Rossman: And I think our presumption was that declarants should have been people w/ first hand knowledge
#Xinis: Yes, because I ordered that. And I don't know how long it took my law clerks to count up all the "I don't knows in those depositions..."
Rossman: I stopped counting
#KilmarAbregoGarcia #immigration #law #judiciary #Trump #rendition
#Xinis: Seems there has been some progress though. Govt seems to have suggested that there are additional custodians that need to be identified. So that's progress, correct?
Rossman: Correct. Have agreed to a number of more custodians. But don't have docs yet. They have been slow. Govt agreed to May 1 production of those docs.
Agreed to produce docs from #Rubio, #Noem...
Xinis: When did that change?
Rossman: Last 2 wks
#KilmarAbregoGarcia #immigration #law #judiciary #Trump #rendition
Xinis: Can you give some thought as to what you need me to resolve today?
Rossman: Our goal was to give you the latest info in where we are & resolve some issues in #discovery... hope in the meantime to get help from govt in solving some of those.
Govt claims that they have >1000 docs. But we received only 32 not including our own interrogatory requests being sent back to us.
#KilmarAbregoGarcia #immigration #law #judiciary #Trump #rendition
Rossman: Our thought on order of operations is that the road block seems to be #StateSecrets & deliberative process #privilege.
Our thinking is if we could get get guidance on where we are w/those privileges, that would guide us how to go forward...we want answers to fundamental questions
#Xinis: I want to be clear that what prompted these questions & this #discovery is whether the govt is acting in good faith or bad faith.
She says she wants #DOJ to speak to that.
Rossman points out dichotomy between what gov is saying its doing in court vs. public statements
Rossman: I don't want to get into sealed filings matters but if government in filings is saying that they have asked for his return & it's coming from a mid-level bureaucrat but then his boss & his boss's boss is saying otherwise...then that doesn't seem to us to be compliant w/ #CourtOrder
#KilmarAbregoGarcia #immigration #law #judiciary #Trump #rendition
Rossman points to an interrogatory response by the govt (under seal) in response to questions about steps taken by government.
When you see the responses, you'll see how "empty" they are, he tells #Xinis. Same with recent declarations. Conclusory, double-hearsay.
Xinis: a lot of this turns on the #privilege issues. So if I resolve the privilege issues that we're talking about today, there should be a more robust response.
Rossman: Exactly.
#Xinis: My thought is that since the govt bears the burden of invoking the (#StateSecrets, deliberative process) #privileges, I want to hear from them first.
Rossman thanks judge, sits down.
Guynn is up for #DOJ, says he wants to respond to some of the things Rossman said.
Guynn #SCOTUS anticipated this #discovery dispute. It said the govt should be prepared to share "what it can"
#KilmarAbregoGarcia #immigration #law #judiciary #Trump #rendition
#Xinis: But you can't tell me these responses are a good faith effort to do that.
I made a finding that #SCOTUS was clear. I then amplified why ruling was what it was. When I still didn't get a response, I asked 3 questions. And I required daily updates from people with PERSONAL KNOWLEDGE. Then we got to the point where depositions were going to be taken....
#KilmarAbregoGarcia #immigration #law #judiciary #Trump #rendition
#Xinis: That's why I asked for ppl w/personal knowledge...Each of those depositions were an exercise in "utter frustration." I don't know how you can make the point to me that this was good faith effort to comply, at least w/respect to the depos
#DOJ: Well, we didn't choose the deponents
Xinis: When I ordered daily status updates, I said someone w/personal knowledge should file the declarations. So you did choose deponents.
#KilmarAbregoGarcia #immigration #law #judiciary #Trump #rendition
#Xinis turns to whether there's an affidavit from a high-level ofcl at #DHS invoking the #StateSecrets privilege. They filed one from #Rubio (#State) but not DHS. Guynn says #DOJ would rely on declarations in JGG case. Xinis isn't having it, says she won't look to filings in another case.
Xinis: I'll take a look at [the state secrets issue], but the only reason is because I take my role as a member of the third branch of government seriously.
#Xinis: It’s because I take my job really seriously, that I am considering it. But I will not look to another case.
[think she’s implying, others are not so serious?]
#DOJ addresses some arguments made by plaintiff re #StateSecrets.
Guynn: They said that it doesn't apply to foreign affairs, but that's not true. They said only classified docs, but that's not right.
He points to a case that includes language on how to assess invocation of #privilege
#DOJ: The language is that in assessing the risk of disclosure to #NationalSecurity, a #court is obliged to give utmost deference to #ExecutiveBranch... the #intelligence agencies occupy superior position to that of courts in assessing national security issues
#KilmarAbregoGarcia #immigration #law #judiciary #Trump #rendition
#Xinis: If what you're asking me to acknowledge is that foreign affairs is an area in which #StateSecrets might apply, I agree. But the other part of the test is that the court must be satisfied that there is evidence as to the dangers asserted by the gov regarding the production of certain evidence
#KilmarAbregoGarcia #immigration #law #judiciary #Trump #rendition
#Xinis: So I need to understand that the executive believes there's a danger to diplomatic relations. But I need to know HOW it does. And I don't have that here.
#DOJ: You have the #Rubio declaration, which was modeled on successful declarations in other cases
Xinis: Walk me through it. Tell me why Rubio declaration satisfies.
Guynn: Cites 4th Circuit case. Court explained that gov needs to provide "formal" claim from high-ranking ofcl as to the invocation of #privilege.
#Xinis: Right & in that case it also says there needs to be enough that the judge satisfies herself of danger...
Xinis points to a paragraph that says the head of relevant #ExecutiveBranch has to invoke after personal consideration. How do I know from this affidavit what #Rubio considered?
[reminder, Rubio’s declaration was like 2 sentences]
Xinis: In other words, how do I assess that? It's very very general.
#KilmarAbregoGarcia #immigration #law #judiciary #Trump #rendition
#DOJ: One reason why is because of how the plaintiffs set this up. They want categorical piercing of #privilege. They don't point to specific documents.
#Xinis: There's 3 questions. So why are you saying categorial?
Guynn: [Long pause.]
We're not saying ANY answer to those questions are state secrets...Guynn tries to go off on tangent about privilege log, but Xinis interjects.
Xinis: Can we just stay w/the affidavit?
#KilmarAbregoGarcia #immigration #law #judiciary #Trump #rendition
#Xinis again asks how she should know from the affidavit that these categories pose a real danger to foreign affairs.
Guynn: I can read the portions of the affidavit into the record if you'd like.
Xinis: Well you can but they're quite general...
Guynn reads part of #Rubio affidavit.
Xinis: Ok let me stop you there.
#KilmarAbregoGarcia #immigration #law #judiciary #Trump #rendition
#Xinis: Where in that says HOW compelled disclosure of this info presents a real danger affecting foreign affairs or national security? There's not enough there there...How am I supposed to determine that?
Guynn basically says again that courts owe deference to executive...
Xinis: Previously there was #StateSecrets invocation about arrangement w/ #ElSalvador, but that's now changed
Guynn: That's bc the arrangement was classified, but that's changed...
#Xinis: Another piece of this is what am I supposed to believe? The affiant (#Rubio) has said "I'm not going to tell the judge." So this is why this is getting complicated..& I need the govt to do I little more work.
I don't agree this is like other affidavits that set out what aspects of agency functions would be endangered
#KilmarAbregoGarcia #immigration #law #judiciary #Trump #rendition
#Xinis cites other #StateSecrets affidavits that specifically say things like it would reveal identities of #CIA officers....Here, all I have is "not affects national security."
Guynn: Respectfully, YH, there's more here than you give credit
Xinis: Again, I just don't think this affidavit cuts it & I imagine if I'm telling you that now then you'd elect to supplement...
Guynn: If court found it deficient we would take under advisement & likely choose to supplement...
#Xinis: Is it worthwhile discussing the other prongs re #StateSecrets?
Guynn: Yes, bc prong 3 asks what do we do if there are state secrets...& often, what happens is the case is dismissed.
Xinis: That's not this case...it's not about liability
Now Xinis is in a back & forth w/Guynn about statements by #DHS head #KristiNoem saying that #KilmarAbregoGarcia would not return to the #US during the #Trump admin.
#Xinis asks how that's not an admission that the govt won't comply...
Guynn: We have complied, will comply
Xinis: Who is we? All defendants? #DHS included? What evidence is there of compliance?
Guynn: We would need sidebar, I would want to point to sealed evidence
Xinis: Do you want to address that now w/the headphones on or should I put that on the list of things for a sealed session?
Guynn: Would be helpful to discuss more freely. Xinis puts it on the list.
#DOJ / Guynn continues: Not sure where we left off...I think one of the #StateSecrets factors.
Guynn: There are ZERO documents withheld based ONLY on state secrets #privilege. There are 43 based on deliberative process...
#Xinis: What am I looking at then? I see one of those privileges invoked 1400 times...
#KilmarAbregoGarcia #immigration #law #judiciary #Trump #rendition
Guynn: The idea is that much of the material the defendants are seeking to withhold is a residual of the material that has to be withheld under other #privileges (attorney client, work product, etc). Plaintiffs aren't challenging those privileges right now....
#Xinis: If I get to prong 2 & you show that the danger is real, not vague....how does necessity fall into this?
#KilmarAbregoGarcia #immigration #law #judiciary #Trump #rendition
#Xinis: If the need is great & the showing is weak, the case #law suggests that I then have to go into an in camera inspection. I know that's not the ordinary course in #StateSecrets...
Guynn: Need is not a factor in the analysis.
Xinis: Let me direct you to Sterling [case law]. This is Judge Wilkinson. [Quotes Wilkinson saying that in some cases the need may be great & showing weak such that in camera review may be required...]
#KilmarAbregoGarcia #immigration #judiciary #Trump #rendition
#Xinis: Sterling suggests that if I find need is strong & showing of real danger unclear then I can do an in camera inspection.
Guynn: Some cases suggest that, but Sterling isn't one of them…
Xinis: I'm saying Judge Wilkinson stating the #law in that case is…Let's look at what he said. He said that when the judge satisfies herself that danger is substantial & real, then there's no need for further probing. But if it's unclear, & the need is great.....
Guynn: There's no need.
[umm, that’s not for him to decide]
#Xinis: How is there no need? He has been wrongly removed. How is it not essential to know what if anything you've done? Especially in the face of statements that the president will not return him?
Stick with me for a second..isn't it true that the areas of relevant inquiry are the ones I've identified re steps taken to facilitate return. And that's what you've invoked privilege over right?
Guynn: Aspects of those inquiries...
#Xinis: You haven't even told me what aspects!
Guynn: I don't agree w/court's characterization that we have these 3 areas of inquiry & we're invoking categorical privilege. We've provided SIGNIFICANT information...
Xinis says she wants to discuss that more during sealed session bc he's referring to some of the sealed filings
#KilmarAbregoGarcia #immigration #law #judiciary #Trump #rendition
Guynn cites the Reynolds case. Gets into a back & forth w/ Xinis about how that case is different from the facts presented here.
Guynn reiterates claim that government has given sufficient info...
#Xinis: No other source like there was in Reynolds. It's you, your clients.
Xinis: Where do they get this info if not from the #state dept?
Guynn: They HAVE this information.
Xinis: Well maybe we need to get in the weeds on that
#KilmarAbregoGarcia #immigration #law #judiciary #Trump #rendition
Guynn: It's coming clear to me now that this isn't productive without reference to discovery under seal
#Xinis: Ok, we'll save it.
Anything else before a go back to Rossman?
Guynn: Nothing further on #StateSecrets.
Rossman at the lectern now for #KilmarAbregoGarcia.
"My head is spinning" based on what I've heard from the government. They've told us nothing. Zero. Nothing.
Rossman: There is some info from #DHS about what they typically do if someone returns & presents at port of entry. Not what they have done here in this case.
Rossman turns to question about whether govt should get 2nd “bite of the apple” in terms of filing more affidavits.
Rossman: I cannot in good conscience consent to giving them a 2nd bite. I will remind the court of chronology. It's since April 4 that we've been waiting
#KilmarAbregoGarcia #immigration #law #judiciary #Trump #rendition
Rossman: Courts have moved w/lightning speed. Went to #SCOTUS in 6 days. It's been crystal clear since April 10 that the govt knew exactly what it was supposed to do.
Govt says in filings that there is some effort to comply but there is ZERO evidence of it.
Rossman: All of the govt ofcls have shouted from the rooftops that they won't allow Mr. Abrego Garcia to return to the US.
#KilmarAbregoGarcia #immigration #law #judiciary #Trump #rendition
Rossman: The govt is delaying for delay sake at the expense of a person wrongfully removed who sits rotting in a foreign prison.
I respect court's decision on this but the government getting more bites at the apple just allows them to keep doing this...
#Xinis: I can give them short period to cure error & everyone will be on notice that I don't think what I've been given is sufficient.
#KilmarAbregoGarcia #immigration #law #judiciary #Trump #rendition
Rossman: Knowing the stakes, we ask them to be kept on as short a leash as possible.
Now turns to #StateSecrets & what govt must show to properly invoke the #privilege.
Rossman: It was interesting to me that they aren't taking a categorical view that all steps they've taken to facilitate return are subject to state secrets.
#KilmarAbregoGarcia #immigration #law #judiciary #Trump #rendition
Rossman: points to cases in which there are both public & classified declarations submitted by the #ExecutiveBranch head. Time after time, those affidavits are extremely detailed.
#Xinis: But in some of the cases it's more of a mixed bag. That's why I'm asking for more information so I can assess
#KilmarAbregoGarcia #immigration #law #judiciary #Trump #rendition
Rossman: Important to underscore the context here. We're talking about a single person removed to another country. And it's very difficult to swallow from position of common sense that this information would endanger the diplomatic relations w/ #ElSalvador
We could pool our imaginations to come up w/potential or hypothetical things that could be #StateSecrets.
#KilmarAbregoGarcia #immigration #law #judiciary #Trump #rendition
Rossman: But rather than us talk about that in a speculative way, the questions is what have you actually done? And they know the answer. They either have done things or haven't.
What they could do is make a list of the things they've done & bring that to the Secretary of #State who can then assess & say ok that's ok to share with court, but that other part is not, etc.
But they haven't done that.
#KilmarAbregoGarcia #immigration #law #judiciary #Trump #rendition
Rossman: A life is in the balance. We have #DueProcess in the balance. And there's the question of the role of the #judiciary. In a speech last week, Justice Roberts said the judiciary is a #CoEqualBranch w/ power to strike down obviously unlawful acts of the #president or #congress.
Here we now have your honor’s order that went all the way to #SCOTUS. And the question is whether the govt has complied w/an order of the #SupremeCourt....that couldn't be more important.
Rossman: It can't be that #SCOTUS issued an order that's empty.
Rossman reads the #SupremeCourt order requiring release of #KilmarAbregoGarcia from custody & treatment of his case as if he hadn't been removed...
That itself implies some extra-territorial steps, he says.
Rossman now addresses the #Rubio declaration.
Simply saying “national security” is insufficient, he says.
Rossman: And we're not aware of any cases in which something that isn't classified is a #StateSecret. It would be strange, #Boasberg recognized this in JGG case.
Rossman: Again, what's in this affidavit contrasts with other state secrets cases in which you can describe the danger — not wanting to reveal secret military technology, etc.
#KilmarAbregoGarcia #immigration #law #judiciary #Trump #rendition
Rossman: Last thing I would mention is about the prospect of in camera review.
I am not at all suggesting the entirety of the privilege log should be made availble to the court. But we do think that your honor should look at some of these documents…
#Xinis: the problem I'm having—not to beat a dead horse—is that I can't assess this based on the affidavit provided. Maybe at some point that will make its way to me, but that's where we are.
Rossman: If I gave your honor what I have of meaningful #discovery, it'd be nothing
#Xinis announces that she wants to move on to discussion of the #DeliberativeProcess #privilege. Wants to talk about the #law on that, then move the hearing under seal to discuss further.
Guynn is up first to discuss.
#KilmarAbregoGarcia #immigration #law #judiciary #Trump #rendition
Guynn says context is important. Expedited discovery was ordered, & collecting docs or preparing declarations from witnesses is a task that takes months, not days or weeks
#Xinis interjects: Not in this court. If I order it, you do it. This is my court.
That said, I understand this is an ongoing discussion w/the plaintiffs & I do see evidence that you're working to identify custodians. But you've asserted this privilege broadly. It's in, like, everything.
Guynn: The govt obviously had a dispute over what facilitate means
#Xinis: What's interesting about that is that you had to have the Fourth Circuit tell you that. "My decision wasn't good enough."
Guynn says there's more context to set the stage but he thinks that would need a sidebar.
There was question about what defendants had to do, should do, in response to court's order in this case. So lots of attorneys were involved.
#KilmarAbregoGarcia #immigration #law #judiciary #Trump #rendition
Guynn: That's why there are so many privileged documents here that's why hard to ID document custodians, etc.
#Xinis: Almost impossible to determine from the log on what basis you're claiming attorney client privilege. Eg, if you have 18 people CC'ed on an email. without more info, I can't assess.
I don't believe the #DeliberativeProcess #privilege is as broad in this case because the govt's intent is at issue.
#KilmarAbregoGarcia #immigration #law #judiciary #Trump #rendition
#Xinis: Intent to facilitate, intent to comply w/my order.
Guynn: When you refer to #intent, what are you referring to?
Xinis: Can give you cases I've been thinking about. There's a proposition that #DeliberativeProcess #privilege doesn't really apply when intent is at issue
Gives hypo: re discrimination claim by fired employee. if decision making is privileged, can never get to the issue of wrongful termination.
#KilmarAbregoGarcia #immigration #law #judiciary #Trump #rendition
Guynn: Think would need to brief that. But I don't want to concede that #intent is at issue.
#Xinis asks attorney for #KilmarAbregoGarcia to come up & address the "government misconduct" exception to #DeliberativeProcess #privilege.
[Because the privilege is not absolute & can be overcome by a showing of govt #misconduct]
Up for Abrego Garcia this time is Jonathan Cooper
Cooper: From the beginning this has been a case about govt misconduct
After Cooper argues that #DeliberativeProcess #privilege doesn't apply given #misconduct by the govt, he turns to another exception: the "compelling need" exception.
That squarely overrides the invocation of the privilege here, he tells Judge #Xinis.
Cooper: This discovery is relevant & important. Govt hasn't pointed to alternative sources of info. There's been no substance produced of information that's key & critical here.
#KilmarAbregoGarcia #immigration #law #judiciary #Trump #rendition
Cooper: Only have ~30 docs that are relevant vs 500 that have been withheld based in part on #DeliberativeProcess #privilege
The final factor is harm to the govt, which I think is for the government to show. They haven't filed affidavits or explained why disclosure would harm process, etc
That's it from Cooper on deliberative process.
Guynn up to respond.
#KilmarAbregoGarcia #immigration #law #judiciary #Trump #rendition
Guynn addresses the govt #misconduct exception. Says not clear from Cooper's discussion what misconduct at issue. Failure to provide info? Failure to comply w/court's order? Etc
#Xinis: Or all of the above? [exactly]
Guynn starts talking about the circumstances of #KilmarAbregoGarcia's removal.
"That was an administrative error" that he was removed to a country he shouldn't have been removed to, but that doesn't mean there was misconduct.
#Xinis interjects: No, no, no. During that first hearing the government admitted that Mr. Abrego Garcia was unlawfully detained.
There was an unlawful detention, she says.
There's a looooooooong, awkward pause.
Guynn says he can't speak to what happened at that hearing in which the govt admitted that #KilmarAbregoGarcia was wrongfully removed, which led to the admin firing #DOJ atty Erez Reuveni.
#Xinis: C'mon, you took over this case. You read that transcript.
There's a back-&-forth between Guynn & Xinis. Guynn eventually agrees to assume for the sake of argument that Garcia was unlawfully detained/removed.
But says even if that's assumed, there's still no showing of govt #misconduct on that basis
#KilmarAbregoGarcia #immigration #law #judiciary #Trump #rendition
Now we're on the subject of whether #KilmarAbregoGarcia is being held pursuant to an extradition treaty (because of govt's claim that he's being held under domestic custody).
Guynn says he thinks that info has been provided, he wasn't extradited.
Guynn: Basis of him being detained in #ElSalvador also doesn't go to #misconduct.
Guynn: Govt's claim is that he is a member of MS-13 & he was removed on that basis, is basis of detention in #ElSalvador bc the Salvadoran govt believes he's MS-13 too
#Xinis: Maybe we need to table this for sealed hearing.
Guynn agrees.
Xinis: Anything else to talk about in open court before we get into the nitty gritty in close session?
Cooper, for Abrego Garcia, interjects to raise issue about government #misconduct.
#KilmarAbregoGarcia #immigration #law #judiciary #Trump #rendition
Cooper points to Wilkinson line in 4th Circuit opinion that the government's claim that there's nothing more to be done to facilitate return is "shocking" to the conscience & that indicates that there's #misconduct
Wrapping up, #Xinis thanks everyone.
She announces a 10 minute break before the parties go into a closed session to discuss some of the matters that remain under seal.
End of 🧵
#KilmarAbregoGarcia #immigration #law #judiciary #Trump #rendition
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