A federal judge on Thursday said the Trump administration’s response to his request for more information on Venezuelan deportation flights was “woefully insufficient” and “evaded” obligations to show they complied with an earlier court ruling.
In a new order, U.S. District Judge James Boasberg said the Justice Department refused to meet his Thursday deadline to hand over the flight information and instead submitted a declaration from an Immigrations and Customs Enforcement (ICE) official informing that “Cabinet Secretaries are currently actively considering whether to invoke the state secrets privilege.”
The order came after Boasberg ordered the government to privately provide more details about the flights in a sealed filing, saying he was once again rebuffed by the government.
“The Government again evaded its obligations,” Boasberg wrote, noting that the filing from the ICE official included the same information about the flights.
“This is woefully insufficient. To begin, the Government cannot proffer a regional ICE official to attest to Cabinet-level discussions of the state-secrets privilege,” wrote Boasberg, an appointee of former President Obama.
He ordered the Trump administration to provide an update from someone directly involved in the discussions by Friday.
By Tuesday, officials must explain in writing why they did not violate the court’s orders blocking Trump’s invocation of the Alien Enemies Act.
The White House and Boasberg have been on a collision course since a Saturday hearing in which the judge ordered the government to turn around or halt flights carrying Venezuelan migrants removed under the 1798 law.
Boasberg gave the order to do so both verbally and in writing after the hearing. Both forms of orders are legally binding.
Nonetheless, the Justice Department continues to argue that it complied with Boasberg’s written order, suggesting they did not have to comply with the oral order.
They have also argued the matter is irrelevant, as the flights were already out of U.S. territory by the time Boasberg’s order landed on the docket.
The American Civil Liberties Union, which has sued over the matter, has argued the government had the power to return the Venezuelan deportees from abroad up until the moment they were placed in the custody of a foreign government.
The judge has demanded more information about the timing of the flights and who was aboard so he can investigate whether the Trump administration defied his rulings, but the Justice Department has resisted.
In a remarkable hearing, Deputy Associate Attorney General Abhishek Kambli kept telling Boasberg he was “not authorized” to disclose information about the flights but provided little legal rationale for doing so. Boasberg ordered the government to provide that rationale in a court filing, but the following day the Justice Department again declined to do so.
“The Government maintains that there is no justification to order the provision of additional information, and that doing so would be inappropriate,” the Justice Department wrote in the filing Tuesday.
On Wednesday, the administration first signaled it may invoke the state secrets privilege, which allows the government in limited circumstances to prevent sensitive national security information from being disclosed in civil litigation. Boasberg has signaled the government’s arguments “at first blush are not persuasive” but has not made a final ruling.
Boasberg is a former Foreign Intelligence Surveillance Act (FISA) Court judge and has routinely handled cases dealing with highly classified information.
Throughout the week, the White House has attacked Boasberg, arguing the judge has no oversight over national security matters despite the judicial branch routinely weighing in on such matters.
“The President is well within his Article II two power and his authority under the Alien Enemies Act to make these decisions. And we think it’s egregious that a single district judge is trying to tell the president of the United States who he can and cannot deport from our soil, especially when it comes to designated foreign terrorists,” White House press secretary Karoline Leavitt told reporters Thursday.
