Trump's Attack on Civil Rights Starts with Migrants

Peoples lives are being shattered and destroyed by a mere allegation. Some are true and some are false. Some are old and some are new. There is no recovery for someone falsely accused - life and career are gone. Is there no such thing any longer as Due Process?

  - Donald J. Trump @realDonaldTrump, February 10, 2018

Lately, choosing a topic that demonstrates the threat to democracy and the rule of law posed by cult leader, convicted felon, and failed President Donald Trump is difficult, not because no such topics exist, but rather because there are too many, making the selection difficult. Why then, did I lead off today with a statement by Trump in which he appears to be correct? Because that tweet is an almost perfect rebuttal to the position taken by Trump and Department of Justice lawyers with regard to the deportation to a notorious prison in El Salvador of accused members of a violent Venezuelan gang. Contrary to Trump's position in 2018, Trump and the DOJ lawyers now argue that those being deported do not deserve due process.

At issue is Trump's invocation of the Alien Enemies Act of 1798. This law grants wartime authority to the President and was previously invoked during the War of 1812, World War I, and World War II. During World War II, the act was cited as a justification for Japanese internment. Trump's invocation via executive order in regard to a Venezuelan gang is unusual. The United States is not currently at war with Venezuela. Trump relied on a multi-step rationalization. He first declared Tren de Aragua to be a "Foreign Terrorist Organization" and then claimed that the group was "conducting irregular warfare and undertaking hostile actions against the United States." Trump's EO further argues that the gang is "perpetrating, attempting, and threatening an invasion or predatory incursion against the territory of the United States." Based on this justification, Trump ordered the deportation of Tren de Aragua members. To be clear, any such individuals need not have committed a crime in the United States. They don't even need to be in the country illegally. If a legal immigrant with a completely clean criminal record is accused of being a member of Tren de Aragua, that is sufficient to justify the individual's deportation. Moreover, based on DOJ court testimony, an accusation is enough. There is no mechanism requiring the presentation of evidence or providing the accused an opportunity to counter the accusation.

Yesterday, there were two court hearings related to previously-conducted deportations and future deportations. DOJ lawyers have been attempting to get a temporary restraining order issued by U.S. District Judge James Boasberg lifted. Boasberg's TRO has halted subsequent deportation flights. One issue of dispute is whether the government violated an earlier Boasberg order to stop the original flights and have the aircraft return with the deportees. The government ignored Boasberg's order, claiming that it didn't apply because the planes were over international water when the order was issued, that the verbal order didn't apply, and that the written order was too late. Boasberg has been trying to nail down the timeline of when all this occurred, and the government has not been cooperating. The Trump administration has claimed that the judge's questions about the timing of flights are intrusive and trample on executive branch authorities. Yesterday, the Trump administration invoked the state secrets privilege and refused to provide Boasberg with any additional details about the flights. I want to be clear about this: Trump officials want us to believe that the time of take-off and landing of aircraft carrying deportees is a state secret. Needless to say, Boasberg did not find the government arguments to be convincing and kept his TRO in place.

The Trump administration also appealed Boasberg's TRO and yesterday had arguments before the U.S. Court of Appeals for the D.C. Circuit. One thing to note about this hearing is that Acting Field Office Director Robert L. Cerna apparently revealed state secrets in his declaration to the court by disclosing the time the three aircraft carrying deportees took off. This hearing was before a three-judge panel consisting of an Obama appointee who seemed sympathetic to the plaintiffs, a Trump appointee who appeared to side with the government, and a George W. Bush appointee who was noncommittal. The Obama appointee, Judge Patricia Millett, noted that German nationals in the U.S. during World War II when the Alien Enemies Act was invoked received hearings which the Venezuelans have not been provided. Therefore, the judge declared, "Nazis got better treatment under the Alien Enemies Act than what has happened here." The Trump appointee, Judge Justin Walker, suggested that those being deported should simply file habeas petitions which would allow them to argue that they were being unlawfully detained. The problem with this argument is that the government has not been revealing the location of detainees or even the fact that they have been detained. As a result, lawyers don't know where they should file a petition or, in some cases, that a petition is even warranted. In the case of the first planeloads of deportees, some family members didn't know that their relatives had been detained until they saw pictures of them in the El Salvadoran prison. The secrecy and intentional deception surrounding the detainees significantly interfere with the legal procedures such as habeas petitions.

The issue of due process was a major point of contention in both hearings. It is also what makes this such a significant civil rights issue. The government argues that it conducts careful investigations and is certain that its identification of the deportees as members of Tren de Aragua is correct. Moreover, the DOJ lawyers argue, this is a matter entirely for the executive branch, and the judicial branch has no role to play. The obvious problem with this argument is that we are expected to believe that the government is infallible. This is a contention with which I would expect conservatives to be especially scornful. Moreover, it is an argument that is belied by examples. As I wrote yesterday, there are credible reasons to believe Jerce Reyes Barrios was wrongly deported and is a victim of having his tattoo misidentified rather than a member of Tren de Aragua. During the appeals hearing yesterday, declarations were provided which disclosed that eight female detainees were included on the flights to El Salvador. These women had to be returned to the U.S. because the agreement with El Salvador doesn't include women. Either the infallible U.S. government officials didn't know that they were women or didn't know what the agreement with El Salvador allowed. Separately, a Nicaraguan migrant said that he was also on a flight to El Salvador and returned because the El Salvadorans would not accept Central Americans. A mistake was also apparent in the unrelated detention of a legal permanent resident in New York, Mahmoud Khalil. Government officers originally believed that he was in the U.S. on a student visa and only realized that he is actually a green card holder during his arrest. What seems clear is that the government may err in identifying gang members, it may not properly understand immigration status, and may struggle with even understanding the policies controlling their behavior. With this much room for error, what is stopping U.S. citizens from being caught up, wrongly accused, and potentially deported? This is why due process is so important: it allows those falsely accused to challenge mistaken allegations.

In today's America, masked agents are literally sweeping people off the streets, moving them among detention centers as if playing a shell game, and then putting them on flights to a foreign prison. Moreover, the government wants to be able to do this without anyone looking over its shoulder or checking its work. The Trump administration wants no due process allowed. Almost certainly, this issue will wind up before the U.S. Supreme Court, where which way the court will go is little better than a coin toss. A court consisting of six conservative justices and only three liberals will need to decide whether or not the U.S. will become a police state.