President Donald Trump delivers remarks in the Oval Office of the White House in Washington, Friday, March 7, 2025. (Pool via AP)
The Trump administration’s deportation of more than 100 Venezuelans under an obscure 18th century wartime power last month directly violated federal court orders, and the government’s subsequent invocation of the state secrets privilege to withhold information from the judge — who was inquiring as to whether his orders were followed — is based on assertions that are not even “remotely true” and should be rejected, the American Civil Liberties Union (ACLU) asserted in new court filings.
The ACLU on Monday urged U.S. District Judge James Boasberg to deny Donald Trump’s administration’s invocation of the privilege, contending that it has never been invoked to stymie a court’s inquiry into whether its own orders had been followed. Should the privilege be permitted to stand, the ACLU alleges, it would effectively give the administration free rein to conceal evidence from courts at will.
“Plaintiffs are unaware of any case in which the state secrets privilege has been invoked to withhold evidence from a court seeking to enforce its own orders,” the 20-page filing states. “[T]he application of the state secrets privilege in this case is entirely unwarranted. If the government’s reasoning here were accepted more broadly, it could thwart judicial investigation of contempt whenever the government asserts a nexus to ‘foreign affairs’ or ‘national security’ — allowing the executive to defy court orders with impunity.”
The privilege permits the government to withhold certain evidence based on a “reasonable danger” that disclosure would expose military matters in a manner adverse to national security interests — in this case, the administration’s deportation of more than 100 Venezuelan migrants to a notorious prison in El Salvador without due process under the Alien Enemies Act of 1798 (AEA).
“Defendants’ declarations utterly fail to meet their burden to show that disclosure of the ordered information to this Court will endanger national security,” the plaintiffs’ filing states. “Not only are the government’s declarations too vague and speculative to support the application of the state secrets privilege, but their core premises are belied by extensive, official government disclosures concerning the information now claimed to be ‘secrets of state.’ As this Court explained in its March 19 Order, Secretary Rubio ‘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.””
The Trump administration, so far, has invoked the AEA to justify mass deportations of members of one particular Venezuelan gang. In the executive order underlying the litigation, Trump called for the removal of “all Venezuelan citizens 14 years of age or older who are members” of Tren de Aragua (TdA), which has been designated as a foreign terrorist organization since January.
On March 15, the ACLU sued for and won a temporary restraining order. Action has since been quick, steady, and tense. An oral bench ruling to stop removals under the auspices of the AEA — which included a directive to turn planes around containing Venezuelan immigrants — was infamously ignored, with the government claiming that the flights had already left U.S. airspace and were therefore outside of the court’s jurisdiction.
The court demanded additional details about the flights and was repeatedly stonewalled with filings that Boasberg described as “intemperate and disrespectful” before the administration invoked the state secrets privilege, asserting that the court did not need any additional information to make a decision.
“No more information is needed to resolve any legal issue in this case,” the DOJ wrote. “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. The need for additional information here is not merely ‘dubious,’ or ‘trivial,’ it is non-existent. The Executive Branch violated no valid order through its actions, and the Court has all it needs to evaluate compliance. Accordingly, the Court’s factual inquiry should end.”
Boasberg has previously appeared skeptical of the administration’s potential use of the state secrets privilege, noting that the flight information was publicly available and details of the deportation operation had been publicly discussed by multiple high-ranking members of the administration. Trump and Secretary of State Marco Rubio also posted a video to social media revealing a “extensive information” about the logistics of the flights, including the planes, their destinations, and the transfer of prisoner custody.
Ironically, the ACLU concurred with the administration’s claim that the court already has all of the information needed to find whether the government violated the court order, asserting it is obvious that the order was ignored.
“Plaintiffs respectfully submit that the Court already possesses the information it needs to conclude that its March 15 oral and written temporary restraining orders were violated,” the filings states. “The government has confirmed that ‘two flights carrying aliens being removed under the AEA departed U.S. airspace before the Court’s minute order of 7:25 PM EDT, and before the Court’s oral statements during the hearing.’ The government has also confirmed that it is ‘not contest[ing] for the purposes of these proceedings that the planes landed abroad, and that the aliens on board were deplaned, after the issuance of the Court’s minute order.’ These facts, standing alone, establish that the government failed to comply with both of the Court’s orders.”
The two sides will appear before Boasberg on Thursday at 3 p.m. for a hearing on the matter.
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