In 2023, U.S. District Judge James Boasberg criticized the Justice Department’s inadequate response to his request for more information on deportation flights conducted under the Alien Enemies Act. The judge called the response “woefully insufficient,” stating that the government had once again failed to fulfill its obligations to provide the requested information regarding the timing of the flights carried out under this wartime law. President Donald Trump had used the rarely invoked law to deport individuals claimed to be associated with a Venezuelan gang designated as a “foreign terrorist organization.”
Following an emergency hearing where the judge directed all deportation flights under the AEA authority to return to the U.S., two flights landed in Honduras and El Salvador shortly after the order was issued. The DOJ’s response, submitted confidentially, was revealed by Boasberg to consist of a declaration from an ICE official that did not offer any new information on the flights.
The judge expressed dissatisfaction with the response, insisting on a sworn declaration from a person directly involved in Cabinet-level discussions about asserting the state-secrets privilege. He set a deadline for Friday morning for this declaration and requested notification of any decision on the matter by Tuesday. Boasberg also instructed the Justice Department to explain how it did not violate court orders by failing to return individuals removed from the U.S. on the earliest flights.
Prior to the judge’s ruling, a DOJ spokesperson criticized the questioning of national security information as judicial overreach. Boasberg had previously warned of “consequences” if the Department did not address his concerns promptly. The Justice Department’s position during the hearings was summarized by the judge as dismissive, leading him to demand answers to his inquiries by noon on Tuesday.
Boasberg was looking for details that could reveal sensitive information related to national security and foreign relations. Despite this, if the Court decides to demand more details, they suggested that it should be done privately to protect sensitive foreign relations information. The judge allowed for a sealed response to be submitted directly to him by noon on Wednesday, but the Justice Department refused to comply and requested a pause in the case until an appeals court rules on their motion for an emergency stay.
The Justice Department argued that the case should be put on hold until the appeals court decides and also expressed concern that disclosing the information could expose state secrets. The judge extended the deadline to Thursday at noon, instructing the government to either answer the questions or provide a basis for invoking the state-secrets doctrine.
Boasberg disagreed with the government’s claim that he was pursuing irrelevant information and stated that he wanted the details to determine if the government had violated previous orders and what consequences should follow. The government’s appeal is ongoing, with oral arguments scheduled for Monday afternoon.
