'Incredibly troublesome': Judge grills DOJ over alleged gang member deportations

President Donald Trump's use of the Alien Enemies Act to deport more than 200 alleged Venezuelan gang members is an "incredibly troublesome and problematic" application of the centuries-old wartime law, U.S. District Judge James Boasberg said during a court hearing Friday, in his strongest rebuke to date of the Trump administration's deportation actions.

Trump last Saturday invoked the Alien Enemies Act -- a wartime authority used to deport noncitizens with little-to-no due process -- by arguing that the Venezuelan gang Tren de Aragua is a "hybrid criminal state" that is invading the U.S.

"I agree the policy ramifications of this are incredibly troublesome and problematic and concerning, and I agree it's an unprecedented and expanded use of an act that has been used ... in the War of 1812, World War I and World War II, when there was no question there was a declaration of war and who the enemy was," Boasberg said at Friday's hearing.

The judge noted that the Trump administration's arguments about the extent of the president's powers are "awfully frightening" and a "long way from" the intent of the law.

He also vowed to hold the Trump administration accountable, if necessary, if they violated his court order last weekend blocking the use of the Alien Enemies Act to deport the Venezuelan migrants.

"The government's not being terribly cooperative at this point, but I will get to the bottom of whether they violated my order and who ordered this and what's the consequence," he said.

When Boasberg asked if the DOJ could vow that the Trump administration would hold individual hearings before they deport anyone under the AEA to confirm they are members of Tren de Aragua, Deputy Assistant Attorney General Drew Ensign declined to make that commitment.

"No, Your Honor, I don't have authorization to do that," he said.

Boasberg concluded the hearing without issuing any ruling from the bench.

Earlier in the hearing, the judge probed the timing and motive behind the Trump administration's "rushed" deportations last weekend, which took place despite Boasberg ordering that they turn around two flights the administration said were deporting alleged migrant gang members to El Salvador. Officials failed to turn the flights around, saying they were already in international waters by the time they got the order, according to sources.

Ensign confirmed to Boasberg during Friday's hearing that he understood the judge's 6:45 p.m. oral directive to turn both flights around and conveyed that to immigration authorities, seemingly undermining arguments made by the Justice Department earlier this week about the timing of the order.

"Can I ask you now how you interpreted that statement when we had a conversation on Saturday?" Judge Boasberg asked. "Did you not understand my statement during that hearing?"

"I understood your statements and relayed your directive to the clients, which I have done," Ensign said.

"What did you understand? Did you think that that was hypothetical, not serious, that it was going to be modified? Or did you understand that when I said do that immediately?" Judge Boasberg asked.

"I understood your intent -- that you meant that to be effective at that time," Ensign said, appearing to undermine the DOJ's arguments.

Judge Boasberg also questioned the timing of Trump's proclamation invoking the Alien Enemies Act, suggesting it was "signed in the dark" to rush the deportations before someone could bring a legal challenge.

"Why is this proclamation essentially signed in the dark on Friday night, early Saturday morning, when people rushed on the plane?" Judge Boasberg asked. "To me, the only reason to do that is if you know the problem and you want to get them out of the country before a suit is filed."

"I don't have knowledge of those operational details," Ensign said.

The judge also raised concerns that the rushed deportations prevented the men from being able to challenge the allegation they belonged to Tren de Aragua.

"The question ... is whether the government can summarily deport people without any individualized assessment of whether they actually fall into the category of the proclamation," Boasberg said. "What happens if someone is not a member of TdA or not a Venezuelan citizen or not a lawful permanent resident? How do they challenge their removal?"

Ensign said individuals could challenge the label with a habeas petition.

"Your honor, I think the SDNY decision in the Watkins case suggests that review is available under habeas for those individualized determinations," he said. "So that court recognized that you couldn't bring facial challenges to the sufficiency of the president's determinations under the proclamation, the individualized applications of them may be reviewable in habeas."

An attorney for the American Civil Liberties Union argued that individuals targeted by the AEA should be able to contest whether they fall within the act.

"Otherwise, anybody could be taken off the street and removed," Lee Gelernt, the ACLU attorney, said. "This is a very dangerous road we're going down."

Gelernt said there would have to be some type of judicial review for individuals to be removed under the proclamation, adding it should be a meaningful process for individuals "to understand and contest" the claims against them.

With Ensign appearing to undermine arguments made earlier this week about the timing of the order -- and continuing to struggle to answer Judge Boasberg's questions -- the judge suggested that the DOJ might be risking its reputation and credibility with its recent conduct.

"I often tell my clerks before they go out into the world to practice law, the most valuable treasure they possess is their reputation and their credibility," Boasberg said. "I just ask you make sure your team [understands] that lesson."

Trump is the first president since World War II to use the Alien Enemies Act and the first president to use it against a non-state actor.

An official with the U.S. Immigration and Customs Enforcement acknowledged in a sworn declaration earlier this week that "many" of the noncitizens deported last wekend under the Alien Enemies Act did not have criminal records in the United States.

Trump, asked by ABC News' Karen Travers Friday during an Oval Office press availability if he believes he has the authority to round up people and deport them without having to show the evidence against them, replied, "That's what the law says, and that's what our country needs."

"You can't take that away from the people that are responsible," Trump said. "And you can't stop that with a judge sitting behind a bench that has no idea what goes on."

"They're bad people," Trump said of the alleged gang members while criticizing the Biden administration's border policy. "We don't want them in our country. We can't let a judge say that he wants them. You know, he didn't run for president. ... I won on the basis of getting criminals out of our country."

Friday's hearing comes as cabinet-level officials in the Trump administration are considering invoking the state secrets privilege to prevent the disclosure of information about last week's deportations, according to sworn filing from Deputy Attorney General Todd Blanche.

The Trump administration has until March 25 to confirm whether they are invoking state secrets privilege to prevent the disclosure of information about the deportation flights based on national security concerns.

Elizabeth Goitein, senior director of the Liberty and National Security Program at the nonprofit Brennan Center for Justice, said the Trump administration's potential use of state secrets privilege could revive a decades-old conflict about the judicial branch's role in national security issues.

If Judge Boasberg accepts the Trump administration's argument that providing more information about the deportations risks national security, it could move swaths of evidence off the table and potentially sideline legal cases related to the removals, Goitein said.

But the Trump administration has to prove the risk to Boasberg, who will make the decision about whether the privilege is applicable.

"The president cannot simply say the words 'national security' and shut down the courts when it comes to their review of things like deportations under the Alien Enemies Act," Goitein told ABC News.

To demonstrate that the privilege should apply, the head of the agency that holds the relevant information needs to submit evidence or sworn declarations proving that the public disclosure of information would risk national security.

"It's really up to the judge," Goitein said. "The judge will look at whatever declarations or affidavits are filed by the government and will determine whether, on their face, these documents establish that the state secrets privilege applies to the information."

However, the Trump administration has so far argued that not even Judge Boasberg has the right to know more about the deportations. In filings and court hearings this week, DOJ lawyers have argued that the issue exceeds Boasberg's jurisdiction -- even though federal judges have the authority to review classified information in closed settings, according to Goitein.

If the Trump administration continues to stonewall the judge, they're unlikely to properly invoke the privilege to prevent the public disclosure of the records, according to Goitein.

"It seems like the government is asserting, already, from the get-go, that the court should not have this information, regardless of whether it ever gets to the litigants or whether it ever becomes public. That is not a valid assertion," she said.

Goitein noted that the lawsuit over the deportations can proceed while Judge Boasberg takes up the state secrets arguments, and the case may be able to continue even if the privilege is permitted by the judge. The use of state secrets privilege would wall off certain evidence and materials -- some of which might be necessary to prove the Trump administration potentially defied the court's order -- but the overall case about the legitimacy of the deportations may be able to continue, she said.

"This information that the judge has requested is less about the lawsuit that the plaintiffs filed ... and more about whether or not the government complied with the court's order to stop any deportations," she said.