President Donald Trump's administration faces a deadline on Tuesday to explain to a judge why its deportation flights carrying Venezuelan migrants did not violate a judicial order to halt such removals, a day after it argued that any disclosure of further details would jeopardize U.S. national security.
Washington-based U.S. District Judge James Boasberg last week instructed Justice Department lawyers to give him a justification for the administration's failure to return two plane loads of alleged Venezuelan gang members deported to El Salvador on March 15 despite his order blocking such deportations for two weeks. The administration has said the flights were carried out under a little-used 18th-century law.
Boasberg also has sought more details on the timing of the flights and how many Venezuelans were aboard to help him determine whether the administration violated his order.
The judge gave the administration the option of invoking the state secrets privilege, a doctrine that limits the disclosure of sensitive information in civil litigation, and justify its decision to do so. In court papers filed late on Monday, the Justice Department said it would be invoking the privilege, writing that Boasberg's inquiry was judicial overreach infringing upon the executive branch's authority over diplomatic and national security matters.
"Disclosure of this information could reasonably be expected to cause significant harm to the foreign relations interests of the United States," Secretary of State Marco Rubio wrote in a declaration filed with the judge.
Following Tuesday's deadline for the administration's explanation, lawyers for the Venezuelan migrants who brought the legal challenge to the deportations will have until March 31 to respond. Boasberg has warned of potential consequences if he concludes that the administration violated his order, but has not specified what those would be.
The case has emerged as a major test of the Republican president's sweeping assertion of executive power. With his party holding a majority in both the House of Representatives and Senate and largely falling in line behind the president's agenda, federal judges often have emerged as the only constraint on Trump's wave of executive actions.
After Boasberg temporarily halted the deportations, Trump called for the judge's impeachment in a process that could lead to his removal. In response, U.S. Chief Justice John Roberts issued a rare statement rebuking Trump and stating that appeals, not impeachment, are the proper response to disagreements with judicial decisions.
'NAZIS GOT BETTER TREATMENT'
Trump this month invoked the 1798 Alien Enemies Act to justify the removal of alleged members of Venezuelan gang Tren de Aragua without final removal orders from immigration judges, as typically needed.
Boasberg temporarily halted those deportations because he said it was not clear that the gang's presence in the United States constituted an act of war by a foreign nation as described in the act. The Alien Enemies Act had previously been used three times in U.S. history, most recently to intern and remove Japanese, German and Italian immigrants during World War Two.
Family members of many of the deported Venezuelan migrants deny the alleged gang ties. Lawyers for one of the deportees, a Venezuelan professional soccer player and youth coach, said U.S. officials had wrongly labeled him a gang member based on a tattoo of a crown meant to reference his favorite team, Real Madrid.
A hearing was held on Monday before a three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit on the administration's bid to halt enforcement of Boasberg's order. At the contentious hearing, U.S. Circuit Judge Patricia Millett said the Venezuelans deported were not afforded due process to contest the administration's assertion that they were Tren de Aragua members.
"Nazis got better treatment under the Alien Enemies Act than has happened here," Millett said, to which Justice Department lawyer Drew Ensign responded, "We certainly dispute the Nazi analogy."
The D.C. Circuit panel did not indicate when it would rule.
