Even The Guy Who Saw Nothing Wrong With CIA Torture Thinks Trump Is Going Too Far With His Deportation Efforts

Legal Issues

from the when-you've-lost-john-yoo... dept

Trump seems very interested in speed-running the martial law curve. His previous term in office saw him suggesting the military should help quell anti-police violence protests around the nation, as well as participating in his undeclared war on immigration by aiding in the policing of our southern border.

With Trump taking office for a second time, every bad idea is now worse. Right now, the administration is using a 225-year-old law to justify its unlawful immigrant removal efforts. The 1798 law (one that has no expiration date) was passed to grant the government additional powers to remove enemies of the state in times of war.

Its previous invocations demonstrate when it’s (possibly) prudent to invoke this act. During the War of 1812, it was used to report and remove British nationals. In World War I and World War II, it was used to detain or remove foreign non-citizens. In the latter case, it led directly to one of the most shameful periods in US history — one in which more than 100,000 US residents of Japanese descent were sent to concentration camps located inside the United States for the duration of the war.

That alone should have been enough to keep any post-WWII president from invoking the Alien Enemies Act. But Trump and his enablers are not regular people. They are hateful, spiteful, performative, and completely unworthy of the power they have been gifted with.

The invocation of this power to “justify” the mass deportation of immigrants to whatever foreign country will take them is a deliberate attempt to bypass judicial review of Trump’s deportation programs, which have already been met with injunctions blocking further expulsions.

But even the most expansive reading of this act doesn’t seem to support what Trump’s doing now. Oddly enough, John Yoo — the author of the legal memo “legalizing” CIA torture programs — says this is an unacceptable abuse of law that comes with all the abuse buttons already built in.

While controversy immediately arose over whether the administration had defied a court order to stop the deportation flights, the more important question will soon demand an answer: whether the Alien Enemies Act applies at all. The act grants sweeping powers to the executive branch but only during a time of declared war or “invasion or predatory incursion” by “a foreign nation or government.” President Trump will have to make a difficult case that TdA [Tren de Aragua] and other gangs act at the behest of foreign nations that are conducting an invasion of the United States.

Yoo thinks Trump can’t actually make this case. It takes a declared war to invoke this act. But no war has been declared here. Instead, Trump simply insists that mere (alleged) presence of foreign gang members in the US is all the “invasion” or “predatory incursion” he needs to declare war, without… you know… actually getting Congress involved and officially declaring war.

Yoo’s article argues there’s nothing there to support Trump’s assertions. Tellingly, he quotes possibly the only thing that might make that case for Donald Trump, even if Trump himself isn’t smart enough to make this argument on his own. And, of course, it’s from the same entity behind the Project 2025 effort — one that deliberately aims to consolidate executive power at the expense of literally everything and everyone that doesn’t fit into its ghastly, narrow-minded view of the future.

In support of the administration, one could cite a Heritage Foundation report that states that “the goal of the TdA, whether in Chile or the United States, is to establish territorial control to impose a criminal economy that connects illicit networks from urban and suburban areas to penitentiaries in or near those neighborhoods.” According to that report, “once an uptick in crime and violence in a local neighborhood is detected and attributed to Venezuelan migrants, the presence of the TdA is probably already established.”

That appears to be the rationale the Trump administration is using: any signs of violence linked to foreign gangs is enough to trigger a state of war and the executive branch’s ability to wield war powers.

As Yoo sees it, it will likely accomplish exactly what Trump wants: an immediate boost in power and reduced friction from the federal court system. But the long game won’t work out in Trump’s favor, and it’s definitely going to do a lot of long-term damage to the reputation of the US and millions of people who currently reside in this country.

[T]he cost would be the creation of a state of war between the United States and Venezuela. If the United States has been invaded by Venezuelan agents, then the president can go to war in national self-defense without need of a congressional act or declaration of war. Washington could not only detain any and all Venezuelan citizens within the United States but also use military force against Caracas. It could take lethal action against the Venezuelan military, invade and occupy Venezuelan territory, and overthrow the Maduro regime. And Venezuela could try to do the same to the United States.

We hold no brief for Venezuela; the country’s people and the region would be far better off if Maduro fell and were replaced by the democratically elected opposition. But it may not be worth backsliding into a state of war to expedite the removal of illegal aliens, who could be deported under regular immigration laws anyway. Such a symbolic show of resolve on illegal immigration could hamper Trump’s effort to revive the Monroe Doctrine and win the cooperation of Latin American leaders to reduce illegal immigration and drug-trafficking.

While it’s not as full-throated as one would hope in terms of criticizing Trump’s bold and buffoonish invocation of war powers, it’s probably the best we can expect from someone who has always been supportive of CIA torture efforts and, presumably, its occasional foreign government coups.

Trump seems intent on going to war with most of the world, whether its a militaristic show of force, a handy way to consolidate power, or simply by escalating hostilities via public statements and vindictive tariffs that have done nothing more than alienate many of our long-term allies.

Martial law, it may end up being. At the very least, we should definitely expect some form of police state to arise from this situation if the courts can’t shut these efforts down.

This isn’t the only problem with Trump’s War on Immigrants. It now appears the DOJ feels this war power invocation means immigration enforcement agencies (and their local law enforcement partners) will no longer need to worry about the Fourth Amendment.

Trump administration lawyers have determined that an 18th-century wartime law the president has invoked to deport suspected members of a Venezuelan gang allows federal agents to enter homes without a warrant, according to people familiar with internal discussions.

[…]

“All such alien enemies, wherever found within any territory subject to the jurisdiction of the United States, are subject to summary apprehension,” the proclamation said.

Senior lawyers at the Justice Department view that language, combined with the historical use of the law, to mean that the government does not need a warrant to enter a home or premises to search for people believed to be members of that gang, according to two officials familiar with the new policy.

Swell. That means any home in an area where officers believe some gang members might reside can be searched without a warrant. If the DOJ’s legal team buys into this bullshit, entire apartment blocks and neighborhoods will be raided. And the searches won’t stop until those doing the searching decide they’ve found all they can find or simply need to get back to the station to clock out.

Living in interesting times is fine, if occasionally stressful. But we’re living in times that are far more frightening than interesting. When even torture enthusiasts and CIA-backers think the government is going too far, it’s well past time to start worrying.

Filed Under: alien enemies act, dhs, donald trump, ice, immigration, john yoo, mass deportations, warrantless arrests, warrantless searches