Trump’s Migrant Deportations: Judge Says Nazis in US in WWII Had More Rights to Contest Their Removal Than Venezuelan Migrants Now

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Last Wednesday (March 26), Judge Patricia Millett, a judge in the appeals court in Washington D.C., delivered a stinging rebuke to the Trump administration’s use of the Alien Enemies Act of 1798 to deport 238 Venezuelan migrants — allegedly members of the Tren de Aragua gang — to CECOT, El Salvador’s notorious maximum-security “terrorist” prison, where they are all now imprisoned without charge or trial, for at least a year, and perhaps more, at a cost to the US taxpayer of $6 million, even though no evidence was presented by the Trump administration to confirm that they were gang members, and even though, in some cases, compelling testimony from family members would seem to confirm that they had no involvement whatsoever with Tren de Aragua.

At the hearing on March 26, Judge Millett told the government’s main lawyer, Drew Ensign, a Deputy Assistant Attorney General in the Justice Department, that “Nazis got better treatment under the Alien Enemies Act than has happened here”, in an exchange relating to whether or not, as the Guardian described it, “Venezuelans targeted for removal under the Alien Enemies Act had time to contest the Trump administration’s assertion that they were members of the Tren de Aragua gang before they were put on planes and deported to El Salvador.”

Trump’s disturbing invocation of the Alien Enemies Act of 1798

Donald Trump invoked the Alien Enemies Act in a “proclamation” on March 15, in what appeared to be a nakedly authoritarian attempt to deport Venezuelans alleged to be members of the gang without making any effort to establish whether or not that was the case.

The use of the Act is disturbing enough. As I explained in an article on March 22, “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.”

The Act allows foreign nationals, over the age of 14, to be “apprehended, restrained, secured and removed, as alien enemies”, in the case of “a declared war between the United States and any foreign nation or government”, or in the case of an “invasion or predatory incursion” that is “perpetrated, attempted, or threatened against the territory of the United States, by any foreign nation or government.”

To sidestep the inconvenient reality that the US is neither at war, nor facing an “invasion or predatory incursion”, those advising Trump — individuals involved in the truly disturbing Project 2025, to remake the US as a permanent right-wing white Christian supremacist country — told him to formally designate Tren de Aragua as a “foreign terrorist organization”, and then, in his absurd and hysterical “proclamation”, to claim that Tren de Aragua’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.”

The temporary restraining order that enraged the government, and which it flagrantly ignored

The road to Judge Millett’s startling denunciation of the government’s actions — which really should have made front-page headlines worldwide — began eleven days before, on Saturday March 15.

As the 238 Venezuelans were taken from ICE detention facilities and loaded onto planes, Judge James Boasberg, the Chief Judge of the District Court in Washington, D.C., issued a temporary restraining order, blocking the administration, for 14 days, from deporting five Venezuelan men who feared summary deportation, in a case that had been submitted by their lawyers.

As Just Security described it, on their commendable and constantly updated page, “Litigation Tracker: Legal Challenges to Trump Administration Actions”, the case against the Trump administration was a “class action lawsuit challenging the government’s action on the ground that the Alien Enemies Act does not provide authority for such removals; that the removals would be in violation of immigration statutes governing deportation proceedings and the Administrative Procedure Act, in addition to a violation of habeas corpus.”

Just a few hours later, after Trump invoked the Alien Enemies Act, and the lawyers had submitted an emergency request for further action, Judge Boasberg issued a subsequent restraining order, certifying a class of “all noncitizens in US custody who are subject to the Mar. 15, 2025 Presidential Proclamation”, and protecting them all from summary deportation. As NPR described it, the restraining order was aimed at “stopping the administration from using it to deport anyone, adding that the administration should turn planes already in the air around.”

Ignoring the order, the Trump administration flew the 238 men to El Salvador, where they were then filmed and photographed being shaved and terrorized, prompting understandable outrage from Judge Boasberg, who ordered the government to explain its actions on Monday March 17.

On March 17, the government filed a noticeably insulting rebuke to Judge Boasberg, calling his orders “an affront to the President’s broad constitutional and statutory authority to protect the United States from dangerous aliens who pose grave threats to the American people”, and demanding that the Court “dissolve its orders at the first available opportunity.”

On March 18, in an attempt to assess whether the government had deliberately defied his orders on March 15, Judge Boasberg ordered officials “to submit a declaration explaining what time the flights that left US airspace prior to the filing of the TRO departed and landed, when the individuals aboard left US custody, and the number of people aboard.”

On March 19, the government responded with another noticeably insulting rebuke to the Court, stating, “What began as a dispute between litigants over the President’s authority to protect the national security and manage the foreign relations of the United States pursuant to both a longstanding Congressional authorization and the President’s core constitutional authorities has devolved into a picayune dispute over the micromanagement of immaterial factfinding.”

Justice Department lawyers suggested that the “underlying premise” of the Court’s orders was that “the Judicial Branch is superior to the Executive Branch, particularly on non-legal matters involving foreign affairs and national security”, adding, “The Government disagrees. The two branches are coequal, and the Court’s continued intrusions into the prerogatives of the Executive Branch, especially on a non-legal and factually irrelevant matter, should end.”

The lawyers then claimed that they were “currently evaluating whether to invoke the state secrets privilege as to portions of the information sought by this Court’s order” — referring to a contentious and little-used legal provision, which I first came across in a “war on terror” context, when it was used by the Obama administration to shield Jeppesen, a Boeing subsidiary, from prosecution for having been the CIA’s “travel agent for torture.”

The state secrets privilege allows the federal government “to block secret information from being used as evidence”, as CNN described it, also noting that the courts “have often been deferential to those requests, giving past presidents wide leeway to put information off limits.” Another way of putting it would be that cynical governments use the state secrets privilege not to protect national security, but to hide evidence of incompetence or wrong-doing — the latter being particularly apt with regard to the current deportation fiasco.

In court — while Donald Trump was raining down insults on Judge Boasberg, calling for him to be impeached, and describing him as a “radical left” judge (even though he was first appointed as a judge by George W. Bush) — Judge Boasberg railed against the filings from the DOJ for including “intemperate, disrespectful language” that he “couldn’t recall ever seeing before from the federal government”, and, after further to-ing and fro-ing (also covered by Just Security), on Monday March 24 he finally had the opportunity to deliver his own considered demolition of the government’s claims that the temporary restraining orders should be dropped, ruling definitively that they should not.

Judge Boasberg’s ruling

In a commendable 37-page opinion, Judge Boasberg began by describing how the five Plaintiffs had “sought emergency relief in this Court”, because they “justifiably feared that, in a matter of hours, they might be removed from the country pursuant not to the Immigration and Nationality Act of 1952, but instead the Alien Enemies Act of 1798, a law last invoked in the wake of Pearl Harbor as the nation was preparing for a world war.”

Judge Boasberg’s mention of the INA was significant, as it brought into focus the fact that, in the years since the Second World War, immigration detention and deportation policies have been strictly codified, with no circumstances existing in which anyone can be removed without a hearing, although it should also be noted that even the Alien Enemies Act provides for hearings, stating that alleged aliens must be “duly apprehended and convened before [a] court, judge or justice”, who, “after a full examination and hearing on such complaint. and sufficient cause therefor appearing, shall and may order such alien or aliens to be removed out of the territory of the United States.”

In addition, as Judge Millett was to so memorably declare just two days later, even in the Second World War, when over 30,000 mostly German and Italian nationals, including suspected Nazis, were held, they all had hearings. In his ruling, Judge Boasberg made a point of noting that, while President Roosevelt “vigorously deployed” the power of the Alien Enemies Act, he nonetheless “provide[d] for hearings for arrested alien enemies . . . in order to permit them to present facts in their behalf.”

Returning to the specifics of the Venezuelans’ deportation, Judge Boasberg proceeded to explain how the Plaintiffs had reason to believe that the president “had secretly signed a Proclamation invoking the Act, and, upon its imminent publication, the Government would begin immediately removing them without any hearing to ensure that they fell within its scope.”

“As expected”, he continued, “later that day the President indeed published a Proclamation announcing that because Tren de Aragua — a violent, transnational criminal organization based in Venezuela — had committed an ‘invasion’ or ‘predatory incursion’ upon the United States, the Government could begin immediately deporting any Venezuelan noncitizens it deemed to be members of Tren de Aragua.”

After noting that the Plaintiffs were “among those so deemed”, he stated, powerfully, “But wait, they protest; the Government was mistaken. Each vehemently denies being a member of Tren de Aragua and thus subject to the Proclamation. Several in fact claim that they fled Venezuela to escape the predations of the group, and they fear grave consequences if deported solely because of the Government’s unchallenged labeling.”

Judge Boasberg proceeded to explain that the Plaintiffs “therefore sought a Temporary Restraining Order preventing the Government from deporting them or other Venezuelan noncitizens under the Proclamation without a hearing”, adding that neither of the two orders that he issued “required the Government to release a single individual from its custody”, or “prevented the Government from apprehending anyone pursuant to the just-published Proclamation”, or prevented the Government from deporting anyone — including Plaintiffs — through authorities other than the Proclamation, such as the INA.”

“Indeed”, he added, because the President “last month designated Tren de Aragua a Foreign Terrorist Organization, members of the gang are already inadmissible to (and thus deportable from) the United States under the INA.”

Explaining his reasons for denying the government’s request to drop the TROs, Judge Boasberg explained, firstly, that the President’s “unprecedented use of the Act outside of the typical wartime context — and Plaintiffs’ various challenges to such use — implicates a host of complicated legal issues, including fundamental and sensitive questions about the often-circumscribed extent of judicial power in matters of foreign policy and national security”, primarily “in connection with Plaintiffs’ contention that any action taken pursuant to the Proclamation is unlawful because, despite the President’s determination otherwise, Tren de Aragua is not a ‘foreign nation or government,’ and its actions, however heinous, do not amount to an ‘invasion’ or a ‘predatory incursion.’”

Secondly, he added, “The Court need not resolve the thorny question of whether the judiciary has the authority to assess this claim in the first place”, because the Plaintiffs “are likely to succeed on another equally fundamental theory: before they may be deported, they are entitled to individualized hearings to determine whether the Act applies to them at all.”

He then stated, “As the Government itself concedes, the awesome power granted by the Act may be brought to bear only on those who are, in fact, ‘alien enemies.’ And the Supreme Court and this Circuit have long maintained that federal courts are equipped to adjudicate that question when individuals threatened with detention and removal challenge their designation as such. Because the named Plaintiffs dispute that they are members of Tren de Aragua, they may not be deported until a court has been able to decide the merits of their challenge. Nor may any members of the provisionally certified class be removed until they have been given the opportunity to challenge their designations as well.”

This is only a brief summary of the main points raised by Judge Boasberg, and the whole of his opinion is worth reading, as it includes a detailed analysis of legal precedents establishing why the Plaintiffs can expect their case to succeed, as well as making reference to how the Plaintiffs “emphatically protest” that many of the people on the flights to El Salvador “are not members of Tren de Aragua”, and including in their filings “the declarations of lawyers who state that their clients who were removed to El Salvador on those flights have no connection to the gang.” In contrast, as he also noted, the government’s sole rejoinder is that Immigration and Customs Enforcement personnel “carefully vetted each individual alien to ensure they were in fact members of [Tren de Aragua],” even though it also conceded that not all of them “have criminal records in the United States.”

Judge Boasberg also made a powerful argument against deportation to the CECOT prison under anti-torture provisions — and, specifically, the Plaintiffs’ contention that the government “violated the Foreign Affairs Reform and Restructuring Act (FARRA) in removing them without regard to legally binding humanitarian protections” that are meant to provide protection from the kind of abuse that is disturbingly well-chronicled at CECOT.

The government loses again, in the Circuit Court, and appeals to the Supreme Court

The day after, the government predictably invoked the state secrets privilege to try to prevent Judge Boasberg from ascertaining exactly what happened, and when it happened, on March 15. However, if they thought that they were fighting back decisively, that illusion was shattered on March 26 when, in response to an appeal to the D.C. Circuit Court that government lawyers had petulantly filed after Judge Boasberg issued his TROs, Judge Millett delivered her memorable line about how “Nazis got better treatment under the Alien Enemies Act than has happened here”, and the Court, by two votes to one, upheld Judge Boasberg’s temporary restraining orders.

As this is already a long article, I won’t discuss in detail the Circuit Court’s ruling, in which Judge Karen LeCraft Henderson and Judge Millett upheld Judge Boasberg’s orders, while Judge Justin Walker, a Trump appointee, dissented.

Again, I recommend reading the whole of the 93-page ruling, although I do want to highlight the following summary of what is at stake by Judge Millett, who wrote:

In this appeal, the government seeks exceptional emergency relief from temporary restraining orders that do just one thing—prevent the summary removal of Venezuelan immigrants to a notorious prison in El Salvador or other unknown locations without first affording them some semblance of due process to contest the legal and factual bases for removal. Plaintiffs are Venezuelan immigrants who the government claims are members of a violent criminal gang known as Tren de Aragua. In the government’s view, based on its allegation alone, Plaintiffs can be removed immediately with no notice, no hearing, no opportunity — zero process — to show that they are not members of the gang, to contest their eligibility for removal under the law, or to invoke legal protections against being sent to a place where it appears likely they will be tortured and their lives endangered.

Undeterred, the Trump administration has now appealed to the Supreme Court, where those seeking to undermine judicial objectivity, and to stack the Court with right-wingers sympathetic to the aims of Project 2025, have worked assiduously, over many years, to establish a majority. Of the nine Justices, three (Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett) were appointed in Trump’s first term, after Republicans in Obama’s last year in office shamefully prevented Merrick Garland’s nomination through deliberate inaction — a scandal that, it seems, almost no one knows about, or remembers, three others are Conservatives appointed under both of the Bush presidents ( Clarence Thomas, Samuel Alito and the Chief Justice John Roberts), while only three are liberals — two appointed by Obama, and one by Biden (Sonia Sotomayor, Elena Kagan and Ketanji Brown Jackson).

That said, it may be that Chief Justice John Roberts and Trump appointee Amy Coney Barrett are not as pliable as the Project 2025 law-wreckers are hoping they will be.

It is very much to be hoped that this is the case, because what is at stake here is not, fundamentally, whether or not Trump can claim that there is a war when there isn’t — an argument that I expect him to lose eventually — but how the administration can claim the right to deport Venezuelan migrants to a truly vile prison in a foreign country where they will almost certainly be cut off from all communication with their families or their lawyers, without a hearing, and on the basis of allegedly secret evidence that simply doesn’t seem to exist.

The complete lack of evidence that any of these men are, as alleged, members of Tren de Aragua

As I explained in my article on March 22, investigations by journalists have established, in case after case, that many of the men sent to El Salvador have no connection whatsoever to Tren de Aragua, and include an LGBTQ+ artist who had fled political persecution in Venezuela, and Jerce Reyes Barrios, a professional footballer who had also fled persecution, after he was abducted and tortured for taking part in a political demonstration. In his case, an even more alarming development is that, at the time of his deportation to El Salvador, he hadn’t even exhausted the legal process of applying for asylum in the US, as he had a hearing scheduled for April 17.

As was the case with Guantánamo, where 178 Venezuelan migrants were sent in February, before being repatriated, the government’s claim that these men were members of Tren de Aragua were frequently refuted, and seemed to be based on nothing more than the fact that they had tattoos.

In a court submission, Robert Cerna, the acting field office director for ICE Enforcement and Removal Operations, claimed that those sent to El Salvador were “carefully vetted”, and that the agency “did not simply rely on social media posts, photographs of the alien displaying gang-related hand gestures, or tattoos alone”, but “also looked at previous criminal convictions, testimonies and interviews with known Tren de Aragua members” as CNN reported.

Cerna, however, also admitted that, “While it is true that many of the [Tren de Aragua gang] members removed under the AEA do not have criminal records in the United States, that is because they have only been in the United States for a short period of time”, adding, “The lack of a criminal record does not indicate they pose a limited threat.” Elsewhere in his testimony, he also claimed that “the lack of specific information about each individual actually highlights the risk they pose”, and “demonstrates that they are terrorists with regard to whom we lack a complete profile”, an argument that is mind-blogline in its reversal of logic, attempting to suggest that, the less the government knows about alleged gang members, the more it establishes the danger that they pose.

In the real world, meanwhile, evidence continues to mount that those sent to El Salvador were demonstrably not members of Tren de Aragua. On March 26, Mother Jones, to cite just one example of many mainstream media outlets that have conducted investigations casting serious doubt on the government’s claims, published a detailed report based on interviews with friends, family members and lawyers of ten men sent to El Salvador. All of them said that “their relatives have tattoos and believe that is why their loved ones were targeted” and all “vigorously reject the idea that their sons, brothers, and husbands have anything to do with Tren de Aragua.” Crucially, Mother Jones added that the families have substantiated their assertions, “including — in many cases — by providing official documents attesting to their relatives’ lack of criminal histories in Venezuela”, evidence that “might have persuaded US judges that the men were not part of any criminal organization had the Trump administration not deliberately deprived them of due process.”

One, Arturo Suárez Trejo, is “an aspiring pop musician who records under the name SuarezVzla.” His “innocuous” tattoos were recognized by his wife, who gave birth to a daughter six months ago, and who was profoundly shocked to see her husband in a photo taken at the CECOT prison. Like the footballer Jerce Reyes Barrios, Trejo was deported even though his immigration case was still pending and he was due to appear before a judge on April 2.

Another man, Neri Alvarado Borges, has an autistic brother, and three tattoos, one of which, as his sister, María, explained, “is an autism awareness ribbon with his brother’s name on it.” María also explained that “he used to teach swimming classes for children with developmental disabilities”, and was someone who “wouldn’t even hurt a fly.” Detained by ICE agents outside his apartment in early February and brought in for questioning, his boss, at the bakery where he worked, said that he had been asked “to explain his tattoos and for permission to review his phone for any evidence of gang activity”, and that the ICE agent questioning him concluded, “You’re clean. I’m going to put down here that you have nothing to do with Tren de Aragua.” Nevertheless, he was sent to El Salvador.

in another case, Henry Albornoz Quintero “was due in court for a bond hearing … after being taken into detention at a routine ICE check-in”, but he never appeared. John Dutton, his Houston-based immigration attorney, told Mother Jones that “he started noticing ICE officers detaining Venezuelans during check-ins due to their tattoos earlier this year.” As he explained, “If they notice they have a tattoo, they’re just taking them into custody. No more questions to ask.” He estimated that “he now has about a dozen clients who have been arrested because of tattoos.”

At Quintero’s bond hearing, as Dutton said, “I show up. The judge asked me where my client is. I asked the same question to the DHS attorney. She looked at her notes, shuffled papers around as if she’s gonna find the answer in there, looks up, and said, ‘Judge, I don’t know.’”

Dutton said that he “told the judge that his client might be in El Salvador”, because “his relatives had recognized him in one of the images of people at CECOT.” The judge “then decided not to hear the case on the grounds that he no longer had jurisdiction.” As Dutton said, “You could tell he wanted to help me. He just couldn’t. There’s nothing he could do.”

The stories go on and on, building up to what appears very much to be one unassailable conclusion: that this was a planned operation, dating back to the early days of Trump’s second term, through high-level negotiations with President Bukele, and that, despite all the belligerent rhetoric about the migrants being “heinous monsters” who were part of “one of the most violent and ruthless terrorist gangs on planet Earth”, as the hysterical White House press secretary Karoline Leavitt claimed, they were more or less arbitrarily rounded up for the flights on March 15 because they were Venezuelan and because they had tattoos.

Joseph Giardina, an immigration lawyer who represents one of the men now in El Salvador, said, “This doesn’t just happen overnight. They don’t get a staged reception in El Salvador and a whole wing for them in a maximum-security prison. It was a planned operation, that was carried out quickly and in violation of the judge’s order. They knew what they were doing.”

Ilya Somin, a law professor at George Mason University, added, “They didn’t just deport these people and then set them free. They sent them to El Salvador, where that country, at the behest of the United States, is incarcerating them for at least a year in their prison system. This is not just deportation without due process. This is imprisonment without due process in a foreign prison system that has terrible conditions. That’s a pretty blatant violation of the Fifth Amendment’s due process clause, which says that you can’t take away people’s life, liberty or property without due process of law.”

Forgotten lessons from Guantánamo

If one outcome should have been clear from the Bush administration’s ruinous “war on terror”, which led to the imprisonment at Guantánamo, mostly without charge or trial, of 779 men and boys alleged to be involved in international terrorism, it is that imprisoning people without evidence, and without any form of due process, is a fast-track way to turn a country that claims to respect the rule into one that is indistinguishable from a brutal dictatorship.

At Guantánamo, where 15 men are still held, the Bush administration provided no evidence to justify the imprisonment of the 779 individuals, and in fact, insisted that it didn’t even need to provide evidence, asserting, outrageously, that, when they were seized, and without any need for a review, they were all “enemy combatants” who could be held indefinitely without charge or trial.

As the Trump administration seeks to revive the “war on terror” on Venezuelans in the US — mostly, but not all, facing “final removal” orders, having failed to overcome a largely hostile immigration process — the notion that they all face deportation to a brutal foreign prison without any form of due process is so alarming that it almost defies comprehension, especially as, if the government should manage to prevail in its intemperate demands that it cannot be prevented from doing whatever it wants, because, essentially, the president’s power is beyond reproach, the future for migrants from all manner of other countries also looks unimaginably bleak, as the US becomes a hostile, closed country sending a cruel message to the world that it has no interest in welcoming any immigrants from anywhere at all.

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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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