It was the sort of headline we’re accustomed to seeing in reports from repressive regimes overseas: Earlier this month, more than 200 immigrants were unceremoniously shipped out of the United States to a notoriously brutal prison in El Salvador, all without benefit of any prior judicial process — and, indeed, in possible defiance of explicit orders from a federal judge.
The formal legal basis for this stunning action was an 18th century law, the Alien Enemies Act, meant to be used during times of war to detain or expel potential spies and saboteurs employed by the enemy nation.
How do we know they’re terrorists or gang members without due process? Shush.
The rhetorical and political basis, however, was a circular argument long used by authoritarians: These are bad and violent people, alleged members of the Venezuelan gang Tren de Aragua — and maybe even “terrorists!” — who therefore do not deserve any due process. Attorney General Pam Bondi struck a note echoed by many in the administration in a CNN interview when she blasted the judge who had ordered a halt to the expulsions: “The question should be why is a judge trying to protect terrorists who have invaded our country?”
How do we know they’re terrorists or gang members without due process? Shush.
It’s grimly ironic, then, that all this was carried out on the orders of a convicted criminal, President Donald Trump, who has made the exploitation of due process guarantees a minor art form.
In case after case, Trump has denied all wrongdoing and has also successfully managed the legal system to delay and, thus far, avoid legal accountability, even where the evidence of his wrongdoing was copious, decisive and public. Many of the migrants now languishing in El Salvador, by contrast, appear to have been denied judicial process precisely because the evidence against them was so thin — and in some cases essentially nonexistent.
Consider the case of Jerce Reyes Barrios, one of the very few expelled migrants for whom we have some idea of the grounds on which they were detained and ultimately imprisoned. An affidavit filed by his attorney provides the outline of his case. Reyes Barrios had been a professional soccer player in Venezuela, where last year he was detained and subjected to torture for protesting against the dictatorship of Nicolás Maduro. He fled to Mexico, where he used a Customs and Border Patrol app to submit a request for asylum, and then the United States. He was detained in California pending a hearing on his asylum petition, which had been slated for April. According to the affidavit, however, Immigrations and Customs Enforcement agents grew suspicious of a tattoo the soccer player sported, which his attorney says is modeled on the logo for the Spanish soccer team Real Madrid, as well as social media posts in which Reyes Barrios is making the classic rock-and-roll horns hand gesture. That, says his attorney, was enough to get him put on a plane to El Salvador.
The Department of Homeland Security, unsurprisingly, rejects this characterization and insists that it remains “confident” in its assessment that Reyes Barrios is a gang member based on evidence gleaned from his social media accounts. What evidence, exactly? Is it sufficient to condemn a man to be locked up for at least a year in a foreign prison famous for human right abuses? The public, and the courts, may never learn. And Reyes Barrios is hardly alone: Relatives of several other detainees have come forward to insist that their family members have no ties to Tren de Aragua.
There is no good reason to simply trust ICE’s determinations on this score without neutral judges checking their work.
Even if in some cases such ties are demonstrable — if you rounded up a few hundred men you’d probably net some gang members purely by chance — one might quaintly imagine that some specific crime would be required to justify indefinite imprisonment under brutal conditions. But ICE itself has acknowledged that many of the men have no criminal records in the United States and does not appear to even be claiming, in most cases, that it has evidence of concrete gang-related criminal offenses.
No worries, according to Robert Cerna, acting director of enforcement and removal operations in ICE’s field office in Harlingen, Texas, because “the lack of specific information about each individual actually highlights the risk they pose” because it “demonstrates that they are terrorists with regard to whom we lack a complete profile.” In other words, according to Cerna’s Kafkaesque logic, the absence of any evidence of criminality only proves what ingenious criminals they must be.
There is no good reason to simply trust ICE’s determinations on this score without neutral judges checking their work. American law enforcement has a well-documented tendency to misidentify Black and Latino men as gang members based on superficial indicators like appearance or social connections to other suspects. And ICE itself has a disturbing history of detaining and sometimes even attempting to deport U.S. citizens and legal residents.
Indeed, it’s fair to ask whether getting it right is even the point.
Venezuela, after all, is under the boot of a dictator with little regard for human rights. That gives many refugees from that country plausible asylum claims, which legally must be given fair hearings. And if you’re aiming to ultimately deport millions, respecting their right to those hearings must seem awfully “impractical.” The dubious invocation of the Alien Enemies Act has all the hallmarks of an administration — impatient to conduct the mass deportations Trump campaigned on — looking for a pretext to circumvent that process. The AEA, after all, was meant to deal not with routine gang activity, but with actual foreign invasions: It has been invoked on just three previous occasions in our history, each of those during an actual war. The Trump administration’s excuse for deploying it now is the claim that Tren de Aragua amounts to a foreign military force, a claim it bolsters with allegations that the gang has ties to Venezuela’s government. One tiny problem: Just last month, the American intelligence community came to precisely the opposite conclusion. It’s worth noting that Trump has been much more appreciative of due process guarantees when it comes to his own brushes with the legal system — and indeed, he has successfully exploited them to the hilt. Nearly two years ago, Trump was found civilly liable in New York state for both fraud and for sexually abusing and defaming columnist E. Jean Carroll but has thus far avoided paying a dime of the penalties he owes thanks to a series of fruitless but seemingly endless appeals. Though he got away with a wrist slap following his felony conviction for falsifying documents in connection with his hush money payments to a porn actress, he faced a slew of far more serious criminal charges before being re-elected in November. Trump has been much more appreciative of due process guarantees when it comes to his own brushes with the legal system. The most open and shut of these involved Trump’s hoarding of — and repeated refusal to return — top secret documents at his Mar-a-Lago estate, with which he absconded when he departed the White House in 2021. The facts in that case were not disputed: Trump’s defense involved a misguided reading of the Presidential Records Act on which his lawyers based their argument that he had discretion to treat American nuclear secrets as his personal property. Lawyers not employed by Donald Trump uniformly found this theory laughable. Nevertheless, a slew of pretrial motions ground the case to a standstill until a friendly judge appointed by him finally dismissed it, based on an idiosyncratic ruling that the special prosecutor spearheading the case had not been properly appointed. Given more time, the Justice Department could most likely have overturned that ruling or simply had ordinary Justice Department prosecutors refile the charges, but Trump had successfully run out the clock. The same trick proved successful with the arguably even more serious charges Trump faced in connection with his attempt to overturn the results of the 2020 election. Here, too, there were reams of evidence — most of it now part of the public record — that Trump had sought to strong-arm officials into blocking certification of the election via bogus claims of vote-tampering that his own staff and officials had told him were false, that he had incited a violent assault on the U.S. Capitol with the same end in mind and sat approvingly by as his followers attacked police and that he had approved a scheme to have loyalists submit fraudulent electoral vote certifications, falsely identifying themselves as legitimate Electoral College delegates. (Trump pleaded not guilty to every count against him and has denied wrongdoing in each case.) Though conviction in that last, rather more complex case was less certain, it was most definitely based on a stronger foundation than a few tattoos and social media photos. Perhaps given his own experience, it’s understandable that Donald Trump views due process as little more than a tool for criminals seeking loopholes to escape justice. It worked that way for him, after all.
Julian Sanchez
Julian Sanchez is the author of the politics and technology newsletter Non-Content and co-host of the podcast "WatchCats," which focuses on the Department of Government Efficiency. 
