By Laila Khan & Lauren Harper
On March 15, 2025, President Trump issued a proclamation invoking the Alien Enemies Act (AEA) against members of Venezuelan gang Tren de Aragua (TdA). The AEA is a 236-year old wartime authority that allows the President to detain and deport citizens of a foreign nation that is at war with or has invaded the United States. Pursuant to this proclamation, the Trump administration sent over 100 Venezuelan migrants to a Salvadoran prison without giving them a chance to challenge the allegations that they are TdA members– though little evidence exists to corroborate those allegations. The administration also sent over 100 other people there because they had removal orders, not solely because the AEA was invoked against them, but it appears the government alleges, without having provided evidence, that they too are members of TdA. However, a newly declassified memo obtained through the Freedom of Information Act (FOIA) by the Freedom of the Press Foundation undermines some of the key assumptions President Trump presented in justifying the invocation of the AEA.
Specifically, the AEA grants the President powers to detain and deport “natives, citizens, denizens, or subjects” of a “hostile nation or government” if there is a war declared between the United States and a foreign government, or if a foreign government attempts or undertakes an “invasion” or “predatory incursion” against the United States. Before this year, the AEA had only been invoked three times in American history, in connection with the War of 1812, World War I, and World War II. In departure from past practice of using the law in times of war, the March 15 executive order invoked the AEA to remove Venezuelan nationals over the age of 14 who are alleged members of the transnational criminal organization, Tren de Aragua, and who are “not actually naturalized or lawful permanent residents of the United States.”
Because invocation of the AEA necessitates a war with “any foreign nation or government,” or a foreign invasion or predatory incursion “by any foreign nation or government,” a link to a foreign government is needed to justify its use. In its most recent invocation, President Trump claimed that TdA, is “undertaking hostile actions and conducting irregular warfare against the territory of the United States both directly and at the direction, clandestine or otherwise, of the Maduro regime in Venezuela.” To further justify the invocation, the order claims that “evidence irrefutably demonstrate that TdA has invaded the United States and continues to invade, attempt to invade, and threaten to invade the country.” Shortly after, several organizations sued the administration to prevent the AEA invocation from taking effect, but the United States quickly transported more than 200 alleged TdA members to a notorious Salvadorian mega-prison, the Terrorism Confinement Center (CECOT), that same day. Because the government disappeared these individuals without ever proving their TdA membership in any court, it has never provided proof that it properly identified them as TdA members. Many individuals sent to CECOT have no known connection to TdA other than unsubstantiated allegations U.S. Immigration & Customs Enforcement (ICE) has made.
Shortly after Trump’s March 15 invocation of the AEA, both The New York Times and The Washington Post reported on the existence of intelligence community assessments showing that most of the 18 agencies that comprise the intelligence community did not believe TdA was coordinating with the Venezuelan government.
Following the reporting, Director of National Intelligence Tulsi Gabbard said the leaks of information that contradicted the administration’s claims endangered national security. Gabbard went further, asking Attorney General Pam Bondi to open multiple criminal investigations into the “deep state criminals” who leaked the information.
Despite the claims of damage to national security, DNI Gabbard’s National Intelligence Council almost immediately declassified the same information in response to the FOIA request filed by Freedom of the Press Foundation.
The partially redacted “sense of the community” memo compiled by the National Intelligence Council states that “while Venezuela’s permissive environment enables TdA to operate, the Maduro regime probably does not have a policy of cooperating with TdA and is not directing TdA movement to and operations in the United States.” While the documents suggest that certain Venezuelan officials hold ties to gang members, the gang and the Venezuelan government are more likely to be rivals. The finding ultimately contradicts the key assertion in the AEA proclamation that the Maduro administration controls TdA.
A week after the document’s disclosure, Gabbard fired the top two senior officials at the National Intelligence Council; the DNI’s FOIA page has also been stripped of many of its resources, and it no longer contains its library of FOIA-released documents or its FOIA regulations.
The invocation of the AEA, and the flying of people to a Salvadoran prison where they are held incommunicado, possibly for life, have instilled fear among hundreds of others detained by ICE. Numerous cases have been filed in federal courts across the country to prevent even more disappearances. For example, in a joint habeas petition filed by the the American Immigration Council and the American Civil Liberties Union (ACLU), Y.A.P.A. v. Trump, No. 4:25-cv-144 (M.D. Ga.), the petitioner, Y.A.P.A (who requested to use his initials to protect his safety) fears disappearance to El Salvador without due process under the AEA. Y.A.P.A came to the United States from Venezuela in 2022 to seek asylum, but while his asylum proceedings were pending ICE arrested him in February 2025 based on an allegation that he is a “known associate” of TdA. ICE provided no evidence regarding the allegations and has since stated in federal court that the agency “reviewed the facts of [Y.A.P.A.’s] case to assess his membership in Tren de Aragua,” and “his membership could not be validated at that time.” But Y.A.P.A. remains detained at Stewart Detention Center in Lumpkin, Georgia based on ICE’s prior TdA allegations.
As hundreds of migrants are stripped of due process and summarily deported to third countries, and as hundreds of others wait in fear of a similar fate, FOIA is a powerful tool to question the administration’s actions and ensure that documents like these come to light.
