Abrego Garcia’s lawyers challenge Trump administration’s invocation of state secrets privilege

(NEW YORK) -- Attorneys for wrongly deported Kilmar Abrego Garcia pushed back on the Trump administration's invocation of the state secrets privilege in a court filing Monday, saying that the government has produced no evidence "showing that it has made the slightest effort to facilitate" Abrego Garcia's release from detention in El Salvador.

"There is little reason to believe that compliance with a court order to facilitate the release and return of a single mistakenly removed individual so that he can get his day in court implicates state secrets at all," the attorneys argued.

"No military or intelligence operations are involved, and it defies reason to imagine that the United States' relationship with El Salvador would be endangered by any effort to seek the return of a wrongfully deported person who the Government admits never should have been removed to El Salvador in the first place," they said.

The filing came a week after the judge overseeing the case, U.S. District Judge Paula Xinis, said in a court order that the Trump administration had invoked the rarely used state secrets privilege to shield information about the case.

Judge Xinis has scheduled a May 16 hearing on the matter.

Abrego Garcia, a Salvadoran native who had been living with his wife and children in Maryland, was deported in March to El Salvador's CECOT mega-prison -- despite a 2019 court order barring his deportation to that country due to fear of persecution -- after the Trump administration claimed he was a member of the criminal gang MS-13. His wife and attorneys deny that he is an MS-13 member.

The Trump administration, while acknowledging that Abrego Garcia was deported to El Salvador in error, has said that his alleged MS-13 affiliation makes him ineligible to return to the United States.

Judge Xinis ruled last month that the Trump administration must "facilitate" Abrego Garcia's return to the United States, and the U.S. Supreme Court unanimously affirmed that ruling, "with due regard for the deference owed to the Executive Branch in the conduct of foreign affairs."

Following the government's inaction, Judge Xinis ordered several government officials to testify under oath through expedited discovery in order to resolve the matter, which prompted the administration to invoke the state secrets privilege.

In their filing Monday, Abrego Garcia's argued that the Trump administration "does not come close to making a showing that would disturb the common sense conclusion that there are no genuine state secrets at play here," saying the administration's public statements -- including in congressional testimony, public interviews and social media posts -- demonstrate that "answering the requested discovery would not imperil national security."

Attorneys for the Department of Justice argued in their own brief Monday that the discovery requests by Abrego Garcia's attorneys "would damage United States' foreign relations."

Secretary of State Marco Rubio, in a sealed declaration submitted to the court, affirmed "after actual personal consideration" that "disclosure of such materials reasonably could be expected to cause significant harm to the foreign relation[s] and national security interests of the United States," DOJ attorneys said.

"Specifically, Secretary Rubio feared that if this information were disclosed, foreign governments would be less likely to work cooperatively with the United States in the future because the disclosure would be viewed as a breach of trust," said the DOJ attorneys.

Attorneys for Abrego Garcia responded that because Rubio is not the head of either the Justice Department or the Department of Homeland Security, "he did not and could not claim" state secrets privilege for those departments.

"Simply saying 'military secret,' 'national security' or 'terrorist threat' or invoking an ethereal fear that disclosure will threaten our nation is insufficient to support the privilege," they argued.

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