The US Justice Department may invoke its state secrets privilege to block a federal judge from reviewing details about two flights the government said carried alleged gang members to El Salvador, press reports said on Wednesday.
Attorney General Pam Bondi and senior Justice Department officials argued in court filings Wednesday that demands for flight details represent a "grave usurpation of the President’s powers" under the Alien Enemies Act and Article II of the US Constitution, according to CBS News.
The Alien Enemies Act, a rarely used law enacted in 1798, allows the government to arrest, detain, and deport foreign nationals without the due process protections typically required under US immigration law. Lawyers say it is only meant to be invoked when the US has a declared law, something that is not currently the case.
President Donald Trump invoked the law Saturday, using it to deport individuals deemed enemy aliens without court hearings or any chance to prove they did not belong to a gang.
On Saturday, Washington District Chief Judge James Boasberg ordered the flights to be turned around if still airborne.
However, the Trump administration said the flights had already entered international airspace and that the court lacked jurisdiction to redirect them.
The planes landed in El Salvador later that night.
In a Wednesday filing, the Justice Department argued that revealing operational details "could implicate the affairs of United States allies" and compromise foreign relations.
The department claimed disclosing the information would "create serious repercussions for the Executive Branch’s ability to conduct foreign affairs."
Boasberg, frustrated by the government's lack of transparency, has ordered answers by noon Thursday regarding flight times, points of departure, and the status of the deported individuals.
But Bondi criticised his requests, calling them "micromanagement of immaterial fact-finding."
Lack of oversight, due process
Despite Boasberg’s ruling, a senior administration official confirmed that 261 people were deported to El Salvador on Saturday, including 137 individuals removed under the Alien Enemies Act for alleged gang ties.
The Trump administration plans to deport 250 more suspected members of the Tren de Aragua Venezuelan gang currently in the US, according to court filings.
The Justice Department has appealed the case to the Washington Circuit Court of Appeals, arguing that presidential decisions under the Alien Enemies Act should not be subject to judicial review.
Lawyers for five Venezuelan migrants in Texas and New York, who are challenging the deportations, warned that upholding Trump’s position could set a dangerous precedent.
"If the President can designate any group as enemy aliens under the Act, and that designation is unreviewable, then there is no limit on who can be sent to a Salvadoran prison," they wrote in a filing Tuesday, CBS noted.
Trump has long vowed a crackdown on immigrants, pledging to target what he called “bad hombres,” people in the country illegally who had committed criminal offenses.
Critics say the new flights, with their lack of oversight or due process, try to bypass legal requirements to deport anyone the Trump administration claims is a criminal, whether there is any evidence or not.
