WASHINGTON — The Trump administration is using a powerful legal tactic to block a judge’s investigation into whether it ignored his order to return planes carrying Venezuelan migrants being deported from the U.S.
The Justice Department stated in court documents on Monday that it was invoking “state secrets privilege” and would not provide U.S. District Judge James Boasberg with the requested information about the flights that transported the migrants to El Salvador earlier in March.
This privilege is often a decisive legal tool used to limit or dismiss lawsuits against the government when military or national security interests are potentially compromised.
In 2022, the Supreme Court rejected a lawsuit from a Guantanamo Bay detainee, captured after the 9/11 attacks and allegedly tortured by the CIA. The court upheld the government’s claim of “state secrets,” ruling that information about Abu Zubaydah’s treatment must remain confidential, even though much of it had already been reported.
Where does the state secrets privilege come from?
The legal principle originates from a contract between President Abraham Lincoln and a Union spy during the Civil War.
After the spy’s estate sued for unpaid wartime services, the Supreme Court ruled in 1876 that certain subjects, such as those involving espionage, are too sensitive for courts to even hear related lawsuits.
During the Cold War, the court also ruled that certain evidence sought in lawsuits must be kept secret.
Following the deaths of their husbands in a B-29 bomber crash, three widows sued for the accident report. In 1953, the justices allowed the executive branch to withhold details about the crash, even from the court, because officials claimed it was a secret mission to test new equipment.
What does the deportation case have to do with state secrets?
The current legal battle arose after the Alien Enemies Act, was reportedly used to quickly deport Venezuelan migrants identified as members of the Tren de Aragua gang.
Boasberg, the chief judge of the federal district court in Washington, convened an emergency hearing after lawyers representing some migrants fearing deportation filed suit. The judge prohibited further deportations and instructed that any plane carrying these individuals “that is going to take off or is in the air needs to be returned to the United States.”
While the administration is appealing Boasberg’s entire order, the immediate issue is its compliance with the judge’s directive.
Boasberg requested details about the flights, including takeoff and landing times, and passenger numbers.
The administration responded on Monday that it would not provide answers. According to Attorney General Pam Bondi in a court filing, releasing the information, even to Boasberg in a secure environment, “would cause significant harm to the foreign relations and national security interests of the United States.”
Judges often deal with classified information
Boasberg has more experience with sensitive national security information than most federal judges. He previously presided over the secretive court that oversees government surveillance programs.
During a hearing, he told government lawyers that they could file their response “under seal,” meaning it wouldn’t be publicly disclosed. He also offered to review any sensitive information in the courthouse’s secure facility, known as a SCIF.
However, the administration argued that his review of the material in any setting was unnecessary and inappropriate.
But haven’t administration officials already spoken publicly about the flights?
Administration officials did share a post from Salvadoran President Nayib Bukele after Boasberg’s initial order. Bukele wrote “Oopsie…Too late,” on X. Secretary of State Marco Rubio tweeted that the U.S. had sent over 250 people to El Salvador.
However, courts have determined that public statements do not always constitute official confirmation. This was the Supreme Court’s ruling in the Zubaydah case, despite a dissent from Justice Neil Gorsuch.
Gorsuch, joined by Justice Sonia Sotomayor, wrote, “Nothing in the case suggests that requiring the government to acknowledge what the world already knows to be true” would endanger national security.
Despite Rubio’s post, the Justice Department asserted, “Official confirmation of any of those allegations would pose a distinct threat to foreign relations and national security.”
Critics of the state secrets claim argue that it’s often used to prevent potentially embarrassing disclosures.
Shayana Kadidal, a human rights lawyer who has challenged state secrets claims, stated in an email, “That’s probably what’s happening here. They let the flights leave despite knowing full well that the judge had ordered them turned around, and are doing this to avoid a contempt finding.”
Is that the end of the matter?
The administration believes so. It cited the Supreme Court’s decision last year that gave presidents broad immunity from prosecution for official actions and helped Trump avoid a criminal trial on charges of interference with the 2020 election.
The president’s ”execution of his Article II duties — which ‘are of unrivaled gravity and breadth’ and include ‘managing matters related to terrorism . . . and immigration’ — requires the ‘utmost discretion and sensitivity,’” the Justice Department wrote.
The Supreme Court has instructed judges to assess the validity of the government’s claim.
In practice, when Cabinet-level officials assert that state secrets are at risk, as in this case, judges often defer to the executive branch.
Kadidal wrote, “Basically as long as they can get a cabinet official to sign off (personally) to a declaration, game over.”