One thing that could be said about many—and possibly all—of the more than 100 men removed from the United States by the Trump administration under the archaic Alien Enemies Act of 1798 is that Donald Trump has been convicted of more crimes than they have.
Trump, after all, was convicted of 34 felony counts by a jury of his peers in New York City for faking business records in order to cover up his hush-money payment to the adult-film actor Stormy Daniels in 2016. His administration has acknowledged in court that many of the men deported to a gulag in El Salvador “do not have criminal records in the United States.” Many appear to not have criminal records elsewhere either.
During the 2024 presidential campaign, Trump and his advisers loudly declared that they would engage in a “mass deportation” of undocumented criminals. Many Americans heard criminals and seem to have assumed that innocent people would not be targeted. But the reality of Trump’s immigration project is that a “criminal” is anyone the administration wants to deport, regardless of whether they have committed a crime. There’s been no earnest attempt to prove that these people did anything wrong; no deference to the Fifth Amendment, which guarantees that no “person” can be “deprived of life, liberty, or property, without due process of law.” Its protections are supposed to restrain the government and do not solely apply to citizens. Even so, immigration law is extraordinarily deferential to the federal government when it comes to these kinds of deportations—so deferential that if the Trump administration had solid evidence of gang involvement, deporting these men through a more routine process could have been straightforward.
ICE rounded these men up in early March, and then put them on a plane to the Central American nation, alleging that they were members of Tren de Aragua, a Venezuelan gang. The men were then imprisoned in El Salvador’s Centro de Confinamiento del Terrorismo, or CECOT, a prison infamous for reported human-rights violations including, allegedly, torture. The ACLU and Democracy Forward filed a challenge on behalf of five of the men shortly after they were apprehended, and managed to secure a judicial order preventing them from being removed from the United States, which the Trump administration seems to have defied.
So far, the Trump administration has provided only weak evidence that any of the men condemned to a foreign prison notorious for human-rights violations was guilty of anything. The administration’s defense of its actions, according to the declaration made by an ICE official, Robert Cerna, is that “the lack of specific information about each individual actually highlights the risk they pose. It demonstrates that they are terrorists with regard to whom we lack a complete profile.” In other words, the lack of evidence against these men is just further proof that they’re guilty.
Relatives of several of the deportees have insisted that these men have no gang affiliation, and say some of them fled Venezuela specifically because they were threatened by the exact gang they are now supposedly a member of. One of the deportees, Andry Hernandez, is an asylum seeker and a makeup artist who was tagged by ICE as a “gang member” because of two tattoos of crowns with the words mom and dad underneath them. An expert on Tren De Aragua told The New Yorker that “Tren de Aragua does not use any tattoos as a form of gang identification; no Venezuelan gang does.” In response to public outcry over Hernandez’s deportation, the Department of Homeland Security has insisted that Hernandez’s “social media indicates he is a member of Tren de Aragua.” If the government has such evidence, it hasn’t filed it in court. According to Hernandez’s attorney, the tattoos are “the only basis of the government’s assertion, in its filing, that he is connected to Tren de Aragua.”
To be deported by Trump, one does not need to be a drug dealer or a terrorist; apparently, having tattoos and being Venezuelan is enough. Another deportee, the Miami Herald reported, is Frengel Reyes Mota, who fled political instability in Venezuela and was pursuing an asylum case when he was apprehended at his regular ICE check-in. He may have been mistaken for someone else; he seems to have followed all the rules, and still that did not spare him.
As it flouts due process, the administration is also trying to invoke the state-secrets privilege—a legal rule that allows presidents to withhold evidence whose disclosure could harm national security—to keep the courts from intervening so that it can continue to imprison men in an overseas gulag indefinitely.
“Even if the [Alien Enemies Act] could be used against the gang during peacetime, there must be an opportunity for individuals to contest that they are, in fact, members of the gang,” Lee Gelernt, an ACLU attorney litigating the case, told me. If no such opportunity exists, “it means that anybody could end up at an El Salvadoran prison for the rest of their lives, citizen or a noncitizen, that’s not a member of the gang.” He added, “The stakes could not be any higher.”
Despite the absence of evidence, the administration continues to refer to these men publicly as “gang members” and “terrorists,” and they have become fodder for Trumpist propaganda. Last week, DHS Secretary Kristi Noem filmed a depraved video with the prison as her background, advertising the Trump administration’s willingness to deport people overseas to be tortured by the bureaucracy of a strongman whose own government the American authorities have said is affiliated with organized crime. (Nor is it even clearly the case that the men in the video are those recently deported. Noah Bullock, the executive director of the human-rights group Cristosal, noted in Foreign Policy that “the middle-aged faces and full-body tattoos that appear in the footage from the megaprison suggest that they are gang members who have likely been in prison since well before the state of exception began.”)
As long as the Trump administration gets to look tough, it does not seem to care if the people it is hurting are guilty of nothing more than thinking America, the land of the free, would be a good place to start over. Inherent in this propaganda effort is a grim assumption about the character of the American people—that they will not only fall for this agitprop but see the abuse of innocent people as praiseworthy.
The power the Trump administration is claiming in this matter is incredibly broad, and rooted in a distortion of the already broad Alien Enemies Act. When the act’s 18th-century writers described “war” and “invasion,” they meant these terms literally, but the Trump administration is interpreting them metaphorically to apply to illegal border crossings.
“The president has ample authority under immigration law to deport members of violent criminal gangs, so there’s absolutely no need to abuse an inapplicable wartime authority,” Liza Goitein, a legal expert with the left-leaning Brennan Center, told me. “Trump’s invocation of the law is basically an illegal power grab, because we are not at war with Venezuela. Tren de Aragua is not the government of Venezuela. There has been no armed attack on the United States, which is what the term invasion means in the law. The legislative history and, frankly, the text of the statute are very, very clear that they were referring to actual hostilities, an act of war by a political entity.”
For now, the administration is targeting only Venezuelans, but it might sweep in other groups eventually. Because the text of the Alien Enemies Act refers to any “native” of an enemy power, it could theoretically cover not just undocumented immigrants but documented ones who share the ethnicity of members of an organization Trump has decided the U.S. is “at war” with. “Every ethnic group, every religious group, in this country has been associated with some criminal organization at some point,” Gelernt pointed out.
Although the Alien Enemies Act does not apply to American citizens, without due process, a citizen could be mistakenly deported to El Salvador, held indefinitely, and reliant on the same administration that deported them to realize the error and decide to retrieve them. As my colleague Nick Miroff reported, the Trump administration has already made one grievous mistake, admitting that it sent Kilmar Abrego Garcia, a Salvadoran man, to CECOT because of an “administrative error.” Despite that, it seems in no rush to get him back, telling a federal court that it was powerless to order him returned. In a post on X, Vice President J. D. Vance called Garcia “a convicted MS-13 gang member,” a false claim meant to justify deserting Garcia in a foreign prison based on a mistake.
Trump is seemingly intrigued by the possibility of sending American citizens to El Salvador’s gulag, having said, “If we had the legal right to do it, I would do it in a heartbeat.” He also posted recently on his social network, Truth Social, that Tesla-dealership vandals might be sent to “the prisons of El Salvador, which have become so recently famous for such lovely conditions.”
In effect, the Trump administration has asserted the sort of broad, unreviewable power that the George W. Bush administration asserted in detaining so-called enemy combatants in the War on Terror. But the process here seems to be even more capricious; those being deported are not being given access to counsel, nor are they being tried for any offenses, and the Trump administration seems far more indifferent to whether those detained are remotely connected to any crime. Although the ACLU is fighting their deportation, according to Gelernt, their clients in El Salvador are being held entirely incommunicado.
Beyond the fact that we have more evidence that Trump is a criminal than any of the men deported, we also have more evidence that the government of El Salvador is affiliated with gangs than we do of the men deported. In 2021, the U.S. Treasury Department sanctioned members of El Salvadoran President Nayib Bukele’s administration, who had been allegedly covertly meeting with gangs such as Mara Salvatrucha 13, and negotiated an agreement with “gang leadership” to “provide political support to the Nuevas Ideas political party in upcoming elections.” So the Trump administration is deporting people not only to an overseas gulag but into the custody of a government that, according to both the Justice and Treasury Departments, is allegedly affiliated with the very gangs the administration is purporting to fight. Another way of looking at this is that the Trump administration is, by its conspiracy with the government of El Salvador, itself collaborating with foreign criminal organizations.
Perhaps some Americans who thought that Trump would deport only criminals are watching the news and telling themselves that the president must know what he’s doing; the deportees must be gang members or terrorists, just as the president says. But that’s nothing more than a comforting fiction, the sort common to authoritarian regimes where admitting fallibility is forbidden. They’d say the same thing about anyone, and those false claims would be amplified to deafening volume by the same right-wing propaganda machine that helped bring Trump to power in the first place. Who these men in El Salvador actually are and what they’ve actually done is irrelevant. All that matters is that to Trump, they look the part.
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