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
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.
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.
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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