WASHINGTON — The Trump administration has resisted providing more information about the migrants it flew out of the country under a sweeping new claim of authority they say can’t be questioned by a judge, a combination that has raised alarms among legal and immigration experts over potential mistakes or abuses.

The White House has declined to provide the public with basic information such as names and identities of the 137 alleged Tren de Aragua members sent to El Salvador under the Alien Enemies Act of 1798 or details about how U.S. officials determined each of them were part of the Venezuelan gang.

The Justice Department told a federal judge that Cabinet secretaries are considering whether to invoke the state secrets privilege rather than provide details about the flights, as part of a lawsuit where the immigration attorney claims one man was mistakenly identified as a gang member based on a tattoo.

And, while the White House is abiding by a temporary court order to halt more flights under that law, the administration has filed an appeal in which it says courts have “no basis” to second guess the president’s determinations in using the law for the first time outside of an ongoing war.

“The implications of the government’s position are staggering,” the American Civil Liberties Union and Democracy Forward said in a filing in their lawsuit. “If the President can designate any group as enemy aliens under the Act, and that designation is unreviewable, then there is no limit on who can be sent to a Salvadoran prison, or any limit on how long they will remain there.”

Other experts say the authority Trump is invoking, under which there are no due process protections, could easily lead to individuals being wrongfully accused as gang members and sent to a “Terrorism Confinement Center” in El Salvador.

An immigration attorney for one of the migrants, Jerces Reyes Barrios, asserted in a sworn declaration in the lawsuit that her client was wrongfully identified as part of Tren de Aragua and deported based on the presence of tattoo based on a logo of a soccer team and a picture he posted of himself making a certain hand gesture.

“Mr. Reyes Barrios was/is a professional soccer player in Venzuela,” Tobin wrote. “He has never been arrested or charged with a crime. He has a steady employment record as a soccer player, as well as a soccer coach for children and youth.”

David Bier, director of immigration studies for the libertarian Cato Institute, called that declaration “absolutely terrifying” in a social media post. “Our government is out of control,” he wrote.

Tricia McLaughlin, assistant secretary for public affairs at the Department of Homeland Security, defended the methods of identifying Barrios as a gang member, but no offered no additional evidence.

“Jerce Reyes Barrios was not only in the United States illegally, but he has tattoos that are consistent with those indicating TdA gang membership. His own social media indicates he is a member of the vicious TdA gang,” McLaughlin posted on social media Thursday. “That all said, DHS intelligence assessments go beyond a single tattoo and we are confident in our findings.”

Elizabeth Goitein, co-director of the Liberty and National Security Program at the Brennan Center for Justice, said in an interview Friday that based on the initial numbers, the Trump administration is “scooping up people who have no real established or establishable connections” to Tren de Aragua.

“They’re using the thinnest possible excuse or rationale to condemn these people and then deport them,” Goitein said. “And I think if the judge’s order were removed, we would see that happening at a much higher pace, frequency, with even more due process deprivations happening on a day-by-day basis.”

Administration arguments

White House press secretary Karoline Leavitt last week again defended the process for identifying and removing the migrants, alluding to the recent formal designation by the State Department of Tren de Aragua as a foreign terrorist organization.

“We are not going to reveal operational details about a counterterrorism operation,” Leavitt said. “But what I can assure you … we have the highest degree of confidence in our ICE agents and our Customs and Border Patrol agents, who have committed their lives to targeting illegal criminals in our country, particularly foreign terrorists.”

Leavitt asserted the officials “had great evidence and indication,” and “were 100% confident in the individuals that were sent home on these flights and in the president’s executive authority to do that.”

Robert L. Cerna II, a senior Immigration and Customs Enforcement official, in sworn declaration in the lawsuit said that many of those deported under the law “do not have criminal records in the United States.”

“The lack of a criminal record does not indicate they pose a limited threat,” Cerna wrote. “In fact, based upon their association with TdA, the lack of specific information about each individual actually highlights the risk they pose. It demonstrates that they are terrorists with regard to whom we lack a complete profile.”

Goltein, in a series of posts on a social media, said “it is 100% inevitable” migrants removed under the law “will be swept into these mass deportations and will find themselves trapped in some of the most hellish circumstances imaginable.”

She said Trump has falsely claimed “an ‘invasion’ in order to harness a wartime power for peacetime immigration enforcement, side-stepping both immigration law and constitutional due process.”

Goitein added among those caught up in the deportation could be not just foreign nationals, but U.S. citizens, pointing to a 2021 Governmental Accountability Office report finding as many as 70 potential U.S. citizens were removed from fiscal 2015 through the second quarter of fiscal year 2020.

Trump’s defenders, many of whom have advocated for a tough immigration policy, have downplayed the implications of due process of the deportations under the Alien Enemies Act, saying the bigger issue is keeping potential dangerous criminals out of the U.S.

Tom Homan, Trump’s “border czar,” downplayed concerns about due process on Sunday during a TV appearance, asserting individuals may be gang members even if they’ve never had an arrest.

“Due process — what was Laken Riley’s due process,” Homan said when pressed on the issue. “Where were all these young women who killed and raped by TdA, what was their due process?”

Homan added: “Every Venezuelan migrant on that flight was a TdA member based on numerous criminal investigations and intelligence reports and a lot of work by ICE officers.”

Simon Hankinson, senior research fellow for border security at The Heritage Foundation, said Thursday the sheer number of migrants who entered the United States during the Biden administration makes conventional standards for due process unrealistic.

“I think when all is said and done, if you give benefit of the doubt to every one of the whatever 10 million people that have either gotten in without inspection, or been paroled, or were released at the border into deportation proceedings, that is a backlog that we would never get through, or at least it would take decades to get through,” Hankinson said. “In the meantime, you’re left with some really dangerous people who are going to carry out crimes against American citizens.”

Courtrooms ahead

The U.S. sent a flight of migrants to Venezuela over the weekend, in a sign that the Trump administration still has deportation power outside of the authority claimed under the Alien Enemies Act.

The Alien Enemies Act grants the president authority to remove foreign nationals age 14 and older at the time of war or when “any invasion or predatory incursion” is incurred by a foreign nation or government.

The Justice Department, in an appeal, has said Tren de Aragua is “intricately intertwined with the Maduro regime and functions as a government onto itself in parts of Venezuela, while the illegal entry into the United States of its members for hostile reasons is an ‘invasion’ or ‘predatory incursion.’”

Judge James E. Boasberg of the U.S. District Court for the District of Columbia, at a hearing in the case Friday over whether to continue to temporarily block deportations under the law, said the policy ramifications “are incredibly troublesome and problematic and concerning.”

“And I agree it’s an unprecedented and expanded use of an act that has been used, as we discussed, in the War of 1812, World War I and World War II, when there was no question there was a declaration of war and who the enemy was.”

The U.S. government in this case, Boasberg said, is “not being terribly cooperative at this point.”

George Fishman, a senior legal fellow at the Center for Immigration Studies, predicted the issue would return to the Supreme Court, which he said will have to determine the definition of a “predatory incursion” under the law and whether acts of an international criminal cartel or terrorist organization can be, in fact, acts of a foreign government.

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