Noem’s call ensured that the deportees — rounded up and expelled with virtual no due process after President Donald Trump invoked war powers to designate them as members of a transnational gang — would remain imprisoned in El Salvador under harsh conditions for months, until the U.S. helped broker a prisoner swap that resulted in all of the men being returned to Venezuela.
The assertion that it was Noem who made the decision, despite a frantic effort by lawyers for the men — backed by Boasberg — to halt the transfer, adds a wrinkle to the murky timeline surrounding the deportation effort.
The Justice Department described the decision in response to efforts by Boasberg to determine why the government disregarded his March 15 order to prevent the abrupt deportations. The judge, appointed by former President Barack Obama, has already concluded that administration officials likely engaged in criminal contempt of court in their handling of the episode.
DOJ officials say Noem’s decision was informed by legal advice from the top levels of the Justice Department, including Deputy Attorney General Todd Blanche and then-Principal Associate Deputy Attorney General Emil Bove, and the Department of Homeland Security. That advice relied on an unusual claim that Boasberg’s oral order to turn around the deportation flights had no force. And his subsequent written order, they argued, was similarly ineffective because the flights had already left U.S. airspace.
“After receiving that legal advice, Secretary Noem directed that the AEA detainees who had been removed from the United States before the Court’s order could be transferred to the custody of El Salvador,” Justice Department attorney Tiberius Davis wrote in the new filing. “That decision was lawful and was consistent with a reasonable interpretation of the Court’s order.”
The Justice Department filing is silent about whether Trump or any White House officials were involved in the decision to continue with the deportations in the face of the judge’s order.
Davis argued that no contempt proceedings are warranted and that Boasberg should not hold a hearing where he would hear live testimony from administration officials.
In a filing earlier Tuesday, lawyers for the deportees urged Boasberg to demand testimony from nine current and former officials, including Bove, who is now a federal appeals court judge, and Erez Reuveni, who was fired in April and has accused Bove of telling other DOJ lawyers in vulgar terms that they needed to defy any court order blocking the deportation. Bove has denied the allegation.
The Supreme Court ultimately ruled 6-3 that Boasberg lacked jurisdiction to oversee the case the men brought on an emergency basis in March, although the justices later blocked further deportations under the Alien Enemies Act.
Boasberg has concluded legal precedent permits him to carry on with the contempt proceedings even if the underlying order was later deemed to be flawed.
“I certainly intend to find out what happened that day,” Boasberg said, “and the government can assist me to whatever degree it wishes.”
Lawyers for the deported men are urging Boasberg to demand sworn statements from senior administration officials involved in the March 15 operation and the decision to deplane the men despite Boasberg’s command.
