Last week, a federal judge issued a temporary restraining order requiring Immigration and Customs Enforcement to allow reasonable time for detainees at the Whipple detention center in Minneapolis to access legal counsel. In a 41-page decision, Trump-appointed U.S. District Judge Nancy Brasel excoriated the government for policies and practices that “all but extinguish” a detainee’s right to counsel. On this week’s Amicus podcast, Dahlia Lithwick spoke to professor Linus Chan, the James H. Binger Clinical Professor of Law at the University of Minnesota and the faculty director of the Detainee Rights Clinic, where he represents people who are being detained by ICE or in danger of being detained by ICE.

Dahlia Lithwick: The Justice Department will likely appeal this order, but in the meantime, how much of a difference will this make for folks swept up by ICE in Minnesota, assuming they get 72 hours before being removed to Texas, per the new order? What kind of a difference will this make for clients like yours?

Linus Chan: It’s going to be a huge difference. But also, it’s just returning things to the status quo. And I will be frank, it’s not as if the status quo was a paragon of attorney access, but at the same time, there had always been an operative norm that detainees should be able to talk to their lawyers and not suddenly be transported out of state with no ability to let their loved ones know what’s going on, and even themselves maybe not knowing what’s going on. So this is really important.

Under the old processes, they would get detained, and then they would go through what’s called processing—they might have their biometrics done, there might be an interview with an officer to confirm information that they have in the system, and after that conversation, they would then be put in a holding area for a few hours, and then put into one of the county jails in Minnesota. Most of the time the person’s stay for detention would be either in Minnesota or around the Midwest.

One of the big departures in current practice from what it was in the past was that ICE’s logistical acumen has reached the point of arresting someone at, let’s say, 9:00 in the morning and having them on a plane by noon. It was working like clockwork. People were not going through that longer process I described. They were going very, very quickly, and they could find themselves suddenly in El Paso or New Mexico, most often in Texas because the detention capacity in Texas has grown a lot.

Now, let’s assume this is a client of yours. Even if you knew they were at the Bishop Whipple building, there was no easy way to contact them. If you went online to the detainee locator, a lot of the time it would say the person is in custody, but it would not tell you where they were. It would direct you to call ICE at this number. Of course I’ve done this, I’ve called the number, and nobody ever picks up. It’s just a dead number. So then you have no idea at all what’s going on, but you do know how quickly they have put people on an actual plane out of the country, and have done so even when they legally should not be able to.

On top of that, we have a Trump administration that says that even if they know that it was a mistake, they don’t have to correct that mistake. Once a person is no longer in U.S. custody, they say this is a foreign-power problem, and they don’t have any means to fix it if they are out of the country.

The biggest source of concern and trauma comes from family members who are trying to figure out whether their family member has been kidnapped or whether they’re in immigration detention, and they can’t find out for several hours. So the fact that we have this order that is both trying to make sure that there is attorney access as well as to slow that process down, of transfers, can be tremendously important and powerful. It also gets into another issue which was in terms of habeas access.

Do you want to talk about how that’s changed? Because it seems to me that’s a cornerstone. I think people glaze over because it seems hypertechnical, but this is really where the rubber meets the road.

Habeas, the great writ, is in our Constitution, it’s an English tradition that predates our country, and it’s the general idea that if the government wants to imprison someone, then at some point or another, they need to justify that imprisonment. And if that imprisonment violates any law, and in this case, the United States, violates the Constitution, then a court can order that person to be released.

The history of the writ of habeas corpus and immigration is a very long one. In fact, it goes all the way back to the Chinese exclusion cases, back in the 1860s, 1870s, 1880s, where the federal government was trying to exclude Chinese people from coming to the United States, even if in some cases they were U.S. citizens or had the proper documentation. The way that people would challenge the laws or challenge the policy was through the writ of habeas corpus. There was a period of time. before what’s called the administrative period, where the writ of habeas corpus was the only way to challenge an order of deportation. Let’s say you were ordered deported and you now faced banishment from your country. The only way to get a judge to look at it was to give a writ of habeas corpus.

In the intervening years, there’s been a shift that started most dramatically in the late 1990s, where Congress really did not want immigrants to file writs of habeas corpus to challenge removal orders. So they started to take away the ability of courts to do that. In 2005, there was passage of what’s called the Real ID Act, which was a post- 9/11 piece of legislation that came from this idea that the problem with immigration enforcement was too much review, that there was too much legal process. So they cut it off and basically said that no court can look at the lawfulness of immigration deportation orders, even through habeas, that there is one way, and the only way is through what’s called a circuit court review, having the federal appellate courts eventually review it. That was a huge dramatic change.

But it didn’t prevent people from arguing that their detention was unlawful, while it prevented people from arguing that their removal or their deportation order was unlawful. And that has become so important, because this administration is deliberately using detention as the tool and as the weapon to try to push as many people out as possible. And they are explicit about this. When the students were getting notices that suddenly their visas were being revoked, they were getting letters that said, By the way, if you don’t want to end up detained, you might want to leave now. On the CBP One Home app, they say, You don’t want to get detained, right? Go ahead and sign up to get $1,000 and leave. There’s a reason they are gleefully talking about all the money that they’re using to build detention camps, because it’s driving that.

When they expand detention, when they go back on the former norms, there’s only one way to actually get people to examine whether they could do those things or not, and that’s through the writ of habeas corpus. The writ of habeas corpus, as powerful as it is—and it is—has become more and more difficult to use thanks to layers of legal doctrines lately.

One of them is what’s called the immediate custodian rule. That is, you can only file a habeas in the district court where they are actually being detained. When I referenced earlier how people didn’t know where they were going, how quickly they were getting transferred, that has become one of the controversies between litigants, the court, and Immigration and Customs Enforcement. I had this situation where a client of mine was detained one morning, and I filed habeas the next day—this is before it became clear how quickly out-of-state transfers were happening. I filed habeas, and looked my client up on the detainee locator. I couldn’t find her, her family didn’t know where she was, they couldn’t call her, no one knew where she was, and no one was picking up. This was a weekend. ICE had picked her up on Saturday. I filed the habeas corpus on Sunday. Their first reply to that habeas corpus was: You filed in the wrong court. By the time you filed it, she was already in Houston. The case in question, Rumsfeld v. Padilla, said you have to file habeas within the district of confinement, which meant that I was supposed to have filed it in Houston, even though I didn’t know where she was.

The conditions of detention and the scope of what is coming is the end in itself here, because the administration wants people to self-deport. What we are really seeing here is a weaponization of the detention itself. Detention has become the objective, and the crueler the detention, the bigger the win for this administration.

One of the things that’s always been remarkable, and I use the word remarkable because I kind of get stuck on these adjectives, is that as a child growing up as a Gen Xer, there was always this idea of freedom—the American view that we are a free country. If you look at what freedom means, it seems pretty axiomatic to think, Freedom means not being put in jail. But what I think has really become true generally in our society, and now more specifically with immigration, is that we’ve gotten so used to this idea that we can be detained, that we can be imprisoned, that there are all these justifications that the government has to imprison us.

It wasn’t until, I would argue, one of the most important decisions in the 1980s, which justified denying criminal bail to people, that really led to this idea that as long as the government says you’re a danger and you’re a flight risk, you are going to have to disprove it before you can be released. Even though the criminal system has a very important idea that the burden should be on the government, and not on the person being detained, and many immigration folks are trying to push the immigration system to more resemble that burden, if you speak to most on-the-ground criminal defense attorneys, it’s just words on a piece of paper. There has been an unfortunate acceptance of the idea that it’s OK to be detained.

Look at Minnesota, where they are arresting protesters or arresting observers, then they might spend eight hours or overnight, and then be released in negative-20-degree temperatures in the middle of a park without any of their possessions or their phone. That has happened. And then the government is not even bothering to charge them because they don’t think that they actually can make a good case. It’s just another example of how we’ve accepted as a society that when people get arrested, there must be good reason to do it. That’s amazing to me. Doesn’t that completely strike at the heart of us being a free country?

The fact that they could, as has happened here, literally break down the doors to our homes and arrest us without a warrant and then haul us in, and then the only thing we’ll get after they release us after several hours is not even an apology. It shouldn’t shock me but it does. They killed two people with witnesses and video recording in Minneapolis. They won’t apologize for that. So of course they’re not going to apologize for shooting a woman five times in Chicago. They’re not going to apologize for taking people and putting them in a cell for eight hours and then releasing them with no justification. They are not apologizing for the amount of trauma that they are imposing. They believe they’re unaccountable. That’s the thing that I think we really need to try to fix.