Trump administration invokes state secrets privilege in case over deportations under wartime law

By Michael Kunzelman

The Trump administration on Monday invoked a “state secrets privilege” and refused to give a federal judge any additional information about the deportation of Venezuelan migrants to El Salvador under an 18th century wartime law — a case that has become a flashpoint amid escalating tension with the federal courts.

The declaration comes as U.S. District Judge James Boasberg weighs whether the government defied his order to turn around planes carrying migrants after he blocked deportations of people alleged to be gang members without due process.

Boasberg, the chief judge of the federal district court in Washington, has asked for details about when the planes landed and who was on board, information that the Trump administration asserts would harm “diplomatic and national security concerns.”

Government attorneys also asked an appeals court on Monday to lift Boasberg’s order and allow deportations to continue, a push that appeared to divide the judges.

Circuit Court Judge Patricia Millett said Nazis detained in the U.S. during World World II received better legal treatment than Venezuelan immigrants who were were deported to El Salvador this month under the same statute.

“We certainly dispute the Nazi analogy,” Justice Department attorney Drew Ensign responded during a hearing of the U.S. Court of Appeals for the District of Columbia Circuit.

Millett is one of three appellate judges who will decide whether to lift a March 15 order temporarily prohibiting deportations under the Alien Enemies Act of 1798. They didn’t rule from the bench Monday.

A second judge appeared open to the administration’s argument that the migrants should be challenging their detention in Texas rather than the nation’s capital. The third judge on the panel didn’t ask any questions.

The administration has transferred hundreds of Venezuelan immigrants to El Salvador, invoking the Alien Enemies Act for the first time since World War II.

Also on Monday, attorneys representing the Venezuelan government filed a legal action in El Salvador to free 238 Venezuelans who are being held in a Salvadoran maximum-security prison after the U.S. deported them.

President Donald Trump’s administration appealed after Boasberg blocked those deportations and ordered planeloads of Venezuelan immigrants to return to the U.S. That did not happen.

The Alien Enemies Act allows noncitizens to be deported without the opportunity to go before an immigration or federal court judge. Trump issued a proclamation calling the Tren de Aragua gang an invading force.

Ensign argued that Boasberg’s ruling was an “unprecedented and enormous intrusion upon the powers of the executive branch.”

“The president has to comply with the Constitution and the laws like anyone else,” said MiIlett, who was nominated by Democratic President Barack Obama in 2013.

Judge Justin Walker, whom Trump nominated in 2020, seemed to be more receptive to the administration’s arguments based on his line of questioning. Walker pointed to the government’s arguments that the plaintiffs should have filed their lawsuit in Texas, where the immigrants were detained.

“You could have filed the exact same complaint you filed here in Texas district court,” Walker told American Civil Liberties Union attorney Lee Gelernt.

“We have no idea if everyone is in Texas,” Gelernt said.

Walker also pressed the plaintiffs’ lawyer to cite any prior case in which a judicial order blocking “a national security operation with foreign implications” survived appellate review.

Gelernt accused the administration of trying to use the law to “short circuit” immigration proceedings. Plaintiffs’ attorneys had no way to individually challenge all the deportations before planeloads of Venezuelans took off on March 15, he added.

“This has all been done in secret,” Gelernt said.

Judge Karen LeCraft Henderson, who was nominated by Republican President George H.W. Bush in 1990, was the third judge on the panel. She didn’t ask any questions during a hearing that lasted roughly two hours.

Boasberg, an Obama nominee, ruled that immigrants facing deportation must get an opportunity to challenge their designations as alleged gang members. He said there is “a strong public interest in preventing the mistaken deportation of people based on categories they have no right to challenge.”

“The public also has a significant stake in the Government’s compliance with the law,” the judge wrote.

Trump and his allies have called for impeaching Boasberg. In a rare statement, Supreme Court Chief Justice John Roberts said “impeachment is not an appropriate response to disagreement concerning a judicial decision.”

Just after midnight Monday, Trump posted a social media message questioning Boasberg’s impartiality and calling for him to be disbarred.

During a hearing Friday, Boasberg vowed to determine whether the government defied his oral order from the bench to turn planes around. The Justice Department has said that the judge’s oral directions did not count, that only his written order needed to be followed and that it couldn’t apply to flights that had already left the U.S.