LEILA FADEL, HOST:
A federal appeals court in Washington, D.C., is weighing whether to allow the White House to quickly deport alleged members of a Venezuelan gang under a rarely used wartime authority.
MICHEL MARTIN, HOST:
It is the latest episode and a broader legal debate about the Alien Enemies Act. And last night, the Trump administration said it is invoking the state secrets privilege in a standoff with another federal judge over deportation flights that may have defied his orders.
FADEL: NPR's Joel Rose has been following that debate, and he joins us now. Good morning, Joel.
JOEL ROSE, BYLINE: Hey, Leila.
FADEL: OK, so this case has been moving pretty quickly. Remind us, what was the appeals court considering at the hearing Monday?
ROSE: This is a three-judge panel from the D.C. Circuit Court of Appeals, and it was hearing an appeal from the Trump administration of a lower court's ruling. The district court judge in that case has temporarily blocked the administration from deporting anyone under the Alien Enemies Act, which has only been used three times in U.S. history, all when the country was actively at war. The Trump administration argues it should apply here as well because of the threat posed by the Venezuelan gang, Tren de Aragua, which the administration has designated as a foreign terrorist organization. In an order yesterday, the judge reaffirmed his temporary restraining order on the grounds that these Venezuelan migrants have not gotten due process, had no meaningful chance to argue that they are not members of this notorious gang.
FADEL: And what happened in the appeals court hearing Monday?
ROSE: One appeals court judge, in particular, seemed also very concerned about these due process questions. Judge Patricia Millett, who was appointed by Barack Obama. This law was used most recently during World War II, and even then, Millett said detained Germans had a chance to fight their deportations, unlike these Venezuelans today.
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PATRICIA MILLETT: There were planeloads of people. There were no procedures in place to notify people. Nazis got better treatment under the Alien Enemy Act than has happened here.
ROSE: You know, the Justice Department's lawyer disputed the Nazi analogy and said that some of these Venezuelan men have, in fact, been able to fight their removal. But Judge Millett questioned whether the other 200 migrants who were deported had any chance to do that. She said we don't have any record of whether these people were gang members or victims of the gang. The White House says it is confident that all of those deported are violent gang members, but the administration has also conceded in legal filings that many do not have criminal records in the U.S. Immigrant advocates contend many are actually not gang members at all, but have been targeted because they have tattoos.
FADEL: The administration has been firm in saying they have the authority to invoke this act. What was the case they made in court?
ROSE: The Justice Department's lawyer argued that the district court judge overstepped by inserting the court into foreign policy and never should have issued his order in the first place. Here's Drew Ensign from the Justice Department.
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DREW ENSIGN: The district court's order represents an unprecedented and enormous intrusion upon the powers of the executive branch and in a manner that could intrude upon sensitive diplomatic negotiations.
ROSE: Ensign also spent a lot of time arguing that immigrant advocates brought basically the wrong lawsuit and should have challenged the individual cases in Texas where these deportation flights originated. We don't know when this panel will rule, but it could be soon.
FADEL: And at the same time, the Trump administration is fighting to avoid releasing more details about these deportation flights. Where does that stand?
ROSE: Yeah, on a separate legal track, the Trump administration has told U.S. District Judge James Boasberg last night that it is invoking the state secrets privilege and will continue to not give him key information about those flights, including departure times and other operational details. Boasberg has been pushing the administration to explain whether it defied his orders when it allowed deportation flights to continue last weekend. He has said in court that he will get to the bottom of whether his order was violated.
FADEL: NPR's Joel Rose. Thank you, Joel.
ROSE: You're welcome. Transcript provided by NPR, Copyright NPR.
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