CNN
—
The Justice Department’s decision to invoke the rarely used state secrets privilege in a bid to avoid giving a federal judge details on two deportation flights has opened a complicated new front in the government’s ongoing resistance to turning over the information.
The department’s invocation of the privilege earlier this week is the latest dramatic turn in the legal saga over President’s Donald Trump’s contested use of the Alien Enemies Act of 1798 to quickly deport migrants the US has accused of being affiliated with the Venezuelan gang Tren de Aragua.
It comes as US District Judge James Boasberg, who is overseeing a challenge to the legality of Trump’s use of the sweeping wartime authority, moves closer to deciding whether the government violated his command to immediately halt deportation flights carrying some of the alleged gang members when it allowed two such planes to continue earlier this month.
But the administration has repeatedly stymied the judge’s fact-finding efforts, with the state secrets invocation representing its most audacious move yet to avoid giving Boasberg any more information.
“This is a bolder assertion than what the Executive Branch normally takes,” said Mark Zaid, a national security lawyer who has litigated state secrets privilege cases and whose security clearance was recently pulled by Trump. “I see this as an effort to use the privilege as a shield instead of a sword, because they have run out of options.”
Here’s what to know about the state secrets privilege:
Courts have long recognized the ability of the federal government to block secret information from being used as evidence – and they have often been deferential to those requests, giving past presidents wide leeway to put information off limits.
Invoking the state secrets privilege often shuts a court case down entirely.
But those demands from presidents have often been met with external skepticism because it works against foundational principles of the president having to follow the law, just like everyone else. How can a court, or the public, assess whether the administration has followed the law if the president shields that evidence from legal review?
That tension between the branches when state secrets might be in play is nearly as old as the nation itself. When the federal government prosecuted Aaron Burr in 1807, the former vice president sought to compel President Thomas Jefferson to produce a letter accusing him of treason.
Jefferson’s attorneys argued for the president’s right to withhold information that “might contain state secrets.”
Then-Chief Justice John Marshall wrote that courts must pay “all proper respect” to a president’s reasons for invoking the privilege but also suggested that courts must decide for themselves whether to uphold the claims.
The modern debate over the privilege was established by a 1953 Supreme Court decision, US v. Reynolds, in which the widows of civilians killed in the crash of an Air Force plane sought the government’s accident report. The Supreme Court ruled for the government, finding that there was a “reasonable danger” that the investigation report would contain information about secret electronic equipment on board.
But it turns out that the seminal modern case on the state secrets privilege bolsters the very question critics raise: When are presidents invoking state secrets because of actual secret information versus trying to keep from public view embarrassing details?
Fifty-two years after the Supreme Court decided Reynolds, blocking the widows’ case, the accident report from the incident was declassified. It contained no state secrets but rather pointed to negligence on the part of the Air Force.
Presidents of both parties have stepped up use of the privilege, particularly in the aftermath of the 9/11 terrorist attacks when the federal government vastly increased its surveillance apparatus.
The privilege was asserted two times between 1961 and 1970, according to a brief filed at the Supreme Court by Public Citizen in 2021. Between 2001 and 2006 – not even a full decade – it was claimed 20 times. After 2006, the executive branch asserted the privilege in at least an additional 29 cases, according to the brief.
The Trump administration has resisted giving Boasberg, an appointee of former President Barack Obama, information on the two deportation flights that took place on March 15 – the same day he ordered the government during a court hearing to immediately turn around any planes carrying migrants being deported under the Alien Enemies Act.
As part of his fact-finding mission to get more details about the flights, Boasberg demanded the Justice Department answer a series of questions concerning operational details about the flights, including about the exact timing of when the two planes took off from US soil and left US airspace, as well as the specific times individuals deported under Trump’s proclamation were transferred out of US custody that day.
But Attorney General Pam Bondi and other top DOJ officials told the judge on Monday that they were invoking the privilege because they believed that disclosing the information “would pose reasonable danger to national security and foreign affairs.”
Leaning into the administration’s designation of Tren de Aragua as a foreign terrorist organization, the officials argued that turning over the information “would undermine or impede future counterterrorism operations by the United States.”
“Disclosing any information that assists in the tracking of the flights would both endanger the government personnel operating those flights and aid efforts by our adversaries to draw inferences about diplomatic negotiations and coordination relating to operations by the Executive Branch to remove terrorists and other criminal aliens from the country,” the officials told Boasberg.
More broadly, the administration appears to be using the state secrets privilege as an attempt to bring a swift end to Boasberg’s compliance inquiry.
“This is sort of like their Hail Mary pass,” Zaid said.
Ilya Somin, a law professor at George Mason University, described the invocation of the privilege in this case as “bogus” given the fact that “much of this information about the timing of the flights is publicly available, and (Trump administration officials) even boasted about it.”
“So it’s very questionable that there’s any genuine state secrets here,” he added.
Experts noted that past presidents have invoked the privilege to shield high-level communications with foreign leaders – and Trump aides have said the rapid deportations required exactly those kinds of tightwire negotiations. On the other hand, the invocations are usually made to protect intelligence operations, not flight times.
“Many of the more recent cases involve really sensitive issues around the CIA and its capabilities or the NSA and surveillance,” said Ashley Deeks, a professor at the University of Virginia law school and a former deputy legal adviser to the National Security Council. “The information that judge is seeking here seems, on its face, less significant than those other cases.”
Boasberg has given attorneys representing the individuals challenging Trump’s use of the Alien Enemies Act a chance to respond to the government’s decision to invoke the state secrets privilege. That filing is due Monday.
The judge has previously said that if the administration decides to shield the information from him through an invocation of the doctrine, he “is obligated to ‘determine whether the circumstances are appropriate for the claim of privilege.’” That is exactly what the Supreme Court required lower court judges to do in the Reynolds decision.
In an order last week, Boasberg also signaled his skepticism over how the information he is seeking is too sensitive to be disclosed – even under seal. He pointed to the fact that the government had “made no claim that the information at issue is even classified,” and went on to point out that Secretary of State Marco Rubio had “revealed many operational details of the flights.”
“The Court is therefore unsure at this time how compliance with its (request for the flight information) would jeopardize state secrets,” Boasberg wrote.
The judge could also order the government to give him an “in camera,” or confidential, review of the information at issue so he can better decide whether the invocation of privilege is justified.
“If the judge is not satisfied, (the government) is required to persuade the judge that the privilege has been properly invoked,” Zaid explained. “So this is solely in the hands of Boasberg for him to decide whether this 10-page filing … is sufficient to give him the answers.”
It’s possible that Boasberg may not need the flight information he’s seeking at all to determine whether the government violated his oral order that it halt deportations flights earlier this month.
“However the state secrets question is resolved, it appears there is sufficient uncontested evidence (the administration) chose not to comply with the oral order and therefore the questions before Judge Boasberg are whether that order is binding and, if so, what he should do about the fact that the defendants violated it,” said Marty Lederman a professor at Georgetown Law who worked in the Justice Department under Democratic and Republican presidents.
Attorneys with Trump’s DOJ are arguing that the statements Boasberg made from the bench during the March 15 hearing “did not amount to a binding injunction” and that a written order he issued shortly after the proceedings is the controlling ruling in the matter.
That written order contained no such language about the planes and instead just said the administration was enjoined from removing the migrants subject to Trump’s proclamation invoking the Alien Enemies Act while his temporary restraining order remained in effect.
Like other federal courts, the Supreme Court has often been deferential to the government’s invocation of state secrets, regardless of which party controls the White House.
Most recently, in 2022, a majority of the court denied a Guantanamo Bay detainee access to testimony he was seeking after the Trump administration invoked the privilege in his case.
In that case, involving Abu Zubaydah, the information at issue was no longer a secret. An international court and the former president of Poland had acknowledged the existence of a CIA black site in that country. But the Supreme Court nevertheless held that the information Zubaydah sought was a state secret – even though it was no longer actually a secret.
“We agree with the government that sometimes information that has entered the public domain may nonetheless fall within the scope of the state secrets privilege,” Justice Stephen Breyer, who has since retired, wrote for a heavily fractured court.
The court’s decision prompted a sharply worded dissent from an unusual pairing: Conservative Justice Neil Gorsuch and Justice Sonia Sotomayor, a member of the liberal wing.
“In this country, no one stands above the law; not even the president may deflect evidentiary inquiries just because they may prove inconvenient or embarrassing,” Gorsuch wrote.
“This court’s duty is to the rule of law and the search for truth,” he wrote. “We should not let shame obscure our vision.”