Alex Padilla U.S. Senator for California

Lawmakers to Trump: “The government should not be able to falsely accuse individuals in the United States, including U.S. citizens, of gang membership and send them to foreign prisons without any judicial review or remedy”

WASHINGTON, D.C. — U.S. Senator Alex Padilla (D-Calif.), Ranking Member of the Senate Judiciary Immigration Subcommittee, joined 14 lawmakers in condemning President Trump’s unlawful invocation of the Alien Enemies Act of 1798. The letter to President Trump follows the Supreme Court’s recent decision to only allow him to continue rapid deportations under the statute if individuals are given due process, including notice and an opportunity to challenge the deportation. Last week, Padilla, Senator Dick Durbin (D-Ill.), Representative Jamie Raskin (D-Md.-08), and Representative Pramila Jayapal (D-Wash.-07) issued a joint statement condemning the Court’s decision to lift a hold on removals under the Alien Enemies Act.

“We write regarding your unlawful invocation of the Alien Enemies Act of 1798, resulting in noncitizens being deported without any due process, not to mention violating the requirement that the statute be invoked only in response to an act of war, predatory incursion, or invasion by a foreign government,” wrote the lawmakers. “Our immigration laws can already hold gang members accountable and provide for their deportation. The government should not be able to falsely accuse individuals in the United States, including U.S. citizens, of gang membership and send them to foreign prisons without any judicial review or remedy.”

“By claiming a foreign ‘invasion’ or ‘incursion,’ you are clearly attempting to suspend due process for noncitizens and speed up your mass deportation campaign,” continued the lawmakers. “Circumventing immigration law, and its requirement of verifiable evidence, will result in people with no gang affiliation being incorrectly targeted and deported.”

In 1798, President John Adams signed the “Alien and Sedition Acts” which was comprised of four bills: The Naturalization Act; the Alien Friends Act; the Sedition Act; and the Alien Enemies Act (AEA). Today, the AEA is the only one that remains in effect. The AEA is a wartime authority that allows the president to target foreign nationals of a hostile nation or government to be “apprehended, restrained, secured, and removed” with limited due process during wartime. The United States is not at war today, and the Constitution outlines that only Congress has the power to declare war.

The AEA has only been invoked three times in American history: the War of 1812, World War I, and World War II. In their letter, the lawmakers make clear that Tren de Aragua — a Venezuelan gang — does not qualify as an arm of the Venezuelan government.

The lawmakers further emphasized that the Trump Administration’s choice to deport individuals to El Salvador will likely subject people to human rights abuses as El Salvador’s prisons are notorious for their inhumane conditions, including denial of medical care, lack of food, and outright torture. More than 260 people have died in these Salvadoran prisons in just the past two and a half years, with some individuals facing significant physical abuse.

In their letter, the lawmakers also demand that the Trump Administration provide regular updates about the people who have already been deported, as well as information about them including their names, nationalities, and ages. They also asked about what evidence was used to determine whether an individual was a member of Tren de Aragua.

“Invoking the Alien Enemies Act does not make Americans safer,” concluded the lawmakers. “It endangers all of us, by removing due process protections and ignoring the plain text of the statute. We urge you to abandon this decision.”

U.S. Senator Mazie K. Hirono (D-Hawaii) and U.S. Representative Ilhan Omar (D-Minn.-05) led the letter. In addition to Senator Padilla, the letter was also signed by Senators Cory Booker (D-N.J.), Ed Markey (D-Mass.), Jeff Merkley (D-Ore.), Bernie Sanders (I-Vt.), Brian Schatz (D-Hawaii), Chris Van Hollen (D-Md.), Elizabeth Warren (D-Mass.), and Peter Welch (D-Vt.), as well as Representatives Eleanor Holmes Norton (D-D.C.-AL), Alexandria Ocasio-Cortez (D-N.Y.-14), Rashida Tlaib (D-Mich.-12), and Greg Casar (D-Texas-35).

Senator Padilla is a leading voice in Congress opposing President Trump’s anti-immigrant actions and rhetoric, including his attempted invocation of the Alien Enemies Act. Padilla issued a joint statement with Senators Durbin, Cory Booker (D-N.J.), and Peter Welch (D-Vt.) slamming President Trump for his attempted invocation of the Alien Enemies Act to deport noncitizens without due process. He is also a cosponsor of the Neighbors Not Enemies Act, legislation that would repeal the antiquated Alien Enemies Act. Earlier this year, Padilla joined other Democratic immigration leaders in challenging the constitutional basis of President Trump’s sham “invasion” proclamation, which the President believes allows his Administration to circumvent federal immigration law and due process.

Full text of the letter is available here and below:

Dear President Trump:

We write regarding your unlawful invocation of the Alien Enemies Act of 1798, resulting in noncitizens being deported without any due process, not to mention violating the requirement that the statute be invoked only in response to an act of war, predatory incursion, or invasion by a foreign government. Our immigration laws can already hold gang members accountable and provide for their deportation. The government should not be able to falsely accuse individuals in the United States, including U.S. citizens, of gang membership and send them to foreign prisons without any judicial review or remedy. The Supreme Court, when confronted with the manner in which you conducted the removals, unanimously rejected the implementation and its corresponding lack of notice and opportunity to challenge individuals’ removals. Moreover, deporting these individuals to Salvadorian prisons will also subject them to inhumane conditions, further exacerbating the legal issues in invoking the Alien Enemies Act.

The Alien Enemies Act was passed as part of the infamous Alien and Sedition Acts, and it was used during World War II to detain tens of thousands of innocent Japanese, German, and Italian individuals based on nothing but their ethnicity. This wartime use of the Alien Enemies Act served as a precursor to Executive Order 9066, resulting in the incarceration of 111,000 Japanese Americans. Those who were caught up in that xenophobic panic, as well as organizations like the Japanese American National Museum, have condemned your recent invocation of the act.

We reiterate that the plain language of the law limits the president’s use of the Alien Enemies Act to two enumerated situations: times of declared war, and times of invasion or “predatory incursion” by a foreign nation or government. The Act has only been invoked three times in American history: the War of 1812, World War I, and World War II. A Venezuelan gang does not qualify as an arm of the Venezuelan government.

By claiming a foreign “invasion” or “incursion,” you are clearly attempting to suspend due process for noncitizens and speed up your mass deportation campaign. Circumventing immigration law, and its requirement of verifiable evidence, will result in people with no gang affiliation being incorrectly targeted and deported. Multiple individuals who were subjected to the Alien Enemies Act had ongoing cases arguing that they were not members of Tren de Aragua. An attorney for one individual says that her client was mislabeled as a member of the gang due to a tattoo supporting the Spanish soccer team Real Madrid and for flashing the popular hand symbol for “rock and roll.” Another individual is a tattoo artist. A third individual was a make-up artist who was seeking asylum due to his sexual orientation.

Aside from these foregoing concerns, your choice of deportation sites will likely subject people to human rights abuses. El Salvador’s prisons are notorious for their inhumane conditions, including denial of medical care, lack of food, and outright torture. Over 260 people have died in those prisons in the last two and a half years, including some with signs of serious physical abuse. An Amnesty International UK report accused the Salvadorian authorities of a “systematic policy of torture towards all those detained.” The specific prison that will house the deported individuals, the Center for Terrorism Confinement (CECOT), has been described as a place “to dispose of people without formally applying the death penalty.” According to a Times reporter who watched the individuals be transferred to CECOT, the “intake began with slaps.” When detainees fell due to how quickly they were being moved, they were kicked, slapped, and shoved. One person asked for his mom and cried. He was slapped again. We should not subject individuals to mistreatment and more, much less individuals who have had no due process and have not been found guilty of any crimes.

At this point, we request that you provide us with information and regular updates on the following:

1. The names, nationalities, and ages of the people sent to El Salvador to be imprisoned in CECOT, including the number of individuals under the age of 18;

2. What evidence was used to determine that each individual was a member of Tren de Aragua;

3. The overall estimated costs and sources of funding associated with detaining and deporting these individuals; and

4. The procedures for individuals to challenge your administration’s determination that they are a member of Tren de Aragua, either here in the United States or in El Salvador, including how much time you provide to individuals to mount a legal challenge.

In closing, invoking the Alien Enemies Act does not make Americans safer. It endangers all of us, by removing due process protections and ignoring the plain text of the statute. We urge you to abandon this decision.

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