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
Article from Reason.com
The Reason Magazine website is a go-to destination for libertarians seeking cogent analysis, investigative reporting, and thought-provoking commentary. Championing the principles of individual freedom, limited government, and free markets, the site offers a diverse range of articles, videos, and podcasts that challenge conventional wisdom and advocate for libertarian solutions. Whether you’re interested in politics, culture, or technology, Reason provides a unique lens that prioritizes liberty and rational discourse. It’s an essential resource for those who value critical thinking and nuanced debate in the pursuit of a freer society.
