The Justice Department appeared in court on Wednesday to address the habeas case challenging the Alien Enemies Act, the law used by President Donald Trump to deport migrants to a prison in El Salvador.
Just Security writer Adam Klasfeld posted on X that Judge James Boasberg asked Lee Gelernt, attorney for the American Civil Liberties Union, about discovery in the case and what they hope to learn.
According to Lawfare's Roger Parloff's thread on Bluesky, the attorney said they "do have enough discovery to have you order to facilitate." He noted that the government hasn't disputed that there was a payment to El Salvador to take the migrants.
Justice Department lawyer Abhishek Kambli was asked about "constructive custody." Klasfeld explained it as the custody of a person not under physical control. Kambli denied that the government had such custody of immigrants at the prison in El Salvador.
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That's when the judge "pounces," said Klasfeld.
Boasberg noted that Trump said just last week that he had the power to release Kilmar Abrego Garcia, the Maryland father sent to El Salvador despite an immigration judge saying he could not be deported there.
"Is the President not telling the truth, or could he secure the release of Mr. Abrego-Garcia?" Boasberg asked. "Is the United States paying El Salvador to house these migrants?"
The DOJ lawyer dodged the question, according to Klasfeld. Instead, the lawyer said there's "no agreement or arrangement" that gives the U.S. constructive custody. He says it's all under El Salvador's laws.
Boasberg then quoted Homeland Security Secretary Kristi Noem's statement that the prison is "one of the tools in our toolkit that we can use if you commit crimes against the American people."
"Is she wrong about that?" the judge asked.
The DOJ lawyer claimed that public statements sometimes "lack nuance."
"Is that another way of saying these statements just aren’t true?" the judge asked.
"No, your honor. I’m not saying that at all," the lawyer fumbled.