The ongoing Boasberg Battle

The Trump administration told a federal judge on Monday night that it would not disclose any further information about two flights of Venezuelan migrants it sent to El Salvador this month despite a court order to turn back the planes, declaring that doing so would jeopardize state secrets.

The move sharply escalated the growing conflict between the administration and the judge — and, by extension, the federal judiciary — in a case that legal experts fear is precipitating a constitutional crisis.

  NYT

Precipitating? We are already there.

For almost 10 days, the judge, James E. Boasberg of the Federal District Court in Washington, has been trying to get the Trump administration to give him information about the two flights in an effort to determine whether officials allowed them to continue on to El Salvador in violation of his order to have them return to the United States.

But in a patent act of defiance, the Justice Department told Judge Boasberg that giving him any further information about the flights — which the Trump administration maintains were carrying members of a Venezuelan street gang called Tren de Aragua — would “undermine or impede future counterterrorism operations.”

“The court has all of the facts it needs to address the compliance issues before it,” the department wrote in a filing.

Wow.

The state secrets privilege is a legal doctrine that can allow the executive branch to block the use of evidence in court — and sometimes shut down entire lawsuits — when it says litigating such matters in open court would risk revealing information that could damage national security.

Typically, however, the executive branch confidentially provides a detailed description of the sensitive evidence to a judge to show why it is too sensitive to discuss in open court. The Trump administration’s move is extraordinary in part because it is refusing to provide information to Judge Boasberg — a former presiding judge of the nation’s national security surveillance court — even privately and in a secure facility for handling classified information.

Indeed, the administration has not even claimed the information at issue is classified.

[...]

Also on Monday, a federal appeals court in Washington held a nearly two-hour hearing on the Trump administration’s request to nullify Judge Boasberg’s underlying order, taking up many of the same issues.

The three-judge panel did not issue an immediate ruling. But during questioning, a Justice Department lawyer acknowledged that if the court were to reverse Judge Boasberg’s order, the administration could immediately resume transferring people to the Salvadoran prison.

[...]

During the hearing on Monday before the appeals court panel, two of the judges seemed to agree that the migrants the government wants to remove under the law could go to court to challenge whether they were actually members of Tren de Aragua.

But it was unclear what those challenges might look like.

One of the judges, Patricia A. Millett, a Democratic appointee, signaled skepticism with the government’s position that the panel should stay Judge Boasberg’s restraining order.

She grilled a Justice Department lawyer, suggesting that if the Venezuelans could be deported without due process, then anyone — herself included — could simply be declared a national security threat and flown out of the country. And Judge Millett pointed out that even German citizens arrested under the Alien Enemies Act during World War II had the opportunity to argue in hearings that the law did not apply to them.

“Nazis got better treatment under the Alien Enemies Act,” she said.

A second judge, Justin R. Walker, a Republican appointee, agreed that the migrants could challenge whether they were covered by Mr. Trump’s invocation of the wartime act, but he appeared to be skeptical of allowing Judge Boasberg’s order to stay in place for technical reasons.

He repeatedly suggested that if migrants wanted to challenge their removal they should do so not in Washington, but in places where they are being held, like Texas.

The third judge on the panel, Karen L. Henderson, a Republican appointee, said almost nothing at the hearing.

[...]

Attorney General Pam Bondi told Judge Boasberg in a filing that she was satisfied that the Trump administration’s new invocation of the privilege was “adequately supported and warranted.”

It used to be that the judge was the one who needed to be satisfied.

UPDATE 03/28/2025: