Claiming the United States is being attacked by Tren de Aragua, a Venezuelan prison gang, President Donald Trump on Saturday invoked the Alien Enemies Act of 1798 to order the rapid detention and deportation of all Venezuelan migrants suspected of being members of TdA, treating them as wartime enemies of the U.S. government.
The president argued, in his proclamation, that members of the Venezuelan gang are “conducting irregular warfare and undertaking hostile actions against the United States.”
The Alien Enemies Act is a wartime authority that allows the president to detain or deport the “natives” and citizens of an enemy nation without a hearing and based only on their country of birth or citizenship. It has been invoked just three times in American history, each during a major conflict: the War of 1812, World War I, and World War II. It is best known for its role in Japanese incarceration during the Second World War, a shameful part of U.S. history for which Congress and several presidents have apologized.
A federal judge temporarily blocked the Trump administration’s ability to use the Alien Enemies Act on Saturday evening. The judge also ordered any airborne planes carrying those migrants to return to the U.S.
“The president’s invocation of a wartime authority for peacetime immigration enforcement is a manifest abuse and injustice,” Katherine Yon Ebright, counsel at the Brennan Center’s Liberty and National Security program, told The Intercept. “The Alien Enemies Act was last used to intern 31,000 people during World War II; it is shameful to try to revive this outdated and discriminatory law to target immigrants in modern-day America.”
The expedited removal process allowed under the act means that those subject to the president’s declaration would not go through the normal immigration court process or be able to claim asylum. Advocates fear that invoking the act would also open the door to targeting and deportations of other individuals regardless of their status or criminal records.
U.S. District Judge James Boasberg ordered a 14-day halt to deportations covered by Trump’s proclamation.
Hours before the White House published the proclamation – Trump had actually signed it a day earlier – the American Civil Liberties Union and others filed a lawsuit, J.G.G. v. Trump, on behalf of five Venezuelan men seeking to block the president from invoking the law.
“The Trump administration’s intent to use a wartime authority for immigration enforcement is as unprecedented as it is lawless,” said Lee Gelernt, deputy director of the ACLU’s Immigrants’ Rights Project and lead counsel in the lawsuit. “It may be the administration’s most extreme measure yet, and that is saying a lot.”
The five Venezuelans were accused of having links to Tren de Aragua but all deny being gang members. The lead plaintiff was arrested because an immigration officer “erroneously suspected that J.G.G. was a Tren de Aragua member on account of his tattoos,” according to the complaint. J.G.G. is seeking asylum in the U.S. because he fears being killed in Venezuela where, he said, he was “arbitrarily imprisoned, beaten and tortured by Venezuelan police.”
The five Venezuelans believed they faced an immediate risk of deportation. “The government’s proclamation would allow agents to immediately put noncitizens on planes,” according to the complaint, adding that the law “cannot be used here against nationals of a country — Venezuela — with whom the United States is not at war.”
“He wants to bypass any need to provide evidence or to convince a judge that someone is actually a gang member before deporting them.”
The judge agreed, saying that he believed the terms “invasion” and “predatory incursion” in the law “really relate to hostile acts perpetrated by enemy nations.”
“The president is invoking the Alien Enemies Act to try to dispense with due process. He wants to bypass any need to provide evidence or to convince a judge that someone is actually a gang member before deporting them,” said Ebright. “The only reason to invoke such a power is to try to enable sweeping detentions and deportations of Venezuelans based on their ancestry, not on any gang activity that could be proved in immigration proceedings.”
The Trump administration immediately filed an appeal of Boasberg’s order, and the ACLU asked the judge to broaden it to apply to all immigrants at risk of deportation under the Alien Enemies Act. At the Saturday evening hearing, Boasberg said he would issue a broader order applying to all “noncitizens in U.S. custody.”
Trump campaigned last year pledging to launch the “largest deportation operation in American history.” On his first day back in office, Trump issued an executive order titled, “Protecting the American People Against Invasion.”
The White House did not respond to The Intercept’s questions prior to publication.
“If the courts allow it to stand, this move could pave the way for abuses against any group of immigrants the president decides to target — not just Venezuelans — even if they are lawfully present in the U.S. and have no criminal history,” said Ebright. “History shows the risks. The last time a president invoked the Alien Enemies Act, tens of thousands of noncitizens of Japanese, German, and Italian descent were wrongly put into internment camps after they were deemed to be dangerous without due process and based principally on their ancestry.”
