In a significant and dangerous escalation of the use of criminal investigations to punish and intimidate, the former head of the Cyber Security and Infrastructure Security Agency (CISA) Chris Krebs was targeted for possible criminal prosecution in an executive order signed today by Trump. The executive order directed that the Attorney General and Department of Homeland Security to “take all appropriate action to review Krebs.” Many will recall that Krebs refused to support Trump’s claim of electronic tampering of voter systems or talliers. He was head of CISA during Trump’s first term in office and oversaw the detection and mitigation of any cyber security threats to voting systems during the 2016 presidential election, which Trump lost.
The executive order states in part: “I further direct the Attorney General and the Secretary of Homeland Security, in consultation with any other agency head, to take all appropriate action to review Krebs’ activities as a Government employee, including his leadership of CISA. This review should identify any instances where Krebs’ conduct appears to have been contrary to suitability standards for Federal employees, involved the unauthorized dissemination of classified information, or contrary to the purposes and policies identified in Executive Order 14149 of January 20, 2025 (Restoring Freedom of Speech and Ending Federal Censorship).” I presume “all appropriate action” includes criminal investigations and prosecutions.
This represents a reckless and perilous escalation of the use of the Department of Justice and other federal law enforcement agencies to punish those that Trump deems disloyal. Call, write, email your representatives. Write the Supreme Court Justices, let them know your thoughts.
On April 7, the Supreme Court sided with Trump regarding the constitutionality of using the Alien Enemies Act to deport Venezuelans associated with a criminal gang designated a foreign terrorist organization by, guess who, Trump. Incredibly, the Court basically held that government acts under the Alien Enemies Act are largely not subject to judicial review. Let me say that again, the Court held that government acts under the Alien Enemies Act are largely not subject to judicial review. Below is a summary of the key points and below that the Court’s ruling:
The plaintiffs according to the Court used the wrong argument. The plaintiffs challenged the government’s “interpretation” of the Alien Enemies Act. Citing a 1948 case, the Court stated that Alien Enemies Act is largely not subject to judicial review, or as they wrote, “preclude[s] judicial review.
Instead, the plaintiffs should have used the Writ of Habeas Corpus (see earlier blog post on Habeas Corpus), which they did initially, but changed their argument, according to the Court.
The Court also removed the US District Court, Washington DC, from jurisdiction to hear the case. Stating that challenges must be heard in the district of confinement. Note not arrest, but confinement. In this case Texas, the epitome of fairness and equity and liberal jurisprudence.
The Court did say that detainees detention must have some ‘judicial review’ and must be given notice of deportation and that they be afforded an “opportunity to be heard.”
Per Curiam
SUPREME COURT OF THE UNITED STATES
No. 24A931 _________________
DONALD J. TRUMP, PRESIDENT OF THE UNITED STATES, ET AL. v. J. G. G., ET AL.
ON APPLICATION TO VACATE THE ORDERS ISSUED BY THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
[April 7, 2025]
PER CURIAM.
This matter concerns the detention and removal of Venezuelan nationals believed to be members of Tren de Aragua (TdA), an entity that the State Department has designated as a foreign terrorist organization. See 90 Fed. Reg. 10030 (2025). The President issued Proclamation No. 10903, invoking the Alien Enemies Act (AEA), Rev. Stat. §4067, 50 U. S. C. §21, to detain and remove Venezuelan nationals “who are members of TdA.” Invocation of the Alien Enemies Act Regarding the Invasion of the United States by Tren de Aragua, 90 Fed. Reg. 13034. Five detainees and a putative class sought injunctive and declaratory relief against the implementation of, and their removal under, the Proclamation. Initially, the detainees sought relief in habeas among other causes of action, but they dismissed their habeas claims. On March 15, 2025, the District Court for the District of Columbia issued two temporary restraining orders (TROs) preventing any removal of the named plaintiffs and preventing removal under the AEA of a pro- visionally certified class consisting of “[a]ll noncitizens in U.S. custody who are subject to” the Proclamation. Minute Order on Motion To Certify Class in No. 25−cv−00766. On March 28, the District Court extended the TROs for up to an additional 14 days. See Fed. Rule Civ. Proc. 65(b)(2). The D. C. Circuit denied the Government’s emergency motion to stay the orders. The Government then applied to this Court, seeking vacatur of the orders. We construe these TROs as appealable injunctions. See Carson v. American Brands, Inc., 450 U. S. 79, 84 (1981). The D. C. Circuit denied the Government’s emergency motion to stay the orders. The Government then applied to this Court, seeking vacatur of the orders. We construe these TROs as appealable injunctions. See Carson v. American Brands, Inc., 450 U. S. 79, 84 (1981).
We grant the application and vacate the TROs. The detainees seek equitable relief against the implementation of the Proclamation and against their removal under the AEA. They challenge the Government’s interpretation of the Act and assert that they do not fall within the category of re- movable alien enemies. But we do not reach those arguments. Challenges to removal under the AEA, a statute which largely “‘preclude[s] judicial review,’” Ludecke v. Watkins, 335 U. S. 160, 163−164, (1948), must be brought in habeas. Cf. Heikkila v. Barber, 345 U. S. 229, 234−235 (1953) (holding that habeas was the only cause of action available to challenge deportation under immigration statutes that “preclud[ed] judicial intervention” beyond what was necessary to vindicate due process rights). Regardless of whether the detainees formally request release from confinement, because their claims for relief “ ‘necessarily imply the invalidity’ ” of their confinement and removal under the AEA, their claims fall within the “core” of the writ of habeas corpus and thus must be brought in habeas. Cf. Nance v. Ward, 597 U. S. 159, 167 (2022) (quoting Heck v. Humph- rey, 512 U. S. 477, 487 (1994)). And “immediate physical release [is not] the only remedy under the federal writ of habeas corpus.” Peyton v. Rowe, 391 U. S. 54, 67 (1968); see, e.g., Nance, 597 U. S., at 167 (explaining that a capital pris- oner may seek “to overturn his death sentence” in habeas by “analog[y]” to seeking release); In re Bonner, 151 U. S. 242, 254, 259 (1894). For “core habeas petitions,” “jurisdiction lies in only one district: the district of confinement.” Rumsfeld v. Padilla, 542 U. S. 426, 443 (2004). The detain- ees are confined in Texas, so venue is improper in the District of Columbia. As a result, the Government is likely to succeed on the merits of this action. The detainees also sought equitable relief against summary removal. Although judicial review under the AEA is limited, we have held that an individual subject to detention and removal under that statute is entitled to “‘judicial review’ ” as to “questions of interpretation and constitutionality” of the Act as well as whether he or she “is in fact an alien enemy fourteen years of age or older.” Ludecke, 335 U. S., at 163−164, 172, n. 17. (Under the Proclamation, the term “alien enemy” is defined to include “all Venezuelan citizens 14 years of age or older who are members of TdA, are within the United States, and are not actually naturalized or lawful permanent residents of the United States.” 90 Fed. Reg. 13034.) The detainees’ rights against summary removal, however, are not currently in dispute. The Government expressly agrees that “TdA members subject to removal under the Alien Enemies Act get judicial review.” Reply in Support of Application To Vacate 1. “It is well established that the Fifth Amendment entitles aliens to due process of law” in the context of removal proceedings. Reno v. Flores, 507 U. S. 292, 306 (1993). So, the detainees are entitled to notice and opportunity to be heard “appropriate to the nature of the case.” Mullane v. Central Hanover Bank & Trust Co., 339 U. S. 306, 313 (1950). More specifically, in this context, AEA detainees must receive notice af- ter the date of this order that they are subject to removal under the Act. The notice must be afforded within a rea- sonable time and in such a manner as will allow them to actually seek habeas relief in the proper venue before such removal occurs.
For all the rhetoric of the dissents, today’s order and per curiam confirm that the detainees subject to removal orders under the AEA are entitled to notice and an opportunity to challenge their removal. The only question is which court will resolve that challenge. For the reasons set forth, we hold that venue lies in the district of confinement. The dissents would have the Court delay resolving that issue, requiring—given our decision today—that the process begin anew down the road. We see no benefit in such wasteful delay.
The application to vacate the orders of the United States District Court for the District of Columbia presented to THE CHIEF JUSTICE and by him referred to the Court is granted. The March 15, 2025 minute orders granting a temporary restraining order and March 28, 2025 extension of the United States District Court for the District of Columbia, case No. 1:25-cv-766, are vacated.
Democracy is the cornerstone of our Republic. It is just as important to focus on local elections as it is national elections. Sometimes, however, local elections get swept up and into national debates and they become sideshows, even though our local elected officials make decisions that impact our lives daily. To promote local discourse, I intend to highlight persons running in local races, to let them, in their own words, make their case for your vote.
I recently asked David Rogers if he would be willing to answer three questions about his run for the Mineral seat of the Louisa County Board of Supervisors. He agreed. I am pleased to present to you David’s responses to the questions below.
Mr. Rogers is running to replace Duane Adams, who is also the current Chairman of the Board of Supervisors. Adams term expires December 31 of this year.
David H. Rogers, Candidate for the Mineral Seat of the Louisa Board of Supervisors
What motivates you to run for the Mineral seat of the Louisa County Board of Supervisors?
First let me say what does not motivate me to run. I am not running because I need something else to do. I am not running because I need to get my name out so I can run for another office. I am not running because I am not happy with what I already do a s a Church Insurance Agent.
I am motivated to run because we have not had good representation with our current board member. We cannot keep doing the same thing and expect a different result. I believe that if people want change, then someone must stand up and fight for it. I would like to be that someone.
I am motivated to run because under the present board, projects have been voted upon that benefit developers and not the people. In negotiating contracts with businesses, we should have a give and take relationship with the Mineral/Louisa residents coming out on the positive end.
I am motivated to run because under the current board member, there is no transparency. The constituents find out about an issue after the fact. This must stop. When Board members move on to other aspirations, we will still be here struggling with the aftermath of bad decisions for many years if we don’t do something now.
What makes you the best candidate for the Mineral seat?
I am the best candidate for the Mineral seat because I realize, “it is not about me.” It is about the people. I have no ulterior motives for running except to help the people of Mineral and Louisa at large. Although I did not grow up in Louisa, I spent my summers here with my grandparents. My family has owned land here for about 130 years. I know that the decisions I make will affect many families including my own.
I CARE about the people in Mineral. I have gotten word that there are homeless people in our Louisa County. This may not be something we want to admit, but it is true. There are groups that are seeking to help these families. There was a ruling that says if churches opened their doors to those who found themselves homeless, the churches could be fined. It is unconscionable to even think about imposing a fine on churches for opening their doors in the freezing cold to those who have found themselves homeless. It is bad enough that our neighbors have had problems resulting in loss of shelter. To have them risk freezing to death is savage. When did we lose our humanity? Whoever even thought to write that down or even think that we could fine a church for doing what the church is called to do, needs a “humanity check”. We need to assist as much as possible.
I believe I must be transparent and keep the people informed. We found out, after the fact, that data centers would be coming to the Mineral/Louisa area. I also noticed that zones in the town of Mineral were changing from commercial to residential to commercial on a whim. Who did this benefit? The developers. The people may not have agreed with this.
A proposal was made for a truck stop to be developed in the Cuckoo district. If it had not been for the people of Cuckoo, coming out twice in full force in the rain after their private meetings, it may have passed. A truck stop would have brought more crime to our county, in the form of drug and human trafficking along with prostitution.
Most of all, I want to hear what the people need and want so I can include them in making the best decisions for all. Many of the issues I mentioned above were shot through before the people got a chance to digest them. It is my goal to always put the people first. That means having regular communication using the best means possible to keep the people informed. Communication with my neighbors will be of the utmost importance to me.
What challenges will Mineral in particular, and Louisa County in general, face in the next three to five years? How would you address them?
Problems with our roads
Many of our roads are receiving traffic they were not built to handle. I am speaking of the eighteen-wheeler tractor trailers. These heavy trucks travel on the curving roads and chew up the road shoulders. It is hard to see around the curves so crossing the road to get to a mailbox is unsafe for our citizens, especially the elderly. Trucks also present a safety issue while traveling on these single lane narrow roads. Some roads were made for this type of traffic but there are no signs to encourage trucks to use them. This will only get worse as our population increases. Maintenance is also an issue. Strict guidelines will need to be followed to keep large trucks on the appropriate roads when driving through our locality.
There is also a need to study traffic signals at the busy intersections to keep the traffic flowing, especially around the busy hours of the day.
Problems with data centers
The present Board of Supervisors have already voted to have data centers come to our county. These centers take up a lot of resources like land, water and electrical power. This will result in brown outs and black outs because of the increased stress on our old power grids. There have been no plans to upgrade the electrical grids in the Louisa area. I am told that upgrades have not been done since the 1970’s when the power plant was built. Based on our population and current usage, the area would not be able to sustain added pull on our old system. We may have put the cart before the horse and need to take a side-step before moving forward with like projects. Truth be told, better planning could remedy this.
As mentioned, the roads will need to be upgraded to handle the heavy truck traffic during the construction of the data centers. The construction will take several years.
Keeping Louisa balanced between rural and metropolitan
I know many of the residents in Louisa have come here because they like the rural atmosphere. This is something I want to preserve and in my discussions with many of my neighbors, they feel the same way. Are we following the standards that would keep Mineral/Louisa rural? We need to revisit these standards before we become too metropolitan. Sustained growth is good, but we must do it in a way that we do not take away our rural lifestyle.
Having adequate housing to support our residents
We need to negotiate with developers to build housing that is affordable. The housing needs to be affordable for people we want to attract to our area like new teachers, just out of college, new emergency personnel, and other recent college graduates. We are already lacking in these areas.
Having businesses to support living in Mineral/Louisa
We need to attract businesses that will train and employ the people in Mineral/Louisa. Louisa County High School has many excellent programs that train our students. We need businesses to capitalize on their career training if so desired, they do not have to leave home.
Having adequate resources to keep Mineral/Louisa safe for all its residents
Louisa has a growing elderly population. We need an Urgent Care Center in the heart of Louisa (not close to the county borders) that all our county people, especially our elderly, can reach quickly. The center could have medical personnel to initiate treatment and to be able to stabilize a person in an emergency and to prepare them for transport. It could also provide preventive care and medical education. Having after-hours care would be of benefit because you know children don’t get sick until after dark.
These are just a few things. Please know that I am always open to discussion about any concerns of the people in Mineral/Louisa. I am David H. Rogers. I can be reached at rogersdh97@gmail.com.
As part of nation-wide Hands Off protests and rallies, residents of Louisa, Virginia, assembled at the Court House steps this Saturday to add their voices to a growing chorus across America, and the world, excoriating Trump’s attacks on democracy.
Organized by the Louisa County Democratic Party, the rally was one of the largest gatherings, as I understand it, in memory. The diverse and enthusiastic participants focused on wide ranging issues: Constitutional rights, Education, Healthcare, Human and Civil Rights, Immigration, Justice, LGBTQ rights, Social Security, and Veteran Services. This wasn’t a one issue rally.
Boos and Jeers for Trump
Speeches, songs, and chants filled the Court Houses front steps from noon to two. Homemade signs expressed patriotism and anger. A number of speakers derided Trump’s attacks on democracy and also on our congressional district’s representative John McGuire (R) lack of honesty and integrity in the face of constituent questions.
A song or two
A Louisa Veteran
Speakers repeatedly called to protect social security, medicare, and medicaid –which assists Americas most vulnerable populations — from being cut to fund trillions in taxes cuts for the millionaire class. Boos and catcalls followed mentions of Trump’s tariffs. One speaker addressed the serious threats to veterans and their health services because of massive layoffs and program cuts at the Department of Veterans Affairs. Trump, Musk, and McGuire the villains of the day.
A number of participants volunteered to speak to the assembled crowd. One told of his still living mom’s experiences in Nazi occupied France — she was 11 when they invaded — and her fear that America is heading towards fascism. I can relate to that as my mom and her family lived under Nazis occupation as well. She sees parallels today.
Weekly Summary of Democratic Backsliding and Erosion
Trump’s pace has slowed but the damage to liberal democracy continues to accumulate, like DDT did in Bald Eagles once. I mention the tariffs now, not because they are a backsliding of liberal democracy, but as they fail and economic chaos engulfs us, Trump will become more erratic and authoritarian thus accelerating the erosion of democratic values and norms.
I would also be wary of federal government economic data. The Departments that report the data, and offices that compile economic and labor data sets, are firmly in Trump’s hand. Any bad economic data, I fear will be subjected to Trump’s SHARPIE statistical methodology.
On the positive side, the lower courts for the most part are holding firm. There is the possibility that the judge overseeing the Venezuelan deportation case will hold the Trump administration in contempt this coming week. Stay tuned. Appeal Courts also seem leery of the constitutionality of many of Trump’s executive orders. As a reminder, written arguments for sustaining a pause on Trump’s Birthright citizenship order are due soon.
Below is this week’s summary. To see the cumulative backsliding list click the benchmark or menu link above.
Diagnosis: Critical.
Prognosis: Uncertain
Military Loyalty Tests
Trump fires General Timothy Haugh and Wendy Noble, Chief and Deputy Chief of the National Security Agency, America’s critical signals intelligence agency. As a reminder, the NSA is forbidden by law from technical eaves dropping on American citizens.
They were fired at the request of right-wing pundit Laura Loomer for not being sufficiently ‘loyal’ to Trump: Loomer posted on X they were fired for being disloyal to Trump. Trump in a statement on AF1 heading to Florida, stated people will be fired because we don’t like them or “people that may have loyalties to someone else.” As the robot in the mid-60s ‘Lost in Space’ TV used to sa, with arms flailing about: “Danger, Danger, Will Robinson.”
These firings come after the firing of several National Security Council Staff earlier in the week, also worryingly at the behest of Laura Loomer. Press reports indicate Haugh testified in a closed hearing recently and was asked about the Signal scandal.
Whether the President was angry at Haugh for not giving the party line regarding Signal is unknown but the most likely cause for the firings. Nonetheless, Trump may have been looking for a reason to fire Haugh and Noble. Not saying Trump ordered Haugh and Noble to eaves drop on American politicians and others, but that option certainly is a possibility given the rogue nature of these first months of his administration. Frankly, I ask why and how a right-wing pundit with no security clearances may have knowledge of Haugh’s closed door testimony to the Senate. And even more worrisome, why the hell is Trump having sensitive national security discussions with her.
Continued Human and Civil Rights Violations
ICE admits wrongfully detaining Maryland man, says they can’t return him to US from El Salvador prison. Calling it an “administrative error.” Worse, they say they can’t get him back. This man from Maryland — married to an American, and father of a 5-year-old autistic child — was rounded up as part of the Trump’s press event, AKA the mass deportation of Venezuelan gang members. He was deported back to El Salvador, a country he fled because of gang threats without due process.
Rise of the Government Informer Class
Vigilante surveillance of pro-Palestinian activists on university campus(es). Pro-Israeli activists are using AI facial recognition to identify and report pro -Palestinian activists/protestors to ICE for deportation, per NBC reporting. The AI facial recognition was developed for this purpose. A far-right group — Betar USA –claimed credit for one arrest, per WGBH reporting.
Acts of Cowardice Continue
In an act cowardice and self-censorship, the White House Correspondents Association cancelled comedian Amber Ruffin’s appearance at the White House Correspondent’s Dinner, stating that they had “unanimously decided we are no longer featuring a comedic performance this year.” This ends a 42-year history.
To avoid executive orders sanctioning them, several more law firms reached agreements with the White House, to include the law firm Wilkie Farr and Gallagher that Kamal Harris’s husband, Doug Emhoff, works for. They offered up $100 million in pro bono work for Trump priorities to avoid possible executive order sanctions. Through these dragnets, Trump has almost garnered a quarter billion dollars in pro bono legal work for Trump initiatives.
New Punitive Investigations
The FCC began an investigation into ABC’s DEI practices. ABC is part of Disney.
Destroying Civil Society and a blow to Labor Unions
Tens of thousands of additional federal employee layoffs announced. In addition, Trump bans federal government unions collectively bargaining ability. Agencies included in the ban are the Departments of State, Defense, Veterans Affairs, Energy, Health and Human Services, Treasury, Justice and Commerce and the part of Homeland Security responsible for border security. Police and firefighters will continue to collectively bargain. Another blow to labor unions.
Per CBS, senior officials at NIH terminated or reassigned: “Senior leaders at multiple agencies were removed, multiple health officials said, including Dr. Jeanne Marrazzo. Marrazzo replaced Dr. Anthony Fauci as the head of the National Institute of Allergy and Infectious Diseases. At the Centers for Disease Control and Prevention, senior officials put on leave and reassigned to the Indian Health Service include Dr. Karen Hacker, head of the agency’s chronic disease teams, Kayla Laserson, head of its global health center and Dr. Jonathan Mermin, director of the CDC’s STD and HIV/AIDS center.”
In a new executive order, President Trump targeted the Institute of Museum and Library Services (IMLS), the federal agency charged with distributing Congressionally approved funds to state libraries and to library, museum, and archives program grant recipients. The National Endowment for the arts was also targeted for layoffs and funding cuts.
Imagine driving down Fredericks Hall Road in the early hours heading to work, sipping coffee, a black suburban following too close for comfort. Minutes later a sheriff’s deputy car pulls in between you and the suburban, turns on his or her emergency lights. You pull over into the B&L Mart parking lot, the suburban following the deputy’s car into the lot.
Out jump agents in camouflage vests, long guns at the ready. They order you out of the car, pushing you to the ground, cuffing you, your body violated in every sense as they search you. Before you know it your whisked away in an unmarked van to a non-descript detention center. Your “Why am I being arrested?” protests ignored. Demands for a lawyers rebuffed. No Miranda warnings. Requests to make phone calls denied. Within hours a flight, then a prison in a foreign country.
At best this sounds like a screenplay for a cheap, low budget film. At worst, a nightmare. Unfortunately, it’s the latter. The Trump administration has used similar tactics repeatedly over several weeks. One Maryland man, who was in the U.S. on protected status, was grabbed from the streets, detained, denied due process, and ended up in an El Salvadoran maximum security prison. The government admitted later he was detained because of an “administrative error,” adding it was powerless to have him returned to the U.S. and his American wife and 5-year-old autistic child. Several other persons legally in the U.S. have also been individually detained, imprisoned, and marked for deportation without due process.
In a larger multi-state operation, hundreds of persons were detained and deported during arrests allegedly targeting Venezuelan gang members when Trump invoked the Alien Enemies Act of 1798. Despite a federal judge’s order to stop the deportations pending court hearings, even ordering the return of flights in progress, the government willfully ignored the order and let the deportations proceed apace, citing that some of the planes were over international waters and therefore beyond their jurisdiction to recall.
Newsfeeds showed the deportees led off the planes in shackles, moved from point to point by soldiers forcibly doubling them over, heads shaved for TV crew consumption. A chilling display of dehumanization reminiscent of Nazi deathcamps.
At the core of these detentions is the secretive nature of the arrests and reluctance and outright vexatious refusal to respond to federal judges’ orders to produce the body in court: The Writ of Habeas Corpus.
Habeas Corpus
Habeas Corpus’s roots go back to Anglo-Saxon times, evolving after the Norman Invasion in 1066, enshrined in the 39th clause of the Magna Carta in the 13th century, and in 1679, put into English law with the Habeas Corpus Act. The reason for the 1679 Act, from what I can gather from its text, is that Sheriffs and others were claiming not to have received or misplaced writs of Habeas Corpus, causing “great delayes” and “long detaining’s in Prison….to their great charge and vexation.” Sound familiar to Trump’s government lawyers?
You must put the 1679 Act within the 17th century’s context of the power politics between King and Parliament in England, eventually being settled as part of the Glorious Revolution of 1688/89 and the birth of the English Bill of Rights. One mustn’t lose one’s head over this history (a little pun off the top of my head), but it is worth recalling.
Americans thought it such a great idea they put it in our Constitution, not once by twice. It can only be suspended in cases of invasion or rebellion. The 1789 legislative act creating America’s judicial system gave federal judges the right to issue writs of Habeas Corpus but limited to federal matters. This power to issue Habeas Corpus writs was expanded after the Civil War in 1867, to include State detentions.
Rebellion
At the outset of the Civil War, President Lincoln suspended Habeas Corpus in certain regions in April 1861. After the arrest of Marylander John Merryman, who was spirited off to a military fort, Supreme Court Chief Justice Roger Taney (of Dred Scott infamy) — who also oversaw Maryland’s federal circuit court – issued a writ of Habeas Corpus, demanding Merryman be brought before a judge. Taney argued that only Congress can suspend Habeas Corpus, not the President. Lincoln refused.
Lincoln’s Proclamation 94, issued in 1862, further expanded the geographic scope of the suspension of Habeas Corpus. Congress debated the issue of whether the president or congress can suspend Habeas Corpus, as the Constitution is silent on this matter, but came to no definitive conclusion. In 1863, nonetheless, Congress passed an Act Suspending Habeas Corpus to give Lincoln’s acts legal cover. Lincoln signed the bill.
Alien Enemies Act 1798
Unfortunately, the Alien Enemies Act has been used to short circuit Habeas Corpus. The Act has several parts, it includes a declaration of war, or invasion or predatory incursion by a foreign nation or government. Only then can aliens of these invading nations be rounded up, or as the act states, “shall be liable to be apprehended, restrained, secured and removed as enemy aliens.” The west coast roundup of Japanese aliens and citizens of Japanese ancestry and their interment in prison camps during the Second World War is one example.
The round up of alleged Venezuelan gang members under the Alien Enemies Act is absurd. The gang is not a nation state, it is not part of an invading army or force, and a state of war between the U.S. and Venezuela does not exist. And by the way, only Congress can declare war.
The War Mindset
This recent short circuiting of Habeas Corpus reveals the mindset of Trump and his administration. They are at war with parts of America. And they are using war-time emergency powers such as the Alien Enemies Act to dilute and nullify the Constitution. Trump is on a war footing where no war exists, and Americans need to take notice. If you think he will stop at non-citizens or legal permanent residents, I would think long and hard about that proposition. Just as insidious are those lining up to inform on folks. Are we heading to a police state?
Think about our neighbors. Migrants live and work in our community. Their kids go to our schools. They are a vibrant part of our community and economy. They build and repair homes, own businesses such as restaurants, gas stations, construction and landscape companies. They pay taxes and shop at local stores. They have the same right to the constitutional protections that we enjoy from unreasonable search and seizure, due process, their day in court. They should not have to live in fear of disappearing from Fredricks Hall Road and ending up in an El Salvadoran maximum security prison.
Lastly, what can we do? We have agency, so talk to your representative and express your concerns. Stress the need for legislative reform. Ask them to introduce reform bills. I would start with repealing the Alien Enemies Act and clarify through legislative action who can suspend Habeas Corpus, Congress or the President. Talk to your neighbors and friends. Let them know what is going on and what is at stake.
For those on the other side of the aisle who think that Trump is doing is great, I ask you to think down the road. Restraining a president with expanded Kingly powers will be like holding a wolf by the ears. The next president may not like you. I hope your Spanish is good.
America floundered after the Revolution ended. A confederation of sovereign states jealously guarding their individual prerogatives, bickering constantly, the central government virtually powerless. The Articles of Confederation was a disaster.
In 1786 commissioners from five states met in Annapolis, ostensibly to discuss trade between the states and international trade relationships. Among the 12 in attendance were James Madison and Alexander Hamilton. They apparently did not accomplish much, but they did agree to meet the following year in Philadelphia, this time inviting commissioners from all the states. The stated purpose of the convention was not to develop a new form of government, however, that was precisely what James Madison, among several others, intended. The convention was to create a new social contract between the people and the states and save the union.
The Philadelphia Convention gathered on May 14, 1787. After waiting for more delegates to arrive they got down to business, debating and agreeing on the rules of Convention. On May 29th Edmund Randolph of Virginia “opened the main business” of the Convention. Speaking to the “crisis,” that is the failure of the Articles of Confederation, and “prophecies of the American downfall,” he proposed four objectives “to revise the federal system. We ought to “inquire 1. into the properties, which such a government ought to possess. 2. The defects of the confederation. 3. the danger of our situation& 4. The remedy.”
That ‘remedy’ has withstood the test of change since the Constitution was adopted by the States in 1789. Two hundred and thirty-six years. The Constitution was and is not perfect, in fact it was not designed to be infallible, like a religious text proclaiming the word of God. It was made by humans for humans, and they had the wisdom to recognize that things, well, change. A Bill of Rights was added early, critical amendments were enacted over the decades. Slavery was finally abolished (although after 96 years of relentless brutality), African Americans and women won the right to vote, birthright citizenship. It is the social contract that endures and keeps us bound to one another. It’s what makes us American.
That remedy, that social contract, our Constitution is at risk. Day after day the current administration attacks America’s social contract. Executive orders rain down like hail stones, crushing the tender plants in our garden of democracy. If anything, they are messages to his base, a veneer of action, but they are also projecting the America he wants and the social contract he envisions. It isn’t a pretty one.
What happens when his attempts at changing the Constitution through fiat fails. The Supreme Court says, “no.” What then? I doubt he will retreat; he will fight. One way to fight is to organize a new constitutional convention, a new remedy, a new social contract. Can you imagine Georgia’s delegate being Marjorie Taylor Greene?
Will our most cherished rights disappear into the ether? Replaced by an authoritarian social contract? Emojis of flags and flames and fists. If the convention meets and writes a new constitution, I suspect It will fundamentally alter our relationship to the government, and not in a good way.
If Trump’s executive orders are a guide, a new social contract will eschew separation of powers, in its place a powerful executive, with unlimited terms. King like. Gone will be an independent judiciary, replaced by a Supreme Court appointed by the President, serving at his will. Gone will be the House of Representatives and a Senate, replaced by a unicameral body elected by state representatives, a rubber stamp affair. A state religion declared. A Christian religious test to hold office. Separate but equal codified.
Don’t forget about The Bill of Rights and all amendments that will be nullified. Do you see them offering robust press freedoms? Protecting you from unreasonable searches and seizures.? What about jury trial, or right to counsel. Do you see that being in the new social contract? I see the curtailment of rights, women’s right in particular. Same sex marriage banned, access to contraception gone (Recall Justice Thomas’ call for cases), homosexuality criminalized. The list of rights rescinded would go on and on. It wouldn’t be a positivist social contact it would be negativist one, restricting rights not establishing rights. It won’t be a mixed government of the one, the few, the many. It will be the one. Is that an America you can live in?
That’s the social contract I see down the road if people stay at home, keep their heads down, and give in to Trumpian chaos and mayhem. Yes, reform is needed to get money out of the campaigns, stopping politicians from enriching themselves, keep the oligarchs from buying elections like Musk is now trying to buy the Wisconsin Supreme Court race, but a new federal system that gives up on democracy – the many — is not the ‘remedy.’ This new Trumpian social contract would be the opposite of reform, it would turn America not back to 1954 or 1859, or to 1789. It would transform America into an autocracy of one man rule..
This weekend, May 5th, there will be a rally at the Louisa Courthouse from noon to two. Come have your voices heard. Celebrate the 238th anniversary of the start of the Constitutional Convention in Philadelphia.
Below is a response to an email I received from Virginia’s 5th Congressional District Representative John McGuire. It was written in response to a letter or email I sent to him. I am appreciative and grateful for his response. I expected it would be one of those form letters, pandering and short on substance.
To my delight it was long, specific, and expressed his world view and take on recent controversial actions by the Trump administration, in particular the alleged unlawful deportation of hundreds of alleged Venezuelan gang members to El Salvador’s maximum security prison. To my dismay, it demonstrates a fundamental break in who is and who is not entitled to basic constitutional rights.
The letter below is my response. I will mail him a hard copy.
Dear Mr. McGuire:
Thank you for your email dated March 28, regarding the recent deportation of hundreds of Venezuelans alleged to belong to a criminal gang to an El Salvadoran maximum security prison. I appreciate your candor and directly addressing my concerns. However, I would like you to consider some of my observations regarding your response. They are based on my 29 years of federal law enforcement experiences.
In your letter you stated that “Law enforcement spent weeks drafting the list of deportees to make sure all were connected to the violent Venezuelan Tren de Aragua gang.” Adding, that if some were mistakenly identified as a gang member, it really didn’t matter because they were in the country illegally: “I am aware there has been some discourse surrounding whether all those deported were connected to Tren de Aragua. I have full faith in our law enforcement, but on the rare chance that some of those who were deported happen to not be gang members they were still here illegally and therefore have committed a crime.”
I would rather have 150 guilty men go free than imprison 50 innocent men. It is cruel to send someone who would maybe get six months in a U.S. minimum security prison, than an indefinite stay at a high risk maximum security prison in El Salvador. Cruel and unusual punishment don’t you think?
What you didn’t mention is that despite a Federal District judges order to stop the deportations and return the flights pending hearings for the deportees, the government deported them anyway. Claiming they were over ‘international waters.’ How could this be if they were over the Gulf of America?
I believe your claim that you venerate our Constitution, but you seem unaware that our great Constitution has a Habeas Corpus clause. That is the government must produce “the body” in a court so that the defendant has a right to challenge the charges and their detention. Basically, that their arrest and confinement were legal. This fundamental legal concept goes all the way back to the Magna Carta. That is an 850-year-old tradition bequeathed to us by the British. And Trump throws it out like yesterday’s trash. The Judge’s order to stop the deportation was basically a Writ of Habeas Corpus in name and spirit.
I think we can both agree with the proposition that all inhabitants of the United States, regardless of citizenship or immigrant status have the following basic, fundamental human rights we cherish as a nation:
The presumption of innocence
To be secure from unreasonable searches and seizures (an arrest is a seizure)
The right to counsel
Right to a speedy and public trial
Not to be deprived of life, liberty, property, without due process of law
Not subjected to cruel and unusual punishment
The Venezuelans, it appears, were denied every one of these rights enumerated above. I am curious then, why you think these rights do not apply to them?
The arrests and deportations of these Venezuelans is the exact opposite of how our judicial system is supposed to work. The law enforcement agency making the arrests – the ones you have ‘full faith in’ – are not the prosecutor or the judge or the jury. Our system is designed to be adversarial, where the government must present evidence, to either a grand jury or magistrate before an arrest is made; or, after a warrantless arrest brought before a judge, and in the end convince a jury.
Even the basic right to challenge the government’s assertions of either criminality or being in the country illegally, was denied the Venezuelans, it appears. From what I can gather, the government presented no evidence. The court decides whether their detention is legal not ICE or you or Trump. I can see the discussion now: Judge, “What proof do you have that the defendant is a gang member?” Agent: “He has gang tattoos.” Judge: “WTF! Get out of my Court.” And it goes downhill from there.
Tattoos? That would be like rounding up everyone who was near Capitol Hill on January 6 wearing a red MAGA hat and deporting them to Guantanamo without due process. Don’t you think?
Spuriously invoking and using the Alien Enemies Act of 1798, the government denied their rights, disappearing them: No due process, no right to counsel, no hearing before a judge, sent to prison in El Salvador without trial for indefinite detention. That should scare the crap out of everyone. Then, to top off this charade of justice, DHS Secretary Noem shows up in El Salvador for a photo opportunity. Thank God there were not gravel pits nearby.
I know I can be pedantic about American history, but did you know that the Alien Enemies Act can only be invoked after a declaration of war? I really, really, really, hope you are aware that only Congress has the constitutional and legal prerogative to declare war. The President’s use of the Alien Enemies Act was therefore illegal, extra-Constitutional.
You and I both swore an oath to preserve and protect the Constitution. I did my best to uphold that oath and I expect you to faithfully execute that oath for the people of Virginia’s 5th Congressional District. It’s your duty to challenge these trespasses and gross injustices by Trump, not excuse them.
Listen, I am not against deporting criminal aliens and believe in protecting our borders. One of the last cases I oversaw resulted in a child sex trafficker getting 25 years in federal prison. But let me ask you this, why protect our borders when a sitting president destroys the country from within by attacking the fundamental rights we agree are essential to this great country’s democracy? When police ‘gather lists’ at the direction of political leaders we are in dangerous territory. Whatever you think ails this country, strangling democracy to save it is not the right answer.
Thank you and I look forward to our continued dialog.
Weekly Summary of Key Benchmarks of Democratic Backsliding and Erosion
What a week. Trump continued his assault on the 6th Amendment, the right to counsel, and the 1st Amendment through executive action targeting law firms. It has become a pattern, no a policy, of this administration to threaten, extort, strong arm law firms it considers “vexatious” by executive order. A modern day version of Bills of Attainder.
According to NBC, Trump issued a new memorandum March 22 titled “Preventing the Abuses of the Legal System and the Federal Court.” The memo gives AG Bondi the power to revoke security clearances of attorneys and terminate federal contracts of law firms if she deems their lawsuits against the administration are “unreasonable” or “vexatious.”
Also this week, Trump signed an executive order against the law firm Jenner and Block, a law firm with clients litigating Trump administration actions. The law firm also has some connection to Robert Muller.
In a disappointing move, one targeted law firm capitulated to Trump. The law firm Paul Weiss, Rifkind, Wharton & Garrison LLP bowed to Trump at a White House meeting following a Trump Executive Order targeting the law firm’s business. They admitted wrongdoing of a former partner who left the law firm in 2021 to work the New York City’s District Attorney’s Office which prosecuted Trump’s Porn Star payoff case; offered $40 million in free pro bono legal work supporting Trump administration initiatives; change their DEI hiring practices. Who would want to hire a law firm like that?
Trump continued to use police powers to violate the 1st Amendment right to dissent and assembly, focusing on foreign nationals legally in the U.S. A Tufts University PhD candidate of Turkish origin was arrested by ICE in an undercover takedown usually reserved for drug dealers. A federal judge ordered that the detainee remain in Massachusetts pending court hearings. In a bold and illegal subversion of Habeas Corpus, ICE engaged in a game of find-and-seek and the detainee ended up in a detention facility in Louisiana. I can’t imagine the terror and fear this woman must feel at this nightmare unfolds. This flagrant attack on the judicial system is a pattern of this administration. The slow slide in to authoritarian rule is in full expression this week.
Secretary of State Marco Rubio, a second generation Cuban-American whose grandfather fled Fidel Castro’s regime, announced that over 300 student visas had been revoked for students engaging in political activism, who he labeled “lunatics.” How sad that it only took one generation to turn from asylum seeker to despot.
For a detailed cumulative list of benchmarks charting our country’s slide into despotism please click the ‘Benchmark’ link above.
Let me know how I am doing. Leave a like or a comment. Thanks.
By now most folks have heard of Signalgate, the scandal that involves Trump’s national security team using a commercial, unsecured app to engage in a group chat to discuss attacks on Houthis in Yemen. The texts in addition to disclosing an imminent attack on Houthi targets also included internal White House policy debates, whether to postpone the attacks, and how to make “Europe” pay America for keeping shipping lanes open, and reflections on ‘deadbeat’ European. Later in the texts, the ‘order of battle’ for the attacks on Houthi targets and battle damage assessments was provided. What has not been published is the name of an “active CIA intelligence officer” named by the CIA Director during the chat.
The White House claims the information discussed was unclassified. The democrats roll their eyes and say it was classified. I don’t want to focus on the classified unclassified debate or the hypocrisy of the law and order rightwing. To me the worst part of the group chat has nothing to do with the obvious classified nature of the information disclosed by the posse incompetente. It’s what the texts reveal about Trump, our national security priorities, and his judgment in selecting his national security team.
First, the choice to use Signal was a conspicuous display of their sloppy amateurism. It explains why the Russians are running circles around Trump’s peace negotiating team. Second, this motely group appears afraid to speak their minds to the boss. That’s their core job, providing timely, frank, and honest advice. It never ends well for Kings who have feckless and clueless advisors. Third, it is clear our national security policy has nothing to do with America’s security but Trump’s personal vendettas, punishing those who trespassed against him. Fourth, Trump is the personification of Captain Ahab but with nukes. Europe his white whale, the “Tariff” his whaling ship.
I was shocked at the sophomoric reactions to the serious life and death ramifications of their actions. Instead of somber reflection that innocents died in that collapsed building – along with a bad guy – they send childish celebratory emojis texts. When someone’ killed I always think, “what a better time than now to send a string of jingoistic emojis.” They have the emotional intelligence of rocks.
Damning as well, is that hours before our men and women flew into harm’s way, they recklessly telegraphed the attack to our adversaries, who, most likely have compromised Signal. Did they not think to protect our men and women? Their gross dereliction of duty betrayed the life and safety or these men and women. A dishonorable sin in my eyes. They must resign.
The Department of Justice must open a preliminary inquiry whether any laws were broken by members of Trump’s national security team. Mike Walz and Pete Hegseth must resign. Sadly, my prediction is that Trump will use this incident to further his relentless attacks on a free press. Trump will counterpunch with ordering Justice to open an investigation, but the target will be “The Atlantic” and the journalist who was the “accidental” invitee, a guest of Mr. Walz.
