Justice Department Considers State Secrets Privilege in Deportation Flight Case, Judge Expresses Frustration
The Justice Department is contemplating invoking the state secrets privilege in its ongoing legal battle concerning the Trump administration’s deportation flights to El Salvador. This action could potentially allow the government to withhold specific information deemed vital to national security, adding a complex layer to the already contentious case.
U.S. Deputy Attorney General Todd Blanche filed a declaration stating that he is aware of Cabinet-level discussions about invoking the state secrets privilege. Blanche emphasized that invoking this privilege is a serious matter demanding careful consideration of national security and foreign relations, suggesting it cannot be decided hastily.
The declaration was prompted by U.S. District Court Judge James Boasberg’s deadline for the court to file information about deportation flights that sent Venezuelan nationals to El Salvador. These flights occurred around the same time Boasberg issued an emergency court order temporarily blocking the Trump administration from carrying out such deportations.
Boasberg expressed strong disapproval of the Trump administration’s response. He criticized their failure to meet the deadline for providing information, even after offering the option to file the information under seal. Instead, the court received a brief declaration from a regional ICE officer in Texas, mentioning the potential invocation of the state secrets privilege.
Boasberg dismissed the declaration as "woefully insufficient," stating that regional ICE officers are not in a position to inform the court about high-level Cabinet discussions. He implied that someone higher up in the federal government should provide the necessary information.
Blanche’s filing occurred shortly before government attorneys were scheduled to testify before Boasberg in a hearing regarding their motion to vacate the case.
Boasberg noted the government’s repeated failure to submit the requested materials about the flights, even after he extended the deadline and allowed for filing under seal.
The central issue revolves around whether the government violated Boasberg’s emergency restraining order. The order blocked the Trump administration from using a wartime law from 1798 to deport Venezuelan nationals, including alleged members of the gang Tren de Aragua, for 14 days. Boasberg also ordered any flights in the air to return to U.S. soil immediately.
Despite the order, a plane carrying hundreds of U.S. migrants, including Venezuelan nationals removed under the law in question, arrived in El Salvador hours later. Since then, government lawyers have declined to share information about the deportation flights, citing national security protections, and whether the plane departed U.S. soil after the judge’s order.
Boasberg had previously requested information on the number of planes that departed the U.S. on the specified Saturday carrying individuals deported solely based on that proclamation, the number of individuals on each plane, the landing locations, and the departure times from the U.S.
He had warned the Trump administration of consequences for violating his order. The Trump administration is challenging his order in appellate court.
Adding to the controversy, a plane with deported migrants landed in El Salvador. Salvador President Nayib Bukele commented that it was too late.
The potential invocation of the state secrets privilege raises significant concerns about transparency and accountability. The privilege allows the government to withhold information that, if disclosed, could harm national security. However, critics argue that it can be misused to shield government actions from public scrutiny.
The judge’s frustration underscores the importance of government cooperation in legal proceedings. The court needs accurate and timely information to make informed decisions, and any perceived obstruction can undermine the integrity of the judicial process. The case highlights the tension between national security concerns and the public’s right to know, as well as the importance of judicial oversight in ensuring government accountability.
