Tricia McLaughlin, a spokeswoman for the Department of Homeland Security, says all the migrants whom the Trump administration sent to a notorious prison in El Salvador last month are “actually terrorists, human rights abusers, gangsters and more,” even if they “don’t have a rap sheet in the U.S.” She adds that “we have a stringent law enforcement assessment in place that abides by due process.”
McLaughlin’s idea of due process is notably different from the right the U.S. Supreme Court upheld last week, when it ruled that suspected members of the Venezuelan gang Tren de Aragua “are entitled to notice and [an] opportunity to be heard” before they are deported. According to federal officials, the government’s methods are infallible, so there is no need for hearings — a position that is plainly inconsistent with due process as it is ordinarily understood.
President Donald Trump sought to avoid judicial review of these cases by invoking the Alien Enemies Act, a rarely used, 127-year-old statute. In a March 15 proclamation, Trump implausibly asserted Tren de Aragua qualifies as a “foreign nation or government” and its criminal activities within the United States amount to an “invasion or predatory incursion.”
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The Supreme Court’s decision did not address those dubious propositions. But even assuming Trump is correctly interpreting the law, all nine justices agreed, his targets have a “well established” Fifth Amendment right to contest their designation as “alien enemies.”
Notwithstanding McLaughlin’s assurances, the need for that opportunity is clear. In the lawsuit that resulted in the Supreme Court’s order, five Venezuelans threatened with deportation insisted they were not members of Tren de Aragua, and those claims are plausible in light of the criteria Homeland Security has used to identify “gangsters.”
The department’s “alien enemy validation guide” includes iffy evidence such as tattoos, clothing, social media posts and “associating” with “known” gang members. The lead plaintiff in the lawsuit said he was erroneously linked to Tren de Aragua based on a “tattoo of an eye” that he got because he “thought it looked cool,” while another detainee said he was nabbed because he went to a party that, unbeknownst to him, included members of the gang.
On the same day Trump issued his proclamation, Homeland Security sent 238 alleged Tren de Aragua members to El Salvador’s Center for Terrorism Confinement, or CECOT. As Justice Sonia Sotomayor noted last week, CECOT prisoners “suffer egregious human rights abuses,” including inadequate food and water, overcrowding that forces inmates to “sleep standing up,” denial of communication with relatives and lawyers, and “intentional life-threatening harm at the hands of state actors.”
Those “perilous conditions” were especially troubling, Sotomayor said, because the government maintained it had no power to retrieve CECOT prisoners even when it conceded they were deported illegally. Three days later, the Supreme Court unanimously rejected that position, too.
Although “at least 32 of the men sent to El Salvador have faced serious criminal accusations or convictions in the U.S. or abroad,” The New York Times found, there was “little evidence of any criminal background” or “any association” with Tren de Aragua in most cases. The haziness of the government’s evidence gave pause even to Joe Rogan, who endorsed Trump in last year’s election and supports his efforts to deport dangerous criminals.
“You gotta get scared that people who are not criminals are getting lassoed up and deported and sent to El Salvador prisons,” Rogan said on his hugely popular podcast a few weeks ago, calling that situation “crazy” and “horrific.” He was referring to Venezuelan makeup artist Andry Hernandez, who seems to have been shipped off to CECOT based largely on innocent tattoos.
As White House press secretary Karoline Leavitt sees it, anyone who questions such judgments is shamefully maligning dedicated public servants and perversely “trying to cover for” members of “a vicious gang.” Her formulation improbably assumes government officials never make mistakes — a premise the Supreme Court unambiguously rejected.
Jacob Sullum is a senior editor at Reason magazine.
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