Two weeks ago, the U.S. Supreme Court unanimously held that foreign nationals threatened with summary deportation as "alien enemies" have a due process right to challenge that designation through habeas corpus petitions. As the Court explained in Trump v. J.G.G., that meant alleged members of the Venezuelan gang Tren de Aragua "must receive notice" that "they are subject to removal" under the Alien Enemies Act (AEA) "within a reasonable time and in such a manner as will allow them to actually seek habeas relief in the proper venue before such removal occurs."
As the American Civil Liberties Union (ACLU) notes in a lawsuit it filed on Friday, the Trump administration maintains that it is obeying that order by giving AEA detainees 12 hours to indicate whether they plan to file habeas petitions, then another 24 hours to do so. If they fail to meet those extremely tight deadlines, they can be immediately shipped off to El Salvador, where the Salvadorian government has agreed to imprison them at its notorious Terrorism Confinement Center (CECOT).
That notion of due process, the ACLU argues, is plainly inconsistent with the Supreme Court's order, relevant case law, and historical practice. "The lack of adequate notice is all the more concerning," it says, because "designees are at grave risk of erroneous removal due to the government's dubious methods for identifying alleged [Tren de Aragua] members." Those methods include an "alien enemy validation guide" that relies on iffy evidence such as tattoos, clothing, social media posts, and "associating" with "known" Tren de Aragua members. The ACLU notes that relatives of some deportees sent to CECOT "maintain that they have no connection at all" to the gang.
