As the US government trotted out its latest excuses for illegally trafficking Abrego Garcia to a Salvadoran torture camp, the district court overseeing the case has made it clear that she’s had enough of the government defying her orders. In ȧ hearing followed by an order granting discovery, Judge Paula Xinis has made it clear that she knows the government is defying her orders to help bring Abrego Garcia back to the US, and she’s pretty fed up with their tap dancing and stalling.
At issue is the government’s creative interpretation of what it means to “facilitate” Garcia’s return — an interpretation that seems to consist entirely of doing absolutely nothing while claiming their hands are tied. As Judge Xinis points out, contrary to what the administration has been claiming about the Supreme Court siding with them, it did not. She’s simply enforcing what SCOTUS already said was her right to do:
This Court, in turn, ordered no more than what the Supreme Court endorsed: that Defendants “take all available steps to facilitate the return of Abrego Garcia to the United States as soon as possible,” because bound within this remedy is Abrego Garcia’s “release from custody” and the assurance that Abrego Garcia’s “case is handled as it would have been had he not been improperly sent to El Salvador.”
While the Trump admin, led by Pam Bondi and Stephen Miller, keeps falsely claiming that “facilitate” only means providing him with a flight to the US if El Salvador wants to release Garcia, Judge Xinis systematically dismantles this bullshit interpretation:
Notably, to “facilitate” means “to make the occurrence of (something) easier; to render less difficult.” Facilitate, Black’s Law Dictionary (12th ed. 2024). Merriam-Webster defines the term as “to make easier or less difficult: to free from difficulty or impediment.” Facilitate, MerriamWebster Dictionary,https://www.merriam-webster.com/dictionary/facilitate(last visited Apr. 14, 2025). And the Oxford English Dictionary defines “facilitate” as “[t]o assist (a person); to enable or allow (a person) to do something, achieve a particular result, etc., more easily.” Facilitate, Oxford English Dictionary,https://doi.org/10.1093/OED/5808503853(last visited Apr. 14, 2025). Defendants therefore remain obligated, at a minimum, to take the steps available to them toward aiding, assisting, or making easier Abrego Garcia’s release from custody in El Salvador and resuming his status quo ante.But the record reflects that Defendants have done nothing at all.
Instead, the Defendants obliquely suggest that “facilitate” is limited to “taking all available steps to remove any domestic obstacles that would otherwise impede the alien’s ability to return here.” ECF No. 65 at 3 (emphasis in original). The fallacy in the Defendants’ argument is twofold. First, in the “immigration context” as it were, id., facilitating return of those wrongly deported can and has included more extensive governmental efforts, endorsed in prior precedent and DHS publications. Thus, the Court cannot credit that “facilitating” the ordered relief is as limited as Defendants suggest.
Second, and more fundamentally, Defendants appear to have done nothing to aid in Abrego Garcia’s release from custody and return to the United States to “ensure that his case is handled as it would have been” but for Defendants’ wrongful expulsion of him. Abrego Garcia, 604 U.S.— , slip op. at 2. Thus, Defendants’ attempt to skirt this issue by redefining “facilitate” runs contrary to law and logic.
She also notes that the three “daily” status reports the DOJ delivered (late each day) did not meet what she ordered, which is why she is requiring discovery, even as the DOJ insisted she should not order discovery:
Third, the discovery is necessary in light of Defendants’ uniform refusal to disclose “what it can” regarding their facilitation of Abrego Garcia’s release and return to the status quo ante, or present any legal justification for what they cannot disclose.2 Id. Fourth, the burden on the Government is minimal, particularly because, as the Supreme Court underscored, it “should be prepared to share what it can concerning the steps it has taken and the prospect of further steps.” Id. Fifth, the request for discovery is timely in that Defendants have not yet complied with this Court’s directives, and Abrego Garcia appears to remain inexplicably detained in CECOT. Sixth, discovery must proceed without delay, as Abrego Garcia is indisputably entitled to the due protections that Defendants have denied him—and to be free from the risk of grave injury resulting from his continued detention in CECOT.
As for Stephen Miller’s argument that the Supreme Court sided with the White House and all they have to do is yell “foreign affairs” to get out from under any court judgment, the court’s having none of it:
Again, this Court is ever mindful of the Supreme Court’s directive that the Court’s injunctive relief must be accorded with “due regard for the deference owed to the Executive Branch in the conduct of foreign affairs.” Abrego Garcia, 604 U.S.—, slip op. at 2. But this deference does not mean the Court must ignore the Defendants’ repeated refusal to provide even the most basic information as to any steps they have taken to facilitate “Abrego Garcia’s release from custody in El Salvador and to ensure that his case is handled as it would have been had he not been improperly sent to El Salvador.” Id. Thus far, the Defendants appear to have taken no steps, and provided no explanation, legal or otherwise, for such inaction
And thus, Judge Xinis has set a very aggressive discovery schedule. The lawyers for Abrego Garcia can depose the various administration officials who filed those status reports, including various ICE officials and a State Department official. But also Joseph Mazzara, the acting general counsel for Homeland Security.
During the hearing, DOJ lawyer Drew Ensign tried to protest that Mazzara, as acting general counsel, shouldn’t be deposed as it would raise privilege issues, but Judge Xinis shut that down, noting the DOJ should have considered that before they had him sign declarations in the case.
The depositions should all be completed by next Wednesday, followed by Garcia’s lawyers being able to supplement their motion for relief based on those depositions by Monday, April 28th, and the DOJ able to respond by April 30.
Some observers were annoyed that this represents two more weeks in which Garcia is left rotting in a Salvadoran torture camp, but Xinis appears to know what she’s doing. As some note, two weeks is the minimum required to hold a party in contempt for failure to comply. Others suggest that this aggressive discovery schedule, in which various government officials will have to go on the record explaining how badly they fucked all this up may be designed to just get the DOJ to get Garcia on a plane back to the US to avoid this process.
Of course, others are predicting that the Trump admin will seek to run back to the warm embrace of John Roberts at SCOTUS, seeking to get Judge Xinis off their back (though as Judge Xinis noted, there’s really no basis for that). But also, it gives Roberts the opportunity to point out how the administration is directly lying about what SCOTUS’s original 9-0 ruling said about how the US should help bring Garcia back.
Obviously, this process is tragically slow for Garcia and his family. Garcia’s wife gave an impassioned and heartfelt statement prior to the hearing which is worth watching:
Abrego Garcia's wife: "I will not stop fighting until I see my husband alive. Kilmar, if you can hear me, stay strong. God hasn't forgotten about you. Our children are asking when you will come home … they miss their dad so much."
This is the family that the Trump admin is destroying because they’ve spent years rotting their own brains with exaggerated nonsense about “violent gangs” from undocumented people who are mostly just seeking a chance to achieve the American dream.
The irony here is striking: the administration that claims to care about law and order is actively defying both the Supreme Court and a federal district court judge, all to avoid admitting they wrongly imprisoned an innocent man. But Judge Xinis’s order may finally be a step towards holding them accountable.
Hopefully, the Trump admin comes to their senses (big ask, I know) and does what Donald Trump himself said they should do last Friday: call up El Salvador and tell them to release Abrego Garcia back to the US where he belongs and where his case should have been handled appropriately, with the required due process.
The Trump administration has settled on a terrifying new legal theory: they can declare anyone a “terrorist,” ship them to an offshore torture camp without due process, and courts can do nothing about it because it’s “foreign affairs.” This isn’t speculation — it’s the actual argument they’re making to justify their “accidental” trafficking of Abrego Garcia to El Salvador’s CECOT facility.
After initially admitting in court this was an “administrative error,” the administration has pivoted to an even more disturbing stance: they meant to do it all along, and they can do it to anyone. And they’ll just fucking lie about everything to pretend this is all perfectly normal and acceptable.
We mentioned some of this in our story yesterday about Donald Trump and Nayib Bukele’s shameful and dark press conference in the Oval Office, in which both of them denied the ability to bring Garcia back to the US (with Pam Bondi falsely claiming that the only thing the Supreme Court told them to do was send a plane if Bukele chose to release him, and Bukele bizarrely claiming that he couldn’t return Garcia because it would require “smuggling a terrorist” into the US, none of which is true).
The implications here are fucking terrifying. The administration is essentially arguing that once they declare someone a “terrorist” — based on “evidence” as flimsy as wearing a Chicago Bulls hat — they can disappear that person to an offshore torture facility with no due process and no judicial oversight. And they’re making this argument while simultaneously giving the middle finger to both a district court and the Supreme Court.
This authoritarian power grab became crystal clear when Trump advisor Stephen Miller started spewing his laughably false claim that the Supreme Court ruling about Garcia was actually a win for the administration. He’d been practicing this bullshit all morning in multiple media appearances, including a surprisingly contentious interview on Fox News.
Stephen Miller claims on Fox News that returning the Maryland father who was wrongly deported to El Salvador would constitute a "kidnapping" and "invasion of El Salvador's sovereignty.""He was not mistakenly sent to El Salvador," Miller lies. "This was the right person sent to the right place."
So, I want to correct that. I hate to do it, Bill. I have to correct you on every single thing you just said, because it was all wrong.
First, we won the Supreme Court case, clearly, 9-0. A District Court judge said unconscionably that the president and his administration have to go into El Salvador and extradite one of their citizens, a Salvadoran citizen, so that would be kidnapping. We have to kidnap an El Salvador citizen against the will of his government and fly him back to America. Which would be an unimaginable invasion of El Salvador sovereignty.
Again, this is bullshit. Bukele is claiming that he’d have to “smuggle” Garcia back to the US, while the US is claiming it would have to “kidnap” him? Do they just think everyone is fucking stupid? The US and El Salvador have a written agreement (which is already pretty unconscionable) that El Salvador will house prisoners sent from America at CECOT for $20k/year per prisoner, but according to the Associated Press, the agreement states that the US has discretion on the “long-term disposition” of the prisoners.
In other words, there’s a literal contract that says the US can get these prisoners back. No kidnapping required. No smuggling needed. Just a phone call between Trump and Bukele to arrange the transfer and obey the Supreme Court. Or, hell, they could have done it at yesterday’s meeting.
Speaking of the Supreme Court, Miller lied about that as well. First, he ignores that the Fourth Circuit, including famed conservative judge J. Harvie Wilkinson III, insisted that of coursethe district court can order the US to fix a mistake like illegally trafficking someone to a foreign torture camp, ignoring a protection order against sending him to El Salvador.
Having skipped over the Fourth Circuit’s clear ruling, Miller then proceeds to completely misrepresent what the Supreme Court actually said. His claims about “winning” the case are more than just wrong — they’re a deliberate attempt to gaslight the public about a ruling that directly ordered the administration to attempt fix its “mistake”:
So we appealed to the Supreme Court and it said clearly no District Court can compel the president to exercise his Article II foreign powers in any way whatsoever. DOJ called me after the Supreme Court ruling and said: ‘This is amazing we won the case 9-0, we are in excellent standing here.’
So this has been portrayed wrong for 72-hours in the media. They said the most a court can ever compel you to do is facilitate return, which would basically mean if El Salvador voluntarily sends him back we wouldn’t block him in the airport, we would put him back in ICE detention and then he would be deported back to El Salvador or somewhere else.
The Supreme Court said that’s the most the government can be expected to do. So, we won the case, handily. The misreporting on this has been atrocious.
This is also a lie. A flat-out lie. One just needs to read the Supreme Court ruling, which clearly states that the US should work to get him released from the torture camp, not just help him fly back to the US:
The orderproperly requires the Government to “facilitate” Abrego Garcia’s release from custody in El Salvadorand to ensure that his case is handled as it would have been had he not been improperly sent to El Salvador.
Two important bits here: first, the Supreme Court makes it clear that the “facilitation” is more than a flight back to the US, but is to seek to get him released from custody in El Salvador. Second, the Supreme Court says directly that Garcia has been “improperly sent to El Salvador.”
But the administration wasn’t done lying. Miller then rolled out an even more audacious claim: that sending Garcia to CECOT wasn’t a mistake at all, despite their own lawyers admitting exactly that in court. Here’s Miller testing this latest bit of revisionist history on Fox News:
He was not mistakenly sent to El Salvador. He’s an illegal alien from El Salvador. In 2019 he was ordered deported. He has a final removal order from the United States. These are things that no one disputes. Where is he from? El Salvador. Where is he a resident and citizen of? El Salvador. Is he here illegally? Yes. Does he have a deportation order? Yes.
A DOJ Lawyer, who has been relieved of duty, a saboteur, a Democrat, put into a filing, incorrectly, that this was a mistaken removal. It was not. It was the right person sent to the right place.
This is gaslighting taken to new heights. Not only is Miller lying about the “mistake” their own lawyers admitted to, he’s inventing a conspiracy theory about a “saboteur” DOJ lawyer with zero evidence. Miller admits that there was a withholding order on Garcia, barring him from being deported to El Salvador. But Miller claims that once Trump declared MS-13 to be a terrorist organization, that magically dissolved the withholding order, because (he claims) Garcia was a member of that terrorist organization. Fox’s host, Bill Hemmer, who tries to get a word in throughout all this finally asks Miller if he really believes Garcia is an MS-13 member, to which Miller misrepresents things again:
Yes. But here is the thing, Bill. Yes, not only am I convinced of it, not only is El Salvador convinced of it, Bill, he is an illegal alien from El Salvador with a deportation order! So, his only options in life, Bill, his only options in life, are to be deported to El Salvador or to be deported to some other country. That’s it. He has a deportation order!
So Bill, you tell me what country should we deport him to? Tell me? Tell me, please, tell me.
The truth completely demolishes these claims. Immigration expert Aaron Reichlin-Melnick has put together a useful timeline that exposes the MS-13 allegations as a complete fabrication based on nothing more than a hat and an anonymous tip.
But there’s even more to it than this. The claims that Miller and Bondi made, that “two courts” declared him to be a member of MS-13, are extremely misleading. Looking over the filings in his immigration court hearings does not even remotely support the claim that he’s some sort of violent gang member. Indeed, the report details how his family was targeted by another gang, Barrio 18, because his family ran a somewhat successful pupusa making business out of their home in San Salvador. Barrio 18 kept demanding more and more extortion payouts. When the family was unable to pay the amount demanded, the gang said they would harm Abrego’s older brother, Cesar.
Rather than being an MS-13 member, court records show Garcia’s family desperately tried to keep him away from gangs. When he was just 12 years old, after his brother fled gang threats, Barrio 18 started targeting young Abrego, and the family went out of its way to protect him:
After Cesar left, the gang started recruiting the Respondent. They told Cecilia that she would not have to pay rent any mote if she let him join the gang. [The mother refused to let this happen. The gang then threatened to kill the Respondent, When the Respondent was around 12-years old, the gang came to the home again, telling Cecilia that they would take him because she wasn’t paying money from the family’s pupusa business. The Respondent’s father prevented the gang from taking the Respondent that day by paying the gang all of the money that they wanted. During the days, the gang would watch the Respondent when he went back and forth to school. The members of the gangs all had many tattoos and always carried weapons.
Eventually, the family had enough and moved from Los Nogales to the 10″ of October neighborhood. This town was about 10 minutes away, by car, from Los Nogales. Shortly after the family moved, members of Barrio 18 from Nogales went to the 10″ of October and let their fellow gang members know that the family had moved to that neighborhood: Barrio 18 members visited the house demanding the rent money from the pupusa business again. They went to the house twice threatening to rape and kill the Respondent’s two sisters and threatening the Respondent. The Respondent’s parents were so fearful that they kept the Respondent inside the home as much as possible. Finally, the family decided they had to close the pupusa business and move to another area, Los Andes, about a 15 minute drive from their last residence. Even at this new location, the family kept the Respondent indoors most of the time because of the threats on his life. After four months of living in fear, the Respondent’s parents sent the Respondent to the U.S.
This is the reality the Trump administration is trying to erase: a 12-year-old kid whose family shut down their legitimate business and moved multiple times to protect him from gangs. When that wasn’t enough, they sent him and his brother to the US specifically to keep them away from gang life. And now Miller wants to brand him a terrorist based on… wearing a Bulls hat.
The technical reason Garcia didn’t get asylum? He filed for it too late. He missed the one-year filing deadline after arriving in the US. Yes, the Trump administration is using a paperwork technicality — one that applied to a 12-year-old kid who was fleeing death threats — to justify sending him to a torture camp for the rest of his life.
Despite denying asylum on this technicality, the court still granted him a protection order, recognizing the very real risk to his life if returned to El Salvador. And while Miller keeps touting that an immigration judge “accepted” a police report claiming MS-13 ties, he conveniently leaves out that this was only considered for a bond determination, not as evidence of actual gang membership.
Even then, the Government’s “evidence” of any connection between Abrego Garcia and MS-13 was thin, to say the least. The Government’s claim was based on (1) Abrego Garcia “wearing a Chicago Bulls hat and hoodie,” and (2) “a vague, uncorroborated allegation from a confidential informant claiming he belonged to MS-13’s ‘Western’ clique in New York—a place he has never lived.”
However, the administration has now taken Stephen Miller’s mythmaking about Garcia being a dangerous “terrorist” member of MS-13 and run with it.
First, DHS put out a nonsense “ICYMI” statement claiming, without evidence, that Garcia is absolutely an MS-13 member and was properly deported to El Salvador:
“I think this illegal alien is exactly where he belongs—home in El Salvador. He was in our country illegally, he is from El Salvador, was born in El Salvador, and, oh, the media forgot to mention: He is a MS-13 gang member. The media would love for you to believe that this is a media darling, that he is just a Maryland father. Osama Bin Laden was also a father, and yet, he was not a good guy, and they actually are both terrorists. He should be in this El Salvador prison, a prison for terrorists, and I hope he will remain there.”
Yes, you read that right. DHS is comparing a man whose only “evidence” of gang ties is wearing a Bulls hat to the mastermind of 9/11. This isn’t just dishonest — it’s deranged. And it gets worse.
Not to be outdone in the fabrication department, DHS Secretary Kristi Noem piled on with her own set of completely made-up claims about Garcia:
“This was just one of those examples of an individual that is a MS-13 gang member, multiple charges and encounters with the individuals here, trafficking in his background, was found with other MS-13 gang members—very dangerous person, and what the liberal left and fake news are doing to turn him into a media darling is sickening,”
Every single word of this is a lie, as the Fourth Circuit explicitly found in its ruling:
Indeed, such a fact cannot be gleaned from this record, which shows that Abrego Garcia has no criminal history, in this country or anywhere else, and that Abrego Garcia is a gainfully employed family man who lives a law abiding and productive life. Tellingly, the Government “abandon[ed]” its position that Abrego Garcia was “a danger to the community” at the hearing before the district court.
With all these lies now firmly established as their official narrative — that Garcia is definitely MS-13 (despite zero evidence), that sending him to El Salvador was totally intentional (despite admitting in court it was a mistake), and that the Supreme Court didn’t really order his return (despite explicitly doing so) — the administration finally filed its third “status report” with the district court. The filing, submitted an hour after the deadline, doubles down on every single one of these fabrications. It falsely claims the immigration court found Garcia to be MS-13 and argues that Trump’s terrorist designation of MS-13 somehow retroactively voided Garcia’s protection order, despite never making such an argument to an immigration court.
The filing then descends into pure absurdity, simultaneously arguing that the US can’t possibly retrieve Garcia because that would require “kidnapping” him, as Miller has been claiming:
DHS does not have authority to forcibly extract an alien from the domestic custody of a foreign sovereign nation.
…while quoting Bukele’s equally nonsensical claim that he can’t return Garcia because that would be “smuggling” a “terrorist”:
I understand that, in response to a question regarding Abrego Garcia, President Bukele said, “I hope you’re not suggesting that I smuggle a terrorist into the United States. How can I smuggle a terrorist into the United States? Of course I’m not going to do it. The question is preposterous.”
It is quite something to have, in the same document, and just two paragraphs separated from each other, both arguments that (1) the US seeking to get Garcia back would amount to “forcibly extracting” him and (2) that Bukele returning Garcia to the US would amount to “smuggling a terrorist.”
Remember: no one has asked the US to “forcibly extract” Garcia, nor has anyone suggested Bukele needs to “smuggle” him. There’s literally a contract between the two countries governing these transfers. This isn’t about law or sovereignty — it’s about the Trump administration inventing increasingly absurd excuses to keep an innocent man in a torture camp, all to maintain their strongman facade. It’s pathetic men playacting at being tough guys by terrorizing the powerless.
The implications of what’s happening here cannot be overstated. The administration isn’t just defying both a district court and the Supreme Court — they’re establishing a terrifying new precedent: that they can unilaterally declare anyone a “terrorist,” ship them to an offshore torture facility, and then claim US courts are powerless to intervene because it’s now a “foreign affairs” issue.
Under this definition, as multiple people pointed out, the US government can literally grab anyone off the street, put them on a helicopter, and once they reach international waters, they can do whatever they want to them, and no court could ever intervene.
The term concentration camp refers to a camp in which people are detained or confined, usually under harsh conditions and without regard to legal norms of arrest and imprisonment that are acceptable in a constitutional democracy.
CECOT fits this definition perfectly. The only twist is that Trump has placed these concentration camps in another country, creating a paper-thin legal fiction that lets the administration claim that once they’ve disappeared someone across the border, American courts suddenly lose all jurisdiction because it’s now just “foreign affairs” under executive control.
You know those lessons about the Holocaust that ask “what would you have done?” That question is no longer hypothetical. The Trump administration is actively building a network of offshore concentration camps and arguing they can disappear anyone into them without due process — and that US courts are powerless to stop them because of “foreign sovereignty.”
The hypocrisy here is staggering. This is the same administration that regularly threatens to violate other nations’ sovereignty — claiming it will annex Canada as “the 51st state” and repeatedly threatening to seize Greenland. But suddenly they’re deeply concerned about El Salvador’s sovereignty when asked to retrieve someone under a contract that explicitly gives the US control over prisoner transfers?
And what happened to Trump, the self-proclaimed “master dealmaker”? The man who claims he can negotiate anything can’t manage a simple prisoner transfer with his ally Bukele? The truth is painfully obvious: they don’t want to bring Garcia back. They want to establish the precedent that they can disappear anyone they want.
The reality is inescapable: this isn’t about law, sovereignty, or national security. The Trump administration, with Stephen Miller as its architect, is deliberately constructing a system of offshore concentration camps and inventing increasingly absurd legal theories to justify them. Why? Because they want the power to disappear people without accountability or oversight.
This case isn’t just about saving Garcia from a torture camp — though that alone should be enough. It’s about preventing the creation of an American gulag archipelago, where anyone the administration declares “dangerous” can vanish forever beyond the reach of US courts. The fact that they’re building this system using such obvious lies and contradictions doesn’t make it less dangerous — it makes it more so. It shows they don’t even feel the need to make their excuses plausible anymore.
Judge Xinis now faces a stark choice: accept these transparent fabrications and help establish a precedent for extra-judicial disappearances, or stand firm against this assault on basic constitutional rights. History is watching.
Now it turns out that he not only did his big set of moderation changes to please Trump, but did so only after he was told by the incoming administration to act. Even worse, he reportedly made sure to share his plans with top Trump aides to get their approval first.
That’s a key takeaway from a new New York Times piece that is ostensibly a profile of the relentlessly awful Stephen Miller. However, it also has a few revealing details about the whole Zuckerberg saga buried within. First, Miller reportedly demanded that Zuckerberg make changes at Facebook “on Trump’s terms.”
Mr. Miller told Mr. Zuckerberg that he had an opportunity to help reform America, but it would be on President-elect Donald J. Trump’s terms. He made clear that Mr. Trump would crack down on immigration and go to war against the diversity, equity and inclusion, or D.E.I., culture that had been embraced by Meta and much of corporate America in recent years.
Mr. Zuckerberg was amenable. He signaled to Mr. Miller and his colleagues, including other senior Trump advisers, that he would do nothing to obstruct the Trump agenda, according to three people with knowledge of the meeting, who asked for anonymity to discuss a private conversation. Mr. Zuckerberg said he would instead focus solely on building tech products.
Even if you argue that this was more about DEI programs at Meta rather than about content moderation, it’s still the incoming administration reportedly making actual demands of Zuckerberg, and Zuckerberg not just saying “fine” but actually previewing the details to Miller to make sure they got Trump’s blessing.
Earlier this month, Mr. Zuckerberg’s political lieutenants previewed the changes to Mr. Miller in a private briefing. And on Jan. 10, Mr. Zuckerberg made them official….
This is especially galling given that it was just days ago when Zuckerberg was whining about how unfair it was that Biden officials were demanding stuff from him (even though he had no trouble saying no to them) and it was big news! The headlines made a huge deal of how unfair Biden was to Zuckerberg. Here’s just a sampling.
Also conveniently omitted was the fact that the Supreme Court found no evidence of the Biden administration going over the line in its conversations with Meta. Indeed, a Supreme Court Justice noted that conversations like those that the Biden admin had with Meta happened “thousands of times a day,” and weren’t problematic because there was no inherent threat or direct coordination.
Yet, here, we have reports of both threats and now evidence of direct coordination, including Zuckerberg asking for and getting direct approval from a top Trump official before rolling out the policy.
And where is this bombshell revelation? It’s buried in a random profile piece puffing up Stephen Miller.
It’s almost as if everyone now takes it for granted that any made-up story about Biden will be treated as fact, and everyone just takes it as expected when Trump actually does the thing that Biden gets falsely accused of.
With this new story, don’t hold your breath waiting for the same outlets to give this anywhere near the same level of coverage and outrage they directed at the Biden administration.
It’s almost as if there’s a massive double standard here: everything is okay if Trump does it, but we can blame the Biden admin for things we only pretend they did.
I’m used to hypocrisy in the political world, but this is beyond ridiculous. It’s now being made clear that the Trump admin is actually doing the exact thing that people were (falsely, misleadingly) blaming Biden for.
And it’s just a random aside in a story, and no one seems to be calling it out. Other than us here at Techdirt.
We already covered the oral arguments in the Murthy v. Missouri case earlier this week, showing that the Supreme Court appears to be quite skeptical of the arguments by the states regarding the federal government “jawboning” to convince social media to take down certain content. For months now, we’ve been pointing out that the factual record in that case is a mess, driven by conspiracy theorists pushing nonsense. Unfortunately, a few Judges both believed the nonsense and then when they couldn’t rely on it to make their point had to misquote people, quote things out of context, or entirely fabricate parts of quotes in their rulings.
What became abundantly clear in the oral arguments Monday was that multiple justices, including Trump-appointed ones, found the factual record to be suspect and problematic. The crux of the case was effectively (1) the White House made a few public statements in which they were angry about how social media moderated, (2) the companies regularly met with government agencies about a variety of things (cybersecurity, COVID misinformation, election integrity), and (3) therefore we can assume that any content moderation that occurred on the platforms was at the government’s command.
It was a weak argument, and multiple justices pointed out how tenuous the connection was between the government and the actions of the companies.
Over the last few months, we’ve pointed out a few times how this and some related campaigns have been weaponized by proxies to try to stifle any effort to respond to (not block!) disinformation campaigns and election interference, including the misleading publication of “The Twitter Files,” by pretend journalists who didn’t understand what they were looking at (nor bother to speak to any experts who might have explained it to them).
The media is slowly, but surely, putting the underlying story together of how a bunch of nonsense peddlers concocted a full blown conspiracy theory full of disinformation, all targeted at destroying the ability of disinformation researchers to counter disinformation by attacking them as censors. Last September, the Washington Post had a big story on this:
Academics, universities and government agencies are overhauling or ending research programs designed to counter the spread of online misinformation amid a legal campaign from conservative politicians and activists who accuse them of colluding with tech companies to censor right-wing views.
The escalating campaign — led by Rep. Jim Jordan (R-Ohio) and other Republicans in Congress and state government — has cast a pall over programs that study not just political falsehoodsbut also the quality of medical information online.
In November, NBC had a big story that went a bit further in highlighting how this effort had basically killed off perfectly reasonable information sharing (of the nature that Justices Kagan and Kavanaugh noted happen all the time in government).
The most recent setback camewhen the FBI put an indefinite hold on most briefings to social media companies about Russian, Iranian and Chinese influence campaigns. Employees at two U.S. tech companies who used to receive regular briefings from the FBI’s Foreign Influence Task Force told NBC News that it has been months since the bureau reached out.
And, just before the Murthy hearing, the NY Times put out a big piece tying together some of the loose ends about all this, and detailing the nature of the campaign. The whole effort was, in short, a made up conspiracy theory by a group of operatives seeking to kneecap any research into disinformation or how to counter it, perhaps recognizing how such efforts would harm Donald Trump. As the article notes, much of it seems to have been orchestrated by Trump advisor Stephen Miller:
The counteroffensive was led by former Trump aides and allies who had also pushed to overturn the 2020 election. They include Stephen Miller, the White House policy adviser; the attorneys general of Missouri and Louisiana, both Republicans; and lawmakers in Congress like Representative Jim Jordan, Republican of Ohio, who since last year has led a House subcommittee to investigate what it calls “the weaponization of government.”
Those involved draw financial support from conservative donors who have backed groups that promoted lies about voting in 2020. They have worked alongside an eclectic cast of characters, including Elon Musk, the billionaire who bought Twitter and vowed to make it a bastion of free speech, and Mike Benz, a former Trump administration official who previously produced content for a social media account that trafficked in posts about “white ethnic displacement.” (More recently, Mr. Benz originated the false assertion that Taylor Swift was a “psychological operation” asset for the Pentagon.)
Benz is a bizarre character. As an anonymous troll online, he pushed blatantly bigoted nonsense about the “great replacement theory” and “white genocide.” Now he presents himself as a former State Department official and a cybersecurity expert. His name shows up repeatedly in all of this, including in efforts by Jim Jordan to attack disinformation research. The reality was that he was a low-level speechwriter in the Department of Housing and Urban Development, who then helped Stephen Miller as a speechwriter, and only joined the State Department in November of 2020 after Trump lost the election.
It was only then that he suddenly remade himself as a “cyber expert,” despite having no real qualifications or experience in the space. And he continued to leverage that brief couple of months in the State Department to suggest he has some sort of deep knowledge or expertise of government censorship. The NY Times notes how Benz’s conspiracy theory nonsense (in which he’s either never actually understood, or deliberately misunderstands, the nature of disinformation research) became the fuel that powered both the Missouri case and Jim Jordan’s weaponization committee:
In late November 2020, Mr. Benz was abruptly moved to the State Department as a deputy assistant secretary for international communications and information policy. It is unclear precisely what he did in the role. Mr. Benz has since claimed that the job, which he held for less than two months, gave him his expertise in cyberpolicy.
Mr. Benz’s report gained national attention when a conservative website, Just the News, wrote about it in September 2022. Four days later, Mr. Schmitt’s office sent requests for records to the University of Washington and others demanding information about their contacts with the government.
Mr. Schmitt soon amended his lawsuit to include nearly five pages detailing Mr. Benz’s work and asserting a new, broader claim: Not only was the government exerting pressure on the platforms, but it was also effectively deputizing the private researchers “to evade First Amendment and other legal restrictions.”
Benz was also one of the originators of the bogus “22 million tweets” claims that completely tripped up Matt Taibbi (the number was how many tweets the Election Integrity Partnership reviewed as discussing the mis- and disinfo topics they covered after the election, and had nothing to do with how many tweets the EIP reported to Twitter: just a few thousand). As the NY Times details, Taibbi’s partner in the Twitter Files, Mike Shellenberger, credits Benz with helping him understand what he had “uncovered” with the Twitter Files:
In March 2023, Mr. Benz joined the fray. Both Mr. Taibbi and Mr. Benz participated in a live discussion on Twitter, which was co-hosted by Jennifer Lynn Lawrence, an organizer of the Trump rally that preceded the riot on Jan. 6.
As Mr. Taibbi described his work, Mr. Benz jumped in: “I believe I have all of the missing pieces of the puzzle.”
There was a far broader “scale of censorship the world has never experienced before,” he told Mr. Taibbi, who made plans to follow up.
Later, Mr. Shellenberger said that connecting with Mr. Benz had led to “a big aha moment.”
“The clouds parted, and the sunlight burst through the sky,” he said on a podcast. “It’s like, oh, my gosh, this guy is way, way farther down the rabbit hole than we even knew the rabbit hole went.”
As we’ve detailed, Taibbi and Shellenberger never seemed to understand what they were looking at and flailed around embarrassingly for months. They needed help from someone who actually understood stuff to pull together the pieces (which would have shown the mostly boring, ho-hum nature of what Twitter’s trust & safety team was actually doing). Instead, they got suckered in by a nonsense-peddling conspiracy theorist who told a story that played right into the confirmation bias they needed to convince themselves that they had been gifted a huge story of government censorship (which is just not supported by any of the evidence).
The Times report also suggests that Jim Jordan’s “Weaponization” subcommittee appears to have leaked private deposition information to Stephen Miller to help him file even more sketchy lawsuits.
Mr. Miller followed with his own federal lawsuit on behalf of private plaintiffs in Missouri v. Biden, filing with D. John Sauer, the former solicitor general of Missouri who had led that case. (More recently, Mr. Sauer has represented Mr. Trump at the Supreme Court.)
Democrats in the House and legal experts questioned the collaboration as potentially unethical. Lawyers involved in the case have claimed that the subcommittee leaked selective parts of interviews conducted behind closed doors to America First Legal for use in its private lawsuits.
An amicus brief filed by the committee misrepresented facts and omitted evidence in ways that may have violated the Federal Rules of Civil Procedure, Representative Jerrold Nadler of New York wrote in a 46-page letter to Mr. Jordan.
However, all of this adds up to a pretty straightforward path: a bunch of Trumpist operatives in the form of Stephen Miller, Jim Jordan, Mike Benz and some others have plotted out a nonsense conspiracy theory — either deliberately or by simply misunderstanding what they were looking at — to present an entirely fictional story of a “censorship industrial complex,” and the only real purpose of this effort is to kneecap researchers and experts in disinformation from studying how disinformation flows and how to best counter it.
The organizations involved in the Election Integrity Partnership faced an avalanche of requests and, if they balked, subpoenas for any emails, text messages or other information involving the government or social media companies dating to 2015.
Complying consumed time and money. The threat of legal action dried up funding from donors — which had included philanthropies, corporations and the government — and struck fear in researchers worried about facing legal action and political threats online for the work.
“You had a lot of organizations doing this research,” a senior analyst at one of them said, speaking on the condition of anonymity because of fear of legal retribution. “Now, there are none.”
Having watched all of this play out over the past two years, and feeling like I was yelling into the wind about it (especially as someone who has actually spent years calling out actual attempts by the government to censor content), it was at least comforting to see multiple Justices (mainly Kavanaugh, Barrett, Sotomayor and Kagan) see through all of this and recognize the emptiness at the heart of the Murthy lawsuit, which almost entirely consists of sand being deliberately thrown around by a bunch of bullshit peddlers.
Government officials may say acceptable things when pressed for comment by journalists, oversight, and members of the public. But if you really want to know what an agency thinks, just keep your eye on the rank-and-file.
So, when the West Texas branch of the Customs and Border Protection (CBP) started retweeting one of the Trump administration’s resident bigots, it showed nothing but CBP West Texas’ entire ass.
Let’s take a brief moment to reacquaint ourselves with Stephen Miller, the man who became the breathy, white voice in Trump’s spray-tanned ear when it came to immigration policy.
Stephen Miller has been subpoenaed by the January 6th committee, which is still trying to determine who in the government assisted in the attempted undermining of the election certification following Trump’s loss at the polls.
Miller started out as the “national policy director” for Trump’s 2016 “transition team.” Shortly thereafter he became the face of Trump’s increasingly ugly, increasingly xenophobic immigration polices. Let’s review a few of Miller’s greatest hits, recited here in the dry language of a Wikipedia article any dumbass at the CBP west wing could have accessed before retweeting someone whose opinions on immigration mean less now than ever.
Miller played an influential role in Trump’s decision to fire FBI director James Comey in May 2017.[56]
[…]
In September 2017, The New York Times reported that Miller stopped the Trump administration from showing the public an internal study by the Department of Health and Human Services that found that refugees had a net positive effect on government revenues.[12][13]
[…]
In October 2018, the Financial Times reported that Miller sought to make it impossible for Chinese students to study in the United States. Miller argued that a ban was necessary to reduce Chinese espionage, but that another benefit was that it would hurt elite universities with staff and students critical of Trump.
[…]
Miller also advised Trump not to openly embrace mask-wearing to halt the spread of the coronavirus.[83]
[…]
In November 2019, the Southern Poverty Law Center acquired more than 900 emails Miller sent Breitbart News writer Katie McHugh between 2015 and 2016. The emails became the basis for an exposé that showed that Miller had enthusiastically pushed the views of white nationalist publications such as American Renaissance and VDARE, as well as the far-right conspiracy website InfoWars…
This is the person the West Texas CBP office felt worthy of retweets: an affirmed xenophobe who acted as a hype man for Trump’s anti-immigration actions.
The retweets, screenshotted here by Adam Isacson, show exactly what this CBP branch felt was worth amplifying with its official government account — one with nearly 17,000 followers.
If you can’t see the screenshot or read the CBP-amplified Stephen Miller tweets, this is what they say:
Violent criminals lay waste to our communities undisturbed while the immense power of the state is arrayed against those whose only crime is dissent.
The law has been turned from a shield to protect the innocent into a sword to conquer them.
We’ll take a brief break to applaud the man who turned the law into a sword to punish innocent immigrants while burying evidence of their positive contributions to the American way of life — one who actually claims a government that goes after people who participated in an unprecedented raid of the Capitol building cares less about the public’s safety that one that wielded the “immense power of the state” to persecute browner people just wanting a shot at the American dream.
And here’s another inconvenient fact standing in the way of Miller’s shitposting-but-I’m-serious tweeting: immigrants are far less likely to commit crimes than natural-born residents of the United States.
Moving on to the second tweet:
The media’s greatest power is its ability to frame what is a national crisis (eg “cops are racist summer ’20) and what is not: Biden’s eradication of our border means we are no longer a Republic — he’s ended nearly 250 years of constitutional government. The media is silent.
This is the kind of word salad that will only be appreciated by like-minded connoisseurs of this particular type of word salad. The rest of us will consider it as comprehensible as jello salad featuring suspended pasta and Vienna sausages: yes, it may resemble something a person could theoretically consume in extremely dire circumstances, but no one in their right mind would actually consume it voluntarily.
Biden has not “eradicated” the border. (Notably, both Miller and his retweeters have nothing to say about the northern border, which is equally in danger of being “eradicated” by policy changes.) Cops are, in fact, pretty fucking racist.
Fortunately, the CBP has decided this is something that needed to be addressed, rather than ignored. As Axios reports, CBP Commissioner Chris Magnus stepped up to inform the public the agency as a whole did not approve of this rogue action and has seized control of the regional account.
As of the writing of this post, the Twitter account is alive but inactive. The retweets of Stephen Miller have been memory-holed, something that has undoubtedly resulted in dozens of FOIA requests. But when CBP Commissioner Magnus says these tweets “do not reflect the values of this administration,” he’s only partially correct. They obviously reflected the values of the CBP West Texas employees, who decided Miller’s anti-immigration rants were worth amplifying. And that’s a problem he’ll need to address if he expects the nation to believe border enforcement agencies aren’t just playgrounds for bigots.
Last month, at the COMO Content Moderation Summit in Washington DC, I co-ran a “You Make the Call” session with Emma Llanso from CDT. The idea was to turn the audience into a content moderation/trust & safety team of a fictionalized social media platform. We showed numerous examples of content or accounts that were “flagged” and then showed the associated terms of service, and had the entire audience vote on what to do. One of the fictional examples involved someone posting a link to a third-party website “contactinfo.com” claiming to have the personal phone and email contact info of Harvey Weinstein and urging people “you know what to do!” with a hashtag. The relevant terms of service included this: “You may not post personal information about others without their consent.”
The audience voting was pretty mixed on this. 47% of the audience punted on the question, choosing to escalate it to a supervisor as they felt they couldn’t decide whether to leave the content up or take it down. 32% felt it should just be taken down. 10% said to just leave it up and another 10% said to put a content warning flag on the content. We joked a bit during the session that some of these examples were “ripped from the headlines” but apparently we predicted the headlines in this case, because there are two stories this week that touch on exactly this kind of thing.
Splinternews decided to publish Miller’s phone number after multiple news reports attributed the inhumane* decision to separate children of asylum seekers from their parents to Miller, who has defended the plan. Other reports noted that Miller is enjoying all of the controversy over this policy. Splinternews, citing Donald Trump’s own history of giving out the phone numbers of people who anger him, thought it was only fair that people be able to reach out to Miller.
This is — for fairly obvious reasons — a controversial decision. I think most news organizations would never do such a thing. Not surprisingly, the number spread rapidly on Twitter, and Twitter started locking all of those accounts until the tweets were removed. That seems at least well within reason under Twitter’s rules that explicitly state:
You may not publish or post other people’s private information without their express authorization and permission.
But, that question gets a lot sketchier when it comes to locking the accounts of people who merely linked to the Splinternews article. A la our fictionalized example, those people are not actually publishing or posting anyone’s private info. They are posting a link to a third party that purports to have that information. And, of course, in this case, the situation is complicated even more than our fictionalized example because Splinternews is a news organization (owned by Univision), and Twitter also has said that it has a “newsworthy” exception to its rules.
Personally, I think it’s the wrong call to lock the accounts of those linking to the news story, but… as we discovered in our own sample version, it’s not an easy call and lots of people have strong opinions one way or the other. Indeed, part of the reason why Twitter may have decided to do this was that supporters of Trump/Miller started calling out the article as an example of doxxing and claiming that leaving it up showed that Twitter was unfairly biased against them. It is a no win situation.
And, of course, it wouldn’t take long before people started coming up with clever workarounds, such as Parker Higgins (citing the infamous 09F9 controversy in which the MPAA tried to censor the revelation of a cryptographic key that broke the MPAA’s preferred DRM, and people responded by posting variations on the code, including a color chart in which the hex codes of the colors were the code), who posted the following:
Would Twitter lock his account for posting a two color image? At some point, the whole thing gets… crazy. That’s not to argue that revealing someone’s private cell phone number is a good thing — no matter how you feel about Miller or the border policy. But just on the content moderation side, it puts Twitter in a no win situation in which people are going to be pissed off no matter what it does. Oh, and of course, it also helped create something of a Streisand Effect. I certainly hadn’t heard about the Splinternews article or that people were passing around Miller’s phone number until the story broke about Twitter whac’ing at moles on its site.
And that takes us to the second example, which happened a day earlier — and was also in response to people’s quite reasonable* anger about the border policy. Sam Lavigne decided to make something of a public statement about how he felt about ICE by scraping** LinkedIn for profile information on everyone who works at ICE (and who has a LinkedIn public profile). His database included 1595 ICE employees. He wrote a Medium blog post about this, posted the repository to Github and another user, Russel Neiss, created a Twitter account (@iceHRgov) that tweeted out info about each of those employees from that database. Notice that none of those are linked. That’s because all three companies took them down (though you can still find archives of the Medium post). There was also an archive of the Github repository, but it has since been memory-holed as well.
Again… this raises a lot of questions. Github claimed that it removed the page for “violating community guidelines” — specifically around “doxxing and harassment, and violating a third party’s privacy.” Medium claimed that the post violated rules against “doxxing” and specifically the “aggregation of publicly available information to target, shame, blackmail, harass, intimidate, threaten or endanger.” Twitter, in Twitter’s usual way, is not commenting. LinkedIn put out a statement saying: “We do not support or condone what immigration authorities are doing at the border, but we can?t allow the illegal use of our member data. We will take appropriate action to ensure our members? data is protected and used properly.”
Many people point out that all of this feels kind of ridiculous, seeing as this is all public info that the individuals chose to reveal about themselves on a public website. While Medium’s expansive definition of doxxing makes things interesting by including an intent standard in releasing the info, even if it is publicly available, the whole thing, again, demonstrates how complex this is. I know that some people will claim that these are easy calls — but, just for fun, try flipping the equation a bit. If you’re anti-Trump, how would you feel if a prominent alt-right person compiled and posted your info — even if publicly available — on a site where alt-right folks gather, with the clear intent of having hoards of Trump trolls harassing you. Be careful the precedent you set.
If it were up to me, I think I would have come down differently than Medium, Github and Twitter in this case. My rationale: (1) all of this info was public information (2) that those individuals chose to place on a public website, knowing it was public (3) they are all employed by the federal government, meaning they are public servants and (4) while the compilation was done by someone who is clearly against the border policy, Lavigne never encouraged or suggested harassment of ICE agents. Instead, he wrote: “While I don?t have a precise idea of what should be done with this data set, I leave it here with the hope that researchers, journalists and activists will find it useful.” He separately noted that he believed “it’s important to document what’s happening, and by whom.” That seems to actually make a strong point in favor of leaving the data up, as there is value in documenting what’s happening.
That said, reasonable people can disagree on this question (even if there should be no disagreement about how inhumane the policy at the border has been*) of what is the appropriate way for different platforms to handle these situations — taking into account that this situation could play out with very different players in the future, and there is value in being consistent.
This is the very point that we were demonstrating with that game that we ran at COMO. Many people seem to think that content moderation decisions are easy: you just take down the content that is bad, and leave up the content that is good. But it’s pretty rare that the content is easily classified in one of those categories. There is an enormous gray area — and much of it involves nuance and context, which is not always easy to come by — and which may look incredibly different depending on where you sit and what kind of world you think we live in. I still think there are strong arguments that the platforms should have left much of the content discussed in this post up, but I’m not the one making that call.
When we ran that game in DC last month, it was notable that on every single example we used — even the ones we thought were “easy calls” — there were some audience members who selected every option in the game. That is, there was not a single situation in our examples in which everyone agreed what should be done. Indeed, since there were four options, and all four were chosen by at least one person in every single example, it shows just how difficult it really is to make these calls. They are subjective. And what plays into that subjective decision making includes your own views, your own perspective, your own reading of the content and the rules — and sometimes third party factors, including how people are reacting and what public pressure you’re getting (in both directions). It is an impossible situation.
This is also why the various calls to mandate that platforms do this or face legal liability are even more ridiculous and dangerous. There are no “right” answers to these decisions. There are solutions that seem better to lots of people, but plenty of others will disagree. If you think you know the “right” way that all of these questions should be handled, I guarantee you’re wrong, and if you were in charge of these platforms, you’d end up feeling just as conflicted as well.
This is why it’s really time to start thinking about and talking about better solutions. Simply calling on platforms to be the final arbiters of what goes online and what stays offline is not a workable solution.
* Just a side note: if you are among the small minority of ethically-challenged individuals who gets upset that I describe the policy as inhumane: fuck off. The policy is inhumane and if you’re defending it, you should seriously take time to re-evaluate your ethics and your life choices. On a separate note, if you are among the people who are then going to try to justify this policy as “but Obama/others did it too,” the same applies. Whataboutism is no argument here. The policy is inhumane no matter who did it, and pointing out that others did it too doesn’t change that. And, as inhumane as it may have been in the past, it has been severely ramped up. There is no defense for it. Attempting to defend it only serves to out yourself as a horrible person who has issues. Seriously: get help.
** This doesn’t even fit anywhere in with this story, but scraping LinkedIn is (stupidly) incredibly dangerous. Linkedin has a history of suing people for scraping public info off of LinkedIn. And even if it’s lost some of those cases, the company appears to take a pretty aggressive stance towards scrapers. We can argue about how ridiculous this is, but, dammit, this post is already too long talking about other stuff, so discuss it separately.
