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When the Washington Post reported via anonymous sources that a government intelligence assessment concluded the Venezuelan government was not directing the migration of members of the Trenreport de Aragua gang to the United States, Tulsi Gabbard, the director of national intelligence, dismissed such reports and said those “behind this illegal leak of classified intelligence” had “twisted and manipulated [the information] to convey the exact opposite finding.”
But a redacted copy of the intelligence memo shows that the Washington Post’s reporting was accurate.
The April 7 intelligence assessment broadly concluded that Venezuelan President Nicolás Maduro’s “regime probably does not have a policy of cooperating with TDA and is not directing TDA movement to and operations in the United States.”
The six-page memo from the National Intelligence Council, “Venezuela: Examining Regime Ties to Tren de Aragua,” was released by the Office of the Director of National Intelligence on May 5 in response to a Freedom of Information Act request from the Freedom of the Press Foundation. The foundation provided us a copy of that memo.
The conclusions in the National Intelligence Council memo — the shared assessment of 18 U.S. intelligence organizations — undercut the basis for President Donald Trump’s March 15 invocation of the Alien Enemies Act to summarily deport Venezuelan immigrants suspected of affiliation with Tren de Aragua. In that proclamation, the Trump administration argued that TdA is “conducting irregular warfare” in the U.S. and operating “in conjunction” with the Maduro regime, and in support of “the Maduro regime’s goal of destabilizing democratic nations in the Americas, including the United States.”
As we have written, the Alien Enemies Act is an 18th century law that says that in times of war or during an “invasion or predatory incursion … by any foreign nation or government,” the president can apprehend, restrain, secure and remove any immigrants who came from the enemy country.
Trump’s use of the Alien Enemies Act hinges on two assertions: that TdA is “perpetrating, attempting, and threatening an invasion or predatory incursion against the territory of the United States” and that it is acting “at the direction, clandestine or otherwise, of the Maduro regime in Venezuela.”
As we said, the National Intelligence Council memorandum broadly contradicted that second statement.
What the Memo Says
According to the NIC memo, “While Venezuela’s permissive environment enables TDA to operate, the Maduro regime probably does not have a policy of cooperating with TDA and is not directing TDA movement to and operations in the United States.”
The NIC memo listed several reasons for its conclusion.
First, it said, “Venezuelan intelligence, military, and police services view TDA as a security threat and operate against it in ways that make it highly unlikely the two sides would cooperate in a strategic or consistent way.” The memo noted that in late January, “at least two Venezuelan National Guard units arrested TDA members in Venezuela in separate operations.”
The memo further noted — citing press reports and redacted sources — that “[s]ince at least 2016, Venezuelan security forces have periodically engaged in armed confrontations with TDA, resulting in the killing of some TDA members.”
The memo stated that the intelligence community “has not observed the regime directing TDA, including to push migrants to the United States, which probably would require extensive coordination, and funding between regime entities and TDA leaders that we would collect.” The memo stated that “the decentralized makeup of TDA … would make such a relationship logistically challenging.” The memo also noted that the IC “recognizes the regime appreciates migration as a safety valve, allowing discontented Venezuelans to leave.”
In her April 21 social media post criticizing press reports about the then unreleased memo, Gabbard contradicted those assessments, saying, “The Office of the Director of National Intelligence fully supports the assessment that the foreign terrorist organization, Tren De Aragua, is acting with the support of the Maduro Regime, and thus subject to arrest, detention and removal as alien enemies of the United States.”
“Illegal immigrant criminals have raped, tortured, and murdered Americans, and still, the propaganda media continues to operate as apologists for them,” Gabbard said in a released statement. “It is outrageous that as President Trump and his administration work hard every day to make America safe by deporting these violent criminals, some in the media remain intent on twisting and manipulating intelligence assessments to undermine the President’s agenda to keep the American people safe.”
But the released NIC memo shows the media reports were not twisting the intelligence assessments. As the Washington Post reported on April 17, “The intelligence product found that although there are some low-level contacts between the Maduro government and Tren de Aragua, or TdA, the gang does not operate at the direction of Venezuela’s leader. The product builds on U.S. intelligence findings in February, first reported by the New York Times, that the gang is not controlled by Venezuela.”
The FBI’s Position
The FBI was the lone agency among the 18 U.S. intelligence organizations on the National Intelligence Council that offered partial dissent. (Other NIC organizations include the CIA, the five Department of Defense armed services, the Department of Homeland Security’s Office of Intelligence, and the Department of State’s Bureau of Intelligence and Research.)
According to the memo, “While FBI analysts agree with the above assessment, they assess some Venezuelan government officials facilitate TDA members’ migration from Venezuela to the United States and use members as proxies in Chile, Colombia, Ecuador, Peru, and the United States to advance what they see as the Maduro regime’s goal of destabilizing governments and undermining public safety in these countries, based on DHS [Department of Homeland Security] and FBI reporting as of February 2024.” (The italics are the memo’s emphasis.)
On April 23, Fox News Digital said it talked to an unnamed “senior administration official” who shared unclassified portions of an FBI report in which “[t]he FBI assesses that in the next six to 18 months, Venezuelan government officials likely will attempt to leverage Tren de Aragua members in the United States as proxy actors to threaten, abduct and kill members of the Venezuelan diaspora in the United States who are vocal critics of Maduro and his regime.”
In a speech in Michigan on April 29, Trump referenced that report, saying, “The FBI recently assessed that these vicious gangs have been sent by the foreign regime in Venezuela to foment violence and instability in the United States of America.”
The NIC memo, however, said that “most of the IC” has concluded that “intelligence indicating that regime leaders are directing or enabling TDA migration to the United States is not credible.”
“Some regime officials are probably willing to capitalize on migration for personal financial or other benefits, even though the Maduro regime probably is not systematically directing Venezuelan outflows, such as to sow chaos in receiving countries,” the NIC memo stated. “The intelligence record indicates Venezuelans have migrated voluntarily, often at great personal risk, to flee political instability and near-collapse of Venezuela’s economy. The IC attributes increased migration flows, including the spike in US arrivals from 2021 to 2024 of Venezuelan nationals –which could include some TDA members — to a variety of push and pull factors including socioeconomic conditions, family ties to the United States, and migrants’ perceptions of US and regional enforcement.”
But the NIC said that while Maduro may not have been directing the migration of Venezuelans, neither has he sought to stem it, saying that migration “helped him retain power by having dissidents leave the country.”
“The Maduro regime may have also welcomed the logistical, financial, and political headaches that unregulated migration has caused for the US Government, its perceived principal adversary, even if not a principal intent,” the memo stated.
Even in cases of “limited IC reporting suggesting a link between TDA and some Venezuelan officials aimed at facilitating TDA migration to the United States,” the memo noted that “in some cases, reporting warns that these sources could also be motivated to fabricate information.”
An official in Gabbard’s ODNI, however, said there’s reason to put more credence in the FBI intelligence than the assessment from the umbrella National Intelligence Council. The FBI assessment is based on its domestic law enforcement operations against TdA in the U.S., an ODNI official told us. “This information and intelligence are the most robust and accurate given their focus on domestic security and crimes, versus limited intelligence assessments from other intelligence elements who by law focus solely on foreign intelligence collection, and who until President Trump took office, had very limited resources focused on TdA,” the official said.
The ODNI official argued that the Venezuelan government is “aiding and abetting” TdA by creating conditions in the country that enable it to thrive — much the same way that the Taliban government in Afghanistan was providing sanctuary to al Qaeda, and thereby enabling al Qaeda to carry out its Sept. 11, 2001, attack in the U.S. The official also pointed to comments that José Gustavo Arocha, a former lieutenant colonel in the Venezuelan army, made to Fox News Digital in December. Arocha said that TdA is “a state-sponsored Maduro regime organization. The real boss of the Tren de Aragua is in Caracas, Venezuela. It is the Maduro regime, because they created TdA, and they use the TdA as a blackmail [tool] for any situation.”
The NIC memo acknowledged, “The lack of transparency and accountability in Venezuela has created an environment for widespread corruption and for regime officials to benefit from a variety of illicit activities, an environment fueled by Maduro’s illegitimate and autocratic grip on power. This persistent outflow of migrants probably offers opportunities for some regime officials in capacities to facilitate migration movement to look for and receive personal kickbacks for their services, and to conceal the benefits they receive.”
The memo noted that U.S. law enforcement reports claim members of the regime “have cooperated with TDA by providing financial or material support, but we cannot verify the sources’ access. Even so, these reports do not claim that these figures direct the group.”
And, the NIC memo warned, “Some reports come from people detained for involvement in criminal activity in the United States or for entering the country illegally, which could motivate them to make false allegations about their ties to the Venezuelan regime in an effort to deflect responsibility for their crimes and to lessen punishment by providing exculpatory or otherwise ‘valuable’ information to US prosecutors.”
Courts on Use of Alien Enemies Act
The question of whether the Maduro regime in Venezuela is coordinating with TdA is central to the Trump administration’s argument for invoking the Alien Enemies Act in order to — as Trump put it — “expel every foreign terrorist from our soil as quickly as possible.” As we said, the act pertains to times of war or an “invasion” by a “foreign nation or government.”
The act has been used three times in U.S. history, during the War of 1812, World War I and World War II.
In his March 15 proclamation invoking the Alien Enemies Act, Trump declared 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.” And as a result, the proclamation said, “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.”
Trump invoked the act in March to summarily deport 238 Venezuelan migrants alleged to be members of TdA, who were then sent to a mega prison in El Salvador. But the New York Times found no evidence that a vast majority of the men had any connection to Tren de Aragua.
Some federal judges have ruled that the administration can’t use the Alien Enemies Act in this way.
On May 1, a federal district judge in Texas — who was appointed by Trump — concluded that Trump had improperly applied the Alien Enemies Act.
“[T]he historical record renders clear that the President’s invocation of the AEA through the Proclamation exceeds the scope of the statute and is contrary to the plain, ordinary meaning of the statute’s terms,” U.S. District Judge Fernando Rodriguez Jr. wrote. “As a result, the Court concludes that as a matter of law, the Executive Branch cannot rely on the AEA, based on the Proclamation, to detain the Named Petitioners and the certified class, or to remove them from the country.”
In similar cases in other states, two more federal judges have since concurred.
“Since Respondents have not demonstrated the existence of a ‘war,’ ‘invasion’ or ‘predatory incursion,’ the AEA was not validly invoked by the Presidential Proclamation,” Judge Alvin Hellerstein, a federal judge in the Southern District of New York who was appointed by President Bill Clinton, wrote in a May 6 ruling.
“Petitioners have not been given notice of what they allegedly did to join TdA, when they joined, and what they did in the United States, or anywhere else, to share or further the illicit objectives of the TdA,” Hellerstein wrote. “Without such proof, Petitioners are subject to removal by the Executive’s dictate alone, in contravention of the AEA and the Constitutional requirements of due process.”
The same day, a federal district judge in Colorado, an appointee of President Joe Biden, said she found “unpersuasive” the Trump administration’s definition of “invasion” to broadly include “hostile entrance,” or “hostile encroachment.” U.S. District Judge Charlotte Sweeney said she agreed the word “invasion” meant military action against the U.S.
These decisions can all be appealed by the Trump administration, and the question of whether the president can use the Alien Enemies Act may ultimately end up before the Supreme Court.
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