[00:00:00] Speaker 00:
Case number 25-5067 et al.

[00:00:04] Speaker 00:
JGG et al.

[00:00:05] Speaker 00:
versus Donald J. Trump in his official capacity as president of the United States et al.

[00:00:11] Speaker 00:
Mr. Ensign, Freddie Atbellance.

[00:00:13] Speaker 00:
Mr. Galant, Freddie Apolize.

[00:00:15] Speaker 03:
Mr. Ensign, good afternoon.

[00:00:19] Speaker 04:
Good afternoon.

[00:00:20] Speaker 04:
May it please the court, Drew Ensign, Deputy Assistant Attorney General for the United States.

[00:00:26] Speaker 04:
The district court's order represents an unprecedented and enormous intrusion upon the powers of the executive branch.

[00:00:33] Speaker 04:
It enjoins the president's exercise of his war and foreign affairs powers under the Alien Enemies Act and does so in a manner that purports to direct operations outside the United States borders and in a manner that could intrude upon sensitive diplomatic negotiations.

[00:00:49] Speaker 04:
The basis of that order was explicit second guessing of the president's determinations

[00:00:54] Speaker 04:
that the statutory preconditions of the AEA were satisfied for a foreign terrorist organization, Trende Aragua, or TDA, even though both the Supreme Court and this court have explicitly held that such challenges are not within the power of the federal courts to hear.

[00:01:10] Speaker 04:
The district court's order is therefore appealable, much as a TRO directing the president to redeploy a carrier group from the South China Sea to the Persian Gulf or to hold- Hang on, hang on, hang on.

[00:01:22] Speaker 02:
I mean, one of the claims pressed here, which the Supreme Court has expressly said, and we have said, courts can entertain, so put aside interpretive questions about whether there's an incursion or invasion, is whether these individuals qualify under the terms of the proclamation, whether they're members of Tren de Ragua.

[00:01:44] Speaker 02:
I assume, as below, the government does not dispute that that is something courts can adjudicate, correct?

[00:01:51] Speaker 04:
Your honor, it's certainly something that courts have adjudicated an individual habeas claim.

[00:01:56] Speaker 02:
That's a separate thing.

[00:01:57] Speaker 02:
But courts can do that.

[00:01:58] Speaker 02:
And so asserting a power to do that is not ordering ships to relocate in foreign waters.

[00:02:08] Speaker 02:
That is straight up judicial process that's allowed by the Supreme Court and circuit precedent.

[00:02:15] Speaker 02:
I understand you have your argument there about habeas.

[00:02:17] Speaker 02:
But that's a procedural point.

[00:02:21] Speaker 02:
Your points about him overstepping seem to be forgetting that there is this claim.

[00:02:27] Speaker 02:
And in fact, this morning, he's limited the TROs to the likelihood of success to that prong.

[00:02:34] Speaker 02:
And so we don't need to go any further than that, correct?

[00:02:37] Speaker 04:
No, I don't believe so, Your Honor.

[00:02:38] Speaker 04:
Because the government has taken appeals of the TRO, the district court didn't have jurisdiction to change the basis of the TRO.

[00:02:46] Speaker 04:
And so what, because- That was one of the bases all along.

[00:02:50] Speaker 04:
I disagree, Your Honor.

[00:02:51] Speaker 04:
The bases of that order were set forth on page 41 of the transcript from the Saturday hearing, and they were expressly limited to just those second-guessing of the President's determinations that the statutory preconditions of the AEA had been satisfied.

[00:03:05] Speaker 02:
If we read the record differently, if we read it to include these claims, having been pressed from the beginning,

[00:03:12] Speaker 02:
and including at the hearing, they've been saying from their complaint that their clients, at least the ones that we have, the named plaintiffs and some of the other ones, are not members of Trans-Uragua and had no chance to demonstrate that when they were rushed onto airplanes and flown to El Salvador, or at risk of being rushed onto airplanes and flown out of the country.

[00:03:36] Speaker 02:
And so if we read the record that way, then we don't have to get into these other questions, correct?

[00:03:42] Speaker 04:
No, I don't believe so, Your Honor.

[00:03:43] Speaker 02:
No, we don't have to?

[00:03:45] Speaker 02:
No, I'm wrong.

[00:03:47] Speaker 04:
I guess I would say several things, Your Honor.

[00:03:49] Speaker 04:
One is that the district court's order goes well beyond merely preserving the status quo.

[00:03:56] Speaker 04:
It purports, as the district court explained,

[00:04:00] Speaker 04:
to order the president to conduct operations in outside US borders in a particular way.

[00:04:05] Speaker 04:
He directed that the executive branch either turn planes around or to find another way to operate internationally.

[00:04:13] Speaker 02:
Right, but that's, so, I mean, at this point, my understanding is that the government has been complying with the TRO, but obviously it doesn't extend to people who are being deported on grounds independent of the proclamation.

[00:04:27] Speaker 02:
So when I say complying, that there are no planes now en route out of the country with people covered by the TRO, correct?

[00:04:36] Speaker 02:
That's my understanding, yes.

[00:04:37] Speaker 02:
No planes on the ground anywhere in the world with people covered by the TRO that would have to come back.

[00:04:44] Speaker 04:
And Your Honor, let me first clarify.

[00:04:47] Speaker 02:
Is that factually right?

[00:04:48] Speaker 04:
I believe so, Your Honor, though.

[00:04:49] Speaker 04:
Let me clarify one thing about that, which is that the district court's order only applies to those that would be removed under the Alien Enemies Act.

[00:04:57] Speaker 04:
It does not apply to those that may separately have final orders removed under the Alien Enemies Act.

[00:05:01] Speaker 02:
Sorry, I wasn't clear.

[00:05:02] Speaker 02:
I was trying to say that up front.

[00:05:03] Speaker 02:
There are other grounds for moving them out of the country.

[00:05:05] Speaker 02:
He was quite clear it was clear again this morning, but it's been clear from the beginning that's never been enjoined under the temporary restraining orders.

[00:05:14] Speaker 04:
That's correct, Your Honor.

[00:05:15] Speaker 02:
Right.

[00:05:15] Speaker 02:
So we're not talking about those.

[00:05:17] Speaker 02:
You might have planes with people going other places because they've got ordinary orders of deportation.

[00:05:21] Speaker 04:
I think that's right.

[00:05:22] Speaker 04:
And I apologize, Your Honor.

[00:05:23] Speaker 04:
I think we're agreeing.

[00:05:24] Speaker 02:
No, no.

[00:05:25] Speaker 02:
It was clearly me not being clear enough.

[00:05:27] Speaker 02:
So clearly me not being clear.

[00:05:29] Speaker 02:
So now to clarify again, my question is the concern about ordering planes back and forth is moot at this point.

[00:05:39] Speaker 02:
That's over and done.

[00:05:40] Speaker 02:
There's nothing we could do to address that.

[00:05:43] Speaker 02:
Nothing we could do to remedy that, even if we were to agree that that shouldn't have happened.

[00:05:48] Speaker 02:
That's a question.

[00:05:49] Speaker 02:
But it's just mood at this point.

[00:05:51] Speaker 04:
I don't believe so, Your Honor.

[00:05:52] Speaker 04:
I think the district court understands the government to be under a continuing obligation, having not turned the planes around to find some other way to return the people.

[00:06:01] Speaker 04:
I don't think the district court has interpreted its TRO as no longer being operative.

[00:06:04] Speaker 04:
And so I think that continuing aspect of it supports appellate jurisdiction here.

[00:06:09] Speaker 02:
You read it as

[00:06:11] Speaker 02:
requiring the return of people who are no longer in US custody?

[00:06:16] Speaker 04:
Your honor, the government does not believe that the oral pronouncements as opposed to the written one is binding.

[00:06:24] Speaker 04:
But as the district court appears to have a different view, his oral order provided for two ways of compliance.

[00:06:32] Speaker 04:
It's either turning around the planes or finding a way to return the people to the United States.

[00:06:38] Speaker 04:
The first option is no longer available, but the district court has not said that the second option is not still in force.

[00:06:47] Speaker 02:
Much of this, I think, has to do with the compliance issues that are, I think, separate and go forward, regardless of what happens with TROs.

[00:06:56] Speaker 02:
And so as of right now,

[00:07:01] Speaker 02:
Your concern is that the TROs, and well, for your sake, say, the written TRO.

[00:07:09] Speaker 02:
So the written version of the second TRO is in place.

[00:07:14] Speaker 02:
What language in that requires the retrieval of people from US custody?

[00:07:20] Speaker 02:
Your Honor, I think that are, sorry, let me clarify again, that are no longer in US custody.

[00:07:25] Speaker 04:
Your Honor, it's not that, it would not be the written order.

[00:07:27] Speaker 04:
I believe it's on page 43 of the Saturday transcript.

[00:07:31] Speaker 04:
was an oral directive, but more broadly too, this is a nationwide TRO that enjoins the president from using any of his AEA authority to remove people during this period.

[00:07:44] Speaker 04:
That is something- That's different.

[00:07:45] Speaker 02:
That's not ordering ships around in the water.

[00:07:47] Speaker 02:
That's not ordering planes to go anywhere.

[00:07:50] Speaker 02:
I'll let the TRO

[00:07:52] Speaker 02:
the nationwide TRO says is folks that are detained and folks can still be detained under the AEA.

[00:08:00] Speaker 02:
They just cannot be removed from the country until this point, until I guess you get a preliminary injunction decision from the court, which looks to be forthcoming soon.

[00:08:13] Speaker 04:
I agree that the district court looks like it may be acting on a preliminary injunction soon.

[00:08:18] Speaker 04:
But I think the intrusion upon the war powers and foreign policy powers of the president is utterly unprecedented.

[00:08:25] Speaker 04:
And in a way.

[00:08:26] Speaker 02:
Well, this is an unprecedented action as well.

[00:08:28] Speaker 02:
So of course, there's no precedent for it because no president has ever used this statute this way, which isn't to say one way or the other what it can be done, but simply to say we are in unprecedented territory.

[00:08:40] Speaker 02:
But I'm just trying to really clarify here

[00:08:44] Speaker 02:
If you agree that, and I believe you agreed in district court, I think you agreed here, but tell me if I'm mishearing, that these folks have a right under the AEA, under precedent, to challenge their status as individuals subject to, that fall within the terms of the proclamation here.

[00:09:07] Speaker 02:
That is, I think most relevantly, whether they are members of Trent DeRogwa, although maybe

[00:09:14] Speaker 02:
They deny Venezuelan citizen status, too.

[00:09:16] Speaker 02:
I don't know.

[00:09:16] Speaker 02:
But the big one that seems to be in the papers is they say, we're not even members of this.

[00:09:21] Speaker 02:
In fact, some of us are fleeing from Tren de Ragua.

[00:09:26] Speaker 02:
Is it your position that temporary restraining order that simply prevents removal until there's procedure and notice opportunity in place to address

[00:09:41] Speaker 02:
whether they even fall under the proclamation.

[00:09:43] Speaker 02:
Are you arguing that that is an unwarranted intrusion on the president's powers?

[00:09:48] Speaker 04:
Yes, your honor.

[00:09:49] Speaker 04:
I think whenever a district court enjoins the president from exercising his war and foreign policy powers on bases that are manifest error, that is absolutely the sort of irreparable harm.

[00:10:01] Speaker 02:
But the injunction isn't unhappy against the president.

[00:10:05] Speaker 02:
I mean, the president said, I only want people who are

[00:10:09] Speaker 02:
members of Tren Duragua removed.

[00:10:12] Speaker 02:
And so if his lower level executive officials are removing people who are not, or who we don't know are members of Tren Duragua, the problem is not with the president's proclamation, it's with its implementation by lower level executive officials.

[00:10:31] Speaker 02:
And that's against whom the TRO runs.

[00:10:34] Speaker 02:
So there's nothing there about enjoining his war or national security powers.

[00:10:38] Speaker 02:
That is all about

[00:10:40] Speaker 02:
lower level folks who are not implementing the terms of the proclamation because they're not making sure these folks are members of the gang before they remove them.

[00:10:49] Speaker 04:
Your honor, I disagree with that for at least two reasons.

[00:10:51] Speaker 04:
First of all, that's simply not the basis of the TRO that was appealed.

[00:10:55] Speaker 04:
Again, on page 41 of the Saturday transcript, you'll see the basis that the district court gave for its second TRO and that basis was explicitly not on

[00:11:06] Speaker 04:
Having anything to do with individualized determinations that people were members of TDA it had to do with second guessing the president's determinations that there had been an invasion or predatory incursion or threatened or attempted of the same or and that.

[00:11:21] Speaker 04:
46 is that 41 of the Saturday hearing.

[00:11:24] Speaker 02:
I mean.

[00:11:26] Speaker 02:
March 21st right.

[00:11:29] Speaker 04:
Yes, your honor.

[00:11:29] Speaker 04:
Let me get to that specific language.

[00:11:32] Speaker 04:
So what the district court said in explaining why it was issuing a TRO was, I think they, plaintiffs, have certainly presented a serious question that the president's proclamation is not legal under the AEA.

[00:11:46] Speaker 04:
I'm sorry.

[00:11:46] Speaker 02:
I just want to make sure I'm on the same page as you.

[00:11:50] Speaker 02:
I'm looking at the afternoon transcript.

[00:11:56] Speaker 03:
This would be the.

[00:11:58] Speaker 02:
I think I'm in the wrong transcript.

[00:12:01] Speaker 02:
That's my problem.

[00:12:03] Speaker 06:
And I mean, I think the transcript has line numbers, so if you could tell us the line number you're starting with.

[00:12:09] Speaker 06:
I think I have it, but just so we're all on the same page.

[00:12:11] Speaker 04:
Yes, Your Honor, it's page 41 beginning at line 12.

[00:12:22] Speaker 04:
Sorry, let me pull that as well.

[00:12:26] Speaker 04:
So what the district court said was, I think they, plaintiffs, have certainly presented a serious question that the president's proclamation is not legal under the AEA.

[00:12:39] Speaker 04:
Or a different way of saying it is that the AEA does not provide a basis for the president's proclamation, given that the terms invasion, predatory incursion really relate to hostile acts perpetrated by enemy nations and commensurate to war.

[00:12:53] Speaker 04:
Also the terms nation and government do not apply to non-state actors like criminal gangs.

[00:12:58] Speaker 04:
And then he goes on without ever referencing the opportunity to make challenges to individualized determinations under the AEA.

[00:13:07] Speaker 04:
So I think that's the order that you have before you.

[00:13:09] Speaker 04:
That's the order that we took an appeal of.

[00:13:11] Speaker 04:
And its basis is specifically the sort of second guessing of the adequacy of the president's determinations that statutory preconditions of the AEA have been satisfied.

[00:13:21] Speaker 04:
And the Supreme Court's decision in Ludecki and this court's decision in Citizens Protective League specifically preclude such review.

[00:13:30] Speaker 04:
Here's how the Supreme Court described it in Ludecki.

[00:13:35] Speaker 04:
The very nature of the president's power to order the removal of all enemy aliens rejects the notions that courts may pass judgment upon the exercise of that discretion, end quote.

[00:13:46] Speaker 04:
Similarly, this court and Citizens Protective League recognize that quote unreviewable power in the president dot dot dot is the essence of the act and quote the binding holdings of Ludecki and Citizens Protective League are controlling precedent here.

[00:14:03] Speaker 04:
In both, pointiffs challenged the president's determination that one of the statutory preconditions there, whether there was a war that could justify invoking the act, was satisfied.

[00:14:14] Speaker 04:
In both cases, pointiffs had very strong factual arguments.

[00:14:17] Speaker 04:
World War II had long since ended as a practical matter, and victory in Europe Day had been declared years earlier.

[00:14:24] Speaker 04:
As Justice Black noted in his dissent, the very idea that World War II was still ongoing at the time of Ludecki was, quote, pure fiction.

[00:14:33] Speaker 04:
None of that mattered, however.

[00:14:35] Speaker 04:
President Truman's determination that World War II had not ended simply was not reviewable.

[00:14:41] Speaker 04:
Federal courts therefore lacked jurisdiction to hear challenge to the president's findings that the requirements of the AEA had been met.

[00:14:48] Speaker 04:
The same result must obtain here.

[00:14:50] Speaker 04:
As in Ludecki and Citizens' Protective League, plaintiffs are bringing facial challenges to the president's determination

[00:14:57] Speaker 04:
that the conditions for invoking the AEA have been satisfied.

[00:15:01] Speaker 04:
And there is no basis for concluding that the president's determination that there is a war is wholly unreviewable, but determinations that there has been an invasion or a predatory incursion or threatened or attempted of the same is somehow reviewable.

[00:15:16] Speaker 02:
He said, and again, I apologize, but I think this is line 10 to 11 of 41.

[00:15:24] Speaker 02:
It's outside of what Ludeke talked about.

[00:15:26] Speaker 02:
It's outside of it.

[00:15:28] Speaker 02:
And we know what was outside of what Ludeke talked about, and that was the individual determinations as to their qualification, as to whether they qualify under the order.

[00:15:37] Speaker 02:
And again, there's no question that that can be done.

[00:15:40] Speaker 02:
That's been argued in this case from the beginning.

[00:15:42] Speaker 02:
It's in the complaint.

[00:15:43] Speaker 02:
It's been argued about.

[00:15:45] Speaker 02:
That's the basis on which the government keeps saying you have to do this through habeas.

[00:15:48] Speaker 02:
There's just no question that he was basing it on multiple things.

[00:15:52] Speaker 02:
And one of which, and we now have the clarification from the district court judge this morning, as it's just about all it has to rest on now and denying your motion to vacate is the right of them to have an opportunity.

[00:16:05] Speaker 02:
And there's no procedure as implemented by lower level officials that allows anybody an opportunity

[00:16:14] Speaker 02:
to challenge their status.

[00:16:17] Speaker 02:
The TRO rests on that.

[00:16:20] Speaker 02:
I understand that there's language on both things here, but to the extent it's resting on that, and that's what we've been told this morning, and it's here as well.

[00:16:30] Speaker 02:
It's the least part of it here, and it's what's been clarified now.

[00:16:33] Speaker 02:
To the extent it's resting on that, there isn't an impermissible intrusion.

[00:16:38] Speaker 02:
It's fully consistent with our precedent in Clark and Ludecky, correct?

[00:16:43] Speaker 04:
No, your honor.

[00:16:43] Speaker 04:
I simply don't agree with that.

[00:16:45] Speaker 04:
I think he told us on page 41 explicitly what his reading, what his reasoning was.

[00:16:50] Speaker 04:
And I think you're reading a lot into that additional language and a whole nother holding that now exists in 37 page opinion form, but did not exist when the order was appealed and is not before you.

[00:17:01] Speaker 06:
One of the things he said today, I just want to see if there's common ground between you and the plaintiffs and the district court.

[00:17:10] Speaker 06:
He said, before they may be deported, they are entitled to individualized hearings to determine whether the act applies to them at all.

[00:17:22] Speaker 06:
I think you agree with that.

[00:17:23] Speaker 06:
Do you agree with that?

[00:17:25] Speaker 04:
I agree with part of that, Your Honor, in that he cites to a number of different cases that allow for such review and habeas proceedings.

[00:17:33] Speaker 04:
And so

[00:17:34] Speaker 04:
to the extent that someone were to bring a habeas challenge, review of some sort along those lines is, you know.

[00:17:42] Speaker 06:
So let me just, I'll use your words and then make sure that we're on the same page.

[00:17:46] Speaker 06:
To the extent that it's brought in an individualized habeas challenge, they are entitled to individualized hearing to determine whether the act applies to them at all.

[00:17:58] Speaker 04:
Your honor, there's certainly precedent to support that.

[00:18:00] Speaker 04:
It's not precedent of the Supreme Court.

[00:18:03] Speaker 04:
So the exact contours of what a habeas court might hold are unclear.

[00:18:07] Speaker 04:
But I will certainly acknowledge there are cases that are habeas cases that exercise review certainly of that sort.

[00:18:13] Speaker 04:
Ludecki itself exercised review over a due process challenge.

[00:18:19] Speaker 04:
And that was reviewable.

[00:18:21] Speaker 04:
It just simply had no merit whatsoever.

[00:18:23] Speaker 04:
This court itself and Citizens Protective League exercised similar review over constitutionality, but again, just thought there was no merit there.

[00:18:31] Speaker 06:
Well, let's say that I understand you do not be, not to be affirmatively endorsing, but not to be affirmatively contesting the statement that if they bring it in an individualized habeas petition, they're entitled to individualized hearings to determine whether the act applies to them at all.

[00:18:53] Speaker 06:
In other words, they bring a habeas petition.

[00:18:55] Speaker 06:
They can say to a federal district judge, I am not Trende Arague.

[00:19:00] Speaker 06:
And a federal district judge would review that at least to some degree.

[00:19:05] Speaker 06:
It sounds like you're not affirmatively endorsing that, but you're not arguing against it.

[00:19:11] Speaker 06:
If that is true, that they can do that, how would that work?

[00:19:17] Speaker 06:
My understanding is that in some ways it's already working.

[00:19:20] Speaker 06:
There are some individualized habeas

[00:19:23] Speaker 06:
hearings being held in Texas where the detainees are being held.

[00:19:29] Speaker 06:
So can you just help me understand?

[00:19:31] Speaker 06:
I think it's a friendly question.

[00:19:36] Speaker 06:
So if they can bring a habeas petition to say, I'm not a member of TDA, so you shouldn't remove me under the president's proclamation, how would they bring that habeas claim?

[00:19:50] Speaker 06:
What would that look like?

[00:19:52] Speaker 04:
Certainly, your honor.

[00:19:54] Speaker 04:
So they can bring an individualized habeas claim and at least some arguments are certainly available in habeas.

[00:19:59] Speaker 04:
Ludecki itself reviewed a due process argument in the habeas context.

[00:20:04] Speaker 04:
So certainly at least that is available.

[00:20:07] Speaker 04:
The precise contours of that would be resolved by those habeas courts.

[00:20:12] Speaker 04:
To your question of how would this work is how it is working in Texas right now.

[00:20:16] Speaker 04:
Courts are deciding that.

[00:20:18] Speaker 04:
How it absolutely cannot work is how the district court has.

[00:20:22] Speaker 04:
I know that's what you think.

[00:20:23] Speaker 06:
I'm not saying I disagree with you about that.

[00:20:25] Speaker 06:
So let's say they're being held in a detention center in Texas, and they want to file a habeas petition to stop their removal under the proclamation.

[00:20:38] Speaker 06:
Would they have access to a court do that?

[00:20:42] Speaker 04:
They would certainly have access to a court to do so, and many have done so.

[00:20:47] Speaker 06:
And that's important, too, what you just said.

[00:20:49] Speaker 06:
Many have done so.

[00:20:50] Speaker 06:
These habeas hearings are ongoing now, individualized habeas hearings in Texas.

[00:20:57] Speaker 06:
That's correct, Your Honor.

[00:20:59] Speaker 02:
Were the people that were on the airplanes last weekend given an opportunity to file habeas

[00:21:07] Speaker 04:
But while your honor that we are here on a case in which the five individual plaintiffs were able to get in court and were able to get a TRO and therefore were not on planes.

[00:21:16] Speaker 04:
And so they.

[00:21:19] Speaker 02:
One or so was on planes and got removed.

[00:21:21] Speaker 04:
What's that?

[00:21:21] Speaker 04:
Of the five named plaintiffs?

[00:21:23] Speaker 04:
That's not my understanding, Your Honor.

[00:21:24] Speaker 04:
All five, the government has represented that those five were not placed on planes, that the five that had the benefit, the individual plaintiffs that had the benefit of the first hero who were able to get in court in time.

[00:21:36] Speaker 06:
In this process that I'm describing, the five named plaintiffs here who did file in this court before they were removed from the country could have

[00:21:47] Speaker 06:
you tell me that this is wrong, could have just as easily filed in a Texas district court, a habeas petition in the district where they're being held.

[00:21:57] Speaker 04:
Absolutely, your honor.

[00:21:58] Speaker 04:
And notably in the complaint that was filed in this case, they did raise habeas action, a habeas claim.

[00:22:06] Speaker 04:
It was count nine of it.

[00:22:08] Speaker 04:
They didn't just raise it.

[00:22:09] Speaker 06:
It was the title of their complaint.

[00:22:11] Speaker 06:
Their title of their complaint, I think I have it somewhere here, was

[00:22:18] Speaker 06:
class action complaint and petition to rid of habeas corpus.

[00:22:21] Speaker 06:
And they later said plaintiffs respectfully pray this court to grant a writ of habeas corpus to plaintiffs that enjoins defendants from removing them under the alien enemy act.

[00:22:32] Speaker 06:
And those are ongoing in Texas.

[00:22:34] Speaker 06:
Some of those are ongoing in Texas.

[00:22:36] Speaker 04:
Absolutely, Your Honor.

[00:22:37] Speaker 06:
Is the government detaining anyone solely on the basis of the alien enemy act?

[00:22:44] Speaker 04:
Your Honor, I would have to check that specifically.

[00:22:48] Speaker 04:
Almost everyone is being detained additionally under Title 8.

[00:22:53] Speaker 04:
So I'm not sure if there are any specific AEA-only detentions.

[00:22:59] Speaker 04:
Certainly, but the challenge has been brought to that.

[00:23:03] Speaker 06:
I'd be curious to know if you can find out and if it wouldn't reveal

[00:23:08] Speaker 06:
you know, something too sensitive to reveal.

[00:23:11] Speaker 06:
If there is anyone being detained solely on the basis of the alien enemies.

[00:23:17] Speaker 04:
Your honor, we're certainly happy to track that down and provide that information to the court.

[00:23:20] Speaker 04:
Thanks.

[00:23:21] Speaker 02:
And it seems like the relevant thing is where people being removed solely, not detained, but removed solely based on the proclamation.

[00:23:30] Speaker 02:
It seems like, and again, you can clarify for me, I'm just looking at a cold record here.

[00:23:35] Speaker 02:
that proclamation was signed and people were getting put on planes immediately without even notice as to the basis, let alone an opportunity to file suit.

[00:23:52] Speaker 02:
And so with those removals, I think there was one airplane that you said it was people removed on other grounds.

[00:24:00] Speaker 02:
But there were two where the government hasn't argued that.

[00:24:05] Speaker 02:
Am I recalling the record correctly?

[00:24:07] Speaker 04:
Your honor, I believe so.

[00:24:09] Speaker 02:
Two planes worth of people removed under the AEA, not under the holding of removal.

[00:24:16] Speaker 02:
process, or remove of the ordinary INA removal.

[00:24:19] Speaker 04:
The Title VIII process.

[00:24:21] Speaker 04:
Yes, Your Honor.

[00:24:22] Speaker 04:
But I think the fact is that five individual plaintiffs were able to march into court, file habeas, actually get relief, admittedly, on non-habeas grounds.

[00:24:32] Speaker 04:
And the fact that that opportunity.

[00:24:33] Speaker 02:
But that the government, I mean, that was a super fast order that was done, as you know.

[00:24:37] Speaker 02:
I mean, the government was called and notified.

[00:24:39] Speaker 02:
And then a hearing that afternoon.

[00:24:41] Speaker 02:
But that's the run of the reasons there's all these separate disputes in district court.

[00:24:46] Speaker 02:
about compliance because planes were already loading and taken off.

[00:24:52] Speaker 02:
And those folks did not have notice or an opportunity to challenge their status at all.

[00:25:00] Speaker 02:
And that's why there had to be a class certification to slow things down until we have an opportunity for due process.

[00:25:11] Speaker 04:
Your honor, I think this court's decision, IM versus CBP, is instructive on this.

[00:25:17] Speaker 02:
Am I wrong about anything I just said factually?

[00:25:20] Speaker 04:
Your honor, I think it's incorrect that they couldn't have gotten into court as the five individual plaintiffs also did.

[00:25:25] Speaker 02:
No, but the point here was that there were plain loads of people.

[00:25:28] Speaker 02:
I mean, it's a class action.

[00:25:30] Speaker 02:
There were plain loads of people.

[00:25:33] Speaker 02:
There were no procedures in place to notify people.

[00:25:38] Speaker 02:
Nazis got better treatment under the Alien Enemy Act, and this happened here, where the proclamation required the promulgation of regulations, and they had hearing boards before people were removed.

[00:25:50] Speaker 02:
And yet here, there's nothing in there about hearing boards, there's no regulations, and nothing was adopted by the agency officials that were administering this.

[00:26:00] Speaker 02:
People weren't given notice, they weren't told where they were going, and they were given, those people on those planes on that Saturday had no,

[00:26:08] Speaker 02:
opportunity to file habeas or any type of action to challenge the removal under the AEA.

[00:26:15] Speaker 02:
And like you've agreed that two of those airplanes, people were removed under the AEA.

[00:26:21] Speaker 02:
Is that, what's factually wrong about what I said?

[00:26:24] Speaker 04:
Well, Your Honor, we certainly dispute the Nazi analogy, but more importantly, the fact is that individual plaintiffs were able to file habeas in time in order to secure relief.

[00:26:34] Speaker 02:
Wait, what individual plaintiffs were?

[00:26:36] Speaker 04:
The five individual plaintiffs that got.

[00:26:38] Speaker 02:
That's not my question.

[00:26:39] Speaker 02:
My question is there were a lot more people.

[00:26:41] Speaker 02:
They wanted to bring a class action.

[00:26:42] Speaker 02:
They had to have some named plaintiffs.

[00:26:45] Speaker 02:
So five people filing habeas doesn't help everybody else on two airplane loads, correct?

[00:26:51] Speaker 02:
And my question to you is, and you said those five didn't get put on the airplanes.

[00:26:57] Speaker 02:
So as to the two airplanes that I think you just agreed involved removals solely on AEA grounds.

[00:27:06] Speaker 02:
on Saturday, the very short time of the proclamation's publication, had no opportunity to file for habeas or even notice as to the grounds on which they were being removed.

[00:27:22] Speaker 02:
Am I wrong about that?

[00:27:23] Speaker 04:
I think so, Your Honor.

[00:27:24] Speaker 04:
The fact that five individual appointees did file habeas and did get relief indicates that they could... I don't think you're answering my question.

[00:27:31] Speaker 02:
My question is not as to the five plaintiffs.

[00:27:34] Speaker 02:
How much time, I want you to think of five other people on the first airplane.

[00:27:42] Speaker 02:
How much time were they, when were they given notice that they were being removed under the AEA on the grounds that they were members of Trendy ARAQA?

[00:27:51] Speaker 02:
And how much time were they given between that notice and being put on the airplane that Saturday, right after the proclamation was signed?

[00:28:00] Speaker 02:
to file a suit.

[00:28:03] Speaker 04:
Your honor, those facts are not in the record.

[00:28:05] Speaker 04:
And I don't know all of them offhand, but I think.

[00:28:07] Speaker 04:
OK, so what do you think?

[00:28:09] Speaker 04:
But I think the fact that five individuals were able to do so indicates that others could have.

[00:28:15] Speaker 02:
They filed suit before the proclamation was even published.

[00:28:18] Speaker 02:
I've asked you after the proclamation was published.

[00:28:21] Speaker 02:
And I assume these habeas actions that you're talking about, and correct me if I'm wrong, that are now being filed in Texas have been filed since there's been a stay.

[00:28:30] Speaker 04:
But, Your Honor, I'm talking about the five individual plaintiffs in this case.

[00:28:34] Speaker 02:
That's not my question.

[00:28:35] Speaker 04:
I understand.

[00:28:35] Speaker 02:
The question here is, if someone thinks there was a meaningful opportunity, notice and opportunity to file for habeas for the people on those two airplanes, which are not these five named planes, because they filed before the proclamation was even published.

[00:29:00] Speaker 02:
If there was no opportunity for those folks to file habeas, then that's the issue for the TRO, to freeze things in place so that compliance with due process can occur.

[00:29:12] Speaker 02:
But, Your Honor, as to due process... You haven't disagreed with any of my facts about there wasn't time for the people on those two airplanes.

[00:29:20] Speaker 02:
You haven't... Your Honor... One at a time, were they given notice

[00:29:23] Speaker 02:
before being put on the airplane that they were being removed because they were members of Tren de Aragua pursuant to the president's proclamation under the AEA.

[00:29:32] Speaker 04:
Your honor, I don't think that is in the record.

[00:29:34] Speaker 02:
You can't speak for the government with knowledge about that.

[00:29:37] Speaker 04:
Your honor, my understanding on public news reports is that they had some sort of notice.

[00:29:41] Speaker 04:
I don't know the specific contours of that.

[00:29:43] Speaker 02:
But again, our position is the fact that there's no record that they were given notice.

[00:29:49] Speaker 02:
And then how much time was there

[00:29:52] Speaker 02:
between the president's signing of the proclamation and those two planes taking off?

[00:30:01] Speaker 04:
Your honor, that's not in the record.

[00:30:03] Speaker 04:
I don't know that specifically.

[00:30:04] Speaker 02:
But you had the times of those planes down pretty clearly, and we know what time the president's proclamation was published.

[00:30:09] Speaker 04:
Your honor, the record has what times that they had departed before the 7.25 PM.

[00:30:15] Speaker 02:
That must be findable, what time the planes took off.

[00:30:19] Speaker 04:
Your honor, it's that is currently the government is currently engaged in evaluating what if any of that can be disclosed.

[00:30:27] Speaker 02:
You can tell the time the planes landed, but you can't tell what time they took off.

[00:30:30] Speaker 04:
We can.

[00:30:30] Speaker 04:
We have told what time that they that what their status as of when the 725 PM minute order issued and I'm not authorized to tell any to discuss any more operational details.

[00:30:44] Speaker 02:
Is the government aware of how long it takes to fly from?

[00:30:47] Speaker 02:
wherever this airport is in Texas, El Salvador, generally?

[00:30:51] Speaker 04:
Your Honor, I don't know that off the top of my head.

[00:30:53] Speaker 04:
That can be found out pretty easily.

[00:30:56] Speaker 02:
I mean, it just feels like there was no time.

[00:30:59] Speaker 02:
And the habeas cases you're talking about now were only able to be filed because the district court froze things.

[00:31:07] Speaker 04:
Well, Your Honor, this case itself was originally filed as a habeas action.

[00:31:11] Speaker 02:
Are there other habeas cases that you mentioned filed in Texas?

[00:31:15] Speaker 02:
When were they filed?

[00:31:16] Speaker 04:
Your honor, I believe at least one of them was filed before the plaintiffs indicated that they thought the point had taken off.

[00:31:26] Speaker 04:
I can track down, but that's my recollection.

[00:31:30] Speaker 02:
The other ones have all been because there's a stay in place.

[00:31:32] Speaker 04:
What's that?

[00:31:33] Speaker 04:
Your honor, I don't know the precise status of every single one of those individual habeas actions.

[00:31:37] Speaker 04:
That's very fast.

[00:31:37] Speaker 02:
You don't know how they could have been filed before the president's proclamation was made public and before someone was told that they were being subject to it.

[00:31:45] Speaker 02:
right?

[00:31:46] Speaker 02:
Your honor, again, I just disagree.

[00:31:47] Speaker 02:
It wouldn't be a right claim.

[00:31:50] Speaker 04:
Your honor, we're here because five individual plaintiffs filed a complaint that clearly indicate included habeas claims as Judge Walker indicated.

[00:31:56] Speaker 04:
And here we are hearing that very claim.

[00:31:59] Speaker 04:
And here's what this court said.

[00:32:01] Speaker 04:
Excuse me.

[00:32:06] Speaker 04:
And I am versus CPB.

[00:32:08] Speaker 04:
I am contends that a removed alien may file a habeas petition if extreme circumstances prevented him from filing one.

[00:32:15] Speaker 04:
He was in custody.

[00:32:16] Speaker 04:
We disagree.

[00:32:17] Speaker 04:
Lower courts are created by Congress and have only the jurisdiction Congress grants no more, no less.

[00:32:23] Speaker 04:
And your honor indicated that you thought that this was a matter of due process.

[00:32:26] Speaker 04:
But I think that's very useful here because the Supreme Court and this court have confronted due process claims challenging the invocation of the AEA.

[00:32:35] Speaker 04:
And here's what Supreme Court said in Ludecki.

[00:32:37] Speaker 04:
The act is almost as old as the constitution, and it would save her of doctrinaire audacity now to find the statute offensive to some emanation of the Bill of Rights, which obviously includes the- No one's saying the whole statute's unconstitutional.

[00:32:49] Speaker 02:
No one's saying the Alien Enemies Act is, well, maybe they'll tell me they're saying that, but the entire Alien Enemies Act is unconstitutional.

[00:32:58] Speaker 02:
That has been decided.

[00:32:59] Speaker 02:
The question is whether a particular proclamation and its implementation

[00:33:07] Speaker 02:
constitutional.

[00:33:07] Speaker 02:
This happens all the time.

[00:33:08] Speaker 02:
The statutes are constitutional, but how they're implemented in a particular case is not.

[00:33:16] Speaker 02:
That's all we're talking about.

[00:33:18] Speaker 02:
And in Ludicay and in Clark, Clark was a case like this one.

[00:33:22] Speaker 02:
It wasn't a habeas.

[00:33:23] Speaker 02:
Sorry.

[00:33:25] Speaker 02:
I used a shorter name for the case in this part.

[00:33:30] Speaker 02:
It was 159 people in an organization who represented their interests who filed suit.

[00:33:36] Speaker 02:
And we recognize there that you could have a challenge to whether you qualify under the proclamation, right?

[00:33:46] Speaker 02:
The best issue here is whether there's a process.

[00:33:50] Speaker 04:
I agree that that's how the district court saw it, but there were due process arguments raised in those cases as well.

[00:33:56] Speaker 04:
And, you know, this court said that if there was the slightest question in the minds of the authors of the Constitution or contemporaries concerning the constitutionality of the Alien Enemies Act, it would have appeared.

[00:34:06] Speaker 04:
None did.

[00:34:06] Speaker 02:
Yeah, that's the constitutionality of the act.

[00:34:09] Speaker 02:
You just finished the sentence for me.

[00:34:11] Speaker 02:
My question is, and I think what district court here hasn't called into question the constitutionality of the Alien Enemies Act.

[00:34:18] Speaker 02:
It's been upheld, as you said, as a part of the war power.

[00:34:22] Speaker 02:
So that's not the question here.

[00:34:23] Speaker 02:
The question is whether the implementation of this proclamation without any process to determine whether people qualify under it

[00:34:37] Speaker 02:
I mean, if the government says, we don't have to give process for that, then y'all could have put me up on Saturday and thrown me on a plane thinking I'm a member of Trendy Ragwa and giving me no chance to protest it and say, somehow it's a violation of presidential war powers for me to say, excuse me, no, I'm not, I'd like a hearing.

[00:35:01] Speaker 02:
He wouldn't say that.

[00:35:04] Speaker 04:
Your honor, obviously nothing of the sort is presented by the record here.

[00:35:08] Speaker 02:
I think what we don't know, we don't have any record on whether these individuals are members of Trenton Raguah or victims of Trenton Raguah.

[00:35:19] Speaker 04:
Your honor, as you've characterized it, what that sounds like to me is an argument that the AEA is unconstitutional because it doesn't provide for pre-deprivation.

[00:35:28] Speaker 02:
There's not an argument about this statute.

[00:35:29] Speaker 02:
I'm going to tell you, I'm going to say this, and I don't know how to say it any more clearly.

[00:35:34] Speaker 02:
My questions are about the implementation of a particular proclamation under the statute.

[00:35:41] Speaker 02:
That is not an argument.

[00:35:44] Speaker 02:
Quite frankly, the statute provides that there will be regulations issued.

[00:35:50] Speaker 02:
And regulations to determine someone's status have happened every other time the statute's been used.

[00:35:56] Speaker 02:
So this isn't about the statute being unconstitutional.

[00:35:59] Speaker 02:
It's whether implementation of it under this proclamation is unconstitutional.

[00:36:05] Speaker 02:
And not even, is it unconstitutional?

[00:36:07] Speaker 02:
Is there a likelihood of showing that there's a constitutional problem here because of the lack of due process?

[00:36:16] Speaker 02:
We're not even deciding the merits.

[00:36:17] Speaker 02:
So please do not attribute to me that I'm saying the statute's unconstitutional.

[00:36:21] Speaker 02:
You and I agree that that has been answered.

[00:36:25] Speaker 02:
An implementation of a proclamation is a completely different question.

[00:36:30] Speaker 02:
Can we agree on that?

[00:36:31] Speaker 02:
You won't agree, I mean, maybe that has constitutional problem, but you agree that it's a separate question whether the implementation of something under a lawful statute is constitutional.

[00:36:41] Speaker 04:
Your honor, it certainly that level of traction.

[00:36:43] Speaker 04:
I agree with you.

[00:36:44] Speaker 02:
I see that down exactly what this case is.

[00:36:47] Speaker 02:
That's not abstract.

[00:36:48] Speaker 04:
Well, your honor, where I disagree is that as your honor identified, the A requires the issuance of regulations.

[00:36:54] Speaker 04:
It does not require the provision of pre deprivation process.

[00:36:59] Speaker 04:
And so I think that would be an argument that under the due process clause, the failure to provide of the itself to mandate pre deprivation hearings

[00:37:08] Speaker 04:
unconstitutional and I think that is the sort of challenge that was considered and rejected.

[00:37:12] Speaker 02:
When were other usages of the AEA done and people were summarily removed without a process?

[00:37:22] Speaker 02:
Can you show me an example in history when the AEA was used that way?

[00:37:26] Speaker 04:
Yes, your honor.

[00:37:28] Speaker 04:
So in Ludecki, for example,

[00:37:30] Speaker 04:
Uh, there was requirements in the implementing regulations that a, uh, that an alien had to be dangerous before that they would be removed.

[00:37:40] Speaker 04:
And, uh, and there was part of the challenge was that, uh, that that person was not dangerous, um, and wanted to challenge the attorney general's determination that he was.

[00:37:51] Speaker 04:
And what the Supreme Court said is that he, President Truman, provided for the removal of such aliens as were deemed by the attorney general to be dangerous, but such a finding at the president's behalf was likewise not to be subjected to the scrutiny of- That's a completely different question.

[00:38:07] Speaker 02:
All right, footnote five.

[00:38:08] Speaker 02:
The order recited that the petitioner was deemed dangerous on the basis of evidence adduced in hearings before the alien enemy hearing board.

[00:38:17] Speaker 02:
That's what I'm talking about.

[00:38:21] Speaker 02:
That's, they had a process there for the decision.

[00:38:24] Speaker 02:
Question whether a court can review a deemed, whether a secretary properly deemed someone dangerous.

[00:38:30] Speaker 02:
That's what they said.

[00:38:31] Speaker 02:
That's committed to the discretion of the secretary, whether someone's deemed dangerous.

[00:38:36] Speaker 02:
But there was hearings and there was process.

[00:38:39] Speaker 02:
I asked you when they haven't had process.

[00:38:42] Speaker 04:
Your Honor, I guess then that points to me that this conversation has been very much about due process.

[00:38:48] Speaker 04:
But even as the 37-page opinion that issued this morning, it seems to sound in due process, but doesn't make a holding based on due process.

[00:38:59] Speaker 04:
And so that alone.

[00:39:01] Speaker 02:
Well, it says it's limits.

[00:39:03] Speaker 02:
It's not holding because it's a TRO.

[00:39:05] Speaker 02:
It says it's limiting its likelihood of success analysis.

[00:39:08] Speaker 02:
to that question.

[00:39:10] Speaker 02:
And then to get, if you want to respond to that, because I wanted to get to this question of whether it can only go through a habeas, but I wanted to let you.

[00:39:20] Speaker 04:
Your Honor, so we think that the rationale has been swapped out at the last minute, less than four hours before oral argument.

[00:39:28] Speaker 04:
We think that's procedurally improper and potentially jurisdictionally problematic, where

[00:39:32] Speaker 04:
The ordinary rules of jurisdiction do not permit district courts to present this court with a moving target on appellate review, and I think that's exactly what you have here.

[00:39:40] Speaker 02:
Another procedural problem here is that you never saw to stay from the district court.

[00:39:46] Speaker 04:
That's correct, Your Honor.

[00:39:47] Speaker 02:
This is obviously... We've had plenty of time.

[00:39:49] Speaker 02:
We've had a week, more than a week.

[00:39:52] Speaker 02:
We never saw to stay from the district court first, which our precedent require.

[00:39:58] Speaker 04:
No, Your Honor, certainly that is a general thing.

[00:40:00] Speaker 04:
This case is absolutely extraordinary that we moved within mere hours for this court.

[00:40:05] Speaker 04:
It obviously was not possible to exhaust before the district court in that time.

[00:40:08] Speaker 02:
Before the court, I don't mean you personally, the government was before the court, Saturday afternoon in person when the TRO issued, right?

[00:40:16] Speaker 02:
There was a government attorney, I don't know if it was you or someone else, but there was a government attorney before the court Saturday afternoon when the operative TRO now was issued, correct?

[00:40:26] Speaker 02:
That's correct, Your Honor.

[00:40:27] Speaker 02:
Although the attorney has said when the TRO was entered, we request a stay so we can seek relief from the Court of Appeals.

[00:40:36] Speaker 02:
Do they have time to do that at that hearing?

[00:40:39] Speaker 04:
I suppose so, Your Honor.

[00:40:41] Speaker 04:
Although, Your Honor, a couple of things let me say about that.

[00:40:44] Speaker 04:
First of all, that TRO, it was scheduled a hearing for class certification that the government was surprised to discover and I was personally just surprised

[00:40:54] Speaker 04:
discovered that the TRO merits would be discussed.

[00:40:57] Speaker 04:
The hearing was only set for class certification.

[00:41:01] Speaker 04:
And on that question of class certification, the government was not permitted to file even a single sentence of written briefing in opposition before we were hauled into court on a Saturday at 5 p.m.

[00:41:10] Speaker 04:
and a nationwide class action or class was certified.

[00:41:14] Speaker 04:
And then in that posture, we were then surprised to discover that notwithstanding the fact that the order

[00:41:21] Speaker 04:
or sorry that the notice was for a hearing on class certification that in fact a second TRO would be in the merits of which would be considered that was presented there.

[00:41:28] Speaker 04:
You know we certainly believe that it wasn't.

[00:41:32] Speaker 02:
I understand how that means you didn't have time that afternoon or Sunday or Monday or Tuesday or Wednesday or Thursday or Friday or Saturday or Sunday or this morning your first day from the district court you've had time correct.

[00:41:46] Speaker 04:
Your honor, we had time.

[00:41:48] Speaker 02:
Yes or no?

[00:41:48] Speaker 04:
We've had time.

[00:41:49] Speaker 04:
It's clear that we went to this court.

[00:41:52] Speaker 04:
Your honor, certainly, too, this is not, I believe, an issue of the FRAP 8 compliance that the plaintiffs have raised.

[00:41:58] Speaker 04:
So it by itself may have been forfeited because that is not an argument that I believe the plaintiffs have raised.

[00:42:04] Speaker 04:
But before that, we had already sought a first step.

[00:42:09] Speaker 02:
You admitted it right in your filings with us.

[00:42:11] Speaker 02:
You teed it up.

[00:42:12] Speaker 02:
They didn't have to raise it.

[00:42:13] Speaker 02:
You teed it up in your filings that we didn't do this.

[00:42:16] Speaker 02:
Do you know how often the government has asked this court to dismiss stay applications because someone didn't first ask it before?

[00:42:23] Speaker 04:
Your honor, I acknowledge that is a common course in cases.

[00:42:28] Speaker 04:
There is nothing remotely ordinary about this case and certainly not.

[00:42:32] Speaker 02:
What is very ordinary is that you have plenty of time to ask first day.

[00:42:35] Speaker 02:
And I don't really didn't, but you did have you had the time to type into your briefs here.

[00:42:40] Speaker 02:
We didn't ask the district court first day.

[00:42:43] Speaker 04:
Your Honor, because we thought, frankly, candidly, we hope this court might act more quickly.

[00:42:48] Speaker 04:
And we, therefore, wanted to get relief as soon as possible given the stakes of the issues presented.

[00:42:55] Speaker 02:
I sort of thought with the stakes that you would want to cross your procedural t's and dot the i's.

[00:43:01] Speaker 04:
Your Honor, given the extraordinary importance of this case and the fact that it's presented.

[00:43:05] Speaker 02:
I mean, it seems to be all the more reason to ask the district court for a stay if it's important.

[00:43:10] Speaker 02:
I mean, is the government now of the view that we should adopt

[00:43:14] Speaker 02:
As as a ruling in this court that when it's it's certainly important, but there's still plenty of time.

[00:43:20] Speaker 02:
You don't have to ask a stay your first or from an agency first.

[00:43:26] Speaker 04:
Your honor, we disagree that there was plenty of time and we went to this court.

[00:43:34] Speaker 04:
Your Honor, to the extent that this court believes that exhaustion is important, we're happy to do so before the district court.

[00:43:41] Speaker 04:
We expect that we would get an almost instantaneous denial.

[00:43:44] Speaker 04:
If that's something that is holding up relief in this case, that's something we're happy to do.

[00:43:53] Speaker 02:
All right.

[00:43:54] Speaker 02:
I had some questions about your argument that this has to be done, that this relief has to be sought through habeas corpus.

[00:44:03] Speaker 04:
Yes, Your Honor.

[00:44:06] Speaker 02:
There are a lot of cases from the Supreme Court and this court recognizing, and again, Clark is the chief one right under the Alien Enemies Act, that when someone is bringing a procedural challenge, that two things, a procedural challenge, you don't have to go through the ordinary individualized decision-making that you do for immigration challenges, removal challenges.

[00:44:34] Speaker 02:
that you can have class actions that bring challenges to the procedures by which removals are being implemented.

[00:44:43] Speaker 02:
And that's not a habeas claim, because it's a challenge to procedures.

[00:44:47] Speaker 02:
And married to that is that not one of these plaintiffs, or as best we can tell people in the class, is asking to be released from custody.

[00:45:00] Speaker 02:
And the Supreme Court has said time and again

[00:45:03] Speaker 02:
that when you aren't being asked to release from custody, in fact, they want to stay in the US custody.

[00:45:11] Speaker 02:
No one's challenging the right of the government to detain them.

[00:45:15] Speaker 02:
But habeas is not the right vehicle.

[00:45:17] Speaker 02:
You've got Thurgassium.

[00:45:18] Speaker 02:
You've got Munaf versus Green.

[00:45:20] Speaker 02:
It's not the right vehicle.

[00:45:24] Speaker 02:
And in Clark, we allowed a lawsuit by an organization and 159 parties

[00:45:33] Speaker 02:
challenging application of the Alien Enemies Act.

[00:45:39] Speaker 04:
Your Honor, I disagree with that for three reasons.

[00:45:41] Speaker 04:
First of all, the procedural right here that the district court derived in its order this morning essentially comes out of a string side of habeas cases.

[00:45:49] Speaker 04:
And so the right that the district court has divined here is clearly, to the extent that exists, a habeas right.

[00:45:54] Speaker 02:
No, it's a right to have procedures and opportunity in place, notice and opportunity in place across the board for everyone who's being removed, removed, not detained, removed under the Alien Enemies Act.

[00:46:13] Speaker 04:
Your Honor, I think two more responses to that.

[00:46:16] Speaker 04:
One is that

[00:46:17] Speaker 04:
the right at issue is being derived from habeas.

[00:46:19] Speaker 04:
And that's very important because it means that APA jurisdiction isn't available.

[00:46:24] Speaker 04:
Here's how this court addressed a very similar case in LeBeau versus Christopher.

[00:46:29] Speaker 04:
It said that the key to plaintiff's inability to pursue a suit here is jurisdictional and rests merely on the availability, not the actual seeking of habeas relief elsewhere.

[00:46:40] Speaker 04:
This court then further wanted to explain the quote, the availability of a habeas remedy in another district ousted us of jurisdiction over the alien's effort to pose a constitutional attack just pending deportation, end quote.

[00:46:52] Speaker 04:
And so what I think you have here is the district court found a right derived from habeas cases.

[00:46:57] Speaker 04:
And the fact that it sounds in habeas means under LeBeau versus Christopher, it has to be.

[00:47:02] Speaker 02:
I'm very confused.

[00:47:04] Speaker 02:
I'm very confused, because we've got plenty of cases.

[00:47:08] Speaker 02:
The Supreme Court's got plenty of cases that say you're not asking for release from custody.

[00:47:14] Speaker 02:
Munaf was someone who said, I'm happy to be in the US custody.

[00:47:19] Speaker 02:
Please don't release me to Iraqi custody.

[00:47:24] Speaker 02:
And that sounds very similar to here.

[00:47:28] Speaker 02:
We are not, probably not happy, but they are not disputing the right of the US to detain them.

[00:47:35] Speaker 02:
What they are disputing and challenging is the capacity of the US government to release them to Salvadorian jails without any advanced notice and due process of whether they even qualify under the proclamation.

[00:47:55] Speaker 02:
That's not release.

[00:47:57] Speaker 02:
And we have said time and again, and the Supreme Court has told us, which is much more important, that's not habeas.

[00:48:04] Speaker 02:
Whether it's a rising immigration context, a war powers context, like the war in Iraq.

[00:48:13] Speaker 02:
It's not habeas, and that is addressed through the APA.

[00:48:18] Speaker 04:
Your honor, I disagree with that.

[00:48:19] Speaker 04:
I agree that Munaf is an instructive case, but I think it cuts the other way.

[00:48:23] Speaker 04:
Here's how the Supreme Court characterized it.

[00:48:26] Speaker 04:
And I believe this is how you were characterized as well.

[00:48:29] Speaker 04:
It's like, here the last thing pointed petitioners want is simple release.

[00:48:34] Speaker 04:
They essentially wanted to stay in custody.

[00:48:36] Speaker 04:
But nonetheless, I believe it was part two or part three of the Supreme Court decision in Munoz held that habeas was available.

[00:48:42] Speaker 04:
And then in part four, it held that that habeas petition failed on the merits.

[00:48:46] Speaker 04:
But the first issue presented was whether or not you could bring habeas in such a circumstance.

[00:48:50] Speaker 04:
And the answer to that was yes.

[00:48:53] Speaker 02:
And so, and then the Supreme Court held it again.

[00:48:56] Speaker 02:
I'm sorry if I'm saying it right.

[00:48:59] Speaker 02:
Right.

[00:49:02] Speaker 02:
Habeas petitions in an effort to block their transfer to Iraqi authorities, rejecting this use of habeas.

[00:49:08] Speaker 02:
They rejected it.

[00:49:09] Speaker 04:
They rejected it on the merits, but they didn't say that habeas wasn't available.

[00:49:13] Speaker 04:
And I think therosigium is a different case.

[00:49:16] Speaker 04:
That actually was a challenge to the procedures, which doesn't sound in habeas.

[00:49:19] Speaker 04:
But here, it does sound in core habeas.

[00:49:22] Speaker 04:
And let me explain a lot.

[00:49:23] Speaker 02:
No, it's not.

[00:49:23] Speaker 02:
It's a procedure.

[00:49:24] Speaker 02:
You don't have any procedure, at least as of Saturday when the TROs issued.

[00:49:29] Speaker 02:
At the time the TROs issued.

[00:49:31] Speaker 02:
I'm talking about the second one, because I guess that sort of absorbed the first one.

[00:49:36] Speaker 02:
At the time it issued, there was no procedure in place, no advance notice sufficient to allow anyone to seek habeas.

[00:49:43] Speaker 02:
And there was nothing in the proclamation or in regulations or processes, and we have to be formal regulations, but processes adopted by those implementing the proclamation to give any such process.

[00:49:58] Speaker 02:
That's the argument.

[00:50:00] Speaker 02:
That's the issue.

[00:50:01] Speaker 02:
And that was not released.

[00:50:03] Speaker 02:
That is request for injunctive and declaratory relief due to failed procedures.

[00:50:13] Speaker 02:
The Supreme Court said time and again, do not constitute, cannot be brought in habeas because you don't want release.

[00:50:22] Speaker 04:
Your honor, I disagree with that on a number of fronts.

[00:50:24] Speaker 04:
First of all, again, on page 41 of the Saturday transcript, it's very clear that the basis of the TRO on appeal here was a frontal assault on the president's determinations that various aspect, statutory preconditions of the AEA had been satisfied.

[00:50:39] Speaker 02:
OK, but if we don't read it that way, if we read it as also being grounded in these claims for a process, and that's why they came in so fast.

[00:50:49] Speaker 02:
So we get away from those issues.

[00:50:53] Speaker 02:
declaration or injunction against TRO to start with, declaratory injunctive relief against removal.

[00:51:04] Speaker 02:
Your honor, the fact that- A failure to adhere to due process by those implementing the proclamation.

[00:51:12] Speaker 04:
Your honor, I disagree for two reasons.

[00:51:14] Speaker 04:
I think first of all, their complaint still clearly includes those facial attacks on the sufficiency of the statutory preconditions as long

[00:51:22] Speaker 04:
As those are in there, those are an attack on the government's ability to exercise a scintilla of custodial authority over the bodies of plaintiffs in order to do either detain them or to remove them.

[00:51:33] Speaker 04:
And so as long as those are in the complaints, those sound in core habeas and cannot be brought here and would require transfer to another district or dismissal.

[00:51:42] Speaker 04:
But second, I think that the procedural one still challenges

[00:51:45] Speaker 04:
Fundamentally, in core habeas, it says, you may not do anything to me under the AEA until you satisfy these preconditions.

[00:51:53] Speaker 04:
You are utterly without power to do so.

[00:51:55] Speaker 04:
I mean, that is the same sort of core habeas as asserting that a conviction is wrong because procedural requirements in a trial were not followed.

[00:52:06] Speaker 02:
I don't think that's the same at all because people don't go through a trial in this country without getting the gold standard of due process.

[00:52:12] Speaker 02:
And that was not happening here.

[00:52:14] Speaker 02:
I think that's a false equation.

[00:52:17] Speaker 02:
The problem here is that they are challenging implementation of the proclamation in a way that never gave anyone a chance to say, I'm not covered.

[00:52:35] Speaker 02:
And if your argument is,

[00:52:39] Speaker 02:
We didn't have to do that.

[00:52:40] Speaker 02:
It's an intrusion on the president's war powers.

[00:52:43] Speaker 02:
The courts are paralyzed to do anything.

[00:52:45] Speaker 02:
Then that's a misreading of precedent.

[00:52:50] Speaker 02:
It's a misreading of the text of the Alien Enemies Act.

[00:52:55] Speaker 02:
And that can't be an unlawful intrusion on the president's powers.

[00:53:00] Speaker 02:
It just can't.

[00:53:02] Speaker 02:
The president has to comply with the Constitution and laws like everybody else.

[00:53:08] Speaker 04:
On that, we certainly agree, Your Honor.

[00:53:09] Speaker 04:
I think that what has occurred here is that, aside from the shifting injunction issue, is that the district court has derived a right from habeas and then used that to create a non-habeas.

[00:53:24] Speaker 02:
I don't know what you mean, derived from habeas.

[00:53:27] Speaker 04:
The pre-deprivation thing, the right that he found in his morning's order comes entirely out of habeas cases, and that's how it has to be served.

[00:53:35] Speaker 02:
Sorry, so your theory is that they don't get to challenge it until they're in the Salvadorian jail.

[00:53:41] Speaker 02:
They don't get a pre-deprivation.

[00:53:43] Speaker 02:
I don't understand the pre-deprivation.

[00:53:44] Speaker 02:
They're already in detention.

[00:53:45] Speaker 02:
So if I'm understanding you right, are you saying that they don't have a right until they're removed from the United States in US custody to challenge?

[00:53:57] Speaker 02:
This isn't an akin situation.

[00:54:01] Speaker 02:
This is nothing like that.

[00:54:04] Speaker 02:
They're challenging an immediate removal, not under the Immigration and Nationality Act, but under the AEA without process.

[00:54:17] Speaker 02:
Your theory is they're supposed to do it from the Salvadorian jail after the fact?

[00:54:21] Speaker 04:
Know your honor that it's that whatever right that there are sounded habeas much like global where the challenge was to a non title 8 removal that sounded in habeas and had to be brought as such and availability of habeas meant.

[00:54:38] Speaker 04:
that the district court was ousted of jurisdiction to hear other claims.

[00:54:42] Speaker 04:
That same logic means that the TROs issued below are invalid and should be reversed or dissolved.

[00:54:49] Speaker 02:
The Supreme Court in McNary versus Haitian Refugee Center, Reno versus Catholic Services said, we don't care about jurisdictional limits on claims that are supposed to go through ordinary statutory processes like Title VIII.

[00:55:06] Speaker 02:
when you are bringing a class-wide action for injunctive and declaratory relief about procedural failures.

[00:55:17] Speaker 02:
That would seem to fit this case.

[00:55:20] Speaker 04:
Your Honor, we disagree.

[00:55:21] Speaker 04:
I mean, I think to the extent that it's procedural, it sounds in habeas.

[00:55:25] Speaker 04:
And hence, this class does not operate properly.

[00:55:27] Speaker 02:
Not procedure.

[00:55:28] Speaker 02:
An individual can't complain about that.

[00:55:31] Speaker 02:
This is they needed to do it class-wide, because people weren't going to have the opportunity

[00:55:36] Speaker 02:
to file a suit and bring a procedural one.

[00:55:39] Speaker 02:
On the individual determination of whether someone's a member of Trender or WAGWA, that's a separate question.

[00:55:45] Speaker 02:
But for injunctive and declaratory relief that does not seek release from confinement, the Supreme Court has said time and again, that's not habeas.

[00:55:52] Speaker 04:
Your Honor, I disagree.

[00:55:53] Speaker 04:
And had they brought this case in district court in Texas, they could have raised it as both APA and habeas.

[00:55:59] Speaker 04:
They instead elected to choose a different court.

[00:56:01] Speaker 04:
And that meant that came with all the jurisdictional limitations of that particular court.

[00:56:06] Speaker 02:
It's a venue issue for habeas, not jurisdictional.

[00:56:10] Speaker 02:
That doesn't affect the jurisdiction of the district court.

[00:56:12] Speaker 02:
That's a venue issue, whether you're suing the custodian.

[00:56:18] Speaker 04:
Your Honor, it's not subject matter jurisdiction, but it does go to the authority of the court.

[00:56:21] Speaker 04:
And the Rumsfeld versus Padilla, the Supreme Court,

[00:56:25] Speaker 04:
did say it was jurisdictional, not in the subject matter jurisdiction, but it's not just a mere venue rule.

[00:56:30] Speaker 04:
It cuts to the core authority of the court to grant habeas relief.

[00:56:33] Speaker 02:
Well, as long as it can be served with the process is the test, right?

[00:56:38] Speaker 02:
As long as the defendants can be served with process, then we've got jurisdiction.

[00:56:42] Speaker 02:
It's just a venue argument.

[00:56:43] Speaker 02:
An important one.

[00:56:44] Speaker 02:
I'm not diminishing that at all.

[00:56:47] Speaker 02:
It's frequently enforced, the venue requirement that you sue.

[00:56:53] Speaker 02:
the right custodian, and that custodian is, by definition, the district where the person's detained.

[00:57:00] Speaker 04:
Your Honor, we certainly agree that it's case dispositive.

[00:57:03] Speaker 04:
I think it's not venue may undersell how important it is.

[00:57:07] Speaker 04:
Supreme Court has characterized it as jurisdictional in the sense that it goes outright to the authority of the court and not merely a sort of steering things to where they might be convenient to be heard.

[00:57:19] Speaker 04:
It's something more fundamental than that.

[00:57:21] Speaker 04:
But in any event, that probably doesn't matter, because I think we're agreeing that if venue is improper for habeas, the court is just simply out of authority to do it.

[00:57:40] Speaker 03:
All right.

[00:57:41] Speaker 03:
We'll give you a couple minutes to reply.

[00:57:43] Speaker 03:
Thank you, Your Honors.

[00:57:44] Speaker 03:
Mr. Miller.

[00:57:51] Speaker 05:
Thank you.

[00:58:04] Speaker 05:
Good afternoon.

[00:58:04] Speaker 05:
Your honors.

[00:58:05] Speaker 05:
Legal learn from the CLU for plaintiffs.

[00:58:08] Speaker 05:
Time permitting.

[00:58:09] Speaker 05:
I

[00:58:15] Speaker 05:
jurisdiction to review whether the statutory predicates to the Alien Enemies Act have been met and why they haven't been here.

[00:58:22] Speaker 05:
But I want to put that aside for the moment and sort of jump into the conversation you've been having with the government.

[00:58:28] Speaker 05:
First, I just want to put one thing to bed.

[00:58:31] Speaker 05:
The district court has not said anything yet about whether he intends to try and bring people back who were already sent to El Salvador.

[00:58:40] Speaker 05:
The district court is very concerned, understandably, that his order was violated.

[00:58:45] Speaker 05:
But he is trying to get to the bottom of those facts.

[00:58:47] Speaker 05:
He has not made a determination of whether his order was violated, much less what he would do as a remedy, whether he would try and order the individuals back.

[00:58:56] Speaker 05:
So I don't think that issue is before this court.

[00:58:58] Speaker 05:
And I think that's a red herring.

[00:59:01] Speaker 05:
The second thing is that I think the government now, and we in the government have sort of joined issue.

[00:59:08] Speaker 05:
At a minimum, it seems like the government is grudgingly admitting that after Ludecki and footnote 17 in particular, that there must be ability to contest whether you fall within the act.

[00:59:22] Speaker 05:
And so now I think it's a question of how that's going to go about- Fall within the proclamation, not the act.

[00:59:27] Speaker 05:
I'm sorry.

[00:59:28] Speaker 02:
Within the proclamation.

[00:59:29] Speaker 05:
Yes, within the proclamation.

[00:59:32] Speaker 05:
And so the district court has said very clearly he wants to figure out how that would work.

[00:59:40] Speaker 05:
He's asked both of us, neither us or the government had a clear answer for him at the moment when he asked it, the hearing.

[00:59:48] Speaker 05:
He intends to get to the bottom of it.

[00:59:50] Speaker 05:
But I think what it means is that even if this TRO was appealable, and we don't think it is, but even if it was, I think it's the easy ground to affirm the TRO is that there was no process.

[01:00:02] Speaker 05:
And I want to be very clear about two points.

[01:00:05] Speaker 05:
One is that the process, to the extent the government says you can have process, that's illusory.

[01:00:12] Speaker 05:
People were designated TDA without any advance notice rushed to Plains.

[01:00:18] Speaker 05:
We will put into the district court, the piece of paper that individuals are getting that specifically says you are not entitled to review.

[01:00:27] Speaker 05:
So there is a lot of factual development left to do in the district court.

[01:00:31] Speaker 05:
Judge Boasberg is working extremely hard.

[01:00:34] Speaker 05:
and extremely quickly.

[01:00:36] Speaker 05:
But I think this court would want that factual record.

[01:00:38] Speaker 05:
I think that's one of the reasons that TRO is not appealable.

[01:00:41] Speaker 05:
This is not.

[01:00:43] Speaker 05:
Yes.

[01:00:43] Speaker 06:
Could you have done everything in a Texas district court that you did in this district court?

[01:00:52] Speaker 05:
Perhaps, Your Honor, but I don't think it was necessary.

[01:00:55] Speaker 05:
There's absolutely no question now that the law is that this kind of challenge where you're not seeking release doesn't have to be brought in habeas.

[01:01:03] Speaker 05:
It can be brought by APA.

[01:01:05] Speaker 05:
It could be brought in habeas, but it doesn't need to be.

[01:01:08] Speaker 06:
Well, so I want to get to that in a minute.

[01:01:12] Speaker 06:
Um, but I think it's I think the common ground that you've just sort of asserted the government you said kind of have has begrudgingly given it's it's really significant common ground that I think has been lost in some of the briefing and some of the transcripts.

[01:01:31] Speaker 06:
Uh, no, you could have filed the exact same complaint

[01:01:40] Speaker 06:
that you filed here in Texas District Court.

[01:01:44] Speaker 06:
The government is not contesting that each plaintiff could have gone before an Article III judge and said, I am not a member of Trinidad y Aragua, so I'm not covered by the proclamation, so I can't be removed.

[01:02:05] Speaker 06:
could have done that.

[01:02:06] Speaker 06:
I think you would both agree that the plaintiff could have done that with the habeas petition.

[01:02:11] Speaker 06:
I know you push back and say, it doesn't have to be a habeas petition.

[01:02:14] Speaker 06:
But I think you would agree that everything I just said is true and that it could have been done through a habeas petition.

[01:02:20] Speaker 05:
Is that right?

[01:02:21] Speaker 05:
Well, Your Honor, I mean, I don't think it's insignificant that it didn't have to be by habeas and that we have the plaintiffs.

[01:02:27] Speaker 05:
We can choose our venue.

[01:02:28] Speaker 05:
But I want to address your question specifically.

[01:02:31] Speaker 05:
We could have filed a class, perhaps a class habeas, if that's what you mean, but we certainly weren't.

[01:02:37] Speaker 05:
looking just to get our five individuals from being sent to a Salvadoran prison.

[01:02:42] Speaker 05:
So this would have had to be a class.

[01:02:44] Speaker 05:
If the government is suggesting that we could have gone in there for every individual, absolutely not.

[01:02:49] Speaker 05:
We did not know who had been designated.

[01:02:51] Speaker 05:
This has all been done in secret.

[01:02:53] Speaker 05:
The president signed it.

[01:02:56] Speaker 06:
I think you're going beyond what my question was.

[01:02:58] Speaker 05:
OK, I apologize.

[01:02:58] Speaker 06:
I'm not sure the government would agree that you can certify a class in habeas.

[01:03:02] Speaker 05:
Exactly.

[01:03:02] Speaker 06:
I would agree with that either.

[01:03:04] Speaker 06:
Or it's more of an open question that we would need to look into.

[01:03:07] Speaker 06:
But on Saturday, early afternoon, you asked the district court to enjoin the removal of the five main plaintiffs.

[01:03:18] Speaker 06:
The district court did.

[01:03:19] Speaker 06:
A Southern District of Texas court could have done that as well, right?

[01:03:24] Speaker 05:
So yeah, I just want to factually, but we filed it at two in the morning, whether it's Friday night or Saturday morning, the district court in the early morning enjoying the five named plaintiffs, the class class papers had already been filed with the complaint at two in the morning, both complain for declaratory injunctive relief and habeas.

[01:03:45] Speaker 05:
with class papers seeking a TRO for the class.

[01:03:49] Speaker 05:
The district court then held a hearing at 5 p.m.

[01:03:51] Speaker 05:
to decide whether his TRO was going to apply to the whole class.

[01:03:55] Speaker 05:
Absent a class TRO, we would have had far more people sitting in a Salvadoran prison.

[01:04:06] Speaker 06:
My question for now is not about what the district court did, it's just about

[01:04:09] Speaker 06:
whether everything the district court did which you just described and I I was off by a few few hours.

[01:04:15] Speaker 06:
But it was you know Saturday right.

[01:04:18] Speaker 06:
It was a long Saturday.

[01:04:20] Speaker 06:
Everything that happened.

[01:04:22] Speaker 06:
The district court did a southern district of Texas district court could have done.

[01:04:29] Speaker 05:
Assuming they would do it as a class.

[01:04:32] Speaker 05:
Yes.

[01:04:32] Speaker 06:
So I think that nicely tees up where the real dispute is, because you're not saying you couldn't have done all this in Texas.

[01:04:42] Speaker 06:
And the government is saying, A, this has to be habeas, and habeas has to be in the district where the detainee is detained.

[01:04:52] Speaker 06:
And that would be Texas.

[01:04:54] Speaker 06:
So I know you disagree with both of those things, but I think

[01:04:59] Speaker 06:
the government, I think there's some common ground.

[01:05:03] Speaker 05:
There's common ground now that there has to be process, although I still see the government accepting it grudgingly because this whole pre deprivation thing, we're talking about people being sent to El Salvador, the worst, one of the worst prisons

[01:05:19] Speaker 05:
in the world, in comunicado, they're essentially being disappeared.

[01:05:23] Speaker 05:
The president of El Salvador has now said, maybe they're going to spend the rest of their lives there.

[01:05:28] Speaker 05:
The government has provided zero ability to bring habeasers.

[01:05:32] Speaker 05:
It would have had to have been done by a class, and to the extent the government's saying, going forward, we'll give you process.

[01:05:37] Speaker 05:
I have not heard one word about them giving us advance notice.

[01:05:41] Speaker 06:
At this point, everyone who's detained

[01:05:45] Speaker 06:
can bring, would you say that at this point, everyone who's detained can bring a habeas petition?

[01:05:52] Speaker 05:
Because of the TRO by Judge Boesberg only.

[01:05:56] Speaker 05:
And that is even assuming, and I don't think this is true, that everyone has been clearly designated, that we know exactly who the government thinks falls under the proclamation.

[01:06:06] Speaker 05:
And therefore, if they didn't file a habeas right away, they could be put on a plane.

[01:06:11] Speaker 05:
And so I certainly don't think this is the way it would go about with individual habeas.

[01:06:17] Speaker 01:
If the TRO were lifted, there wouldn't be a meaningful way to bring habeas.

[01:06:22] Speaker 05:
I think the government is going to put people back on a plane immediately, just as they did.

[01:06:25] Speaker 05:
The whole thing has played out in secret.

[01:06:28] Speaker 05:
The president is supposed to make a public proclamation.

[01:06:31] Speaker 05:
He signed it on March 14th.

[01:06:33] Speaker 05:
It wasn't published till the afternoon of March 15th.

[01:06:35] Speaker 05:
People were already being lined up to be brought to planes.

[01:06:39] Speaker 05:
So I think we're dealing with something that is illusory.

[01:06:43] Speaker 05:
And that's even if we accept that habeas can be brought.

[01:06:46] Speaker 06:
But I just if I mean, we know it can be brought because you brought it.

[01:06:49] Speaker 05:
You filed a habeas.

[01:06:51] Speaker 05:
It could be brought by habeas, but it doesn't have to be.

[01:06:54] Speaker 05:
And I think we are.

[01:06:54] Speaker 06:
Let's go to that, whether it has to be.

[01:06:56] Speaker 05:
Right.

[01:06:57] Speaker 06:
And I think perhaps reasonable people can disagree about this.

[01:07:01] Speaker 06:
I think it's hard to get around Labue v. Christopher.

[01:07:04] Speaker 06:
The district court addressed it today.

[01:07:06] Speaker 06:
I'm sorry.

[01:07:07] Speaker 06:
Hard to get.

[01:07:07] Speaker 06:
Labue, I may be pronouncing it wrong.

[01:07:09] Speaker 06:
Yeah.

[01:07:09] Speaker 06:
So that I just read from there.

[01:07:11] Speaker 06:
Yeah, sure.

[01:07:11] Speaker 06:
I'm sorry.

[01:07:12] Speaker 06:
You're on.

[01:07:13] Speaker 06:
It says, of course, the plaintiff's focus is not explicitly on their present custody.

[01:07:17] Speaker 06:
That's very similar to this case where you're saying, you know, we're not asking to be let out of detention.

[01:07:21] Speaker 06:
We're just saying don't transfer us to it to one of these countries.

[01:07:26] Speaker 06:
Other countries says, of course, the plaintiff's focus is not explicitly on their present custom.

[01:07:31] Speaker 06:
They they claim the nature of the relief requested is different here since they have not formally sought a release from custody as in the habeas action, but

[01:07:41] Speaker 06:
report goes on, we have reject precisely such efforts to manipulate the preclusive effect of habeas jurisdiction.

[01:07:52] Speaker 06:
So I don't, I guess I think that's a tough precedent for you where Labue was, as I understand it, was about to be extradited to Canada, didn't want to be extradited to Canada, could have filed in Illinois where he was detained, actually did file habeas petition there, filed in DDC,

[01:08:11] Speaker 06:
And our court said, no, you can't bring this suit in DDC.

[01:08:16] Speaker 06:
You have to bring a habeas suit in Illinois to challenge not your detent, your transfer to Canada.

[01:08:23] Speaker 05:
Yeah, Your Honor, a few things about the view that I want to sort of broaden it.

[01:08:27] Speaker 05:
Labue is an extradition case.

[01:08:30] Speaker 05:
The extradition has, for 225 years, had its own case law.

[01:08:34] Speaker 05:
But I think the key in Labue that the court understood was that they were, in fact, seeking release through the other habeas.

[01:08:41] Speaker 05:
And so it seemed a little bit like they were trying to circumvent the habeas.

[01:08:45] Speaker 05:
I think that's why it's different.

[01:08:46] Speaker 05:
But the case law is voluminous, voluminous, that you don't have to bring a habeas unless it's a core habeas challenge to release.

[01:08:54] Speaker 05:
And I just want to touch on Thuris Singham for a second.

[01:08:57] Speaker 05:
The judge brought up the government walked into the Supreme Court and said.

[01:09:02] Speaker 05:
The only time habeas can be used is when you're seeking release from detention.

[01:09:07] Speaker 05:
You can't challenge your removal.

[01:09:08] Speaker 05:
That was ultimately what the Supreme Court accepted.

[01:09:11] Speaker 05:
That was the holding.

[01:09:12] Speaker 05:
That's on top of case after case after case saying, if you're not seeking release, and I want to be 100% clear, no class member is seeking release.

[01:09:22] Speaker 05:
Judge Boasberg was absolutely clear that his order will not stop anybody from being prosecuted

[01:09:28] Speaker 06:
anybody from being detained allowing anybody to be released allowing anybody there no and I don't know the answer to this question I tried to ask the government yeah maybe they didn't know yet you may not know either and I suspect you haven't talked individually with every one of your class members but you know if anyone is currently being detained under the alien enemies act proclamation and not being detained under any other legal

[01:09:56] Speaker 05:
I don't know the answer to that.

[01:09:57] Speaker 05:
I suspect that most people, maybe all of them are being detained on the immigration laws because they were in proceedings.

[01:10:04] Speaker 05:
I mean, the government is using the act to try and short circuit the immigration proceedings.

[01:10:08] Speaker 05:
And so I think what they have done is pull people out of proceedings and put them on the plane to El Salvador.

[01:10:13] Speaker 06:
So I see your original complaint mentioned apprehension and removal and you wanted to enjoin both.

[01:10:19] Speaker 06:
I understand the district court did not take you up, did not accept your invitation to enjoin

[01:10:24] Speaker 06:
But that does suggest that you were worried there would be some class members currently at large in the country who might be apprehended under this AEA authority.

[01:10:38] Speaker 05:
So, Your Honor, I think to the extent that that language is in there, it may be an artful.

[01:10:43] Speaker 05:
But we may were 100% clear with Judge Boasberg, and he has been 100% clear.

[01:10:48] Speaker 05:
We are absolutely not trying to get anybody out of detention, stop anybody's removal, stop anybody's prosecution.

[01:10:55] Speaker 05:
And I think that goes to the larger point.

[01:10:57] Speaker 05:
This is a very specific statute, a wartime statute dealing with a very specific problem.

[01:11:04] Speaker 05:
It does not bar any other authority

[01:11:06] Speaker 05:
prosecuting or removing these individuals, much less have to do with anything about stopping ships in China.

[01:11:13] Speaker 06:
Can I ask you about Munoz V. Garan?

[01:11:16] Speaker 06:
Because I do understand how you can read it to the government here, and you can read it to help you here.

[01:11:22] Speaker 06:
I think the government is saying the first thing the Supreme Court held there was there is habeas jurisdiction.

[01:11:30] Speaker 06:
This is someone who wasn't objecting to being held, but was objecting to being transferred.

[01:11:34] Speaker 06:
U.S.

[01:11:35] Speaker 06:
custody in Iraq, to the Iraqi government in Iraq, and said, don't transmit to the Iraqi government.

[01:11:40] Speaker 06:
And the first thing the Supreme Court held was that there is habeas jurisdiction for that, because he was an American citizen, and then said, in your habeas cause of action, you lose on the merits, because we're going to respect the Iraqi, Iraq's, kind of what they said is, Iraq's exclusive jurisdiction to punish offenses against the laws committed within its borders.

[01:12:05] Speaker 06:
So we have habeas jurisdiction, and habeas is your cause of action.

[01:12:10] Speaker 06:
But with that cause of action, you lose on the merits because of Iraq's exclusive jurisdiction to punish offenses against its laws committed within its borders.

[01:12:18] Speaker 06:
And if that's how it's read, it seems like Munaf is a pretty good precedent for the government saying, look, if you want to challenge your transfer from US custody to another nation's custody, your cause of action is habeas.

[01:12:31] Speaker 05:
Was I think two things about that your honor one is when off said you could do habeas it didn't say you must habeas and I think that's the difference in these core habeas cases whether you could bring it in habeas you often can bring it in habeas whether.

[01:12:44] Speaker 05:
but then whether you must bring it in habeas.

[01:12:47] Speaker 05:
So we understand the Chief Justice to be saying, in that case, I think it was fairly clear, the last thing you want is simple release.

[01:12:55] Speaker 05:
And so I think that's why Manaf doesn't answer the question.

[01:12:58] Speaker 05:
And Thoris Singham, of course, is the most recent precedent from the Supreme Court.

[01:13:03] Speaker 06:
On the not having to bring it in as habeas, the district court understands your cause of action to be an APA cause of action.

[01:13:10] Speaker 06:
I think the government says,

[01:13:12] Speaker 06:
This is a presidential proclamation.

[01:13:15] Speaker 06:
It's different than an agency proclamation.

[01:13:18] Speaker 06:
I think last time I was on a panel and you were the attorney, it was an agency proclamation.

[01:13:23] Speaker 06:
And we see every day in this court challenges to agency order under the APA.

[01:13:29] Speaker 06:
But if there's a challenge to a presidential order, the APA is not typically the vehicle for that.

[01:13:36] Speaker 06:
And Franklin v. Massachusetts says, at least as a general matter, it can't.

[01:13:42] Speaker 06:
I think what you'll say is, at least on the individualized determinations of whether the class members are part of Trende Aragwa, you're gonna use the APA to challenge decisions that are being made by lower level officials.

[01:13:58] Speaker 06:
To me that, if true, just indicates that there's not the type of commonality for a class that you need in order to certify.

[01:14:08] Speaker 05:
Right, so a couple of things.

[01:14:10] Speaker 05:
One is that we cited multiple cases that say even where there's a presidential proclamation, you can challenge its implementation by the agency.

[01:14:17] Speaker 05:
But to your common question, our common questions are obviously first, whether the AEA can be used at all against a non-foreign government.

[01:14:26] Speaker 05:
But the second question is, are they entitled to process?

[01:14:30] Speaker 05:
So at some point, if there's individual determinations about whether you fall within the proclamation, those obviously will not have, will be all common.

[01:14:39] Speaker 05:
But the initial question that we're fighting with the government about, and they're still, I think, grudgingly only conceding it, is whether they're entitled to some process.

[01:14:47] Speaker 05:
They clearly have not been given process.

[01:14:50] Speaker 05:
But for this action, I don't think the government would be conceding what it had to concede.

[01:14:54] Speaker 06:
What's the status of the habeas petitions in Texas, the ones that have been filed on their ongoing?

[01:14:59] Speaker 05:
Yeah, that's a good question, Your Honor.

[01:15:01] Speaker 05:
We've been trying at council table to find out a little bit about where they are.

[01:15:05] Speaker 05:
I think they're generally on hold.

[01:15:08] Speaker 05:
There were a few habeas petitions.

[01:15:10] Speaker 05:
Very few people happened to sort of guess that maybe their person is going to be designated.

[01:15:15] Speaker 05:
But for the vast majority of people, they haven't been designated.

[01:15:19] Speaker 05:
I want to also clear up one point of confusion.

[01:15:21] Speaker 05:
The government keeps reading from the transcript at page 41 that the judge's initial TRO.

[01:15:26] Speaker 05:
I mean, the judge has obviously made clear this morning what his TRO

[01:15:29] Speaker 05:
is principally based on.

[01:15:31] Speaker 05:
But the judge's hearing transcript on Saturday night was very clear that he was also talking about process.

[01:15:38] Speaker 05:
And that's at pages 29 and 30, starting at line 25, Your Honor, where he was very specifically talking about process.

[01:15:47] Speaker 05:
And footnote 17 in Ludekia said, you have to be able to contest whether you fall within the proclamation.

[01:15:55] Speaker 05:
No, I'm sorry.

[01:15:56] Speaker 06:
I want to ask about, I guess this goes

[01:15:59] Speaker 06:
some degree, I think it goes to the irreparable harm the government asserts.

[01:16:03] Speaker 06:
Right.

[01:16:06] Speaker 06:
And some degree to maybe larger issues.

[01:16:11] Speaker 06:
And so the question I'm going to ask you is going to sound like

[01:16:15] Speaker 06:
I have some skepticism about what the district court did on Saturday.

[01:16:19] Speaker 06:
I want to preface that by saying, we've had a week to look at this issue, and it's been hard.

[01:16:26] Speaker 06:
And the district court only had a day.

[01:16:28] Speaker 06:
And about a decade ago, one member of this court, long before I was on it, talked about district judges having to deal with Guantanamo issues.

[01:16:38] Speaker 06:
So they were difficult and intricate and complicated and novel.

[01:16:42] Speaker 06:
And he said, even when this court might disagree with the district court decision, that disagreement is with respect for the dedicated work of the district court in these matters.

[01:16:52] Speaker 06:
That said, I'm wondering if you can point me to a district court TRO or injunction that survived appeal that stopped an ongoing partially overseas national security operation.

[01:17:13] Speaker 06:
in the way that this, at the time at least, did order planes to take foreigners from international waters to the United States.

[01:17:24] Speaker 05:
Your honor, so to start with the order about him bringing people back, potentially bringing people back is not for you.

[01:17:32] Speaker 05:
And I think there's a lot of factual development.

[01:17:34] Speaker 05:
And I don't know how much this court is aware, but there have been

[01:17:37] Speaker 05:
emergency proceedings almost every day.

[01:17:39] Speaker 05:
And I think the district court has not been pleased with how the lack of forthcoming.

[01:17:47] Speaker 05:
Yeah.

[01:17:48] Speaker 06:
And so with that, there's this declaration by, it says that he's been at the state department since 1971, 54 years ago.

[01:17:59] Speaker 06:
My math is right.

[01:18:00] Speaker 06:
It's quite, that's quite a lot of experience in the state department.

[01:18:03] Speaker 06:
And now he's a career

[01:18:05] Speaker 06:
State Department official, head of the Western Hemisphere Affairs Bureau.

[01:18:11] Speaker 06:
And he says that this TRO is, quote, harming the foreign policy of the United States.

[01:18:17] Speaker 06:
It comes after, quote, intensive and delicate negotiations with El Salvador and the Maduro regime risked the possibility that those governments will change their minds.

[01:18:26] Speaker 06:
It gives them leverage for renegotiation.

[01:18:29] Speaker 06:
And he warns, quote, these harms could arise even in the short term.

[01:18:35] Speaker 06:
So those concerns are ongoing.

[01:18:39] Speaker 06:
I understand that there are no longer planes in the air that are being ordered to return to the United States with foreigners that the executive branch doesn't think should be in the United States.

[01:18:51] Speaker 06:
I guess just maybe from a 10,000 foot perspective, I thought about when Justice Douglas enjoined the bombing of Cambodia, but it didn't go very well.

[01:19:00] Speaker 06:
The Supreme Court reversed him in about six hours

[01:19:05] Speaker 06:
I found a couple other injunctions that are somewhat analogous, but they didn't survive appellate review either.

[01:19:10] Speaker 06:
Can you standing here give us an example of a district court injunction that enjoined a national security operation partially overseas that survived appellate review?

[01:19:21] Speaker 05:
Well, Your Honor, I want to push back on the overseas part because I don't think the order to return the planes is before you.

[01:19:28] Speaker 05:
So what we're talking about is not

[01:19:30] Speaker 05:
sending people, and that is straight removal.

[01:19:34] Speaker 05:
Okay, let me address that.

[01:19:37] Speaker 06:
I will not stop you from having time to address that, but can you just tell me what's an example of a district court enjoining a national security operation with foreign relations implications?

[01:19:53] Speaker 05:
I think we can at least agree on that.

[01:19:55] Speaker 05:
So I think, for one thing, I would cite Umeda Dean.

[01:19:58] Speaker 05:
of the Supreme Court saying there has to be habeas.

[01:20:00] Speaker 05:
I mean, the government could not have argued more strenuously that the government, that the court should not interfere and say that they're entitled to habeas while they're at Guantanamo.

[01:20:08] Speaker 05:
But to your point about the national security, I want to return to something that Judge Millett said.

[01:20:13] Speaker 05:
The government cannot take the position that it's an interference by this court on national security grounds to give people process.

[01:20:22] Speaker 05:
The Supreme Court was 100% clear in Ludecki and footnote 17 in multiple cases

[01:20:27] Speaker 05:
saying process.

[01:20:29] Speaker 05:
So for the government to say, you're interfering by giving what just Frankfurt has said in Ludecki was necessary as a matter of the act.

[01:20:36] Speaker 05:
And I don't even think he needed due process.

[01:20:39] Speaker 05:
He was ruling as a matter of the act.

[01:20:41] Speaker 05:
You have to be able to contest.

[01:20:43] Speaker 05:
The implications of not giving people a chance to contest it are extraordinary.

[01:20:48] Speaker 05:
I mean, every religious and ethnic group in this country has at some point been tagged as associated with a criminal organization.

[01:20:57] Speaker 05:
People can just be picked up and sent.

[01:20:59] Speaker 06:
Mr. Glenn, I mean, I just have to stop you.

[01:21:01] Speaker 06:
You're not getting an argument from this bench so far today against the idea that every single member of this class can have an individualized habeas determination in front of an Article III judge to say, I'm innocent.

[01:21:14] Speaker 06:
And I think I take your point about Boumediene and your point about Ledecky, but I think it's hard to answer some of our questions without mentioning cases that are habeas cases.

[01:21:24] Speaker 06:
Boumediene was habeas.

[01:21:25] Speaker 06:
Ledecky was habeas.

[01:21:27] Speaker 06:
It seems like in order to answer one question in a way that is kind of satisfactory for your position.

[01:21:32] Speaker 05:
That's because they were asking for release.

[01:21:35] Speaker 06:
But you are asking to stop a transfer.

[01:21:38] Speaker 06:
And that is something that habeas has been used for repeatedly.

[01:21:42] Speaker 05:
It could be used, but it doesn't have to be used.

[01:21:45] Speaker 05:
But I think, Your Honor, I want to return maybe to the very beginning of this appeal.

[01:21:51] Speaker 05:
We don't think there's jurisdiction over a TRO.

[01:21:53] Speaker 05:
I mean, you just had the decision in Dellinger.

[01:21:55] Speaker 05:
That's a very, very rare thing for this court to find that a TRO is appealable.

[01:22:01] Speaker 05:
And there are two preconditions.

[01:22:04] Speaker 05:
One is that it's a mandatory injunction not preserving the status quo.

[01:22:07] Speaker 05:
Judge Boasberg was explicit that he's simply preserving the status quo.

[01:22:11] Speaker 05:
And the other thing is that the harm can't be undone.

[01:22:14] Speaker 05:
You cited

[01:22:15] Speaker 05:
Mr. Kozak's affidavit.

[01:22:16] Speaker 05:
That's the last sentence in a two-page affidavit, which says, there would be harm, but then he switches to could when he's talking about the short term.

[01:22:26] Speaker 05:
And all we're saying is that- Do you think that we, as judges, don't know everything that the State Department knows?

[01:22:33] Speaker 05:
Well, I think there's a reason why he switched from would to could in that sentence when he was talking about the short term.

[01:22:38] Speaker 05:
We're here asking that Judge Bosworth be allowed to do his work.

[01:22:42] Speaker 05:
And I think counsel for the government

[01:22:44] Speaker 05:
questions to this panel by saying I don't really know.

[01:22:48] Speaker 05:
There's not a factual record yet.

[01:22:50] Speaker 06:
How do you just on the question of whether this TRO is the type of normal TRO that can't be appealed or is the type of unusual TRO that can be appealed?

[01:23:00] Speaker 06:
We have this Adams V Vance case from 1978.

[01:23:03] Speaker 06:
It says that you can appeal that TRO, and it called it an intrusion on executive discretion in the field of foreign policy.

[01:23:11] Speaker 06:
I mean, I know you maybe don't think that's what's going on here, but the government argues that's what's going on here.

[01:23:17] Speaker 06:
So it seems like if you lose on the sort of merits of this argument, you should also lose on the is it appealable.

[01:23:25] Speaker 05:
Well, I think, Your Honor, that Adams was very different because it was a mandatory junction telling the secretary of state what to do.

[01:23:32] Speaker 05:
And this is very different.

[01:23:33] Speaker 05:
it's preserving the status quo and there was also a fuller affidavit.

[01:23:37] Speaker 06:
I understand the plane's in on the air now, but it was not preserving the status quo when the planes were ordered to be turned around.

[01:23:43] Speaker 05:
Well, Your Honor, again, I'm not sure I have much more to say on that other than that is about whether

[01:23:50] Speaker 05:
district court's order, a federal judge's order was violated, but he still has not made any determination so it is not before you.

[01:23:58] Speaker 05:
In saying that keep these people on the ground, don't let them be removed under the Alien Enemies Act, this is an unprecedented move to use the Alien Enemies Act for only the fourth time in our country's history without a declared war.

[01:24:12] Speaker 05:
He is saying preserve the status quo.

[01:24:14] Speaker 05:
until we can find all the facts.

[01:24:16] Speaker 05:
And I think what we're going to show in the district court is that many, if not most, of the people removed had no connection to the gang, that the gang does not actually have a formal structure with members.

[01:24:28] Speaker 05:
We're going to put in evidence about what happens in a Salvadoran prison, that you could remain there for the rest of your life.

[01:24:34] Speaker 05:
We're going to put in evidence, hopefully, about what the timing was and who signed it.

[01:24:39] Speaker 05:
President Trump has introduced confusion about now whether he actually

[01:24:43] Speaker 05:
even signed the proclamation.

[01:24:44] Speaker 05:
So all we're saying is that Judge Boasberg is working very hard.

[01:24:49] Speaker 06:
You can finish that sentence.

[01:24:50] Speaker 06:
No, I was just saying he's working very hard and that he has had to move very fast.

[01:24:55] Speaker 05:
And I think we're going to move on a preliminary injunction very quickly.

[01:24:58] Speaker 05:
And I think for this court to sanction anything about what the government's doing or even to say,

[01:25:04] Speaker 05:
Judge Boasberg shouldn't have time to figure out what the process is so it's not an illusory ability to contest.

[01:25:11] Speaker 05:
Without a factual record, I think that is probably short-circuiting the way the system should work.

[01:25:17] Speaker 05:
I mean, we're really talking about something extraordinary to name a gang rather than a foreign country.

[01:25:22] Speaker 05:
This was a wartime measure meant for war.

[01:25:25] Speaker 06:
In terms of irreparable harm to your clients, in terms of El Salvador prison that you just mentioned, all the things that you've just

[01:25:35] Speaker 06:
that you just articulated, what's your response to the government's argument?

[01:25:43] Speaker 06:
You can maybe do all that, but you just got to do it in the right court, and the right court is in Texas, not here.

[01:25:51] Speaker 05:
Yeah, Your Honor, I just want to answer that, but I just want to make one other point.

[01:25:55] Speaker 05:
The government seemed to be suggesting that this was about pre-deprivation, as if

[01:26:00] Speaker 05:
There wouldn't be harm if they were in a Salvadoran prison for a few days, but I don't hear the government saying if you win that habeas, we'll bring you back from the Salvadoran prison.

[01:26:08] Speaker 05:
So it's a little bit of, you know.

[01:26:13] Speaker 05:
The question, I'm not sure I have more to say other than there is case after case starting with the Supreme Court's case.

[01:26:19] Speaker 05:
decision in Pryzer in the 1970s, through Thoris Singham saying, you do not need to bring a case in habeas unless it's a core habeas, meaning you are seeking release from detention.

[01:26:32] Speaker 05:
And Thoris Singham was as strong as you can be on that.

[01:26:35] Speaker 05:
That was a case that I argued, and it was unfortunate because we were asking the habeas be expanded.

[01:26:40] Speaker 05:
But that's where it's ended up.

[01:26:43] Speaker 05:
And that just builds on multiple cases from this court

[01:26:46] Speaker 05:
And from the district court saying there's a difference between whether you have to bring it in habeas and whether you could bring it in habeas.

[01:26:53] Speaker 05:
But at a minimum, I think Judge Boasberg is going to try and figure that out and decide what process.

[01:26:58] Speaker 05:
Because if the TRO was lifted now, as Judge Millett pointed out, our people are on a plane.

[01:27:03] Speaker 05:
They're just on a plane.

[01:27:05] Speaker 05:
And so I think Judge Boasberg has done a good job of saying, here's an easy ground to say, assuming it's appealable,

[01:27:11] Speaker 05:
Here's an easy ground to affirm the TRO.

[01:27:14] Speaker 06:
Why wouldn't, five minutes after the TRO's lifted, why wouldn't your next move be to file a habeas petition in Raymondsville, Texas, where they're being detained?

[01:27:23] Speaker 05:
A class action?

[01:27:24] Speaker 06:
Well, we don't know that... Your five-name plaintiff?

[01:27:27] Speaker 05:
Well...

[01:27:28] Speaker 05:
I mean, to begin with, we're looking not to just have our five named plaintiffs not end up in a solid or a habeas class action as possible.

[01:27:34] Speaker 06:
You could file a habeas class action.

[01:27:36] Speaker 05:
Well, I want to also make this point.

[01:27:37] Speaker 05:
The government is doing everything in secret.

[01:27:39] Speaker 05:
We have no idea if everyone's in Texas.

[01:27:41] Speaker 05:
So all of a sudden we see a plane leaving from Arizona and they say, well, you filed it in Texas.

[01:27:46] Speaker 05:
So I don't know if the government's asking us to file in every single district in the country or whether they're going to specifically tell us

[01:27:52] Speaker 05:
where people are being designated and give us time to do it.

[01:27:56] Speaker 06:
I mean, maybe, but the strangest place of all to file would be in Washington, D.C., where there's likely not a single person detained under the AEA.

[01:28:04] Speaker 05:
Well, the people are being, I mean, just as a factual point, but I don't want to dwell on it.

[01:28:09] Speaker 05:
People are being moved from every part of the country.

[01:28:11] Speaker 05:
So we actually don't know whether people were originally in D.C.

[01:28:14] Speaker 05:
because the government's not saying it.

[01:28:15] Speaker 05:
We know people.

[01:28:15] Speaker 06:
The detention center in Washington.

[01:28:17] Speaker 05:
Well, we know either could be in the surrounding areas.

[01:28:19] Speaker 05:
But I think the proclamation

[01:28:21] Speaker 05:
is coming out of here, agency heads who are enforcing it are out of here.

[01:28:26] Speaker 05:
And I think this is a fairly standard place to bring it.

[01:28:28] Speaker 05:
But unless we can't even begin to figure out where to file all our habeas, even assuming a class action habeas, if the government's not going to tell us who has been designated in every district.

[01:28:39] Speaker 06:
Do you know where the five plaintiffs are held?

[01:28:43] Speaker 06:
the five named plaintiffs are in Texas now they came from all over.

[01:28:46] Speaker 06:
I would think they could file habeas petition in Texas and you could try to use those five named plaintiffs to represent a nationwide class and I'm not saying you would get the class certified or you wouldn't get the class certified but at least the court making that decision would have had would be the right venue for the five named classmen.

[01:29:06] Speaker 05:
Yeah I mean your honor

[01:29:08] Speaker 05:
To begin with, once we're doing that, why Texas versus DC?

[01:29:12] Speaker 05:
Just because the five nameplans just happened to be there at the moment.

[01:29:15] Speaker 06:
I mean, Rumsfeld, the DA could have argued this.

[01:29:18] Speaker 06:
I mean, why?

[01:29:20] Speaker 06:
Well, because those are supposed to file habeas where you're detained.

[01:29:24] Speaker 05:
Well, only if it's a core habeas.

[01:29:26] Speaker 05:
I mean, the immediate custodian rule applies only where you're seeking release because you want to be where the district director is.

[01:29:32] Speaker 05:
I may have sort of said what I

[01:29:35] Speaker 05:
I can say about the core habeas.

[01:29:37] Speaker 05:
I think there's just too much law now to backtrack on that.

[01:29:40] Speaker 02:
Is there such a thing as a habeas class action?

[01:29:43] Speaker 05:
The Supreme Court has ruled on the merits on habeas class actions.

[01:29:47] Speaker 05:
But it's an open question.

[01:29:48] Speaker 05:
And so if we went there and only had habeas and they said, for reasons unrelated to this case, we're not going to allow a class action, then I think our people would be back on a plane, El Salvador.

[01:29:58] Speaker 02:
And then how many people do you represent right now?

[01:30:02] Speaker 05:
Your honor, I wish I knew the government will not tell us who they represent more than the five names.

[01:30:07] Speaker 05:
Oh, absolutely.

[01:30:08] Speaker 05:
It's a class.

[01:30:09] Speaker 02:
And every one of those is your client.

[01:30:10] Speaker 05:
Yes, absolutely, your honor.

[01:30:12] Speaker 02:
And so every one of those would need to have you file a habeas action if you can find where they are and what district to do it in.

[01:30:19] Speaker 02:
Absolutely.

[01:30:21] Speaker 05:
And then going forward, we'd have to know the government has said they're going to continue designating people.

[01:30:27] Speaker 05:
And just to the point of I get that we're not

[01:30:30] Speaker 05:
We're now at a point where the government, where this panel is not saying it's.