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Judge contends Nazis got more due process than Trump deportees did
In this handout photo provided by the Salvadoran government, members of the Salvadorian army stand guard at CECOT on March 16, 2025 in Tecoluca, El Salvador. The Trump administration deported alleged members of Tren de Aragua gang and others to El Salvador.
Handout/Salvadoran government via Getty Images
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Handout/Salvadoran government via Getty Images
The Trump administration received pointed questions from a judge over how it’s implementing a rarely-used wartime law to deport Venezuelans suspected of being Tren de Aragua gang members.
A president last invoked the Alien Enemies Act after the attack on Pearl Harbor, designating Japanese, German and Italian nationals as “alien enemies” during World War II.
“Nazis got better treatment under the Alien Enemies Act than what has happened here,” D.C. Circuit Court of Appeals Judge Patricia Millett said during a hearing at the court on Monday. “And they had hearing boards before they were removed.”
“People weren’t given notice, they weren’t told where they were going,” she said about the removal of Venezuelans and others to El Salvador earlier this month.
Lawyers with the Justice Department are asking the appeals court in Washington to overturn a temporary restraining order blocking deportations under the act put in place by district court Judge James Boasberg. A ruling to lift the temporary pause on deportations, or keep it in place, is likely to prompt an appeal to the U.S. Supreme Court.
The fight over the rarely used wartime power has become central to Trump’s immigration crackdown agenda and his efforts to stretch the power of the executive branch.
The panel of three judges did not deliver a decision from the bench but could do so in the coming days.
Judge Millett appeared sympathetic to the arguments of immigrants rights groups who sought to block immediate deportations, but it is unclear which way Judge Karen Henderson, a George W. Bush appointee, was leaning.
According to court documents, if the judge lifts the pause, some 258 people would likely be placed in removal proceedings under the Alien Enemies Act for being alleged members of Tren de Aragua.
DOJ says pause was “enormous intrusion” on president’s power
Justice Department lawyers argued that Boasberg’s order to pause removals under the act is an “unprecedented and enormous intrusion” on the president’s power and that this type of “second-guessing” could potentially hurt the United States’ current and future deals with other countries. The U.S. has negotiated with El Salvador and other countries to take in deportees.
Drew Ensign, the government attorney leading the case, received pointed questions about how it could work for people detained or even removed under the Alien Enemies Act to bring up individual petitions to contest allegations they are members of the Tren de Aragua, a Venezuelan gang.
“The problem here is that they are challenging implementation of the proclamation in a way that never gave anyone a chance to say, ‘I’m not covered,” Millett, an appointee of former President Barack Obama, said. She said prior cases clearly show the government needs to give people that due process.
Due process “can’t be an unlawful intrusion of the president’s powers. The president has to comply with the constitution and laws like everybody else,” she said.
Judge Justin Walker, who was appointed by Trump in 2020, was sympathetic to the government’s argument that those who are currently detained under the Alien Enemies Act should contest their arrests through a habeas petition, which is how someone can legally argue they are being unlawfully detained.
Walker suggested that the plaintiffs, represented by the American Civil Liberties Union and Democracy Forward, should have filed in Texas as opposed to in D.C. The five Venezuelan plaintiffs that first filed the lawsuit are held in Texas, even though their lawyers argued that they now are also representing hundreds of people potentially subject to the act nationwide.
Still, Ensign said that should the judges side with the government and lift the pause on deportations, the government would not have a limitation and not be required to provide notice for those deported under the Alien Enemies Act.
Lower DC court keeps pause on deportations in place
Earlier in the day, Boasberg issued an order to keep in place his 14-day pause on the administration’s ability to deport anyone under the act.
Boasberg denied the government’s attempt to vacate his temporary restraining order, noting that immigrant rights groups were likely to win the argument in court that the men deported to El Salvador should have gotten individualized hearings to determine whether the act applied to them.
“Because the named Plaintiffs dispute that they are members of Tren de Aragua, they may not be deported until a court has been able to decide the merits of their challenge,” Boasberg wrote in his order. “Nor may any members of the provisionally certified class be removed until they have been given the opportunity to challenge their designations as well.”
Boasberg said the pause on the flights does not prevent the government from making arrests, or even deporting those it suspects of being members of Tren de Aragua.
He gave the immigrant rights groups until Wednesday to file a preliminary injunction, which could pave the way for an even longer court-ordered pause on the use of the wartime powers.
Boasberg also direct Trump’s cabinet secretaries to decide by Tuesday whether they were going to invoke a privilege that would allow them to not disclose information about the deportation flights.
Boasberg and the DOJ went back and forth over whether the administration ignored the judge’s order to not use the act to send 137 Venezuelans to El Salvador on March 15.
Federal prosecutors have filed charges against a former Army serviceman they accused of distributing instructions on how to build explosives that were used by a man who conducted a deadly attack in New Orleans on New Year’s Day last year.
The former serviceman, Jordan A. Derrick, a 40-year-old from Missouri, was charged with one count of engaging in the business of manufacturing explosive materials without a license; one count of unlawful possession of an unregistered destructive device; and one count of distributing information relating to manufacturing explosives, according to a criminal complaint unsealed on Wednesday. The three charges together carry a maximum sentence of 40 years in federal prison.
Starting in September 2023, the authorities said, Mr. Derrick was using various social media sites to share videos of himself making explosive materials, including detonators. His videos provided step-by-step instructions, and he often engaged with viewers in comments, sometimes answering their questions about the chemistry behind the explosives.
The authorities said that Mr. Derrick’s videos were downloaded by Shamsud-Din Bahar Jabbar, 42, who was accused of ramming a pickup truck into a crowd on Bourbon Street in New Orleans on Jan. 1, 2025, in a terrorist attack that killed 14 people and injured dozens. Mr. Jabbar was killed in a shootout with the police. Before the attack, Mr. Jabbar had placed two explosives on Bourbon Street, the authorities said, but they did not detonate.
The authorities later recovered two laptops and a USB drive in a house that Mr. Jabbar had rented. The USB drive contained several videos created by Mr. Derrick that provided instructions on making explosives. The authorities said the explosives they recovered were consistent with the ones Mr. Derrick had posted about.
Mr. Derrick’s lawyers did not respond to requests for comment.
Mr. Derrick was a combat engineer in the Army, where he provided personnel and vehicle support, the authorities said. He also helped supervise safety personnel during demolitions and various operations. He was honorably discharged in February 2013.
The authorities did not say whether Mr. Derrick had any communication with Mr. Jabbar, or whether the men had known each other. In some of Mr. Derrick’s videos and comments, he indicated that he was aware that his videos could be misused.
“There are a plethora of uh, moral, you know, entanglements with topics, any topic of teaching explosives, right?” he asked in one video, according to the affidavit. “Of course, the wrong people could get it.”
The authorities also said that an explosion occurred at a private residence in Odessa, Mo., on May 4, and the occupant of the residence told investigators that he had manufactured explosives after watching online tutorials from Mr. Derrick.
Mr. Derrick’s YouTube account had more than 15,000 subscribers and 20 published videos, the affidavit said. He had also posted content on other platforms, including Odysee and Patreon. Some videos were accessible to the public for free, while others required a paid subscription to view.
“My responsibility to my countrymen is to make sure that I serve the function of the Second Amendment to strengthen it,” Mr. Derrick said in one of his videos, according to the affidavit. “This is how I serve my country for real.”
Outside of the income he received through content creation, Mr. Derrick did not have any known employment. He did receive a monthly disability check from Veterans Affairs, the affidavit stated.
A streamer known for hurling racist slurs in public settings under the nickname “Chud the Builder” was charged with attempted murder after a shooting outside a Tennessee courthouse on Wednesday, the authorities said.
The streamer, Dalton Eatherly, 28, was involved in a confrontation with an unidentified man that escalated to gunfire outside the Montgomery County Court in Clarksville, about 50 miles northwest of Nashville, the Montgomery County Sheriff’s Office said in a statement. Both men sustained gunshot wounds and were in stable condition, the office said.
In addition to attempted murder, Mr. Eatherly was charged with employing a firearm during dangerous felony, aggravated assault and reckless endangerment with a deadly weapon, the sheriff’s office said.
Mr. Eatherly, who is white, has accumulated an online audience by livestreaming confrontations in which he uses racist language toward Black people in public.
Law enforcement did not provide any details about the second man involved in Wednesday’s shooting. Mr. Eatherly posted an audio recording online of paramedics treating his wounds in which he claims he shot the man in self-defense.
A video posted by the website Clarksville Now shows Mr. Eatherly on a stretcher with a microphone attached to his lapel.
Mr. Eatherly is being held at the Montgomery County Jail, pending arraignment, the sheriff’s office said.
According to court records, Mr. Eatherly was scheduled to appear for a court hearing on Wednesday morning in an unrelated case brought by Midland Credit Management, a collections agency.
A lawyer listed in court records from a separate harassment case in which Mr. Eatherly was a defendant in November did not respond to a request for comment.
On Sunday, three days before the shooting in Clarksville, Mr. Eatherly was arrested in Nashville. According to a police affidavit, Mr. Eatherly live streamed his meal at a restaurant, Bob’s Steak and Chop House, on Saturday even though the restaurant had asked him ahead of time not to do so.
When he was confronted, Mr. Eatherly “became disruptive and started making racial statements, yelling, screaming and otherwise creating a scene,” according to the affidavit.
He then refused to pay for his $370 meal. Mr. Eatherly was charged with theft of services, disorderly conduct and resisting arrest. He was released on $5,000 bond.
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