“Newly uncovered guidance from the Justice Department claims the Alien Enemies Act (AEA) allows federal law enforcement officers to enter the houses of suspected gang members without a warrant and remove them from the country without any judicial review.”
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“The Trump administration has refused to disclose many of the operational details of its unprecedented invocation of the 1798 wartime law to send alleged TDA members to a prison in El Salvador under an agreement with that country’s president, Nayib Bukele. The memo is one of the first public glimpses at the Trump administration’s claims that it can identify, pursue, arrest, and deport migrants, unconstrained by the Fourth Amendment or due process.”
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“”The government is asserting a right to stash away residents of this country in foreign prisons without the semblance of due process that is the foundation of our constitutional order,” Wilkinson warned. “Further, it claims in essence that because it has rid itself of custody that there is nothing that can be done.””
“Trump administration officials admitted that Columbia student Mahmoud Khalil was arrested without a warrant.”
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“The attorneys argued that the Department of Homeland Security wasn’t required to get a warrant because they had reason to believe that Khalil was likely to “escape” before one would be obtained.”
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“Khalil is far from the first legal resident to face deportation for pro-Palestine speech. Last month Rubio said that he had cancelled around 300 student visas. “We gave you a visa to come and study and get a degree, not become a social activist that tears up our university campuses,” Rubio told reporters. “And if we’ve given you a visa and you decide to do that, we’re going to take it away””
“Tricia McLaughlin, a spokeswoman for the Department of Homeland Security (DHS), says all the migrants whom the Trump administration sent to a notorious prison in El Salvador last month are “actually terrorists, human rights abusers, gangsters, and more,” even if they “don’t have a rap sheet in the U.S.” She adds that “we have a stringent law enforcement assessment in place that abides by due process.”
McLaughlin’s idea of due process is notably different from the right that the Supreme Court upheld last week, when it ruled that suspected members of the Venezuelan gang Tren de Aragua “are entitled to notice and [an] opportunity to be heard” before they are deported. According to federal officials, the government’s methods are infallible, so there is no need for hearings—a position that is plainly inconsistent with due process as it is ordinarily understood.”
“In an opinion issued on Wednesday, a federal judge found that the evidence “strongly support[s]” the conclusion that the Trump administration “willfully disobeyed” a March 15 order temporarily barring the removal of suspected Venezuelan gang members as “alien enemies.” James Boasberg, chief judge of the U.S. District Court for the District of Columbia, says the government’s actions “demonstrate a willful disregard” for that order, “sufficient for the Court to conclude that probable cause exists to find the Government in criminal contempt.””
“Attorney General Pam Bondi has decided that instead of working to facilitate the release of Kilmar Abrego Garcia from El Salvador’s Terrorism Confinement Center (CECOT) as the Supreme Court has ordered, she will instead take to X to release documents from his 2019 arrest, in which a detective claimed he was an MS-13 member.”
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“These documents had already been publicly available, if you cared to look through the prior court proceedings. The Gang Field Interview Sheet, drafted up by Ivan Mendez, then an officer with the Prince George’s County Police Department, says Abrego Garcia was arrested with purported MS-13 members in a Home Depot parking lot, that he was wearing clothing that they believe to be affiliated with MS-13 (“a Chicago Bulls hat and a hoodie with rolls of money covering the eyes, ears and mouth of the presidents on the separate denominations” which “officers know such clothing to be indicative of the Hispanic gang culture”), and that a confidential informant said he was part of MS-13.
Interestingly, reporting by The New Republic notes that Mendez was suspended the next month for “providing information to a commercial sex worker who he was paying in exchange for sexual acts.” (“The information he provided focused on an on-going police investigation,” per the county’s news release.)
Information has also come out about Abrego Garcia allegedly beating his wife, Jennifer Vasquez Sura, stemming from a protection order she filed against him in 2021: “At this point, I am afraid to be close to him,” she wrote in the protection order. “I have multiple photos/videos of how violent he can be and all the bruises he [has] left me.” She cites specific examples from August 2020 and November 2020 in which he was violent toward her. Vasquez Sura told CNN that “she sought a civil protective order in 2021 after a disagreement with Abrego Garcia” and that “she had survived a previous relationship that included domestic violence.” She says she did not appear at a court hearing and pursue the matter further: “We were able to work through this situation privately as a family, including by going to counseling.””
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” the administration keeps implying that you cannot both support due process for Abrego Garcia and have empathy for the victims of violence from illegal immigrants.”
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“The Supreme Court has ordered the Trump administration to “facilitate” Abrego Garcia’s return. The administration continues to demur on this front, instead choosing to release, via X…the protective order Vasquez Sura filed”
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“most people are neither angels nor demons, and even very bad and violent people—if that is what Abrego Garcia is—deserve due process. The punishment for wifebeating in Maryland, or entering the country illegally, is not indefinite confinement in a Salvadoran prison. He has not just been deported, he has been locked up in CECOT. (“A prison where there is no education or remediation or recreation, because it is a prison that does not intend to release its inhabitants back out into the world,” writes The New York Times’ Ezra Klein. “It is a prison where the only way out, in the words of El Salvador’s so-called justice minister, is a coffin.”)”
“”You gotta get scared that people who are not criminals are getting lassoed up and deported and sent to El Salvador prisons,” Joe Rogan said on his hugely popular podcast this week. “This is kind of crazy, that that could be possible. That’s horrific.”
Rogan was alluding to Venezuelan makeup artist Andry Hernandez, who was shipped off to El Salvador’s notorious Center for Terrorism Confinement (CECOT) last month. Based largely on innocent tattoos, Hernandez’s supporters say, U.S. Immigration and Customs Enforcement (ICE) mistakenly identified him as a member of Tren de Aragua, the Venezuelan gang targeted by President Donald Trump’s March 15 proclamation invoking the Alien Enemies Act (AEA).”
“President Donald Trump claims that the Alien Enemies Act of 1798 grants him the power to deport certain Venezuelan-born aliens without due process based on the mere allegation of membership in a criminal street gang.
But the text of the Alien Enemies Act does not allow the president to do anything of the sort. “Whenever there shall be a declared war between the United States and any foreign nation or government, or any invasion or predatory incursion shall be perpetrated, attempted, or threatened against the territory of the United States, by any foreign nation or government,” the act states, the president may direct the “removal” of “all natives, citizens, denizens, or subjects of the hostile nation or government, being males of the age of fourteen years and upwards, who shall be within the United States, and not actually naturalized.”
The alleged crimes of the alleged members of the street gang Tren de Aragua do not meet this legal standard. There is no “declared war” between the United States and Venezuela, and there is no “invasion or predatory incursion” of the U.S. by “any foreign nation or government.” The gang is not a foreign state, and the gang’s alleged crimes, as heinous as they may be, do not qualify as acts of war by a foreign state. Trump’s frequent talk about a rhetorical “invasion” of the U.S. by undocumented immigrants utterly fails to satisfy the law’s requirements.
The fatal defects of Trump’s position are further illuminated when you compare Trump’s stance with James Madison’s 1800 “Report on the Alien and Sedition Acts.” (The Alien Enemies Act was one of the three laws that comprised the Alien and Sedition Acts.)
As Madison explained, there are two categories of “offences for which aliens within the jurisdiction” of the United States “are punishable.” The first category involves “offences committed by the nation of which they make a part, and in whose offences they are involved.” In this case, “the offending nation can no otherwise be punished than by war.” In other words, the offending nation in this case has committed an act of war against the United States. The aliens who fall within this category are “alien enemies.”
The second category involves offenses committed by aliens “themselves alone, without any charge against the nation to which they belong.” In this case, “the offence being committed by the individual, not by his nation, and against the municipal law, not against the law of nations; the individual only, and not the nation is punishable; and the punishment must be conducted according to the municipal law, not according to the law of nations.” The aliens who fall within this second category are “alien friends.”
Notice that “alien friends” may certainly be punished by the normal U.S. legal system for whatever crimes they commit while on U.S. soil. They may be deprived of their life, their liberty, and their property. But—and this is a big but—they may only be deprived of life, liberty, or property after they have received due process of law, which is what the Constitution guarantees to all persons, not just to all citizens.”
“Until Trump took office in January, the AEA had been invoked only three times in 226 years: during the War of 1812, World War I, and World War II. All of those situations fell into the “declared war” category. The AEA has never previously been invoked in response to a putative “invasion or predatory incursion” outside the context of a declared war. That is the threat Trump cites to justify peremptorily deporting suspected members of the Venezuelan gang Tren de Aragua.”
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“Trump does not claim to be at war with Venezuela. Nor does he claim that the Venezuelan government has mounted an “invasion or predatory incursion against the territory of the United States.” And a criminal organization, even one that has corrupted or “infiltrated” a foreign government, is not a “hostile nation or government” as those terms are ordinarily understood.
Nor does Trump’s understanding of “invasion or predatory incursion” make sense in the context of the AEA. “As the Supreme Court and past presidents have acknowledged, the Alien Enemies Act is a wartime authority enacted and implemented under the war power,” Katherine Yon Ebright, a lawyer at the Brennan Center for Justice who specializes in national security issues, explained last fall. “When the Fifth Congress passed the law and the Wilson administration defended it in court during World War I, they did so on the understanding that noncitizens with connections to a foreign belligerent could be ‘treated as prisoners of war’ under the ‘rules of war under the law of nations.’ In the Constitution and other late-1700s statutes, the term invasion is used literally, typically to refer to large-scale attacks. The term predatory incursion is also used literally in writings of that period to refer to slightly smaller attacks like the 1781 Raid on Richmond led by American defector Benedict Arnold.””
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“”There is a lot of law about what constitutes a foreign government,” Gelernt told Boasberg. “And I don’t think the United States recognizes [Tren de Aragua] as a foreign government. They recognize Venezuela as a foreign government. I think that’s the
historic understanding of the statute.”
Gerlent also questioned the government’s definition of “invasion or predatory incursion”: “We think the Court certainly can review whether immigration constitutes some kind of invasion….We know of no historical precedent that would suggest that straight migration or noncitizens coming and committing crimes constitutes an invasion within the meaning of the statute or the Constitution.””
“Claiming vast executive powers and “the mandate of the electorate,” the Justice Department on Monday night informed a federal judge that it was invoking the state secrets privilege and refusing to answer a judge’s orders for more information on several deportation flights of alleged Venezuelan gang members.
Attorney General Pam Bondi and other high-ranking Justice Department officials filed a “Notice Invoking State Secrets Privilege” claiming that it “would pose reasonable danger to national security and foreign affairs” to comply with U.S. District Judge James Boasberg’s fact-finding inquiries to determine if the U.S. government violated his order to turn those deportation flights around.”
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“Boasberg has repeatedly ordered the Justice Department to produce detailed information on those flights to determine if officials knowingly defied his orders. The Trump administration has offered various explanations for why it did not comply—that it didn’t consider Boasberg’s verbal order valid, and that Boasberg didn’t have jurisdiction once the flights crossed into international space, for instance.
As Boasberg’s fact-finding orders have proceeded toward considering contempt, the Justice Department’s responses have grown more obstinate, culminating in Monday night’s invocation of the state secrets privilege.”
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“the Trump administration is claiming that it can declare a war by executive order and send immigrants to a labor camp in another country, all without meaningful judicial review of the facts. As Ilya Somin recently wrote at The Volokh Conspiracy, the Trump administration’s policy violates the Due Process Clause of the Constitution and is “obviously unjust.”
“Imprisoning people without any due process whatsoever is a cruel and evil practice usually used only by authoritarian states,” Somin wrote. “And if the Trump administration gets away with it here, there is an obvious danger it will expand the practice.”
The Trump administration’s attempt to invoke the state secrets privilege raises another, tertiary danger: that we won’t even be able to know if they’re expanding the practice.”