The Alarming Kafkaesque Basis of Trump’s “War on Migrants”

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NOTE: On June 18, I was interviewed by Chris Cook for his weekly, hour-long Gorilla Radio show about this article. You can find the show here, and I’m in the second half, after Dan Kovalik talking about Israel’s war on Iran in the first half.

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On June 4, in a memorable, 69-page memorandum opinion, Judge James Boasberg, the Chief Judge of the District Court in Washington, D.C., began a ruling relating to Venezuelan migrants deported by the Trump administration to a mega-prison for alleged terrorists in El Salvador by quoting from Franz Kafka’s “The Trial,” in which the protagonist, Josef K., “awakens to encounter two strange men outside his room,” and “realizes that he is under arrest.” However, “When he asks the strangers why, he receives no answer. ‘We weren’t sent to tell you that,’ one says. ‘Proceedings are under way and you’ll learn everything in due course.’”

As Judge Boasberg added, “Bewildered by these men and distressed by their message, K. tries to comfort himself that he lives in ‘a state governed by law,’ one where ‘all statutes [are] in force.’ He therefore demands again, ‘How can I be under arrest? And in this manner?’ ‘Now there you go again,’ the guard replies. ‘We don’t answer such questions.’ Undeterred, K. offers his ‘papers’ and demands their arrest warrant. ‘Good heavens!’ the man scolds. ‘There’s been no mistake.’ ‘[O]ur department,’ he assures K., is only ‘attracted by guilt’; it ‘doesn’t seek [it] out . . .  That’s the Law.’ ‘I don’t know that law,’ K. responds. ‘You’ll feel it eventually,’ the guard says.”

As Judge Boasberg proceeded to explain, “Such was the situation into which Frengel Reyes Mota, Andry Jose Hernandez Romero, and scores of other Venezuelan noncitizens say they were plunged on March 15, 2025. In the early morning hours, Venezuelans held by the Department of Homeland Security at El Valle Detention Facility in Texas were awakened from their cells, taken to a separate room, shackled, and informed that they were being transferred. To where? That they were not told. When asked, some guards reportedly laughed and said that they did not know; others told the detainees, incorrectly, that they were being transferred to another immigration facility or to Mexico or Venezuela.”

Instead, they were flown to El Salvador, to the mega-prison known as the Center for Terrorism Confinement (CECOT), after President Trump had invoked the Alien Enemies Act of 1798, under which, if the US “is at war or has suffered an invasion or predatory incursion,” the president is authorized “to apprehend and remove citizens of the enemy nation.”

Trump claimed that “a Venezuelan gang named Tren de Aragua,” which, he also claimed, had infiltrated the Venezuelan government, “had committed an invasion and predatory incursion upon the United States,” and, as a result, he “directed immigration officials to apprehend and remove any such gang members from the United States.”

238 Venezuelans were flown to El Salvador’s CECOT prison on March 15, defying a temporary restraining order issued by Judge Boasberg, whose June 4 opinion quoting Franz Kafka is the latest effort to hold the Trump administration accountable for disappearing these men into a legal black hole, and, crucially, for doing so with any kind of due process; without, in other words, providing any evidence to back up their claims that the men in question were gang members.

After Judge Boasberg’s temporary restraining order was ignored by the Trump administration on March 15, as I explained in an article on March 31, the case swiftly made its way to the Supreme Court, via the Court of Appeals in Washington, D.C., which upheld the TRO on March 26.

On April 7, as I explained in a follow-up article, the Supreme Court lifted the temporary restraining order, but insisted that anyone subjected to removal under the Alien Enemies Act “must receive notice … that they are subject to removal under the Act”, which “must be afforded 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 I explained in another article, on April 25, in the weeks that followed numerous other rulings took place, in courts across the country, echoing the Supreme Court’s assertion that anyone the administration intends to deport must be given the opportunity to challenge the basis of the government’s decisions.

In his ruling on June 4, Judge Boasberg took the logical and legally appropriate step of ordering the government to arrange for habeas hearings for the men sent to El Salvador without any form of due process.

As he explained, “Perhaps the President lawfully invoked the Alien Enemies Act. Perhaps, moreover, Defendants are correct that Plaintiffs are gang members. But — and this is the critical point — there is simply no way to know for sure, as the CECOT Plaintiffs never had any opportunity to challenge the Government’s say-so. Defendants instead spirited away planeloads of people before any such challenge could be made.”

“And now,” he added, “significant evidence has come to light indicating that many of those currently entombed in CECOT have no connection to the gang and thus languish in a foreign prison on flimsy, even frivolous, accusations.”

Regarding an adequate response from the government, he stated that, “Mindful of national-security and foreign-policy concerns, the Court will not — at least yet — order the Government to take any specific steps. It will instead allow Defendants to submit proposals regarding the appropriate actions that would ‘allow [Plaintiffs] to actually seek habeas relief,’” and gave the government a week to respond.

On June 10, predictably, Trump’s Justice Department filed a notice of appeal, meaning that the case will now be heard by the D.C. Circuit Court — the same court in which, on March 26, Judge Patricia Millett memorably declared, with reference to the Alien Enemies Act, and its last use during the Second World War, that “Nazis [in the US at the time] got better treatment under the Alien Enemies Act than has happened here.”

A brief history of Trump’s “war on migrants”

Trump’s template for his deportations is the “war on terror” launched by the administration of George W. Bush after the terrorist attacks of September 11, 2001, when men and boys were rounded up around the world and sent to the US naval base at Guantánamo Bay. There, they were imprisoned in a specially constructed prison as alleged terrorists without charge or trial, even though, crucially, no effort whatsoever was made to establish whether or not they were terrorists in the first place.

CECOT, continuing the “war on terror” analogy, is a mega-Guantánamo, established by El Salvador’s dictatorial President Nayib Bukele in January 2023, after he initiated “a state of exception” to deal with gang activity, allowing the police and security services to seize anyone they regarded as a gang member, without anything resembling evidence or due process, and to imprison them indefinitely without charge or trial.

I describe CECOT as a mega-Guantánamo, because, unlike the US version, where 779 men and boys have been held in total by the US military since it opened in January 2002, it has a capacity of 40,000; in other words, the equivalent of 50 Guantánamos.

The prisoners held there, as at Guantánamo, are not allowed family visits, and are subjected to a relentless regime of violence and dehumanization, but in other ways CECOT is even worse than Guantánamo. The men are not allowed lawyers — as was only the case at Guantánamo for the first two and a half years of its existence — and El Salvador’s justice minister has proudly declared that all of those held will “never return to their communities,” unlike Guantánamo, where almost all of the 779 men held there by the US military since January 11, 2002 have been freed, even if, on release, many have found that their “freedom” is largely illusory.

Trump’s “war on migrants” has been startlingly grotesque — cruel, racist and deliberately lawless and provocative — ever since he first announced it on his first day in office, via a slew of executive orders and presidential actions, which, deliberately, completely sidestepped and belittled Congress.

The inappropriate invocation of the Alien Enemies Act (only ever used before in 1812, and during the First and Second World Wars) built on Trump’s absurd declaration, on Day One of his second presidential term, that the US was under “invasion” by foreign gangs and criminals. Alarmingly, the decision to deport men not to their home countries, but to a notorious rights-abusing prison in another country, invited comparisons with the “extraordinary rendition” program of the Bush administration, which, before it set up its own “black site” torture prisons in compliant countries, sent men seized around the world to be tortured in prisons in Syria, Egypt, Libya and Morocco.

A startling lack of evidence regarding deported migrants’ alleged gang membership

Just as disturbing, however, and closely related to the contempt for due process and evidence in the cases of those seized in the “war on terror,” and those seized and held by the Bukele regime in CECOT, is the question of whether or not any of the men sent to CECOT were gang members, as the US alleged, which Judge Boasberg addressed, as I noted above, in his assertion that “significant evidence has come to light indicating that many of those currently entombed in CECOT have no connection to the gang and thus languish in a foreign prison on flimsy, even frivolous, accusations.”

While the courts have been left to grapple with the implications of an invented “war” to justify the invocation of the Alien Enemies Act, and whether or not it is lawful to send migrants to a third country, the question of whether or not these men are gang members at all has played out not just in courtrooms, but also in the mainstream media.

Unlike the “war on terror,” in which it took months or years to establish who was held, the men targeted for deportation by the Trump administration were startlingly easy to identify. When the first Venezuelan migrants were sent to Guantánamo, in February, the Department of Homeland Security posted photos of them, enabling their family members to approach journalists to demonstrate that they were not gang members at all, as I reported here, and had largely been targeted because they had tattoos. Shamefully, immigration agents have been encouraged to regard all tattoos as signs of gang membership, even though most of them, very evidently, are related to other topics — family, religion or sports teams, for example.

The sweeping generalizations involved bring to mind the flimsy evidential basis for detentions in the “war on terror,” in which owning a widely-available model of Casio watch was seen as “proof” of terrorism, because that particular model was identified as a timer component in improvised explosive devices (IEDs).

When challenged in court regarding its claimed right to hold migrants at Guantánamo, the administration responded by deporting the Venezuelans back to their home country, which they could have done in the first place had they not been obsessed with staging a theater of performative cruelty at the naval base.

With the deportations to the CECOT prison, the same fundamentally evidence-free process took place, although, in the cases of these men, although media reports have demonstrated, yet again, that patently innocent men have been deported, it has been much harder for legal challenges to curtail the administration’s lawlessness when it deliberately engineered a situation that was designed to put the men beyond the reach of the US courts.

The two men named in Judge Boasberg’s opinion — Frengel Reyes Mota and Andry Jose Hernandez Romero — are both, clearly, examples of men wrongly assessed as gang members.

Reyes Mota, a 24-year old house painter, came to the US in 2023 with his wife Liyanara Sánchez and her young son, to whom he is a doting step-father. He has no criminal record in either the US or Venezuela, and doesn’t even have any tattoos. Nevertheless, on February 4, when, as the Miami Herald explained, he “went to the Immigration and Customs Enforcement office” in Tampa, Florida “for a required check-in”, ICE agents “informed him that he was being placed in custody under suspicion of being associated with the Tren de Aragua gang.”

Hernandez Romero, meanwhile, is a 32-year old gay makeup artist, who came to the US in August 2024 via the CBP One app established under President Biden to enable would-be asylum seekers to make appointments on arrival regarding their claims. CBP One was canceled by Trump when he took office, but for Hernandez Romero it had already failed to protect him. On arrival, on August 29, 2024, while Joe Biden was still president, he was detained, attracting suspicion because he had tattoos, although they were clearly not gang-related.

Arbitrary deportations despite ongoing asylum claims

Just as significantly, both Reyes Mota and Hernandez Romero were deported even though they had ongoing asylum claims.

In Reyes Mota’s case, he was in the process of seeking asylum on political grounds, although, in an effort to justify him being “disappeared” to El Salvador, the Department of Homeland Security produced documentation alleging that he was deportable. However, as his lawyer, Mark Prada, explained to an immigration judge, in the documentation the DHS “uses someone else’s last name in several parts of the document, identifies him with female pronouns, and uses two different unique identification numbers that immigration authorities use to keep track of individuals, raising questions about the reliability of Trump officials’ accusations against him.” Nevertheless, on March 15, he was abruptly put on a plane and sent to El Salvador.

In Hernandez Romero’s case, according to his childhood friend Reina Cárdenas, “His asylum process, up to the last we saw, was favorable. He passed the credible fear test”, based on his vulnerability as a gay man in Venezuela, and “everything was going very well.” Then, suddenly, he, like Reyes Mota, was put on a plane and sent to El Salvador, where his plight has attracted widespread attention.

As Mark Prada told the Miami Herald, “We are facing a novel and extremely concerning situation where people’s immigration court proceedings are still pending but they are being disappeared from the United States without any lawful removal order. This is an affront to the rule of law.”

Research undertaken by CBS News and Bloomberg in early April established that the two cases outlined above were typical, rather than aberrations, when it came to the 238 Venezuelans sent to CECOT.

As I stated in an article at the time:

CBS News ran a “60 Minutes” exposé on April 6, in which they “obtained internal government documents listing their names and any known criminal information”, and “cross referenced that with domestic and international court filings, news reports and arrest records”, stating, “we could not find criminal records for 75% of the Venezuelans — 179 men — now sitting in prison” in El Salvador.

They added that “at least 22% of the men on the list have criminal records here in the United States or abroad”, although “the vast majority are for non-violent offenses like theft, shoplifting and trespassing.” Only “about a dozen are accused of murder, rape, assault and kidnapping.”

Bloomberg also published a critical analysis on April 9, under the heading, “About 90% of Migrants Sent to Salvador Lacked US Criminal Record”, stating that, after reviewing “hundreds of pages of US legal records and American government statements”, they “found five men charged with or convicted of felony assault or firearms violations”, three others “charged with misdemeanors including harassment and petty theft”, and two others “charged with human smuggling.”

“For the rest of the men”, Bloomberg added, “there was no available information showing they committed any crime other than traffic or immigration violations in the US”, findings that “raise questions about how the Trump administration determined that the migrants sent to El Salvador were violent criminals.”

In addition, evidence has continued to emerge establishing that many more of these men had pending asylum claims, as ABC News reported on June 4, in an article in which it was revealed that, despite them having been essentially kidnapped and rendered on a one-way trip to a barbaric foreign prison, immigration judges were pushing for their cases to be dropped.

Michelle Brane, the executive director of the immigration support group Together and Free, told ABC News that her team had “tracked at least 15 immigration cases of migrants who were sent to CECOT that were recently dismissed”, and that some of the cases included “active pending asylum applications.”

Brane told ABC News that “immigration courts should ‘administratively close’ the cases, which would allow them to be reopened ‘if and when’ the person is brought back.” As she explained, “Dismissing as opposed to administratively closing is sort of making an assumption that these people will never come back. And I think that’s premature and certainly, based on the court decisions so far, they should be brought back to receive some kind of due process.”

Attacks on those with Temporary Protected Status

In other cases, it has become apparent that some of the men sent to El Salvador had Temporary Protected Status, another protection for immigrants, championed by Joe Biden, that Trump is determined to remove.

Isabel Carlota Roby, an attorney for the Robert F. Kennedy Human Rights organization, told ABC News that “at least seven of the 10 men her group represents had some form of legal protection in the US, including Temporary Protected Status or pending asylum applications before being deported to CECOT in El Salvador.”

She explained that, while her organization represents these men internationally, “filing habeas petitions in El Salvador and other types of advocacy,” it “does not represent them in US immigration court.” Many, she added, didn’t even have immigration attorneys, having “represented themselves in court,” but they too “have had their cases dismissed recently.”

As she proceeded to explain, “They were denied due process, they are disappeared, and they are now in this legal limbo where they remain in a prison with no legal protections, excluded from the protection of the law, and they don’t know if they’ll ever have a chance at a fair trial.”

The revelation that men with Temporary Protected Status were also sent to El Salvador is another alarming development. As the Guardian explained. the TPS policy “allows people already living in the United States to stay and work legally for up to 18 months if their homelands are unsafe because of civil unrest or natural disasters”, and its protections — which do not “put immigrants on a long-term path to citizenship [but] can be repeatedly renewed” — covered hundreds of thousands of people and applied to 12 countries when Trump took office.

However, on May 19 the Supreme Court ruled that the Trump administration “can end legal protections that have shielded about 350,000 Venezuelans from potential deportation”, and on May 31 the Supreme Court followed up by ruling that the administration could also “end the immigration humanitarian ‘parole’ protections granted to 532,000 people [under] Joe Biden”, mainly relating to Venezuelan, Cuban, Haitian and Nicaraguan migrants, “potentially exposing many of them to rapid removal from the country.”

As the courts continue to demand due process for the men detained in a Kafkaesque manner and deported to CECOT three months ago, we must hope that the numerous court orders — including from the Supreme Court — that are designed to prevent further deportations without due process hold firm against an administration that is malevolently intent on deporting migrants in a wildly and cruelly indiscriminate manner, with contempt for every protection against deliberate executive overreach and abuse of power.

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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.

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