AMY GOODMAN: This is Democracy Now!, democracynow.org, The War and Peace Report. I’m Amy Goodman.

We turn to look more at President Trump invoking the Alien Enemies Act of 1798 for the first time since World War II. On Saturday, Trump used the order to deport 137 Venezuelan immigrants to El Salvador, claiming they were all members of Tren de Aragua, a gang which Trump has labeled a terrorist organization.

The deportation flights came despite a temporary restraining order from U.S. District Judge James Boasberg, who said, quote, “Any plane containing these folks that is going to take off or is in the air needs to be returned to the United States. Those people need to be returned to the United States,” he said.

But the Trump administration appeared to ignore the order and allowed the planes to continue to El Salvador. Salvadoran President Nayib Bukele, a Trump ally, tweeted, “Oopsie… Too late.” The comment was then retweeted by U.S. Secretary of State Marco Rubio and the White House communications director Steven Cheung.

White House Press Secretary Karoline Leavitt said, quote, “A single judge in a single city cannot direct the movements of an aircraft … full of foreign alien terrorists who were physically expelled from US soil,” she said.

We’re joined now by Lee Gelernt, deputy director of the ACLU Immigrants’ Rights Project. On Saturday, he argued the motion that led to the temporary restraining order blocking the Trump administration from removing the immigrants from the U.S. using the Alien Enemies Act.

Can you respond what the Trump administration said, that this judge doesn’t have the right to stop these people from being deported?

LEE GELERNT: Yeah, sure. Thanks for having me again.

This is a very, very dangerous statement. I think we’re on very dangerous ground, generally. Federal courts have the right and the duty to police what the executive branch is doing, if they violate the law. And that’s exactly what’s happening here, is this is ultimately a separation-of-powers case, as you were talking about with the congressman before. Congress could not have been clearer. They’re granting this authority to the president — I mean, it’s over 200 years ago, but granting this authority to the president, only — only — if there’s a foreign government or foreign nation involved. That’s not what’s going on here. So the president has overstepped the authority Congress has given him, so it’s creating a classic separation-of-powers question. The federal courts have to be able to say, “You have overstepped the law.” So, federal courts can review whether the Alien Enemies Act is being used illegally, and they have to.

In terms of defying the court order and sending the planes anyway and not turning them around, you know, we’re trying to get to the bottom of that. The government filed what they called a clarification notice yesterday, that left more questions than it answered. And so, we filed something at 2:15 in the morning last night asking the court to order the government to file sworn declarations stating whether they had defied the court’s order by not turning around planes after the court issued the order. In both cases, the federal court is on solid, established ground to review what the administration is doing.

AMY GOODMAN: Didn’t the same thing happen with the Brown assistant professor? She is from India. She had been in this country for years. And she was coming from — rather, she is from Lebanon. She was visiting family. And she was deported when a judge said no.

LEE GELERNT: Yeah, so, I’m not involved in that case, so I don’t know the specifics, but I know that there are serious allegations there, and the judge is looking into it and is very concerned. So, you know, we hope that the administration is not outwardly, explicitly defying court orders and claiming they have the right to do that. That would put us on — you know, one step further to what many people would view as a constitutional crisis, just deciding they are not going to listen to the federal courts. So, you know, we will try and get to the bottom of what’s going on in the Alien Enemies Act case. We’ll see what the government files, what the court does, you know, and we’ll leave it there for the moment. But all the indications look like they defied the court order.

But the bigger question, as you’ve noted, is: Can the Alien Enemies Act now be used? It’s only been used three times in our country’s history, all during declared wars: the War of 1812, World War I and World War II. And that’s not surprising, because this is a very serious authority that Congress has given the president, but Congress limited it to when there’s a declared war with another country or another country is invading us, not anytime the president decides some gang is so dangerous, I’m going to invoke a wartime authority. The minute we start using wartime authorities during peacetime, we’re on a slippery slope to a very dangerous place.

AMY GOODMAN: Lee Gelernt, can you also talk about the ACLU’s work fighting Trump’s use of Guantánamo to hold immigrants? On Friday, you argued on behalf of foreign nationals the Trump administration is trying to send to Guantánamo. Now, it looks like they have cleared people from Guantánamo at this point. And I’d like to ask if you know why. And is El Salvador, this supermax prison that is run by the president, a Trump ally, where gross human rights violations have taken place — has this new prison in El Salvador become — has this prison in El Salvador become the new Guantánamo?

LEE GELERNT: Yeah, well, thanks for asking about that, Amy. You know, as you mentioned, I argued the Alien Enemies Act case on Saturday. But the day before, I argued the Guantánamo case in a long, long hearing. And ultimately, the judge decided not to rule for us, only because Guantánamo had been cleared out at that point, and there was no imminent — at least imminent indication to him that people were being sent back to Guantánamo. It’s very coincidental that every time we’re going to go before a federal judge on Guantánamo, they clear it out. So I think that the litigation is having the effect of forcing them to back down in a way. And so, we’ll see if they send people back there.

But your point about is El Salvador the new Guantánamo? It may be. And I hope not, because as bad as Guantánamo is, sending these Venezuelan men to a Salvadoran prison is really going to put them in immediate harm. I mean, we stressed that to the judge, and the judge, fortunately, understood that and acted quickly. And as many of you have probably seen, there was a video released of how the men were treated when they got to El Salvador. And I think that only reinforces that the judge was correct to act quickly.

I think that there’s probably going to be, if this — if this Alien Enemies Act invocation is upheld, anybody can be designated an alien enemy, because the government is making the dangerous argument that federal courts can’t review, so any immigrant can then find themselves in a Salvadoran prison. You know, we will try to stop this, obviously, and we need those men to be brought back if the court order was defied.

AMY GOODMAN: And is the U.S. responsible if they are abused there in Salvador? I mean, this goes to Democratic and Republican presidents of the United States in charge of Guantánamo — right? — and the whole call for Guantánamo to be closed, is that it’s used as an extrajudicial place where people can be sent, and it’s not clear who’s in charge of them. But that’s the same with Salvador. Once they’re put into this prison, who’s responsible? Does the U.S. bear any more responsibility?

LEE GELERNT: Well, I think the U.S. always bears responsibility if they illegally deport people and then they’re ultimately put in danger and harm. You know, we’ll see how the court reacts to this, if in fact they defied the court order. But I think the key for us, going forward, is that no one else is sent, and we also try and deal with the people who were sent, to get them back any way we can, especially if the court order was defied. But yeah, the United States is under strict obligations not to send anybody to be persecuted or tortured anywhere. It would have been bad enough if these people were sent to Venezuela, because they were fleeing danger there and have asylum claims, you know, most of them that we know, or at least our named plaintiffs. We obviously don’t know all the people, because the government is doing it in secret. But absolutely, it’s the government’s obligation not to send people to persecution or torture. There’s no question, in these Salvadoran prisons, these people are in imminent danger.

AMY GOODMAN: Lee Gelernt, before we end, I wanted to ask you about your arguing some of the most high-profile immigration cases during the first Trump administration, including one to stop Trump’s Muslim travel ban that he instituted within weeks of coming first into office. Now the Trump administration is reportedly considering a new, broader travel ban. The New York Times is reporting the ban could impact the citizens of as many as 43 countries. Your response?

LEE GELERNT: Yeah. So, you know, as everyone knows, the Supreme Court narrowly upheld the first Muslim ban. So, given that, given that there’s Supreme Court precedent, we’re going to have to wait to see what is actually issued by the president, and decide whether it complies with the Supreme Court’s ruling or not, before we can decide what we’re going to do. So we’ll wait and see. But I think our first step is going to be assessing whether, under the Supreme Court’s precedent, this is lawful or not.

AMY GOODMAN: And birthright citizenship going to the Supreme Court, what this means?

LEE GELERNT: Right. We’ll have to see how the Supreme Court acts. I mean, the pace — I think the difference between the first Trump administration and the second is the first Trump administration, the pace was very, very fast, but here is that much greater. And so, there’s a lot going on. And I think that’s part of what the administration is doing, is trying to wear down people, either scare them into not resisting or wear them down. We’ll keep fighting on all these fronts. We’ve been preparing for a while for this, and we’ll just keep plugging along. And I would urge people not to give up on the federal courts, but I also think that everything cannot be done through the courts. So, people, if they think what’s happening is illegal, really need to get out there and say so.

AMY GOODMAN: And finally, the dismantling of the government and what it means for the cases you’ve been involved with for the last years, particularly around the separation of families and now seeing families being incarcerated again? But these children, how many are still left? And what does the dismantling of government agencies — how does that affect your work to try to still get these kids back to their families?

LEE GELERNT: Yeah, so, we’re monitoring that very closely. And I appreciate you raising that, because I don’t think the public realizes there are hundreds, maybe up to a thousand, little children still not with their parents now six years later, maybe seven years later. You know, we got this injunction stopping the family separation policy in 2018, but we’re still looking for many of the families, trying to get them back together.

We hope that the Trump administration takes very seriously that they’re under a court-ordered settlement to reunify these families. Things have been moving slower, but we’re not at the point now where we can say the administration is explicitly saying, “We’re not going to — we’re not going to comply with this order.” But we are monitoring it very closely, and we are very worried about finding the remaining families and getting them back together. You know, as anybody knows, any parent knows, and all the medical associations say, every day the child is not with the parent is causing harm.

AMY GOODMAN: Lee Gelernt, thanks so much for being with us, deputy director of the ACLU Immigrants’ Rights Project.

LEE GELERNT: Thank you.

AMY GOODMAN: Coming up, we look at why some Democrats are calling on Chuck Schumer to step down as the top Democrat in the Senate, after he voted with Republicans to help avert a government shutdown. Back in 30 seconds.