This Saturday, and after repeatedly announcing and promising it during his campaign, the US President, Donald Trump, invoked the Alien Enemies Act, a controversial provision from 1798 that has only been used three times in history, always in times of war, to expel from the country without trial or due process those who are claimed to be gang members.
Hours later, a federal judge ordered the Government to immediately stop any deportation that had occurred without a specific hearing, instructing the involved departments to turn back any flights that had taken off. However, the instructions did not prevent 237 Venezuelans from landing in San Salvador to serve prison sentences there.
The case is highly controversial and will likely end up in the Supreme Court, already causing a fierce clash between the three branches of government. The Trump Administration has been attacking the judges since taking office, who are putting constitutional obstacles to their most aggressive decisions. Elon Musk has led the charge against Judge James E. Boasberg, calling for his impeachment, sharing his photo and messages calling him a "clown" and accusing him of "putting Americans in grave danger" or trying to assume the White House's powers. Attorney General Pam Bondi went further and criticized the judge in a statement accusing him of siding with "terrorists over the safety of Americans." A full-fledged campaign.
Legally, the key lies in a few minutes. Early Sunday morning, the Salvadoran President, Nayib Bukele, posted a message on his social media with a video showing a massive security operation at an airport to escort hundreds of people. "Today, the first 238 members of the Venezuelan criminal organization Tren de Aragua arrived in our country. They were immediately transferred to the Terrorism Reclusion Center for a period of one year (renewable). The US will pay a very low price for them, but a high cost for us," said Bukele. But it is not known when this occurred.
Trump signed an executive order last Friday stating that any Venezuelan over 14 years of age "found in the United States without authorization and part of the Tren de Aragua gang can be detained and deported." The Government mentions hundreds or thousands, but both in Caracas and many experts believe the numbers are exaggerated, including many innocent people or those who may have records but not for belonging to the organizations now labeled as terrorists.
Following complaints from civil organizations, the judge issued an emergency order at 7:00 pm on Saturday, Washington time, specifying that if there were flights in progress, they should return, raising very obvious suspicions that security forces ignored or disobeyed the judicial decision. Both Bukele and Musk and other Republican politicians have mocked this possibility, posting press clippings reporting the federal order accompanied by messages like "oops, too late," with laughing emojis.
"We have sent back two dangerous MS-13 leaders and 21 of their most wanted members to El Salvador to face justice. Additionally, as promised by the President, we have also sent over 250 foreign enemies of the Tren de Aragua, whom El Salvador has committed to keep in their excellent prisons at a fair price that will also save money for our taxpayers. President Bukele is not only the strongest security leader in our region but also a great friend of the US. Thank you!" stated US Secretary of State Marco Rubio.
"The Biden administration released thousands of Venezuelan criminals from the Tren de Aragua in the United States. They committed armed robberies, sexually trafficked girls, attacked American citizens, assaulted our police, and raped and murdered young women and children. But now, thanks to the American people, we have President Trump! Last night, 238 members of the Tren de Aragua, along with 21 MS13 gang members, were deported from this country, adding to the thousands of foreign criminals who have already been deported. Under President Trump's leadership, this country becomes safer every day," celebrated Tom Homan, the border 'czar' appointed by the President.
El Salvador agreed with the White House not only to serve as a transit point for immigrant deportations but also to host prisoners in its jails in exchange for money. However, according to the law, this does not affect the processes that must be followed. The Alien Enemies Act allows for the summary deportation of individuals, but only those from countries at war with the United States. It is the mechanism used in 1812 against the British, World War I, and World War II, with the infamous internment camps for Japanese or Germans.
The US is not at war with Venezuela, but Trump has declared a national emergency at the border and designated cartels and gangs like Tren de Aragua and MS-13 as terrorist organizations. He believes that provides sufficient grounds. During the emergency hearing and the Saturday order, the judge indicated that he did not believe the law justified the President's action, as the historical interpretation is that the language of that early republic law refers to "invasion" and "predatory incursion" as "hostile acts perpetrated by enemy nations," not gangs.
Therefore, he ordered all flights that had departed with Venezuelan immigrants under that executive order to return "by any means necessary, even making the plane turn back," after the lawyers from the American Civil Liberties Union (ACLU), who challenged the executive order on behalf of five affected Venezuelans claiming not to belong to any criminal organization, indicated that they suspected there were two flights "in the air" at that moment.