Despite feigning ignorance of the constitutional order, it’s clear that President Trump wants to create extrajudicial methods for rounding up and holding migrants, end-running the multiple federal courts that have stymied or halted his exile flights over due process concerns. However, he’s resorting to scary-sounding, centuries-old wartime laws like the Alien Enemies Act of 1798 and the Insurrection Act of 1807, as well as crusty war terms like “enemy combatant” for his expansive, unchecked executive vision of crushing immigration – which can now be coupled with his astonishing announcement that he doesn’t know if everyone in the U.S. is entitled to due process.
On his first day back in the White House, Trump signed an executive order (which he mistakenly thinks is an unreviewable decree) declaring an emergency at the U.S. southern border. That way his brain trust could contemplate the Insurrection Act as a possible response to immigration, which would let him deploy the military to enforce laws on U.S. soil. Trump also invoked the Alien Enemies Act to justify sending 137 of 261 alleged Venezuelan gang members to an El Salvadoran gulag. He is now reportedly looking into whether his administration can label suspected gang and cartel members inside the U.S. as “enemy combatants.” And for good measure, he has also declared that deportees are “terrorists” and that Tren de Aragua is a “foreign terrorist organization” akin to the Islamic State and Boko Haram. (TdA is actually more of a violent Venezuelan street gang with a handful of international nodes than a political terrorist group, but I digress.)
In reality, these semantics are just Trump’s latest attempt to make deportations of migrants easy, quick and unreviewable (itself a tacit acknowledgement that simply “disappearing” a permanent resident like Kilmar Ábrego García is very likely illegal.) However, domestic or extraterritorial abduction, detention and/or transfer of human beings to other locations – whether Rwanda, Cuba or El Salvador – is a transparent attempt to circumvent our laws.
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The problem with all this Hegsethian warrior-speak is that we are not in a declared war or under a military invasion. Moreover, presidents and agency heads don’t have the power to just proclaim one. Yet most of Trump’s more controversial executive actions – especially when it comes to immigration – require the US to be on wartime footing because, outside of that dire context, they would be illegal, unconstitutional, or both. Even during wartime, things like kidnapping and extraordinary rendition violate U.S. law, the Geneva Conventions, and other international humanitarian treaties to which the U.S. is a signatory.
This is hardly the first time America has struggled with terminology in its treatment of detainees. Before 9/11, terrorist attacks were treated as crimes rather than acts of war. In the aftermath of 9/11, the labeling of terrorism as warfare gained both political and legal traction. The amorphous war on terrorism produced an equally indefinite vocabulary for terrorism suspects held by the United States or at its behest. Material witness? Enemy combatant? Criminal defendant? Terrorist? The multitude of terms spoke volumes about the indecision and uncertainty of the executive and judicial branches over what to call detainees being held by the United States both domestically and abroad.
The elasticity of terms like “enemy combatant” allowed the U.S. to more easily shuffle people back and forth between the military justice system and the civilian justice system, hold them for indefinite periods of time, and even physically mistreat them. Another possible bonus for Trump is that the designation would allow him to drone suspects labeled as “enemy combatants” outside the United States, including innocent Americans, which we have done in the past and which I’ve condemned.
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Trump, who struggles with even a basic understanding of middle school level English and history, apparently thinks that he can ex post facto incantate legalistic-sounding phrases like “perpetrating, attempting, or threatening an invasion or predatory incursion” and magically shoehorn his rushed and hushed detentions and deportations of migrants into a law meant for members of a hostile foreign nation during armed conflict.
Outsourcing pieces of our criminal justice system to other countries, whether it’s El Salvador or Rwanda (both of which have a dark history when it comes to human rights abuses), and imprisoning detainees in secret, violent prisons at Gitmo, CECOT, Alcatraz, or any other mecca of impunity is antithetical to democracy. Trump should visit the Supermax in Florence, Colorado (“the Alcatraz of the Rockies”) and Attica in New York. Our prisons are quite renowned for their own violence, excessive force, harsh conditions, remote locations, overcrowding and filth.
However, Trump is a maximalist, sadist, and xenophobe. I suspect that if he could, Trump would outsource our immigration machinery to places far worse than Gitmo, El Salvador and Rwanda, like Camp 14 in North Korea and Butyrka Prison in Russia. Bypassing immigration courts is not just a slippery slope, it’s a blind cliff dive into tyranny. Trump knows this better than anybody.
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