The Foreign Enemies Law used by Trump to deport immigrants to El Salvador is reserved for such extreme situations that the United States had not applied it since World War II. The U.S. president invoked this legislation against a judge’s order, who had blocked the transfers, but what does this law say? What does it consist of? To whom can it be applied? and under what circumstances is it executed?
The Alien Enemies Act was created in 1798, and before being adopted by Trump for deportations, it had only been applied three times in the history of the United States. During these three occasions, the country was at war.
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The first time this law was used was in 1812 when the United States was at war with the United Kingdom. The second time was during World War I to detain about 6,000 foreigners, considered as enemies, most of whom were Germans, who were held until the end of the conflict. The third time was during World War II to arrest Germans, Italians, and Japanese who were on American soil and were also considered enemies.
What is the Foreign Enemies Act?
The Foreign Enemies Act grants the President of the United States special powers to order the arrest of foreigners from nations with which they are at war.
The Congress approved it when the United States was on the brink of war with France. The goal was to detain foreigners from enemy countries to prevent attacks and espionage.
President Trump appealed to this legislation, claiming that the Tren de Aragua organization was “threatening with an invasion or predatory raid” on U.S. soil. Therefore, he ordered that all Venezuelans, members of this gang aged at least 14 years old, be arrested and deported to El Salvador. He considers them “foreign enemies.”
James Boasberg, a judge in the District of Columbia, ordered to block deportations to El Salvador, but Trump ignored his ruling, and later requested to prosecute him.
BBC presented the explanation of Dan Tichenor, a professor of Political Science at the University of Oregon, who indicated that this law should only be applied when there is a “predatory invasion or incursion” by a “foreign government or nation”.
The Foreign Enemies Law allows for the expedited detention and expulsion of foreigners, as it does not allow them to defend themselves through a judicial process, meaning they cannot appeal.
“The rule authorizes presidents to expedite the deportation process, leaving non-citizens with no possibility to appeal to immigration courts,” Tichenor explained to the mentioned media outlet.
Katherine Yon Ebright, from the Brennan Center for Justice, pointed out that another aspect of this law is that it allows for the detention and expulsion of foreigners without evidence, only based on the belief that they pose a threat, “mere suspicion is enough”.