by Tim Miller
May 7, 2025 Bulwark Takes
Rep. Jim Himes joins Tim Miller to discuss the de-classified report revealing the Trump administration used disputed intelligence to justify mass deportations under the Alien Enemies Act despite internal reports contradicting their claims.
https://survivorbb.rapeutation.com/viewtopic.php?f=206&t=4594&start=390
Transcript
hey everybody it's Tim Miller from the
Bull Work here I am back with
Congressman Jim Hemes ranking member of
the House Permanent Select Committee on
Intelligence there's a lot of there's a
lack of intelligence in a lot of what's
happening out there today so it's
important that we bring you in on this
uh and I want to talk in particular
Congressman about uh this assessment
that the intelligence department had
made that was undergirling I guess you
can maybe explain if I have this exactly
right the argument that they need to
employ the alien enemies act right which
was this notion that you know that we
had this invading force that Venezuela
and the Venezuela government and
Trenaragua were in somehow working in
concert and uh in order to combat that
invading force we have to you know enact
act this this wartime uh power in order
to deport these folks to El Salvador and
as it turns out uh you guys over on the
committee were asking for the classified
I guess internal documents and briefing
on this and it showed that uh you know
actually that's not exactly the case so
uh that's my reader digest summary you
you give us a little more detail not
just not exactly the case right what the
president the administration and the
director of national intelligence were
saying which is that trend Aragua is
operating as a proxy of the Venezuelan
government is the exact opposite of what
the intelligence community which
purportedly the director of national
intelligence runs was actually saying
right um and and you know it's it's
deadly serious stuff Tim right because
you know hey we're we're a country that
takes liberty and freedom seriously and
at the core of that is that the
government doesn't get to take your
stuff or take you or you know whatever
uh without due process and that's that's
true of everybody in our country and
there are these very very narrow
exceptions including the bizarre alien
enemies act of 1798
um which says that in this very limited
circumstance if there's a state of war
or if there in wonderful sort of 18th
century language if there is a predatory
incursion then due process disappears
well you know the White House has a few
lawyers and they know that we're not in
a state of war and so they were like
"Okay maybe we can convince some folks
that there is a predatory incursion
maybe Alto and Clarence Thomas will sign
up for that idea and maybe we can get a
few more." Well that of course relies on
the notion that this that's Trend
Aaragua is something other than just a
regular terrible street gang right um
well it turns out that the intelligence
community that the Americans spend 90
billionish a year to pay for looked at
this and said "No there is no direction
uh by of trenda by by Venezuelans." And
I mean that's scary for two reasons
number one due process is pretty
important and it's important for people
you don't like as well as for people
that you do like um and secondly you
know the president uh and a lot of
senior officials were if I may put this
very nicely not being entirely honest
with us about this yeah that that is
very nicely not entirely honest i mean
they made it up out of whole cloth it
seems like to me would be one way i'll
sign up for that okay um I do wonder
there are a few things that are
concerning about this there's one I
don't know if I want to call it a silver
lining but thing that I was curious
about which is these guys why did they
play ball with you do you think i I mean
I'm kind of surprised that the
administration isn't just totally
stonewalling everything and everything
just based on you know how they're
following the norms and procedures and
rules of law across and rule of law
across other elements of the Yeah no I
mean it's a fascinating question we're
all scratching our heads around here
because you're of course referring to
the fact that I guess it was the Freedom
of the Press Foundation uh submitted a
Freedom of Information Act request and
lo and behold it was acted on very
quickly the report that is now public is
dated April 7th you know sometimes foyer
requests can take months and months if
not years right and boom it's out there
um there's probably a story there i
don't know what it is but what I do fear
you know since this was just such a
black eye for the administration's
credibility on such an important topic
what I do fear is that you know some
pretty hefty political people are now
knocking on the door of whatever poor
sob does foyer requests for the
government and saying "It's time for you
to take a very long vacation to a radar
station in Alaska." That's also
concerning okay thank you i love that
that's very appropriate for the bull
work that you take like a little hopeful
anecdote and turn it in turn it into
something scary and concerning and
alarming um so I guess my other hopeful
potential anecdote is I mean these guys
are like have almost no leg to stand on
legally i think as far as looking
forward I want to get to the people that
already in El Salvador next but as far
as looking forward making this argument
what what do you make of that i mean
like this seems to really undermine any
plausible case they would have that this
is an appropriate use of the Alien
Enemies Act yeah that's right i mean
look the case was always going to be
thin right and again there's this
bizarre you know 1798 language about a
predatory incursion um you know and so
it was always going to be a thin read
right i mean what's next you know is the
mafia going to be subject to this
because they look like Trenaragua and
maybe they have some connection to
Sicily or I mean you can see the
slippery slope here right so yeah I and
and and I'll tell you this makes me a
little nervous too because yeah they
don't have a legal uh any legal ground
to stand on uh and it's you know in some
ways it's ridiculous right because if
they had afforded these people due
process these people would be on their
way out of the country by and large
right but they chose not to they chose a
shortcut now they're embarrassed about
the fact that they were lying to the
American people about the connections
between Venezuela and Trenaragua and of
course you know this is the Trump
administration right so backing down is
never okay you know uh Tulsey Gabbard is
still out there saying this is a case of
you know a media outlet manipulating uh
a report you can read the darn report
and it contradicts what she says right
and so you know it makes me nervous
because at some point the courts are
going to rule you guys had no basis to
do this so you need to get these people
back and you know Steven Miller is going
to be whispering in the president's ear
just don't do it just don't do it and
now you've got the prospect of a
president ignoring um the Supreme Court
and that is a very very ugly place for
this country to be yeah it's alarming
what um what about the folks that you
know have now that are in Sakote in El
Salvador um because of you know the
these actions those the three planes or
whatever that have that have been there
now and at least several cases where it
seems like these folks are not even
trying to even if they were doing a
predatory incursion like you know the
makeup artist the guy with the autism
awareness tattoo the Uber driver in
Michigan that accidentally drove across
to Canada and their the family that went
to Colombia first went came go the right
way i like there four or five of these
at at minimum and so like what do you
have any thoughts on you know what is
possible at this point regarding those
folks sure i know what's possible um you
know it would take three milliseconds
for the president of the United States
to call up Mr boule the president of uh
El Salvador and say every single person
that got off that plane and is in your
prison gets on a plane this afternoon
and comes back that's absolutely
possible el Salvador is not gonna say no
right but it's an ego question for this
president who doesn't like to be told
what to do and certainly doesn't like to
backtrack from a from a previous
position so now we're in the
uncomfortable position as I that I
alluded to before the courts are
eventually going to order that that
happen and you know uh the MAGA folks
are going to say "Yeah but these are
these are illegal undocumented illegal
aliens a lot of them are gang members."
Fine that that may be true in which case
we want them the hell out of the country
or in a United States prison right i
mean they never needed to be sent to El
Salvador you know they could have been
sent to their home countries they could
have been imprisoned here in the United
States um but uh the point is that
that's irrelevant who they are you know
bad people are entitled to due process
in this country too and the whole reason
for that is that you know everybody is
entitled to it we don't know if
somebody's bad until they've been
through due process yeah i mean it does
it feels like uh now we're moving out of
the intelligence space into kind of the
PR and like the politics of all this but
it already feels like the attention is
starting to wayne right I like there's
so much crazy stuff happening in the
world Trump's doing so much crazy stuff
like what do you feel as an elected
official that it's going to be incumbent
upon you guys the Democrats to use the
power you have in the minority to
continue to advocate on this or is this
like these guys are bone till 2029 uh
what do you what do you think yeah look
I mean you know rule of law is not
something that should be uh you know
judged against whether the American
people are focused or or not on it the
fact is that it's important all the time
and yeah we're going to keep raising
hell um but you know gosh I'd love to
imagine I'd love to imagine that maybe
some of my Republican colleagues uh
might also say hey um rule of law is
important do we really want a a
precedent set where a president can just
decide to arbitrarily restrict due
process i mean I chuckle with my
Republican opponents you know when
President Bernie Sanders is in office
you know are you guys going to love the
fact that you created an imperial powers
for the guy um so I maybe they would
help but I'm I'm not holding my breath
on it do you have do you ever get any
serious replies to that question so it
is a real question i mean I've got a
couple people I'd like to send El
Salvador you know if Jim Himmes is ever
president again I might have a few folks
I could Absolutely you could run
yourself and just let just let it happen
um you know look there's a list of 300
questions that none of my Republican
colleagues want to answer right that's
one of them tariffs is another one
medicaid is another one because you know
right now they know that to get up in
the president's face is to probably
bring around the end of their political
career and that you know I'm a big
believer that there's some things that
you ought to be willing to sacrifice
your political career about including
maybe the rule of law but unfortunately
way too many of my Republican colleagues
don't feel the same way all right last
thing on a separate topic we had some
news yesterday uh that we had yet
another Super Hornet fighter jet on the
Harry S truman aircraft get lost into
the Red Sea still called the Red Sea so
far we're renaming a lot of seas so
we're not doing well for bringing prices
down but we're renaming a lot of bodies
of water so I don't know with the Red
Sea we might might update that to
something else i don't know the MAGA Red
Sea the Red Hat Sea maybe um we've lost
is it two two jets we've lost in the sea
there uh do you have any intel on what
the hell's happening is the Secretary of
Defense on this at all you know I I
don't have a good answer for you on that
um you know uh I'll sort of reserve
judgment um I I want to give our troops
in the field a lot of latitude on how
they operate especially when they're
engaged in uh in hostilities as they are
but yeah this does raise some questions
right and uh again I don't want to
speculate too much but you know I think
of the United States Navy as being
incredibly incredibly competent and uh
to lose two very very expensive fighters
in a fairly short period of time does
raise some questions yeah two jets
putting an Atlantic journalist on a on a
text chat we're firing random people not
a lot of W's on the board for Secretary
Hegsth so far several staffers writing
op-eds about how he's terrible not a
great resume so far over there i just
you know amongst many other things I
wish he would he seems to delight mainly
in trolling on social media you know and
in a healthy society the Secretary of
Defense doesn't have a spare millisecond
to troll people on social media and by
the way no desire to do so either
because they're conscious of the fact
that they have to be serious people to
do the jobs that they have congressman
Jim Heims uh thanks for keeping us
posted on everything going on in Intel
World i'm sure we'll be talking again
soon thanks a lot take care
all right
subscribe to the feed everybody we'll be
back soon
********************************
BREAKING: Declassified Memo Undermines Trump Immigration Claims About Venezuela & TDA |@RGoodLaw
by Andrew Weissmann
May 6, 2025 #AbregoGarcia #SCOTUS #RuleOfLaw
Today, Ryan Goodman (@RGoodLaw ) and I sat down to unpack a newly declassified intelligence document that directly undercuts the basis for the Trump administration’s invocation of the Alien Enemies Act. In this conversation, we walk through the memo in detail, examine its implications for current litigation, and consider how the courts—up to and including the Supreme Court—may respond to the disconnect between what the Department of Justice is claiming and what the Intelligence Community has actually assessed.
This is a conversation about facts, credibility, and the rule of law. When government lawyers appear before a court, they are bound by legal precedent and by an obligation to tell the truth. What happens when the government’s own intelligence discredits the very foundation of its legal argument?
Transcript
Intro & Ryan’s New Substack
good morning Ryan good morning Andrew so I'm Andrew Weissman as probably people
who are following this know and I'm with Ryan Goodman we both teach at NYU Law
School and we wanted to talk to you this morning about a new document that came
out uh yesterday i actually uh was able to talk about it on Lawrence O'Donnell
sort of that's one of the nice things about live television and uh also
Lawrence being so good and and having a very nimble team is we were able to sort of look at it read it and then quickly
talk about it um but uh there's no substitute for what we're about to do which is to have a
much longer conversation um to get people up to speed on what the document says uh what its import will be
in terms of the uh immigration cases that are currently being litigated all
over the country up to and including the Supreme Court of the United States and what we think uh the import will be sort
of you know that's our speculating about and sort of I would say educated speculation about sort of what we think
the courts will do what we think the government's going to argue based on this but why don't we start Ryan by
talking about um what is the document um like what is it that we're the document
actually is like who wrote it and then we'll get to sort of what it substantively says
What Is the Declassified Memo?
great so the the document itself is a US
intelligence community product uh from the national intelligence
council and they are reviewing the question that is at the heart of
the president's reported invocation of the alien enemies act which is what
exactly is the relationship between the Venezuelan government under uh Maduro
and the uh Venezuelan gang trend aragua TDA and
um two points about the document that I think are worth mentioning first is just
the bottom line up front um so the bottom line up front is the document contradicts all sorts of
statements including statements written into the presidential proclamation itself because the document comes to the
pretty strong conclusion in the way in which one reads these kinds of materials by saying there is no connection that
Maduro is not uh directing uh the TDA um and in
fact the TDA is battling um in sometimes fierce um uh gun battles with the
Venezuelan government so that it's just the idea that the TDA is being directed by Madura is a fiction and we can talk
about why that fiction was necessary to create as a pretext the invocation of
the Alien Enemies Act i'll read the the most um important quote uh I think from
the document so the document can stop you for a second Ryan before this is not
Who Wrote It and Why It Matters
to be like a teaser for for our audience but I just wanted before we get to that I just wanted to make sure people
understood that um the National Intelligence Council is part of the DNI
that's the uh director of national intelligence so um this is a product of
the agency uh that was created after 9/11 its head
right now is Tulsi Gabbard uh and so there there is a Trump appointed and
approved Senate confirmed uh head of the DNI and the date of the document I think
is important um this is not a uh sort of uh Biden
administration uh document in terms of its timing the date of it is it's dated
on its face April 7th 2025 so this is a this is a new product
when you were saying it's a product of the intelligence community it is coming from the DNI headed by Tulsey Gabbert
and you know that is I don't do math in public but that is you know barely a
month old um assessing this critical issue of the relationship of the gang
the TDA gang to the Venezuelan government um and this was
released by the DNI um on May 5th so less than a month after it was created
it is now um publicly available and then just one quick backdrop to why people
care like why why is the relationship of the TDA to the Venezuelan government
something that is even remotely relevant why is this something that the administration had to focus on and um
without getting into the gory details of the precise language in order to invoke the Alien Enemies Act as a way to seize
extract and remove from this country uh the uh plane loads of people under the
Alien Enemies Act as opposed to just doing the normal immigration route where
people get due process and there's hearings and you have to um prove up your case in the other side that the
The Legal Importance of Government-TDA Link
immigrant gets a chance to to be heard um under the Alien Enemies Act you need
to be um either at war with a the the
foreign uh government and people are part of that foreign government who
you're trying to remove or there has to be an invasion by that foreign
government and or a group acting on behalf of that foreign government in other words the foreign government can
have operatives but you have to have that link to a foreign government and so
the proclamation Ryan that you were talking about that that uh President Trump
issued was uh providing that link saying um we are we are trying to extract
people in the TDA uh and the reason we can do it under the Elliot Enemies Act
is because that group that gang is a sort of de facto operative of the u the
Venezuelan government so they needed that linkage because that's what the statute requires um that that be the
case um we'll get into sort of the court cases about that which has dealt with sort of the legal issues and factual
issues that come up but the proclamation saying oh there is this linkage um the
TDA is invading our country on behalf of
um and as part of and as de facto sort of proxy for the Maduro government in
Venezuela so that's the backdrop and so now the now having sort of prevented you
from giving the bottom line up front what what does the document say that you found particularly relevant sure and um
Key Line: “Not Directed by Maduro”
the language usually used on the proclamation and in the government's briefs is that the PDA is directed by
Maduro and that they're acting in concert together flu here's the juiciest
line um most important line out of the document quote "The Maduro regime
probably does not have a policy of cooperating with TDA and is not
directing TDA movement to an operations in the United States." End quote um and
then he goes on to substantiate that um the document itself is essentially five
pages that goes on for some reason to a six page but there's nothing really on the six page so there's a five-page document which these documents are
usually of that length and then it has bullets underneath that proposition
articulating excuse me some of the things that I'd mentioned which are uh the fact that the Venezuelan uh
government forces are essentially in battle with TDA and the like um and that
there's only one somewhat dissenting view in the intelligence community because this is an intelligence
communitywide assessment um and that's from the FBI but when it boils down to
it the FBI is not saying that much different from the prevailing view yeah
so I wanted to sort of tease that out a little bit um so when you read the full
document um it is clear that the um the intelligence community assessment with
that one FBI um descent that I'm going to come back to in a moment um the key language that
should reiterate it is that is that they conclude that the government is not
directing TDA movement to and operations in the United States so that if that is
the state of the record that is contrary to the presidential proclamation and
contrary to what is being said in court by the department of justice attorney is
defending um what is going on and saying why they can invoke the Alien Enemies
Act um and there's a lot of flavor in this document about um that there's sort
of an uneasy uh relationship between the government and the TDA and you really
get the sense that there are these gangs that are very powerful and while there's efforts to sort of try to control them
FBI Dissent: What It Really Says
um there's a sort of toleration of them because of how powerful they are then that at times there's friction at times
there's just sort of acquiescence to um what they're doing because they don't
have the power to actually eradicate them and it sort of goes through that it also says um with respect to the FBI
assessment which is noted and that's typical in in an IC product intelligence community product where not all agencies
will be uniform and they note um dissenting views or slight slight even
slight dissenting views um uh that um it doesn't make sense to the IC that there
there even logically would be that direction because they say the TDA is pretty diffuse as an organization
and um and then they take on the issue that the FBI desends on the FBI says
"Well we actually think there may be some government officials
um who are working with the TDA." Um in other words what you what you really
feel is that the FBI is saying "Well there's some corrupt you know Vis
Venezuelan actors who the TDA has has um you know paid off um and are working
with them but you don't get the sense that what the FBI is saying and thus we
conclude that the TDA is acting on behalf of the government um for the
purposes of invading the United States." So you don't even though there is this
um dissenting view from the FBI it's not sort of on the critical issue of does
the government um is it really controlling the TDA in totto but more so
even more important it doesn't say that it's controlling them for the purposes of an invasion of the United States so
it's I think that's important because when you and I have been talking about this we've been thinking about what
would the president and the government have to argue now um and you know they
could try to latch on to the fact that the intelligence community was not uniform in this document that there is
dissenting view let's leave aside for one moment the irony that the uh
president would be latching on to the FBI's view an agency that it traditionally um he says can't be
trusted uh and um so he would be trying to now grab on to it uh because it would
be closer to his view but I want to make sure people understand that it doesn't
actually say that even the FBI uh description at least in this document is
not one onetoone with what it what the president would need it to say which is
that it is um conducting this this invasion of the United States on behalf
How Courts Might Handle the Split Views
of the Venezuelan government as opposed to some officials um facilitating uh migration to the
United states um and as opposed to um trying to have this sort of invasion but
that's that is to me what we don't know the full scope of what the FBI actually
said internally we just have this short description in this document that to me
is where uh the president is going to have to go is is he's going to have to
say um two things one that there is information in here um and there may be
underlying documents that are closer to his view and two he the president can
make his own judgment after looking at all of this and um he doesn't have to
take the views of the intelligence community as gospel if there is some
other you know logical view or fact-based view and the courts
review of it should be um either non-existent or extremely differential
um to that um to that position obviously what's what would help him is any sort
of factual support for for the pro factual proclamation i mean this is very
much like there's fraud in the election i mean you can say that but the courts are going to be asking um to some extent
or some I should say some courts will be asking is there any proof at all to
suggest that that's the case that um and obviously there's some judges will say we don't look at that we shouldn't uh we
shouldn't have the power to look at that at all I think other judges might say there has to be at least some
um sort of facial validity to what you are doing before we're going to give you that difference so um what's your take
on that we're sort of getting to sort of like the import of this how how do you think the the administration will try to
get out of this predicament and how the courts might respond to that sure and then um let me just say two other pieces
about the document itself but one of them specifically in response to what you just asked but one other piece for
the document um some uh folks might have familiarity with how the intelligence
community will make certain kinds of assessments and they'll do them on make assessments on different gradations so
like low moderate or high confidence and I thought there was some other
language in this document that was unusually of high confidence um in a
sense they didn't say those words and sometimes they'll just use those exact words but the underlying factual
predicate for their um bottom line up front kind of conclusion I thought was very strong language so I'll just read a
Attribution Under International Law
couple of those lines they say Venezuelan intelligence military and pol and police services services view TDA as
a security threat and operate against it in ways that make it and here's the key words highly unlikely the two sides
would cooperate in a strategic or consistent way so that was one important one and then a second one was the IC has
not observed the regime directing TDA including to push migrants to the United States which probably would require
extensive coordination and funding between regime entities and TDA leaders that we would collect meaning uh collect
on they would find that information so we've seen nothing nothing and you would
have to assume that isn't so that's one so that's what the government and the president and the DOJ
are now contending with because this is now a public document it's being declassified i think trying to latch on
to the FBI um assessment is one direction for them to go and I'm sure they're thinking about that but it's
super hard in a couple of different ways one if you just did a copy and uh place
um cut and replace words in the DOJ's statements to the courts as as of
today versus cut and paste in the FBI's assessment it doesn't fly it just doesn't work i mean for those documents
to say oh and this proclamation is based on the fact that some Venezuelan
officials are supportive of the TDA also because they get kickbacks it's like
that is not the TDA operating as a foreign government because they're acting at the direction of Maduro it's
just it's the two don't uh it doesn't match and one other somewhat finer point
on it um I've been thinking at just security that it would be great to get an international law expert uh who could
write up the analysis of what does international law even say as to when a non-state actor is
um operating in such a way that all their actions are attributable to the foreign government so they operate as a
de facto organ of the foreign government there are specific tests for that attribution rules i should be careful exactly what I say because my law
students are currently taking an exam which has questions related to that on it because we study this very closely
the tests of attribution uh are already very difficult to meet based on the existing record that the DOJ had created
before the courts with this document and if you took the FBI assessment it doesn't get you anywhere close to it it
doesn't come within reach um of the tests for um deter making that
determination so I think that's another piece so Ryan are you saying that the people listening to this are going to be
able to take your exam and do very well one way or the other yeah so I wanted to
What the FBI Line Actually Means
read um before we get to sort of how you think the courts might respond to this i sort of gave you my view that there's
there's going to be it's really going to depend on the courts uh different judges have different views about the level of
difference and how much they can sort of look under the hood um if there is some factual support um and we could then
talk about the the Texas judge's view of just the proclamation itself
um on that issue but I wanted to just read for people the critical line about
the FBI um in the report so people have that um
and understand um you know what it is that the Trump administration will at least will try to do and I do think you
know there is some data that we're missing which is what is the underlying uh intelligence report from the bureau
on this issue but here's the key description in the document uh and it is
this while FBI analysts agree with the above assessment that's really critical
in other words everything that we're talking about in terms of the IC
um and uh and its assessment of the TDA versus the Venezuelan government um it
says the FBI analysts agree with that so that's not disagree that's agree but
there is a a nuance um and the kid goes on to say "While FBI analysts agree with
the above assessment they as they assess some and that's
italicized some Venezuelan government officials facilitate TDA members
migration from Venezuela to the United States and use members as proxies in and
then a series of countries but including the United States to advance what they
see as the major regime's goal of destabilizing governments and
undermining public safety in these countries based on DHS and FBI reporting
as of February 2024 um so again the there one thing of
note is the president's going to latch on to both DHS and FBI reporting under
Will Courts Defer or Demand Evidence?
the Biden administration um so you know I mean obviously um logical consistency
is not his strong suit so I'm not saying that that's going to cause him even a speed bump
um but that's the language that um I think is the sort of the language that
the administration is going to have to try to use um I agree with you that it
doesn't it's it doesn't map to the exactly what's said in court but again
that is you know Ryan you're um operating on the consistency rules that
um seemed to govern about a minute ago when um uh that's something that that we
all thought was important and cared that our government was taking consistent positions and not flip-flopping um so um
I you know I think that's what we're going to see is that that flip-flopping um and we've obviously seen it before
and that's just to be clear that's not flip-flopping from one administration to another that's normal where admin a new
administration can say we're taking a different view of what the law requires do we have a different assessment of how
we read the facts this is this is a change within the administration based
on now public information that seems very much to contradict what they have
been telling the courts yeah um and I think the courts are going to have to
deal with two questions in a sense one is the question you first posed which is
if the administration comes forward to say "Look we still have a sufficient basis for invocation of the Alien
Enemies Act and it's the FBI assessment and you've got to give great deference to the president the president gets to
choose." Um especially when there's a split within the intelligence community um there's that argument um and I think
and then the second argument is I assume the courts are going to have to grapple with and the plaintiffs are going to
bring it to their attention that there's um contradictions in what they've said in the past uh the ways in which they've
said that um statements that are not supported by the FBI assessment and are contradicted by the um intelligence
community's assessment statements about um the idea that uh these uh the TDA is
being directed by Maduro and the like um and that they're in concert with each other as a hybrid regime regime and all
sorts of things like that um in their in the government in documents that they've submitted to courts i think both of
those things are going to are going to hit um in the courts um momentarily i
can imagine that some plaintiffs might even submit uh certain filings today on the basis of this report on the first
one I also am trying to think through and anticipate how the courts might respond generally the courts might say
for example that there's a complete political question here this is not within our domain we can't really make
these assessments of the intelligence community documents that's a presidential determination or they don't
say it's totally out of our domain but they give great difference as you just described Andrew on the other hand
Presumption of Regularity vs. Factual Gaps
that's an enormal circumstance in which they do not actually have the declassified document and this isn't a
leaked document this is an officially declassified document that's a part of the record um and I think that therefore
the burden might shift or the way in which they'll assess it would be just more realistic it's staring them in the
face this is just a fraud um and I that's that's where I think that the
administration's overreach and unreliability is going to really brush
up on the what in the law is viewed as the presumption of regularity
um that exists when the government um takes action there's sort of a strong presumption un the unless the person
who's challenging it can show that there's something wrong that's happening
um and just so people understand the political question doctrine that has come that Ryan you alluded to is very
much saying if this is a political question it's a matter of policy then uh the courts back off and
say that's not we don't engage in that we deal with like is something unconstitutional is it violation of the
statute um is there a factual issue um but they um there's something called a
political question doctrine where again this is sort of at a 60,000 foot level where um the courts say we defer where
that came up is in a case in Texas it
was the first case that reached the merits of whether the uh Trump
administration validly invoked the Alien Enemies Act and it was looking at the
statute that um the Alien Enemies Act itself and it compared the what was
required under the statute where there has to be as we talked about at the beginning a war or invasion
uh that uh was going on and Um and then obviously that the person at issue is
part of that group um but the here the court looked at what does the statute require and what did the president say
in his proclamation and just looked at those two things and said they do not
map on to each other um the court over and over again uh I believe on page 18
talked about and this could just be a political question we we're not dealing with a situation where the court has
validly invoked and said all the right things and is invoking the Alien Enemies
Act because that would be beyond the um expertise and the province of the court
but the court went on to say "The problem here is that the proclamation in
fact doesn't make the findings that are necessary to have the Alien Enemies Act
invoked and so strikes it down in some ways it's very limited decision because
The Texas Ruling on the Alien Enemies Act
it I sort of read it in some ways as a roadmap for how the administration could
rewrite the the proclamation assuming that you didn't care about the facts or
you you know to be generous um in a you could imagine another situation where
they just sort of messed up how they did it and they do have a factual basis here
i think that if the administration tries to revise the proclamation to deal with
the fact that it did not say all the things that it needs to say to trigger the proper invocation of the Alam EMS
act um to your point I think there could be just a lot of skepticism on the part
of the court because it's it's not only just the second attempt but the second
attempt of correcting it will fly in the face of the factual determinations that
they can see the intelligence community made um about what's going on and so you
would think a normal response would be do you have give me some some factual
predicate in other words it it cannot be that the political question doctrine
allows you like what if you would I had a taped conversation where you said I'm
lying i'm going to make this up but we're going to put it in the proclamation and we're going to give it
to the court does the political question doctrine and difference in that situation mean that the court says well
that's what they said um I mean it just can't be the case um and by the way I'm
sure a lot of people listening to this are thinking what like this is the problem with like the courts and the
legal doctrines but I think I want to make sure people understand the discussion
we're having is about the courts is precisely because the courts do defer um
on policies issues to the executive branch all the things that the courts
are being attacked on um by the administration saying "Oh look unelected
judges are preventing me from doing things." No no no the the discussion we're having is that these very strong
doctrines exist in the courts precisely so that they don't tread on the proper
province of the executive branch and we're raising the issue of that there
has to be room for the courts to say no that you can't just make it up and then
say um we are going to defer to that and I think that's where the track record of
the 100 plus days and the defiance of the of the courts and um the lack of
credibility in terms of um over and over again either factual misrepresentations
Will the Supreme Court Blink at Reality Again?
or um positions that are just unconstitutional really could come back
to hurt them yeah yeah and and uh couple
thoughts on that one is that just so people understand the opinion that you're describing in the district court in southern uh district of Texas by
Judge Rodriguez his interpretation is already a very expansive interpretation that's hugely differential to the
president and the executive branch i so much so that I think it going up if it
went up on that basis and that had to be determined by the Supreme Court they wouldn't address they wouldn't I think
um not address it they wouldn't respect it because it also flies in the face of certain Supreme Court jurist prudence that even says recognition of foreign
governments is not purely a political question and courts can review it and here we have
the an an additional situation which I think courts also operate in a reality the reality is public legitimacy and the
like everybody now knows what's going on um so it's very hard to say um yes I'm
just going to give complete difference to whatever the they put down in paper even though they themselves have
declassified a document that says um no uh that the sky is in fact blue and even
though they're writing in the paper the sky is green so I think to me Ryan I think it in many ways you know you and I
have taught the so-called Muslim ban which was the sort of big first test of in the Trump 1.0 0 uh administration
where the the so-called Muslim ban went through various iterations before it sort of got to its final resting place
then it went up to the Supreme Court and they said it was legal um I mean there were dissenting justices but I feel like
this is going to be a test of the court to see where they are now on a on a
similar type of issue because there not a single justice um justified the
horrendous record of um xenophobia and
discriminatory statements made by candidate Trump um about uh the Musl man
and instead tried to say you know what we're not going to look at reality we're going to sort of leave aside what we
know he has said and just decide that this is something that on its face and
with some there was some factual support for it say that any other president
could do this and so there was a sort of unreality to that which is like you know
what we're going to kind of ignore the factual context and just look at this is
Due Process Failures in Specific Cases
something that any other president might have been able to do i don't know that
that kind of approach is going to fly now in part because I don't think any
other president would do this or frankly could do it and I also think that
um the the uh blinking at reality I'm not sure
you're going to get the same like the same five justices to to go along with
that i mean we shall see but this this issue of the sort of the whether the
alien enemies act is lawfully invoked here with respect to the TDA is one that
I think is certainly going to go um to the Supreme Court we already have um
before the Supreme Court um uh there's a stay in place with respect to um people
in Texas um as to whom it is being invoked um and there will be issues
about the due process that they're entitled to but the this issue of
whether the Alien Enemies Act can even be properly invoked will end up I think
in the Supreme Court um one final thing I just want to make sure people are aware of is that in a case where um a
husband and wife were able to have a hearing um where the government said "Oh
they're part of a gang and they can be removed." So they actually had the due process hearing they were they there was
an ability to challenge this the court looked at the evidence and
said I mean they said almost said the following you've got to be kidding um
and they said "You don't have it it's not there it doesn't even meet the civil
standard of a sort of prepundonderance here um this is um double or even triple
hearsay and um and and threw it out." And that is an example of that we've got
so many issues here which and it's why due process is so necessary
because now we're dealing with a document that says it's not clear that the factual basis and predicate for
linking this gang to the Venezuelan government exists and two the government
when it finally had to sort of put up or shut up on the with respect to is the
individual who's in front of the court is that person part of a gang that could
even be it could apply to in other words it's one thing to say this law is can be
properly invoked but then the question is can it be invoked as to Ryan Goodman why is he part of the TDA and the courts
when it came to that said you don't have it um so that's a really good example of
why I think that the courts will be or should be the very least I can say
should be highly skeptical of the government's claims here because when it
actually had the opportunity to prove up the facts and that's where I was I was I
won't say shocked but it's like you know you would assume that you're you're seizing somebody extracting them from
this country and by the way it's not like you then remove them and they are free as a bird in a foreign country
you're then sticking them in a jail um for what could be the rest of their life
and the idea that you don't have it that you don't like you might have screwed up
on like application of the law but you don't even have the factual predicate that Ryan Goodman is in that in that
gang is unbelievable i mean under that theory I mean that's you could just
scoop up anybody and and then they're denying due process to those people and then once they're in that foreign
country they're saying "We don't even have the ability to bring you back."
The Timeline: When DOJ Knew What
Yeah and um couple other cases that are very similar like that are a Rego Garcia admittedly that's an MS-13 allegation
not Alien Enemies Act invocation under with the TDA but there uh the district
court judge Paulini says uh that the government's presented no evidence no evidence uh that he is an MS-13 member
and uh even though they say that publicly Trump officials say publicly is one and they say he's a criminal MS-13
member um that's one the other the JOP case uh Stephanie Gallagher a Trump
appointee judge uh has said in that instance that alleged TDA member the
government presented no evidence that's her words and she says this court is a court of evidence just to emphasize like
you have to give us something here if you're going to claim in this instance that this person was a public safety threat that's why they were uh removed
under the Alien Enemies Act the other piece I think that might be on people's minds and I want to also address is
somewhat the chronology especially when we I uh
mentioned you know the date of the document that we're talking about today is April 7th so people might think well
wait hold on a sec maybe that's a late in time
assessment and only subsequent to April 7th would it really register as to
whether or not the government is misrepresenting the underlying intelligence and I just want to give the
chronology um that addresses that so according to the New York Times uh
Charlie Savage's reporting and others the government makes its initial assessment February 26 the intelligence
community with the FBI having their uh difference february
26th that's according to the New York Times and uh then on March 14th 15th the
president invokes the Alien Enemies Act with the propositions that flatly contradict what the intelligence
community has said um signs it on the 14th publicly releases on the 15th that's one then um the New York Times
reports on March 20th what happened in February 26th that the intelligence community actually
contradicts um the underlying propositions of the uh
proclamation and the Alien Enemies Act and subsequent to the New York Times
reporting the they still repeat the statements the DOJ does in court i have
an April 1st document from them then we have the April 7th document we're talking about today from the National Intelligence
DOJ Denials vs. The NYT’s Accuracy
Council and on April 23rd in the case that we were just talking about Southern District of Texas where the judge um a
Trump appointee reaches a final conclusion on the merits and says "You can't invoke the Alien Enemies Act it's
it's unlawful the government submitted a brief before him on April 23rd repeating
the same lines about that the TDA is acting at the direction of Maduro april 23rd after the April 7th National
Intelligence um uh council report so that's just to underscore um how
invested the DOJ has been in this and um how contradictory it is um with the
underlying intelligence and then one last piece on it as well the New York Times last night with Charlie Savage
reported out this document and also noted a couple public statements um by
the attorney general Bondi and uh by Todd Blanch her deputy in which uh
Blanch first of all said oh no the New York Times piece is inaccurate and she herself also went out on TV and said
things can I just can I just put a point fine point on that which is I want to
make sure people understand that this is sort of a separate point that chronology is incredibly useful but when the Times
reported this and it you know it was not yet public the the Department of Justice
through its two highest level people said that's
wrong that that's not true that it was not wrong it was right um so you know
Closing Thoughts & What Happens Next
it's not just that there there has been sort of misrepresentations to the court
but the New York Times got it right and we now have by all appearances the
attorney general and the deputy attorney general getting caught with their hand in the cookie jar you know sitting there
going "Oh no that's not what happened that's wrong that reporting is wrong."
And you know the Times has been proved right um I'd say that attack on the
media is like it's like the it's like chef's kiss to what is going on here um
in terms of part of that disinformation campaign um that on on this
issue Ryan um there obviously is much more to that is going to that people
should be um focused on now because as you said this will not be raised in
court it could be as soon as today that people are going to be focusing on this and the government's going to have to be
scrambling so um everyone thank you very much for listening i know this was rather long but I think it's going to
have hopefully pay dividends because you're going to see this play out um in
the lower courts and maybe all the way up to the Supreme Court and this
document becoming really central um to it um so stay tuned to both of us are on
Substack we're both on YouTube um I'm going to give a big shout out to Just Security that um we both uh are involved
in you in a much more serious way than I am um as its co-editor and chief um so
um thanks so much for this discussion thank you