An Intelligence Memo Casts Further Doubt on Trump's Nonsensical Definition of 'Alien Enemies'

A declassified assessment contradicts the president's assertion that Tren de Aragua is "closely aligned with" the Venezuelan government and acts at its "direction."

In a March 15 proclamation, President Donald Trump declared that suspected members of the Venezuelan gang Tren de Aragua were "alien enemies" subject to immediate deportation. He invoked the Alien Enemies Act (AEA), a rarely used, 227-year-old law that applies when "there is a declared war" between the United States and a "foreign nation or government" or when a "foreign nation or government" has "perpetrated, attempted, or threatened" an "invasion or predatory incursion against the territory of the United States."

To support that dubious interpretation of the AEA, Trump averred that Tren de Aragua (TDA) is "is closely aligned with" the Venezuelan government. He said the gang was "undertaking hostile actions and conducting irregular warfare against the territory of the United States…at the direction, clandestine or otherwise, of the [Nicolas] Maduro regime in Venezuela." A newly revealed memo from the National Intelligence Council (NIC) casts doubt on those assertions. Those claims, in any event, do not validate Trump's highly implausible reading of the AEA, which a federal judge in New York rejected on Tuesday, agreeing with an earlier decision by a federal judge in Texas.

The declassified April 7 memo, which the Freedom of the Press Foundation obtained under the Freedom of Information Act, says "Maduro regime leadership probably sometimes tolerates TDA's presence in Venezuela, and some government officials may cooperate with TDA for financial gain." But it adds that "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."

The U.S. intelligence community, which includes the CIA, the FBI, and the National Security Agency, "bases this judgment on Venezuelan law enforcement actions demonstrating the regime treats TDA as a threat," the memo says, describing "an uneasy mix of cooperation and confrontation" rather than the "top-down directives" that characterize "the regime's ties to other armed groups." It adds that "the decentralized makeup of TDA" would "make such a relationship logistically challenging."

The NIC says "most" of the intelligence community views "intelligence indicating that regime leaders are directing or enabling TDA migration to the United States" as "not credible." While "FBI analysts" agree with that overall assessment, it adds, they believe "some Venezuelan government officials facilitate TDA members' migration from Venezuela to the United States."

Contradicting Trump's assertion that TDA is "closely aligned" with the Venezuelan government and acts at its "direction," the memo notes that "Venezuelan intelligence, military, and police services view TDA as a security threat" and "operate against it in ways that make it highly unlikely the two sides would cooperate in a strategic or consistent way." Those conflicts have included arrests of TDA members by Venezuelan National Guard units and "armed confrontations" between "Venezuelan security forces" and TDA that resulted in "the killing of some TDA members."

The intelligence community "has not observed the regime directing TDA, including to push migrants to the United States," which "probably would require extensive coordination" and "funding between regime entities and TDA leaders" that would have come to light, the NIC says. While "US law enforcement reports claim members of the regime" have "cooperated with TDA by providing financial or materiel support," it adds, "we cannot verify the sources' access," and those reports "do not claim that these figures direct the group."

The memo notes that sources claiming ties between TDA and the Maduro regime could be "motivated to fabricate information." Specifically, "some reports come from people detained for involvement in criminal activity in the United States or for entering the country illegally, which could motivate them to make false allegations about their ties to the Venezuelan regime in an effort to deflect responsibility for their crimes and to lessen any punishment by providing exculpatory or otherwise 'valuable' information to US prosecutors."

In response to the memo's publication, Director of National Intelligence Tulsi Gabbard issued a statement that tellingly glided over its import: "It is outrageous that as President Trump and his administration work hard every day to make America safe by deporting these violent criminals, some in the media remain intent on twisting and manipulating intelligence assessments to undermine the president's agenda to keep the American people safe." This controversy over "the president's agenda," however, stems from uncertainty about whether all of the people whom the administration describes as "violent criminals" are in fact TDA members and from Trump's attempt to dodge that issue by invoking the AEA.

Based on Trump's proclamation, the government already has shipped hundreds of alleged gang members off to a notorious prison in El Salvador, where more than 130 of them remained as of late April, according to a lawsuit filed by the American Civil Liberties Union (ACLU). The U.S. Supreme Court has unanimously held that foreign nationals covered by the proclamation have a due process right to contest their designation as "alien enemies."

Although the Supreme Court has not yet addressed the proclamation's legality, Fernando Rodriguez Jr., a Trump-appointed federal judge in Texas, ruled last week that "the President's invocation of the AEA through the Proclamation exceeds the scope of the statute and is contrary to the plain, ordinary meaning of the statute's terms." On Tuesday, Alvin Hellerstein, a federal judge in New York, agreed that the AEA "was not validly invoked by the presidential proclamation."

That would still be true even if Trump's claims about the relationship between TDA and the Venezuelan government were accurate. After all, Trump does not claim that Venezuela is waging war on the United States, which would turn all Venezuelans (not just alleged TDA members) into "alien enemies." It makes little sense to identify a "transnational gang" that operates in "loosely organized cells of localized individual criminal networks" (as the NIC describes TDA) as a "foreign nation or government." Nor does it make sense to describe members of that gang as "natives, citizens, denizens, or subjects" of a "hostile nation or government," which is the AEA's definition of "alien enemies." It is likewise untenable to claim that the gang's criminal activities within the United States constitute an "invasion or predatory incursion" in the sense that Congress had in mind when it enacted the AEA.

As the ACLU noted in its lawsuit, Rodriguez noted in his order, and Hellerstein noted in his opinion today, Trump's reading of these key terms is inconsistent with the law's historical context and with contemporaneous usage, including the definition of "invasion" reflected in the Constitution, dictionaries, and correspondence among the Founders. Even if the evidence of collusion between TDA and the Maduro regime were stronger than the NIC thinks it is, Trump's invocation of the AEA would be plainly frivolous.