Thread by @ProfMJCleveland

Boasberg hearing now: Starts drilling attorney why he wasn't in court last & .
DOJ: You certified class action. More subject to proclamation.
Judge: And did not order anyone release or couldn't deport anyone via regular proceedings.
Judge "I think it's important to public to make those facts clear."
NOTE: We're not idiots!
DOJ: Maintains it has complied with Court order.

2/ AUGH. Got bumped out and couldn't get back in.
DOJ: distinguishing between what is reviewable and what is not but argues only habeas case.
Judge: Al Queda require proof they were member those held in Gitmo.
DOJ: Not robust but habeas is available.
Judge: Let's talk about habeas is sole avenue of review, since Plaintiff's dismissed. It seems that while it has taken place in habeas context they were challenging detention...what case were they not.

3/ DOJ: references case where internationally used habeas to remove to another country. Their challenge is that government can't exercise authority under AEA to keep then in custody.
Judge: If folks type entitled to some sort of hearing, what is standard of review for executive whether they are members of tDA?
DOJ: No clear case law but generalized principles, review is deferential.

4/ Judge: What is role of court to make sure they aren't removed?
DOJ: Habeas courts in Texas are addressing these now. These claims are being resolved in habeas claim, including constitutional claims.
Judge: Are you saying national security concerns won't be a problem?
DOJ: That's not an issue for me. It's habeas court.
Judge: If national security issue, you can go to the ATRC (?).
DOJ: Never used previously. But just because another tool doesn't mean AEA isn't allowed. Due process right of aliens are very limited to those provided by statutes.
Judge: Court says 5th amendment guarantees to aliens right to due process.
DOJ: Only per what congress provides.
Judge: Aren't you precluding due process? Or are you saying must be habeas?

5/ DOJ: Some issues they can't challenge. Facial claims is likelihood of success on merits. If plaintiffs want to file habeas claim, they may. But this suit is not an appropriate manner.
No APA: a) merely implementing President's directions means you can't be sued; b) ability to raise habeas claims precludes APA claim.
Note: Tedious discussion of implied ultra vires causes of action in equity. But bottom line because you can bring habeas claim, you can't bring implied cause of action in equity.

6/ Judge asks about CAT claim: Why can't they bring a CAT claims?
DOJ: It is a habeas claim because they are saying you can't use AEA claim to exercise control over me.

7/ Judge: I wanted to know the facts.
DOJ: Attorney said he intended to comply with Court's order.
Judge: habeas was focus on my question
tDa Lawyer: Government doesn't give us time to file habeas and that is illusory. Gov't is asking you look at 50 years of law and reconsider. Core habeas is for "release". Yes, it could be brought in habeas but doesn't mean we can't bring it in non-habeas way.
Note: This matters because if habeas it must be sent to Texas.

8/ Judge: How do you see this process playing out? Do members have to request hearing? Gov't provide hearing?
tDa Lawyer: Unchartered territory. But before had a hearing board. At minimum, must be a meaningful challenge. If Court uphold's TRO, we would ask for for more time to think about procedure.
Judge: Where would venue be?
tDa: All fair/hard questions, but still don't think need to be brought in habeas.

9/ tDa: Administrative hearing followed by judicial review.
Judge: Should TRO be narrowed to exclude individuals who admit or don't challenge that they are members of tDa.
tDa: Must be a process that allows tDa to understand process, talk to attorneys and understand consequences.
Judge: What's your position on modification?
tDa: Must be able to contest that you are covered by proclamation, i.e., that member of tDa. But threshold question of can the act be used in this way must be reviewable.

10/ For all my criticisms of his rulings, Judge Boasberg is demonstrating judicial temperament versus Judge Reyes completely inappropriate conduct.
tDa lawyers: "They are only poor little low level terrorists."

11/ Leave TRO in place and see how circuit decides it.
Judge: Why can't they challenge that Government never allowed them to bring a CAT claim?
tDa lawyers: Of course they can bring those claims.
Argues 3rd Plane folks weren't really sent to El Salvador pursuant removal order because that order requires them to state where. He also says some folks were returned to us.
Judge asks DOJ to respond to point about 3rd plane?

12/ DOJ: Everyone on third plane had final orders of removal.
Judge: May require more specific information b/c tDa is raising a reasonable concern.
Judge: If DOJ will have individual hearings to ensure venezuel and tDa
DOJ: No, habeas relief provides whatever relief is appropriate. Plaintiff: Says just because we could bring it habeas, doesn't mean we have to. robuo, 82 f3d. D.C. Circuit, habeas availability means no jurisdiction. President's determination of war, or invasion, etc., that's not for a court to decide.

13/ Judge: You have to admit it is very frightening what tDa lawyer is positing that President could.
DOJ: That is entrusted to political branches, and Congress could address that.
tDa lawyer: need to suggest that Court could put class certication in writing.