Department of Justice attorneys replied on Thursday to Judge James Boasberg’s questions about flights that deported migrants last weekend as the judge weighs whether the Trump administration followed his order to temporarily halt its use of the Alien Enemies Act to deport people.
Boasberg quickly responded that he was dissatisfied with the DOJ’s reply, which attorneys submitted under seal. In a new order Thursday, the judge said that the DOJ “evaded its obligations” by filing a “woefully insufficient” response shortly after the noon deadline he had set. He demanded more information within the next five days.
The judge’s rebuke was the latest indicator of growing tension between the DOJ and Boasberg, an Obama appointee and chief judge of the district court in Washington, D.C. The lawsuit began after President Donald Trump invoked the rarely used Alien Enemies Act on March 15. When Boasberg issued a 14-day block on Trump’s action, the president and his base began calling to impeach the judge.
The administration has maintained that the Alien Enemies Act allowed it to bypass all typical deportation processes and instead immediately remove from the country Venezuelan migrants allegedly associated with the transnational gang Tren de Aragua.
The American Civil Liberties Union sued on behalf of the Venezuelans, arguing that the Trump administration did not meet the conditions to invoke the Alien Enemies Act, which has only ever been used during wartime.
The Trump administration boasted over the weekend that it had flown more than 250 “alien enemy members” of Tren de Aragua, who had been detained in U.S. Immigration and Customs Enforcement facilities, from the United States to prisons in El Salvador.
An ICE official said in court papers that two flights carrying the deportees took off on Saturday before Boasberg issued his written order pausing the flights at 7:25 p.m. Trump DOJ attorneys resisted Boasberg’s order to provide any further details about those two flights as questions persist about whether the Trump administration defied the judge’s oral order halting the flights, which Boasberg issued around 6:48 p.m.
A DOJ spokesman told the Washington Examiner in a statement Thursday that the department remains opposed to Boasberg’s demands for that information.
“The Department of Justice continues to believe that the court’s superfluous questioning of sensitive national security information is inappropriate judicial overreach,” the spokesman said.
The DOJ said Wednesday, minutes before responses were initially due in court, that it was considering whether to assert the “state secrets privilege,” which could allow it to withhold information about the flights in question from the court for national security purposes.
Skeptical of the DOJ’s last-minute claim, Boasberg gave the DOJ one more day, until Thursday at noon, to either explain why it planned to use the state secrets privilege or provide the details of the two flights.
Boasberg revealed Thursday that in its private submission to the court, the DOJ provided only an ICE official’s secondhand declaration about the possibility of a Cabinet member asserting the state secrets privilege.
“I understand that Cabinet Secretaries are currently actively considering whether to invoke the state secrets privilege over the other facts requested by the Court’s order,” the official said, according to Boasberg.
The judge demanded more clarity by Friday morning and other details by Tuesday, including an explanation for how the two flights in question did not conflict with his order.
TRUMP ADMINISTRATION PROJECTS DEFIANCE BUT SHOWS COMPLIANCE IN COURTS — FOR NOW
The ACLU has argued that some of the migrants who were deported are not Tren de Aragua members, but the ICE official said in court papers that government authorities “carefully vetted” the migrants to confirm their affiliation with the gang.
“The implications of the government’s position are staggering,” ACLU attorneys wrote in a filing Wednesday. “If the President can label 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.”
