President Donald Trump kicked off his first presidential campaign by implying that most everyone crossing the U.S.-Mexican border was a criminal.
Now he’s using 1798’s Alien Enemies Act to operationalize that idea by deporting people accused of being gang members without any due process that might allow them to challenge the claim. And he’s citing the centuries-old law as his rationale for sending those he deems gang members to one of the most brutal and notorious prisons in El Salvador and, indeed, the Western Hemisphere.
It also serves as an example of Trump using obscure legal provisions to test how far he can take his autocratic agenda to expand executive power.
Trump’s use of the Alien Enemies Act, turned into grotesque display via a three-minute propaganda video shared by El Salvadoran President Nayib Bukele, is chilling. It allows him to dehumanize and vilify migrants as “monsters” to justify the expense of and obsession with deporting as many of them as possible. It also serves as an example of Trump using obscure legal provisions to test how far he can take his autocratic agenda to expand executive power.
Understand, nothing compels Trump to use the Alien Enemies Act. If he wants to deport undocumented migrants from the U.S., even adjudicated gang members, he could cite the same laws his predecessors used to detain and deport them. (He’s been citing those more commonly used laws for most deportations.)
The Alien Enemies Act has only been used to detain and deport people from the U.S. during three times in American history, and in those cases it was used against nationals from countries at war with the U.S. But the more than 200 Venezuelans whom Trump has sent to El Salvador under the auspices of that law are from a country that the U.S. is not at war with. Trump’s effort to use the law was temporarily blocked by a federal judge who ordered the administration to turn the planes around, but unsuccessfully. (The Trump administration’s position is that the courts can’t review Trump’s political determinations under the act.) Bukele taunted the judge on X, “Oopsie … Too late,” and Secretary of State Marco Rubio and Tesla CEO Elon Musk reposted it.
When I asked Aaron Reichlin-Melnick, a senior fellow at the American Immigration Council, what’s the point of Trump using the Alien Enemies Act, he said: “I can’t speak exactly to their arguments, because they have yet to fully articulate that rationale, but the seeming obvious argument is that Trump campaigned on the issue, and he is trying to make a spectacle.”
That spectacle is best captured by the astonishing video Bukele shared on X on Sunday celebrating his imprisonment of the people accused of being members of the Venezuelan gang Tren de Aragua. The video is a hard but necessary watch, showing El Salvadoran authorities roughly handling the alleged gang members, shaving their heads and sending them into prison cells — all alongside menacing-sounding synth-heavy music. Bukele said they will be imprisoned there for at least a year. The Salvadoran strongman — who has called himself the “world’s coolest dictator” — has sharply curtailed civil liberties in El Salvador and suspended constitutional rights for years under the banner of a “state of emergency” and has frequently swept innocent people into his Center for Terrorism Confinement mega prison.
A CNN report about the prison described the cells as “built to hold 80 or so inmates,” and “the only furniture is tiered metal bunks, with no sheets, pillows or mattresses … an open toilet, a cement basin and plastic bucket for washing and a large jug for drinking water.” The men are kept in the cells 23.5 hours a day, and Bukele said in his post that they will “labor under the Zero Idleness program.”
This video is a remarkable artifact, inviting viewers to see the migrants as deserving of exploitation and brutality from a kind of international alliance of draconian carceral states.
But the premise that everyone sent to this hellish site is a gang member is dubious. “We have only the government’s word that any of these people are members of the gang,” Reichlin-Melnick said. “The government has offered no evidence to confirm gang membership. It has not offered those individuals subject to this any opportunity to argue that they are not a member of a gang, and the people that have been sent to this prison are very likely to include some individuals who have been falsely labeled a member of a gang.”
Families of some of the people suspected to have been deported over the weekend have denied that the deportees have ties to gangs. And a U.S. Immigration and Customs Enforcement official admitted in a sworn declaration that “many of the [Tren de Aragua gang] members removed under the AEA do not have criminal records in the United States.”
Even if we were to grant that many, or even all, of the people deported to El Salvador’s mega prison were gang members, Trump’s deportations would still be disturbing. Because neither the Alien Enemies Act nor peacetime immigration law permits people to be imprisoned abroad. On what authority does Trump get to decide that someone suspected of gang membership should do hard labor in a foreign prison? And what happens to them when they get there? (This prison is explicitly run on the ethos that its inmates are beyond rehabilitation.) This is effectively vigilante justice, being practiced upon the most legally vulnerable population in the U.S.
Trump’s use of the Alien Enemies Act is a power grab that relies on — and further fuels — the demonization of migrants as a class of people who should not be accorded rights. It must be rejected.
