The Trump administration is considering invoking the state secrets doctrine to shield itself from having to answer questions about some of the controversial deportation flights of Venezuelan gang suspects.
Deputy Attorney General Todd Blanche told a judge Friday that a “Cabinet-level” discussion is ongoing, confirming a lower-level Homeland Security official who told the judge the same thing a day earlier.
The assurances came hours before Judge James Boasberg was slated to hold a hearing in the case, which has quickly turned into a major constitutional battle between the Executive Branch and the Judiciary.
Homeland Security flew three planeloads of Venezuelans to El Salvador last weekend, acting under President Trump’s new invocation of the Alien Enemies Act. He said the Venezuelans are members of Tren de Aragua, a notorious gang the U.S. has designated as a terrorist organization.
Lawyers for Venezuelan migrants say some non-gang members were swept up in the push and have been illegally deported.
Judge Boasberg, for his part, has suggested the flights were done in defiance of his orders last weekend. He demanded planes be kept on the ground and, if any were already in the air, they be returned.
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The administration has acknowledged two fights were already in the air and a third was on the ground and took off after the judge issue his written order. They all appear to have completed their flights despite the judge’s demand.
Judge Boasberg is now demanding answers on the flights, and Trump officials say they are considering using the state secrets invocation to try to avoid giving up some information.
“I understand that Cabinet secretaries are currently actively considering whether to invoke the state secrets privilege over the other facts requested by the court’s order,” Robert L. Cerna II, an official at U.S. Immigration and Customs Enforcement, told the judge in a Thursday filing. “Doing so is a serious matter that requires careful consideration of national security and foreign relations, and it cannot properly be undertaken in just 24 hours.”
Judge Boasberg has given the administration until Tuesday to determine if it is invoking the privilege.
