Judge Upbraids DOJ For Defying His Orders In Alien Enemies Act Case

D.C.’s chief judge rhetorically nuked a Justice Department attorney at a Friday hearing, suggesting at one point that the lawyer had forfeited his reputation after the Trump administration spent a week giving the court the runaround over its deportations of Venezuelan nationals to an El Salvador prison under the Alien Enemies Act.

Judge James Boasberg started off the hearing by telling Deputy Assistant Attorney General Drew Ensign that, in filings over the course of this week, there had been “disrespectful, intemperate language” of a sort he had “never seen from the United States.”

The judge then grilled Ensign over the Trump administration’s failure to respond to his Saturday order mandating that planes carrying Alien Enemies Act deportees be returned to the United States: “I made it very clear what you had to do. Did you not understand my statement from that hearing?”

Ensign argued at one point that his conversations with his superiors were protected by attorney-client privilege. Later in the hearing, he said that as it concerned legal interpretation, and not facts, he had limited time to prepare on Saturday.

Friday’s hearing covered the core constitutional issues that the Trump administration’s Alien Enemies Act proclamation have raised around basic due process rights and what recourse people who are incorrectly deported might have if there’s no due process built into the system. Ever since sending planeloads of people to an El Salvadorian hybrid prison-involuntary work camp, Trump administration officials have dodged Boasberg’s attempts to answer basic questions about when the planes took off, landed, and when people were transferred to El Salvadorian custody.

The drift of Boasberg’s questioning partly went to how much Ensign knew, and what he told his superiors at the DOJ. At one point, the judge was openly incredulous at a statement from Ensign that nobody had provided him with any information about the flights, even after a 30-minute recess during the Saturday hearing.

Boasberg finished off the upbraiding by remarking on what he tells his clerks: that the most valuable thing they can retain is their “reputation and their credibility.”

The judge also revealed a critical new detail: after El Salvador refused to accept some deportees who were female or not Venezuelan, they were returned to the United States. Boasberg had asked the government earlier this week in a court order to explain why all of those deported were not returned on flights the same day.

The administration had argued that it was impossible to comply with Boasberg’s order, but the fact that some people were returned could raise new questions about the situation. Boasberg said that he would try to get to the bottom of what had happened.

Most of the hearing focused on the critical legal questions at the heart of the Alien Enemies Act removals. The Trump administration committed what may come to be seen as a historic violation of civil liberties: taking more than a hundred people, dubbing them members of a violent gang, and expelling them to an El Salvador prison without any semblance of due process.

Boasberg himself described it as “incredibly troubling, problematic, concerning,” and “unprecedented.” ACLU attorney Lee Gelernt argued at one point that when the Act was invoked during World War I, no removals were conducted; during World War II, a board existed to conduct hearings before removals, Gelernt said.

The removals themselves proceeded only over the course of a few hours on Saturday afternoon and evening before Boasberg entered his order. He remarked that ICE had to have had “advance notice of this proclamation because it’s impossible that this could have happened in a few hours,” saying that the AEA proclamation appeared to have been “signed in the dark.”

For the judge, there appeared to be two main questions that related to the basic law around the case: what happens if the government removes someone under the proclamation who, in fact, is not a member of Tren de Aragua, and how power ddi Boasberg have to review the proclamation itself.

The DOJ argued that individual people could, in theory, contest their removals under habeas corpus claims. The administration didn’t fully answer the next logical step: How could people file such claims if they’re quickly spirited away to a foreign labor camp?

That question concerned how the case was brought. The ACLU and Democracy Forward filed the case last week as a class action lawsuit on behalf of people affected by the proclamation. Government attorneys have fought both the form in which the case was brought and Boasberg’s decision to certify the class on Saturday.

For the moment, Boasberg’s two-week temporary restraining order remains in place. He did not say at the hearing whether he would extend it further.

The discussion at the hearing quickly moved towards Bush-era national security cases over the rendition of Al Qaeda prisoners to Guantanamo Bay. After Ensign suggested that the court’s authority to review was limited, Boasberg pointed out that judges had authority to review whether Guantanamo detainees were Al Qaeda members even though “they had never set foot in the United States.”

Only towards the end of the hearing did Boasberg clearly address how he was thinking about his own limits in the case. That, he said, involved his ability to review the proclamation itself, and certain findings that the President made within.

“There’s a lot of language in Supreme Court cases that gives me pause,” he said.