WASHINGTON (States Newsroom) – A federal judge Monday told the U.S. government to prepare to provide answers into allegations by civil rights groups that the Trump administration defied the court’s restraining order that barred use of an 18th-century wartime law to deport immigrants.
The American Civil Liberties Union wrote in court briefings that the government violated a court order by not turning around deportation flights headed to Honduras and El Salvador late Saturday, despite a restraining order in place hours prior to the flights’ landing. A hearing is set for early Monday evening.
President Donald Trump on Sunday afternoon posted a highly produced, dramatized video showing what appeared to be the deported migrants in uniform garb, chained, with their hair and beards forcibly shaved by armed prison guards in El Salvador. The men in the video were shoved into maximum security cells in the huge El Salvador prison known as the Centro de Confinamiento del Terrorismo.
“Beyond the concerns raised by the government’s own letter, there has been significant media reporting that Defendants may have defied the Court’s Order,” the ACLU wrote, referring to the Trump administration.
The Trump administration has already appealed to the U.S. Court of Appeals.
“The district court has enjoined the President from using his statutory and constitutional authority to address what he has identified as an invasion or predatory incursion by a group undertaking hostile actions and conducting irregular warfare,” the Trump administration wrote in its Sunday appeal.
The Trump administration is also appealing the lower court’s decision to allow a class action suit to include anyone who is subjected to the proclamation the president issued over the weekend. The ACLU originally brought the suit with five men who are Venezuelan and were threatened “with imminent removal under” the Alien Enemies Act.
White House press secretary Karoline Leavitt said during a Monday press briefing that the Trump administration is confident they are “going to win in court.”
She added that the U.S. paid El Salvador $6 million to detain the 261 men who were deported to the country.
The high-profile dispute is likely to head to the U.S. Supreme Court.
Saturday’s events
The administration had said in a presidential proclamation published Saturday it would be using the Alien Enemies Act of 1798, last invoked during World War II, to detain and remove anyone 14 or older who is a suspected member of the Venezuelan gang, the Tren de Aragua.
In the proclamation, President Donald Trump said he will detain and deport anyone 14 and older who is a suspected member of the Tren de Aragua. There is a carve out for naturalized citizens and lawful permanent residents, or green card holders.
“Evidence irrefutably demonstrates that (Tren de Aragua) has invaded the United States and continues to invade, attempt to invade, and threaten to invade the country; perpetrated irregular warfare within the country; and used drug trafficking as a weapon against our citizens,” according to the Trump proclamation. “As President of the United States and Commander in Chief, it is my solemn duty to protect the American people from the devastating effects of this invasion.”
To block that use of the Alien Enemies Act, the ACLU and other civil rights groups filed an emergency request before U.S. Judge James Emanuel Boasberg in the District of Columbia, and a hearing was held at 5 p.m. Eastern on Saturday. Boasberg was nominated by former President Barack Obama in 2011.
Flight records, and court briefings, show that two U.S. Immigration Customs and Enforcement flights departed from Texas Saturday – one at 5:45 p.m. Eastern for El Salvador and one at 5:26 p.m. Eastern for Honduras.
Roughly an hour later, Boasberg issued a temporary restraining order and, in his order, told the government to turn around any deportation flights that were currently in the air.
“[A]ny plane containing these folks that is going to take off or is in the air needs to be returned to the United States, but those people need to be returned to the United States,” Boasberg said, according to the court’s transcript. “However that’s accomplished, whether turning around a plane or not embarking anyone on the plane or those people covered by this on the plane, I leave to you. But this is something that you need to make sure is complied with immediately.”
Both flights landed after the orders were given by Boasberg, ACLU argues in its court records.
A third Saturday flight left from Texas to Honduras at 7:37 p.m. Eastern, according to flight records and court briefings.
In filings to the appeals court, the Trump administration argued that the district court did not have the jurisdiction to issue the temporary restraining order and that the president has the authority to use the Alien Enemies Act.
On Sunday, the president of El Salvador, Nayib Bukele, on social media, reposted a news story about the deportation flights that had continued despite a court order.
He responded, “Oopsie… Too late.” U.S. Secretary of State Marco Rubio reposted the response from El Salvador’s president from his personal account.
Rubio has traveled to El Salvador and met with Bukele to talk about accepting deportations of nationals from other countries. In those meetings, Bukele agreed to accept “members of the Venezuelan Tren de Aragua gang” and place them in jail, according to State Department records.
Due process concerns
U.S. immigration law already gives the authority to investigate, arrest and remove immigrants who are engaging in criminal activity or harm in the country, and the wartime authority to go after the Tren de Aragua is not needed, said Katherine Yon Ebright, counsel in the Brennan Center’s Liberty and National Security Program.
She said Trump invoking the wartime authority is not about “going after people who are provably committing crimes or harming American communities.”
“It’s about going after Venezuelans without due process because this law gives the president the power to say that … they’re dangerous, and just remove them without proving anything to an independent adjudicator, without any evidence that actually underlies that determination,” she said.
Immigrants subject to the Alien Enemies Act would not have access to an immigration judge or court hearing under the law.
Saturday’s proclamation is similar to an executive order the president signed on Inauguration Day, titled Designating Cartels and Other Organizations as Foreign Terrorist Organizations and Specially Designated Global Terrorists.
He previewed in his inauguration speech his intentions to designate cartels as foreign terrorist groups in order to use the Alien Enemies Act.
“By invoking the Alien Enemies Act of 1798, I will direct our government to use the full and immense power of federal and state law enforcement to eliminate the presence of all foreign gangs and criminal networks bringing devastating crime to U.S. soil, including our cities and inner cities,” Trump said during his address.
In order for the Alien Enemies Act to be invoked, an invasion by a foreign government must occur, and in the executive order relating to the cartels, the Trump administration argues that they are a foreign entity. The cartels that the Trump administration singles out in the order are the MS-13 gang and the Tren de Aragua.
U.S. Department of Homeland Security Secretary Kristi Noem has already revoked protections granted to roughly half a million Venezuelans under the Biden administration. In early February, she declined to renew Temporary Protected Status for 350,000 Venezuelans that are set to expire April 2. In her reasoning, she cited gang activity.
Ebright noted that the last time the act was invoked, during World War II, many of the Japanese, Italian and German immigrants who were detained had some form of legal status.
“I would put money on it that this proclamation is going to cover people who are lawfully present,” she said.
Historical use of Alien Enemies Act
The last time the Alien Enemies Act was invoked was after Japan attacked Pearl Harbor in 1941.
But even after World War II ended in 1945, the Alien Enemies Act was still in place for several years, along with the continuation of internment camps, because Congress and the president had not formally terminated the declaration of war, Ebright said.
She said that the U.S. Supreme Court upheld then-President Harry Truman’s extended use of the Alien Enemies Act three years after World War II on the grounds that “it would be too political for the courts to intercede and say that this wartime authority had lapsed.”
“That is something that makes talking about the Alien Enemies Act and the potential for abuse very important, but it doesn’t mean that the courts truly are powerless to step in and prevent a clear abuse of the authority right,” she said.
Ebright said there’s a distinction between the Pearl Harbor attack during World War II and present day.
“Today, you don’t have anything remotely close to a wartime context,” she said. “Judges have eyes, they can see that there has not been a second Pearl Harbor perpetrated by a gang.”
