Trump administration invokes state secrets privilege in deportation flights case

The Trump administration invoked the state secrets privilege late Monday in its court battle over its use of the Alien Enemies Act to deport Venezuelan migrants, again refusing to provide more details about the flights to a judge.

The invocation deems details about the flights a state secret — seeking to limit information 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 it needs to address the compliance issues before it. 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 Department of Justice (DOJ) wrote in its filing.

It adds that invoking the privilege will stop Boasberg from “colliding with the executive.”

Boasberg has called for a review of flight information in his chambers — something the Trump administration wrote Boasberg should drop in the wake of its invocation, citing “the utter lack of 'need' for the information the Court seeks.”

In its filing, the Trump administration again asserted that it complied with Boasberg's written order filed at 7:27 p.m. EDT on March 15.

But Boasberg gave an oral order that day at approximately 6:45 p.m. 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.

The Trump administration continues to sidestep questions over whether it compiled with the oral order, saying only that it complied 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 wrote Monday, using an abbreviation for Alien Enemies Act.

The American Civil Liberties Union has questioned whether the government complied with the order, noting flight information shared with it by the Justice Department indicated flights left at 5:26 p.m. and 5:45 p.m., suggesting they could have been turned around, as directed.

The group argues the Trump administration would have been able to comply with the order up until the moment the more than 200 Venezuelans were turned over to authorities in El Salvador, where they remain imprisoned.

The Trump administration has repeatedly rebuffed Boasberg’s requests for information, with a DOJ attorney in court at one point telling the judge that he was “not authorized” to give details about the flights.

The Trump administration has appealed an earlier order from Boasberg temporarily blocking the use of the Alien Enemies Act, appearing before the District of Columbia Circuit Court of Appeals on Monday.

The act allows for the deportation of migrants from an “enemy nation,” and Trump invoked the wartime power to remove any Venezuelan the administration deems to be a member of the Tren de Aragua gang.

During the appeal hearing, the Trump administration was taken to task for deporting the Venezuelans without giving them the opportunity to contest gang membership.

“There were planeloads of people. There were no procedures in place to notify people. Nazis got better treatment under the Alien Enemies Act than has happened here,” U.S. Circuit Judge Patricia Millett said.

“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,” the judge said. “For me to say, ‘Excuse me, no, I’m not, I’d like a hearing.’” 

Updated at 9:10 a.m. EDT