The Trump administration used the state secrets privilege late Monday in its court battle over the use of the Alien Enemies Act to deport Venezuelan migrants, refusing to divulge additional information on the flights to a judge.
The invocation declares the flights’ specifics a state secret, limiting disclosure to U.S. District Judge James Boasberg, who has vowed to “get to the bottom” of whether the Trump administration violated his order to turn around or halt the flights.
“The Court has all of the facts necessary to assess the compliance problems before it. Further incursions into the Executive Branch would result in hazardous and entirely unnecessary separation-of-powers harms with regard to diplomatic and national security concerns that the Court has the authority to address,” the Department of Justice (DOJ) stated in its brief.
It further states that using the privilege will prevent Boasberg from “colliding with the executive.”
Boasberg has requested a review of flight information in his chambers, which the Trump administration has suggested Boasberg dismiss in light of its invocation, saying “the utter lack of ‘need’ for the information the Court seeks.”
In its brief, the Trump administration reiterated that it followed Boasberg’s written order, which was submitted at 7:27 p.m. EDT on March 15.
However, at around 6:45 p.m., Boasberg issued an oral order stating that “any plane containing these folks that is going to take off or is in the air needs to be returned to the United States.”
Both oral and written orders are binding.
On Tuesday, Boasberg set a March 31 deadline for plaintiffs to respond to the DOJ’s state secrets claim.
The Trump administration continues to avoid questions about whether it cooperated with the oral order, stating simply that it did with the written one.
“In any event, the government has already confirmed that ‘two flights carrying aliens being removed under the AEA departed U.S. airspace before the Court’s minute order of 7:25 PM EDT,'” the DOJ stated Monday, using an abbreviation for Alien Enemies Act.
The American Civil Liberties Union has questioned whether the government followed the order, noting that flight information given with it by the Justice Department showed flights departing at 5:26 p.m. and 5:45 p.m., implying that they may have been turned around as requested.
The group claims that the Trump administration would have been able to comply with the order until the more than 200 Venezuelans were handed over to authorities in El Salvador, where they are still imprisoned.
The Trump administration has frequently denied Boasberg’s requests for information, with a DOJ attorney in court even informing the judge that he was “not authorized” to provide specifics about the flights.
The Trump administration has challenged Boasberg’s earlier judgment temporarily prohibiting the application of the Alien Enemies Act, appearing before the District of Columbia Circuit Court of Appeals on Monday.
The statute authorizes the deportation of migrants from a “enemy nation,” and Trump used the wartime authority to deport any Venezuelan the administration believes is a member of the Tren de Aragua gang.
During the appeal hearing, the Trump administration was chastised for deporting Venezuelans without providing them a chance to contest gang membership.
“There were planes full of passengers. There were no mechanisms in place to notify individuals. Nazis received better treatment under the Alien Enemies Act than they have here, according to U.S. Circuit Judge Patricia Millett.
“Y’all could have put me up on Saturday and thrown me on a plane, thinking I’m a member of Tren de Aragua and giving me no chance to protest it and say somehow it’s a violation of presidential war powers,” according to the judge. “For me to say, ‘Excuse me, no, I’m not, I’d like a hearing.'”
