Attorneys for Kilmar Abrego Garcia, the Maryland man who the Trump administration admitted was mistakenly included in a group of accused gang members sent to a prison in El Salvador, accused the government of having “stonewalled” the court-ordered facilitation of his return to the U.S.
“Plaintiffs have sought discovery to uncover the truth as to the Government’s efforts (or lack thereof) as well as its abilities to facilitate Abrego Garcia’s return—the essential issue in this case. Over and over, the Government has stonewalled Plaintiffs by asserting unsupported privileges— primarily state secrets and deliberative process—to withhold written discovery and to instruct witnesses not to answer even basic questions,” the filing, published late Monday, says. “Even as the Government speaks freely about Abrego Garcia in public, in this litigation it insists on secrecy.”
U.S. District Judge Paula Xinis ordered in April that the government must facilitate his release, a ruling that has been upheld by the Supreme Court.
Last week, the Trump administration appears to have invoked the state secrets privilege and other privileges to withhold information in the case from Abrego Garcia’s attorneys as they continue to seek his release. The Justice Department had indicated last month that it would invoke certain privileges to protect information regarding Abrego Garcia’s removal from the U.S., citing in a filing the attorney-client privilege, state secrets privilege and certain executive privileges.
The government’s response to the allegations of stonewalling and their invocation of privilege were filed under seal with the court.
Abrego Garcia’s attorneys said there is “little reason to believe” that invoking the state secrets privilege is appropriate in this case.
“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,” Abrego Garcia’s attorneys wrote.
Xinis has set a hearing for May 16 to hear further arguments about the government’s privilege invocations, as well as to hear arguments from Abrego Garcia’s attorneys on their desire for more fact-finding in the case.
Xinis told a Justice Department attorney during a hearing last month that if the Trump administration does assert privileges, justifications must be provided for each claim, and she will make a determination as to whether they can stand.
The Trump administration has invoked the state secrets privilege before, in a case involving the deportations of Venezuelan migrants to the Salvadoran prison, called the Terrorism Confinement Center, or CECOT, under war powers
In Abrego Garcia’s case, Xinis had ordered the Trump administration to turn over documents to his lawyers and allowed them to conduct depositions with certain administration officials. Some of the records were initially due last month, but Xinis agreed to push back her deadlines after the Trump administration filed information with the court under seal. One day earlier, Xinis had accused the administration of showing a “willful and bad faith refusal to comply with discovery obligations.”
Abrego Garcia’s attorneys wrote that all depositions were completed by the end of last week, but said they are not satisfied with the answers they have received.
President Trump and other top administration officials have repeatedly said it is up to El Salvador whether to release Abrego Garcia, who had been held at CECOT. As of April 21, he was being held at a lower-security facility in Santa Ana, according to a declaration from a State Department official.
Abrego Garcia, who was born in El Salvador, entered the U.S. illegally in 2011 and has been living in Maryland since then. He was granted a withholding of removal, a legal status, in 2019 that prevented the government from deporting him back to his home country of El Salvador because of a risk of persecution by local gangs.
But Abrego Garcia was among the hundreds of migrants, mostly Venezuelans, sent by the Trump administration to CECOT in March.
“The Court should reject the Government’s efforts to hide behind the state secrets privilege and compel all Defendants from DHS and DOJ to fully respond to written discovery and all deponents from those departments to fully answer deposition questions,” the attorneys wrote to Judge Xinis, adding later that “the state secrets privilege is not for hiding governmental blunders or malfeasance.”
