Jurisdiction and Remedy in J.G.G. v. Trump

On March 15—for the first time since World War II and only the fourth time in history—the president of the United States invoked the Alien Enemies Act of 1798 (AEA) to “find and declare that [Tren de Aragua (TdA)] is perpetrating, attempting, and threatening an invasion or predatory incursion against the territory of the United States … both directly and at the direction, clandestine or otherwise, of the Maduro regime in Venezuela.” President Trump’s order provided that “all Venezuelan citizens 14 years of age or older who are members of TdA, are within the United States, and are not actually naturalized or lawful permanent residents of the United States are liable to be apprehended, restrained, secured, and removed as Alien Enemies.”

Within hours of issuing the AEA declaration, the Trump administration removed two planes full of individuals who it declared to be members of TdA from the United States to El Salvador. That same day, lawyers filed a “class action complaint and petition for writ of habeas corpus” on behalf of five named plaintiffs and also sought class certification. At the same time, they asked Chief Judge James Boasberg of the U.S. District Court for the District of Columbia to grant a temporary restraining order (TRO). He did so on the evening of March 15—while the planes were still in the air. The order precluded the government from initiating further removals under the AEA and directed the government to return the two planes to the United States. The two planes did not return, and the individuals are now imprisoned under an agreement between the United States and El Salvador, the full details of which are still unknown.

It would be hard to overstate the importance of this case. By acting within hours of invoking the AEA, the government removed the relevant individuals without any judicial review or due process whatsoever. Further, during a U.S. Court of Appeals for the District of Columbia Circuit hearing on March 24 on the government’s motion to stay the TRO, the government’s lawyer said that if the TRO is lifted, the government will immediately recommence such removals—again without offering any prior hearings.

From the outset, the government has challenged the district court’s power to hear the case, highlighting the complicated jurisdictional matters at issue. As is explored below, despite sometimes inconsistent case law, one thing that should be clear is that the plaintiffs before Judge Boasberg should have a right to make their claims in some court—the only question is which one. The argument in favor of the D.C. district court maintaining jurisdiction over the matter, moreover, finds strong support in Supreme Court practice and recent habeas precedent. In part for this reason, on March 26, a divided D.C. Circuit panel correctly denied the government’s motion to stay the district court’s TRO.

Once the jurisdictional issues in the case are fully resolved, however, there remains the even thornier question—namely, whether the district court has any power beyond its contempt authority to address the Trump administration’s removal of individuals under the AEA to El Salvador. Ultimately, the possibility of bringing those individuals back to the United States likely depends entirely on the nature of the arrangement between the Trump administration and the Salvadoran government.

Jurisdiction

Begin with the jurisdictional questions, most of which rest on the type of claim being made by the plaintiffs. As noted, a little over a week ago, the five named plaintiffs filed their lawsuit as a “class action complaint and petition for writ of habeas corpus.” Their complaint purports to bring claims under a host of statutes including the AEA and the Administrative Procedure Act (APA), as well as the Fifth Amendment Due Process Clause. (The APA, generally speaking, provides for judicial review of agency actions to ensure their conformity with the law.) They in turn grounded jurisdiction in several bases: the general habeas statute, 28 U.S.C. § 2241; the Suspension Clause of the U.S. Constitution, Article I, Section 9, Clause 2; the general federal question statute, 28 U.S.C. § 1331; the provision for suits against the United States, 28 U.S.C. § 1346, and for mandamus, 28 U.S.C. § 1361; and the All Writs Act, 28 U.S.C. § 1651.

The government immediately challenged the district court’s jurisdiction. In response, lawyers for the plaintiffs moved to disclaim any intention to seek habeas review, pressing forward instead with a classwide challenge to the government’s failure to provide due process. When Judge Boasberg issued a clarifying order on March 24 regarding his earlier issuance of the TRO, he cited the plaintiffs’ APA claims as the basis of the court’s jurisdiction.

Meanwhile, apparently the five named plaintiffs in the case remain in the United States and are in federal detention in Texas. The government argues that because the plaintiffs seek to challenge their removal from the country, they must do so via habeas petitions in the federal district where they are detained.

This argument finds support in the Supreme Court’s 2004 decision in Rumsfeld v. Padilla. In that case, Padilla’s counsel filed a habeas petition in the original jurisdiction where he had been detained as a material witness before the government moved him to another federal circuit to be detained as an enemy combatant. The problem, the Court said, was that the government had already moved Padilla before his counsel filed the habeas petition. The result: The Court directed Padilla to start over in the new jurisdiction, which he later did. Given that the five named plaintiffs have always been in Texas, the government may be right that they need to file any habeas petitions there. It bears noting, however—as Judge Karen Henderson pointed out in her opinion attending the panel’s denial of the government’s motion for a stay of the TRO—that footnote 8 of the Padilla decision expressly left open whether its rule applies to “an alien detained pending deportation.” (As Henderson also noted, Justice Anthony Kennedy’s concurrence observed that Padilla’s rule is “not jurisdictional in the sense of a limitation on subject-matter jurisdiction” but is instead “a question of personal jurisdiction or venue.”)

Notably, however, the plaintiffs in this case—unlike Padilla—are no longer pursuing claims via habeas. Further, they do not seek the classic habeas remedy of release. Instead, they seek classwide relief in the form of greater procedural protections for their own benefit but also for any other person the government may apprehend and seek to remove under the AEA declaration. Thus, the argument goes, their lawsuit looks much more like a standard APA or federal question jurisdiction facial challenge on behalf of a class rather than a “core” habeas matter.

Here's where things get messy. In two high-profile “war on terrorism” cases, the Supreme Court recognized a habeas right to additional process and not outright release. In its 2004 decision in Hamdi v. Rumsfeld, the Court held that a U.S. citizen detained as an enemy combatant should be afforded a more robust hearing to challenge his classification than he had been afforded by the government. Four years later, in Boumediene v. Bush, the Court went further to give even more procedural protections (including hearings before an Article III court) to noncitizens detained at Guantanamo Bay as enemy combatants. Under these precedents, the government argues that the plaintiffs can only bring their claims seeking due process in a habeas action, which would place jurisdiction in Texas.

The petitioners understandably do not want to litigate their claims in the U.S. Court of Appeals for the Fifth Circuit, where their likelihood of success will be much less than in the D.C. Circuit. A 2020 Supreme Court case helps their cause on this score; interestingly enough, it was argued by the same ACLU lawyer now representing the plaintiffs here. In Department of Homeland Security v. Thuraissigiam, the Court held that the habeas petitioner’s claim failed for several reasons; among them, it sought the wrong relief. The case involved an individual who crossed into the United States clandestinely and, once taken into government custody, sought asylum. Via habeas, he argued that he should be afforded greater procedures to prove he qualified to remain in the United States than Congress has provided for in expedited removal proceedings. But the Court rejected the argument. At the time of the founding, Justice Samuel Alito wrote for the Court, habeas was “a means to secure release from unlawful detention” and did not extend to an invocation of the writ “to achieve an entirely different end, namely, to obtain additional administrative review of his asylum claim and ultimately to obtain authorization to stay in this country.” (I wrote an analysis of the Thuraissigiam decision earlier in Lawfare.)

If nothing else, Thuraissigiam certainly supports the proposition that habeas cannot be viewed as the sole vehicle for bringing claims for more process—indeed, the decision can be read to go further and hold that regardless of what the earlier decisions in Hamdi and Boumediene held, habeas is not the right vehicle for such claims. Here is where Judge Justin Walker, the dissenting judge on the D.C. Circuit panel, veers off course. In his view, the plaintiffs sought to block their removal, which is proper for habeas proceedings; he overlooked that, in reality, what they seek is systemic application of greater procedural protections to all persons potentially subject to removal under the AEA.

This is the key point—the plaintiffs here seek classwide systemic relief. Yet the Supreme Court has never held that there is such a thing as a “habeas class action.” So the government’s suggestion that the petitioners pursue their classwide claims in Texas is rather curious. Indeed, their lawsuit looks much more like a classic across-the-board challenge to government action that one would file under federal question jurisdiction or the APA. Further, the plaintiffs’ action resembles a host of cases in which the Supreme Court has taken up challenges to aspects of immigration detention policies brought as facial challenges on behalf of a class.

Consider, for example, the Court’s 1993 decision in Reno v. Flores, which involved a facial challenge to an immigration policy that refused to release unaccompanied juveniles from immigration detention to responsible adults beyond the category of parents or guardians. The plaintiffs there brought their action under the immigration laws, the APA, the Fifth Amendment Due Process Clause, and international law. The Court’s decision, written by none other than the jurisdictional hawk Justice Antonin Scalia, never once questioned the Court’s ability to decide the merits in the case. It bears highlighting, moreover, that the very point of the lawsuit was to streamline the ability of class members to obtain release from custody. But the Court did not send the plaintiffs to habeas proceedings to do so.

Notwithstanding this and other precedents, the government pressed the argument in the D.C. Circuit stay motion hearing that any and all claims before Judge Boasberg must be brought elsewhere—specifically, either as some kind of habeas class action in Texas or as individual habeas actions filed by each prospective plaintiff in the jurisdiction of their detention.

Beyond the precedent at odds with the government’s argument that plaintiffs must proceed in habeas actions elsewhere, two additional problems exist. First, the government won’t disclose who it is detaining under the AEA or where they are being detained, rendering it all but impossible for lawyers to file habeas petitions on their behalf if they have to proceed separately. Second, as noted, the government freely acknowledged before the D.C. Circuit that if the TRO is lifted, it will begin immediately removing individuals out of the country under the AEA. This should give any court great pause before dismissing the classwide claims and lifting injunctive relief preserving the status quo. This is because, as explored below, once a person is removed from the country to foreign soil, it is not at all clear that a domestic federal court possesses the power to order their return.

In short, the D.C. Circuit was correct to reject the government’s arguments and allow the suit to proceed before Judge Boasberg.

Additional Complications for Those Removed to Foreign Soil

This brings us to the looming issue that the courts have yet to confront in the case: What powers, if any, does a federal court possess to address the possibility that the executive removed individuals to foreign soil pursuant to the AEA, under cover of darkness, in order to insulate its actions from judicial review? And what if the government does so again? Can a court reach the effective custodians of the detained individuals—here, Salvadoran prison officials—through the respondent-United States officials named in the habeas proceedings? (One can likely presume that the relevant Salvadoran officials will not respond to a writ issued by an American judge sitting in Washington, D.C.; in any event, at present none are named in the proceedings.)

One will look in vain for a case directly on point here, which underscores both the unprecedented nature and complexity of these questions. When they come up, once again courts will have to confront whether habeas is the appropriate vehicle for bringing such a claim. As is explored below, the relevant case law is to be found in the habeas context, where one finds that the history of Anglo-American habeas jurisprudence involves a writ that has evolved over time to rebuff attempts by the executive to evade habeas review. This lends support to the idea that the oft-called “Great Writ” is capable of doing the same here.

It remains the case, however, that the crucial question for any persons already removed or to be removed to El Salvador is whether any U.S. officials named in the suit possess the authority to request return of the individuals from their Salvadoran jailers and produce them to a U.S. court. The answer will turn entirely on how much control the United States maintains over the individuals’ detention in El Salvador.

The Habeas Origin Story

On its most basic level, habeas corpus jurisdiction is predicated upon a court’s ability to reach a person detained (the “corpus”) through their custodian and order relief—the most traditional form being release.

Understanding the current case requires some history. Moving persons held in government custody to avoid the reach of habeas courts is hardly a new phenomenon. In 1667, the House of Commons commenced impeachment proceedings against the Earl of Clarendon based on his role in dispatching prisoners to “remote islands, garrisons, and other places, thereby to prevent them from the benefit of the law.” Parliament next considered habeas bills in 1669, 1674, and 1677 in response to widespread complaints over the then-common practice of sending prisoners to places where habeas writs could not run. Then, Parliament passed the English Habeas Corpus Act of 1679, which Sir William Blackstone labeled nothing less than a “second magna carta” finally outlawing the practice. Look no further than the act’s title: “An Act for the better securing the Liberty of the Subject, and for preventing of Imprisonments beyond the Seas.”

The terms of the 1679 act are important to American constitutional law for many reasons, not the least of which is the fact that—as I have detailed extensively in my book “Habeas Corpus in Wartime: From the Tower of London to Guantanamo Bay”—the act and the suspension model that sprung from it proved the foundation of the U.S. Constitution’s Suspension Clause. Notably, in the 11th and 12th sections of its 1679 act, Parliament sought either to reach those places that had been used by the executive to detain prisoners outside the reach of habeas courts or to prohibit such destinations for detention altogether.

Thus, one of the single most important moments in the Anglo-American legal history of habeas corpus comprised an effort by Parliament to take control over the law governing executive detention and, more specifically, to rein in the practice of moving persons in custody to evade the jurisdiction of habeas courts.

To be sure, such evasive practices did not end in 1679. During the Revolutionary War, for example, the North Administration ordered Ethan Allen returned to the Americas only days after his arrival on English soil as a captured American “Rebel.” By all accounts, the North Administration did so to avoid having to answer to a habeas court in which sympathizers to the American cause were soon to file a writ on Allen’s behalf. The government pursued this tactic because the crown had long subscribed to the position that the English Habeas Corpus Act did not apply in the colonies, so there it could detain Allen and his Green Mountain Boys free from the act’s coverage and the judicial interference that came with it. The founding generation responded by enshrining the habeas privilege associated with the English act in the U.S. Constitution, ensuring that it would, at long last, govern on American soil.

Nonetheless, President Roosevelt’s War Department employed similar tactics during World War II when, as I explore in “Habeas Corpus in Wartime,” it moved prisoners from the mainland to Hawaii to elide habeas jurisdiction. Although there was no suspension of habeas on the mainland during the war, there was one in effect in Hawaii, which the War Department believed would insulate such detentions from judicial review. (The Supreme Court did not take up any direct challenge to the practice at the time, although it addressed related issues in ex parte Endo, discussed below.)

Key Supreme Court Precedents

More recently, the George W. Bush administration detained noncitizen enemy combatants in the war on terrorism at Guantanamo Bay in part for the purpose of keeping the courts at bay. In a pair of decisions culminating in the 2008 holding in Boumediene v. Bush, the Supreme Court rebuffed such efforts, ultimately exercising jurisdiction and ruling that the Guantanamo detainees had rights under the Suspension Clause requiring that they be given the opportunity before Article III courts to contest their classification and detention as enemy combatants. Notably, the Court posited that it was driven at least in part by the need to ensure that “the political branches” not be permitted to “govern without legal constraint.”

This brings us back to the World War II case of Ex parte Endo, a habeas case that involved the only direct challenge to the mass incarceration of Japanese Americans during the war to reach the Supreme Court. The case began when Mitsuye Endo filed a habeas petition in federal district court in San Francisco while detained at Tule Lake Camp in California. Some months later, the government moved her and her family to the Topaz Camp in Utah. (This fact distinguishes Endo’s case from Padilla.) When her case reached the Supreme Court, that court declined to insist that she refile her habeas proceedings in the new jurisdiction, emphasizing that it could reach Endo in either jurisdiction through high-level federal government officials. Endo teaches that once habeas jurisdiction attaches, the government cannot free itself of accountability before the habeas court by moving persons in its custody beyond the court’s jurisdiction; it likewise instructs that in certain cases, the ability to reach high officials as opposed to the immediate custodian of the petitioner can sometimes suffice to sustain habeas jurisdiction.

But, even as the Endo Court emphasized that the key factor in determining a habeas court’s jurisdiction is not the location of the detained individual, but their custodian, the bottom line, the Court concluded, is “that the court may act if there is a respondent within reach of its process who has custody of the petitioner.”

This of course tees up the critical question with respect to the possibility of ordering the return of individuals removed now or later to El Salvador under the AEA—namely, is there “a respondent within reach of [the court’s] process who has custody of the petitioner”? In this case, that is not at all clear.

The first issue that a court will confront is the foreign location of detention of the individuals. But this factor alone does not defeat habeas jurisdiction. Begin with the Supreme Court’s 2008 unanimous decision in Munaf v. Geren, which involved the proper interpretation of the habeas jurisdictional statute, 28 U.S.C. § 2241. Notably, Munaf involved two U.S. citizens, not aliens. The petitioners sought habeas relief while detained in Iraq by American forces operating under an American chain of command as part of a larger multinational force. The petitioners sought to challenge their transfer to Iraqi custody to stand to account for alleged criminal acts within Iraqi territory. The government took the position that the foreign location of the detentions was beyond the jurisdiction of the D.C. federal courts to review. The Court’s jurisdictional holding focused on the petitioners’ custodians and, in many respects, collapsed the remedy question with the jurisdictional one, suggesting that if the Court could not reach a proper custodian, there would be no habeas jurisdiction.

In an opinion by Chief Justice John Roberts, the Supreme Court upheld its jurisdiction. The Court reasoned that the habeas statute “provides that a federal district court may entertain a habeas application by a person held ‘in custody under or by color of the authority of the United States,’ or ‘in custody in violation of the Constitution or laws or treaties of the United States.’” The key question, the Court emphasized, is whether “[a]n individual is held ‘in custody’ by the United States when the United States official charged with his detention has ‘the power to produce’ him” (citing Wales v. Whitney (1885)). Thus, the Court concluded, all that mattered was whether the U.S. government official named as respondent had the power to produce the petitioners. Because “the United States has never argued that it lacks the authority to release [the petitioners], or that it requires the consent of other countries to do so,” the Court held, “these concessions [constitute] the end of the jurisdictional inquiry.” (This being said, the Court also later noted that the cases “concern American citizens” and recognized that “the Court has indicated that habeas jurisdiction can depend on citizenship.”)

Then there is Boumediene. There, no one ever argued, nor could they have, that the government could not produce the petitioners it detained at Guantanamo Bay, given the United States’s complete control over the naval base where the detainees were held. In all events, other aspects of the decision lend considerable support to the argument in favor of upholding habeas jurisdiction in the case of persons removed under the AEA to foreign soil. To start, Boumediene emphasized that the history of the writ of habeas corpus, born out of the writ’s common law origins, is one grounded in adaptability and expansion. And, as noted, the Court’s decision sought to overcome any possibility that the government could function within the legal equivalent of a black hole. It should go without saying that those very same concerns loom large here as well.

Notably, the 5-4 Boumediene majority also observed that “questions of extraterritoriality turn on objective factors and practical concerns, not formalism.” Writing for the Court, Justice Kennedy posited that “at least three factors are relevant in determining the reach of the Suspension Clause.” They include “(1) the citizenship and status of the detainee and the adequacy of the process through which that status determination was made; (2) the nature of the sites where apprehension and then detention took place; and (3) the practical obstacles inherent in resolving the prisoner’s entitlement to the writ.” Nothing in the Court’s World War II decision of Johnson v. Eisentrager (1950) dictated otherwise, Justice Kennedy believed. That case denied habeas jurisdiction over claims brought by German citizens captured and convicted by a U.S. military tribunal in China and later moved to Germany for detention. But, Boumediene held, “nothing in Eisentrager says that de jure sovereignty is or has ever been the only relevant consideration in determining the geographic reach of the Constitution or of habeas corpus.”

To be sure, the majority opinion in Boumediene emphasized the “unique status” of Guantanamo Bay—an area under the complete control of the United States. But the decision’s other factors all tilt strongly in favor of upholding jurisdiction here. For one, it may be that at least some of the petitioners were in the United States through proper immigration channels (for example, it has been said that at least some were seeking asylum). Second, it is clear there were no hearings in which the individuals could challenge the government’s assertions that they were members of TdA. (Indeed, as the chief justice’s dissent in Boumediene makes clear, there was considerably more process afforded the war on terrorism detainees there even before the Court intervened.) Finally, we know that the relevant apprehensions took place on U.S. soil.

The AEA case is also different in certain respects from the D.C. Circuit’s 2010 post-Boumediene case of Al Maqaleh v. Gates. There, the court confronted the argument that the Suspension Clause granted a right to habeas review brought by individuals who had been taken into custody overseas and later moved to Afghanistan for detention as enemy combatants at a prison at the American-operated Bagram military base. The D.C. Circuit held that the Suspension Clause did not apply, rejecting “the proposition that Boumediene adopted a brightline test with the effect of substituting de facto for de jure” sovereignty as decisive to the inquiry. The court instead emphasized that Bagram was “within the territory of another de jure sovereign,” while stressing further (relying on Eisentrager) that upholding habeas jurisdiction in that case could “hamper the war effort.”

Concededly, there are similarities between those now detained in El Salvador and Al Maqaleh, given that the former are likewise detained in a prison “within the territory of another de jure sovereign.” The AEA detainees were apprehended on domestic soil, however, and one might say that distinction makes all the difference. Further, although the D.C. Circuit in Al Maqaleh expressed concern that its ruling could be understood to permit the executive branch to “switch the Constitution on or off at will,” it did not see any reason to believe that the government had intentionally acted to do so there. Again, it is not at all clear that the same may be said of the Trump administration’s actions in the past week.

Regarding the reach of habeas courts to foreign soil, there is also important U.K. law on point. In 2017, the Supreme Court of the United Kingdom relied on Boumediene to reach a different conclusion than the D.C. Circuit in Al Makaleh. In Al-Waheed v. Ministry of Defence, the U.K. court upheld its habeas jurisdiction to review claims brought by an Iraqi citizen who had been apprehended and detained by British forces in Afghanistan as an enemy combatant. As explained in the lead opinion by Lord Jonathan Sumption, key to the U.K. Supreme Court’s ruling upholding domestic habeas jurisdiction was the fact that there were disputed “issue[s] about whether the applicant was in fact an enemy.” Here, we can assume, based on the complaint before the D.C. district court, that the individuals removed under the AEA dispute the factual allegations leveled against them, including their membership in TdA.

Just as the U.S. Supreme Court has said in Endo and Munaf, moreover, Al-Waheed concluded that “[j]urisdiction to issue [the writ] depends on the respondent being within the jurisdiction of the court, and not on the location of the applicant.”

Thus, authority from both sides of the Atlantic Ocean support the conclusion that the power of the district court to reach habeas petitioners, even overseas, turns on whether the court has the power to reach their custodian. This brings us back to Endo, Munaf, and Boumediene, the latter of which emphasized as a final factor in the calculus “the practical obstacles inherent in resolving the prisoner’s entitlement to the writ.”

Here, those practical obstacles reduce to this question: Can U.S. government officials still be deemed to have constructive custody of the individuals removed under the AEA to a Salvadoran prison? The government has effectively outsourced the detention of such persons to the government of El Salvador via contract, one that reportedly has the U.S. government paying El Salvador millions of dollars.

Here, too, a decision from the U.K. Supreme Court may suggest an answer. In Al-Waheed, Lord Sumption highlighted the court’s important ruling in an earlier case, noting that his court “has gone further and approved the issue of the writ in a case where the applicant had been lawfully delivered in Iraq by British forces to the United States, and the only element of control over his subsequent detention was an undertaking by the United States to return him on demand” (citing the court’s 2013 decision in Rahmatullah v. Secretary of State for Defence). (An analogous domestic precedent is the Supreme Court’s 1973 decision in Braden v. Thirtieth Judicial Circuit Court of Kentucky, which held that an Alabama warden acted “as the agent of the Commonwealth of Kentucky in holding [a habeas] petitioner pursuant to the Kentucky detainer.”)

The U.K. Supreme Court’s decision in Rahmatullah posits that habeas jurisdiction is proper not just where the government can produce a petitioner in court, but more generally where the government has the power to demand the return of the petitioner to enable the same. This eminently sensible rule should apply here as well.

In short, it would seem that ultimately, the potential to bring back to U.S. soil those removed to El Salvador without any process depends entirely on the nature of the arrangement between the Trump administration and the Salvadoran government.

The Bottom Line

Where this leaves the case is unclear, because the full details of that arrangement are not public. What is clear, however, are the risks inherent in any holding that a domestic court cannot provide a remedy to persons spirited out of the country in the dead of night without any process. Such a rule has the potential to encourage even more aggressive actions of this sort by the Trump administration, with no limit in sight. That is a terrifying proposition.