By Mel Wilson, NASW Senior Policy Adviser
The Trump Administration’s invocation of the Alien Enemies Act of 1798 to deport alleged Venezuelan gang members is both legally and morally questionable. The use of this centuries-old wartime law bypasses due process and violates constitutional protections by allowing for detention and deportation without court proceedings.
Entrance to Manzanar, a California camp where Japanese Americans were imprisoned during World War II.
Applying the Alien Enemies Act also sets a dangerous precedent that distorts the original intent of the law by labeling migrants as enemy combatants in a nonexistant war.
The televised spectacle of 260 shackled young Venezuelan men being herded off to a high security El Salvador mega-prison was meant to shock the public and impress Trump’s MAGA base. In reality, the image represented a real time example of denial of due process and equal protection under the law, and raised significant questions of human rights violations.
While the deportees are Venezuelans, they were transported and imprisoned without charges under the cover of darkness to El Salvador. However, the larger and more critical question about the “gang member” deportation operation is its legality. The Alien Enemies Act was passed in 1798 with the explicit purpose of being used during a declared war against “invaders” from a nation at war with the United States.
This law has only been invoked three times in American history – during the War of 1812, World War I, and most infamously during World War II when Japanese Americans were imprisoned in internment camps . The internment was such an injustice that Japanese Americans were awarded an apology and reparations by Congress in 1988.
The Alien Enemies Act was meant to be used in time of war, not to combat “gangs”
The common thread that connects each of the three previous applications of the Act is that, at the time of their invocation, there was an actual declared war, which, according to Constitutional law experts, means that applying the Act in those cases was supported by law.
On the other hand, many of the same experts have doubts about the legality of applying the Act to justify the Venezuelan “gang member” roundups and deportations. Their position is that the terms “declared war,” invasion,” “predatory incursion,” and “by a foreign power” are very specific and relatively unambiguous. Using those guidelines, the general consensus is that the rounding up and deportation of the Venezuelan “gang members” do not pass the legality test.
Aside from the legal issues, other aspects of this action are disturbing. This includes, of course, due process violations associated with the apprehension and detention of the men. The fact a U.S. District Court judge placed a 14-day temporary restraining order on any further deportations under the Alien Enemies Act raises the possibility the Trump Administration will be forced to justify use of the Alien Enemies Act. The final outcome of the challenge to the administration’s actions is still to be determined, but the judge’s management of this important case gives us hope.
Administration’s rounding up of gang members is a human rights violation
The rounding up, forcible deportation, and imprisonment of Venezuelan gang members in El Salvador can and should be considered human rights violations. The United Nations’ definition of human rights violations includes,“When a state engages in human rights violations, various actors can be involved such as police, judges, prosecutors, government officials, and more. The violation can be physically violent in nature, such as police brutality, while rights such as the right to a fair trial can also be violated, where no physical violence is involved.”
The treatment of the Venezuelan so-called gang member falls squarely within that definition as evidenced by the following facts:
- Arbitrary Arrests: Many of these individuals were detained based on stereotypical characteristics such as tattoos or prior criminal records, without proper evidence and with an absence of due process.
- Inhumane Conditions: The mega-prison in El Salvador, known as CECOT, is known for overcrowding, beatings, food deprivation, and lack of basic amenities. Prisoners are often shackled and bent over by armed guards. The Venezuelans – not being natives of El Salvador – are at particular risk of abuse from both guards and Salvadoran inmates.
- Held Incognito without Ability to Communicate Externally: Prisoners are denied telephone calls, visitations, and any other means of communication with the outside world – thereby isolating them and making it impossible for them to seek legal aid.
The Trump Administration is distracting public from the truth
The Trump Administration has gone to great lengths to depict the detainees as “monsters” and” violent criminals” without offering solid proof. This tactic of demonization is designed to distract the American public from the truth that the government’s actions went beyond human rights laws and convention.
Even if the language used to describe the Venezuelan deportees has some truth, the detainee’s past behaviors – no matter how reprehensible – do not give the United States or Salvadoran governments license to deny their basic human rights. That said, it must be noted that the Trump Administration has admitted many of those apprehended do not have criminal records. All of which makes their treatment even more disgraceful.
The questions about the administration’s policy are multi-dimensional. First and foremost, what will be the fate of the 260 men who remain in what can only be described as a hellhole? As of this writing, the Department of Homeland Security (DHS) has not released the names of the men being held, although some have been identified by family members who recognized them from the videos released to the media.
What is being done to help the detainees?
The next important question is, what can be done to respond to this travesty of justice and prevent it from happening again?
There is hope a lawsuit could lead to release of the detained Venezuelans.
The ACLU and other members of the immigration rights community brought the lawsuit that challenged the Trump Administration’s invocation of the Alien Enemies Act.
As referred to earlier, a federal judge ruled in ACLU’s favor by issuing a temporary restraining order preventing the administration from further using the act to deport migrants.
The hope is that the court will rule that the Trump Administration misapplied the original intent of the Alien Enemies Act, which should result in the release of the Venezuelans from the El Salvador prison.
However, that particular legal outcome does not resolve the Trump Administration’s penchant for disregarding and seeking to circumvent the 14th Amendment’s due process and equal protection provisions.
Since its day-one pronouncement of a mass deportation policy, the administration has taken a “by any means necessary” approach to achieving its mass deportation objectives. That includes embracing dubious and extra-legal measures such as family detention and deportation, use of the American military for domestic situations, and of course invoking the Alien Enemies Act.
All of which dictates that the immigration justice and human rights community must be hypervigilant about monitoring the administration’s actions and, more importantly, be prepared to mobilize to head off abuses.
