DOJ Says Noem Made Final Decision on El Salvador Removals in Breach of Court Order

With a contempt inquiry looming, the Department of Justice (DOJ) named Homeland Security Secretary Kristi Noem as the Trump official who earlier this year approved the transfer of hundreds of people from the U.S. to a notorious Salvadoran megaprison after a judge forbade the removals.

The DOJ’s disclosure gives further insight into who in the Trump administration rebuffed court orders from U.S. District Judge James Boasberg, who said earlier this month that he planned to move forward with contempt proceedings against the Trump officials involved in carrying out the flights to El Salvador.

It’s the latest development in the months-long legal fight against President Donald Trump’s use of the Alien Enemies Act (AEA), a rarely invoked 18th century wartime law, to remove undocumented people from the U.S. without first giving them due process.

Out of view of the public, Trump invoked the AEA in a March executive order directing the federal government to remove alleged members of Tren de Aragua , a transnational criminal organization, from the U.S. 

By the time Trump’s order became public on March 15, the federal government had already organized removal flights against hundreds of Venezuelan men it claimed were members of the gang. After civil and human rights organizations sued, Boasberg, in both written and oral orders, halted further flights and ordered the Trump administration to return flights that had already left.

However, hours after Boasberg’s March 15 orders, flights landed in El Salvador and the Trump administration transferred hundreds of men to the Terrorism Confinement Center (CECOT), a Salvadoran megaprison notorious for its human rights abuses. 

The men were removed from the U.S. without being able to challenge their transfer, the Trump administration’s claim they were Tren de Arague members or their confinement, which lasted for months.

In its new filing Tuesday, the DOJ said Noem approved the flights to El Salvador after being informed of the court’s order. The DOJ claimed that Noem’s actions were based on legal advice she received from a Department of Homeland Security lawyer.

The DOJ also asserted that Noem’s actions were legal because senior DOJ officials, including Deputy Attorney General Todd Blanche and then-Deputy Attorney General Emil Bove, did not believe Boasberg’s orders applied to flights that had already left. 

Shortly after approving the flights in violation of Boasberg’s order, Noem toured CECOT. During her visit, she claimed that the maximum security prison is “one of the tools in our toolkit that we will use” against those in the country illegally.

For months, the Trump administration has defended the removals by claiming that Boasberg’s initial oral order requiring it to return those removed under the AEA was not binding and his written order could not apply to the flights because they were outside of U.S. airspace.

Boasberg rejected those arguments when, in April, he said he found probable cause to hold the Trump administration in contempt of court for showing “a willful disregard” toward his orders. The judge’s attempt to proceed with contempt, however, was halted by the D.C. Circuit Court of Appeals for seven months.

After the appeals court lifted its stay on Boasberg’s contempt proceedings, the judge said he wanted to move forward. The judge also said he intends to receive testimony from former DOJ attorney Erez Reuveni, who accused his superiors of defying Boasberg’s order in a bombshell complaint earlier this year.

Reuveni, whose account was corroborated by internal DOJ documents, claimed that Bove, who is now a federal judge, suggested his subordinates should tell courts “f*** you” and ignore their orders to carry out Trump’s aggressive removals.

In a filing Tuesday, plaintiffs also recommended that Boasberg call Deputy Assistant Attorney General Drew Ensign, who has defended some of Trump’s most extreme deportation actions, as a witness in his contempt probe..

In a March 15 hearing, Ensign told Boasberg that he wasn’t aware of any plans to carry out the removal flights even as planes were idling on the tarmac or had already taken off.

In July, hundreds of the men removed under the AEA were transferred to Venezuela as part of a three-way prisoner swap between Venezuela, El Salvador and the U.S. The swap came after the Trump administration repeatedly claimed to courts that the U.S. could not return any of the men it sent to CECOT because they were under the legal authority of El Salvador. 

However, in official documents to the United Nations, El Salvador claimed that it did not have authority over the men.

The men were held in CECOT as part of an opaque financial arrangement the U.S. made with El Salvador’s Trump-friendly President Nayib Bukele earlier this year. Under the agreement, the U.S. paid El Salvador around $6 million to imprison the men for at least a year.

Among those removed to CECOT was Kilmar Abrego Garcia, a Salvadoran native living in Maryland.

Even after admitting that it sent Abrego Garcia to El Salvador illegally, the Trump administration refused to obey a court order requiring it to return Abrego Garcia to the U.S. — an order that was affirmed by both the Fourth Circuit Court of Appeals and the Supreme Court.

The Trump administration only returned Abrego Garcia after indicting him on immigrant smuggling charges. He is currently challenging those charges as a form of punishment for legally contesting his abrupt removal to El Salvador. 

Though the Trump administration routinely refers to the AEA removals as deportations, they did not follow the codified judicial process for deportations.

Rather than deporting the men back to their country of origin, the Trump administration sent them to a country foreign to serve out an indefinite sentence without ever convicting them of a crime or giving them an opportunity to challenge their removal or confinement.