Don’t Roll Your Eyes at Due Process

Last month a federal court of appeals judge made a startling assertion. “Nazis,” she said, “got better treatment under the Alien Enemies Act” than people suspected of being members of a Venezuelan gang.

You might think those words, spoken by Judge Patricia Millett, who sits on the U.S. Court of Appeals for the D.C. Circuit, are hyperbolic, an example of shamefully politicized language coming from a partisan judge. But they are not.

At the height of World War II, when the United States was in greater mortal danger than at any other time since the Civil War, America respected the due process rights of people suspected of being Nazis more than it has recently respected the rights of people accused of being members of the Venezuelan gang Tren de Aragua — an extremely violent criminal group that nonetheless poses no threat to American national security remotely comparable to the threat posed by Nazi Germany.

President Franklin D. Roosevelt invoked the Alien Enemies Act in the hours after the Japanese attacked Pearl Harbor on Dec. 7, 1941, and by Dec. 20, he’d established Alien Enemy Boards in 22 districts across the country that were designed to determine whether aliens in U.S. custody should be released, paroled or interned during wartime.

Nazi saboteurs who were captured attempting to infiltrate the United States in 1942 to carry out attacks were given a trial by military commission before the United States punished them for violating the laws of war.

Whereas those accused of being Nazis had an opportunity to plead their case before a board, those accused of being members of Tren de Aragua were given no opportunity to contest their status as enemy aliens before they were rounded up and shipped to an El Salvadoran prison, where we saw images of them walking in a line, heads shaved.