Justice Department Invokes State Secrets Privilege Over Deportation Flights
The move is an escalation of the White House's attempt to claim an unchallengeable and unreviewable amount of power.
Claiming vast executive powers and "the mandate of the electorate," the Justice Department on Monday night informed a federal judge that it was invoking the state secrets privilege and refusing to answer a judge's orders for more information on several deportation flights of alleged Venezuelan gang members.
Attorney General Pam Bondi and other high-ranking Justice Department officials filed a "Notice Invoking State Secrets Privilege" claiming that it "would pose reasonable danger to national security and foreign affairs" to comply with U.S. District Judge James Boasberg's fact-finding inquiries to determine if the U.S. government violated his order to turn those deportation flights around.
The notice is an escalation of the Trump administration's battle with Boasberg, who has been the target of calls for impeachment from President Donald Trump and his allies, and also the White House's attempts to claim an unchallengeable and unreviewable amount of power over the federal government.
The Justice Department filing began by chiding Boasberg for failing to give Trump the "high respect" he was owed as the chief executive before asserting that it was engaging in a military campaign that Boasberg had neither the authority nor experience to question.
"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," the filing stated. "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 state secrets privilege, a common law doctrine that the Supreme Court first recognized in a 1953 case over military secrets, allows the government to move to exclude evidence from court cases on the grounds that disclosure would harm national security or foreign policy interests.
In the case at issue, the American Civil Liberties Union (ACLU) sued the U.S. government on behalf of five Venezuelans who were detained by immigration authorities. Despite verbal and written orders from Boasberg to halt deportation proceedings against the plaintiffs, they were placed on one of several flights to a hellish megaprison in El Salvador.
The Trump administration justified the extraordinary and unprecedented deportation flights by issuing a March 15 proclamation designating Tren de Aragua (TdA), a violent Venezuelan gang, as a "Foreign Terrorist Organization." The proclamation also said suspected TdA members were subject to removal from the country via the Alien Enemies Act of 1798, which allows the detention and removal of migrants when there is a declared war or "invasion or predatory incursion" by a foreign government.
Although the Trump administration insists the deportation flights are subject to heightened secrecy, there was a large amount of information about them publicly available in real-time, and the White House used footage of detainees for its own trollish propaganda.
Boasberg has repeatedly ordered the Justice Department to produce detailed information on those flights to determine if officials knowingly defied his orders. The Trump administration has offered various explanations for why it did not comply—that it didn't consider Boasberg's verbal order valid, and that Boasberg didn't have jurisdiction once the flights crossed into international space, for instance.
As Boasberg's fact-finding orders have proceeded toward considering contempt, the Justice Department's responses have grown more obstinate, culminating in Monday night's invocation of the state secrets privilege.
"No more information is needed to resolve any legal issue in this case," the filing said. "Whether the planes carried one TdA terrorist or a thousand or whether the planes made one stop or ten simply has no bearing on any relevant legal issue. The need for additional information here is not merely 'dubious,' or 'trivial,' it is non-existent. The Executive Branch violated no valid order through its actions, and the Court has all it needs to evaluate compliance. Accordingly, the Court's factual inquiry should end."
To sum up, the Trump administration is claiming that it can declare a war by executive order and send immigrants to a labor camp in another country, all without meaningful judicial review of the facts. As Ilya Somin recently wrote at The Volokh Conspiracy, the Trump administration's policy violates the Due Process Clause of the Constitution and is "obviously unjust."
"Imprisoning people without any due process whatsoever is a cruel and evil practice usually used only by authoritarian states," Somin wrote. "And if the Trump administration gets away with it here, there is an obvious danger it will expand the practice."
The Trump administration's attempt to invoke the state secrets privilege raises another, tertiary danger: that we won't even be able to know if they're expanding the practice.
