Justice Department refuses to give judge flight data, citing state secrets

The Department of Justice in Washington, March 18, 2025. Lawyers for some of the Venezuelan immigrants deported last weekend under a rarely invoked wartime statute are pushing back against the Trump administration’s contention that they are members of a violent criminal street gang. (Eric Lee/The New York Times)

By Alan Feuer and Charlie Savage

The Trump administration told a federal judge Monday night that it would not disclose any further information about two flights of Venezuelan migrants it sent to El Salvador this month despite a court order to turn back the planes, declaring that doing so would jeopardize state secrets.

The move sharply escalated the growing conflict between the administration and the judge — and, by extension, the federal judiciary — in a case that legal experts fear is precipitating a constitutional crisis.

For almost 10 days, the judge, James E. Boasberg of the U.S. District Court in Washington, has been trying to get the Trump administration to give him information about the two flights in an effort to determine whether officials allowed them to continue on to El Salvador in violation of his order to have them return to the United States.

But in a patent act of defiance, the Justice Department told Boasberg that giving him any further information about the flights — which the Trump administration maintains were carrying members of a Venezuelan street gang called Tren de Aragua — would “undermine or impede future counterterrorism operations.”

“The court has all of the facts it needs to address the compliance issues before it,” the department wrote in a filing. “Further intrusions on the executive branch would present dangerous and wholly unwarranted separation-of-powers harms with respect to diplomatic and national security concerns that the court lacks competence to address.”

The state secrets privilege is a legal doctrine that can allow the executive branch to block the use of evidence in court — and sometimes shut down entire lawsuits — when it says litigating such matters in open court would risk revealing information that could damage national security.

Typically, however, the executive branch confidentially provides a detailed description of the sensitive evidence to a judge to show why it is too sensitive to discuss in open court. The Trump administration’s move is extraordinary in part because it is refusing to provide information to Boasberg — a former presiding judge of the nation’s national security surveillance court — even privately and in a secure facility for handling classified information.

Indeed, the administration has not even claimed the information at issue is classified.

Instead, it submitted statements from Marco Rubio and Kristi Noem, the secretaries of state and homeland security, saying that sharing the information with a court would jeopardize national security and foreign policy, including by making foreign partners less likely to trust the Trump administration to keep confidential negotiations and operational details secret, and by fueling public speculation about the matter.

The Justice Department’s stubborn response to Boasberg came on the same day that he reaffirmed his initial order barring the Trump administration from using a wartime law, the Alien Enemies Act, to summarily deport scores of Venezuelan migrants it deemed to be members of Tren de Aragua.

The judge’s order said that the block should remain in place so the migrants could have the opportunity to challenge accusations that they belong to the gang before being flown out of the country to a prison in El Salvador.

Also Monday, a federal appeals court in Washington held a nearly two-hour hearing on the Trump administration’s request to nullify Boasberg’s underlying order, taking up many of the same issues.

The three-judge panel did not issue an immediate ruling. But during questioning, a Justice Department lawyer acknowledged that if the court were to reverse Boasberg’s order, the administration could immediately resume transferring people to the Salvadoran prison.

From the moment Boasberg, chief judge of U.S. District Court in Washington, entered his original order pausing the deportation flights March 15, President Donald Trump and his allies have accused him of overstepping his authority by intruding on the president’s prerogative to conduct foreign affairsThe question at the heart of the case turns equally on the issue of whether Trump himself overstepped by ignoring limits set out in the text of the Alien Enemies Act and in the Constitution for when and how wartime deportations can take place.

The law, passed in 1798, gives the government wide latitude during an invasion or wartime to summarily round up subjects of a “hostile nation” who are older than 14 and remove them from the country with little or no due process.

The administration has repeatedly claimed that the Venezuelan migrants in question are members of Tren de Aragua and should be considered subjects of a hostile nation because Trump has said they were acting at the direction of the Venezuelan government.

The White House has also insisted that the arrival of dozens of members of the gang to the United States constitutes an invasion or a “predatory incursion” under the law, which can prompt a president’s wartime deportation powers even without a declared war.

Lawyers for Venezuelan migrants have maintained that the law cannot be used against Tren de Aragua members because the gang is not a government and its activities do not amount to an invasion. Notably, the U.S. intelligence community circulated an assessment last month concluding that the gang is not under the control of the Venezuelan government, contrary to what Trump has since contended.

During the hearing Monday before the appeals court panel, two of the judges seemed to agree that the migrants the government wants to remove under the law could go to court to challenge whether they were actually members of Tren de Aragua.

But it was unclear what those challenges might look like.

The Justice Department’s invocation of the state secrets privilege was its latest effort to stonewall Boasberg’s attempts to understand whether the government had violated his order.

Last week, just hours before a hearing in which they were going to have to discuss the flight, department lawyers moved to cancel the proceeding. On the same day, they took the even bolder step of trying to having Boasberg removed from the case.

But the invocation of the state secrets privilege in this context was a new level of aggression.

The Supreme Court first recognized the state secrets privilege in a 1953 decision that approved the withholding of information whenever there is “reasonable danger” of exposing information that should not be divulged for national security reasons.

After the Bush administration frequently invoked the state secrets privilege to block lawsuits on topics like torture and warrantless wiretapping, the Justice Department in the Obama era imposed new limits on the power.

The policy called for the department to reject a request to use the privilege if officials decide the motivation for doing so is to “conceal violations of the law, inefficiency or administrative error,” to “prevent embarrassment” or to block information “the release of which would not reasonably be expected to cause significant harm to national security.”

Attorney General Pam Bondi told Boasberg in a filing that she was satisfied that the Trump administration’s new invocation of the privilege was “adequately supported and warranted.”