Trump officials refuse details on deportee flights, citing state secrets

Trump administration officials say they will not give a judge any more information about controversial deportation flights carrying alleged Venezuelan gang members, citing a privilege that allows the executive branch to withhold sensitive national security information in either criminal or civil litigation.

The unusual invocation of the state secrets privilege escalates a standoff between Trump officials and U.S. District Court Judge James E. Boasberg, who is seeking details to determine whether the government flouted his order to return the potential deportees to the United States on March 15.

Secretary of State Marco Rubio, Department of Homeland Security Secretary Kristi L. Noem and Attorney General Pam Bondi wrote in declarations submitted to Boasberg late Monday that giving him the information he wants — even under seal — would jeopardize national security and foreign relations.

They referred to the alleged members of the Tren de Aragua gang as “terrorists,” citing a designation that President Donald Trump gave to drug gangs in an executive order on his first day in office.

“It is critical to bear in mind that removal operations can be (as they are here) counterterrorism operations,” Rubio wrote. “If foreign partners believed that any relevant details could be revealed to third parties, those foreign partners would be less likely to work with the United States in the future. That impairs the foreign relations and diplomatic capabilities of the United States and threatens significant harm to the national security of the United States.”

The privilege claim, if upheld by the court, allows the executive branch to withhold evidence in some cases or, sometimes, to scuttle a lawsuit or prosecution altogether. Boasberg will have to determine whether the invocation is warranted. He gave the plaintiffs suing the government over the deportations until Monday to respond.

Democratic and Republican presidents alike have asserted the state secrets privilege since the Supreme Court recognized it as a judicial doctrine in a 1953 case.

Its use has sometimes been controversial. President George W. Bush was criticized for frequently using the privilege in cases challenging the conduct of what his administration called the “global war on terror,” while President Barack Obama faced opposition to his efforts to use the state secrets exception to block lawsuits over alleged government torture and surveillance.

Lawmakers have considered reforms to the privilege, and the Justice Department imposed new limits on using it during the Obama years. Claire Finkelstein, a national security professor at the Penn Carey Law School, said the Trump administration’s claim that it can’t share sensitive information with Boasberg even in private is unusual.

“The government does that all the time,” Finkelstein said of providing sensitive disclosures under seal. “It sure looks like the government is using the state secrets doctrine to cover up it violated the court order.”

Boasberg reaffirmed Monday his block on the administration using a wartime authority known as the Alien Enemies Act to deport migrants without hearings to determine whether they were actually in the Tren de Aragua gang. During a hearing on March 15 when he originally issued the order, Boasberg told officials to turn around any flights that had already taken off and were transporting people being deported under the act.

But officials apparently did not comply with the order. Two flights containing more than 130 alleged gang members departed shortly before Boasberg issued his directive. They continued on to a prison in El Salvador, which had negotiated an agreement with the United States to hold the alleged gang members.

The episode touched off a high-profile clash between Trump officials and Boasberg that has played out over the past week. The judge has testily questioned administration officials about when and from where the flights took off, when the planes left U.S. airspace and when the deportees were no longer in U.S. custody.

Trump officials have said they did not violate Boasberg’s order but have largely stonewalled the judge’s inquiries and sought to have him removed from the case. Trump also called for Boasberg’s impeachment, prompting Supreme Court Chief Justice John G. Roberts Jr. to issue a rare rebuke of the administration.

Before a panel of the D.C. Circuit Court of Appeals on Monday, Justice Department attorneys agreed that alleged gang members designated for removal under the Alien Enemies Act have a right to hearings challenging the designation.

But a lawyer arguing on behalf of the government surprised at least one judge on the panel by asserting that officials don’t have to tell the migrants they’ve been designated “alien enemies” or give them time to request court hearings before they are removed from the country.

“There were no procedures in place to notify [those] people. Nazis got better treatment,” Judge Patricia Millett said, referring to hearing boards for suspected Nazis targeted for removal under the Alien Enemies Act during World War II.

“We certainly dispute the Nazi analogy,” Deputy Assistant Attorney General Drew Ensign responded.

Boasberg called the administration’s use of the Alien Enemies Act to deport migrants “problematic and concerning” during a hearing Friday.

“Why was this proclamation essentially signed in the dark?” Boasberg said of Trump’s executive order. “Then these people rushed onto planes. It seems to me the only reason to do that is if you know it’s a problem, and you want to get them out of the country.”

The American Civil Liberties Union and other groups have sued to block the administration from using the Alien Enemies Act to deport alleged gang members. The act has been invoked only three other times in the nation’s history and always during wartime. Trump officials have said the gang members constitute an invasion of the United States, but the plaintiffs say that assertion is a misapplication of the law. In addition, the government has said “many” of the people deported did not have criminal records in the United States. Some of their relatives have said they were not Tren de Aragua members.

Lee Gelernt, deputy director of the ACLU’s Immigrants’ Rights Project, said Tuesday that the administration was wrong to invoke the state secrets privilege.

“There is no basis for invoking this extraordinary privilege over information already in the public domain, especially for the purpose of thwarting a federal judge’s attempt to determine if his orders were deliberately disobeyed,” Gelernt said in a statement.