The Appeals Court Is Wrong: Tren de Aragua Is a Venezuelan Guerrilla Force
The Fifth Circuit blocks Trump’s use of the Alien Enemies Act, but the intelligence is clear. An armed, light brigade-sized force entered our country, sponsored by Venezuela's dictator to wreak havoc.
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by Bart Marcois and Rod D. Martin
September 5, 2025
On Tuesday, in a 2-1 decision, the Fifth U.S. Circuit Court of Appeals issued a preliminary injunction blocking the Trump administration from using the Alien Enemies Act for deportations of suspected Tren de Aragua (TdA) gang members, holding that it found “no invasion or predatory incursion” by the criminal gang Trump cited in a proclamation invoking the law.
The court did not block deportations: it was very clear on that point. “We declare…that our injunction solely applies to the use of the war-related federal statute and does not impede use of any other statutory authority for removing foreign terrorists,” the court stated.
Nevertheless, the court is wrong: wrong on the facts, wrong on the law. Should the administration request a hearing by the full court, we believe the three-judge panel will likely be overturned. If not, we believe the Supreme Court will do that job for them.
The law itself is quite simple. Here it is, in its entirety:
Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That whenever there shall be a declared war between the United States and any foreign nation or government, or any invasion or predatory incursion shall be perpetrated, attempted, or threatened against the territory of the United States, by any foreign nation or government, and the President of the United States shall make public proclamation of the event, all natives, citizens, denizens, or subjects of the hostile nation or government, being males of the age of fourteen years and upwards, who shall be within the United States, and not actually naturalized, shall be liable to be apprehended, restrained, secured and removed, as alien enemies. [Emphasis added]
The law states clearly that the predicates for invoking the Act include “any invasion or predatory incursion attempted … by any foreign nation or government” and that “the President shall make public declaration of the event.”
So are those conditions met?
The president certainly made the required declaration. On March 15, he issued the official proclamation:
“I find and declare that TdA is perpetrating, attempting, and threatening an invasion or predatory incursion against the territory of the United States. TdA is undertaking hostile actions and conducting irregular warfare against the territory of the United States both directly and at the direction, clandestine or otherwise, of the Maduro regime in Venezuela.”
But does the situation meet the other criteria? Is the criminal gang activity of Tren de Aragua “perpetrated, attempted, or threatened by a foreign nation or government?”
An extraordinary article published around the time of the President’s proclamation by Miami Herald investigative reporter Antonio Maria Delgado provides clear answers. Delgado interviewed a team of high-level investigators and analysts who have been following the Venezuelan regime for over ten years. The only team member to speak on the record is Gary Berntsen, among the most highly decorated CIA veterans in recent history.
One of us (Bart) spoke with Berntsen shortly after the article was published. He confirmed that Tren de Aragua was purposely sent to the United States to destabilize our country.
Antonio Delgado quoted Berntsen: “The Venezuelan regime has assumed operational control of these guys [Tren de Aragua] and has trained 300 of them; they have given them paramilitary training, training them to fire weapons and how to conduct sabotage. They have given them all like a four- to six-week course. They put these 300 guys through that course, and then they were deploying them into the United States to 20 separate states.”
In other words, Tren de Aragua constitutes a state-sponsored guerrilla force, no different from the Viet Cong.
Berntsen confirmed those details and expanded on them. “Remember, sabotage includes arson,” he said. “Many of these wildfires, industrial fires, the Los Angeles fires, taking advantage of wind and the local conditions, were started by arsonists. How many of them were paid or coerced by TdA or their surrogates?”
Berntsen came forward because two CIA officials leaked false intelligence to the New York Times, claiming the agency had no intelligence connecting TdA with the Venezuelan government. But Berntsen showed proof of the close relationships among Tren de Aragua, the Venezuelan military and intelligence apparatus, Cuban intelligence, and the worst of the Latin American narcoterrorists. He has shared not only the intelligence but also the sources with elements of the U.S. government.
“The CIA doesn’t have the information because they refused to look at it,” Berntsen said. “We tried to brief them about this three years ago, but they were directed by the Biden Administration to ignore it. And now those officials are trying to undermine President Trump.”
President Trump pointed out the tight relationship in his declaration.
“Tren de Aragua … operates in conjunction with Cártel de los Soles, the Nicolas Maduro regime-sponsored, narco-terrorism enterprise based in Venezuela, and commits brutal crimes, including murders, kidnappings, extortions, and human, drug, and weapons trafficking.”
Tren de Aragua is a designated Foreign Terrorist Organization (FTO) that operates under the direction of a foreign government in conjunction with other FTOs. It is funded and assisted by narcotraffickers and Mexican drug cartels. It has entered the U.S. clandestinely with the express goal of undermining and destabilizing our country and attacking our citizens. It is set on sabotage, including arson, and is probably responsible for over $300 billion in fire damage in the past year alone.
Review the record:
Predatory? Yes.
Incursion? Yes.
Invasion? Yes. A light brigade-sized guerrilla force of military-aged men entered our country without permission to wreak havoc.
Perpetrated by a foreign nation or government? Yes. TdA was trained, directed, assisted, and funded by the government of Venezuela and its criminal allies, who have more firepower than the military forces of several nations.
In any case, events are already overtaking the appeals court ruling. On the same day, the U.S. Navy fired on a TdA boat off Venezuela, carrying “a lot” of illegal drugs bound for the United States, killing 11 TdA terrorists. This action was part of a continuing buildup of U.S. naval and marine forces off the Venezuelan coast. When asked whether the buildup could lead to U.S. boots on the ground in Venezuela, White House press secretary Karoline Leavitt refused to rule out the possibility.
We are in a shooting war with TdA, which is an arm of the Venezuelan government. Yet because TdA doesn’t wear Venezuelan army uniforms — because it’s a guerrilla army like countless others around the world — the court of appeals says the Alien Enemies Act doesn’t apply?
Hogwash. In the words of Circuit Judge Andrew Oldham, who rightly dissented, “every president of every political party has enjoyed the same broad powers to repel threats to [the] Nation under the Alien Enemies Act” over the past two centuries. So why doesn’t Trump share those clearly legal, warranted powers?
On both the facts and the law, the three-judge panel had no cause to reject President Trump’s invocation of the Alien Enemies Act. President Trump has followed the requirements of the law to the letter. He is entirely correct to stand firm and protect America and the American people.
— Rod D. Martin is Founder and CEO of Martin Capital and The Rod Martin Report. Bart Marcois was the principal deputy assistant secretary of energy for international affairs during the George W. Bush administration. He also served as a career foreign service officer with the State Department.
For the court to render this decision, what evidence do they have at their disposal that is greater than the information in the hands of the President, with the full force of the government behind his knowledge? The appeals court is disqualified on the face of it, as its ruling was highly steeped in bias and political overtones.
Good job, Sailors.