Last month a federal court of appeals judge made a startling assertion. “Nazis,” she said, “got better treatment under the Alien Enemies Act” than people suspected of being members of a Venezuelan gang.
You might think those words, spoken by Judge Patricia Millett, who sits on the U.S. Court of Appeals for the D.C. Circuit, are hyperbolic, an example of shamefully politicized language coming from a partisan judge. But they are not.
At the height of World War II, when the United States was in greater mortal danger than at any other time since the Civil War, America respected the due process rights of people suspected of being Nazis more than it has recently respected the rights of people accused of being members of the Venezuelan gang Tren de Aragua — an extremely violent criminal group that nonetheless poses no threat to American national security remotely comparable to the threat posed by Nazi Germany.
President Franklin D. Roosevelt invoked the Alien Enemies Act in the hours after the Japanese attacked Pearl Harbor on Dec. 7, 1941, and by Dec. 20, he’d established Alien Enemy Boards in 22 districts across the country that were designed to determine whether aliens in U.S. custody should be released, paroled or interned during wartime.
Nazi saboteurs who were captured attempting to infiltrate the United States in 1942 to carry out attacks were given a trial by military commission before the United States punished them for violating the laws of war.
Whereas those accused of being Nazis had an opportunity to plead their case before a board, those accused of being members of Tren de Aragua were given no opportunity to contest their status as enemy aliens before they were rounded up and shipped to an El Salvadoran prison, where we saw images of them walking in a line, heads shaved.
Oh, and a number of those who were rounded up don’t seem to be members of the gang at all. A Reuters review of 50 of the deportees found that at least 27 had pending asylum cases in the United States. At least one of those shipped to El Salvador was legally present in this country, and that is just the one that the U.S. government has admitted was swept up in an “administrative error.”
All of the deportees are now suffering in prison conditions that, if they were found stateside, would violate the Eighth Amendment of the Constitution.
How did the administration respond after this judicial rebuke, much less to its own malicious incompetence? By attacking the very idea that people suspected of being gang members should receive due process.
Stephen Miller, one of the president’s most influential advisers, posted on X, “Dear marxist judges, If an illegal alien criminal breaks into our country the only ‘process’ he is entitled to is deportation.” In a Fox News interview, Vice President JD Vance said, “We do not ask permission from far-left Democrats before we deport illegal immigrants. We do the American people’s business.”
These assertions, of course, raise the question: How do they know if someone is an “illegal alien” absent due process?
The defense of civil liberties is hard even under the best of circumstances. Thousands of years of human history tell us that we are not naturally inclined to protect the rights of our opponents, much less the rights of people we believe to be violent and dangerous.
That’s why the defense of the Bill of Rights requires both practical and moral arguments. The practical defense is often the most effective: Protect the rights of others that you would like to exercise yourself. After all, one day you might not be in control.
This argument often works most effectively in the defense of free speech. We’re accustomed to changes in political control. We know (or should know) that every power given to Republicans will accrue to Democrats when they take over, and vice versa.
Due process is different. No American right requires an underlying moral commitment to justice more than the right to due process. Very few American voters actually fear a knock on their door in the middle of the night. I’ve never met an American, outside of those from the most vulnerable and marginalized communities, who fears random arrest and indefinite detention.
For most Americans, “Defend due process or you’re next” is not a credible argument.
Instead, the best arguments for due process transcend self-interest. They’re aimed straight at the inherent dignity and worth of every human being. They appeal directly to the idea that each of us is made in the image of God — that each of us is endowed with unalienable rights.
Let me share a story about my service in Iraq I first told many years ago, which will illustrate my point.
When I read Judge Millett’s words about Nazis, I immediately thought, “I can go further than that.” We gave more due process rights to people accused of being members of Al Qaeda in Iraq than we’re giving to people suspected of being gang members at home.
I’m not here to defend all of our conduct during Operation Iraqi Freedom. The atrocities in Abu Ghraib were inexcusable. There were many other incidents of abuse. But in my unit when I deployed during the surge, more than three years after the Abu Ghraib scandal broke, our instructions were clear: Detainees were to be treated with dignity, and that meant due process.
In fact, the first words my regimental commander said to me were blunt and direct: “Captain French, you have one job. Make sure we don’t screw up with detainees,” only he used a word more graphic than “screw.” He was holding me, he said, personally responsible for the treatment of prisoners in our control.
One night in January 2008, that commitment was put to the test. We were in the middle of Operation Raider Harvest, an attack on a Qaeda stronghold in Diyala Province in eastern Iraq. A neighboring unit had just lost six soldiers to an explosion in a booby-trapped house. We were all on edge.
We had already captured a number of people thought to be terrorists, and virtually all of the detentions were easily justified. Either they surrendered on the battlefield or the intelligence justifying their capture was solid. But this particular night the story was different.
Our troopers brought in a man they had hauled out of a minivan minutes before. His vehicle matched the description of a vehicle on our BOLO (be on the lookout) list, and he had multiple ID cards. But I took a close look at the evidence, and I knew immediately that we should let him go.
I wasn’t the only one. A young sergeant came up to me and said, “Sir, I don’t think he’s bad.”
We were looking for a silver Honda van. The detainee was driving a Hyundai. The multiple IDs weren’t of multiple identities but rather different forms of the same identification. He had a national ID card, a driver’s license and an expired driver’s license. There was no gunpowder residue on his hands. He had no weapons.
My squadron commander agreed with the sergeant and me. “Let him go,” he ordered. And we did. But we did better than that; we gave him his van back and gave him a tank escort home.
As he rolled out, though, a soldier turned to me and voiced our shared fear. “It sure would suck if he actually turned out to be bad and we let him go.” Yes, I thought, it would. It could be worse than that. One of the men escorting him home could die at his hands.
“We’re not God,” I responded. “I can’t look into his heart and know the truth, so we have to go by evidence. The evidence makes the decision for us. Was there enough evidence to hold him?”
“No, sir,” he replied.
Due process doesn’t just protect a person’s liberty and dignity. It’s a humble acknowledgment of our own limitations. As I told the soldier who questioned me, “We can’t trust any person’s judgment completely, no matter how good their instincts or how good their intentions.”
“Makes sense,” he responded, and that was that. The conversation was easy not because of the difference in our rank but because of our common moral commitments.
If you read the Constitution closely, you’ll note that our national commitment to due process — so vital that it’s mentioned twice, in the Fifth and 14th Amendments — applies not only to “citizens” but to “persons.” That’s because each person is endowed with unalienable rights, not just each citizen. It’s our status as human beings that grants us this dignity.
I think often about that night and that conversation. I wonder how long we can maintain a shared ethos when the nation’s dominant political movement, now in control of the federal government, is attacking our core values.
The Trump administration is urging Americans to give in to their basest desires. It scorns the moral arguments that built the Constitution. If its assault on the American system is allowed to continue, that system will be destroyed — and once destroyed, it will not be easy to rebuild.
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