Trump’s Revival of the Alien Enemies Act Is at the Heart of the New McCarthyism

On March 15, as U.S. President Donald Trump signed a proclamation — in secret — reactivating the Alien Enemies Act as a way to to speed up his mass deportation agenda, 70 activists from around the U.S. and Mexico gathered in Ajo, Arizona, in the heart of the Sonoran Desert.

We were convened for the weekend by Witness at the Border, a grassroots group that I co-founded, to share experiences and plan responses to the Trump administration’s onslaught on immigrant rights.

During our retreat, we heard the testimony of Dora Rodríguez, a Salvadoran Catholic activist who fled her homeland in July 1980 in the wake of the murder of Archbishop Oscar Arnulfo Romero by a death squad aligned with the military and political elites that were supported by the U.S., a killing that became a turning point in the intensification of El Salvador’s bloody civil war.

Rodríguez was one of only 13 survivors of a group of 26 who became stranded in the desert near Ajo, abandoned by their smuggler. At 19 years old, it was her third attempt to cross the border. The survivors’ plight became one of the founding inspirations of the sanctuary movement; Rodríguez has dedicated her life to providing humanitarian aid to migrants in the southern Arizona desert region and recovering and honoring the abandoned remains of migrants lost in the desert ever since.

The contemporary resonances of Romero’s murder — which is commemorated each year on March 24 — and Rodríguez’s case as a Salvadoran asylum seeker were thick in the air as we sought to connect Rodríguez’s reflections about her near-death experience in the desert 45 years ago, fleeing the impact of U.S-backed militarism in her beloved homeland, and its boomerang effects through the contemporary terror of the new Trump administration’s immigration and border policies today.

As we heard her story, we also began to detect its echoes in the news of the Trump administration’s reactivation of the Alien Enemies Act for the first time since World War II, applying it to 137 Venezuelans who it claimed were members of a gang known as the “Tren de Aragua,” which Trump has designated as a “foreign terrorist organization.” The last time the act was implemented was to mete discriminatory treatment out to 120,000 people of Japanese origin or descent — most of them native-born U.S citizens — by forcibly relocating and imprisoning them in “concentration camps” in retaliation for the attack on Pearl Harbor.

Creating an Archipelago of Detention

Strikingly, these Venezuelans, along with other expelled migrants on three flights that took off that day, were forcibly transferred for punitive detention in Rodríguez’s homeland in El Salvador, not to Venezuela. This marked a new inflection point in the Trump administration’s still unfolding policies of mass detention and mass deportation, as 238 Venezuelans and 23 Salvadorans were sent to El Salvador’s most notorious prison. This was in defiance of a federal judge’s order after an emergency weekend hearing, which included a demand that these flights be turned around in midair, if necessary. They were not.

The young men who were expelled have been loudly and visibly stigmatized by the Trump administration, its allies and the Bukele government in El Salvador as highly dangerous gang members — whom Trump has routinely deemed the “worst of the worst.”

The case may end up not only addressing what due process specifically means in the unique context of the Venezuelan detainees targeted by the Alien Enemies Act, but also whether the act itself is constitutional.

But no evidence has been provided that actually documents these allegations about the migrants expelled on these three flights, or hundreds of others who have been transferred and detained under similar circumstances at the U.S military base in Guantánamo Bay, Cuba. These “forced transfers” constitute what international law defines as “enforced disappearances,” which are categorized by Article 7 of the Rome Statute of the International Criminal Court as “crimes against humanity.”

Many family members, lawyers, and others who have been able to identify those who were expelled from photos and videos that have been widely circulated have sought to refute these blanket claims. Many of them seem to have been singled out simply because they were of Venezuelan origin and because of their migrant status, youth and tattoos.

Initial orders seeking to prevent additional deportations or forced transfers pursuant to the Alien Enemies Act have been appealed to the D.C. Circuit Court, which held a hotly contested hearing on March 24. The hearings thus far have included extensive additional filings and declarations trying to navigate a complex sequence of events.

Judge Boasberg issued a 37-page decision on March 24 extending his prohibition on further deportations pursuant to the Alien Enemies Act, and requiring that those who were sent to El Salvador were entitled to the opportunity to challenge its application to them. Meanwhile, a D.C. appellate court hearing later that afternoon heard arguments from both sides that might result in reversal of his order and further appeals later this week.

The case has become a crucial, historic test of what the Trump administration considers to be the “apex” where national security, foreign policy and plenary presidential powers around immigration converge and should be largely immune from judicial intervention. It may end up not only addressing what due process specifically means in the unique context of the Venezuelan detainees targeted by the Alien Enemies Act, but also whether the act itself is constitutional. It may also crystallize whether the Trump administration’s initial defiance of a federal court order will persist.

The Trump administration has designated Tren de Aragua as a “foreign terrorist organization,” along with seven other drug cartels based in Mexico and El Salvador, and Trump officials and allies have repeatedly threatened potential military intervention against them. The Trump administration alleges that this gang has undertaken a “predatory incursion” into U.S. territory that falls within the terms of the Alien Enemies Act, and also claimed that there are unspecified links between this gang and the Maduro régime.

The labeling of these gangs as “terrorists” — and the imprisonment of people they accuse, without any evidence, of being members in a prison designated for those who supposedly fall into this category — exemplifies crucial continuities.

These can be traced through the guiding threads of the methodologies of state terror that characterized U.S. strategies and affinities during the Cold War, and which have persisted as the emphasis of U.S. hegemony has shifted to the so-called “drug war” and “anti-terror” paradigms. The elites who benefit and the victims continue to be essentially the same as they were in the 1980s.

Another 101 Venezuelans who were transported on these flights, according to the administration, were subject to “regular” orders of deportation. But “deportation” normally refers to a process where a person is returned to their country of origin.

Deportations to Venezuela from the U.S. have been intermittent, complicated by tensions between the two countries, including the breaking of diplomatic relations during the first Trump administration in March 2019. Venezuela announced on March 22 that it would resume deportation flights, but there is no indication so far that this will resolve the status of the 238 Venezuelans already sent to El Salvador.

In this case, the Trump administration has gone out of its way to single out a specific nationality — Venezuelans — for expulsion to a country — El Salvador — that is known for what international human rights observers have documented as one of the most repressive prison systems in the world.

The detention of the Venezuelan migrants has been outsourced, or “externalized,” for profit, to a prison system characterized by systematic forms of cruel, inhuman and degrading treatment that are tantamount to both psychological and physical torture.

El Salvador’s role in imprisoning these migrants is part of a broader emerging Trumpian archipelago of detention sites that combines military bases within the U.S. and beyond (including in Guantánamo, on Cuban territory), and improvised sites in Panama and Costa Rica.

Korematsu, the Alien Enemies Act and the Tren de Aragua

The racism and xenophobia inherent in Trump’s treatment of Venezuelan migrants is shocking, but it has deep roots within U.S. history. For example, during World War II, the policies of Japanese relocation and imprisonment were upheld by the U.S Supreme Court in December 1944 in the Korematsu case — one of the court’s most notorious decisions — as an exceptional use of a racial classification (otherwise prohibited by the 14th Amendment’s equal protection clause) that was supposedly justified in this instance by considerations of “national security.”

The detention of the Venezuelan migrants has been outsourced, or “externalized,” for profit, to a prison system characterized by systematic forms of cruel, inhuman and degrading treatment

This is the same justification that the Trump administration has proffered in defense of its forced transfer of the Venezuelans on the March 15 flights, claiming that they fall within a supposed state of war between the U.S. and Tren de Aragua.

There was no evidence provided in 1942 establishing that any of the Japanese people rounded up by the U.S. government were in fact acting as agents of the Japanese Empire or active in espionage or sabotage during wartime.

In this sense, the application of the Alien Enemies Act in the 1940s nullified both the 14th Amendment’s protection against racial discrimination and its parallel provisions against violations of due process.

The same is true today. The effect then was that in practice, everybody of Japanese origin or descent, regardless of citizenship, was vulnerable. Today, the affected range of groups is theoretically narrower — alleged members Tren de Aragua — but in actuality no evidence or due process is required (nor has any been publicly provided), or if provided is intended to be hidden as a “state secret” cloaked by whatever the administration deems to be protected under the rubric of “national security.”

But it is clear that in effect, all Venezuelan young men over age 14 in the U.S. are now potentially vulnerable, because no proof of any gang membership is actually needed.

According to the Trump administration’s current repressive “logic,” any group, from any country, could be similarly designated for targeted Alien Enemies Act enforcement (and therefore forced exile and/or indefinite detention) at the president’s whim.

The March 15 flights underline a historic shift both in the contours of the administration’s overall approach to immigration, and in the geopolitics of its implications and impact in Latin America and globally. This includes not only the increasingly authoritarian, neofascist character of Trump’s approach but its application to a broad range of targeted victims.

Trump’s targeting of Venezuelans must also be understood within the broader context of long-standing U.S. aggression against first the Chávez and then the Maduro governments and ultimately against the Venezuelan people through sanctions.

It is not surprising, given the combined effects of U.S. intervention and Maduro’s authoritarianism and misrule, that Venezuela has become one of the leading cases of massive forced migration in the world, leading to the displacement of more than 7.7 million people.

At the same time, Trump’s outsourcing of the harshest forms of migrant detention to El Salvador must be placed within the broader context of U.S. military support and promotion of neoliberal devastation in El Salvador since the 1980s. In essence, the same forces that benefited from Archbishop Romero’s murder in the 1980s are those that profit from Bukele’s dystopian carceral state machinery today.

The predictable result has been a continuous chain of U.S. responsibility for undermining any hope of a dignified life for the vast majority of the population in both Venezuela and El Salvador, which has triggered massive processes of forced migration. These are intertwined with structural causes long promoted by the U.S., such as “free trade” and regional “drug wars,” combined with the ecocidal effects of climate change.

The application of the Alien Enemies Act in the 1940s nullified both the 14th Amendment’s protection against racial discrimination and its parallel provisions against violations of due process. The same is true today.

Deeply rooted hopes and initiatives for social justice and liberation in both countries — as in Latin America and the Caribbean regionally — continue to be both shaped and wounded by the destructive imprints of Spanish imperial and U.S. neocolonial domination, including the lingering echoes of the hemispheric dimensions of the Cold War.

The Trump administration’s current onslaught is epitomized by the use of the Alien Enemies Act, but has spread from supposed immigrant gang members and immigrant workers and their families to activists, holders of student visas, green cards, and even tourists and entrepreneurs. There are striking parallels between the arbitrariness that is characteristic of cases such as those of the young Venezuelans accused of being members of the Tren de Aragua and that of Palestinian activist Mahmoud Khalil, as part of the broader story of the dismantling of what is left of free speech and academic freedom at Columbia University.

In both contexts, the Trump administration has argued that it is untrammeled executive power — grounded in supposed national security and foreign policy imperatives (“state secrets”), within the context of immigration and border policy — that justifies both the mass deportation of Venezuelan “gang members” to forced exile in a Salvadoran prison, and the revocation of the permanent legal residency (green card) and deportation of a Palestinian activist who exercised his rights to free speech and assembly and then was hit with a McCarthy-era statute that has been rarely invoked since the 1950s.

All of this together constitutes a new McCarthyism that extends not only to those with origins in Latin America and the Caribbean, but also Palestine, South Asia, Canada, France and Germany, among other examples. It includes immigration lawyers and nonprofits that defend immigrant rights, students at universities in Trump’s crosshairs and critics of the president’s policies.

The U.S. government has long used “national security” as a justification to invoke exclusionary policies that target the very people most caught up in the aftereffects of the violence that the U.S. government creates. Trump’s latest measures mark a dramatic escalation, and our response must be as radical as the conditions that we confront. But as Dora Rodríguez’s story shows us, ending the racial exclusion that allows for repression and detention within the U.S. must go hand in hand with centering anti-imperialism in our immigrant rights work in the Trump era.