On Wednesday, veteran trial attorney and legal scholar Alan M. Dershowitz publicly challenged U.S. District Judge James E. Boasberg’s recent initiative to appoint a special prosecutor tasked with pursuing criminal contempt charges against the Trump administration for allegedly disobeying a court directive. According to Judge Boasberg—an appointee of President Barack Obama—the Trump administration’s invocation of the Alien Enemies Act of 1798 to detain and deport violent gang members without recalling an already-en route deportation flight constituted noncompliance with his order. Although the Supreme Court ultimately thwarted the judge’s attempt to halt the deportation, Boasberg indicated he would move forward with contempt proceedings.
In a detailed interview with Newsmax, Dershowitz argued that the contempt effort is legally unsound on multiple grounds: the judge’s directive was impermissibly vague, an oral order cannot serve as the basis for criminal contempt, and there was no written directive mandating the recall of the flight. Dershowitz went further by suggesting that Judge Boasberg himself ought to face contempt charges for issuing an unenforceable order. This article provides a comprehensive professional analysis of the events, legal principles, and broader implications for the rule of law and separation of powers.
1. Historical and Legal Context: The Alien Enemies Act of 1798
The Alien Enemies Act (AEA), codified at 50 U.S.C. § 21–24, is one of four immigration-related statutes collectively known as the Alien and Sedition Acts of 1798. Originally conceived amid fears of foreign infiltration during the Quasi-War with France, the AEA confers broad authority on the federal executive to detain or deport nationals of designated hostile nations during times of declared war or invasion.
1.1 Key Provisions of the Act
- Detention Authority: The statute permits the detention of noncitizens from designated enemy nations if they are deemed dangerous or have harbored hostile intentions.
- Detention Period and Review: Initially, the statute allowed for indefinite detention, subject to executive determination. Modern interpretation has introduced periodic review requirements.
- Deportation Mechanism: The Attorney General is empowered to remove enemy aliens to their country of origin or a third country willing to accept them.
1.2 Modern Usage and Constraints
Over the centuries, the AEA has remained dormant except during World Wars I and II, when German, Austro-Hungarian, and later Japanese nationals were interned. Constitutional safeguards—namely due process and judicial oversight—limit the statute’s application today. Courts require a clear delineation of enemy status, appropriate procedures, and respect for basic constitutional rights.
