Escalating a standoff with the federal judiciary, the Trump administration invoked national security secrecy powers on Monday night to avoid complying with a judge’s demand for information about its transfer of migrants to a prison in El Salvador despite a court order.
The administration, as justification, pointed to the so-called state secrets privilege. Here is a closer look at the scope and limits of that power and the unfolding confrontation between two branches of government.
What information does the judge want?
The judge is asking for basic data about two flights by an Immigration and Customs Enforcement contractor on Saturday, March 15.
The flights took detained Venezuelan migrants from Texas to El Salvador after President Trump issued a proclamation invoking a wartime deportation law to assert the power to summarily remove people the government suspects of being members of a gang, Tren de Aragua, without individual due process hearings.
The judge has asked the following questions: “1) What time did the plane take off from U.S. soil and from where? 2) What time did it leave U.S. airspace? 3) What time did it land in which foreign country (including if it made more than one stop)? 4) What time were individuals subject solely to the proclamation transferred out of U.S. custody? and 5) How many people were aboard solely on the basis of the proclamation?”
Why is he seeking these details?
The judge is trying to assess whether administration officials violated a court order, and if so what the consequences — like whether to find them in contempt — should be.
While the flights were in the air, the judge, James E. Boasberg, issued a temporary restraining order blocking such transfers. Lawyers for a group of Venezuelan migrants had challenged the legality of summary transfers under the proclamation, and the order was intended to freeze matters into place to create time to evaluate the legal and factual issues.
Judge Boasberg ordered the government not to complete any removals that were already in progress under the proclamation. That included, if necessary, turning back planes or otherwise bringing back any men who remained in U.S. custody. The administration nevertheless completed the transfers.
How has the Trump administration responded?
The administration has resisted the judge’s efforts, blasting Judge Boasberg. It has accused him of intruding onto executive power over national security and foreign affairs in issuing his order to start, and the Justice Department has asked an appeals court to nullify it.
Mr. Trump has also called for the judge’s impeachment. And as a purported legal basis to disregard his order to answer the questions, it has invoked the state secrets privilege.
What is the state secrets privilege?
It is an extraordinary and rarely used executive power to keep information secret.
The doctrine can allow the executive branch to block the use of particular evidence in open court — or in some cases even to shut down entire lawsuits — when litigating a matter would risk disclosing information that could jeopardize national security.
Nothing in the Constitution says this power exists. It was created by judges during the early Cold War. In a 1953 case, United States v. Reynolds, the Supreme Court said information can be blocked if there is a “reasonable danger” that the disclosure “will expose military matters which, in the interest of national security, should not be divulged.”
Is it normal not to show the information to a judge?
No, it is not.
Typically, the executive branch privately provides a detailed description of the disputed information to a judge. But the Trump administration is saying it will not answer Judge Boasberg’s questions even in private, because that would risk disclosure of the information to the public.
Judge Boasberg is a former presiding judge on the Foreign Intelligence Surveillance Court with long experience in receiving highly classified information about espionage and terrorism investigations.
In the Reynolds case that established the privilege, the Supreme Court said that “judicial control over the evidence in a case cannot be abdicated to the caprice of executive officers.” But it also said that courts should consider whether the circumstances are sufficient to accept a claim of privilege without “automatically” requiring a complete disclosure to the judge.
In that case, which involved a military airplane crash, the judges accepted the government’s claim that a report about the crash contained classified details about secret equipment and so suppressed it as evidence without looking at it. Decades later, the report was made public and turned out not to contain such details.
Why is the administration fighting so hard?
This is a mystery.
In court filings, Marco Rubio, the secretary of state, and Kristi Noem, the secretary of homeland security, said that telling the judge such information would jeopardize national security and foreign policy by making foreign partners less willing to trust that information would be kept confidential if they engaged in negotiations with the Trump administration.
But neither of them claimed that the information Judge Boasberg was asking for rose even to the level of being classified. And much of that data appeared to be already public through the actions of foreign partner leaders and American officials.
On social media, El Salvador’s president, Nayib Bukele, announced that his government had taken custody of 238 Venezuelans. He also posted a video showing some of their faces, the procedures for removing them from planes and the tail numbers of the planes that had brought them. Mr. Rubio reshared that post.
Publicly available transponder data shows when both flights took off from Texas and when they landed in El Salvador. It also shows that one of the two stopped in Honduras first — as did a third flight that the government has said held only migrants with final removal orders.
When is the privilege supposed to be invoked?
“Only when genuine and significant harm to national defense or foreign relations is at stake and only to the extent necessary to safeguard those interests,” according to a Justice Department policy memo issued by Attorney General Eric H. Holder Jr. in 2009.
The policy instructs the department to reject any request to use the privilege if the motivation for doing so is merely to “conceal violations of the law, inefficiency or administrative error,” to “prevent embarrassment” or to block information whose release “would not reasonably be expected to cause significant harm to national security.”
Attorney General Pam Bondi told Judge Boasberg in a filing that she was satisfied that the Trump administration’s new invocation of the privilege was “adequately supported and warranted.”
Can courts reject an invocation?
Yes, they can.
While courts are typically deferential to the executive branch’s determinations in matters of national security and foreign affairs, judges have, on rare occasions, held that invoking the privilege was unjustified. Still, it is rare to do so.
In 2019, the Court of Appeals for the Ninth Circuit rejected the government’s invocation of the privilege to prevent any depositions of two former C.I.A. contractors involved in the torture of a Guantánamo Bay detainee. The court ruled that only certain topics had to be avoided. But the Supreme Court later reversed the appeals court and upheld the privilege as entirely blocking any depositions of the interrogators.
