(WASHINGTON) — The Trump administration is refusing to provide a federal judge with any additional information about last week’s deportation flights under the Alien Enemies Act, arguing the disclosure of the information would “pose reasonable danger to national security and foreign affairs.”
In a court filing Monday evening and in a series of sworn affidavits by three top cabinet officials, the Trump administration invoked the “state secrets privilege” to attempt to stop U.S. District Judge James Boasberg from learning more information about the flights as the judge tries to determine if the government willfully violated a court order last week.
Boasberg last week issued a temporary restraining order and ordered that the government turn around two deportation flights on their way to El Salvador after the Trump administration invoked the Alien Enemies Act to deport more than 200 alleged Venezuelan gang members without due process.
The government failed to turn the flights around, and an official subsequently acknowledged that “many” of the detainees did not have criminal records in the United States.
“This is a case about the President’s plenary authority, derived from Article II and the mandate of the electorate, and reinforced by longstanding statute, to remove from the homeland designated terrorists participating in a state-sponsored invasion of, and predatory incursion into, the United States,” Deputy Assistant Attorney General Drew Ensign wrote in Monday’s filing. “The Court has all of the facts it needs to address the compliance issues before it.”
To determine if the Trump administration complied with his order last week, Judge Boasberg had requested information about the number of alleged gang members on each flight, when the flights took off and left U.S. airspace, where the flights landed, and when the men were transferred out of U.S. custody. The Trump administration so far has refused to provide any of the requested information.
In a sworn affidavit, Secretary of Homeland Security Kristi Noem argued that disclosing the timing of the flights or the number of alleged gang members on board each flight would “cause significant harm to the national security of the United States” by exposing “critical means and methods of law enforcement operations” and potentially harming diplomatic relationships.
“Removal flight plans — including locations from which flights depart, the planes utilized, the paths they travel, where they land, and how long they take to accomplish any of those things — reflect critical means and methods of law enforcement operations,” said Noem.
“In addition to flight operations, the number of TdA members on a given removal flight is also information that, if disclosed, would expose ICE’s means and methods, thus threatening significant harm to the national security of the United States,” Noem said, referring to the Tren de Aragua gang.
While the flight information in question is available through public aircraft tracking programs, Noem argued that confirming the information would still be “damaging to national interests” by enabling the country’s “enemies.”
“If the Government were to confirm or deny the information sought by this Court’s Minute Order, there would arise a danger that enemies of our national security would be able to stitch together an understanding of the means and methods used to thwart their unlawful and sometimes violent conduct,” Noem wrote.
In addition to Noem, Secretary of State Marco Rubio and Attorney General Pam Bondi also submitted sworn affidavits. In his declaration, Rubio said that disclosing the information would make it harder to negotiate removals going forward and harm the “high stakes negotiation” with the detainees’ home county.
“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,” Rubio wrote. “That impairs the foreign relations and diplomatic capabilities of the United States and threatens significant harm to the national security of the United States.”
With the Trump administration invoking state secrets privilege, Judge Boasberg will have to determine whether the government has provided sufficient information to justify keeping the information under wraps. Justice Department lawyers also declined to provide any information to Judge Boasberg in camera — in a private setting without public disclosure of the materials — by arguing that he is not entitled to information about diplomatic secrets.
“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,” Ensign wrote.
The Trump administration faces a separate deadline Tuesday to prove they did not violate Judge Boasberg’s order to return the two flights carrying alleged gang members. Ensign wrote that the government plans to comply with that request and prove that there is “no basis for the suggestion of noncompliance with any binding order.”
Monday’s court filing came on the same day a federal appeals court heard arguments from the Trump administration seeking to overturn Boasberg’s block on the use of the Alien Enemies Act for deportations. The appeals court did not issue an immediate ruling.
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