The president, the judge and the flights that landed in the middle of the night

Washington: The political debate in the United States this week has centred on whether the Trump administration defied a court order, and thereby crossed a “red line”, by deporting three planeloads of people whom the US government says are foreign terrorists.

The case portends a possible constitutional crisis, though US President Donald Trump and his team maintain they have not defied the orders – despite unleashing a torrent of abuse at the judge and calling for him to be impeached.

Credit: Illustration: Michael Howard

It all stems from Trump’s decision to invoke an old, barely used 227-year-old wartime law called the Alien Enemies Act.

He used it to round up and deport more than 200 alleged members of the Tren de Aragua gang without the due processes usually granted under US immigration laws.

What happened?

Last weekend, from his Mar-a-lago resort in Florida, Trump formally invoked the act, saying the TdA gang “is perpetrating, attempting and threatening an invasion or predatory incursion” against the territory of the US.

Lawyers, having secured a temporary injunction for a few clients, asked Judge James Boasberg in Washington to expand the order to prevent any deportations under the newly invoked law. A hearing started at 5pm.

During that time, two planes carrying the detainees took off from Harlingen in southern Texas. It was not until about 6.45pm that the judge verbally ordered the government to return any of the planes in the air to the US.

But they didn’t. They landed in Honduras, then took off again for El Salvador, which had agreed to incarcerate the accused gang members – for $US6 million ($9.5 million).

The government later told the court that a third plane that followed the same route did not carry people being deported under the same law.

In the days following, the White House rained fury on Boasberg and other judges who have curtailed Trump’s agenda.

Trump called him a “radical left lunatic” who hadn’t won any election. Press secretary Karoline Leavitt branded him “a Democrat activist … who is trying to usurp the president’s authority”.

Now the legal process is continuing to unfold, with the judge on Friday labelling the administration’s latest submission “woefully insufficient” and deferring the matter until next week.

How did we get here?

Immigration was one of the cornerstones of Trump’s election campaign; without fail, he railed against “illegal criminal migrants” invading the country and raping or murdering Americans. Some rallies featured testimony from victims of horrific migrant crimes.

Trump made no secret of his intention to use the Alien Enemies Act to deport members of foreign gangs and criminal networks; he boasted of it at dozens of rallies, and repeated it during his Inauguration Day address.

The law itself dates to 1798, part of a group of four laws known as the Alien and Sedition Acts signed by then-president John Adams amid naval tensions with France. The other three were repealed a few years later, but the Alien Enemies Act remained on the books and was invoked during the War of 1812 and both World Wars. Franklin Roosevelt used it after the 1941 bombing of Pearl Harbour to intern and remove Japanese, German and Italian non-citizens.

The key factor is it allows Trump to circumvent the usual immigration process – including the right to claim asylum.

However, it’s not completely without legal checks. A court can still assess whether the law is being applied correctly to any individual.

So, is this legal?

That’s what the judges will determine, with the matter potentially going all the way to the Supreme Court. But the administration certainly believes it’s legal.

The act was designed for wartime. It can be applied “whenever there is a declared war between the United States and any foreign nation or government, or any invasion or predatory incursion is perpetrated, attempted, or threatened against the territory of the United States by any foreign nation or government”.

Tren de Aragua was originally a Venezuelan gang, though it has spread to other countries. Clearly, the US is not at war with Venezuela. Only Congress can formally declare war.

President Donald Trump and his team maintain they have not defied court orders.Credit: AP

However, the White House is confident the words “predatory incursion” provide the legal justification.

“We would not have moved forward with this if we didn’t believe this was within the president’s executive authority,” Leavitt told reporters. “When you read the act … a predatory incursion is absolutely what has happened with Tren de Aragua. They have been sent here by the hostile Madura regime in Venezuela.”

Trump’s border tsar Tom Homan told NewsNation: “It doesn’t have to be declared war. The statute also says ‘predatory incursion’, and that is what occurred.”

However, legal scholars are sceptical of this interpretation. Jean Reisz, a clinical associate professor of law specialising in immigration at the University of Southern California, said for the administration to use the law for its express purpose it would have to declare all Venezuelans enemy aliens, not just gang members.

“Just because he [Homan] says it, doesn’t mean it’s so,” she said. “I find it very unlikely that a court will say this was legal action.”

Did Trump defy the court?

The administration argues it did not ignore the court’s orders; it says the planes were already in the air – and in international airspace – when Boasberg’s written order was issued and that there are question marks over whether a judge’s verbal order counts to the same degree. But it has also treated the ruling with open disdain, calling it an “unlawful” order and judicial overreach.

Reisz believes the administration was clearly in breach. “The government knew the hearing was going to be on whether they could deport people under the Alien Enemies Act – they moved quickly to try to do it before the court logistically had the hearing,” she said.

Judge James Boasberg.Credit: AP

“I think they probably knew it was going to be found unlawful and that’s why they tried to get away with doing it all before the hearing and while the hearing was taking place.”

Who was deported?

We don’t know for sure. The administration says the two planes were “full of terrorists”, mostly Tren de Aragua gang members and a few MS-13. Both were designated foreign terrorist organisations by Trump shortly after taking office.

Their lawyers beg to differ. One plaintiff, they say, was accused of being a gang member because he attended a party where the government alleges Tren de Aragua members were present. Others were apparently targeted because they drew or sported gang-like tattoos.

“One person is reportedly a soccer player with a calf tattoo of a soccer ball and a crown, chosen to resemble the logo of his favourite team, Real Madrid,” the lawyers submit.

Alleged Venezuelan gang members deported from the US arrive at El Salvador’s Terrorism Confinement Centre.Credit: El Salvado Presidential Press Office via AP

The government won’t release flight manifests or information about who these people are and what they did. Essentially, it is saying: trust us.

“We are not going to reveal operational details about a counter-terrorism operation for quite obvious reasons. We’re trying to combat terrorism,” Leavitt said. The administration had full confidence in its law enforcement authorities, she said.

Why does this matter?

The case is compelling in multiple ways. First, the attempt to use this archaic law to speed up deportations – without being encumbered by immigration hearings – speaks to Trump’s desire to move faster.

During the campaign, he promised the biggest mass deportation program in US history. And while removals have gone up and illegal border crossings plunged, there are reports Trump thinks the numbers are too low. The Alien Enemies Act could be a ticket to ramping up that process.

Politically, it also helps for Trump to have an enemy – in this case, Boasberg and all the other judges he has accused of frustrating his agenda. Slow progress can be blamed on them.

It is also instructive to see how far Trump and his team are willing to go in challenging the judiciary, and how close they will come to open defiance.

Trump – who was publicly rebuked by Supreme Court Chief Justice John Roberts for suggesting Boasberg be impeached – told Fox News he would not defy a court order. “You can’t do that,” Trump said, but added: “At a certain point, you have to look at: What do you do when you have a rogue judge?”

And only a month ago, Trump posted on Truth Social: “He who saves his Country does not violate any Law.”

What next?

For now, the White House is pausing its use of the Alien Enemies Act. Homan says the administration will let it play out in court, while Leavitt says: “We don’t have any flights planned specifically, but we will continue with the mass deportation.”

Boasberg’s order was a temporary halt; he could end up ruling in the government’s favour on the substance of the case. Still, the administration is appealing the decision, which will go to a hearing on Monday, US time.

Meanwhile, Boasberg wants the administration to explain why its actions should not be seen as defying a court order. The government is refusing to provide the requested information about the flights, arguing the case has “devolved into a picayune dispute over the micromanagement of immaterial fact-finding”.

It is also toying with the idea of claiming it can’t provide the data on national security grounds. On Friday, Boasberg was scathing of the government’s lack of candour and detail, but granted a short extension.

“This is woefully insufficient,” he said of the data provided. “The government again evaded its obligations.”

The order earned Boasberg another social media attack from Trump, who called him a “local, unknown judge” and “a grandstander looking for publicity”.

Noting the aggressive language used by the government’s attorneys, Reisz says the Trump administration is pushing the boat out. “They’re getting as close to the line as they can.”

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