Despite the stunning lack of clarity surrounding the affair, ranging from the roundup preceding Trump’s proclamation that Tren de Aragua are invading enemy aliens to his claim that he never signed the proclamation at all, one thing was totally clear. Chief Judge Jeb Boasberg ordered the government to bring the renditioned people back to the United States, even if that meant turning the airplanes around.

The government did not, under the bizarre theory that the court lost jurisdiction once the planes left United States airspace. It did not, and this theory was laughable, so naturally the government stuck with it for lack of any theory. No, you cannot commit murder without fear of prosecution when your Celebrity Cruise Lines bartender makes a mediocre negroni after leaving US territorial waters. Take my word on this.

The government then seized upon an alternative, one which ordinarily puts an end to the inquiry. The “state secrets privilege” was thereupon invoked.

The Executive Branch hereby notifies the Court that no further information will be provided in response to the Court’s March 18, 2025 Minute Order based on the state secrets privilege and the concurrently filed declarations of the Secretary of State and the Secretary of Homeland Security.

Both Marco Rubio and Kristi Noem submitted declarations that to tell the judge when the planes landed in El Salvador would compromise national security, which amazingly is hardly the most foolish thing asserted by a cabinet secretary yesterday.

The President of the United States is a party to this lawsuit. President Trump is “the only person who alone composes a branch of government.” Trump v. Mazars USA, LLP, 591 U.S. 848, 868 (2020). Consequently, this Court owes President Trump “high respect.” Clinton v. Jones, 520 U.S. 681, 707 (1997). That binding command on this Court ought to—but to this point has not—“inform the conduct of the entire proceeding, including the timing and scope of discovery.” Id.

And what state secret would put the security of the homeland at risk? Secretary of State Rubio makes the ironic assertion it would impair other nation’s trust in the United States.

The Secretary of State’s declaration confirms that the removal of the Alien Enemies at issue, namely alien members of the designated foreign terrorist organization Tren de Aragua (“TdA”), were the product of “nonpublic, sensitive, and high stakes negotiation” with one or more foreign countries. Rubio Decl. ¶ 10. Disclosure of the information requested by the Court “could cause the foreign State’s government to face internal or international pressure, making that foreign State and other foreign States less likely to work cooperatively with the United States in the future, both within and without the removal context.” Id. Such disclosure would be viewed as a “breach of the trust on which our foreign relationships are based,” and would “impair[] the foreign relations and diplomatic capabilities of the United States.”

It’s almost as if Trump’s threat to take Greenland “one way or the other,” or deny Ukraine intelligence to defend against Trump’s bestest pal, Putin, never happened. But I digress.

The ten-page invocation of the privilege is replete with rhetoric providing absolutely no rationale for why the state secrets privilege has anything whatsoever to do with the information demanded by Judge Boasberg.

Moreover, the Secretary of Homeland Security has established that responding to the Court’s inquiries would “directly compromise[] the safety of American officers, contractors, aliens, and the American public” by, for example, divulging “critical means and methods of law enforcement operations,” “confirming alleged operational details [that] would cause significant harm to the national security of the United States,” and “undermin[ing] the efficacy of American counterterrorism operations.” Noem Decl. ¶ 10. Disclosure “would allow others to draw inferences and insight into how future, similar governmental operations will be conducted, and to use that information in a manner adverse to U.S. national security,” thereby enabling “enemies of our national security … to stitch together an understanding of the means and methods used to thwart their unlawful and sometimes violent conduct.”

It was an airplane flight. More than that, it was a flight operated in public with no secret information and, upon landing, video distributed world wide. There was no mystery involved. There was no intrigue. There is no information that isn’t available to anyone and everyone who cared enough to pay attention. And yet Homeland Security Secretary Noem claims revealing the time the planes landed would “undermine the efficacy of American counterterrorism operations”?

The usual situation would have the government submit the detailed basis for its vapid rhetorical claims to the judge in camera, so as to protect its confidentiality while allowing the judge to appreciate why the state secrets privilege was invoked. But not this time.

In light of the utter lack of “need” for the information the Court seeks, the Court must address the invocation of the state secrets privilege on the basis of the declarations and without in camera review of the information at issue.

In camera review is “not required as a matter of course in a claim of the state secrets privilege.” Northrop Corp. v. McDonnell Douglas Corp., 751 F.2d 395, 401 (D.C. Cir. 1984); see also In re Agent Orange Product Liability Litigation, 97 F.R.D. 427, 431 (E.D.N.Y. 1983) (“[I]n camera inspection is not routine in cases where the state secrets privilege is invoked.”). The Zubaydah Court, as well as “Reynolds itself contemplated that . . . a claim of privilege could prevail without further examination by the court of the ostensibly privileged evidence.” Zubaydah, 595 U.S. at 209; see also Reynolds, 345 U.S. at 10 (“[T]he court should not jeopardize the security which the privilege is meant to protect by insisting upon an examination of the evidence, even by the judge alone, in chambers.”).

Of course, “not required” is hardly the same as should not happen in this instance, where the Justice Department policy comes into play.

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.”

But the Trump administration would never refuse to provide basic information to a judge under the baseless and irrational claim of state secrets to “prevent embarrassment” or, perhaps, its willful violation of the judge’s order because that would be wrong and shameful.