The Department of Justice and Trump administration officials are invoking the state secrets privilege in the case involving Venezuelans sent to El Salvador.
Patrick Semansky/AP
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Patrick Semansky/AP
The Trump administration announced that it would not provide additional details in response to a judge’s inquiry regarding three recent deportation flights that transported Venezuelan migrants, asserting that the information is classified as a state secret.
The Justice Department indicated in a court document on Monday that it is invoking the “state secrets privilege” in this matter, arguing that disclosing the information could jeopardize diplomatic relations and national security.
This case is part of a legal challenge the administration is facing after President Trump invoked the 1798 Alien Enemies Act to remove individuals accused of being part of a violent Venezuelan prison gang to El Salvador earlier this month.
Here’s a briefing on the state secrets privilege — the legal doctrine currently invoked by the DOJ.
What is the state secrets privilege?
This privilege enables the United States government to withhold sensitive data — including intelligence sources and methods, as well as certain foreign affairs information — from becoming public during a court case. The government can also intervene in legal disputes that it is not part of and exercise this privilege if it believes that sensitive information could be revealed during the proceedings.
“The privilege is intended to navigate areas where the executive privilege and judicial responsibility intersect,” noted George Croner, a non-resident senior fellow at the Foreign Policy Research Institute.
It is often invoked in matters pertaining to military, national security, and foreign affairs, Croner added, who is also the former principal litigation counsel at the National Security Agency.
Typically, the head of the federal agency asserting the state secrets privilege will submit a declaration or affidavit to the judge explaining why withholding the information is essential. In this instance, Attorney General Pam Bondi, Secretary of State Marco Rubio, and Homeland Security Secretary Kristi Noem all provided signed statements to Judge James Boasberg.
Federal judges often defer to the executive branch’s requests for invoking state secrets privilege, but at times, they may ask to review the evidence privately or deny the government’s request.
Ashley Deeks, a law professor at the University of Virginia specializing in national security, mentioned that critics have long raised concerns about the opacity allowed by this legal strategy.
“There is worry that the government might invoke it to hide illegal actions or those that could embarrass the government,” she stated.
The Center for Constitutional Rights, a legal advocacy organization, previously argued that the state secrets privilege “essentially permits the executive branch to dictate to the federal courts which cases they can and cannot adjudicate.”
The history of the legal doctrine
Two pivotal U.S. court cases established the foundation for the state secrets privilege, according to a recent report from the Congressional Research Service.
The first case dates back to 1876 and involves a Union spy hired by President Abraham Lincoln aimed at conveying information about Confederate troop movements during the Civil War. Afterward, the spy’s estate sued the government for allegedly unpaid compensation.
In the case known as Totten v. United States, the Supreme Court ruled that a court cannot conduct a trial that would “inevitably lead to the revelation of matters which the law itself considers confidential” — in this situation, a contract involving espionage.
Seventy-five years later, the Supreme Court refined the rationale behind the state secrets privilege.
In 1952, the case United States v. Reynolds reached the Supreme Court, where the widows of three civilian crew members killed in a military aircraft crash sued the government for access to the accident investigation report.
The Air Force contended that making the accident report public would jeopardize national security since the flight involved testing secret electronic equipment.
The Supreme Court ruled in favor of the government, allowing it to withhold sensitive military information. Still, Chief Justice Fred M. Vinson acknowledged in the majority opinion that such a legal doctrine could pose challenges for judges, who may need to make decisions without viewing the concealed evidence.
“Judicial control over the evidence in a case cannot be left to the whims of executive officers,” Vinson stated. “However, we will not go so far as to say that the court must automatically require complete disclosure to the judge before the privilege claim is accepted in any case.”
How Trump and other recent presidents have utilized the privilege
In recent years, government attorneys under both Republican and Democratic administrations have invoked the state secrets privilege in numerous cases related to the global war on terrorism, including lawsuits concerning the NSA’s warrantless wiretapping program and the Central Intelligence Agency’s “enhanced interrogation” techniques.
A 2010 article in the University of Pennsylvania Law Review revealed that the U.S. government had invoked the state secrets privilege in over 100 cases from 2001 to 2009.
The American Civil Liberties Union noted in 2007 that the administration of then-President George W. Bush was utilizing the privilege to “evade accountability for torture, silence national security whistleblowers, and dismiss lawsuits alleging racial discrimination.”
In 2009, then-Attorney General Eric Holder introduced new guidelines within the Justice Department outlining when the government would invoke the privilege. NPR highlighted at the time that the Obama administration, which included Holder, faced criticism from the ACLU for concurrently asserting the privilege in ongoing litigation.
The Supreme Court determined in 2022 that the federal government could invoke the privilege to prevent two CIA contractors from testifying about the alleged post-9/11 torture of a detainee named Abu Zubaydah at a secret location in Poland, marking a significant case regarding the limits of the privilege.
Deeks from the University of Virginia indicated that the Trump administration’s use of the privilege in this instance stood out as it was not in response to a request from opposing attorneys but rather from the judge himself. Judge Boasberg has been attempting to ascertain whether the Trump administration breached his order to halt or reverse the deportation flights.
Rubio and Noem claimed in their declarations that revealing details about the deportation flights could jeopardize diplomatic relations and undermine law enforcement methods.
If Boasberg declines the government’s arguments, Croner mentioned that he expects the Justice Department to appeal.
“Eventually, down the line, we may see another decision from the U.S. Supreme Court regarding the parameters of the state secrets privilege based on how it was invoked in this case,” he added.
