Major Ruling Offers Due Process to Alien Enemies Act Detainees

A lot of things happened. Here are some of the things. This is TPM’s Morning Memo. Morning Memo Live! Join me Jan. 29 in Washington, D.C., for our first Morning Memo Live event . I’ll be moderating a panel discussion on the politicization of the Justice Department, featuring: , a former 18-year DOJ veteran who is the founder and executive director of Justice Connection, a network of DOJ alumni providing support to current and recent DOJ employees; Stacey Young , a former assistant U.S. attorney in Maryland who served on Special Counsel Robert Mueller’s team, where he prosecuted Roger Stone, and who is now a partner at Zuckerman Spaeder in Baltimore; and Aaron Zelinsky , a senior editor at Anna Bower Lawfare who covers rule of law issues and fields wacky Signal messages from Lindsey Halligan. =================================================== With New Facts, Boasberg Changes His Mind In the constitutional clash over President Trump’s unprecedented peacetime invocation of the Alien Enemies Act, U.S. District Judge James Boasberg has ruled that the Venezuelan nationals shipped off to El Salvador’s CECOT facility can challenge their designations as alien enemies even though they’ve been released to their home country and are no longer in custody. In an accompanying order , Boasberg gave the Trump administration until Jan. 5 to come up with a proposed plan to “facilitate the return” of the former AEA detainees to the United States or to provide them with presumably remote hearings that give them the due process they were denied when they were summarily deported in March without notice or a chance to challenge their designations as alien enemies. While Boasberg also certified the former detainees case as a class action lawsuit, the real meat of his decision was a reversal of his own prior decision in the case over the summer. In light of the many significant new facts that have emerged, Boasberg reversed course and concluded that the detainees were in the constructive custody of the United States while they were being held at CECOT in El Salvador. Boasberg had previously denied them habeas relief because of a lack of constructive custody, but found a separate legal avenue in equity that entitled them to pursue their denial of due process claims. This time, Boasberg found both avenues available to them. Of the two, the habeas path is probably the stronger option and is more readily defensible on appeal. What changed Boasberg’s mind were the numerous revelations that have occurred since he first confronted the issue, among them: “statements by El Salvadoran officials, whistleblower statements by Government officials, public statements by top U.S. officials, and even clear evidence of a U.S.-Venezuelan prisoner swap.” “All in all, the undisputed factual record indicates that the United States and El Salvador have behaved as principal and agent in the detention and subsequent release of Plaintiffs,” Boasberg ruled, pointing to “three takeaways” from the new evidence: “El Salvador acted at the behest of the United States”; “it was indifferent to Plaintiffs’ detention outside of...

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