More than 100 Venezuelan migrants are in an El Salvador prison after the Trump administration invoked a wartime power to deport them without due process. What happens next could fundamentally change the rule of law in the country, experts told NOTUS.
“It’s a huge test for the judiciary, and ultimately the Supreme Court, whether they’re going to allow the administration to abuse a wartime authority like this,” said Tom Jawetz, former deputy general counsel of the U.S. Department of Homeland Security and now a fellow at the Center for American Progress. “The power that they’re claiming to have is the power to arrest, detain and deport someone, no questions asked, and that’s a power that could lead to quite significant abuses.”
Trump invoked the Alien Enemies Act, last used to justify the internment of Japanese Americans during World War II, to order the removal of migrants his administration claims are members of the Venezuelan gang Tren de Aragua. The administration sent the migrants to El Salvador despite a judge’s order saying the planes should be turned around. The migrants are now in a mega-prison even though a U.S. official said “many” have no criminal record.
The case could go as far as the Supreme Court, experts said, and the migrants’ fate could have far-reaching implications. If the administration can successfully argue in court that the U.S. is being invaded, and the president is able to access wartime powers, deportations are only the first of an expansive set of powers Trump could use, lawyers and advocates told NOTUS.
“It’s an incredibly slippery slope,” said Adam Isacson, director of defense oversight for the Washington Office on Latin America. “Then we’re off to the races.”
Further deportations under the Alien Enemies Act are currently blocked. The Trump administration argued on Tuesday that it didn’t defy the order partly because the planes that landed carried migrants who could also be deported under established authorities, though it’s unclear if officials went through legally obligated proceedings. Not all of the migrants were being deported under the Alien Enemies Act; some had gone through regular immigration processes.
The use of wartime authority is controversial in part because the U.S. government faces no obligation to prove that those they deport are actually involved in gang activity, or invading on behalf of another country. Usually the power is checked to some degree by Congress, which has to issue a declaration of war. In this case, the Trump administration has acted unilaterally and could deport almost any Venezuelan who is not a U.S. citizen — even those with another form of legal status — with no oversight, experts said.
The migrants sent to El Salvador are being held in the country’s mega-prison, where an unknown number of inmates are kept in windowless cells for nearly 24 hours a day, according to reporting from the BBC. Human rights groups have accused the jail of torture and abuse and said El Salvador’s president, Nayib Bukele, is holding people there with little to no basis.
“These are people who were never found guilty by any court of law… so they’re not technically even prisoners,” Isacson said of the migrants deported by the U.S. Even if they have been found guilty of other offenses in the past, they are not being sent to the prison in relation to any criminal penalty now, he said. “ICE didn’t like the look of them. That’s all we know.”
Once the migrants are in El Salvador, they will not have any of the rights afforded to them in the United States.
“Their rights are extremely limited, which is why, if they were removed unlawfully, that would be a problem, because they have rights that were protected while they were present,” said Jesse Bless, an immigration lawyer who spent 13 years with the Department of Justice. “The U.S. is essentially washing their hands of these individuals who they are declaring to be wartime enemies.”
The situation the Trump administration is trying to create in El Salvador is unprecedented, multiple lawyers told NOTUS. While in El Salvador, the migrants are only subject to the rights and laws of that country, and the migrants are there for a one-year term, for which the U.S. will pay El Salvador $6 million. What happens after that is unclear, as is whether the U.S. has any accountability for migrants it is paying to imprison in another country.
Some experts said they think the Trump administration’s ultimate goal is to disappear migrants quickly.
“This appears to be the U.S. government exacting revenge on people as a way of terrifying many other people,” Jawetz said. “And we’re using the Salvadoran government, which has its own authoritarian tough guy image, to basically do our dirty work.”
A U.S. judge could order the Venezuelan migrants back to the United States. El Salvador is not technically obligated to return people to the U.S. who aren’t citizens and aren’t going through extradition (unless both countries have agreed to terms for the imprisonment of migrants that aren’t currently public), but its officials seem to be cooperating with the Trump administration.
If the migrants are returned to the U.S., they could be detained and potentially removed through regular immigration proceedings. It’s unclear if that means they could still legally be sent to El Salvador’s prison. It’s legal for the U.S. to remove migrants to third countries, but it’s only rarely been done in the past, experts said, and those countries are supposed to be vetted and confirmed safe. Multiple experts said it’s doubtful El Salvador or its prison would pass such a test.
Judges could also decide to leave these migrants in El Salvador until the case fully works its way through the justice system, which multiple experts said could go to the Supreme Court.
The Trump administration is continuing to pursue the removal of alleged Venezuelan gang members. Border czar Tom Homan defended Trump’s use of wartime power to Fox News on Monday.
“We are not stopping. I don’t care what the judges think. I don’t care what the left thinks. We’re coming,” he said.
The Department of Homeland Security did not respond to a request for additional comment on the deportations. A White House official referred to comments from adviser Stephen Miller, who defended the administration and attacked the district court judge for interfering.
“Tren de Aragua is an alien enemy force that had come here, as detailed at length in the proclamation, at the direction of the Venezuelan government,” Miller said of Trump’s order. “The statue says that a president has the ability to repel an invasion or predatory incursion that is directed by a foreign government.”
While most lawyers NOTUS spoke to predicted the administration’s current deportations and use of the Alien Enemies Act would be struck down in court, they said the Supreme Court could rule at least partly in the Trump administration’s favor.
George Fishman, former deputy general counsel for DHS and a fellow at the Center for Immigration Studies, a think tank that favors low levels of immigration, said the act could almost certainly not be used in widespread deportations. But he said courts could agree with Trump’s argument that Tren de Aragua is closely tied to the Venezuelan government and therefore can be called an invading force on behalf of that government.
Though he thinks the idea could hold weight, Fishman said the Trump administration would first have to get the court to buy the idea and then also successfully prove that Venezuela is such a country and Tren de Aragua such a gang.
“This is unprecedented, and that doesn’t mean it’s illegitimate or invalid,” he said. “In terms of foreign affairs, the Supreme Court has indicated that there’s a great deal of deference that they will give to the administration.”
Others didn’t think the theory would work, although some said the Supreme Court has shown deference to the executive branch in ways that make it hard to predict how it would decide. The court could decide that the executive branch does have the authority to determine when the country is being invaded. However, it could also reject the theory entirely, or take issue with other immigration laws implicated in the case, or with the Trump administration’s avoidance of the initial court order.
All of these things could fundamentally change the power of the presidency, along with what will happen to the Venezuelan migrants currently in El Salvador and other migrants being held in the U.S.
“That gets at the heart of what this is about,” Bless said. “They want to declare who’s an enemy or not, and then they want to, once they make that choice, be able to send them outside the United States without anybody’s review.”
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Casey Murray is a NOTUS reporter and an Allbritton Journalism Institute fellow.