Take Your Time: The Moral Importance of Due Process

On Saturday, March 15th, the White House announced that President Donald Trump invoked the Alien Enemies Act of 1798, (AEA) as he declared he would on the campaign trail. The AEA grants the president the authority to arrest, relocate, or imprison all male, over the age of 14 citizens of a nation with which the United States is at war. Specifically, President Trump stated he would target citizens of Venezuela currently in the U.S. who  are members of the Tren de Aragua gang (TdA).

In 2024, the Biden administration designated TdA as a transnational criminal organization and on February 20th, 2025, the Trump administration officially labeled the group as a terrorist organization. Within the U.S. members of TdA have been accused of drug smuggling and dealing, human trafficking and one member is currently facing trial in the shooting of two New York City police officers.

On the morning of March 15th, prior to the public invocation of the AEA, Judge James Boasberg, the chief judge of the U.S. District Court for the District of Columbia, issued a temporary restraining order to halt the imminent removal of five Venezuelan nationals accused of being TdA members. Later that evening, Boasberg verbally instructed representatives of the Justice department to halt the expulsion of Venezuelan nationals and return any airborne planes to the U.S. At the time, two planes had already departed the U.S., one bound for Honduras and one for El Salvador. The Honduras bound plane arrived ten minutes after Boasberg publicly released a written version of his order, while the El Salvador bound plane landed approximately half an hour afterwards.

Why were Venezuelan nationals sent to El Salvador? The Trump administration and El Salvador’s President Nayib Bukele reached a deal to house deportees from the U.S. in El Salvador’s Terrorism Confinement Center, its Spanish name abbreviated as CECOT. The prison is known for its extreme conditions. Detainees are held in cells of 60 to 70 prisoners, only leave the cells for 30 minutes a day and are not allowed outdoors. The lights remain on constantly. There is no visitation and no communication with attorneys. Most prisoners in CECOT have triple digit sentences, meaning they will never leave. As a result, there are no efforts to rehabilitate detainees or prepare them for reintegration into society.

As I write, the case is evolving. The court is currently investigating which members of the executive branch knew of Boasberg’s order, when they knew and whether they knowingly violated the order as a result. However, the administration has disrupted the fact-finding process by refusing to answer many of Boasberg’s questions, citing national security concerns. Boasberg now contends that the administration may have “acted in bad faith” and is considering whether to find members of the administration in contempt of court. On March 26th, an appeals court upheld Boasberg’s order and the administration has since filed an appeal with the Supreme Court. On April 7th, the Court overturned Boasberg’s stay halting removals under the AEA. However, they did not directly consider the merits of the case, instead arguing in a 5-4 ruling that the law should have been challenged in Texas, where the migrants were held initially, rather than in the DC Federal court.

In total, the Trump administration has removed 238 Venezuelan nationals from the U.S., including 17 alleged gang members on Sunday, March 30th. However, the administration has not publicly provided evidence for these allegations. This is especially troubling given that many appear to have been targeted due to having tattoos, some of which consist of the names of children, deceased family members and in one case, an autism awareness tattoo. According to a validation guide filed in court by the American Civil Liberties Union, Immigration and Customs Enforcement can validate an accused individual as a member of TdA with as little as a tattoo and clothing that the agent deems to be related to TdA.

There are multiple issues up for legal debate in this case. It is debatable whether the president can invoke this law, given that Congress has not declared war. Further, it is unclear that the U.S. could be at war with TdA since a gang is not a formal state. What the current cases deal with, however, is the matter of due process; the accused are not being formally charged with a crime, nor are they given a chance to defend themselves in court. The accusation is, in the eyes of this administration, sufficient for punishment. This is especially troubling given that, according to Reuters, at least 27 had pending asylum cases and thus were following the legal process necessary to stay in the U.S.

Although punishment is ubiquitous in human societies, finding the moral justification for these practices is a thorny matter. Most moral theories endorse some version of the harm principle, the idea that there is a moral presumption against harming others. But punishment harms the punished. So how can we morally justify it?

Many turn to a view called retributivism to justify punishment. On retributivism, punishment is about giving the wrong doer what they deserve. Those offenses where punishment seems appropriate, such as theft, assault, theft or recklessness, are those that harm innocents. So, the idea behind retributivism is that you deserve to be treated how you treat others, in this case, harmfully.

And with a justification of punishment in hand, we can see the moral importance of due process. Normally, offenses are investigated, evidence is gathered, suspects are formally charged and face trial as a precaution against getting things wrong. Why take these precautions? When our punishment institutions get things wrong, they harm innocents. In doing so, our institutions are no different from an offender who recklessly engaged in behavior that harmed innocents. Due process is thus a moral safeguard – to ensure that our institutions do not engage in the same behavior for which we think it appropriate to punish individuals.

Some might contend, though, that due process is inappropriate in some cases. You’ve likely heard someone muse that mass shooters or sex offenders ought to just be taken out back, so to speak, rather than going through all the bother of a trial. But to argue that due process is inappropriate for some offenses assumes what you are trying to prove. No matter how heinous the offense, due process is necessary for certainty.  For instance, the Trump administration recently acknowledged that they had mistakenly sent a man to CECOT due to an “administrative error.” The administration claims it lacks the power to force Bukele’s government to return him. A federal judge has since ordered that they must secure his return. However, the Supreme Court issued a stay on Monday afternoon, temporarily pausing the order while they consider the merits of the Administration’s arguments to outright block the order.

There are two additional concerns with addressing. First, some could argue that there could be exceptions to the need for due process. Perhaps an offender has been caught in the act or the evidence is just overwhelming. In cases like these, it would be more expedient to just punish the offender without a lengthy trial, or so the objection goes.

Setting aside that what may appear obvious at first glance is not always true, there is still an issue with this argument. Specifically, that obviousness is a matter of degree. In some cases, it will be screamingly obvious that the accused is the offender, while in others we may simply have reason to believe that the accused is the offender, with most cases residing in between. To draw a line somewhere and say “when it is this obvious that the accused has committed the offense, they do not deserve due process, but when it is less obvious than that, they deserve it,” is arbitrary. The rights of the accused, and the precautions that our institutions take, should not swing wildly on a slight difference of evidence. If due process is appropriate in one case then it is appropriate in every case.

Here this point intersects with another objection to the importance of due process. Others may view the potential harm to innocents as simply the cost of doing business, so to speak. Sure, some innocents or good people are caught up in these purges. But ultimately, only people who are not citizens, nor permanent residents, have been removed and sent to CECOT. They were either in the country illegally, or asylum seekers who were not yet accepted. So it may be cause for minor concern.

However, what this objection misses is that due process is necessary to protect citizens, lawful permanent residents and visa holders. If there truly is no due process, then even a natural born citizen would lack the guarantee to establish their legal right to reside in the U.S. before a court. If the federal government has the authority to send uniformed officers to grab someone off the streets, detain them, accuse them of membership in an international gang then ship them out of the country without substantiating their claims, anyone can potentially suffer this fate. Our concerns here should be magnified by the fact that the administration is currently arguing to the Supreme Court that negotiations with a foreign nation are outside the power of the judiciary and thus a judge cannot demand that the executive return someone they acknowledge was wrongly sent to CECOT. If we are to guarantee that our rights will be protected in any case, then we must guarantee that due process is secure in every case.