Horror As Trump Invokes the Alien Enemies Act, Defies a Judge and Sends Innocent Venezuelans to El Salvador’s “Mega-Prison”

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Since Donald Trump launched a cynical, cruel and racist “war on migrants” when he took office two months ago, he has sought to use the existing “war on terror” prison at Guantánamo Bay to hold migrants described as “high-priority criminal aliens unlawfully present in the United States.” Most of these men — over 300 in total, just 1% of the 30,000 Trump pledged to imprison when he first announced his Guantánamo plans on January 29 — have been Venezuelans, although no evidence has been provided that any of them were the “high-priority criminal aliens” that Trump alleged, with copious amounts of evidence subsequently emerging to demonstrate that their purported involvement with a notorious Venezuelan gang, Tren de Aragua, was based solely on their tattoos.

Trump’s rationale for using Guantánamo has also been unclear. It appears, primarily, to have been an expensive act of “performative cruelty”, given how expensive it is to use Guantánamo, especially when all of the men detained could have been deported from the existing ICE facilities on the US mainland where they were previously held, a notion reinforced by the fact that most of the men were subsequently deported, while others were ignominiously returned to ICE facilities on US soil.

In an article for the Close Guantánamo website, I have just provided a detailed review of Trump’s Guantánamo migrant policy, but in this follow-up article I examine an even more disturbing development, involving Trump bypassing Guantánamo, and inappropriately invoking the Alien Enemies Act of 1798 to deport Venezuelan migrants from the US mainland, flagrantly ignoring a temporary restraining order issued by a federal court judge preventing the use of the Act to deport migrants, and immediately sending 238 Venezuelan migrants to El Salvador, along with 23 alleged Salvadorian gang members, to be imprisoned in the notorious CECOT “mega-prison”, established by El Salvador’s hardline President Nayib Bukele — again, without any evidence having been provided to back up the administration’s assertions regarding these men’s gang membership.

Trump inappropriately invokes the Alien Enemies Act

It would be hard to overestimate how alarming this development is. The Alien Enemies Act was introduced to allow nationals of an enemy nation to be detained or deported during wartime or an invasion, not to deal with issues involving immigration.

As the Act explains, “Whenever there shall be a declared war between the United States and any foreign nation or government, or any invasion or predatory incursion shall be perpetrated, attempted, or threatened against the territory of the United States, by any foreign nation or government, and the President of the United States shall make public proclamation of the event, all natives, citizens, denizens, or subjects of the hostile nation or government, being males of the age of fourteen years and upwards, who shall be within the United States, and not actually naturalized, shall be liable to be apprehended, restrained, secured and removed, as alien enemies.”

Conceived at a time of alarm regarding a possible war with France, the Act has only been used three times previously: on British nationals living in the US during the War of 1812, on around 6,000 nationals of the German Empire, Austria-Hungary, the Ottoman Empire and Bulgaria during the First World War, who were held in internment camps, and on over 30,000 mostly German and Italian nationals during the Second World War, who were held in internment camps and military facilities, with many thousands “ultimately repatriated to their country of origin, either by choice or by force”, according to NPR. Some Japanese nationals were also interned, although the majority of the more than 100,000 Japanese Americans who were placed in internment camps during the war — the greatest internment scandal in US history — were US citizens, and were “detained under different legal grounds.”

Since Trump took office, he has been trying to establish that the US is at “war” with criminal gangs from abroad, with a particular focus on Tren de Aragua. On his first day in office, he declared, as a Presidential Action, a national emergency on the southern border, and initiated another Presidential Action, “Protecting the American People Against Invasion”, in which he falsely claimed that, under Joe Biden, there had been “an unprecedented flood of illegal immigration into the United States”, in which “millions of illegal aliens crossed our borders”, who “present significant threats to national security and public safety, committing vile and heinous acts against innocent Americans”, while “others are engaged in hostile activities, including espionage, economic espionage, and preparations for terror-related activities.”

Last month, Trump formally designated Tren de Aragua as a “foreign terrorist organization”, and on March 15, as his Guantánamo plan floundered, he invoked the Alien Enemies Act in relation to what he described as “the Invasion of The United States by Tren De Aragua”, claiming that the gang’s power was such that it had “infiltrated the Maduro regime”, and that Venezuela had become “a hybrid criminal state that is perpetrating an invasion of and predatory incursion into the United States.”

Despite Trump’s use of language from the 1798 Act, NPR reported that legal experts had “long been skeptical of the Trump campaign promise” — officially adopted as Republican Party policy — to “utilize the act during peacetime”, because “immigration hasn’t historically constituted an invasion.”

In addition, as NPR noted, “The act’s fine print states that the president can only assume [the] authority [to invoke it] once Congress has declared war”, which hasn’t happened since 1942. As law professor Steve Vladeck explained, “It hasn’t been a source of contemporary controversy because we haven’t had a declared war.” He added that, until Trump, “no one has tried to argue that that invasion or predatory incursion language could be used in any context other than a conventional war.”

Katherine Yon Ebright, counsel with the Brennan Center’s Liberty and National Security Program, who wrote an explainer about the Act in October, called Trump’s actions a “flagrantly illegal” power grab, stating, “The president has falsely proclaimed an invasion and predatory incursion to use a law written for wartime for peacetime immigration enforcement. The courts should shut this down.”

In 2023, a former Trump insider, George Fishman, who had been the deputy general counsel at the Department of Homeland Security in Trump’s first term, also weighed in on the problems with the proposals to use the Act, writing that an attempt to define illegal immigration as an invasion and migrant gangs as foreign nations would be an “uphill climb in federal court.”

Trump ignores a temporary restraining order issued by the Chief Judge of the District Court in Washington, D.C.

Both Ebright and Fishman were right, but when Trump was challenged in federal court, and Judge James Boasberg, the Chief Judge of the District Court in Washington, D.C., issued a temporary restraining order “stopping the administration from using it to deport anyone”, and “adding that the administration should turn planes already in the air around”, the administration ignored it, refusing to turn back the flights sending the 238 Venezuelans to El Salvador.

With complete contempt for Judge Boasberg, for the significance of the District Court, and for the law in general, White House press secretary Karoline Leavitt stated, “A single judge in a single city cannot direct the movements of an aircraft full of foreign alien terrorists who were physically expelled from US soil”, while President Bukele, responding to Judge Boasberg’s order that deportation flights already in the air should return to the US, posted on X, “Oopsie … Too late”, followed by a laughing emoji, after the planes had landed, prompting a reply from Marco Rubio, the US Secretary of State, who thanked Bukele for taking in “alien enemy members of Tren de Aragua which El Salvador has agreed to hold in their very good jails at a fair price that will also save our taxpayer dollars.”

Back in the US meanwhile, as Judge Boasberg held a “fact-finding” hearing at which he lambasted DOJ officials for ignoring his order, Trump launched a tirade against him online, describing him as “radical left” (even though he was first appointed as a judge by George W. Bush), calling for him to be impeached, and comparing him, petulantly, to “many of the Crooked Judges I am forced to appear before.” Trump’s tirade prompted a rare rebuke from Supreme Court Chief Justice John Roberts, who stated, “For more than two centuries, it has been established that impeachment is not an appropriate response to disagreement concerning a judicial decision. The normal appellate review process exists for that purpose.”

All week, Judge Boasberg, profiled here by the Associated Press, has been at the forefront of what appears to be a dawning constitutional crisis, as his authority is deliberately flouted by the administration. As The Hill explained, the Justice Department has “resisted Boasberg’s demands for more information about the flights, citing national security concerns and accusing him of encroaching on the executive branch’s authority”, and, at a hearing on Friday, he complained to Deputy Assistant Attorney General Drew Ensign that recent filings from the DOJ included “intemperate, disrespectful language” that he “couldn’t recall ever seeing before from the federal government.”

Also in the hearing, he “expressed concern over how swiftly the administration deported the migrants” after Trump invoked the Alien Enemies Act, telling the government lawyers, “Why was this proclamation essentially signed in the dark on Friday night or early Saturday morning, and then these people rushed onto planes? It seems to me the only reason to do that is you know it’s a problem and you want to get them out of the country before a suit is filed.”

As the legal crisis continues, it appears to be too late for anything to be done about the men sent to the CECOT prison, beyond hopes that successful legal challenges will eventually require the government to bring them back, or arrange for their immediate deportation to Venezuela.

The CECOT prison — literally, in Spanish, the Centro de Confinamiento del Terrorismo (the Terrorism Confinement Center) — opened in 2023, and has a capacity of 40,000. It is not known how many people are currently held (although it is reported that, last June, around 14,500 prisoners were being held), but as the Guardian explained yesterday, in an interview with Mneesha Gellman, a political scientist at Emerson College who researches human rights and violence, it “has filled up since El Salvador declared a state of exception”, in March 2022, “allowing police and the military to arrest people on suspicion of gang affiliation without any evidence.”

As Amnesty International explained in December, since March 2022 “the Salvadoran authorities have detained more than 83,000 people, relying on an exceptional, temporary measure that, to date, without due evaluation or debate or any internal checks and balances, has been successively renewed on 33 separate occasions, making it a state policy.”

The prison is beloved by autocrats across Latin America — and now in the US — for dramatically cutting crime rates, even though, as the Guardian explained, “Human rights activists have decried how the mass imprisonments have taken place largely without legal process”, and “more than 100 prisoners have died behind bars since Bukele’s clampdown began.”

As the Australian TV journalist Liam Bartlett reported after a recent visit, “There’s no sheets and no mattresses. Prisoners sleep on cold steel frames and they eat the same meal every single day. Utensils are banned so they use their hands to eat. There’s just two open toilets in each of these massive cells and the lights stay on 24/7. Imagine how long you would last in these conditions.”

Are any of these men actually gang members?

It’s disturbing enough that, rather than simply deporting Venezuelan gang members back to Venezuela, the Trump administration is outsourcing imprisonment to El Salvador for money. According to the White House, the Trump administration is paying Bukele about $6m to hold the men.

However, as with Guantánamo, the even more chilling aspect of this story is that the Trump administration has provided no evidence whatsoever to indicate that any of these men are actually members of Tren de Aragua.

Just as story after story emerged about the Venezuelan migrants held in Guantánamo, demonstrating that they were not “the worst of the worst”, as alleged, so, with the men sent to El Salvador, severe doubts have already been voiced about their claimed status as gang members.

Of the 238 men sent to the CECOT prison, the US government said that it had used the Alien Enemies Act of 1798 for 137 of these men, who it claimed were members of Tren de Aragua, although, in court, a US official conceded that “many” of the 137 had no US convictions, but still claimed that they “posed a serious threat.” No one knows how long their detention is intended to last, but in August Bukele stated that “gang members will spend their entire lives in prison.”

The other 101 Venezuelans, according to Bukele, “were sent to CECOT for a one-year term that can be renewed.” It may be that all of the 238 men are intended to be held for a year, which would mean that the US government is paying Bukele around $25,000 for each of them. What has not been explained, however, is what will happen to them after a year. Will the Trump administration keep paying $6m a year to continue their off-shored imprisonment, or will they then be deported to Venezuela? No one knows, because nothing like this has happened before. 

What we do know, however, is that, as soon as the migrants arrived in El Salvador, the profound doubts I mentioned above began to emerge regarding the outlandish claims made about these men — of which perhaps the most prominent was White House press secretary Karoline Leavitt’s suggestion that they were “heinous monsters” who were part of “one of the most violent and ruthless terrorist gangs on planet Earth.”

Lindsay Toczylowski, a California-based lawyer for the Immigrant Defenders Law Center, represents a man she refused to name, for his own safety, but who she described as “an LGBTQ+ artist who had fled political persecution” in Venezuela and had “crossed into the US from the Mexican border city of Tijuana last year.” There, she said, “he passed a ‘credible fear interview’ used by asylum officers to determine whether asylum seekers have reasonable grounds to request protection.”

In the US, the Guardian reported, colleagues of Toczylowski’s “who had spent time with the Venezuelan man in detention described him as ‘a very sweet and normal guy’ with no criminal history”, and Toczylowski herself “said he appeared to have been wrongly identified as a gang member by immigration enforcement officials as a result of ‘some benign tattoos that are not gang related.’”

Just as tattoos emerged repeatedly in the stories of the migrants held at Guantánamo as groundless indicators of gang membership by ICE agents, so they have emerged again in relation to the men sent to El Salvador, but this time around, instead of leading to weeks of abusive treatment on the US naval base prior to deportation, they have led to perhaps endlessly renewable arbitrary imprisonment without charge or trial in one of the world’s most notorious “mega-prisons.”

In account after account, published by the Washington Post, the Guardian, France 24, the Associated Press and other mainstream media outlets, family members, shocked to see their relatives on video, being shaved and manhandled on arrival at the prison, have presented credible arguments that their relatives are guilty of nothing more than believing in the American Dream and undertaking arduous journeys to try to find work in the US.

On March 20, Drop Site News revealed that one of the men sent to El Salvador is Jerce Reyes Barrios, “a Venezuelan professional soccer player and youth soccer coach with no criminal record”, who had applied for political asylum, and “was due for a hearing on April 17, 2025”, based on his involvement in two political demonstrations against the Maduro regime, which had led to him being “abducted off the street and taken to government security forces to an undisclosed location, where he was tortured, facing electrocution and suffocation.” In other words, his asylum process, which seemed credible, was still underway when he was sent to El Salvador, and he had not been subjected to the “final removal” orders that the Trump administration has, to date, apparently been relying on to provide it with some semblance of justification for its actions.

Jerce Reyes Barrios also had tattoos, and is also included in a Guardian article yesterday profiling eight of the men sent to El Salvador, in which the presence of tattoos was repeatedly used instead of actual evidence to suggest gang membership by US officials.

Martin Rosenow, a Florida-based attorney who represents one of these men, said “Experts in Venezuela who study the Tren de Aragua gang have all stated that there are no tattoos that associate gang members. It’s not like the MS-13 gang where tattoos are relevant in their organization. Tren de Agua has no specific tattoos. If you see pictures of actual Tren de Aragua members arrested in the US, they’re shirtless and many of them don’t even have tattoos.”

Rosenow added, “I’m nauseated by it all. I’m distressed for these individuals. I’m sad for what this means. As an American, for me it’s disgraceful that we would violate human rights so flagrantly on an international level.”

Lindsay Toczylowski was also appalled, explaining, when speaking of her client, “In my 15 years of representing people in removal proceedings in the United States, this is the most shocking thing that I’ve ever seen happen to one of our clients.” She added, “We’re all in just absolute shock that this has happened. We feel like if it could happen to him, who’s next? And that’s really frightening.”

She also said that she believed that the decision to send detainees to El Salvador was “part of the Trump administration’s psychological warfare against asylum seekers and migrants”, stating, “I think it’s designed to deter people from seeking protection in the United States. I think it’s designed to be part of their effort to end asylum in the United States. And I think that they find due process and people’s ability to exercise their constitutional rights inconvenient for their plans. And so they are doing everything they can — whether it means breaking the law or not — to further their political goals here. Unfortunately, clients like our client are intended collateral damage in that pursuit.”

There is no justification — ever — for holding anyone indefinitely without providing any evidence to justify their imprisonment

23 years ago, when George W. Bush established the “war on terror” prison at Guantánamo, the enduring horror of his establishment of the prison as a response to the 9/11 attacks was his suggestion that he could seize people anywhere in the world, call them terrorists and imprison them indefinitely without charge or trial; or, to put it another way, without ever having to provide any evidence whatsoever to justify his claims. Although almost all of the 779 men and boys seized and held have now been released, some of the 15 men still held are still imprisoned on this basis.

When Donald Trump’s simplistic mind seized on Guantánamo as a suitable location for holding migrants he regarded as terrorists, he was clearly drawing on the disturbing template established by Bush, but now, with the “rendition” of Venezuelans to El Salvador, he appears to have found an almost indescribably horrific alternative — a way to hold, in another country, potentially forever, and without charge or trial, people he regards as terrorists, without anyone involved ever having had to provide anything resembling evidence; the off-shoring, in other words, of Bush’s cardinal sin — believing that there are any circumstances in which people can be imprisoned indefinitely without any evidence having to be provided to justify those actions.

Currently, this horrific scenario applies to any Venezuelan man with a tattoo seized anywhere on the US mainland — mostly, but not exclusively, those with “final deportation” orders — although who is to say, if Trump gets away with his sweeping animus towards Venezuelans, that it will not in future apply to all manner of other people, unless the US courts manage to stop him?

Note: Expect many more stories to emerge in the near future, as yesterday CBS News obtained and published a list identifying all 238 of the men sent to the CECOT prison.

* * * * *

Andy Worthington is a freelance investigative journalist, activist, author, photographer (of an ongoing photo-journalism project, ‘The State of London’), film-maker and singer-songwriter (the lead singer and main songwriter for the London-based band The Four Fathers, whose music is available via Bandcamp). He is the co-founder of the Close Guantánamo campaign (see the ongoing photo campaign here) and the successful We Stand With Shaker campaign of 2014-15, and the author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison and of two other books: Stonehenge: Celebration and Subversion and The Battle of the Beanfield. He is also the co-director (with Polly Nash) of the documentary film, “Outside the Law: Stories from Guantánamo”, which you can watch on YouTube here.

In 2017, Andy became very involved in housing issues. He is the narrator of the documentary film, ‘Concrete Soldiers UK’, about the destruction of council estates, and the inspiring resistance of residents, he wrote a song ‘Grenfell’, in the aftermath of the entirely preventable fire in June 2017 that killed over 70 people, and, in 2018, he was part of the occupation of the Old Tidemill Wildlife Garden in Deptford, to try to prevent its destruction — and that of 16 structurally sound council flats next door — by Lewisham Council and Peabody.

Since 2019, Andy has become increasingly involved in environmental activism, recognizing that climate change poses an unprecedented threat to life on earth, and that the window for change — requiring a severe reduction in the emission of all greenhouse gases, and the dismantling of our suicidal global capitalist system — is rapidly shrinking, as tipping points are reached that are occurring much quicker than even pessimistic climate scientists expected. You can read his articles about the climate crisis here. He has also, since, October 2023, been sickened and appalled by Israel’s genocide in Gaza, and you can read his detailed coverage here.

To receive new articles in your inbox, please subscribe to Andy’s new Substack account, set up in November 2024, where he’ll be sending out a weekly newsletter, or his RSS feed — and he can also be found on Facebook (and here), Twitter and YouTube. Also see the six-part definitive Guantánamo prisoner list, The Complete Guantánamo Files, the definitive Guantánamo habeas list, and the full military commissions list.

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