US claim of state secrets privilege in Kilmar Abrego Garcia case is
'inadequate,' judge says
[May 17, 2025]
By MICHAEL KUNZELMAN and BEN FINLEY
GREENBELT, Md. (AP) — A federal judge told the Trump administration
Friday that its explanation for invoking the state secrets privilege in
the Kilmar Abrego Garcia case is inadequate, describing the government’s
reasoning for withholding information as “take my word for it.”
Trump administration attorneys have argued that releasing details in
open court — or even to the judge in private – about returning Abrego
Garcia to the United States would jeopardize national security. For
example, they said it would reveal confidential negotiations with
foreign countries.
But U.S. District Judge Paula Xinis in Maryland said she was at a loss
for how she could independently determine the nature of the government’s
concerns with the information it provided.
“There’s simply no details," she said. "This is basically ‘take my word
for it.’”
Jonathan Guynn, a Justice Department attorney, disagreed that the
explanation was inadequate.
“We think we’ve provided significant information," he said.
The focus of Friday’s hearing was primarily on the Trump
administration's desire to invoke the state secrets privilege, a legal
doctrine that is more often used in cases involving the military and spy
agencies. But how Xinis ultimately rules could impact the central
question looming over the case: Has the Trump administration followed
her order to bring back Abrego Garcia?
Abrego Garcia's attorneys argued that the Trump administration has done
nothing to return the Maryland construction worker. They say the
government is invoking the privilege to hide behind the misconduct of
mistakenly deporting him to El Salvador and refusing to bring him back.
“The government is delaying for delay’s sake at the expense of someone
who was wrongly removed from this country,” said Andrew Rossman, an
attorney for Abrego Garcia.
Rossman said he isn’t arguing that there are no conceivable state
secrets at play.
“The question is: ‘What have you actually done?’” Rossman said. “I
suspect there are no steps, and nothing has happened.”
He urged Xinis to reject the notion that the government “can throw a
shroud of state secrets” over her order and not comply with it, adding
that “simply saying, ‘national security,’ is not sufficient.”
Xinis appeared skeptical of the government's position, particularly
after Guynn said there was no need for the judge to review the
information the Trump administration deems secret.
“He has been wrongly removed,” Xinis responded. “How is it not central
to understand what, if anything, you’ve done to return him? How is it
not a need?”
Abrego Garcia's attorneys have also cited recent pronouncements by
President Donald Trump and others that Abrego Garcia isn't coming back.
For example, Homeland Security Secretary Kristi Noem said “there is no
scenario where Abrego Garcia will be in the United States again.”
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Guynn, the Justice Department attorney, told the judge that such
statements are not inconsistent with the government’s legal
arguments when “read with the appropriate nuance.”
Guynn suggested the meaning was that, “He’ll never walk free in the
United States.”
Xinis said she reads Noem’s comments as a sign that the government
won’t take steps to facilitate his return.
“That’s about as clear as it can get,” the judge said.
“I disagree,” Guynn said, eliciting laughter in the courtroom.
Guynn also denied any wrongdoing by the administration.
“The removal of Mr. Abrego Garcia was inadvertent error,” he said.
“We don’t concede that is misconduct by the government.”
A portion of Friday's hearing was closed to the public, during which
Xinis gave the government a week to provide more information for its
state secrets claim, according to Simon Sandoval-Moshenberg, an
attorney for Abrego Garcia.
The Trump administration deported Abrego Garcia to El Salvador in
March. The expulsion violated a U.S. immigration judge’s order in
2019 that shielded Abrego Garcia from deportation to his native
country because he faced likely persecution by a local gang that had
terrorized his family.
Abrego Garcia’s American wife sued, and Xinis ordered his return on
April 4. The Supreme Court ruled on April 10 that the administration
must work to bring him back.
Xinis later lambasted the administration for failing to explain what
it has done to retrieve him and instructed the government to provide
documents and testimony showing what it has done, if anything, to
comply. The Trump administration appealed, but the appeals court
backed Xinis in a blistering order.
The debate over state secrets privilege is the latest development in
the case.
Trump administration officials have said Abrego Garcia was deported
based on a 2019 accusation from Maryland police that he was an MS-13
gang member. Abrego Garcia denied the allegation and was never
charged with a crime, his attorneys said.
The Trump administration later acknowledged that Abrego Garcia's
deportation to El Salvador was " an administrative error ” because
of the immigration judge's 2019 order. But Trump and others have
continued to insist that Abrego Garcia was in MS-13.
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Finley reported from Norfolk, Virginia.
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