Sunday, May 4, 2025

From Roger Fitch and our friends down under.

 

 "Invasion" of the United States

Sunday, May 4, 2025

Justinian in Habeas, Immigration detention, Roger Fitch Esq, US Supreme Court, US politics

 

Trump deportations ... Detention in gulags ... How much of an enemy does an alien have to be? ... Trump judge turns the tables ... Bush's war on terror shows the way ... Forum shopping for habeas cases ... Roger Fitch files from Washington 

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Everything Trump does seems unlawful, but there are still principles by which he lives:

 

First, never tell the truth when a lie will serve (the Washington Post recorded 30,000+ lies last term).

Secondly, never do legally, what can be done illegally: if successful, opportunities are broadened for illicit behaviour in future, i.e, for further crime, penal or venal.

Take Trump's approach to unwanted immigrants. There are numerous legitimate avenues for regulating immigration and removing undocumented people, without breaking the law. 

Even so, Trump enjoys breaking things, and nothing's bigger than habeas corpus; it's the gold standard for lawbreaking. Chief Justice Rehnquist wrote a whole book (All the Laws but One) about habeas and Lincoln's transgressions of it (Ex parte Milligan). 

In Boumediene v Bush (2008), the supreme court re-affirmed habeas, even for Guantanameros. 

In fact, under the US constitution, habeas can only be suspended when, "in cases of rebellion or invasion the public safety may require it".

The Alien Enemy Act (1798) speaks of a "declared war", or "any invasion or predatory incursion". With  no declared war, Trump conjured a shadow invasion as pretext for invoking the AEA, now relevantly codified at Title 50, sections 21 (restraint, regulation and removal), 22 (time to settle affairs and depart), and 23 (jurisdiction of courts). 

§ 21: "…[A]ll natives, citizens…of the hostile nation or government, being of the age of fourteen years and upward ... within the United States and not actually naturalized", may be "apprehended, restrained, secured, and removed as alien enemies ..."

§ 22: "…When an alien who becomes liable as an enemy ... is not chargeable with actual hostility, or other crime against the public safety, he shall be allowed, for the recovery, disposal, and removal of his goods and effects, and for his departure, the full time which is or shall be stipulated by any treaty ... between the United States and the hostile nation or government of which he is a native citizen" etc, and "where no such treaty exists  ... the President may ascertain and declare such reasonable time as may be consistent with the public safety, and according to the dictates of humanity and national hospitality."

§ 23: "…[T]he several courts of the United States, having criminal jurisdiction, and the several justices and judges of the courts of the United States, are authorized and it shall be their duty, upon complaint against any alien enemy resident and at large within such jurisdiction or district, to the danger of the public peace or safety, and contrary to the tenor or intent of such proclamation, or other regulations which the President may have established, to cause such alien to be duly apprehended and conveyed before such court, judge, or justice; and after a full examination and hearing on such complaint, and sufficient cause appearing, to order such alien to be removed… give sureties [or] be otherwise restrained ... and to imprison, or otherwise secure such alien, until the order which may be so made shall be performed." (emphases added)

In his EO, comically-titled "Invocation of the Alien Enemies Act Regarding the Invasion of the United States by Tren de Aragua, Trump's proclamation dishonestly cherry-picked the AEA, citing §21 on  "invasion" while ignoring §23 judicial hearings. He also attempted to exclude §22's benefits, by finding:

"[S]uch members of TdA are, by virtue of their membership in that organization, chargeable with actual hostility against the United States and are therefore ineligible for the benefits of 50 U.S.C. 22. I further find and declare that all such members of TdA are a danger to the public peace or safety of the United States."

AEA does not purport to suspend habeas, and it allows time for those not fighting or committing crimes to be removed humanely; yet, as DC appeals judge Patricia Millett observed, "Nazis got better treatment" than Trump's "alien enemies". 

The president hoped to deny immigrants the opportunity to consult lawyers or seek habeas, but this has been derailed by the supreme court ruling that habeas must be available, irrespective of whether AEA applies. 

That problematic ruling defeated Trump's sinister purpose in invoking AEA, but he carried on, effectively daring the court to do something about it

The court did just that. In an overnight order issued in a related case, seven of the justices reiterated the court's position that habeas must be available, thus staying all attempted deportations under the AEA. More here, and untangling the Deportation Cases, here

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Legally Bondi: AG turning the DOJ into Trump's personal law firm 

Although the US is neither under invasion or at war, Trump's administration is issuing AEA "Warrants of Apprehension and Removal", while AG Pam Bondi is authorising unconstitutional searches and seizures without any warrants at all

Equally unlawfully, court orders restraining ICE and DOJ deportations have been circumvented through deceitful backdoor military renditions to Guantánamo and El Salvador.

On May 1, a Trump-appointed federal judge in Texas finally bit the bullet and stated the obvious: as a matter of law, a Venezuelan gang doesn't meet the definition of "enemy alien". 

≈   ≈   ≈ 

George Bush's "war on terror" started it. That's been rebranded for immigrants, with Trump harvesting autocratic powers planted by Bush and Cheney. Venue, however, is changing.

In 2002, in California, the first Guantánamo habeas petition was filed, and the prisoner triumphed in his 9th circuit appeal. Alarmed, the supreme court ruled that venue for all Guantánamo habeas cases lay in Washington, where the DC appeals court was well-stacked with conservative Republican loyalists who opposed habeas

Gherebi's judgment was vacated and the petition refiled in DC. 

Similar overseas detention cases are now arising, prisoners, who like Bush's "enemy combatants" jailed in Guantánamo without due process, have been rendered to an El Salvador dungeon (also Guantánamo and Costa Rica) without due process. 

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El Salvador's mega-prison, CECOT

But court composition changes over time, and the DC Circuit now has a progressive majority. Suddenly, an even-more-conservative supreme court has decided that Washington is the wrong venue: habeas cases should be brought in Louisiana or Texas, where the government has taken people they wish to deport .

Why the difference in venue? 

These states lie in the hard-right Fifth Circuit, where the Trump administration can expect sympathetic consideration; twelve (of 17 judges) are Republican appointees, six appointed by Trump himself. 

Once again, the Supreme Court majority has rewarded a Republican administration for bad faith and manipulation of venue, forum-shopping in this case.

Meanwhile, Donald Trump's lawyers are routinely flouting court orders against illegal deportations, sometimes pursuing doubly-unlawful "removals" where victims are transported, in the words of the Declaration of Independence, "beyond Seas to be tried for pretended offences", or, in the case of El Salvador's mercenary CECOT prison, no charge or trial at all

For the moment, none are citizens, but Trump has indicated that may change.

Banishment is illegal, whether a "criminal" or not; everyone seems to be missing this in the deportations to imprisonment. Nor can the Trump administration lawfully contract-out detention to another country.  

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