Judge vows to ‘get to the bottom’ of whether Trump administration violated deportation flight order

A federal judge chastised a Justice Department attorney Friday, expressing doubt about the legality of the Trump administration's use of the Alien Enemies Act.

U.S. District Judge James Boasberg has sparred all week with the Trump administration over whether last weekend’s deportation flights deliberately ignored his orders to turn around airborne planes. President Trump himself has repeatedly attacked the judge, going as far as calling for his impeachment.

“The government’s not being terribly cooperative at this point, but I will get to the bottom of whether they violated my order, who ordered this and what the consequences will be,” Boasberg said Friday.

The Justice Department for days has resisted Boasberg’s demands for more information about the flights, citing national security concerns and accusing him of encroaching on the executive branch’s authority.

Entering the 75-minute hearing Friday, Boasberg appeared frustrated, telling Deputy Assistant Attorney General Drew Ensign at the onset that the recent filings included “intemperate, disrespectful language” he couldn’t recall ever seeing before from the federal government.

Boasberg, an appointee of former President Obama, repeatedly grilled Ensign about whether the administration had kept him in the dark about the flights.

“We had a conversation on Saturday in which I treated all parties with respect and politeness and made that clear without raising my voice, without having any edge, I made it very clear what you had to do. Did you not understand my statement in that hearing?" Boasberg said.

Ensign insisted that he didn’t know about the flights at last weekend’s hearing and that the administration had not violated the judge’s order.

“Your Honor, I understood your statements and your directive to relay your directives to my clients, which I have done,” Ensign said.

The bulk of the hearing was dedicated to the legal issues of Trump’s proclamation igniting the act to expel Venezuelans from the country and carry them to a prison in El Salvador. At one point, Boasberg expressed concern over how swiftly the administration deported the migrants after Trump invoked the rarely used wartime statute.

In doing so, he greenlighted the removal of any Venezuelan over 14 that the government asserts is a member of the Tren de Aragua gang. The law has been used just a handful of times in the past, most recently as the legal basis for the internment of Japanese Americans during World War II.

“Why was this proclamation essentially signed in the dark on Friday night or early Saturday morning, and then these people rushed onto planes? It seems to me the only reason to do that is you know it's a problem and you want to get them out of the country before a suit is filed,” the judge told the government.

Lee Gelernt, an attorney for the American Civil Liberties Union (ACLU), warned of a number of issues with the use of the Alien Enemies Act, including that it would create a pathway for the government to deport people with little review based solely on alleged gang affiliation.

Gelernt said the government should have to hold hearings, noting that several countries have gangs associated with that nationality, opening the door for the government to use that affiliation to deport people.

“Anyone could just be removed off the streets,” he said, adding later, “This is a very dangerous road we’re going down.”

At one point he noted the lack of case law on “incursion and invasion” — two words Trump used to describe flows of Venezuelans into the U.S. and among the justification Trump gave for igniting the Alien Enemies Act.

“You’re so far afield from what Congress intended,” Gelernt said.

In court filings, the ACLU has noted that in many cases, the government has pointed to tattoos to assert those it removed from the country are members of Tren de Aragua. In one instance, a Venezuelan removed from the country who was a former soccer player had a tattoo that paid homage to the Real Madrid soccer team.

Gelernt also noted that the Trump administration could use existing immigration laws to deport anyone it believes is not lawfully in the country or might present a danger to U.S. citizens.

At one point later in the hearing, Ensign said the government was not prepared to hold individual hearings for those who may be removed under the act where they would have to prove a gang affiliation.

Boasberg at many points seemed to agree with Gelernt, describing the use of the Alien Enemies Act as “problematic.”

"I agree that all the ramifications with this are incredibly troublesome, problematic and concerning,” he said, calling it an “unprecedented and expanded view” of the Alien Enemies Act.

“I agree this is a long way from the heartland of the act.”

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