LAWFARE: THE ALIEN ENEMIES DEBACLE. WHAT TRUMP SHOULD HAVE DONE

WHEN AREN'T TERRORISTS HARMING YOUR COUNTRY? WHEN A LAWYEER TELLS YOU SO.

The last few days have given the average American yet another example of what living in a generation of 5th Generation Warfare looks like.

President Trump has become embroiled in another outbreak of lawfare, this time coming from the ACLU and a socialist sympathizing Judge. They have challenged the Trump administration on the deportation of Tren de Aragua operatives from the USA, not on the grounds that they were here ilegally, but under the premise that Trump administration's use of the "Alien Enemies Act" did not apply to these terrorists as their oganization did not meet the criteria for a "declared war" or "invasion or predatory incursion" against the United States.

While we know these things to be true, they. do not fit with the description as would have been held by the Act's authors back in 1798! In today's world we do know that foreign terrorist organizations do not always carry flags and do not always wear a uniform. In fact, some don;t even represent a particular country but rather a fantasy land to come (a caliphate or some other such historical term). This made it difficult for western countries to fight them. The problem being that the terminology of the laws on the books needed to be updated and antiquated laws removed. This is not what government is known for and surely it is what brings us to the issue at hand. The ACLU suit against the administration for removing illegals from the country (who should be romoved) but not for the reason that they were being removed. If that reminds you of an exchange from "Yes, Minister" than be afraid.

Here now, we will talk about the Alien Enemy Debacle and what Trump could have and can do to confound the enemies of the state while at the same time serve the taxpayers by removing dangerous agents from our shores.

The American Civil Liberties Union (ACLU) filed a lawsuit challenging the Trump administration's invocation of the Alien Enemies Act to deport alleged members of the Venezuelan gang Tren de Aragua. The ACLU contended that the administration unlawfully applied this 1798 statute, historically used only during formal wars, to a non-state criminal organization, thereby overstepping legal boundaries and bypassing due process rights.(Democracydocket)

In response, U.S. District Judge James Boasberg issued a temporary restraining order halting the deportations. He expressed serious legal concerns about equating a criminal gang with a foreign government to justify the use of wartime powers. Judge Boasberg also criticized the administration's lack of transparency and the hasty execution of deportations, suggesting an attempt to circumvent judicial oversight. Furthermore, he admonished the government's attorneys for their disrespectful tone in legal filings, underscoring the need for adherence to legal norms and due process. ​(Politico)

The ACLU's challenge and Judge Boasberg's comments focus primarily on the legality of invoking the Alien Enemies Act rather than the immigration status of the defendants. However, the issue of unlawful entry into the USA IS relevant to the broader immigration debate.

ACLU's Challenge:

The ACLU did not disput that the individuals were in the country illegally. Instead they argued that the AEA is a wartime measure that should not be used to bypass normal immigration laws

(ED Note: this will draw into light what we now know about foreign terrorist organizations and their ability for warfighting)

They also pointed out due process concerns and that standard deportations mechanisms exist and should be followed.

Judge Boasberg's Comments:

The judge was also concerned about improper use of AEA but questioned legal justification as the USA is not at war with Venezuela (new "at war" definitions are something that the 21st? century needs to learn) and of course wished to slow down the deportation of illegals as well as wether his restraining order would be recognized.

For Context on this "Invasion issue" as stated in the AEA, we have to look at the issues that plague the Trump administration.

the Biden administration's policies of unfettered illegal immigration led to record high levels of illegal immigration, with millions of undocumented immigrants crossing the border between 2021 and 2024. This is the "invasion" that Trump saw and how he framed the use of AEA. This was countered by the ACLU and the judge as they stuck with a strict interpretation of "Invasion" as being an enemy army.

The Trump administration sees this awful immigration event as being justified of using emergency wartime powers as the administration sees the country as being under attack from these illegal hoardes. ACLU and the judge stating that there are laws in place for a legal deportation procedure.

Here is where Trump's people slipped up.

IF the illegal immigrants had been detained and deported under the existing laws such as the Immigration and Nationality Act (INA) the ACLU would have NO BASIS to challenge the deportations.

The INA allows for the removal of individuals who enter the US illegally and while the ACLU often challenges deportation policies they cannot argue that deporting illegal immigrants under INA is illegal.

Since the Trump administration bypassed those standard channels of the INA, it gave the ACLU a stronger argument in court.

This brings us to the grey area that needs definition from the US Congress. The current US law does not automatically classify terrorist groups as "enemies" under the Alien Enemies Act because that law requires a formal state of war or invasion. Hosever, other laws DO allow for the targeting and removal of foreign terrorists- they were also not used in this case.

When are terroirsts "Enemy Combatants" ? well, there are two major legal frameworks for handling terrorists. One is the Enemy Combatant Doctrine (Post 9-11) but this applies only to those involved in 9-11 and activities surrounding 9-11.

Then there is the Material Support for Terrorism (USA PATRIOT Act and INA). Under the INA individuals affiliated with terrorists groups can be detained and deported. It also allows the government to expel non citizens of aiding terrorist organizations (Ed Note: see the case of the Columiba University terrorist and his expulsion from the US. should directly apply)

If the administration had classified the detained men as part of a Foreign Terrorist Organization (FTO) they could have used INA laws to deport them without the AEA.

However, Tren de Aragua and MS 13 were not considered FTOs at the time so did not fit into State Department criteria therefor they did not trigger immediate deportation.

Here are some possible solutions that can close up these loopholes.

Congress could pass a law expanding the definition of "enemy" under the AEA to include terrorist organizations. They could also generate new legislation to create a "Transnational Criminal Enemy" category allowing government to treat groups like Tren as national security threats rather than just criminal gangs and lastly, A presidential Executive Order could attempt to classify such groups as a threat equivalent to foreign combatants.

So as we see again, the road to Hell is paved with good intentions. I would like to think that the Trump administration is always out there nipping at the tails of the socialist dragons but in this case, it appears that there were better weapons at hand and no Hail Mary to shorten the time line. I understand the opposition to the deportations is just a part of the war to slow Trump momentum and should greatly upset people to see what legal contortions one has to go through to serve the law on behalf of the people of the United States

The following are a few examples of existing laws that could have done the job:

Summary of Immigration and Nationality Act (INA) § 235(b)(1) – Expedited Removal

• Purpose: INA § 235(b)(1) establishes the expedited removal process, allowing immigration officers to quickly deport certain noncitizens without a full hearing before an immigration judge.

• Who It Applies To:

  • Noncitizens arriving at U.S. ports of entry without proper documentation.

  • Noncitizens apprehended within 14 days of entry and within 100 miles of the border (expanded under some administrations).

• Key Provisions:

  • No Immigration Judge Hearing: Eligible individuals can be deported immediately by U.S. Customs and Border Protection (CBP) officers.

  • Asylum Exception: If a person expresses fear of persecution, they must be referred to an asylum officerfor a credible fear interview before deportation.

  • Judicial Review Limits: There is little to no court review of expedited removal orders, except for habeas corpus claims in limited circumstances.

  • Mandatory Detention: Those subject to expedited removal must be detained until removal or a credible fear determination is made.

• Controversies:

  • Critics argue it lacks due process and can lead to wrongful deportations.

  • Supporters claim it reduces immigration backlogs and prevents fraudulent asylum claims.

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Summary of Immigration and Nationality Act (INA) § 237(a)(4)(B) – Terrorist Activities Deportability

• Purpose: INA § 237(a)(4)(B) makes any noncitizen deportable if they are found to have engaged in terrorist activities, as defined by U.S. law.

• Who It Applies To:

  • Lawful permanent residents (green card holders) and other noncitizens present in the U.S. who have engaged in terrorist activities.

• Key Provisions:

  • Broad Definition of Terrorist Activities: Includes planning, funding, assisting, or carrying out acts of terrorism.

  • Material Support Clause: Providing any kind of support to a terrorist organization (even unknowingly) can trigger deportation.

  • No Requirement for Criminal Conviction: A person can be deported without a criminal trial if immigration authorities determine involvement in terrorist activities.

  • Limited Relief from Removal: Very few legal defenses or waivers exist to prevent deportation under this provision.

• Controversies:

  • Overbroad Interpretation: Critics argue that minor or unintended associations with groups labeled as terrorists can lead to deportation.

  • Due Process Concerns: Deportations under this provision often lack full judicial review.

and if you want to be a little dark.....

Summary of Title 42 – Emergency Public Health Expulsions (§ 265)

• Purpose: Title 42, Section 265, allows the U.S. government to expel noncitizens quickly at the border to prevent the spread of communicable diseases.

• Who It Applies To:

  • Noncitizens attempting to enter the U.S. at land borders (both asylum seekers and unauthorized migrants).

  • Does not apply to U.S. citizens or lawful permanent residents.

• Key Provisions:

  • Public Health Authority: Issued under the CDC’s authority, not standard immigration law.

  • Rapid Expulsions: Allows border officials (CBP) to immediately turn away individuals without asylum screening or formal deportation proceedings.

  • No Due Process: Those expelled under Title 42 cannot contest their removal in immigration court.

  • Limited Exceptions: Some humanitarian exemptions exist, such as for unaccompanied minors (at times) or certain nationalities.

• Controversies:

  • Criticism from Human Rights Groups: Seen as a way to circumvent asylum laws under the guise of public health.

  • Legal Challenges: Lawsuits argued it violated asylum rights under U.S. and international law.

  • Use Under Different Administrations:

    • Trump Administration (2020): Implemented as a COVID-19 measure.

    • Biden Administration (2021-2023): Partially lifted but kept in place for some groups before ending in May 2023.