Trump Invokes the State Secrets Privilege in the Alien Enemies Act Case

Judge Boasberg gave the Trump administration until March 25th to prove to the court that it didn't defy his orders by providing flight details OR invoke the state secrets privilege.

There’s a lot going on in the case of detainees being flown to El Salvador using Trump’s Alien Enemies Act (AEA) proclamation. Ten days ago, after hearing that Trump had invoked the AEA, five Venezuelans being deported without due process asked for an emergency hearing for a temporary restraining order (TRO).

Judge Boasberg caught the case and came in for an emergency hearing because planes were already taking off with deportees subject to the invocation of the Alien Enemies Act. During that hearing, the judge asked Trump’s DoJ about the planes, and they responded that they didn’t have any information. With that, Judge Boasberg adjourned the court for 38 minutes to give the DoJ time to get the flight details.

When DoJ returned, they still didn’t have any information on the flights. By the end of the hearing, Judge Boasberg expanded the “class” of plaintiffs from the five Venezuelans represented by the ACLU, to ALL people being deported under the proclamation (Venezuelan members of Tren de Aragua (TdA) being deported under the Alien Enemies Act.) After expanding the class, the judge ordered all planes to return to the United States. Within hours, it became clear that the Trump administration had defied Boasberg’s order.

Several propaganda videos were released on social media and shared by right wing influencers. Some photos shared by Trump and Rubio, showed tail numbers on planes that could be easily tracked using public flight trackers. Despite this information being easily available to the public, the Trump administration has been refusing to give the information to the judge in his quest to determine whether the Trump administration had violated his court order.

DoJ lawyers argued in court that they’re not able to disclose that information, and in a court filing, the Trump administration said they were weighing invoking state secrets privilege in the matter. If you’ve been following me on Bluesky, you may have seen my video from five days ago explaining the state secret privilege:

State secrets privilege is like attorney client privilege, or work product privilege, or deliberative process privilege, or speech or debate privilege. State secret privilege can be invoked when “there is a reasonable danger that compulsion of the evidence will expose military matters which, in the interest of national security, should not be divulged.”

The onus is on the government to make a case good enough to satisfy the court that disclosing the information will expose military matters. However, in his latest order granting trump one more day to either produce the information he needs or invoke state secrets privilege, judge Boasberg seems pretty skeptical.

He points out that this is the first time that the government has even suggested that releasing this info could amount to the release of state secrets. They haven’t said any of the information is even classified. The judge also points out that the government hasn’t exactly been quiet about this. For example, the Secretary of State has revealed many operational details of the flights, including the number of people involved in the flights, many of their identities, the facility to which they were brought, their manner of treatment, and the time window during which these events occurred.

Judge Boasberg then reminds the trump administration that the court gets to determine whether the state secrets privilege is bullshit because “[j]udicial control over the evidence in a case cannot be abdicated to the caprice of executive officers.”

Late last night, Trump informed the court that the government would be invoking the state secret privilege:

Accordingly, the states secrets privilege forecloses further demands for details that have no place in this matter, and the government will address the Court’s order to show cause tomorrow by demonstrating that there is no basis for the suggestion of noncompliance with any binding order. (The judge issued a show cause order in this case, which I wrote about in my last entry.)

I dove into this filing looking for any explanation as to why publicly available information that’s never even been classified is worthy of state secret privilege, but there is none. Only this:

The information sought by the Court is subject to the state secrets privilege because disclosure would pose reasonable danger to national security and foreign affairs.

The judicial equivalent of “because I said so.”

They try to justify it using affidavits signed by Marco Rubio, Pam Bondi, and Kristi Noem, who attempt to justify the state secrets privilege by saying that this case hinges on sensitive negotiations with foreign countries (again, many of which were blasted out on Twitter by Bukele and Rubio themselves.)

The Secretary of State’s declaration confirms that the removal of the Alien Enemies at issue, namely alien members of the designated foreign terrorist organization Tren de Aragua (“TdA”), were the product of “nonpublic, sensitive, and high stakes negotiation” with one or more foreign countries. Disclosure of the information requested by the Court “could cause the foreign State’s government to face internal or international pressure, making that foreign State and other foreign States less likely to work cooperatively with the United States in the future, both within and without the removal context.”

Moreover, the Secretary of Homeland Security has established that responding to the Court’s inquiries would “directly compromise[] the safety of American officers, contractors, aliens, and the American public” by, for example, divulging “critical means and methods of law enforcement operations,” “confirming alleged operational details [that] would cause significant harm to the national security of the United States,” and “undermin[ing] the efficacy of American counterterrorism operations.”

But they don’t say how. They’re unable to articulate how giving the judge flight times would compromise the safety of the public or cause the Salvadoran government to face any additional international pressure that they don’t already face for publishing videos of exactly what they’re doing. But being unable to explain it doesn’t stop them from trying:

For example, confirming the exact time the flights departed, or their particular locations at some other time, would facilitate efforts to track those flights and future flights. In turn, disclosing any information that assists in the tracking of the flights would both endanger the government personnel operating those flights and aid efforts by our adversaries to draw inferences about diplomatic negotiations and coordination relating to operations by the Executive Branch to remove terrorists and other criminal aliens from the country. Simply put, the Court has no cause to compel disclosure of information that would undermine or impede future counterterrorism operations by the United States.

Once again, a friendly reminder that anyone can use flight tracker to track these flights. And Rubio made it super easy by sharing the tail numbers on social media. Oh, but they have an argument for that, too:

See Fitzgibbon v. CIA, 911 F.2d 755, 766 (D.C. Cir. 1990) (“[T]he fact that information resides in the public domain does not eliminate the possibility that further disclosures can cause harm to intelligence sources, methods, and operations.”). Specifically, “[c]onfirmation” of public claims by “an insider is different in kind from speculation in the press.” Zubaydah, 595 U.S. at 208. Thus, “information that has entered the public domain may nonetheless fall within the scope of the state secrets privilege.” Id. at 207; see also Halkin, 690 F.2d at 994 (“We reject, as we have previously, the theory that because some information about the project ostensibly is now in the public domain, nothing about the project in which the appellants have expressed an interest can properly remain classified or otherwise privileged from disclosure.”); Edmonds v. U.S. Dep’t of Justice, 323 F. Supp. 2d 65, 76 (D.D.C. 2004) (“That privileged information has already been released to the press . . . does not alter the Court’s conclusion”). Accordingly, the declarations submitted with this Notice establish a valid basis for invocation of the state secrets privilege—and also a dispositive one for ceasing any further inquiry.

So what they’re saying here is “sure, the flight times are public - in part because we shared the info on social media ourselves - but that’s just speculation from the press. If the government legitimizes it by confirming it, bad things could happen. We won’t tell you what kind of bad things or why, but check out these quotes from a few cases.” Fitzgibbons is about disclosing information different to what is in the public domain.

Zubaydah is interesting. The court held that a former CIA officer shouldn’t be compelled to confirm reports in the press that the CIA operated a detention facility in Poland in the early 2000s. I think Judge Boasberg will be able to see the difference between commercial flight tracking boosted by both governments, and a clandestine CIA operation in Poland. For this to be similar, GW Bush and the President of Poland would have Tweeted about the CIA facility and shared photos on the internet before arguing that they shouldn’t have to confirm press reports. Oh, by the way - Gorsuch didn’t feel like the government met their burden to invoke state secrets privilege in that case.

This is a pretty terrifying statement from the filing:

No more information is needed to resolve any legal issue in this case. 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.

We still don’t have the administration’s response to Boasberg’s show cause filing, and all of this is separate from the fight to vacate Boasberg’s initial TROs granting class, blocking deportations under the proclamation, and turning the planes around and returning all these deportees back to the US. That’s a separate fight to vacate the orders. This state secrets privilege nonsense is about whether the trump administration defied the orders.

You can read the entire filing here.

~AG