court it has no way to return them from, so it’s all feeling a little too on point after watching them disappear someone in front of me.

As Justice Ketanji Brown Jackson noted in her dissent, the court went pretty far out of its way to resume the use of the Alien Enemies Act of 1798 well before it ever had to as the litigation against it was on its way up. No real briefing or argument, just a reversal of a TRO which wasn’t really even supposed to be appealable in the first place.

It has to be one of the most directly consequential uses of the Supreme Court’s shadow docket to date, and Sotomayor and Jackson were right to condemn it as forcefully as they both did. Justice Sotomayor was also especially correct to point out that we are now well down the path that the world's most lawless regimes have already trod toward institutionalized disappearances to far-flung gulags for anyone who gets in the way.

This is already the kind of clear, simple language I have always loved Justice Sotomayor for, but this might as well have been a full paragraph of red siren emojis. She is directly—and correctly—implicating the majority as enablers of American fascism, and between this and her scathing "dissent in the Presidential immunity case last July she has more than earned her place in history as the highest-ranking judicial Cassandra of our times.

We only confirmed a few hours ago for certain that my client is now in New Mexico, more than 2200 miles from his family and where he was being held the day before. My working guess is that there is some kind of AI advising the system on how to best use its free bed spaces, but it's just as likely that are thoughtless people behind these thoughtless decisions in service of a thoughtless regime which is actively doing us all harm.

45 billion dollars is going to create an immigration enforcement infrastructure which most of us will notice in our everyday lives. It will make us a fundamentally different and vastly worse country, and when they have run out or scared off the most vulnerable non-citizens Justice Sotomayor¹ is absolutely right to warn that the Department of Homeland Security will inevitably turn on the rest of us.

Both of the worst mass deportation campaigns in US history were carried out during bad economic times: the Mexican “repatriation” during the Depression and Operation Wetback in the early 1950s. By the time that DHS has moved on from enemies foreign to enemies domestic, we will be actively in or struggling to pull ourselves from an artificial economic disaster. I have at this point no choice but to believe Donald Trump about when he said more than 20 years ago would be the best way to get people rioting in the streets and get us started in rebuilding from the ashes.

It's at the door, and we all have some hard decisions coming whether or not you are now ready to see it for what it is. Don't feel like you have to hold back your anger, but also do everything you can in your life to see and nurture and live in love. I saw both in this weekend's protests, and I know that we have the numbers, the people, and the righteous cause of actual justice in a way that can get us through this--because it has to, even if it won't be in this generation, and there is no one else coming to do it for us.

1. Extra credit to Fourth Circuit justice Stephanie Thacker, who recently issued a similar warning in her outstanding denial of the government’s request for a stay of district court judge James Boasberg’s order to return Kilmar Abrego-Garcia. “This is,” she wrote, “a slippery -- and dangerous -- constitutional slope. If due process is of no moment, what is stopping the Government from removing and refusing to return a lawful permanent resident or even a natural born citizen?