Trump admin withholds details from judge about deportation flights for Venezuelans
WASHINGTON – Department of Justice lawyers refused Tuesday to say how many Venezuelans were deported under the Alien Enemies Act, despite a federal judge’s demand for the information as part of an inquiry into whether President Donald Trump’s administration defied his orders.
A filing by Attorney General Pam Bondi and other department lawyers said "there is no justification to order the provision of additional information, and that doing so would be inappropriate" because the judge's "oral statements were not independently enforceable."
The lawyers also said because they have appealed Chief U.S. District Judge James Boasberg's temporary order blocking the flights, they "should not be required to disclose sensitive information bearing on national security and foreign relations until that motion is resolved."
"The Government stands on those arguments," Bondi and the others wrote.
Boasberg had asked at a Monday hearing for details about the flights to determine whether the Trump administration defied his orders prohibiting the deportation of Venezuelans under the Alien Enemies Act.
If Boasberg gives another order for the flight information, government lawyers said it should be for a confidential presentation to the judge and would exclude the lawyers for the Venezuelans, “to protect sensitive information bearing on foreign relations.” It's common in national security cases for a judge to determine what is appropriate for defense lawyers to see.
Later Tuesday, Boasberg ordered government lawyers to provide him a confidential document by noon Wednesday saying what times the two contested flights took off, what time they left U.S. airspace, what time they landed in any foreign countries, how many Venezuelans on the flights were subject to the Alien Enemies Act and when they were transferred out of U.S. custody.
The case has become a legal test for Trump's goal of mass deportations of migrants in the U.S. without legal authorization. The administration asked the D.C. Circuit Court of Appeals to halt Boasberg's block on deportation flights under the Alien Enemies Act. The appeals court set deadlines for written arguments on Tuesday from the Venezuelans and on Wednesday from the government. While awaiting the appeals decision, Boasberg has another hearing scheduled on Friday.
Lee Gelernt, an American Civil Liberties Union lawyer representing the Venezuelans, said, “We’re getting very close” to a constitutional crisis if the government defied Boasberg’s orders. Democrats and other critics of Trump have suggested a constitutional crisis is looming as Trump clashes with lawmakers over spending and judges over rulings. However, legal experts say there is no crisis yet because Congress is not challenging the president and he hasn't defied court orders.
Trump called on social media Tuesday for the impeachment of a judge without naming him, saying the lifetime jurist appointed by former President Barack Obama is “a troublemaker and agitator" for thwarting the fight against illegal immigration.
What is disputed about deportation flights for Venezuelans?
Lawyers for the Venezuelans who sued to block the flights said two planes took off from Texas bound for Honduras and El Salvador. The flights appeared to leave after an earlier oral order from Boasberg, who told government lawyers they should instruct military pilots to turn the planes around if they were already in the air.
El Salvador’s President Nayib Bukele said in a social media post on Saturday that 238 Venezuelans had arrived. El Salvador is receiving $6 million for detaining the Venezuelans.
Boasberg is now investigating whether the government defied his orders. He set a noon deadline Tuesday for the government to provide the number of flights, the number of people aboard them and their destinations.
A DOJ lawyer, Abhishek Kambli, told Boasberg at a Monday hearing the government complied with his written order. Kambli said if flights traveled beyond U.S. territory he had no jurisdiction. But Boasberg said the court maintained jurisdiction of people in U.S. custody even for people beyond U.S. territory.
Kambli refused at the hearing to disclose any details about the flights, citing national security concerns and the sensitivity of foreign negotiations to accept the deportees.
Robert Cerna, an acting field office director for Immigration and Customs Enforcement in Harlingen, Texas, said in a sworn statement Tuesday that two deportation flights took off Saturday and were in international airspace when Boasberg’s written order was posted. But Cerna refused to disclose further details about the flights.
Trump signed the Alien Enemies Act on Friday but it became effective when published on Saturday, Cerna said. That same day, between Boasberg's oral and written orders blocking the deportation flights on Saturday, the planes left for Honduras and El Salvador.
The government is detaining about 54 alleged members of Tren de Aragua, about 172 are on the non-detained docket and 32 are in criminal custody, Cerna said.
“Should they be transferred to ICE custody, they will likely be placed in removal proceedings,” Cerna said.
What is the Alien Enemies Act?
Trump invoked the 1798 Alien Enemies Act to deport alleged members of Tren de Aragua, a transnational Venezuelan gang that Trump designated on his first day in office as a Foreign Terrorist Organization.
The law says a president can invoke the Alien Enemies Act during “a declared war” with a foreign nation or government, or when “any invasion or predatory incursion is perpetrated, attempted or threatened” against the United States. The law had previously been invoked only three times: during the War of 1812, World War I and World War II.
Once invoked, the law allows for citizens of the targeted country to be “apprehended, restrained, secured, and removed as alien enemies.” The act gives the administration the ability to hasten deportations by avoiding court hearings altogether.
Five Venezuelans detained for immigration issues, who denied belonging to Tren de Aragua and who feared deportation under the Alien Enemies Act, filed a lawsuit Saturday to block their removal. Those five identified only by their initials haven’t been deported and Boasberg’s orders blocked deportations of any alleged Tren de Aragua members while the case is litigated.