An American Civil Liberties Union attorney told a federal appeals court this week that the Justice Department is effectively arguing it can send people to a foreign prison with no opportunity to contest their removal — and then declare the matter closed simply because they are already out of the country.

Lee Gelernt, deputy director of the ACLU's Immigrant Rights Project, has been battling the federal government since U.S. District Court Chief Judge James Boasberg issued his February 2025 order directing the return of people wrongfully deported to a brutal Salvadoran prison — the Terrorism Confinement Center (CECOT), a maximum-security facility — over allegations that they were "gang members." This week, Gelernt argued before the U.S. Court of Appeals for the D.C. Circuit that it should uphold Boasberg's order. At issue is Trump's proclamation invoking the Alien Enemies Act, a 1798 law written for wartime, to speed the removal of people accused of membership in the Venezuelan gang Tren de Aragua.

The case carries broader political weight: if Democrats take over the House, one likely line of investigation concerns the extent to which President Donald Trump's administration ignored court orders at the direction of officials at the highest levels of government.

"What they are saying is they can essentially whisk people away to a foreign prison, give them no opportunity to contest the removal, even whether they're part of this gang that proclamation applies to, concede that they violated due process under J.G.G. v. Trump and A.A.R.P. v. Trump, and then say because we got them out of the country into a foreign prison that's the end of the matter," Gelernt said in court, according to Courthouse News. The rulings he cited are the Supreme Court's decisions holding that people slated for removal under the Alien Enemies Act must first receive notice and a meaningful opportunity to contest their deportation.

Speaking to Jacob Soboroff of MS NOW in an interview, Gelernt recounted how the administration circumvented both the law and the judge in its push to carry out the deportations.

"By then, we already knew the planes had taken off," he recalled of the emergency hearing. The judge agreed and ordered the planes to turn around; the government refused. On Friday, the Justice Department went into court and said it could do nothing because it had already done what it was ordered not to do.

"Tough luck. They're out of the country as if the men got there on their own," Gelernt said, recalling the Friday hearing. "Then, without a trace of irony, they said that they had violated the order not to send them. They said, there's just nothing you can do for them. And then they went on to say, well, this is probably a one-off. We're not going to do it anymore."

He claimed that such actions by the Justice Department have continued.

Gelernt said Judge Boasberg found the government's position appalling. "Look, you know, these men are entitled to a hearing; you're conceding you didn't give them due process. And so I'm going to give you the choice. Do you want to give them hearings remotely? Do you want to let them come back? You can detain them if they come back, but one way or the other, there's now overwhelming evidence that these men had no ties to this gang. And that you can't use the Alien Enemies Act during peacetime against a gang. It was a military law."

According to Courthouse News reporter Ryan Knappenberger, the three-judge panel appeared split on the matter. Gelernt said it does not matter: if the panel votes against him, he intends to seek a vote by the entire court. The Trump administration is then likely to take the fight to the U.S. Supreme Court.

"As some conservative judges have already said, that's a blueprint for just lawlessness. For the rule of law just going out the window," Gelernt said. "I mean, a number of judges have already come out and said, this is a grave threat to the rule of law if the executive branch can get away with violating orders."

The dispute, he said, is setting up a larger showdown between the executive branch and the judiciary.

"I think if the Court of Appeals doesn't have Judge Boasberg back, not only for him, but for the judiciary as a whole, it's going to send a terrible signal that the executive branch can just get away with these kinds of things," he said.