What If the Supreme Court Lets Them Disappear?
DISAPPEARED: A Nation on Trial — Part Three. While the Court delays, ICE vanishes men across borders — and dares the Constitution to stop them.
“To sin by silence, when they should protest, makes cowards of men.”
— Ella Wheeler Wilcox
“Never forget that everything Hitler did in Germany was legal.”
— Martin Luther King Jr.
A Justice Deferred
They were flown out on May 20.
Men from Myanmar, Cuba, Laos, Vietnam, and Mexico. All of them detained by ICE. None of them ordered removed to South Sudan. But that’s where ICE intended to send them. No warning. No hearing. No credible fear interview. Just a chartered plane and a sudden disappearance.
The law was supposed to stop this.
Back in April, Judge Brian E. Murphy ordered the U.S. government not to remove people to a third country (any country not named in their deportation orders) without first giving them a meaningful chance to express fear. A chance to say: if you send me there, I could die.
ICE did it anyway.
Six days later, Judge Murphy issued a second order. Not to bring the men back. But to require the government to finally conduct those long-overdue interviews, if the government still planned to send them to South Sudan.
But what about our client? The man from Myanmar?
ICE now claims he was never headed to South Sudan at all. They say he’s being returned to Myanmar, the country on his original removal order. Which, if true, places him outside the protections of Judge Murphy’s April ruling.
But that doesn’t make it any less dangerous.
This same government, this same agency, put his name, photograph, and criminal history in a national press release. A press release that was broadcast to the world. Including to the junta that controls Myanmar. Including to the military regime that routinely jails, tortures, or disappears perceived dissidents and criminals. Including to people who now have every reason to believe that when he steps off the plane, he’ll be a marked man.
Even if ICE is following the letter of its own removal orders, it has placed him at extraordinary risk. Not just from the flight path. From the spotlight.
This is exactly the kind of situation the Convention Against Torture was designed to prevent: where someone’s repatriation, combined with a new and dangerous public exposure, could get them killed. And yet ICE has given no indication that it has conducted, or will conduct, any review of whether sending him to Myanmar under these circumstances violates that treaty. Or violates our Constitution.
The Supreme Court has said nothing.
Their silence hasn’t stopped the harm. It has enabled it.
Because while we wait for a ruling, the men are already gone. ICE says they’re in Djibouti. That’s the last known point. The rest, we’re left to guess.
Not theory. Not policy.
Lives.
The Question Before the Court
The MAGA regime didn’t wait. But now it wants permission.
On May 27th, the Department of Justice asked the United States Supreme Court to stay Judge Brian Murphy’s May 26th order, an order that would require ICE to give people a meaningful opportunity to express fear before being removed to a third country not named on their removal order. Justice Ketanji Brown Jackson is currently reviewing the request. Her response is due Wednesday, June 4th.
The question now pending before the Court is as stark as it gets:
Can ICE remove someone from the country, even if a federal judge has ruled that removal may violate the Constitution, just because the agency moved faster than the courts?
The government’s lawyers argue that Judge Murphy’s order, which affirms basic due process protections for immigrants in ICE detention, intrudes on the Executive Branch’s core authority over the removal of noncitizens. They frame it as a national security matter, a foreign affairs matter, a separation-of-powers crisis. They say the judiciary must stay out of the way.
They do not say what happens if the person being removed is tortured.
They do not say what the government owes someone whose life it’s endangering.
They do not say how ICE deciding to remove someone to a different country than the one ordered by a court is consistent with either law or conscience.
Their position is simple. If the courts don’t act fast enough, their rulings shouldn’t matter.
The executive should be allowed to remove first, and answer questions never.
But this is not a debate about bureaucratic tempo. It’s about whether courts still matter in the United States. Whether the judiciary exists as a check, or just as a footnote, on the President’s power to exile.
What’s Already Happened
We don’t have to imagine the stakes. We’ve already seen them.
In Part One: The Criminal Record Trap, we told you about N.M., a man with a final order to Myanmar. ICE rerouted him to South Sudan. No warning. No interview. No explanation.
In Part Two: Deported for Leverage, we exposed how that wasn’t a one-off. It was part of a pattern.
We’ve now confirmed: the men on that flight included individuals with removal orders to Cuba, Vietnam, Laos, Myanmar, and Mexico. Only one of them had been ordered removed to South Sudan. The rest had no connection to it. One, our client, is believed to have been sent, or is in the process of being sent, to Myanmar, his home country. The only thing they share is that they were placed on a flight together and sent into danger.
And ICE didn’t provide them any meaningful opportunity to express fear of that destination before they left. That’s the heart of what Judge Murphy ordered the government to fix. That’s what the DOJ is now trying to overturn.
This administration has denied attorneys access. Issued notices that don’t meet legal requirements. Ignored court warnings. And then, once the removals are done, shrugged. This isn’t deportation. It’s vanishing with paperwork.
And let’s not pretend this is about safety or order. It’s about power.
In country after country — South Sudan, Equatorial Guinea, Angola — we are seeing ICE’s desired removals track strangely close to America’s diplomatic self-interest. Military deals. UN votes. Oil concessions. Geostrategic leverage.
No one’s admitting it on the record. But too many dots are lining up.
And now the White House wants the Supreme Court to bless it.
To put the highest court in the land on the record: that even when removal violates due process, even when it contradicts what a federal judge has just ordered, ICE can still do it. And the courts should stay silent.
The executive isn’t asking the judiciary for oversight.
It’s asking for immunity.
What the Constitution Demands
The Fifth Amendment does not stutter. No person shall be deprived of life, liberty, or property without due process of law. It doesn’t say unless they’re an immigrant. It doesn’t say unless ICE says it’s urgent. It doesn’t say unless a judge’s ruling is inconvenient to the White House.
It says what it says.
And we have treaties, too. The Convention Against Torture. The Refugee Convention. We signed them. We ratified them. We integrated them into our domestic law. We told the world we wouldn’t return people to face torture. We promised.
Those aren’t bureaucratic details. They’re moral lines.
And yet here we are, watching our own government sidestep the Constitution, violate court orders, and throw its weight behind the idea that if it acts fast enough, the law can’t catch up.
That’s not removal. That’s evasion.
Judges exist for a reason. They are the stop sign when executive power runs red. The brakes when the engine of the state picks up too much speed. Without that, we are not a constitutional democracy. We are a government of adrenaline and secrecy.
Even in wartime, especially in wartime, our courts have ruled on executive overreach. From Ex parte Milligan to Hamdi, the judiciary has refused to surrender its authority to the claim of emergency.
This moment is no different.
The question before us now isn’t just whether ICE can remove someone faster than the courts can protect them.
The question is whether courts still matter at all.
The Quiet Coup
Let’s name this for what it is.
This is not a policy disagreement. This is not a logistical dispute. This is not just about bad paperwork or slow judges or poor communication between agencies.
This is a soft coup by process. A campaign to nullify judicial oversight without saying the words out loud.
They didn’t repeal the Fifth Amendment. They’re just ignoring it.
They didn’t declare martial law. They just stopped following the orders of federal judges.
They didn’t abolish the right to counsel. They just made it impossible for lawyers to reach their clients before they’re gone.
It’s not new. Korematsu. The Palmer Raids. The Bush-era black sites. And in recent years, we’ve seen it metastasize through the “shadow docket,” a term for late-night, unsigned rulings by the Supreme Court that have reshaped immigration law without explanation or accountability.
It’s happening again. In real time.
If the Court rules for ICE — or worse, refuses to rule at all — what will stop this from becoming the new normal?
What will stop the executive from deciding, case by case, who deserves access to justice and who doesn’t?
Who gets a hearing, and who gets a plane ticket?
Who stays, and who vanishes?
A Court Without Courage
By the time you read this, the Supreme Court may have ruled. Or it may still be silent.
If they’ve granted the government’s request, if they’ve stayed Judge Murphy’s order, then the highest court in the land has just told us that speed outranks due process. That constitutional rights are optional. That ICE gets to choose what law means, and when.
If they’ve denied the request, we owe them thanks. But not relief. Because it should never have taken this much outrage to stop something so plainly unlawful.
And if they haven’t ruled?
That silence has weight. That silence is a ruling. A non-decision that carries real consequences for real human beings. A signal to the executive branch: act fast, act first, and the law will struggle to catch up.
We see the cost already. People like Kilmar Abrego García, disappeared from detention without explanation. Groups of men flown to nations not named in their orders. Our client, facing return to a dictatorship with his name and photo broadcasted by the U.S. government for all to see.
The cost of delay is not hypothetical. It’s not procedural. It’s not political.
It’s human.
The moral cost is staggering. The constitutional cost, greater still.
Because if this Court lacks the courage to defend its own orders, if it won’t stand between a person and an unjust removal, then who will?
And if the answer is no one, then we are not waiting on justice.
We are witnessing its erasure.
The Verdict Belongs to Us
Whether the Supreme Court rules by next week or hides behind the cloak of delay, the responsibility no longer rests on their shoulders alone.
It rests on ours.
We do not need a black-robed permission slip to name what we’ve seen.
When a government bypasses the courts and vanishes people into secret flights, when it shuffles them like contraband between holding cells and foreign airstrips, when it strips them of counsel and process and truth, we have a word for that.
Disappearance.
It is a tactic of authoritarian regimes. A tool of control. A warning to everyone else: You could be next.
It is not just a legal violation. It is a moral line, crossed.
We have a duty now.
To resist this in every venue that still has breath: in courtrooms, in headlines, in policy meetings, in congressional offices, in street protests, in organizing calls, in vigils, in letters, in sermons, in classrooms, in campaign platforms, and in every quiet conversation where someone says, “This can’t be happening here.”
It is.
But it doesn’t have to continue.
This moment is not just about men on flights or judges on benches. It is about the soul of our legal system. The future of our democracy. The meaning of justice itself.
We can’t look away. We won’t.
The Court may deliver its ruling.
But the real verdict belongs to us.
And history is watching.
Now It’s Your Turn
We can’t wait on the courts. We can’t wait on Congress. We can’t wait for someone else to sound the alarm.
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