In my last post, I promised to discuss the current state of separation of powers in the United States (“U.S.”), focusing on some issues in Congress after discussing the role of the Courts. 

The fast-moving political and legal environment in the U.S., though, means that I already wish to avail myself of the right I reserved to change plans, mostly in terms of scheduling. I commented, in my last post, that talk of U.S. President Donald Trump (“Trump”) ignoring court orders was speculative at this point. It appears, though, that this could be changing, at least in the context of migration. Much has developed in recent days regarding the U.S. Government’s treatment of migrants, and none of it is good. A head-spinning sequence of events suggests that things are quickly deteriorating in regard to human rights in the migration context – not that the scenario was good before. It has led to some dramatic showdowns with the courts.  

I write this while very aware of numerous, rapid developments regarding migrants. I do not ignore other developments, but focus on the battle over the flights to El Salvador, allegedly carrying Venezuelan nationals. Much of the commentary about these actions has rightly focused on the battle with a federal court, and with suggestions that the U.S. Government may have ignored a court order. That argument continues before the courts. While commentary may suggest that what happened with these migrants is unprecedented, it actually has an all-too-familiar appearance, even if some of the specific facts are different. Had a groundwork for this situation not been laid by past U.S. Administrations, and had they not acted with impunity, it is unlikely that the current Administration would have or could have moved so swiftly to remove migrants under these current circumstances. This post explains the disturbing scenario regarding the Venezuelan migrants and argues that much of that scenario mirrors human-rights abuses that the U.S. undertook as part of its “War on Terror.” 

How This Dispute Arose: Non-Citizens as “Aliens” and Trump’s Invocation of the Alien Enemies Act of 1798  

Immigration legislation in the U.S. refers to noncitizens as “aliens,” which is the equivalent of “foreign national.” See eg here. This terminology, thus drawn from the legislation, also has a more common understanding. Migrants are vulnerable to discrimination, as people who cannot vote, and as people so easily cast as the Other. This terminology of the “alien” in legal instruments thus serves to enhance an already problematic narrative of migrants as aliens, as Other.  

As promised during the presidential campaign, the U.S. Government has invoked the Alien Enemies Act of 1798 (“the Act”) to focus on particular migrants, in this disputed instance on Venezuelan nationals accused by the Government of membership in Tren De Aragua (“TdA”). The Government has argued it can deport those migrants without the due process required in deportation cases, because of the authority under this Act. The Act, originally written to address fears of citizens of nations with whom the U.S. was at war, is problematic in a modern setting, and always was based on problematic notions, but it is still on the books. It has only been invoked three times. It was infamously invoked during World War II to round up citizens connected to certain nations, predominantly those of Japanese, German, and Italian origin or descent, for internment in camps or removal. It may be the notoriety around that invocation that stopped the Act from being formally used after that. Concepts and language from the Act, however, became part of the political and legal narratives that were used to try to justify various detention and torture practices after the 9/11 attacks, particularly those undertaken by the U.S. and emulated elsewhere. To read much more about this line of argumentation, see my book, Maureen Duffy, Detention of Terrorism Suspects: Political Discourse and Fragmented Practices and see also  David Cole, Enemy Aliens: Double Standards and Constitutional Freedoms in the War on Terrorism (2005). 

Even if the Act was not problematic in itself, it was also never intended to give a U.S. President peacetime powers to abuse the rights of migrants, as can be seen by the plain wording of the Act itself, which reads: 

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

The U.S. Government, no doubt aware that the peacetime invocation of this Act would be challenged, has employed two narrative tools to address this obvious shortcoming, that of “invasion” and that of “war,” both indicated in the Act as justifications. Saying there is an invasion or a war, of course, is not enough to make it true, as we saw in the much-disputed declaration of a “War on Terror” after 9/11. 

In announcing invocation of the Act, the White House site posted a document called “Invocation of the Alien Enemies Act Regarding the Invasion of The United States by Tren De Aragua (sic).” The announcement, signed March 14, 2025, and released Saturday, March 15, 2025, declares: 

"Tren de Aragua (TdA) is a designated Foreign Terrorist Organization with thousands of members, many of whom have unlawfully infiltrated the United States and are conducting irregular warfare and undertaking hostile actions against the United States. TdA operates in conjunction with Cártel de los Soles, the Nicolas Maduro regime-sponsored, narco-terrorism enterprise based in Venezuela, and commits brutal crimes, including murders, kidnappings, extortions, and human, drug, and weapons trafficking. TdA has engaged in and continues to engage in mass illegal migration to the United States to further its objectives of harming United States citizens, undermining public safety, and supporting the Maduro regime’s goal of destabilizing democratic nations in the Americas, including the United States. 

                                                                     … 

Over the years, Venezuelan national and local authorities have ceded ever-greater control over their territories to transnational criminal organizations, including TdA. The result is a hybrid criminal state that is perpetrating an invasion of and predatory incursion into the United States, and which poses a substantial danger to the United States (emphasis added)." 

It is obvious that the Government announcement is intended to fit within the Act’s language of “war,” “invasion” and/or “predatory incursion,” and some of the deleted context suggests that TdA has infiltrated and is part of the Government of Venezuela, at least implying State involvement to support the Act’s language. Without addressing the merits of such a claim, it is notable that such language is present. The “war” language, of course, echoes “war” language used to justify many of the abuses undertaken in the so-called “War on Terror.” The conflation of migration with “war” is also not new and has been used in various historical contexts as well, including as part of the “War on Terror.” See my book for more detail on my argument regarding this problematic conflation.  

Perhaps planning for the possibility that the “war” scenario might not be accepted by a court, the Government also talks about “invasion,” which also draws from language of the Act. The idea of an “invasion” of migrants is also not new, and a recent example can be seen in Texas, where the Governor has repeatedly used the language of “invasion” to justify rounding up large numbers of migrants, and for other anti-migrant actions. This includes transporting many of them to northern U.S. cities, under “Operation Lone Star,” and again under the guise of “invasion.” See this State of Texas press release, titled “Texas Upholds Constitutional Right To Defend Itself From Invasion.” 

For an excellent explanation of the Act in its current invocation, see here. In its arguments before a federal court regarding the Venezuelan migrants, the U.S. Government has focused more on the language of “invasion.” 

The U.S. Government moved quickly to deport people under its invocation of the Act, with 238 migrants set for flights out the same day that the White House posted its invocation of the Act. Unsurprisingly, this approach was immediately challenged in court, leading to the dramatic showdown that same day, which played out over a weekend and is continuing to develop. 

A Federal Judge (at Least Temporarily) Blocks Use of the Alien Enemies Act of 1798 to Deport the Venezuelan Migrants: Planes Ordered to be Reversed in the Air  

Democracy Forward and the American Civil Liberties Union (“ACLU”) filed a lawsuit seeking to block this invocation of the Act. On Saturday, apparently before the Government formally announced its invocation of the Act, a U.S. federal judge issued an emergency order blocking the deportation of those named in the lawsuit and setting a hearing for that afternoon. This sequence of events is important, because the timing suggests that the U.S. Government must have been aware, even as it issued the proclamation, that there was a challenge with a hearing pending that same day to at least some of its plans. The Government nonetheless loaded two or three (latest reports suggest three) planes full of Venezuelan nationals it was removing, for departure that same day.  

On Saturday afternoon, the judge issued an order, blocking the removals for two weeks and ordering deportation flights to be returned, saying, “[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 however that is accomplished … Make sure it’s complied with immediately.”  

The order was, the judge stated, to allow the Court time to decide whether the Government’s invocation of the Act was legally sound. The judge said there were significant legal issues with the U.S. Government’s conflation of TdA with a foreign government and thus its invocation of the Act. Apparently during a break in the hearing on this matter, two planeloads of Venezuelan migrants took off from Texas. 

Although the planes were in the air when the judge issued the order that they be returned, the U.S. Government did not return them. Officials initially attempted to argue that the planes were, by then, over international waters, and thus outside of the court’s jurisdiction. This argument has evolved since then. The migrants were sent to El Salvador, which has expressed an interest in helping the U.S. Government in its removals of migrants. El Salvador’s President Bukele (“Bukele”), posted a tweet on X, saying “Oopsie … too late,” with a laughing emoji, on a repost of an article describing the judge’s order that the planes be returned. Trump retweeted this post, saying “Thank you President Bukele!” It has been reported later that a third plane took off shortly after the court issued its order and was also not returned. The quick-moving sequence of events was laid out in this Reuters article. It is being debated before the courts now. 

Elements of the U.S. media have continued to describe the migrants as a threat. Fox News, for instance, called them “Venezuelan gang members who were illegally living in the United States” and “violent gang members,” while the New York Post called them “gangbangers.” No hearing has established whether any of that is actually true, and secrecy initially surrounded the specifics of the detainees, with some family members learning of their fates after they recognized them in social-media videos. Apparently, before the court, a Government official said the migrants had no criminal records in the U.S., but is quoted as having said “the lack of specific information about each individual actually highlights the risk they pose,” acknowledging that the Government does not have a “complete profile” on the people sent to El Salvador. According to some relatives and attorneys, some of the migrants were selected because of tattoos. One of the men, according to a relative, was sent to El Salvador because he had a hummingbird tattoo. The Government has denied that the migrants were selected solely because of tattoos. 

On Sunday, March 16, 2025, Bukele posted, again on X, that 238 “gang members” had been accepted into El Salvador and sent immediately to prison. He wrote: 

Trump posted on his Truth Social account that “[t]hese are the monsters sent into our Country by Crooked Joe Biden and the Radical Left Democrats. How dare they! (sic) …” He thanked Bukele and said “[w]e will not forget.” 

Many terms are conflated in these narratives, alternating between calling the deportees “criminals,” suggesting “gang affiliation,” and calling them “terrorists,” as evidenced by Bukele’s account of where and how they are being detained in El Salvador. That is in addition to the language of ‘war” and “invasion” used in the Presidential proclamation. All of these designations cannot be true, and all do not fall within the purview of the Act’s parameters. None of them has ever been proven in any court of law. 

Media coverage of these events has properly focused on the obvious contempt for the court order shown by Bukele, Trump, and others in this astounding sequence of events. Sadly, this high-profile abuse of migrants is not unprecedented, although some of the specific facts may be. 

The Chilling Reality of the Fate of the 238 Detainees Sent to El Salvador 

This was not a “deportation” to their home countries and lives there, which would be bad enough with no procedural protections and on these facts. The prisoners have, instead, been sent to El Salvador, a third country, for indefinite detention, in a prison notorious for human-rights abuses, which is very different from a deportation.  That third country is, itself, under a proclamation of a state of emergency, suspending civil liberties, which is an even more dangerous scenario for these 238 people. If Bukele is to be believed, the U.S. President paid another country to take 238 people, civilians, into indefinite detention and involuntary servitude with no due process. It seems unlikely, from any practical view, that these people will now be released, regardless of what happens in the U.S. courts, and regardless of whether the U.S. President ultimately complies with any court orders. These were people rounded up from within the U.S., under the auspices of the immigration system, but sent to criminal imprisonment in another country as so-called “terrorists,” or “gang members” or “invaders” without any procedural protections at all. While El Salvador has said that families can file complaints to these detentions, most view that offer with skepticism. 

They were not allowed to meet with lawyers, much less have their cases adjudicated with any hearing. The identification of the men appears to be based on tenuous bases, with at least one U.S. Government official admitting they do not know much about the prisoners. It was done quickly, with no process, no information on how the selections were made, with initial secrecy as to who was being sent to El Salvador, and in an obvious rush to have them sent out of the country before the court finalized its order. Some reports suggest that, under these terrible circumstances, at least some detainees signed documents indicating they would agree to be sent to Venezuela, but were then instead sent to prison and involuntary servitude in El Salvador. 

Venezuela had previously refused to accept planes of migrants being deported there. After these detainees were sent to El Salvador, Venezuela reversed this position, raising questions as to whether the people sent to El Salvador were being used to put pressure on Venezuela. This sequence of events appears intended to intimidate other migrants, as the U.S. has urged people to self-deport, even launching a self-deportation app. 

 The "War on Terror": This Is Not Unprecedented 

We have seen abuses like this before. The images from the El Salvador prison bear a haunting similarity to notorious images of detainees at the Guantanamo Bay prison. That is no coincidence.  

It is impossible to read the sequence of events for the Venezuelan prisoners and not recall the detention and other measures against approximately 5,000 so-called “special-interest” detainees under the U.S. immigration system, after the 9/11 attacks, all with much public commentary describing them as “terrorists.” Of course, they were not terrorists, and the U.S. Government never successfully prosecuted any of them for terrorism offenses. See my book, Maureen Duffy, Detention of Terrorism Suspects: Political Discourse and Fragmented Practices and see also David Cole, Enemy Aliens: Double Standards and Constitutional Freedoms in the War on Terrorism (2005) for a more detailed discussion of this conflation of migrants with terrorists.  

This scenario also invokes President George W. Bush (“Bush”) in his twisted invocation of the laws of war to declare a “War on Terror” and claim expanded presidential powers under that false declaration of war on an entity. It invokes memories of so-called “unlawful combatants” being rounded up in various places around the world with no due process and sent to Guantanamo Bay, Cuba. Twisting of the wording in legal instruments allowed hundreds of men, and some children, to be sent there, where they endured torture and other mistreatment for years. Most were ultimately released, especially after the U.S. Supreme Court finally held, in 2008, after six years of tepid responses at best, that U.S. courts had jurisdiction to conduct habeas corpus hearings, which ultimately revealed that there was no evidence to even hold many of them as suspected terrorists. Some have ongoing cases before a deeply problematic system of “military commissions” there. About 15 of the original 700-plus detainees are still there, 23 years later, with still no real hope for release. This was all based on the flimsiest invocation of “war” language, an idea that has obviously served as a foundation for the current Administration’s invocation of the notion of “war” and “invasion,” not just to invoke the Act, but to give a larger impression of threat and resulting expanded presidential powers. After all, it worked in the past. 

We saw this before in the “extraordinary renditions” after 9/11, when people accused of, but never charged with, terrorism offenses were flown to third countries to be tortured. There were legal repercussions for some of the European countries complicit in these flights, but there were no repercussions for the members of the U.S. Administration who ran these programs.  

We have seen this before in the U.S., and this is only one example of past human-rights abuses that were never remedied, and which have resurfaced in continuing abuses. As much concern as we are currently seeing about the President potentially ignoring court orders, it is notable that the courts have reacted strongly to these current abuses. After 9/11, in an atmosphere of fear and grief and great deference to the Executive, that was not initially the case, which is how the U.S. Government managed to go six years before Guantanamo detainees even received meaningful review before U.S. courts. The courts did even less in relation to the special-interest detainees and the victims of “extraordinary rendition.”  

By contrast, we are seeing dramatic responses by the courts in this instance, with an appellate judge telling a government lawyer that “Nazis were treated better” than the detainees in El Salvador, referring to the due process given to suspected Nazi sympathizers under the Act during World War II. After Trump repeatedly called for impeachment of the federal judge who ordered the flights with Venezuelan nationals to be returned, U.S. Supreme Court Chief Justice John Roberts issued an unusual public statement saying: “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.” The American Bar Association (“ABA”) issued a statement agreeing with Justice Roberts. While it cannot be disputed that the U.S. Government is “testing the fences” in terms of how much it can sidestep court orders and stretch existing legal structures, as Steve Vladeck put it, the fences have so far stood unbroken, in large part because of robust responses by the courts. 

When we saw comparable scenarios before in the post-9/11 context, it happened with basically no repercussions for those responsible and with sluggish responses by many courts. Bush drew on past presidential actions to expand Executive powers and undertake these abuses in his War on Terror. Every President after Bush kept the Guantanamo prison open to keep these detainees without proper process, with President Obama (“Obama”) making the decision not to prosecute any members of the Bush Administration for any of these abuses, up to and including torture, and also announcing that some people would be detained at Guantanamo Bay indefinitely without trial. President Biden (“Biden”) kept the prison open as well, and the continuing abuse of the Guantanamo Bay prison is barely mentioned anymore in the public discourse. It has been normalized, when it never should have been, arguably opening the door for Trump to expand those existing abuses with less pushback. 

It is notable that Trump has also sent migrants to Guantanamo Bay. The infrastructure and normalization of abusive use of the prison were ready for him to employ. Sending 238 people to imprisonment in El Salvador as “terrorists,” or whatever the shifting designation of the moment is, with no due process, is not unprecedented in general, although some of the specific facts are new. The foundation was there already, most obviously in U.S. continuing detentions at Guantanamo. There is plenty of blame to give out for this situation. Combine that deeply flawed foundation with a U.S. President who is so willing to “test the fences” and who has been given reason to believe he acts with impunity – by past impunity for such abuses by other presidents, by the Supreme Court in its expansive presidential immunity decision, and in Trump’s own role in the January 6th attacks on the Capitol, along with his 34 felony convictions without a day served – then you have put together all of the required elements for this current abuse and for more going forward.  

The obvious and egregious contempt for the court that ordered a stay on these departure planes full of migrants is not insignificant. That is compounded by Trump’s insulting comments about this and other courts and by appalling, and untrue, suggestions among some in the Administration that courts lack the constitutional power to enjoin presidential actions. The conduct regarding the courts is dangerous. There is a context, however, in how this all arose, and this Administration had precedent that it built on for this current scenario. 

There is much more to say about the specifics of this dispute in court, and I will leave that for now to others, as it continues to quickly develop. The fate of the 238 people sent to El Salvador is uncertain and grim, and that may remain so regardless of what the courts do now.