Yesterday, the Executive Branch opened a new front in its war against activist judges. The New York Times reported the remarkable story under the headline, “Justice Dept. Refuses to Give Judge Flight Data, Citing State Secrets.” The sub-headline added, “The extraordinary move by the Justice Department was an escalation of its conflict with the judge in the case and, by extension, the federal judiciary.” Cadaverous Judge Boasberg was not amused and accidentally wrinkled his robe.
In the quiet hours last night, the Trump Team filed its bombshell “Notice Invoking State Secrets Doctrine” in the now-famous case wherein Judge James Boasberg (District of DC) ordered illegal, border-crossing Venezuelan gang members to be restored to the sunny shores of the United States until he, Judge Boasberg, can decide what the Trump Administration should do with them.
The ACLU shrieked that the Trump Administration didn’t follow his orders, and Boasberg has demanded the DOJ answer his long list of detailed questions about the controversial flights that delivered the gangsters to an El Salvadoran super-max prison. But last night, in what the Times labeled “a patent act of defiance,” the Trump lawyers told the court that it would not answer any more questions about the flights, since those answers would disclose state secrets.
Any further information, the notice said, would “undermine or impede future counterterrorism operations.” The notice also warned that further judicial probing would cause “dangerous and wholly unwarranted” separation-of-powers violations, especially regarding matters the court is not competent to determine, like diplomatic or security operations. In short, they said, “This is a national security matter. The court has enough information already. We’re not going to tell you any more, and you can’t make us.”
The Supreme Court recognized the State Secrets Privilege in 1953, in a lawsuit filed by widows of engineers who died in a B-29 crash during a test flight. It’s not such a great case, since the documents the Air Force claimed privileged were ultimately released several decades later and didn’t actually contain any national security secrets, but were just embarrassing admissions of negligence. Notwithstanding that, the Supreme Court’s endorsement of the exception stands.
In the case, the Supreme Court ruled that withholding information is appropriate whenever there is a “reasonable danger” of exposing information that should be protected for national security reasons. In a sworn declaration attached to the Notice, Attorney General Pam Bondi said she was satisfied that the Trump administration’s new invocation of the privilege was “adequately supported and warranted.”
In 2006, the Bush administration successfully invoked the privilege to obtain dismissal of a lawsuit over a German citizen, Khaled El-Masri, who was alleged to have been kidnapped and tortured by the CIA. Since then, Bush, Obama, and Trump 1.0 have all successfully used the privilege to suppress testimony and documents related to Guantanamo litigation.
Even more so, during Obama, the same breathless media and progressive pundits clapped like trained seals over Obama’s aggressive use of state secrets to shield black-site operations and drone strike memos.
So despite the Times’ breathless invocations of “defiance,” the government’s position stands on undisturbed Supreme Court precedent and the privilege’s consistent use by nearly every modern Administration, Republicans and Democrats alike.
It’s Judge Boasberg’s move. And he is running out of pieces. He could hold someone in contempt, but that would immediately trigger the long-ballyhooed constitutional showdown. He could try to compel discovery anyway, and Trump’s lawyers would refuse, which would just bog down the case in the swamps of appeal. Or he could back down, issuing a nasty opinion and hoping to score a few points with credulous media.
In related news yesterday, the DC federal appeals court held a nearly two-hour hearing on the Trump administration’s request to nullify Judge Boasberg’s temporary restraining order. The court of appeals has not yet ruled, but at least two judges on the three-judge panel seemed skeptical of the Administration’s position. “Nazis got better treatment under the Alien Enemies Act,” the lone democrat appointee griped, emotionally invoking Godwin’s Law and jumping the argumentative shark.
My best guess is they’ll issue an order limiting Boasberg’s TRO terms, and let the Trump team decide whether to appeal them to the Supreme Court. Again. The Supreme Court is about to have its hands full of appeals from all these TROs.
To lawyers, this is fascinating new legal stuff— separation-of-powers, executive privilege, state secrets, and high-stakes constitutional brinkmanship. Countless law review articles will be written about it all.
To the country, it is an aggravating chore and a common sense catastrophe.
And President Trump knows it. He continues to occupy the rhetorical high ground: Trump: deporting criminals. Judges: demanding their return. Progressive courts, in pushing so hard to claim the moral high ground against Trump, are only confirming his point: that they’re out of touch, overreaching, and unserious about public safety.
Whatever else it is, it’s not a good look for progressive courts.
Judge Boasberg should be totally Relived of their Job and Benched and held responsible for any Deaths caused by the so called Migrants The Judge is giving Aid and Comfort to the Enemy
SIR! With all due respect!
DID YOU VOTE FOR GWB?
Bush put this son of a whore (ladies forgive) one the
Fed Bench 2002!
I have loved media for 80 years! Voted Ronny 9 times NEVER VOED FOR GWB! NEVER!
I don’t think the judge cares about the gang bangers.
He’s doing that same lawfare technique that is meant to SLOW DOWN President Trump’s administration.
If and when he’s put to bed and loses his last attempt, another judge will take his place and so on for the next 3 years 10 months.
It isnt the pesky judges we need to beware of its the Leech Appreciation Society and those that direct the leeches where to attach themselves.