Trump's Understanding of Due Process Is Just As Farcical As His Definition of 'Alien Enemies'

Two weeks ago, the U.S. Supreme Court unanimously held that foreign nationals threatened with summary deportation as "alien enemies" have a due process right to challenge that designation through habeas corpus petitions. As the Court explained in Trump v. J.G.G., that meant alleged members of the Venezuelan gang Tren de Aragua "must receive notice" that "they are subject to removal" under the Alien Enemies Act (AEA) "within a reasonable time and in such a manner as will allow them to actually seek habeas relief in the proper venue before such removal occurs."

As the American Civil Liberties Union (ACLU) notes in a lawsuit it filed on Friday, the Trump administration maintains that it is obeying that order by giving AEA detainees 12 hours to indicate whether they plan to file habeas petitions, then another 24 hours to do so. If they fail to meet those extremely tight deadlines, they can be immediately shipped off to El Salvador, where the Salvadorian government has agreed to imprison them at its notorious Terrorism Confinement Center (CECOT).

That notion of due process, the ACLU argues, is plainly inconsistent with the Supreme Court's order, relevant case law, and historical practice. "The lack of adequate notice is all the more concerning," it says, because "designees are at grave risk of erroneous removal due to the government's dubious methods for identifying alleged [Tren de Aragua] members." Those methods include an "alien enemy validation guide" that relies on iffy evidence such as tattoos, clothing, social media posts, and "associating" with "known" Tren de Aragua members. The ACLU notes that relatives of some deportees sent to CECOT "maintain that they have no connection at all" to the gang.

The ACLU also reiterates its challenge to President Donald Trump's dubious interpretation of the AEA. In a March 15 proclamation, Trump invoked that 1798 law to describe Tren de Aragua members as "alien enemies," which counterintuitively implies that the gang is a "foreign nation or government" that has "perpetrated, attempted, or threatened" an "invasion or predatory incursion against the territory of the United States."

Even while affirming the due process rights of AEA detainees, the Supreme Court said they must file habeas petitions in Texas, where they are being held, rather than seek relief under the Administrative Procedure Act in the U.S. District Court for the District of Columbia. The justices therefore vacated a temporary restraining order (TRO) that James Boasberg, the chief judge of that court, issued on March 15 in response to the ACLU's original lawsuit. The ACLU nevertheless filed its new motion in D.C., which it argues is appropriate for two categories of AEA detainees.

More than 130 people deported before the Supreme Court's order "remain imprisoned at CECOT," the ACLU says. Those deportees are effectively still in U.S. custody, it argues, in light of the Trump administration's arrangement with El Salvador, which is being paid to imprison them at the U.S. government's behest. But since they are "being detained abroad and outside any judicial district," the ACLU says, the appropriate venue is the District of Columbia, where the relevant federal officials are located.

The ACLU is seeking an order requiring the government to "immediately request and take all reasonable steps to facilitate the return" of those deportees from "Respondents' jailer in El Salvador." It notes that the Supreme Court recently upheld such an order in a case involving an accused member of the MS-13 gang who was illegally sent to CECOT because of an "administrative error."

The ACLU is also seeking a preliminary injunction on behalf of suspected Tren de Aragua members who are in criminal custody within the United States. As of last month, the government said 32 people subject to AEA deportation fell into that category. Although the usual rule is that habeas corpus petitions must be filed against a detainee's "immediate custodian," the Supreme Court has said that rule does not apply when a detainee is challenging "his future confinement" in a different place.

That "more expansive definition of the 'custody' requirement," the Court noted in 1973, "made it possible for prisoners in custody under one sentence to attack a sentence which they had not yet begun to serve" and "enabled a petitioner held in one State to attack a detainer lodged against him by another State." In this case, the ACLU argues, that means AEA detainees in U.S. criminal custody can challenge their future confinement in El Salvador by appealing to a federal judge in D.C.

The ACLU is asking for an order that blocks the removal of those detainees and requires the government to "provide immediate, adequate notice of designation to each subclass member and class counsel." It says that would entail "a reasonable opportunity of no less than 30 days to challenge their designation, detention, and removal under the AEA."

That would be consistent with the government's practice during World War II, when people designated as "alien enemies" had that much time to challenge their detention and removal. The government also gave those individuals an opportunity to voluntarily leave the United States. Here, by contrast, the government has not only deported accused gang members, including people who insist they were erroneously identified as such, without notice or an opportunity to be heard; it has contracted with a foreign government to imprison them indefinitely without due process.

The ACLU notes that "detainees at CECOT are subject to torture—including regular beatings, waterboarding, and use of implements on fingers to force confessions—in addition to ill treatment, overcrowding, lack of access to counsel, lack of access to healthcare and food, and physical abuse by both prison personnel and gangs." It says they therefore "have been subjected to conditions that are much worse than those at [Immigration and Customs Enforcement] detention facilities in the United States"—worse, in fact, than the conditions for "prisoners serving criminal sentences in most places in the world."

According to the lawsuit, AEA detainees who want to avoid that fate still have no practical recourse, despite the Supreme Court's order upholding their right to due process. The government dodged a subsequent TRO in the Southern District of Texas by moving "a large group of Venezuelans" to the Northern District of Texas, the ACLU says. Then "a judge in that district denied a TRO as to the named petitioners and deferred decision on class certification" based on his understanding that the government would not seek to remove the proposed class members "without adequate notice."

The government's idea of "adequate notice" became clear when it "quickly distributed AEA notices to detainees and not long after began loading them onto vehicles," the lawsuit says. "The English-only form, not provided to any attorney, nowhere mentioned the right to contest the designation or removal, much less explained how detainees could do so. It also did not provide a timeline by which designees needed to seek habeas relief."

The government's reading of the AEA is just as farcical as its definition of due process. Prior to Trump's proclamation identifying alleged Tren de Aragua members as "alien enemies," that 227-year-old statute had been invoked just three times: during the War of 1812, World War I, and World War II. "The government seeks to invoke this limited wartime authority to execute removals wholly untethered to any actual or imminent war or to the specific conditions Congress placed in the statute," the ACLU notes.

The Supreme Court has not yet addressed the legality of Trump's proclamation. But the historical evidence overwhelmingly indicates that Congress understood an "invasion or predatory incursion against the territory of the United States" in military terms. In support of that conclusion, the ACLU cites contemporaneous dictionary definitions, correspondence among the Founders, court decisions in the early 19th century, and the U.S. Constitution, which "in every instance" uses the terms invade and invasion "in a military sense."

That understanding also comports with the AEA's surrounding language and with the context in which Congress enacted it. The statute applies when "there is a declared war" between the United States and a "foreign nation or government" or when a "foreign nation or government" has "perpetrated, attempted, or threatened" an "invasion or predatory incursion against the territory of the United States" (even when a war has not been declared). "At the time of passage," the ACLU notes, "the United States was preparing for possible war with France and already under attack in naval skirmishes. French ships were attacking U.S. merchant ships in United States waters. Congress worried that these attacks against the territory of the United States were the precursor to all-out war with France."

Trump's equation of Tren de Aragua with a "foreign nation or government" is equally problematic. "By no stretch of the statutory language can [Tren de Aragua] be deemed a 'foreign nation or government,'" the ACLU says. "Those terms refer to an entity that is defined by its possession of territory and legal authority." It adds that the historical context of imminent war with France "also reflects Congress's intent to address conflicts with foreign sovereigns, not criminal gangs."

Tellingly, Trump's proclamation does not explicitly assert that Tren de Aragua is a "foreign nation or government," although it does aver that the Venezuelan government has "ceded ever-greater control over [its] territories to transnational criminal organizations." The proclamation "notably does not say that [Tren de Araua] operates as a government in those regions," the ACLU notes. "In fact, the Proclamation does not even specify that [Tren de Aragua] currently controls any territory in Venezuela. And even as the Proclamation singles out certain Venezuelan nationals, it does not claim that Venezuela is invading the United States."

Adding to the confusion, Trump refers to "members" of Tren de Aragua as "alien enemies." But the AEA defines that term as "natives, citizens, denizens, or subjects of the hostile nation or government." It makes no sense to say that members of Tren de Aragua are "natives, citizens, denizens, or subjects" of the gang. And as the ACLU notes, Trump is not claiming to be at war with Venezuela.

The government initially argued that courts could not assess the plausibility of Trump's puzzling definitions because it was a "political question." But at the Supreme Court, the Trump administration's lawyers conceded that detainees "may be able to obtain narrow review of 'the construction and validity of the statute,'" focused on "questions like 'whether the detainee is an alien, and whether the detainee is among the 'natives, citizens, denizens, or subjects of the hostile nation' within the meaning of the Act." The Court, after all, had said as much in the 1948 case Ludecke v. Watkins, which is where those quotes come from.

"Nowhere did Ludecke suggest that questions of statutory interpretation are beyond the
courts' competence," the ACLU notes. "Indeed, four years later, the Court reversed a government World War II removal decision because '[t]he statutory power of the Attorney General to remove petitioner as an enemy alien ended when Congress terminated the war.'" And federal courts "have reviewed a range of issues concerning the meaning and application of the AEA's terms" in a long line of cases.

The "political question" doctrine "exists primarily to reinforce the separation of powers," the ACLU notes. "But applying the doctrine here would undermine Congress's constitutional authority, because it would render the limits that Congress wrote into the statute unenforceable."

Whether or not the ACLU succeeds in this particular case, in other words, the courts ultimately will have to determine whether Trump's invocation of the AEA against alleged gangsters makes any sense in light of the statute's language and history. Spoiler alert: It does not.

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