GREENBELT, MARYLAND — A federal judge said Friday the Trump administration has “pretty broadly” invoked the state secrets privilege to withhold information on its efforts — or, the judge indicated, a possible lack of effort — to return a wrongly deported Maryland man from a prison in El Salvador.
President Donald Trump’s administration moved last month to invoke the so-called state secrets privilege to shield information about its process to facilitate the return of Kilmar Abrego Garcia to the United States after a top immigration official admitted his removal to a prison in El Salvador was an “administrative error.”
The judge handling the case, U.S. District Judge Paula Xinis, granted an expedited discovery process after she found last month that “nothing has been done” by the administration to return Abrego Garcia.
She did not make a public order regarding the state secrets privilege Friday afternoon before closing her courtroom to the public to discuss sensitive matters with attorneys for Abrego Garcia and the Department of Justice.
The state secrets privilege is a common-law doctrine that protects sensitive national security information from being released. The Trump administration has argued the need to invoke it in this case to protect diplomatic relationships.
During the public portion of Friday’s hearing, Xinis pressed the Department of Justice attorneys about Homeland Security Secretary Kristi Noem’s comment that Abrego Garcia “will not return” to the U.S.
“That sounds to me like an admission that your client will not take steps to facilitate the return,” Xinis said. “That’s about as clear as it can get.”
DOJ attorney Jonathan D. Guynn disagreed and said the Trump administration is complying with court orders. He said Noem’s comment meant that if Abrego Garcia was back in U.S. custody he would be removed either to another third country or back to El Salvador.
“He’ll never walk free in the United States,” Guynn said.
He added that the Trump administration is “currently complying and we plan to comply.”
Xinis said she disagreed, and then she clashed with Guynn over the legality of Abrego Garcia’s removal.
Guynn said that he was lawfully deported.
Xinis answered that she found months ago that Abrego Garcia was unlawfully detained and removed from the U.S.
One of the attorneys for Abrego Garcia, Andrew J. Rossman, said the Trump administration has invoked the state secrets privilege for 1,140 documents relating to the case. From that request, Rossman said his team received 168 documents, but 132 were copies of court filings and requests made by him and his team.
Xinis seemed visibly stunned by Rossman’s report and had to clarify that his team had only received 36 new documents, which Rossman confirmed.
Rossman said that none of the documents for which the government is invoking the state secrets privilege are classified.
“There’s ways to do this right, and they haven’t done it,” he said, noting that he has attorneys on his team who have security clearances and can review classified and sensitive information.
Rossman said that he and his team are seeking answers to three questions: the status of Abrego Garcia, what steps the Trump administration has taken, if any, to facilitate his return, and the steps the federal government will take, if any, to comply with court orders.
Guynn said the Trump administration received an update from El Salvador on Thursday that Abrego Garcia was in “good health” and had “even gained weight.”
The U.S. Supreme Court ordered that the Trump administration must “facilitate” the return of Abrego Garcia.
Rossman, said that it’s “deeply disturbing” that administration officials, including the president, have made public statements that contradict court orders directing the government to return Abrego Garcia to the U.S.
President Donald Trump has said he could easily pick up the phone and order El Salvador to return him but won’t because he believes Abrego Garcia is a member of the MS-13 gang.
Noem was pressed at a May 14 congressional hearing about a photo that appears altered to add letters across Abrego Garcia’s knuckles to indicate his inclusion in the gang. She said she was unaware of it.
A federal judge in the District of Columbia, in a separate case regarding Trump’s use of an archaic wartime law for deportations, questioned Department of Justice attorneys on the president’s claim that he could order Abrego Garcia to be returned. The attorney admitted that the president sometimes overstates his influence abroad.
Abrego Garcia has had protections from deportation since 2019, but he was one of nearly 300 men on three mid-March removal flights to a notorious prison in El Salvador known as CECOT.
Abrego Garcia has been moved to a lower security prison, according to Maryland Democratic Sen. Chris Van Hollen, who traveled to the country last month to meet with Abrego Garcia and inquire with Salvadoran officials about why he is being held there.
Those officials said Abrego Garcia was being held because of the agreement between the United States and El Salvador.
The U.S. has a $15 million agreement with El Salvador’s government to house immigrants removed from the U.S., mostly Venezuelans removed under the wartime law, the Alien Enemies Act of 1798.
Dozens of signs outside the U.S. District Court for the District of Maryland in support of Abrego Garcia before Friday’s hearing. (Photo by Ariana Figueroa/States Newsroom)
The Trump administration has argued that Abrego Garcia is a national of El Salvador and in that country’s custody and the U.S. cannot force another government to return him.
Hours before Friday’s hearing, dozens of protestors gathered outside the court, calling for Abrego Garcia to be returned to the U.S., as well as criticizing the Trump administration’s immigration crackdown.
U.S. Rep. Glenn Ivey, who represents the area in Maryland where Abrego Garcia and his family live, appeared outside the court and led chants calling for the release of Abrego Garcia from El Salvador.
“The president has to obey the orders of the Supreme Court,” Ivey said. “The Supreme Court has spoken here, and it’s time for him to follow it and bring him home.”