Thread by @ProfMJCleveland

🚨New filing in Boasberg Alien Enemies Act case. Amazing this must be said! 1/

2/ That excerpt was from a Declaration filed by Trump Administration in support of its Response in Opposition to New Motion for a Preliminary Injunction. This Response is interesting as it is first effort by Trump Administration to explain whether it is in constructive control

3/ of prisoners.

4/ This paragraph capsulates Trump Administration's position:

5/ Trump Administration then quotes Boasberg back to him to show why no custody:

6/ On this last point, except ACLU to quote Trump in its reply saying if he wanted to he could get Garcia back.

7/ This paragraph is another good synopsis of Trump Administration's position.

8/ Re the "sub-class" of criminals who might be deported...that is such a stretch for jurisdiction Trump doesn't say much about it:

9/ A few thoughts re Trump Administration's position: Trump Administration is correct that Plaintiff has not met burden of showing "in custody," but I anticipate ACLU saying it needs expedited discovery to obtain the "agreement" and depositions of those with notice to agreement.

10/ Without knowing what the actual agreement is, Court will believe it can't decide issue of constructive custody. Here, I'd note there is a reason for this that makes sense: In context of U.S. prisoners are held in "constructive custody" pursuant to contracts.

11/ For instance, feds will have state jails or prisons detain prisoners for feds. So when this case started, everyone (including me), saw the agreement through that prism because why else would El Salvador detain folks, but for contract so it would seem = constructive custody.

12/ But in context of foreign affairs that theory fails about: El Salvador would say "sure, we'll take custody of them Trump because we want to be friends." And Trump would say "Great. And here's some money because we're friends and we appreciate it."

13/ Agreement very likely does transfer "custody" to El Salvador...something we couldn't do with U.S. Citizens (troll as Trump will). And Court lacks authority to interfere here because it is foreign affairs.

14/ Now, that would also likely mean Trump could get tDa back because El Salvador wants to release custody if Trump wants, but forcing Trump to ask is beyond court's authority.

15/ In short, the analysis of "constructive custody" by everyone to date has been off because folks have tried to use analogs of agreements with U.S. prisons and they just don't apply. But to ensure they don't apply, I'd need to see the agreement with El Salvador & I'd wager

16/16 Boasberg will hold the same.