Invocation of Wartime Era Authority Sets Country on Perilous Path
Human Rights First unequivocally condemns the Trump administration’s invocation of the Alien Enemies Act of 1798 as a tool for immigration detention, removal and evasion of asylum law, and calls on the administration to comply with the federal court’s ruling. This unprecedented and dangerous use of a wartime-era law sets a perilous example that undermines fundamental civil liberties, due process, international human rights, and public trust in the United States military.
”The administration is invoking these notorious wartime powers out of context to attempt an end-run around immigration laws enacted by Congress and to undermine the rule of law,” said Anwen Hughes, Director of Legal Strategy for Refugee Programs at Human Rights First. “There is a process to determine who is not a U.S. citizen, who is or is not lawfully present in the United States, who has a right to remain here, and who is entitled to protection against persecution and torture in the event of removal. It appears that most if not all of the people the government seeks to remove — or may already have removed — under this illegal policy were already engaged in that process before the immigration courts, where the Executive’s accusations of gang affiliation could have been tested. The administration is pulling people — civil immigration detainees — out of lawful immigration processes in the United States and delivering them to a prison system in El Salvador where the U.S. government has described conditions as life-threatening, and where detainees die from medical neglect and physical abuse. This policy will lead, and may already have led, to the torture and persecution of people whom Congress has prohibited the Executive Branch from exposing to such harm.”
Yesterday the federal district court in Washington, D.C. issued a temporary restraining order blocking such transfers and ordering that any detainees already en route be immediately returned to the United States. There are already indications that the administration may have violated this order by flying more people subject to the order to El Salvador after the court had ruled. “Both the administration’s invocation of the Alien Enemies Act and any failure to comply with court orders are critical challenges to the rule of law in this country,” Hughes said.
The Alien Enemies Act was enacted as part of the infamous Alien and Sedition Acts of 1798, designed to allow the President to detain or remove foreign nationals from enemy nations during wartime. Historically, the law has been used rarely and only in times of declared war—most recently and notoriously during World War II, when it was used to justify the internment of Japanese, German, and Italian nationals in the United States (Korematsu v. United States, 323 U.S. 214 (1944)). The Supreme Court later acknowledged the grave injustice of this decision, and Congress denounced such actions through the Civil Liberties Act of 1988.
It is clear that the Trump administration’s use of “invasion” language in Executive Orders and official documents since inauguration has been an attempt to falsely justify this spurious application of the Alien Enemies Act. It is doubly concerning that this move comes at the same time the administration fired many of the U.S. military’s top lawyers, leaving less accountability and oversight of the use of the military in this xenophobic campaign.
“This order is an extension of an authoritarian trend by the Trump administration to attack democratic processes and individual rights. The use of the Alien Enemies Act is part of the United States’ shameful history of targeting individuals and communities based on their real or perceived identities. Invoking the AEA will not make Americans safer, but by violating immigrants’ right to due process, we will be stepping into a new era of widespread discrimination and harm,” said Hanah Stiverson, Associate Director of Democracy Protection.
The Trump administration must immediately return any noncitizens expelled using this authority and abide by court orders during any appeal. Congress must do all it can to press the administration to withdraw this dangerous executive order and insist that the Executive comply with the rulings of the courts.
