Across a range of court cases involving the transfer of non-US citizens to El Salvador, the Trump administration has asserted various information is a “state secret” that cannot be released to plaintiffs or even judges. Although state secrets litigation is largely under seal, it is important to understand the scope of the privilege and why there is substantial reason to believe that it is inapplicable to protect the disclosures sought by plaintiffs and the courts in current cases.
The government’s assertion of the state secrets privilege has arisen in cases in which courts are trying to review the government’s conduct in removing someone from the United States, whether people extracted to El Salvador are in the constructive custody of the United States, and whether the government has violated a court order not to remove plaintiffs from U.S. jurisdiction or an order to facilitate their return. The Trump administration’s assertion of the privilege apparently includes the content of the United States’ arrangement with El Salvador, the timing of the flights and transfer of migrants, and efforts to facilitate the release of individuals that courts have determined were unlawfully removed to Salvadoran prisons.
State secrets doctrine is in some respects messy and complicated, and there may well be hard questions about the application of the doctrine in some contexts. But one matter is well-established: The state secrets doctrine applies only to actual secrets. That principle makes the doctrine inapplicable to information that the Trump administration is trying to shield in the Abrego Garcia and Alien Enemies Act cases. Indeed, as demonstrated below, the critical information in the El Salvador removal cases is not a secret as a result of actions by the government itself.
Historically, courts have repeatedly rejected the assertion of the state secrets privilege, which was never intended to be a mechanism to protect the government from embarrassment or to hide wrongdoing. Rather, the Department of Justice is supposed to never defend an invocation of the privilege to “conceal violations of the law, inefficiency, or administrative error” or to “prevent embarrassment to a person, organization, or agency of the United States government.”
(As an aside: It is hard to escape the conclusion that the Trump administration is invoking the doctrine here to impede accountability and judicial remedies for official conduct that courts have found unlawful; prior administrations have also abused the state secrets privilege to avoid accountability.)
The Law of State Secrets
Where the state secrets privilege applies, a court may preclude a plaintiff’s claim from being adjudicated and, where the case cannot proceed without the privileged information being at risk of disclosure, the case may be dismissed in its entirety. United States v. Reynolds, 345 U.S. 1 (1953).
Courts have closely scrutinized the assertion of state secrets under a test of strict necessity. In the oft-quoted decision in Ellsberg v. Mitchell, 709 F.2d 51 (D.C.Cir.1983), the DC Circuit explained: “Because of the broad sweep of the privilege, the Supreme Court has made clear that ‘[i]t is not to be lightly invoked.’ Thus, the privilege may not be used to shield any material not strictly necessary to prevent injury to national security” (quoting Reynolds).
Courts have recognized that “the first step in determining whether a piece of information constitutes a ‘state secret’ is determining whether that information actually is a ‘secret,’” Hepting v. AT&T Corp., 439 F. Supp. 2d 974, 986 (N.D. Cal. 2006). Importantly, media reports, leaks and the like, even when attributed to anonymous government sources, do not suffice to make something no longer secret. That’s due to the lack of reliability with unofficial sources in general, as the Supreme Court explained in its 2022 decision United States v. Zubaydah. Thus, courts reject challenges to the assertion of the privilege even when it is clear to everyone what in fact has occurred, but the government has not made official pronouncements to that effect.
In contrast, public acknowledgement by government officials can make the relevant information no longer secret. Consider a few examples:
1. In Al-Haramain Islamic Foundation, Inc. v. Bush, 507 F.3d 1190 (9th Cir 2007), the Ninth Circuit held:
“Because of the voluntary disclosures made by various officials since December 2005, the nature and purpose of the TSP [terrorist surveillance program], the ‘type’ of persons it targeted, and even some of its procedures are not state secrets. In other words, the government’s many attempts to assuage citizens’ fears that they have not been surveilled now doom the government’s assertion that the very subject matter of this litigation, the existence of a warrantless surveillance program, is barred by the state secrets privilege.”
Notably, the court rejected declarations asserting state secrets by John D. Negroponte, Director of National Intelligence, and Lieutenant General Keith B. Alexander, Director of the National Security Agency.
See also Jewel v. Nat’l Sec. Agency, 965 F. Supp. 2d 1090, 1105-06 (N.D. Cal. 2013) (“The Court finds that although there are certainly details that the government has not yet disclosed, ‘because of the voluntary disclosures made by various officials’ … the Court does not find dismissal appropriate based on the subject matter of the suits being a state secret.”) (quoting Al-Haramain Islamic Foundation).
2. In Hepting, the district court rejected the government’s claim that the existence of an NSA surveillance program was a state secret due, in significant part, to public statements by the President and the Attorney General describing parts of the program. The court also rejected the government’s assertion of a state secrets privilege despite declarations by the Director of National Intelligence Negroponte and NSA Director LTG Alexander.
The court stated, “While the court recognizes and respects the executive’s constitutional duty to protect the nation from threats, the court also takes seriously its constitutional duty to adjudicate the disputes that come before it. To defer to a blanket assertion of secrecy here would be to abdicate that duty, particularly because the very subject matter of this litigation has been so publicly aired.”
See also Ellsberg v. Mitchell, 709 F.2d 51 (D.C.Cir.1983) (“The defendants have admitted (indeed insisted) that each tap was authorized by an Attorney General. We cannot see, and the government does not even purport to explain, how any further disruption of diplomatic relations or undesirable education of hostile intelligence analysts would result from naming the responsible officials. Accordingly, we conclude that the District Court erred in upholding this aspect of the government’s claim of privilege.”)
3. In Burks v. Islamic Republic of Iran, Case 1:16-cv-01102-CRC (D.D.C. Aug. 21, 2020), the court stated that “assertion of the state secrets privilege to conceal information linking Iran to the EFPs [explosively formed penetrators] used in the Tiffner and Burks attacks appears ‘dubious’ given that the link between Iran and EFP attacks in Iraq has long been a matter of official public record.” The court rejected the assertion of state secrets due to public statements by the U.S. Army, State Department, and a report released by a Defense agency in the course of the litigation.See also Rahman v. Chertoff, 2008 WL 4534407, at *6 (N.D. Ill. Apr. 16, 2008) (rejecting assertion of state secrets due to “factual backdrop” revealing plaintiffs’ being listed in Terrorist Screening Database).
4. In Jabara v. Kelley, 75 F.R.D. 475, (E.D. Michigan 1977), the court held: “The name of this other federal agency has been revealed in a final report of the United States Senate Select Committee on Intelligence issued on April 23, 1976. In view of that report, it would be a farce to conclude that the name of this other federal agency remains a military or state secret.”
See also American Civil Liberties Union v. National Sec. Agency, F.Supp.2d 754, 765 (E.D. Michigan 2006) (citing Hepting) (overturned on other grounds, 493 F.3d 644 (6th Cir. 2007)) (“As the Government has on many occasions confirmed the veracity of these allegations, the state secrets privilege does not apply to this information.”).
5. Lessons may also be drawn from cases in which officials’ acknowledgement of information has precluded the executive withholding information under FOIA on the ground that it would reveal government secrets. See, e.g., Zubaydah (Breyer, concurring) (“[T]he Government cites legal authority from the separate but roughly analogous Freedom of Information Act (FOIA) context …. To be clear, the FOIA doctrine is only an (imperfect) analogy …. However, the principles underlying the FOIA rule provide at least some support for the Govern-ment’s position here.”). In ACLU v. CIA, 10 F.3d 422 (D.C. Cir. 2013), for example, the DC Circuit rejected the CIA’s refusal to conform or deny the existence of records concerning the agency’s drone program in response to a FOIA request “[g]iven the extent of the official statements on the subject.”). See also Wolf v. CIA, 473 F.3d 370, 378 (D.C. Cir. 2007) (“[W]hen information has been `officially acknowledged,’ its disclosure may be compelled even over an agency’s otherwise valid exemption claim.”) (citation omitted).
The Government’s Public Statements About the El Salvador Arrangement
In the Table below, I identify different parts of the arrangement between the United States and El Salvador that have been publicly acknowledged by U.S. officials. I focus primarily on the content of the United States-El Salvador arrangement.
Although not necessary, some entries in the Table include official acknowledgement by Salvadoran officials. In Hepting, the court relied not only on the U.S. official acknowledgement but also on acknowledgement by telecommunication companies that collaborated with the U.S. government in a warrantless surveillance program. Hepting, at 990 (“[I]n determining whether a factual statement is a secret, the court considers only public admissions or denials by the government, AT & T and other telecommunications companies, which are the parties indisputably situated to disclose whether and to what extent the alleged programs exist.”). The government of El Salvador is, like the telecommunication companies in Hepting, one of “the parties indisputably situated to disclose whether and to what extent the alleged programs exist.”
| Official Acknowledgement of United States-El Salvador Arrangement | ||
| Government Official | Type of Information | Acknowledgement |
| Secretary Marco Rubio
Secretary of State Marco Rubio and Salvadoran Foreign Minister Alexandra Hill Tinoco at the Signing of a Memorandum of Understanding Concerning Strategic Civil Nuclear Cooperation, Transcript, U.S. Department of State, San Salvador, El Salvador, February 3, 2025 |
Arrangement to house Salvadorians, MS-13, TdA in El Salvador prison
Identifying knowledge of President Trump |
“While more details will be forthcoming, the president [of El Salvador] in an act of extraordinary friendship to our country, knowing the challenges we face in the U.S., has agreed to the most unprecedented and extraordinary migratory agreement anywhere in the world.
First, obviously, he continues with full cooperation on the returning of Salvadorans who find themselves illegally in the United States and welcome them back home, and that’s already existing and that will continue. But second, he has agreed to accept for deportation any illegal alien in the United States who is a criminal from any nationality, be they MS-13 or Tren de Aragua, and house them in his jails. And third, he has offered to house in his jails dangerous American criminals in custody in our country, including those of U.S. citizenship and legal residents. No country’s ever made an offer of friendship such as this. You can think about it: any unlawful immigrant, illegal immigrant in the United States who’s a dangerous criminal – MS-13, Tren de Aragua, whatever it may be – he has offered his jails so we can send them here and he will put them in his jails. And he’s also offered to do the same for dangerous criminals currently in custody and serving their sentences in the United States, even if they’re U.S. citizens or legal residents. We are just profoundly grateful. I spoke to President Trump about this earlier today, and it’s just one more sign of what an incredible friend we have here in President Bukele and the people of El Salvador.” |
|
President Nayib Bukele @nayibbukele, X post (Feb. 3, 2025, 9:44 pm) |
Financial exchange in bilateral arrangement
Location of custody |
“We have offered the United States of America the opportunity to outsource part of its prison system. We are willing to take in only convicted criminals (including convicted U.S. citizens) into our mega-prison (CECOT) in exchange for a fee. The fee would be relatively low for the U.S. but significant for us, making our entire prison system sustainable.” |
| Secretary Marco Rubio
@SecRubio, X post (Mar. 16, 2025, 7:59 a.m.) |
Financial exchange in bilateral arrangement
Total alleged MS-13, and total alleged TdA. |
“We have sent 2 dangerous top MS-13 leaders plus 21 of its most wanted back to face justice in El Salvador. Also, as promised by @POTUS, we sent over 250 alien enemy members of Tren de Aragua which El Salvador has agreed to hold in their very good jails at a fair price that will also save our taxpayer dollars. President @nayibbukele is not only the strongest security leader in our region, he’s also a great friend of the U.S. Thank you!” |
| Vice President Félix Ulloa
Sen. Van Hollen meeting with Vice President Félix Ulloa, April 16, 2025 (video) |
Financial exchange in bilateral arrangement
El Salvador willingness to release detainees if indicated by United States El Salvador not holding individuals on basis of own criminal assessment |
“V.P. Ulloa: As the President Bukele said, El Salvador is not able to take any action regarding the case because the case is in the U.S. and usually we do not express any opinion on domestic affairs. The situation is in the United States’ institutions – Supreme Court, administration. I mean the ball is in your court. Once the case will be resolved definitely and there will be clear instruction regarding this case or any other cases, El Salvador’s government will apply our principles because we are trying to build a rule of law. Of course we will act accordingly but so far the situation is in an unsolved case in the States. So my answer is once you solve this problem over there, we are ready to follow whatever will be indicated according our principles and our the law because we try to follow the law in any particular actions. So that could be a straight answer to your question. At this current moment, we cannot take actions because the case is still in the United States’ situation. … Sen. Van Hollen: What is it that would keep the government of El Salvador from releasing him? I mean, has he been charged under your law?V.P. Ulloa: No, but my question would be the same. What is your recommendation to El Salvador government? We can take him to the airport and ask an airline to take him to the States. Are you saying the airline would take a person without a passport? What kind of visa should we carry? if you think that operationally we can release a person without any papers, without any visa – that’s what the President said. We cannot smuggle a person to the United States, because if we send a person without a visa, tourist visa, working visa, student visa, what kind of visa to get legally into the United States? And that is really a big concern for us. … Sen. Van Hollen: Do you have any evidence that Mr. Abrego Garcia has committed crime? … V.P. Ulloa: How can I have it? Sen. Van Hollen: Well you just said this is a prison for the worst of the worst, right? These are for the hardened criminals. V.P. Ulloa: We don’t know. Sen. Van Hollen: Is he a hardened criminal? V.P. Ulloa: We don’t qualify those persons who are there, we just take them – Senator Van Hollen: You’re taking them because the United States government is paying you to keep them there, right? V.P. Ulloa: Exactly, that’s it. V.P. Ulloa: I mean, if the person that you sent is not a criminal, is not whatever, I mean, it is up to you. That’s what I’m saying. I don’t want to express any opinion because it shouldn’t be that I will be involved in internal affairs of the United States. I think it’s up to you, that’s what I’m saying. The board is in your court. When you solve the problem, just come here and we will follow the law. Bottom line is this is an issue that has solved in the United States. We have not expressed – we cannot express any opinion on the case because it is up to you. Sen. Van Hollen:Im asking whether you have any evidence that this individual committed a crime that he’s in CECOT for, and the answer is no. And so the question is, why is he being detained there? And your answer is that there’s this arrangement, you’re being paid by – V.P. Ulloa: He came in a group. We don’t have any individual files [inaudible]. Our team is not able to review them file for file, case by case, to accept them. We have a deal with the U.S. government: they send people, we host them, they pay, and that’s it.” |
| Vice President Ulloa
Interview with Bukele’s Consigliere, El Grand Continent, May 6, 2025 |
Custody as a service to United States | English (translation): “Regarding what you mention: in view of the quality and safety of the facilities that we propose, this service is being provided that we could call prison accommodation. It is as if a person comes to El Salvador and asks for medical treatment; We have medical tourism for people who come for dental treatment, etc.
So we do not see that it is an issue of international law or international conflict to the extent that it is supported by the provision of a service. The quality of the inmates or the person who comes is not qualified by El Salvador; it is qualified by the State that requests the provision of the service.” Spanish (original): “En torno a lo que usted menciona: en vista de la calidad y seguridad de las instalaciones que proponemos, se está dando este servicio que podríamos llamar un alojamiento penitenciario. Es como si viene una persona a El Salvador y pide tratamiento médico; tenemos turismo médico para personas que vienen a hacerse tratamiento odontológico, etc. Entonces no vemos que sea un tema de derecho internacional ni de conflicto internacional en la medida en que está respaldado por la prestación de un servicio. La calidad de los internos o de la persona que viene no la califica El Salvador; la califica el Estado que pide la prestación de servicio.” |
| U.S. Embassy in El Salvador
Secretary Rubio’s Meeting with Salvadoran President Nayib Bukele, Readout, Office of the Spokesperson, February 3, 2025 |
Bukele promise to incarcerate and agrees to take MS-13 members | “President Bukele agreed to take back all Salvadoran MS-13 gang members who are in the United States unlawfully. He also promised to accept and incarcerate violent illegal immigrants, including members of the Venezuelan Tren de Aragua gang, but also criminal illegal migrants from any country. And in an extraordinary gesture never before extended by any country, President Bukele offered to house in his jails dangerous American criminals, including U.S. citizens and legal residents.” |
|
White House Press Secretary Karoline Leavitt White House Press Briefing, March 17, 25 (video) |
Financial exchange in bilateral arrangement
President Bukele’s request for twenty-three (23) MS-13 members Total number of individuals of different categories transferred |
“Karoline Leavitt: We’ve already provided the breakdown in the effort of transparency about the 261 illegal aliens who were deported. 137 of those were deported under the Alien Enemies Act. 101 of those were Venezuelans removed via Title 8, as you know, are just regular immigration proceedings. And 23 of them were MS-13 Salvadorian gang members. There were also two MS-13 ring leaders as part of that group of 23 who President Bukele particularly expressed his gratitude for their return so he can demand justice in his home country” … “Question: One more follow up on that. Can you say how much the US is paying El Salvador to imprison these Venezuelans? …Karoline Leavitt: Sure. To your first question, it was approximately $6 million to El Salvador for the detention of these foreign terrorists. And I would point out that is pennies on the dollar in comparison to the cost of life and the cost it would impose on the American taxpayer to house these terrorists in maximum security prisons here in the United States of America. And I would echo the message of our Secretary of State, Marco Rubio, who expressed his gratitude to President Bukele and El Salvador’s government for their cooperation in this deal.” |
| Secretary Rubio
Secretary of State Marco Rubio and Costa Rican President Rodrigo Chaves Robles at a Joint Press Availability, Remarks, Marco Rubio, San José, Costa Rica, February 4, 2025 |
Bukele offer to outsource imprisonment of Americans for financial reimbursement | “Question: Thank you, Mr. Secretary. On President Bukele’s offer to jail incarcerated Americans in El Salvador, is that something you’d like to see happen?…
Secretary Rubio: Yeah. Let me address the first one. That’s an offer President Bukele made. Obviously, we’ll have to study it on our end. There are obviously legalities involved. We have a Constitution, we have all sorts of things. But it’s a very generous offer. No one’s ever made an offer like that, and – to outsource at a fraction of the cost at least some of the most dangerous and violent criminals that we have in the United States. But obviously, the administration will have to make a decision, and it’s – but it’s – I raised it yesterday because it’s an incredible offer, an unprecedented one.” |
| Secretary Rubio
Secretary of State Marco Rubio Remarks to the Press, U.S. Department of State, March 28, 2025 |
Diplomatic communications about prior agreement to house individuals and finalize execution | Secretary Rubio: I’ve spoken to him [Bukele] a number of times.
Question: I know, but this — Secretary Rubio: Not just the only time you were around. Secretary Rubio: Yes. Question: So now we’re into Friday, and it became clear with this transfer of diplomatic notes from El Salvador and the stuff that the State Department was doing to get the money ready – 20 grand per person per year for this initial tranche of (inaudible). And it made clear that the President was going to go in and sign the AEA declaration, and yet it didn’t come out until after, so Saturday. Why? Was that — Secretary Rubio: Well, about the AEA declaration, that came from the White House. My conversations with President Bukele were as a follow-up and to finalize in a verbal agreement we had reached in my visit to El Salvador on my first trip as the Secretary, so it was just sort of following up on that and how we were going to proceed with it. We were ready now to execute at some point, and we were working through those arrangements with them. And that’s what those calls were about. It was just sort of to finalize what we had agreed on. … the agreement to house criminal aliens was reached with President Bukele back in February.” |
| Secretary Rubio
@SecRubio, X post (Mar. 16, 2025, 8:39 a.m.) President Donald Trump @realDonaldTrump, Truth Social post (Mar. 16, 2025, 3:54 p.m.) President Nayib Bukele @nayibbukele, X post (Mar. 16, 2025, 8:13 a.m.) |
Operational details of flights, plane tail number
Number of people involved Identities of many Form and facility in transfer of custody Location of custody Time period of transfer |
Video shows these details as summarized by Chief Judge Boasberg:
“The Secretary of State has revealed many operational details of the flights, including the number of people involved in the flights, many of their identities, the facility to which they were brought, their manner of treatment, and the time window during which these events occurred. The Court is therefore unsure at this time how compliance with its Minute Order would jeopardize state secrets.” J.G.G. v. United States, Order (Mar. 19, 2025) (Chief Judge James Boasberg), at 2. |
| White House Press Statement
No Safe Harbor for Illegal Immigrant Criminals Under President Trump, The White House, Article, April 14, 2025 |
Names of individuals transferred | Lists names of 22 individuals along with nationality, convictions and allegations deported to El Salvador |
| Tom Homan, White House Border Czar
@RealTomHoman, X post (Mar. 16, 2025, 11:30 a.m.) |
Total numbers transferred
Time period |
“Last night, 238 Tren de Aragua members along with 21 MS13 gang members, were deported from this country.” |
| White House Press Secretary
Statement by Press Secretary, The White House (Mar. 16, 2025) |
Identification of DHS and DOS as departments involved in operation
Total numbers of TdA Time period of transfer of custody |
“This weekend, at the President’s direction, the Department of Homeland Security successfully arrested nearly 300 Tren de Aragua terrorists, saving countless American lives. Thanks to the great work of the Department of State, these heinous monsters were extracted and removed to El Salvador where they will no longer be able to pose any threat to the American People.” |
| State Department Spokesperson Tammy Bruce
Press Briefing, Mar. 17, 2025 |
Identification of President Bukele role in arrangement | “Under the President’s direction, this administration invoked the Alien Enemies Act of 1798 to initiate the removal of hundreds of dangerous members of the Tren de Aragua … We expect our sincere – we express our sincere gratitude to President Bukele of El Salvador for playing a pivotal role in this transfer.” |
| President Trump
Transcript of Donald Trump’s ‘100 Days’ Interview With TIME, TIME, April 25, 2025 |
President Trump communications with President Bukele: On not asking Bukele for Abrego Garcia’s return
Lawyers’ advice |
Question: Have you asked President Bukele to return him?
President Trump: I haven’t, uh, he said he wouldn’t. Question: Did you ask him? President Trump: But I haven’t asked him positively, but he said he wouldn’t. Question: But if you haven’t asked him, then how are you facilitating his release? President Trump: Well, because I haven’t been asked to ask him by my attorneys. Nobody asked me to ask him that question, except you. . . . Question: You could fix this simply by bringing him back and going through the legal process— President Trump:But I leave that decision to the lawyers. At this moment, they just don’t want to do that. They say we’re in total compliance with the Supreme Court. |
| Secretary Kristi Noem
Visit to CECOT prison, March 26, 2025 (video) |
On U.S. government’s use of CECOT | “First of all I want to thank El Salvador and their president for their partnership with the United States of America to bring our terrorists here and to incarcerate them and to have consequences for the violence that they’ve perpetuated in our communities.
I also want everybody to know, if you come to our country illegally, this is one of the consequences you can face. First of all, do not come to our country illegally. You will be removed and you will be prosecuted. But know that this facility is one of the tools in our toolkit that we will use if you commit crimes against the American people.” |
| Secretary Noem
Special Report With Bret Baier, Fox News, March 31, 2025 |
On communications with President Bukele about arrangements for future transfers and purpose of imposing consequences on migrants
On communications with El Salvador officials in CECOT prison about inmates information and vetting |
“I had a conversation with the president of El Salvador about the TdA members that he accepted and took into his CECOT prison. We toured that prison. …
The only people allowed in that prison are terrorists. To tour that and look at that is giving the American people the transparency they want out of their government. They were able to see exactly where we are sending these people who have murdered and raped Americans that have decimated communities, and there is going to be consequences for individuals who continue to do that. My conversation with that president was will you take more of these terrorists? And he said absolutely we will, we will take the worst of the worst and make sure they are facing consequences for what they have done to your country.” … “While we were there at that prison, we not only talked about how to identify these members of these terrorist organizations but what they did, their actions they took, the case files we built on them, and how we verified that those individuals should be there in that prison.” |
| Secretary Rubio
More Foreign Gang Terrorists Deported Out of America, Press Statement, Marco Rubio, Secretary of State, March 31, 2025 @SecRubio, X post (Mar. 31, 2025, 8:25 a.m.) @SecRubio, X post (Apr. 13, 2025, 10:45 a.m.) |
Totals of second wave of transfers of MS-13 and TdA
U.S. military role in transfer |
“Last night, in a successful counter-terrorism operation with our allies in El Salvador, the United States military transferred a group of 17 violent criminals from the Tren de Aragua and MS-13 organizations, including murderers and rapists.”
X post Mar. 31: “Last night, in a successful counter-terrorism operation with our allies in El Salvador, the United States military transferred a group of 17 violent criminals from the Tren de Aragua and MS-13 organizations, including murderers and rapists….” X post Apr. 13: “Last night, another 10 criminals from the MS-13 and Tren de Aragua Foreign Terrorist Organizations arrived in El Salvador. The alliance between @POTUS and President @nayibbukele has become an example for security and prosperity in our hemisphere.” |
| President Trump
Interview, ABC News, April 29, 2025 |
On ability for President Trump to obtain Abrego Garcia’s return
Lawyers’ advice |
Question: You could get him back. There’s a phone on this desk.
President Trump: I could. Question: You could pick it up, and with all— President Trump: I could. Question: —the power of the presidency, you could call up the president of El Salvador and say, ‘Send him back right now.’ President Trump: And if he were the gentleman that you say he is, I would do that. But he’s not. Question: But the Court has ordered you to facilitate his release. President Trump: I’m not the one making this decision. We have lawyers that don’t want to do this. |
It is highly unusual to have this much information already public in a matter over which the executive branch is asserting the state secrets privilege.
Because large swaths of the United States-El Salvador arrangement have been officially acknowledged by U.S. officials, courts must, at a minimum, find those parts are no secret at all. It may be left for judges to then engage in a particularized determination of what secrets, if any, remain and to assess the sufficiency of the government’s claim that such information should remain privileged. Ellsberg v. Mitchell, 709 F.2d 51 (D.C.Cir.1983) (“whenever possible, sensitive information must be disentangled from nonsensitive information to allow for the release of the latter”).
With so much of the United States-El Salvador arrangement not a secret as a result of statements by senior officials, it should be even more difficult for the government to establish that failure to shield remaining elements from the normal course of litigation would threaten national security.
