#Boasberg: this would be cabined, expedited proceeding. then i'd give govt till wednesday to give their responses on whether they have objections to [discovery] plaintiffs propose. the next day i'll order a timeframe. then i'll ask parties to brief ... then i'll decide if there's constructive custody & , if so, we then go on to remedy.
any questions?
[none]
Okay, thanks everybody. Hearing concluded.

#Boasberg asks DOJ same question.

#DOJ: we'd have to brief that further. lot of issues with that.

Boasberg: here's what i'm going to do. i'll issue order tomorrow. brief order. i'll give you, DOJ, an opportunity to file further declarations from #state dept or anyone else regarding constructive custody issue. till end of day friday. then, mr gelernt, give you till Monday, having to review, & say either this is enough or, if you want additional discovery.

#Boasberg: you've essentially admitted their rights were violated. if they're in constructive custody, what's the remedy?

#DOJ: ...

Boasberg: now we've got #judges in #SDNY, #SDTex, #DColo, plus a circuit judge in #DC all finding that invasion & predatory incursion have #military connotations so proclamation did not properly invoke #AEA. agree that's where things stand?

DOJ: yes.

Boasberg: #SCOTUS never said AEA was properly invoked.

#Boasberg: If i find proclamation did not properly invoke #AEA at all?

Gelernt: then they should all come back.

Boasberg turns back to #DOJ. You certainly agree w/ #SCOTUS they need to receive meaningful notice.

DOJ: Yes, that was prospective relief. from that moment onward.

Boasberg: agree they got no #DueProcess?

DOJ: i can't say it was the same as they'd get right now.

Boasberg: so transferring them to CECOT w/o process, scotus says due process required...

#Boasberg: okay, [switching to the #CECOT class], did they get any notice at all?

Gelernt: we don't know. some may have gotten a notice ...but it said there was *no review*. that's what AG's guidance was ...

Boasberg: so #DueProcess does provide you w/meaningful opportunity to file #HabeasCorpus. are you getting that now?

Gelernt: we would have to have each individual at CECOT have opportunity to prove they weren't gang members, or for govt to prove they were.

#DOJ: if going to be somewhere else in US, their #habeas has to be heard there. [But DOJ emphasizes that it's speculative what's going to happen to these criminal defendants down the road.]

#Boasberg now asking Gelernt, of ACLU, about irreparable harm.

Gelernt: the problem is, at 8pm tonight, they could move them from criminal custody to #ICE custody & they could be removed from country by 8am tomorrow morning.

#Boasberg: are there still 32 individuals in criminal custody with active detainers against them. [this refers to a proposed class relating to criminally confined aliens in the US.]

#DOJ: not sure.

Boasberg: let's assume for a minute that all these people will be removed after criminal proceedings run their course, & that those 32 could challenge their future rules for #habeas—then can we hear it?

#DOJ: none of the cases plaintiff cited involved asking a foreign sovereign before a decision can be made. That cuts against idea we have constructive custody—especially immediate custody. ...question is can we immediately produce without another country having a say in it?

#Boasberg: cites a case where consultation w/ Saudi Arabia was required.

DOJ: yes, but that was just consultation.

#law #immigration #AlienEnemiesAct #Rendition #DueProcess #Judiciary #AbuseOfPower #Trump

#Boasberg: Secy #KristiNoem said, "One of tools in our toolkit." Is she wrong?

#DOJ: i'm not going to parse out every statement l...

Boasberg: does that means these statements aren't true?

DOJ: not what i'm saying at all...

Boasberg: what you're telling me ... are you willing to provide that in declarations?

DOJ: we don't believe discovery is necessary. can consult with State dept.

DOJ: #KilmarAbregoGarcia was held in Maryland at one point.

#Boasberg: no way to say Abrego Garcia is in constructive custody but these plaintiffs are not?

DOJ ...

Boasberg: is #US paying #ElSalvador

DOJ: here's what i can present ... there is no agreement or arrangement whereby US maintains any agency or control over prisoners. no constructive custody. what exists is a letter ...

#DOJ: influence does not equate to constructive custody.

#Boasberg: my question is, was president telling the truth? you've got #ElSalvador VP saying issue has to be solved in the #US ...

DOJ: goes to whether salvador has a say at all or not. if it has a say, that does negate --

Boasberg: but you wouldn't dispute that in terms of custody, no difference between #KilmarAbregoGarcia & plaintiffs here?

Gorski: what's important is future legal custodians. what matters is future confinement. not current.

#Boasberg: do you think Padilla could have sued in Washington before he was transferred to Charleston.

Gorski: if he had notice in advance, yes.

Boasberg moves on to the next issue.

Gelernt: we are not ... seeking a class for the entire thing anymore

#Boasberg: so let's not talk about subclasses. they're classes. similarly the original named plaintiffs--they're not part of those classes, right?

Gelernt: right.

Judge: why isn't Padilla a problem for you here in sense that shouldn’t venue lie in district where they were held prior to removal?