Liam and his father, Adrian Conejo Arias, an asylum seeker from Ecuador, were taken from Minnesota to Texas and held at a detention facility outside San Antonio. Lawyers working on their behalf filed a petition for a writ of habeas corpus, an ancient principle from Magna Carta (Article 39) that forbids the government from holding anyone in custody without providing a legally tenable reason for doing so.
On Saturday, Fred Biery, a federal judge in Texas' Western District, granted their petition, freeing them to be returned to Minneapolis. Here is an excerpt from his written decision:
The case has its genesis in the ill-conceived and incompetently-implemented government pursuit of daily deportation quotas, apparently even if it requires traumatizing children. This Court and others regularly send undocumented people to prison and orders them deported but do so by proper legal procedures.
Apparent also is the government's ignorance of an American historical document called the Declaration of Independence. Thirty-three-year-old Thomas Jefferson enumerated grievances against a would-be authoritarian king over our nascent nation. Among others were:
1. "He has sent hither Swarms of Officers to harass our People."
2. "He has excited domestic Insurrection among us."
3. "For quartering large Bodies of Armed Troops among us."
4. "He has kept among us, in Times of Peace, Standing Armies without the consent of our Legislatures."
"We the people" are hearing echoes of that history.
And then there is that pesky inconvenience called the Fourth Amendment: "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and persons or things to be seized." U.S. CONST. amend. IV.
Civics lesson to the government: Administrative warrants issued by the executive branch to itself do not pass probable cause muster.
That is caused the fox guarding the henhouse. The Constitution requires an independent judicial officer.
Accordingly, the Court finds that the Constitution of these United States trumps this administration's detention of petitioner Adrian Conejo Arias and his minor son, L.C.R. The Great Writ and release from detention are GRANTED pursuant to the attached Judgment.
Observing human behavior confirms that for some among us, the perfidious lust for unbridged power and the imposition of cruelty in its quest know no bounds and are bereft of human decency. And the rule of law be damned.
Below his signature, Judge Biery attached the widely seen photograph of Liam, with an anonymous photo credit--"Credit: Bystander." He also cited two Biblical verses: Matthew 19:14 ("But Jesus said, Suffer little children, and forbid them not, to come unto me: For of such is the kingdom of heaven") and John 11:35 ("Jesus wept").
As A. O. Scott of The New York Times has noted, Judge Biery's opinion is a remarkably eloquent and subtle piece of writing that refutes Trump's "unitary executive theory" of presidential power. Without ever mentioning Trump by name (except the card-table verb "trump"), the Judge intimates that Trump is acting like the "would-be authoritarian king" George III condemned by the Declaration of Independence. He also suggests that Trump and his agents are motivated by "the perfidious lust for unbridled power and the imposition of cruelty in its quest."
Notice also that the "lust for unbridled power" is checked by legal principles (the rule of law and separation of powers) that enforce moral and scriptural principles (such as "human decency" and protecting young children).
Judge Biery's decision shows us how the separation of powers allows a judicial officer of government to resist an unjust government. But when Judge Biery gives credit for the photograph of Liam to "Bystander," he recognizes another kind of resistance to unjust government--the nonviolent resistance of those many ordinary people who have been observing, recording, and publicizing ICE misconduct.
This American nonviolent resistance to ICE is similar to the nonviolent resistance to the Gestapo in World War II Europe. At the Waging Nonviolence website, Rivera Sun has pointed out the parallels. In 1940, when the Nazis invaded and occupied Denmark, a 17-year-old Arne Sejr printed a flier called "10 Commandments for Danes" that became a program for the Danish resistance movement. Here are the "10 Commandments for Danes":
1. You must not go to work in Germany and Norway.
2. You shall do a bad job for the Germans.
3. You shall work slowly for the Germans.
4. You shall destroy important machines and tools.
5. You shall destroy everything which may be of benefit to the Germans.
6. You shall delay all transport.
7. You shall boycott German and Italian films and papers.
8. You must not shop at Nazis' stores.
9. You shall treat traitors for what they are worth.
10. You shall protect anyone chased by the Germans.
As I have indicated in my previous posts on nonviolent resistance, the fundamental insight here is that tyrannical rulers depend on the cooperation or at least passive acquiescence of the people they rule. When the people exercise their natural right to refuse to consent to unjust government by actively resisting that government, the ruling elites are denied the resources and cooperation required for ruling.
There is empirical evidence that this works. Erica Chenoweth and her colleagues have gathered data from hundreds of resistance movements over the past 100 years, and they have shown that if at least 3.5 percent of the people become active in a mass nonviolent resistance movement, it is highly likely to succeed.
Following the example of the "Ten Commandments for Danes" and the experience of the American nonviolent resistance movement of the past year, Rivera Sun has proposed "10 Rules of Resistance for #ICEOUT":
1. No silence.
2. No selling.
3. No service.
4. No hotel rooms.
5. No entry.
6. No informing.
7. No looking away.
8. No collaboration.
9. No transporting.
10. No detention centers.
In her essay, she provides details and examples for each of these rules.
A few days ago, Trump border czar Tom Homan announced that the "surge" of thousands of ICE agents into Minneapolis will be drawn down. If that happens, that will show the first big victory for the resistance movement against ICE.
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