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The Trump administration is building a case in court for its ability to send people in the United States to an overseas detention camp — and then refuse to bring them home even if they’re innocent.
In a new court filing Tuesday night, the administration referred to a group of Venezuelan migrants and asylum seekers it moved from the U.S. to an infamous Salvadoran prison — a gay makeup artist and a professional soccer player reportedly among them — as not only enemy combatants but also terrorists, supposedly subject to presidential powers that U.S. judges cannot review at all once they are outside of the country.
“The President doubtlessly acts within his constitutional prerogative by declining to transport foreign terrorists into the country,” administration lawyers wrote, explaining why they assert they did not violate a judge’s order to turn around planes carrying the migrants in question and bring them back to the United States.
“The President’s ultimate direction of the flights at issue here—especially once they had departed from U.S. airspace—implicated military matters, national security, and foreign affairs outside of our Nation’s borders,” government lawyers added later. “As such, it was beyond the courts’ authority to adjudicate.”
Once the planes were outside of the United States, the government argued, “the Constitution itself provided sufficient authority to act, and any dispute over the President’s extraterritorial exercise of that authority would present a non-reviewable political question.”
To some legal observers, it was a shocking assertion of presidential power.
“This argument suggests the existence of some kind of foreign policy loophole whereby the Executive could disregard the law to bring anyone accused of a national security threat outside of US territory, at which point he, as President, could do whatever he wants to them on national security ground,” said Aaron Reichlin-Melnick, senior fellow at the American Immigration Council, calling the government’s argument “a WILD claim.”
The Venezuelan migrants sent to El Salvador’s brutal supermax prison known as CECOT were claimed by Donald Trump’s administration to be members of a gang called Tren de Aragua — despite ample evidence, in some cases, to the contrary.
For example, at least one man had already successfully passed the extensive refugee screening process, only to be deemed a gang member by an immigration agent at an airport due to his tattoos, The Miami Herald reported. Several others were exercising their legal right to pursue asylum in the United States.
Now, lawyers and family members are unsure of the fate of the men sent to CECOT, which is known for its brutality and inhumane conditions — or even if they’ll ever see them again.
The Trump administration has officially designated Tren de Aragua and other gangs as terrorist organizations. And earlier this month, Trump said that Venezuelan officials and gang members were actually both members of a “hybrid criminal state that is perpetrating an invasion of and predatory incursion into the United States.” That, Trump argued, meant he could treat the supposed gang members as enemy combatants by invoking the Alien Enemies Act.
And whereas past invocations of the Alien Enemies Act have included opportunities for people to dispute their classification as enemy combatants, Venezuelan migrants who the U.S. government expelled were not given that opportunity before their planes touched down in El Salvador.
“Nazis got better treatment under the Alien Enemy Act than what has happened here. … They had hearing boards before people were removed,” Judge Patricia Millett, of the Court of Appeals for the D.C. Circuit, said at a hearing Monday. “Here, there’s nothing about hearing boards or regulations and nothing was adopted by agency officials who were administering this. People weren’t given notice [and] weren’t told where they were going.”
Even setting aside the Alien Enemies Act proclamation, which declared that supposed members of Tren de Aragua were actually part of an invading army, “the President has ample independent authority under Article II [of the U.S. Constitution] to decline to bring foreign terrorists into the United States, including by returning to the United States foreign terrorists who were previously within the United States,” the Justice Department argued in its filing Tuesday night.
Taken together, the Trump administration is arguing for a blank check to remove anyone they deem to be a gang member outside of the country without a hearing, send them to an infamous forced labor prison and then refuse to bring them back to the United States even as evidence emerges of their innocence.
Trump Administration Uses Secrecy To Cover Its Tracks
At several points in the legal fight over the flights to El Salvador’s megaprison, the Trump administration has used secrecy to push back against legal accountability, including well before Trump invoked the Alien Enemies Act last week.
Starting in February, immigration agents began detaining Venezuelan asylum seekers who’d up to that point followed the legal process for pursuing asylum in the United States. In multiple cases, the detentions were the result of people’s tattoos, Talking Points Memo reported Tuesday, citing interviews and lawyers’ declarations in court filings. “Over the next month and a half,” the outlet reported, “detainees were progressively moved across the country towards the South Texas airfield from which the removal flights departed.”
The secrecy of the operation all but ensured that lawyers for the affected migrants would not be able to challenge in court the government’s labeling of their clients as invading soldiers.
Trump signed the Alien Enemies Act proclamation in secret March 14, publicizing it the day after. The ACLU scrambled to stop expulsions in court, but in the hours that elapsed between the president’s order and a hearing over the issue, the government got two flights full of migrants off the ground and headed toward El Salvador.
As a result, even though the Trump administration acknowledged Monday that people subject to the Alien Enemies Act proclamation could have filed suit to prevent their expulsions from the United States — “We agree that if you bring habeas (corpus) that you can raise such challenges,” Deputy Assistant Attorney General Drew Ensign said — the reality is their lawyers had no ability to pursue those suits, because they had no idea what was happening to their clients.
As Millett said in court, “The question is the implementation of this [Alien Enemies Act] proclamation without any process to determine whether people qualify under it.”
Katherine Yon Ebright, a counsel in the Brennan Center’s Liberty and National Security Program who has written extensively about the Alien Enemies Act, noted that the attorney representing the Trump administration said “that the potential Alien Enemies Act targets would need to file their habeas petitions in the right district/venue” — but also that “he doesn’t know where the targets are and doesn’t think the government needs to provide notice of their impending removal.”
“Kafkaesque. Kafkaesque. Kafkaesque,” Yon Ebright reflected as the hearing concluded.
Or as Slate legal writers Dahlia Lithwick and Mark Joseph Stern argued, “This is not a constitutional argument, and it barely pretends to be. It is more akin to an argument from an archaic notion of the divine rights of kings: Trump is our ruler, it holds, such that anything he does is intrinsically lawful.”
Millett, the appeals court judge, made a similar point during the hearing itself.
“If the government says, ‘We don’t have to give due process for that,’ you could have put me up on a plane on Saturday and called me a member of Tren De Aragua … [with] no chance to protest it … and now you say it’s somehow a violation of presidential war powers to say, ‘Excuse me, no I’m not [a member of Tren De Aragua], I’d like a hearing,’” Millett said.
Separately, the government told U.S. District Judge James Boasberg late Monday night that it did not have to provide any more information on the flights because it is invoking the state secrets privilege.
“Further intrusions on the Executive Branch would present dangerous and wholly unwarranted separation-of-powers harms with respect to diplomatic and national security concerns that the Court lacks competence to address,” the administration’s filing read.
Multiple court processes are now playing out in tandem.
At the district court level, Boasberg has given the plaintiffs — the ACLU and Democracy Forward — until Monday to respond to the Trump administration’s invocation of the state secret’s privilege.
And the judge himself likely will have more to say about the Trump administration’s legal reasoning. For one thing, the administration’s Tuesday night filing repeatedly asserted that an oral order from the judge during a hearing on March 15 — in which he told the government to “immediately” turn any planes around carrying people expelled under the Alien Enemies Act — was not actually a legitimate order because it was not written down.
Referring to the oral order, the government’s filing described it as “a handful of lines in the 46-page transcript” that did not carry legal weight.
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Separately, at the appeals court level, the three-judge panel that heard arguments Monday could rule any day. If they lift the temporary pause on Trump’s use of the Alien Enemies Act, the administration could quickly allege Tren de Aragua gang membership against many others — and, without disclosing any evidence or allowing time for a hearing, quickly treat them as terrorist and enemy combatants, not migrants and asylum seekers.
