Sure, “Department of Justice” has always been a misnomer, what with its blessing of things like civil asset forfeiture, bogus CFAA prosecutions, cop junk science, the 1033 program, and the complete inability to successfully sue federal officers for blatant Constitutional violations. But it also used to have things like a civil rights division that investigated misbehaving law enforcement agencies and actually pretended, for the most part, to agree with the long-accepted tenets of the rule of law.
That’s all gone now. Trump’s DOJ has eradicated the civil rights division, only mobilizing it when gun ownership or fundamentalism are “threatened.” It has also discarded any lip service to the rule of law and treats Trump like a king, Constitutional rights as privileges, and the system of checks and balances as a doormat.
Plenty of people in Trump’s cabinet have already made public statements claiming the courts are subservient to King Donald. And the DOJ — going to bat for the administration in an incredible number of lawsuits filed against it — continues to act as though the only rulings it needs to respect are those it agrees with.
The person heading up this blatant disregard for the processes and principles that actually made America great long before Trump arrived in office (either time) is someone Trump wants to give the title of “judge” to. That would be Emil Bove — a man who sits far ahead of Judge Dredd in the “least capable of respecting Constitutional rights” race.
Bove, a 44-year-old who looks like someone dug up Abe Vigoda’s corpse and forced it to self-embalm, is currently not earning his paycheck as the “principal associate attorney general,” which is the sort of extended title one tends to innately disbelieve when it’s sprawled across two columns on a LinkedIn page.
What that means in practice is that Bove can hand out legal guidance to DOJ lawyers. And, according to two(!!) DOJ whistleblowers, that legal guidance includes extending a middle finger to the very courts Trump wants to install Bove in.
Another whistleblower has made claims to the Justice Department’s watchdog that Emil Bove — a top agency official who is now nominated for a judgeship — suggested others in the department could ignore court orders during a contentious legal battle in an immigration case.
The whistleblower, a former DOJ attorney in the Office of Immigration Litigation,told CNN documents have been filed with the DOJ Office of the Inspector General that appear to align with another whistleblower’s account that Bove tried to mislead federal judges during the administration’s aggressive deportation effort this spring.
“I think it would be incredibly dangerous for someone like that to have a lifetime appointment as a federal appellate judge,” the whistleblower said.
Absolutely true! You definitely don’t want someone who thinks courts exist solely to ensure the current administration’s goals aren’t interrupted by civil rights complaints or accusations of actual illegality to ascend to a place where they can make this subservient fever dream a reality.
On the other hand, you’d think a guy who wants a judgeship to encourage respect for the position, because at some point, the power will shift and if Bove wants to keep going MAGA, he’ll need to ensure his rulings are respected, rather than greeted with extended middle fingers by DOJ lawyers employed by the current administration.
As the CNN report notes, these accusations were actually filed with the DOJ Inspector General before former DOJ lawyer Erez Reuveni made his allegations public. And those allegations certainly grabbed a fair number of headlines because it’s not every day a high-level DOJ official tells underlings it’s time to say “fuck you” to courts demanding the grounding of deportation flights and the immediate return of migrants who were denied their due process rights.
Unfortunately, I imagine Emil Bove will live through this, despite looking like he spends all day sleeping on death’s doormat. Even if the Inspector General’s office hasn’t been completely overrun by Trump loyalists, there’s a near-100% chance that its report on these multiple allegations will be buried by the asshats running this nation into the ground, starting with the immensely underqualified attorney general Pam Bondi, and ending with everyone who’s still competent enough to carry out the will of a man generally too incoherent to competently explain what he wants or why he wants it.
Quite obviously, the Trump Administration was never going to respect the law when it came to its mass deportation plans. That much became immediately clear as ICE engaged in raid after raid of neighborhoods and businesses, searching for literally any migrant, rather than just those suspected of or convicted for violent crimes.
As soon as the planes loaded with detainees began landing in countries most of those on board weren’t from, the efficient cruelty of Trump’s anti-migrant actions was exposed. Multiple legal challenges were filed, most of them seeking little more than forcing the government to respect due process rights. As the phrase says, they’re rights, not privileges that can be unilaterally revoked just because the current administration has a hate-on for non-whites.
The administration that has always pretended to be ultra-concerned about “law and order” went rogue. Planes were put in the air after courts ordered them to remain on the ground. People exiled to foreign prisons remained caged while the Trump DOJ dodged court orders and refused to honestly answer questions about why it continued to refuse to right some of its wrongs.
Not that we needed more evidence of this administration’s hatred for the laws that stand in the way of its cruelest urges, but here’s more anyway. Erez Ruveni, a former DOJ lawyer, has filed a whistleblower complaint about the DOJ’s actions since Trump’s return to office. Via the New York Times, here’s why Ruveni is no longer employed by the DOJ:
Mr. Reuveni was a career lawyer at the department for nearly 15 years until April, when he expressed concern in federal court that the administration had mistakenly deported a migrant to a megaprison in El Salvador. Mr. Reuveni was put on administrative leave a day later and ultimately fired.
That public embarrassment of the DOJ, via an open admission that an error was made, was enough to provoke Trump’s DOJ to fire one of its few remaining honest lawyers. Those still working for the DOJ have sold their soul for a handful of future paychecks. Either that or they never had a soul to sell, like senior DOJ official Emil Bove, whose anti-law and order statements are included in Ruveni’s whistleblower report.
Bove told attendees of the March 14 meeting that President Donald Trump would soon be invoking the Alien Enemies Act and that deportations would be carried out that weekend.
[…]
“Bove then made a remark concerning the possibility that a court order would enjoin those removals before they could be effectuated. Bove stated that DOJ would need to consider telling the courts ‘f— you’ and ignore any such court order,” according to the letter.
Incredibly, Ruveni’s letter notes that he thought Bove’s heated comments would be blown off and things would return to their normal, lawful way — something that’s sort of expected at the Department of Justice. Instead, that was apparently the tipping point, not only in terms of his job, but for the DOJ as a whole.
Here’s how things went for Ruveni during the last few weeks of his DOJ career, as recounted in the complaint [PDF] released by his legal reps at the Government Accountability Project:
White House officials have publicly disparaged Mr. Reuveni to justify their refusal to comply with the Constitution and with court orders. White House Deputy Chief of Staff Stephen Miller falsely stated “The only mistake that was made is a lawyer put an incorrect line in a legal filing,” and labeled Mr. Reuveni a “saboteur, a Democrat.” Referring to Mr. Reuveni, President Trump stated, “Well, the lawyer that said it was a mistake was here a long time, was not appointed by us—should not have said that should not have said that.”
What has not been reported to date are Mr. Reuveni’s attempts over the course of three weeks and affecting three separate cases to secure the government’s compliance with court orders and his resistance to the internal efforts of DOJ and White House leadership to defy them through lack of candor, deliberate delay, and disinformation. Discouraging clients from engaging in illegal conduct is an important part of the role of a lawyer. Mr. Reuveni tried to do so and was thwarted, threatened, fired, and publicly disparaged for both doing his job and telling the truth to the court.
Of course, the DOJ and the administration have no real response to these accusations. Instead, the White House has chosen to ignore everything said in the letter and act like it works for Emil Bove, rather than the other way around:
“Emil Bove is an incredibly talented legal mind and a staunch defender of the U.S. Constitution who will make an excellent circuit court judge,” the statement by White House spokesperson Harrison Fields said.
Well, at best, only part of this statement is true. I can only speculate about the Bove’s “talented mind,” but it’s inherently clear he doesn’t give a fuck about the Constitution. That much can easily be seen by his support of Trump’s Alien Enemies Act abuses and the migrant flights he ensured wouldn’t be interrupted by issued court orders. He’s not serving the public. He’s nothing more than another opportunist who has sworn his fealty to a man who sincerely believes the Oval Office is a throne room.
This story was originally published by ProPublica, along with The Texas Tribune, Alianza Rebelde Investiga, and Cazadores de Fake News.Republished under ProPublica’s CC BY-NC-ND 3.0license.
The Trump administration knew that the vast majority of the 238 Venezuelan immigrants it sent to a maximum-security prison in El Salvador in mid-March had not been convicted of crimes in the United States before it labeled them as terrorists and deported them, according to U.S. Department of Homeland Security data that has not been previously reported.
President Donald Trump and his aides have branded the Venezuelans as “rapists,” “savages,” “monsters” and “the worst of the worst.” When multiple news organizations disputed those assertions with reporting that showed many of the deportees did not have criminal records, the administration doubled down. It said that its assessment of the deportees was based on a thorough vetting process that included looking at crimes committed both inside and outside the United States. But the government’s own data, which was obtained by ProPublica, The Texas Tribune and a team of journalists from Venezuela, showed that officials knew that only 32 of the deportees had been convicted of U.S. crimes and that most were nonviolent offenses, such as retail theft or traffic violations.
The data indicates that the government knew that only six of the immigrants were convicted of violent crimes: four for assault, one for kidnapping and one for a weapons offense. And it shows that officials were aware that more than half, or 130, of the deportees were not labeled as having any criminal convictions or pending charges; they were labeled as only having violated immigration laws.
As for foreign offenses, our own review of court and police records from around the United States and in Latin American countries where the deportees had lived found evidence of arrests or convictions for 20 of the 238 men. Of those, 11 involved violent crimes such as armed robbery, assault or murder, including one man who the Chilean government had asked the U.S. to extradite to face kidnapping and drug charges there. Another four had been accused of illegal gun possession.
We conducted a case-by-case review of all the Venezuelan deportees. It’s possible there are crimes and other information in the deportees’ backgrounds that did not show up in our reporting or the internal government data, which includes only minimal details for nine of the men. There’s no single publicly available database for all crimes committed in the U.S., much less abroad. But everything we did find in public records contradicted the Trump administration’s assertions as well.
ProPublica and the Tribune, along with Venezuelan media outlets Cazadores de Fake News (Fake News Hunters) and Alianza Rebelde Investiga (Rebel Alliance Investigates), also obtained lists of alleged gang members that are kept by Venezuelan law enforcement officials and the international law enforcement agency Interpol. Those lists include some 1,400 names. None of the names of the 238 Venezuelan deportees matched those on the lists.
The hasty removal of the Venezuelans and their incarceration in a third country has made this one of the most consequential deportations in recent history. The court battles over whether Trump has the authority to expel immigrants without judicial review have the potential to upend how this country handles all immigrants living in the U.S., whether legally or illegally. Officials have suggested publicly that, to achieve the president’s goals of deporting millions of immigrants, the administration was considering suspending habeas corpus, the longstanding constitutional right allowing people to challenge their detention.
Hours before the immigrants were loaded onto airplanes in Texas for deportation, the Trump administration invoked the Alien Enemies Act of 1798, declaring that the Tren de Aragua prison gang had invaded the United States, aided by the Venezuelan government. It branded the gang a foreign terrorist organization and said that declaration gave the president the authority to expel its members and send them indefinitely to a foreign prison, where they have remained for more than two months with no ability to communicate with their families or lawyers.
Lee Gelernt, the lead attorney in the American Civil Liberties Union’s legal fight against the deportations, said the removals amounted to a “blatant violation of the most fundamental due process principles.” He said that under the law, an immigrant who has committed a crime can be prosecuted and removed, but “it does not mean they can be subjected to a potentially lifetime sentence in a foreign gulag.”
White House spokesperson Abigail Jackson said in response to our findings that “ProPublica should be embarrassed that they are doing the bidding of criminal illegal aliens who are a threat,” adding that “the American people strongly support” the president’s immigration agenda.
When asked about the differences between the administration’s public statements about the deportees and the way they are labeled in government data, DHS Assistant Secretary Tricia McLaughlin largely repeated previous public statements. She insisted, without providing evidence, that the deportees were dangerous, saying, “These individuals categorized as ‘non-criminals’ are actually terrorists, human rights abusers, gang members and more — they just don’t have a rap sheet in the U.S.”
As for the administration’s allegations that Tren de Aragua has attempted an invasion, an analysis by U.S. intelligence officials concluded that the gang was not acting at the direction of the Venezuelan government of Nicolás Maduro and that reports suggesting otherwise were “not credible.” Tulsi Gabbard, Trump’s director of national intelligence, fired the report’s authors after it became public. Her office, according to news reports, said Gabbard was trying to “end the weaponization and politicization” of the intelligence community.
Our investigation focused on the 238 Venezuelan men who were deported on March 15 to CECOT, the prison in El Salvador, and whose names were on a list first published by CBS News. The government has also sent several dozen other immigrants there, including Kilmar Abrego Garcia, a Salvadoran man who the government admitted was sent there in error. Courts have ruled that the administration should facilitate his return to the U.S.
We interviewed about 100 of the deportees’ relatives and their attorneys. Many of them had heard from their loved ones on the morning of March 15, when the men believed they were being sent back to Venezuela. They were happy because they would be back home with their families, who were eager to prepare their favorite meals and plan parties. Some of the relatives shared video messages with us and on social media that were recorded inside U.S. detention facilities. In those videos, the detainees said they were afraid that they might be sent to Guantanamo, a U.S. facility on Cuban soil where Washington has held and tortured detainees, including a number that it suspected of plotting the 9/11 terrorist attacks. The Trump administration had sent planes carrying Venezuelan immigrants there earlier this year.
They had no idea they were being sent to El Salvador.
Among them was 31-year-old Leonardo José Colmenares Solórzano, who left Venezuela and his job as a youth soccer coach last July. His sister, Leidys Trejo Solórzano, said he had a hard time supporting himself and his mother and that Venezuela’s crumbling economy made it hard for him to find a better paying job. Colmenares was detained at an appointment to approach the U.S.-Mexico border in October because of his many tattoos, his sister said. Those tattoos include the names of relatives, a clock, an owl and a crown she said was inspired by the Real Madrid soccer club’s logo.
Colmenares was not flagged as having a criminal history in the DHS data we obtained. Nor did we find any U.S. or foreign convictions or charges in our review. Trejo said her brother stayed out of trouble and has no criminal record in Venezuela either. She described his expulsion as a U.S.-government-sponsored kidnapping.
“It’s been so difficult. Even talking about what happened is hard for me,” said Trejo, who has scoured the internet for videos and photos of her brother in the Salvadoran prison. “Many nights I can’t sleep because I’m so anxious.”
The internal government data shows that officials had labeled all but a handful of the men as members of Tren de Aragua but offered little information about how they came to that conclusion. Court filings and documents we obtained show the government has relied in part on social media posts, affiliations with known gang members and tattoos, including crowns, clocks, guns, grenades and Michael Jordan’s “Jumpman” logo. We found that at least 158 of the Venezuelans imprisoned in El Salvador have tattoos. But law enforcement sources in the U.S., Colombia, Chile and Venezuela with expertise in the Tren de Aragua told us that tattoos are not an indicator of gang membership.
McLaughlin, the DHS spokesperson, said the agency is confident in its assessments of gang affiliation but would not provide additional information to support them.
John Sandweg, a former acting director of Immigration and Customs Enforcement, said, “for political reasons, I think the administration wants to characterize this as a grand effort that’s promoting public safety of the United States.” But “even some of the government’s own data demonstrates there is a gap between the rhetoric and the reality,” he said, referring to the internal data we obtained.
The government data shows 67 men who were deported had been flagged as having pending charges, though it provides no details about their alleged crimes. We found police, court and other records for 38 of those deportees. We found several people whose criminal history differed from what was tagged in the government data. In some cases that the government listed as pending criminal charges, the men had been convicted and in one case the charge had been dropped before the man was deported.
Our reporting found that, like the criminal convictions, the majority of the pending charges involved nonviolent crimes, including retail theft, drug possession and traffic offenses.
Six of the men had pending charges for attempted murder, assault, armed robbery, gun possession or domestic battery. Immigrant advocates have said removing people to a prison in El Salvador before the cases against them were resolved means that Trump, asserting his executive authority, short-circuited the criminal justice system.
Take the case of Wilker Miguel Gutiérrez Sierra, 23, who was arrested in February 2024 in Chicago on charges of attempted murder, robbery and aggravated battery after he and three other Venezuelan men allegedly assaulted a stranger on a train and stole his phone and $400. He pleaded not guilty. Gutiérrez was on electronic monitoring as he awaited trial when he was arrested by ICE agents who’d pulled up to him on the street in five black trucks, court records show. Three days later he was shipped to El Salvador.
But the majority of men labeled as having pending cases were facing less serious charges, according to the records we found. Maikol Gabriel López Lizano, 23, was arrested in Chicago in August 2023 on misdemeanor charges for riding his bike on the sidewalk while drinking a can of Budweiser. His partner, Cherry Flores, described his deportation as a gross injustice. “They shouldn’t have sent him there,” she said. “Why did they have to take him over a beer?”
Generally speaking, if a judge begins an order — in a case where hundreds of men were illegally renditioned to a Salvadoran concentration camp directly against that judge’s orders — by talking about Franz Kafka’s The Trial, you’d think that the judge is going to go hard against the government.
Instead, Judge James Boasberg delivers quite a frustrating ruling: after eloquently explaining why the government’s actions mirror Kafka’s nightmarish bureaucracy, he proceeds to accept the Trump administration’s transparently ridiculous claim that they have no control over people they literally paid El Salvador to imprison.
He does try to concoct a workaround — arguing that while the prisoners can’t file habeas because they’re supposedly not in US custody, their due process rights were violated, so the remedy is to somehow restore their ability to file the habeas petitions they can’t file. But as we’ll see, this “solution” seems quite toothless.
The ruling starts with this somewhat incredible paragraph:
One morning, Kafka’s Josef K. awakens to encounter two strange men outside his room. As he gets his bearings, he realizes that he is under arrest. 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.” Franz Kafka, The Trial 5 (Breon Mitchell trans., Schocken Books Inc. 1998). 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.” Id. at 6. 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.” Id. at 8–9. “I don’t know that law,” K. responds. “You’ll feel it eventually,” the guard says. Id. at 9.
And then he makes the direct tie-in from that story to what’s actually happening:
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.
Before long, Reyes Mota, Hernandez Romero, and the other detainees were shuttled onto buses, driven to a nearby airport, and loaded onto planes…. As the planes waited on the tarmac, many passengers aboard reportedly began to panic and beg officials for more information, but none was provided…. The planes eventually departed that evening and, after a stop in Honduras, landed in El Salvador…. Upon their arrival, the detainees were transferred into a Salvadoran mega-prison known as the Center for Terrorism Confinement (CECOT).
And he reminds everyone that the government literally ignored his pretty clear order to not take these men out of the country:
This Court, at a swiftly convened hearing on March 15, ordered the Government not to relinquish custody of the men,but that mandate was ignored. Such defiance is currently the subject of the Court’s contempt inquiry.
So far, so good. The judge has laid out a perfect analogy for what happened and documented the government’s contempt of his direct orders. Then he completely undermines himself:
While it is a close question,the current record does not support Plaintiffs’ assertion that they are in the constructive custody of the United States. Even crediting the public statements characterizing the arrangement as outsourcing the U.S. prison system and acknowledging the President’s unofficial assertion of his power to request a release, such comments cannot overcome a sworn declaration from a knowledgeable government official attesting that the CECOT Class’s ongoing detention is a question of Salvadoran law
This is where the ruling goes completely off the rails. Judge Boasberg claims that further details that the DOJ filed under seal about the nature of the deal between the US and El Salvador suggest that the deal is basically “we ship ‘em to you, you do whatever the fuck you want with them,” and thus they shouldn’t be seen as being in “constructive custody” of the US any more.
This is obvious bullshit, and the judge knows it. Because there’s almost no one in the world who thinks that if the US government called up President Bukele and said “yo, we need that person back” that Bukele wouldn’t do it. Hell, we know this because the US already did that. As an article the NY Times wrote back in April revealed (buried so deep down that I haven’t seen much commentary on it) El Salvador has already sent back at least eight people that were incorrectly sent there:
In Washington, the Trump administration was working to address Mr. Bukele’s confusion about whom the United States had sent him. Eight women who had been mistakenly sent were swiftly flown back.
So when the US wants someone back from CECOT, they get them back. But somehow that information isn’t at play here.
Judge Boasberg does admit that it’s entirely possible the government is lying to him, but basically says his hands are tied by the Supreme Court:
This conclusion, to be sure, presumes the truthfulness and reliability of the Kozak Declaration, which is rendered more difficult given the Government’s troubling conduct throughout this case. The Court nonetheless follows the lead of the Supreme Court, the D.C. Circuit, and other courts within this district in taking Kozak at his word. In Munaf, the Supreme Court instructed federal district courts not to “second-guess” assessments of the political branches as to the nature of detention under a foreign sovereign. See 553 U.S. at 702. Applying that principle, our Circuit has found governmental submissions similar to the Kozak Declaration to be conclusive on the question whether ongoing detention is “on behalf of the United States.”
Seems bad!
He also admits that the Trump admin’s claims in this case aren’t nearly as detailed or believable as in the precedents he feels bound by, but basically says the plaintiffs (who, again, are mostly disappeared in a concentration camp no one gets released from) really need to provide more proof that the US government has some say in their detention, even as he admits it contradicts other statements that [checks notes]… the US government is making.
Plaintiffs, however, have unearthed no comparably reliable evidence to rebut the Kozak Declaration. The Court must therefore at this point accept the Government’s representations as to the nature of the CECOT Plaintiffs’ ongoing detention,despite their incongruity with multiple public statementsmade by both Salvadoran and U.S. officials.
Great.
The judge then proceeds to explain why this exact scenario — shipping prisoners beyond the reach of habeas corpus — was one of the grievances that led to American independence. But apparently that’s just an interesting historical footnote now:
The Court is nonetheless mindful of the possibility, raised by Plaintiffs, that the Government has adopted and presented its arrangement with El Salvador as a “ruse — and a fraud on the court — designed to maintain control over the detainees beyond the reach of the writ.” …. Our legal tradition is wholly incompatible with the establishment of a network of overseas prisons, shielded from the Great Writ by the facade of foreign control, to which the Government routinely exports detainees without due process — a legal no man’s land.Indeed, the Habeas Corpus Act of 1679 generally prohibited detention “beyond the seas” to places where the writ did not run, … and such abuses partly animated this nation’s War for Independence. See Declaration of Independence para. 21 (U.S. 1776) (listing amongst grievances against the King that he “transport[ed]” colonists “beyond Seas to be tried for pretended offences”).Were such a scheme to subsequently be made apparent to the Court, it would follow the Supreme Court’s instruction to “take such action as will defeat attempts to wrongfully deprive parties entitled to sue in Federal courts [for] the protection of their rights in those tribunals.”
It feels like he’s begging for evidence that the Justice Department is lying to him and reminds the government that “any official who makes knowingly false statements in a sworn declaration subjects himself to perjury prosecution.”
Having accepted the government’s lie about custody, the judge then concocts a workaround that’s somehow even more absurd: since the men’s due process rights were violated, the equitable remedy is… to have the Trump admin somehow restore their ability to file habeas petitions they can’t file because they’re supposedly not in US custody.
That principle permits Plaintiffs to proceed here. Just like litigants have since the beginning of our legal tradition, they may invoke this Court’s equitable authority to restrain the Government from infringing upon constitutional protections. They need not do so in habeas, nor are they obligated to identify a cause of action conferring that right.
The judge does conclude the due process violation is clear, citing recent Supreme Court holdings in this and related cases:
In light of those Supreme Court holdings, this Court ultimately agrees with the CECOT Plaintiffs that they are likely to succeed on the merits of their due-process claim. Defendants plainly deprived these individuals of their right to seek habeas relief before their summary removal from the United States — a right that need not itself be vindicated through a habeas petition. 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, 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.
So what’s the remedy for this constitutional violation? The judge orders the government to “facilitate” the prisoners’ ability to seek habeas relief — the same meaningless directive that’s already been ignored (if not mocked) in similar cases:
Because the other preliminary-injunction factors also support the CECOT Plaintiffs, the Court concludes that their Class is entitled to preliminary relief. In short,the Government must facilitate the Class’s ability to seek habeas reliefto contest their removal under the Act. Exactly what such facilitation must entail will be determined in future proceedings. Although the Court is mindful that such a remedy may implicate sensitive diplomatic or national-security concerns within the exclusive province of the Executive Branch, it also has a constitutional duty to provide a remedy that will “make good the wrong done.”
Let’s recap this judicial pretzel: The prisoners can’t file habeas because they’re supposedly not in US custody. But their due process rights were violated by being denied the chance to file habeas before removal. So the remedy is to restore their ability to file habeas… which they still can’t do because they’re not in US custody.
As is now clear, CECOT Class members were entitled to notice and an opportunity to challenge their removability pursuant to the Proclamation. That process — which was improperly withheld — must now be afforded to them. Put differently, Plaintiffs’ ability to bring habeas challenges to their removal must be restored. In light of the well-established law of remedies and the example that has already been set by all three levels of the federal judiciary, then,Defendants must facilitate Plaintiffs’ ability to proceed through habeasand ensure that their cases are handled as they would have been if the Government had not provided constitutionally inadequate process.
The judge acknowledges what’s really at stake here:
The Court determines that such a remedy balances Defendants’ distinct role in conducting foreign affairs with the grave need to right their legal wrongs;absent this relief, the Government could snatch anyone off the street, turn him over to a foreign country, and then effectively foreclose any corrective course of action.See Abrego Garcia, 145 S. Ct. at 1019 (statement of Sotomayor, J.).
Well, duh. That’s the whole fucking concern. And, yes, the government already did snatch people off the street to send to a foreign country, effectively foreclosing any corrective course of action.
So what happens now? The judge punts, asking the government to submit a “plan” for facilitating something they’ve already shown zero interest in facilitating:
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.”
We all know how this ends: the DOJ will file some theatrical bullshit claiming they’d love to help but gosh, foreign sovereignty and all that. The judge will wring his hands some more. And hundreds of men will continue rotting in CECOT because everyone involved would rather play legal theater than acknowledge the obvious solution: if you shipped them there, you can damn well get them back.
Perhaps Judge Boasberg will surprise us and come up with something that has actual teeth, but it feels long past the time for that.
Meanwhile, the men who were disappeared into this Kafkaesque nightmare remain trapped in a foreign prison, casualties of a legal system more interested in procedural niceties than actual justice. The judge opened with Kafka, which would lead you to believe his goal is to not be just another cog in a Kafkaesque machine, but the authority who puts an end to the nonsense. Instead, we just keep getting another round of bureaucratic bullshit.
The Supreme Court has delivered a clear rebuke to the Trump administration’s attempt to weaponize the Alien Enemies Act, issuing a slightly more detailed ruling that follows up on last month’s midnight emergency order. That emergency ruling came as the administration was literally loading detainees onto buses headed to airports, racing to deport them before courts could intervene.
Justice Alito filed a dissent to that ruling a couple of days later, whining about the procedural nature of it and (falsely, it turns out) claiming that there was no rush and that detainees weren’t going to be trafficked to a foreign gulag in the meantime.
Now the Supreme Court has come out with a more detailed ruling in the case, per curiam (meaning none of the Justices put their names directly to it) saying that the Government is simply wrong to use the Alien Enemies Act like this.
The ruling starts out by highlighting just how wrong Alito was in pretending that the government was in no rush to send the detained Venezuelans to a Salvadoran gulag, while noting the stance the Trump admin has taken in the Abrego Garcia case that once they’ve removed someone from the country the courts have no jurisdiction any more:
We understood the Government to assert the right to remove the detainees as soon as midnight central time on April 19. The Government addressed the detainees’ allegations on April 18 only at an evening hearing before the District Court for the District of Columbia, where the detainees had separately sought relief. The Government guaranteed that no putative class members would be removed that day. Tr. of Proceedings in J. G. G. v. Trump, No. 25−cv−766, ECF Doc. 93, p. 9. But it further represented that, in its view, removal of putative class members as soon as the next day “would be consistent with” its due process obligations, and it “reserve[d] the right” to take such action. Id., at 26; see id., at 16 (explanation by the court that “tomorrow . . . starts at 12:01 a.m.”).Evidence now in the record (although not all before us on April 18) suggests that the Government had in fact taken steps on the afternoon of April 18 toward removing detainees under the AEA—including transporting them from their detention facility to an airportand later returning them to the facility. See Supp. App. to Reply 1a−5a.Had the detainees been removed from the United States to the custody of a foreign sovereign on April 19, the Government may have argued, as it has previously argued, that no U. S. court had jurisdiction to order relief.See Application To Vacate Injunction in Noem v. Abrego Garcia, No. 24A949 (Apr. 7, 2025), pp. 11−20.
But, as the seven justices who signed on note, that’s not at all how this works, and it highlights that the administration’s posturing in other cases show how important this issue is, and why it’s fine for the Supreme Court to take it up so quickly:
The Government does not contest before this Court the applicants’ description of the notice afforded to AEA detainees in the Northern District of Texas, nor the assertion that the Government was poised to carry out removals imminently. The Government has represented elsewhere that it is unable to provide for the return of an individual deported in error to a prison in El Salvador, see Abrego Garcia v. Noem, No. 25−cv−951 (D Md.), ECF Docs. 74, 77, where it is alleged that detainees face indefinite detention, see Application for Injunction 11. The detainees’ interests at stake are accordingly particularly weighty.
And then, most importantly, the Supreme Court makes it clear that giving detainees just 24 hours to try to respond to a notice of removal is not actually due process:
Under these circumstances, notice roughly 24 hours before removal, devoid of information about how to exercise due process rights to contest that removal, surely does not pass muster.
That’s the key line in the latest ruling.
But, still, it believes the case should now move through a more proper process in the lower courts, but that requires the US government to allow for those cases to move properly, rather than just throwing these people on airplanes. Thus, it sends the case back to the lower courts while making it clear no one should be removed while those courts handle the detainees’ due process.
To be clear, we decide today only that the detainees are entitled to more notice than was given on April 18, and we grant temporary injunctive relief to preserve our jurisdiction while the question of what notice is due is adjudicated.
Justice Alito, along with his sidekick Justice Thomas, unsurprisingly dissents. As per usual, they pretend that this is entirely about the procedural aspects of the case and that the Supreme Court has no jurisdiction over the case. Alito claims it’s unfair to expect a district court to respond so quickly and that he just doesn’t see what all the fuss and rush is about. The majority decision points out (in nicer terms) that he’s living in a fantasy world:
First, we reject the dissent’s characterization of the events that transpired on April 18, which lead it to question our jurisdiction. District courts should approach requests for preliminary relief with care and consideration, see post, at 3−4 (ALITO, J., dissenting), but exigent circumstances may impose practical constraints. Preliminary relief is “customarily granted on the basis of procedures that are less formal and evidence that is less complete than in a trial on the merits.” Lackey v. Stinnie, 604 U. S. ___, ___ (2025) (slip op., at 6) (quoting University of Tex. v. Camenisch, 451 U. S. 390, 395 (1981)). The purpose of such relief is “merely to preserve the relative positions of the parties” pending further proceedings. Lackey, 604 U. S., at ___ (slip op., at 6) (quoting Camenisch, 451 U. S., at 395).
In this case, the record before the District Court, although limited, indicated that removals of putative class members were likely imminent. Contra, post, at 4−6 (ALITO, J., dissenting). The detainees attached four declarations to their emergency motion for a TRO. In one, for example, an attorney relayed a detainee’s report that immigration officers “had informed them that they will be deported either today or tomorrow.” ECF Doc. 30−1. In a second, a nonprofit director described conversations with family members of detainees and linked to a video of detainees holding notices of removal as evidence that detainees “were being removed.”
Importantly, the relevant question for purposes of our jurisdiction is whether, at the time this Court was called upon to intervene, the District Court’s inaction had the effect of refusing an injunction. In their application to this Court, the detainees represented that “[m]any individuals [had] already been loaded on to buses, presumably headed to the airport.” Application for Injunction 1. Shortly thereafter, the Government represented on the record in federal court that it reserved the right to remove detainees after midnight. We had the power to issue injunctive relief to prevent irreparable harm to the applicants and to preserve our jurisdiction over the matter
Perhaps most tellingly, Justice Kavanaugh’s concurrence cuts through the procedural dance, essentially acknowledging that the current system of emergency orders and circuit court ping-pong isn’t serving anyone. His suggestion that the Court should just take the case directly highlights both the urgency of the constitutional questions at stake and a growing institutional impatience with the administration’s tactics:
The circumstances call for a prompt and final resolution, which likely can be provided only by this Court. At this juncture, I would prefer not to remand to the lower courts and further put off this Court’s final resolution of the critical legal issues. Rather, consistent with the Executive Branch’s request for expedition—and as the detainees themselves urge—I would grant certiorari, order prompt briefing, hold oral argument soon thereafter, and then resolve the legal issues.
There’s still much more to go in this case, but it does appear that a clear majority of the Court is at least somewhat concerned about the way the Trump admin is rushing people onto planes to kick them out of the country without due process, and then you have Alito and Thomas whining in the corner that there’s no need to rush, even as detainees were being loaded into buses to take them to the airport.
The mass renditioning of migrants hasn’t gone exactly as planned. Sure, it’s resulted in extreme amounts of stupid cruelty, which is very much on-brand for Trump administrations, but the mass deportation efforts have also met with considerable resistance from federal court judges.
The administration hoped to keep the courts from doing anything to protect migrants and their rights by invoking the Alien Enemies Act to strip them of whatever minimal protections they had. But you kind of need a war to justify utilizing the AEA and Trump sure as shit doesn’t have that. Not only are the standards used to declare detainees sloppy and tainted by massive amounts of confirmation bias, but there’s absolutely no evidence available anywhere that the Venezuelan government is directing the actions of any actual Tren de Aragua (TdA) gang members detained by ICE and CBP. With each passing day, the “we’re at war with TdA” excuse is further undercut by reports crafted by intelligence agencies and federal law enforcement agencies.
The main leverage point for suing the government over deportations are writs of habeas corpus. These motions demand the government bring the detained person to court and prove their impending deportation and/or ongoing detention is justified. Naturally, the Trump Administration is angry this right afforded to everyone in the United States, whether they’re here legally or not, is slowing down its mass exodus of brown people.
Enter Stephen Miller, Trump’s homeland security advisor. Miller made a statement to reporters that is the normal Trumpian blend of lies, half-truths, and implied threats towards co-equal government branches. Here’s the whole thing, as posted by The Bulwark on Bluesky:
Stephen Miller: "The writ of habeas corpus can be suspended in a time of invasion. So I would say that's an option we're actively looking at."
Here’s everything that fell out of Miller’s mouth during his response to reporters:
Well, the Constitution is clear. And that, of course, is the supreme law of the land, that the privilege of the writ of habeas corpus can be suspended in a time of invasion. So … that’s an option we’re actively looking at. Look, a lot of it depends on whether the courts do the right thing or not. At the end of the day, Congress passed a body of law known as the Immigration Nationality Act which stripped Article III courts, that’s the judicial branch, of jurisdiction over immigration cases. So Congress actually passed what’s called jurisdiction stripping legislation. It passed a number of laws that say that the Article III courts aren’t even allowed to be involved in immigration cases.
Yikes. Here’s a top Trump official saying — out loud! — that if there are rights standing in the way of its deportation scheme, the administration will just go about the business of eliminating those rights, rather than continue to do deportation business within the confines of the Constitution.
I know there’s a lot going on, and that Miller says lots of incendiary (and blatantly false) stuff. But this strikes me as raising the temperature to a whole new level—and thus meriting a brief explanation of all of the ways in which this statement is both (1) wrong; and (2) profoundly dangerous.
It’s one thing to be wrong and, subsequently, mostly impotent. Being wrong and profoundly dangerous is possibly the worst combination.
As Vladeck notes, the Suspension Clause was added to limit abuse by the government, not encourage it. That’s where Miller is wrong.
To casually suggest that habeas might be suspended because courts have ruled against the executive branch in a handful of immigration cases is to turn the Suspension Clause entirely on its head.
He’s also wrong about the courts in general. There is no “jurisdiction stripping” in immigration cases. Changes to the law funnel more immigration cases directly into immigration courts, but nothing in the law forbids federal courts from handling cases in the first instance. And federal Article III courts have always been the landing spot for appeals of immigration court decisions.
Here’s where Miller is dangerous:
Miller gives away the game when he says “a lot of it depends on whether the courts do the right thing or not.” It’s not just the mafia-esque threat implicit in this statement (“I’ll make him an offer he can’t refuse”); it’s that he’s telling on himself: He’s suggesting that the administration would (unlawfully) suspend habeas corpus if (but apparently only if) it disagrees with how courts rule in these cases. In other words, it’s not the judicial review itself that’s imperiling national security; it’s the possibility that the government might lose.
[…]
[S]uggesting that the President can unilaterally cut courts out of the loop solely because they’re disagreeing with him is suggesting that judicial review—indeed, that the Constitution itself—is just a convenience.
The Suspension Clause can only be used in extreme cases of insurrections or invasions that threaten the public’s safety. No one invoked this Clause when an actual insurrection attempt took place. And there’s absolutely zero credible evidence that even remotely suggests the mere presence of foreign gang members on US soil constitutes an “invasion.”
Miller’s statement is just another play call from the Trump playbook: yet another option it may try to deploy to deny even the most limited form of due process to detainees slated for deportation. Trump and his officials want nothing to do with the things that actually make America great, because those things stand in the way of them doing everything they can to make America an autocratic shithole.
The Intelligence Community just demonstrated, in spectacular fashion, exactly how badly Donald Trump and his ODNI chief Tulsi Gabbard misrepresented the laughable supposed “invasion” of the US by Venezuelan gangs. And they did it by responding to a Freedom of Information Act request in what may be record time — just six business days.
For context: FOIA requests typically languish for months or years. I’ve personally had requests sit for so long that agencies eventually asked if I still wanted the information. Year-long waits are standard operating procedure, despite the law requiring responses within 20 days.
So it’s notable the Office of the Director of National Intelligence somehow responded to a FOIA request from the Freedom of the Press Foundation in record time earlier this week. The request was sent on April 25th, and the response was delivered on May 5th.
The issue: the Intelligence Community’s report on whether or not (in this case, not) the Maduro government in Venezuela was directing Tren de Aragua actions in the US. As you’ll recall, part of Donald Trump’s “invocation” of the Alien Enemies Act, in order to rendition random Venezuelans to a Salvadoran concentration camp, he had to declare that Venezuela had “invaded” the US. This was obvious nonsense, but here’s what he claimed:
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.
TdA is closely aligned with, and indeed has infiltrated, the Maduro regime, including its military and law enforcement apparatus.
In order to invoke the Alien Enemies Act, he had to show that a foreign nation had invaded the US. It’s ridiculous on its own to claim that the Venezuelan gang has done much of anything, let alone “invade” the US. Indeed, it’s been shown that the narrative around TdA is mostly a fabrication from NYC Mayor Eric Adams who needed a scapegoat.
But, even if the gang were “invading” (which it is not), that’s still not a foreign nation. So Trump had to claim that Maduro was somehow controlling TdA. Yet, as the Washington Post revealed towards the end of April, there was an assessment by the intelligence community saying that was total bullshit, and there was no clear connection between Maduro and TdA.
This has been obvious all along, and even Trump-appointed judges are calling bullshit on the AEA invocation.
But hearing that the intel community had also rejected this notion was a big deal. Especially since the Director of National Intelligence, Tulsi Gabbard, insisted the exact opposite, as pointed out by Marcy Wheeler. After the initial Washington Post report, Tulsi Gabbard put out a tweet screeching about the “illegal leak” that she claimed was “twisted and manipulated to convey the exact opposite” while simultaneously claiming that the ODNI “fully supports the assessment that the foreign terrorist organization, Tren De Aragua, is acting with the support of the Maduro Regime.”
So, that leads us to the FOIA request from the Freedom of the Press Foundation. The standard would be to slow walk this reply. Such a request would normally take a year or so. And yet this response took… six business days. And revealed that contrary to Trump and Gabbard’s claims, the Intel Community could find no real evidence supporting Maduro controlling TdA.
The Intelligence Community’s assessment demolishes Trump’s invasion claims. The key findings:
While Venezuela creates a “permissive environment” for TdA operations and some low-level officials likely profit from its activities, the Maduro regime “probably does not have a policy of cooperating with TDA and is not directing TDA movement to and operations in the United States.”
The IC’s evidence shows Venezuela actually treats TdA as a threat, with law enforcement actively working against the gang. The report notes TdA’s “decentralized makeup” would make any coordinated relationship with the regime “logistically challenging.”
Most damning: “most of the IC judges that intelligence indicating that regime leaders are directing or enabling TDA migration to the United States is not credible.”
The FBI offers one minor caveat: some Venezuelan officials may help TdA members migrate and use them as proxies to “destabilize governments” in several countries. But even this assessment, based on earlier reporting, falls far short of Trump’s claims of state-directed invasion.
As the NY Times notes, this totally undermines the already flimsy claims that Trump had used to make his proclamation in order to rendition people without due process.
The lightning-fast FOIA response speaks volumes about the Intelligence Community’s stance. It’s almost as if they’re not really thrilled with Gabbard and Trump lying about all this. And, as Wheeler separately notes, this also undermines Gabbard’s separate hysterical claims about the supposed “damage” of these “leaks.”
And at a time when Trump’s Administration is falling further behind on FOIA requests, FOPF got near immediate response for its FOIA showing that even if any material in the NYT and WaPo stories was classified, it has since been publicly released. That kind of response only happens when people within an agency want something to be released. And in this case, it means that Tulsi has not sufficiently commandeered ODNI to prevent FOIA professionals to carry out a classification review and release information publicly.
It likely means that the people who leaked these debunkings in the first place have found a way to undercut claims that they committed a crime by doing so. At the very least that will make it hard for the FBI to argue this leak is of sufficient seriousness to obtain warrants and subpoenas targeting journalists. It may even make it impossible for the FBI to claim a crime was committed in the first place, because the FBI will have to prove that the NYT and WaPo stories relied on more than made it into this memo.
While Gabbard will likely try to prevent such rapid responses in the future, this instance shows that at least some parts of the intelligence apparatus are still capable of using transparency to fight disinformation – even when it comes from their own leadership.
Well look who else thinks Trump’s plan to use a centuries-old law to vanish people to El Salvador is batshit crazy: one of his own judges, Fernando Rodriguez Jr. I’m sure the admin will be out there calling him a far-left radical Marxist before long.
Let’s be clear about how absolutely unhinged this whole thing is. Using the Alien Enemies Act to rendition people to a foreign concentration camp is shameful. The law itself was part of a package of historically shameful bills from the earliest decades of the US, the Alien and Sedition Acts. Every other law from that collection of bad laws was rightly tossed in history’s garbage bin, except this one, which has been used only a few times. Even there, the short history of its usage is embarrassing to the US as well: the last time it was used was to inter Japanese Americans during WWII. You know, that thing we now recognize as a shameful event in American history.
The courts have been looking at this nonsense and going “wtf are you doing?” Because here’s the thing: this law can only be used when we’re either at war or facing an invasion from a “foreign nation or government.” Last time I checked, Congress hasn’t declared war (yeah, that’s still their job, even if the entire country has been pretending otherwise for decades) and — shocking revelation here — no country has actually invaded us.
Stephen Miller’s Trump’s workaround? He just… declared by proclamation that the greatly exaggerated Venezuelan gang, Tren de Aragua (TdA), is totally working with Maduro. Evidence? Who needs evidence when you’ve got a proclamation? Certainly not this government!
Which takes us to the ruling barring the use of the AEA to remove Venezuelans. In short: the AEA requires things to happen that haven’t happened, and you can’t get around that by just having the President “declare” that it happened. That’s not to say the ruling is totally good, as there are some problematic aspects, even if it gets the larger picture correct.
The question that this lawsuit presents is whether the President can utilize a specific statute, the AEA, to detain and remove Venezuelan aliens who are members of TdA. As to that question, the historical record renders clear that the President’s invocation of the AEA through the Proclamation exceeds the scope of the statute and is contrary to the plain, ordinary meaning of the statute’s terms.As a result, the Court concludes that as a matter of law, the Executive Branch cannot rely on the AEA, based on the Proclamation, to detain the Named Petitioners and the certified class, or to remove them from the country.
The judge walks us through the AEA’s greatest hits (spoiler alert: it’s a very short playlist, and every track is garbage), noting how it’s only ever been used during actual, official, Congress-declared wars. You know, real ones, and not just because the president had a bad morning and decided to declare war on reality to justify shipping brown people to a foreign gulag.
Without an actual declared war, the whole effort by the Trump administration hinges on a ridiculous interpretation of “invasion” or “predatory incursion” by a foreign nation or government. The judge starts out by exploring the meaning of those terms, including at the time the law was written back in the 18th century. And wouldn’t you know it? They were talking about actual military forces, not just people moving to America, trying to find a better life:
In the significant majority of the records, the use of “invasion” and “predatory incursion” referred to an attack by military forces. This held true even when the historical record did not concern the Revolutionary War or the War of 1812. The usages of “predatory incursion” at times referred to entries by Native Americans into the western territories, as did usages of “incursion.” But even these records refer to an organized group of armed individuals entering an area to attack a fort, settlement, or town, and the writer typically discussed the need for a military response to the entry. In only a few sources did the use of “invasion” or “predatory incursion” reference a non-military action. While the Court does not represent that its review constitutes a vigorous corpus linguistics analysis, the results provide a significant level of confidence that a complete review would generate similar conclusions.
Also, it turns out that the Congressional record from the 18th century makes it clear that this is also what Congress intended:
In addition, the Court located only one relevant historical record from the debates over the AEA. Representative Robert Harper moved to strike the phrase “predatory incursion” from the proposed legislation, based on his belief that the bill granted “very extensive” powers that “he did not think ought to be given except in case of serious attack.” 8 Annals of Congress 1786.
Given that, the Court sees no way that the administration can properly argue that TdA has invaded or engaged in a “predatory incursion” into the country. While it admits that TdA is obviously dangerous and a real problem, and even accepts as given (more on that in a bit) that they can be tied to the Venezuelan government, it’s still a bridge too far to say that they invaded.
Based on the plain, ordinary meaning of those terms in the late 1790’s, the Court concludes that the factual statements do not.The Proclamation makes no reference to and in no manner suggests that a threat exists of an organized, armed group of individuals entering the United States at the direction of Venezuela to conquer the country or assume control over a portion of the nation. Thus, the Proclamation’s language cannot be read as describing conduct that falls within the meaning of “invasion” for purposes of the AEA. As for “predatory incursion,” the Proclamation does not describe an armed group of individuals entering the United States as an organized unit to attack a city, coastal town, or other defined geographical area, with the purpose of plundering or destroying property and lives. While the Proclamation references that TdA members have harmed lives in the United States and engage in crime, the Proclamation does not suggest that they have done so through an organized armed attack, or that Venezuela has threatened or attempted such an attack through TdA members. As a result,the Proclamation also falls short of describing a “predatory incursion” as that concept was understood at the time of the AEA’s enactment.
The judge basically said: “let me explain what words actually mean, since you seem confused.”
For these reasons, the Court concludes that the President’s invocation of the AEA through the Proclamation exceeds the scope of the statute and, as a result, is unlawful. Respondents do not possess the lawful authority under the AEA, and based on the Proclamation, to detain Venezuelan aliens, transfer them within the United States, or remove them from the country.
That said, there are still some parts of the ruling that are pretty scary, including that the judge feels that plenty of what Trump has done here is unreviewable by the courts as “political questions.” And he also makes it clear that Trump could use other laws to kick them out of the country (though, those other laws historically have more due process associated with them, which is why the admin went to the AEA in the first place).
Specifically, the court says that it can’t determine if the factual claims made in the White House’s proclamation (such as that TdA is working for Maduro and therefore an agent of the state of Venezuela) are true or not. Rather, it can only interpret the words in the statute, such as “invasion” and “predatory incursion.”
Based on the Supreme Court’s decisions regarding the AEA, as well as the principles enumerated in Baker, the Court concludes that whileit may not adjudicate the veracity of the factual statements in the Proclamation, or the propriety of the steps taken by the President as to Venezuelan aliens and TdA members, the Court retains the authority to construe the AEA’s terms and determine whether the announced basis for the Proclamation properly invokes the statute.
That could create problems down the road if it remains. In part, the judge is giving the administration a roadmap to continue doing what they want to do. And it gets even worse:
Once a court defines the parameters of what conduct constitutes an “invasion” or “predatory incursion” for purposes of the AEA,the court leaves to the Executive Branch the determination of whether such conduct has been perpetrated, attempted, or threatened. For example, a court may decide that one aspect of “invasion” and “predatory incursion” requires physical entry into the United States. In other words, a court may conclude that no invasion or predatory incursion has occurred or has been threatened if the alleged conduct does not involve the entry of individuals into the country. The court having determined the meaning of these terms,it is left to the Executive Branch to determine whether a foreign nation or government has threatened or perpetrated activity that includes such an entry. As to this decision,the court may not delve into whether the Executive Branch possesses sufficient support for its conclusion, or whether the court agrees with the Executive Branch’s determinations. That analysis would require the Executive Branch to disclose to the court the domestic and foreign intelligence that undergirds the finding of an actual or threatened invasion or predatory incursion. And requiring the Executive Branch to do so would run counter to the admonition that “it is inconceivable that before an alien enemy could be removed from the territory of this country in time of war, the President should be compelled to spread upon the public record in a judicial proceeding the method by which the Government may detect enemy activity within our borders[.]”
That creates a pretty big loophole for the Trump administration to go through even with this particular decision.
So yeah, this is a win — a Trump-appointed judge looked at this legal nonsense and said “nah.” That’s huge. But don’t get too excited. The administration’s already shown they’re willing to do just about anything to justify their actions. They’re not going to let a little thing like “judicial interpretation” or “what words actually mean” stop them from trying again.
The real question isn’t whether they’ll try to get around this ruling — it’s what creative legal interpretation they’ll cook up next. This particular dumpster fire is far from out.
For a long time, we’ve believed no president would dare enact the Alien Enemies Act again, not after it was abused to send more than 100,000 residents and citizens of Japanese descent to US concentration camps during the Second World War.
Even the administrative power grabs and uptick in bigotry that followed the 9/11 attacks never went as far as Trump has in his second presidential term. Trump, along with his supporters and enablers, are enacting a racial cleansing of America. That it’s been mostly bloodless so far isn’t much comfort. In fact, due to the lack of concerted push-back by any other branch of the government (a late-night order from SCOTUS notwithstanding), the only thing this bloodlessness indicates is that we’re still on the early end of the Trump 2.0 timeline
But even bad faith efforts to remove brown people from the US need some sort of excuse, no matter how unbelievable, to justify the abjectly horrible actions being taken by the Trump administration. It gives everyone involved the veneer of lawfulness they’ll need to cling to if, and more hopefully, when they’re held accountable for their actions.
The claim being used to buttress sending people who are here in this country legally to foreign prisons under the Alien Enemies Act is this: The deportees are actually enemies engaging in hostile acts under the direct supervision of a foreign, unfriendly government. Here’s how the Trump Administration has framed this flimsy argument:
Trump’s invocation of the act claims such a link: “TdA is undertaking hostile actions and conducting irregular warfare against the territory of the United States both directly and at the direction, clandestine or otherwise, of the Maduro regime in Venezuela.”
Almost no evidence has been offered to support these assertions. Similarly sloppy work is being done by federal officers, ex-cops, and private contractors to identify alleged gang members. From what we’ve seen so far, the mere presence of literally any tattoo on a detainee’s body is enough to get them shipped off to an El Salvadoran maximum security prison.
No one in the Trump administration cares how sloppy and how cruel this is. And they certainly won’t be moved by the determination of multiple US intelligence agencies, whose combined forces have yet to uncover anything linking the Venezuelan government to Tren de Aragua gang activity in the United States, much less anything that ties hundreds of detainees to activities that would justify their removal under the Alien Enemies Act.
The National Intelligence Council, drawing on the acumen of the United States’ 18 intelligence agencies, determined in a secret assessment early this month that the Venezuelan government is not directing an invasion of the United Statesby the prison gang Tren de Aragua, a judgment that contradicts President Donald Trump’s public statements, according to people familiar with the matter.
The determination is the U.S. government’s most comprehensive assessment to date undercutting Trump’s rationale for deporting suspected gang members without due process…
Even if this full assessment is made public, it won’t change anything. It’s not going to stop the Trump administration from ignoring due process rights and expelling as many foreign residents from the US as possible. All that’s guaranteed to happen is the mass firing of every intelligence official involved in generating this assessment. Bigoted sociopaths are running the country now and there’s not a single person in any position of power in this administration who gives one solitary fuck about the truth. We citizens, however, don’t have to pretend to believe Trump’s bullshit. That’s still a luxury we can afford, which is more than can be said about the billionaires and bootlickers he’s surrounded himself with, who are clearly willing to watch an entire country burn in exchange for a little bit of Oval Office access.
The Trump administration’s attempt to rendition people to El Salvador without due process has hit another judicial roadblock. Judge Charlotte Sweeney in Colorado has blocked the government from using the improper Alien Enemies Act to remove noncitizens from the US without due process.
The administration’s invocation of the Alien Enemies Act is both legally absurd and morally offensive. The history of the Alien and Sedition Acts is a shameful moment in American history, with three of the four acts long since repealed or expired. The surviving Alien Enemies Act has only been used three times in our history — during actual declared wars — and each use represents a stain on American principles of due process.
But here, it’s even worse. The administration isn’t even pretending there’s a real war. Instead, Trump simply declared by executive fiat that a Venezuelan gang, Tren de Aragua (TdA), constitutes an “invading force” under the control of Venezuelan President Nicolas Maduro — a transparently false claim that ignores both reality and the Constitution’s assignment of war powers to Congress.
The court methodically dismantles the administration’s attempt to redefine basic constitutional concepts. Judge Sweeney explains that “invasion” has always meant military action by another nation — not, as the administration claims, criminal activity by a gang. The ruling points out (quoting other rulings) that this understanding of invasion “echoes throughout the Constitution” and “in every instance, it is used in a military sense.” The administration’s attempt to characterize TdA’s activities as an “invasion” fails “at a bare minimum,” regardless of how dramatically the government describes the gang’s “hostile actions.”
The opinion reads like a basic civics lesson for an administration that seems to need one. The judge appears particularly unimpressed with government lawyers trying to argue that “unambiguous words are ambiguous” just to justify their novel interpretation.
Similarly, the court rejected the administration’s attempt to transform a criminal gang into a “foreign nation or government” merely by asserting links to Maduro’s regime:
At bottom, the Proclamation fails to adequately find or assert TdA is a “foreign nation or government,” § 21, sufficient to justify the Act’s invocation. Indeed, if TdA was such a “foreign nation or government,” id., there would be no need for it to “undertak[e] hostile actions . . . at the direction, clandestine or otherwise, of the Maduro regime in Venezuela,”
From there, the judge calls out the horrifying lack of due process by the US government in trying to traffic these individuals to El Salvador:
This does not, as discussed during oral argument, instruct individuals that they have a right to pursue a habeas challenge. At most, the Notice “permits” individuals to make “a phone call.” Id. (emphasis added). And while the Notice requires government employees to certify they have read the Notice to an individual “in a language he or she understands,” this does not guarantee individuals are provided the Notice in a language they understand “in a manner as will allow them to actually seek habeas relief,” J. G. G., 2025 WL 1024097, at *2.Vaguely granting someone permission to make one phone call if they ask—with, at most, a verbal read-aloud of the Notice that on its face says nothing about the right to seek habeas relief—does not rise to the level of “allow[ing] [detainees] to actually seek habeas relief in the proper venue before [their] removal occurs.”Id. (emphasis added); Mullane v. Cent. Hanover Bank & Tr. Co., 339 U.S. 306, 314 (1950) (“An elementary and fundamental requirement of due process . . . is notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.” … This is all the truer where, as Petitioners observe, the notice gives no timeframe for removal or even informs an individual how to contest their removal—much less, noted above, that notice judicial review could be pursued.
The judge also addresses the very different beliefs between the plaintiffs’ ACLU lawyers and the government on just how much notice people deserve to allow them to seek due process before being shipped to a foreign concentration camp. Remember, the Supreme Court explicitly said, just weeks ago, that there must be a “reasonable” amount of time for due process.
The DOJ argued that 24 hours was sufficient notice — a position that would effectively prevent any meaningful legal challenge. While the ACLU requested 30 days, the court settled on 21 days and laid out specific requirements for adequate notice:
Such notice must state the government intends to remove individuals pursuant to the Act and Proclamation. It must also provide notice of a right to seek judicial review, and inform individuals they may consult an attorney regarding their detainment and the government’s intent to remove them. Such notice must be written in a language the individual understands. These requirements are reasonable to ensure individuals are “actually inform[ed],” Mullane, 339 U.S. at 315, of their rights and the nature of proceedings against them, consistent with Supreme Court precedent on this very issue, and crafted to the “appropriate nature of the case,” see J. G. G., 2025 WL 1024097, *2 (quoting Mullane, 339 U.S. at 313. See also id. (“The notice 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.”).
In issuing the temporary restraining order, Judge Sweeney cut through the government’s arguments with a simple observation about what’s really at stake: without court intervention, these individuals face “significant risk” of being illegally trafficked to a foreign gulag. The court emphasized that its order merely enforces fundamental constitutional principles:
Practically speaking, a TRO would inflict little more on Respondents than ensure they adhere to the requirement the Supreme Court has already imposed on them: give Petitioners and putative class members adequate notice, with adequate time, to adequately pursue habeas relief
Expect the government to appeal and/or try to weasel its way out of what the judge orders here, because that’s what they’ve been doing in every one of these cases. But, for now, it’s another strong ruling against the fascist Trump administration’s efforts to disappear people to a foreign concentration camp under an inapplicable law without any due process.
