Major Ruling Offers Due Process to Alien Enemies Act Detainees

INSIDE: Bari Weiss ... Abrego Garcia ... Aileen Cannon

(Photo by El Salvador Presidency/Handout/Getty Images)

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With New Facts, Boasberg Changes His Mind

In the constitutional clash over President Trump’s unprecedented peacetime invocation of the Alien Enemies Act, U.S. District Judge James Boasberg has ruled that the Venezuelan nationals shipped off to El Salvador’s CECOT facility can challenge their designations as alien enemies even though they’ve been released to their home country and are no longer in custody.

In an accompanying order, Boasberg gave the Trump administration until Jan. 5 to come up with a proposed plan to “facilitate the return” of the former AEA detainees to the United States or to provide them with presumably remote hearings that give them the due process they were denied when they were summarily deported in March without notice or a chance to challenge their designations as alien enemies.

While Boasberg also certified the former detainees case as a class action lawsuit, the real meat of his decision was a reversal of his own prior decision in the case over the summer. In light of the many significant new facts that have emerged, Boasberg reversed course and concluded that the detainees were in the constructive custody of the United States while they were being held at CECOT in El Salvador.

Boasberg had previously denied them habeas relief because of a lack of constructive custody, but found a separate legal avenue in equity that entitled them to pursue their denial of due process claims. This time, Boasberg found both avenues available to them. Of the two, the habeas path is probably the stronger option and is more readily defensible on appeal.

What changed Boasberg’s mind were the numerous revelations that have occurred since he first confronted the issue, among them: “statements by El Salvadoran officials, whistleblower statements by Government officials, public statements by top U.S. officials, and even clear evidence of a U.S.-Venezuelan prisoner swap.”

“All in all, the undisputed factual record indicates that the United States and El Salvador have behaved as principal and agent in the detention and subsequent release of Plaintiffs,” Boasberg ruled, pointing to “three takeaways” from the new evidence:

• “El Salvador acted at the behest of the United States”;

• “it was indifferent to Plaintiffs’ detention outside of honoring its arrangement with the United States”; and

• “the United States retained the ability to control their release from CECOT”

Boasberg zeroed in on the revelations by former DOJ lawyer turned whistleblower Erez Reuveni, including the notorious comment attributed to Emil Bove, who is now an appeals court judge: “According to his disclosure, the Principal Assistant Deputy Attorney General stated in a meeting that if courts attempted to stop the removals, DOJ would need to consider telling the courts, “Fuck you” and ignore any court order.”

It is, I believe, the first time Bove’s comment has made it into a judicial ruling, and Boasberg didn’t pull punches by redacting the curse word. Then again, Boasberg happened to be the first judge to get the administration’s “Fuck you” when it defied his orders and let the AEA deportation flights continue despite his orders to stop them and turn the planes around.

Bari Weiss Owns Spiking CECOT Segment

Editor-in-chief Bari Weiss confirmed it was her decision to spike the 60 Minutes segment on CECOT, according to accounts from a CBS News staff meeting Monday morning.

Meanwhile, the executive producer of the legendary TV newsmagazine told colleagues that she had fought for the segment but was overruled by Weiss, the WaPo reports:

“In the end, our editor in chief had a different vision for how the piece should be, and it came late in the process, and we were not in a position to address the notes,” said executive producer Tanya Simon, according to a partial transcript of the meeting obtained by The Washington Post. “We pushed back, we defended our story, but she wanted changes, and I ultimately had to comply.”

Simon succeeded longtime executive producer Bill Owens, who resigned in April over then-parent company Paramount’s grubby settlement with Donald Trump over how 60 Minutes edited an interview with Kamala Harris.

Weiss intervened so late in the editorial process that the segment had already aired on a streaming service in Canada. You can watch a quality HD-version of the CECOT segment here.

The Unrelenting Assault on Abrego Garcia

I was at the courthouse yesterday for Kilmar Abrego Garcia’s first in-person appearance in front of U.S. District Judge Paula Xinis. At the time of every other hearing she’s held in his two cases since March, he’s been in the custody of either El Salvador, DOJ, or ICE.

Xinis, who ordered him freed from ICE detention on Dec. 11, is treading very carefully around the edges of her jurisdiction as she tries to prevent the Trump administration from subjecting Abrego Garcia to further unlawful treatment, including re-detaining him.

Here’s my brief dispatch.

Mass Deportation Watch

• NYT: Inside the Deportation Machine: How ICE has moved thousands of people through detention and out of the country

• WaPo: It’s a War: Inside ICE’s media machine

Another Unlawful Boat Strike

One person was killed in a U.S. strike Monday on an alleged drug-smuggling boat in the eastern Pacific, bringing the death toll in the lawless campaign to 105.

Cannon Buries MAL Report For 2 More Months

Under a 60-day deadline from an appeals court to decide already whether to release Special Counsel Jack Smith’s report on the Mar-a-Lago classified documents investigation, U.S. District Judge Aileen Cannon waited 49 days to finally rule … and then ordered the report kept secret for another two months.

In her ruling, Cannon said her order keeping the Justice Department from distributing the report would expire Feb. 24. She gave no explanation for that particular date.

Cannon ostentatiously extended an invitation for President Trump and his former co-defendants in the case to appeal her decision and try to keep the report buried for even longer: “Nothing in this Order prohibits any former or current party to this action from moving for leave to intervene, if warranted, and/or from timely seeking appropriate relief before that deadline.”

At the same time, Cannon issued a separate ruling that refused to allow the outside groups who had forced the issue with the appeals court — resulting in its November order for her to rule within 60 days on their motions, which had been pending since February — to intervene in the case.

All in a day’s work for Cannon.

John Brennan Tries to DQ Cannon

In a highly unusual effort, former CIA Director John Brennan is trying to pre-empt Aileen Cannon from overseeing a retributive grand jury investigation that is reportedly the hub for all manner of Trumpian investigate the investigators conspiracies and claims.

Brennan’s lawyers sent a 16-page letter, first reported by the NYT, to the chief judge of the Southern District of Florida to try to head off Cannon having a role in the grand jury that is expected to begin its work in January: “[W]e urge Your Honor to exercise your supervisory authority as Chief Judge to ensure the United States Attorney does not steer this matter to the Fort Pierce Division and to the courtroom of Judge Aileen Cannon.”

The chief judge had previously intervened privately to urge Cannon not to take the Mar-a-Lago criminal case after she’d overseen the civil Trump brought to try to head off the probe, the NYT reported in 2024.

The Bloodletting at Heritage Foundation

The fallout from Heritage Foundation President Kevin Roberts’ embrace of the Tucker Carlson interview with antisemite Nick Fuentes continues, with resignations by staffers, many of whom are fleeing to Mike Pence’s think tank.

Among the reported departures from Heritage: Hans von Spakovsky, the longtime voting fraud bamboozler who has been a TPM favorite for nearly two decades.

One note on how to make sense of this: It’s definitely driven by a split over antisemitism, but it goes a little deeper than the surface ripples of think tankers moving around

As I understand it, the think tank world is largely an eat-what-you-kill operation. Think tankers have particular funders, and particular funders have think tankers. So I suspect the underlying split here is among funders, and the WSJ report that broke a lot of this open gives a prime example of this:

Art Pope, a longtime prominent donor in North Carolina, said he had stopped giving to the Heritage Foundation because he saw the group supporting populist economic policies in recent years. He is now giving to AAF, he said, in a bid to move the party in a different direction.

Whether it’s existing funders pulling the plug and shifting their donations to a different think tank, or a think tank like Pence’s being able to entice new funders to support taking on refugees from Heritage, or a combination of both, the fault lines we’re seeing on the surface are probably the result of the seismic movement of funders.

Trump’s Favorite Excuse in 2025

“I don’t know.”

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