The Trump administration told a federal judge on Monday night that it would not disclose any further information about two flights of Venezuelan migrants it sent to El Salvador this month despite a court order to turn back the planes, declaring that doing so would jeopardize state secrets.
The move sharply escalated the growing conflict between the administration and the judge — and, by extension, the federal judiciary — in a case that legal experts fear is precipitating a constitutional crisis.
For almost 10 days, the judge, James E. Boasberg of the Federal District Court in Washington, has been trying to get the Trump administration to give him information about the two flights in an effort to determine whether officials allowed them to continue on to El Salvador in violation of his order to have them return to the United States.
But in a patent act of defiance, the Justice Department told Judge Boasberg that giving him any further information about the flights — which the Trump administration maintains were carrying members of a Venezuelan street gang called Tren de Aragua — would “undermine or impede future counterterrorism operations.”
“The court has all of the facts it needs to address the compliance issues before it,” the department wrote in a filing. “Further intrusions on the executive branch would present dangerous and wholly unwarranted separation-of-powers harms with respect to diplomatic and national security concerns that the court lacks competence to address.”
The state secrets privilege is a legal doctrine that can allow the executive branch to block the use of evidence in court — and sometimes shut down entire lawsuits — when it says litigating such matters in open court would risk revealing information that could damage national security.
Typically, however, the executive branch confidentially provides a detailed description of the sensitive evidence to a judge to show why it is too sensitive to discuss in open court. The Trump administration’s move is extraordinary in part because it is refusing to provide information to Judge Boasberg — a former presiding judge of the nation’s national security surveillance court — even privately and in a secure facility for handling classified information.
Indeed, the administration has not even claimed the information at issue is classified.
Instead, it submitted statements from Marco Rubio and Kristi Noem, the secretaries of state and homeland security, saying that sharing the information with a court would jeopardize national security and foreign policy, including by making foreign partners less likely to trust the Trump administration to keep confidential negotiations and operational details secret, and by fueling public speculation about the matter.
The Justice Department’s stubborn response to Judge Boasberg came on the same day that he reaffirmed his initial order barring the Trump administration from using a wartime law, the Alien Enemies Act, to summarily deport scores of Venezuelan migrants it deemed to be members of Tren de Aragua.
The judge’s order said that the block should remain in place so the migrants could have the opportunity to challenge accusations that they belong to the gang before being flown out of the country to a prison in El Salvador.
Also on Monday, a federal appeals court in Washington held a nearly two-hour hearing on the Trump administration’s request to nullify Judge Boasberg’s underlying order, taking up many of the same issues.
The three-judge panel did not issue an immediate ruling. But during questioning, a Justice Department lawyer acknowledged that if the court were to reverse Judge Boasberg’s order, the administration could immediately resume transferring people to the Salvadoran prison.
From the moment Judge Boasberg, the chief judge of the Federal District Court in Washington, entered his original order pausing the deportation flights on March 15, Mr. Trump and his allies have accused him of overstepping his authority by intruding on the president’s prerogative to conduct foreign affairs.
The question at the heart of the case turns equally on the issue of whether Mr. Trump himself overstepped by ignoring limits set out in the text of the Alien Enemies Act and in the Constitution for when and how wartime deportations can take place.
The law, passed in 1798, gives the government wide latitude during an invasion or wartime to summarily round up subjects of a “hostile nation” who are over the age of 14 and remove them from the country with little or no due process.
The administration has repeatedly claimed that the Venezuelan migrants in question are members of Tren de Aragua and should be considered subjects of a hostile nation because Mr. Trump has said they were acting at the direction of the Venezuelan government.
The White House has also insisted that the arrival of dozens of members of the gang to the United States constitutes an invasion or a “predatory incursion” under the law, which can prompt a president’s wartime deportation powers even without a declared war.
Lawyers for Venezuelan migrants have maintained that the law cannot be used against Tren de Aragua members because the gang is not a government and its activities do not amount to an invasion. Notably, the U.S. intelligence community circulated an assessment last month concluding that the gang is not under the control of the Venezuelan government, contrary to what Mr. Trump has since contended.
The lawyers have also questioned whether many of the migrants the Trump administration has accused of belonging to Tren de Aragua are actually members of the gang. They have argued that the Venezuelans should be able to challenge those determinations before being flown out of the country.
When Judge Boasberg initially paused the flights, he said his decision was based on both the lack of due process the migrants received and on the larger question about whether Mr. Trump’s use of the Alien Enemies Act truly fit the situation at hand.
But in keeping the restraining order in place, the judge wrote that he had relied solely on the issue of due process. He added that he did not need to “resolve the thorny question of whether the judiciary has the authority to assess” Mr. Trump’s claim that the Alien Enemies Act can be legitimately used against Tren de Aragua as a group.
During the hearing on Monday before the appeals court panel, two of the judges seemed to agree that the migrants the government wants to remove under the law could go to court to challenge whether they were actually members of Tren de Aragua.
But it was unclear what those challenges might look like.
One of the judges, Patricia A. Millett, a Democratic appointee, signaled skepticism with the government’s position that the panel should stay Judge Boasberg’s restraining order.
She grilled a Justice Department lawyer, suggesting that if the Venezuelans could be deported without due process, then anyone — herself included — could simply be declared a national security threat and flown out of the country. And Judge Millett pointed out that even German citizens arrested under the Alien Enemies Act during World War II had the opportunity to argue in hearings that the law did not apply to them.
“Nazis got better treatment under the Alien Enemies Act,” she said.
A second judge, Justin R. Walker, a Republican appointee, agreed that the migrants could challenge whether they were covered by Mr. Trump’s invocation of the wartime act, but he appeared to be skeptical of allowing Judge Boasberg’s order to stay in place for technical reasons.
He repeatedly suggested that if migrants wanted to challenge their removal they should do so not in Washington, but in places where they are being held, like Texas.
The third judge on the panel, Karen L. Henderson, a Republican appointee, said almost nothing at the hearing.
The Justice Department’s invocation of the state secrets privilege was only its latest effort to stonewall Judge Boasberg’s attempts to understand whether the government had violated his order.
Last week, just hours before a hearing in which they were going to have to discuss the flight, department lawyers moved to cancel the proceeding. On the same day, they took the even bolder step of trying to having Judge Boasberg removed from the case.
But the invocation of the state secrets privilege in this context was a new level of aggression.
The Supreme Court first recognized the state secrets privilege in a 1953 decision that approved the withholding of information whenever there is “reasonable danger” of exposing information that should not be divulged for national security reasons.
After the Bush administration frequently invoked the state secrets privilege to block lawsuits on topics like torture and warrantless wiretapping, the Justice Department in the Obama era imposed new limits on the power.
The policy called for the department to reject a request to use the privilege if officials decide the motivation for doing so is to “conceal violations of the law, inefficiency or administrative error,” to “prevent embarrassment” or to block information “the release of which would not reasonably be expected to cause significant harm to national security.”
Attorney General Pam Bondi told Judge Boasberg in a filing that she was satisfied that the Trump administration’s new invocation of the privilege was “adequately supported and warranted.”
.
