Rossman: And we're not aware of any cases in which something that isn't classified is a #StateSecret. It would be strange, #Boasberg recognized this in JGG case.

Rossman: Again, what's in this affidavit contrasts with other state secrets cases in which you can describe the danger — not wanting to reveal secret military technology, etc.

@Nonilex Love justice #Boasberg . He’s tying the #DOJ in knots and making fools of them.

#Boasberg: this would be cabined, expedited proceeding. then i'd give govt till wednesday to give their responses on whether they have objections to [discovery] plaintiffs propose. the next day i'll order a timeframe. then i'll ask parties to brief ... then i'll decide if there's constructive custody & , if so, we then go on to remedy.
any questions?
[none]
Okay, thanks everybody. Hearing concluded.

#Boasberg asks DOJ same question.

#DOJ: we'd have to brief that further. lot of issues with that.

Boasberg: here's what i'm going to do. i'll issue order tomorrow. brief order. i'll give you, DOJ, an opportunity to file further declarations from #state dept or anyone else regarding constructive custody issue. till end of day friday. then, mr gelernt, give you till Monday, having to review, & say either this is enough or, if you want additional discovery.

Gelernt: all those individuals were in #INA proceedings. Most applying for #asylum or some other form of protection. if they dont prevail, nothing prevents them from being removed under normal proceedings.

#Boasberg: what would that look like on the ground, if not returning them to #detention facilities in the #US.

Gelernt: nonstarter that this could go on at #CECOT …at #Guantanamo? probably harder for everyone--harder to make sure everyone got attorneys etc.

#Boasberg: your stronger argument is justiciability, not the interpretation of the #AEA?

#DOJ: no, we do believe we have the better of [both arguments]

Boasberg: let's move on to remedy. Mr. Gelernt, Assume I find custody & find violation. for the #CECOT class, you've said remedy is to facilitate their return. But there's other remedies. giving them notice & hearings there. or moving them to #Guantanamo. but then we're back in INA land.(Conventional #Immigration & Nationality Act proceedings.)

#DOJ: they did say it's largely #immune from #legal review.

#Boasberg: your clients are saying scotus upheld the proclamation

DOJ: it did allow the proclamation to take effect

Boasberg: [reading from #SCOTUS ruling] "we do not reach those arguments." It didn't decide one way or other.

DOJ: but did say there was very limited review.

Boasberg: so it's your view all these #judges are just wrong & #Trump did validly invoke #AEA?

DOJ: ... govt will appeal

#Boasberg: you've essentially admitted their rights were violated. if they're in constructive custody, what's the remedy?

#DOJ: ...

Boasberg: now we've got #judges in #SDNY, #SDTex, #DColo, plus a circuit judge in #DC all finding that invasion & predatory incursion have #military connotations so proclamation did not properly invoke #AEA. agree that's where things stand?

DOJ: yes.

Boasberg: #SCOTUS never said AEA was properly invoked.

#Boasberg: If i find proclamation did not properly invoke #AEA at all?

Gelernt: then they should all come back.

Boasberg turns back to #DOJ. You certainly agree w/ #SCOTUS they need to receive meaningful notice.

DOJ: Yes, that was prospective relief. from that moment onward.

Boasberg: agree they got no #DueProcess?

DOJ: i can't say it was the same as they'd get right now.

Boasberg: so transferring them to CECOT w/o process, scotus says due process required...

#Boasberg: okay, [switching to the #CECOT class], did they get any notice at all?

Gelernt: we don't know. some may have gotten a notice ...but it said there was *no review*. that's what AG's guidance was ...

Boasberg: so #DueProcess does provide you w/meaningful opportunity to file #HabeasCorpus. are you getting that now?

Gelernt: we would have to have each individual at CECOT have opportunity to prove they weren't gang members, or for govt to prove they were.

#DOJ: if going to be somewhere else in US, their #habeas has to be heard there. [But DOJ emphasizes that it's speculative what's going to happen to these criminal defendants down the road.]

#Boasberg now asking Gelernt, of ACLU, about irreparable harm.

Gelernt: the problem is, at 8pm tonight, they could move them from criminal custody to #ICE custody & they could be removed from country by 8am tomorrow morning.

#Boasberg: are there still 32 individuals in criminal custody with active detainers against them. [this refers to a proposed class relating to criminally confined aliens in the US.]

#DOJ: not sure.

Boasberg: let's assume for a minute that all these people will be removed after criminal proceedings run their course, & that those 32 could challenge their future rules for #habeas—then can we hear it?

#DOJ: none of the cases plaintiff cited involved asking a foreign sovereign before a decision can be made. That cuts against idea we have constructive custody—especially immediate custody. ...question is can we immediately produce without another country having a say in it?

#Boasberg: cites a case where consultation w/ Saudi Arabia was required.

DOJ: yes, but that was just consultation.

#law #immigration #AlienEnemiesAct #Rendition #DueProcess #Judiciary #AbuseOfPower #Trump

#Boasberg: Secy #KristiNoem said, "One of tools in our toolkit." Is she wrong?

#DOJ: i'm not going to parse out every statement l...

Boasberg: does that means these statements aren't true?

DOJ: not what i'm saying at all...

Boasberg: what you're telling me ... are you willing to provide that in declarations?

DOJ: we don't believe discovery is necessary. can consult with State dept.

#Boasberg: there's a grant to #ElSalvador ... [he gives a dollar figure]

#DOJ: there were grants to El Salvador

Boasberg: your note from Landau — you're not thinking that's controlling. all he says is el salvador makes it's own sovereign decisions. doesn't even apply to these people at #CECOT, right?

DOJ: ...

Boasberg: white house spox Karoline Leavitt said ~$6M to El Salvoador to house these *terrorists*. is she wrong?

DOJ: there were grants provided. can be utilitzed for costs.

DOJ: #KilmarAbregoGarcia was held in Maryland at one point.

#Boasberg: no way to say Abrego Garcia is in constructive custody but these plaintiffs are not?

DOJ ...

Boasberg: is #US paying #ElSalvador

DOJ: here's what i can present ... there is no agreement or arrangement whereby US maintains any agency or control over prisoners. no constructive custody. what exists is a letter ...

#DOJ: some differences. he was detained in MD at one point

#Boasberg: but in terms of constructive custody no difference?

DOJ: some nuances ...

Boasberg: you didn't dispute issue of custody—govt never disputed question of custody

DOJ: govt does take position they are not able to return him.

Boasberg: currently what's diffence between custody #ElSalvador holds over #KilmarAbregoGarcia & these plaintiffs.
... there's no difference is there?

#DOJ: influence does not equate to constructive custody.

#Boasberg: my question is, was president telling the truth? you've got #ElSalvador VP saying issue has to be solved in the #US ...

DOJ: goes to whether salvador has a say at all or not. if it has a say, that does negate --

Boasberg: but you wouldn't dispute that in terms of custody, no difference between #KilmarAbregoGarcia & plaintiffs here?

#DOJ: boils down to whether #US has agency...

#Boasberg: you're saying if i find constructive custody, there's venue here in DC?

DOJ: [first] you have to determine you have venue

Boasberg: if there is constructive custody then venue's appropriate here?

DOJ: yes, your honor.

Boasberg: in looking at constructive custody … didn't #Trump say just last week that he could secure return of #KilmarAbregoGarcia by just picking up the phone? was he not telling the truth?