Attorney General Pam Bondi and top Justice Department officials said the government may invoke states secret privilege to block a federal judge from viewing specific information about two deportation flights of alleged Tren de Aragua gang members, court filings Wednesday show.
In a filing excoriating D.C. District Chief Judge James Boasberg for demanding detailed information about the flights, the Justice Department said, “Continuing to beat a dead horse solely for the sake of prying from the Government legally immaterial facts and wholly within a sphere of core functions of the Executive Branch is both purposeless and frustrating to the consideration of the actual legal issues at stake in this case.” The filing was signed by Bondi and Deputy Attorney General Todd Blanche, as well as top Justice Department officials Emil Bove and Chad Mizelle.
The government argued that Boasberg’s demands for detailed information about the two flights from the U.S. to El Salvador Saturday “represent grave usurpations of the President’s powers under the Alien Enemies Act and his inherent Article II powers.”
The 1798 Alien Enemies Act allows foreigners to be summarily arrested, detained and deported, without the due process protections outlined in U.S. immigration law, including opportunities to see a judge and request asylum. Instead, they may be treated as enemy aliens and processed under America’s wartime laws. President Trump invoked the act Saturday and used it to send the two planes to El Salvador.
On Saturday, Boasberg blocked the flights and ordered them to be turned around if they were already in the air. But the government said that the flights were already in international airspace when he issued his order and argued the judge lacked jurisdiction to order their redirection. The planes landed in El Salvador Saturday night, the Trump administration said.In its filing Wednesday, the Justice Department claimed that disclosing some of the operational information to the court “could implicate the affairs of United States allies and their cooperation with the United States Government in fighting terrorist organizations.”
The department argued that the disclosure “would unquestionably create serious repercussions for the Executive Branch’s ability to conduct foreign affairs.”
Boasberg, who was frustrated by the government’s lack of details on the flights and deportation operations during the hearing on Monday, ordered the government to answer a number of questions by noon Thursday, including what time the two planes had departed from U.S. soil, their points of departure, what time the planes left U.S. airspace, when they landed, and what time the alleged gang members were transferred out of U.S. custody.
Bondi criticized Boasberg for requesting the information in the first place, repeatedly accusing him of “micromanagement of immaterial fact finding.”
“The court has now spent more time trying to ferret out information about the government’s flight schedules and relations with foreign countries than it did in investigating the facts before certifying the class action in this case,” they said in the filing. “That observation reflects how upside-down this case has become, as digressive micromanagement has outweighed consideration of the case’s legal issues.”
They continued to argue that answering the questions posed by Boasberg would subject the government to “a serious risk of micromanaged and unnecessary judicial fishing expeditions and potential public disclosure.”
In an order granting the government an additional day to comply with his order, Boasberg also criticized the Justice Department’s claim that their responses to his questions would compromise sensitive information, writing that “the Secretary of State has revealed many operational details of the flights, including the number of people involved in the flights, many of their identities, the facility to which they were brought, their manner of treatment, and the time window during which these events occurred.”
The federal civil lawsuit against Mr. Trump and other administration officials was filed by five Venezuelan men in immigration custody in Texas and New York local jails.
Boasberg’s ruling prevents the deportations of the plaintiffs and migrants for 14 days. The Justice Department has appealed the case to the D.C. Circuit Court of Appeals.
On Tuesday, lawyers representing the Venezuelan migrants suing the Trump administration warned that failing to block the president from its use would mean anyone could be treated as an enemy alien.
“The implications of the government’s position are staggering. If the President can designate any group as enemy aliens under the Act, and that designation is unreviewable, then there is no limit on who can be sent to a Salvadoran prison, or any limit on how long they will remain there,” they wrote in a filing to the appellate court.
Despite Boasberg’s ruling, 261 people were deported to El Salvador Saturday, 137 of whom were removed under the Alien Enemies Act over alleged gang ties, a senior administration official said. There are about 250 other alleged Tren de Aragua members still in the United States that the Trump administration is hoping to deport, court filings show.