Over at Just Security‘s substack, I wrote a piece last night very soon after the Justice Department submitted a filing in D.V.D. v. Department of Homeland Security, a document that strongly suggests the government violated the district court’s temporary restraining order (which has since been superseded by a preliminary injunction). The D.V.D. case directly affects the administration’s ability to deport Venezuelan nationals to El Salvador without an opportunity for them to present their claims of potential torture as required by federal statute. As I discuss at greater length in the substack, a key element to focus upon is that ICE retained custody over the detainees following the court’s Mar. 28 order and then appeared to switch them over to the Department of Defense (DoD) for transfer by military plane to El Salvador. The line of defense (some would say the game) being played here by the government is that DHS/ICE is a named defendant in the case but DOD is not.
I thought to supplement last night’s analysis with three items.
First, the text of the Mar. 28 temporary restraining order appears to bind the Department of Defense, not just the named defendants. The Order enjoins “Defendants, and all of their officers, agents, servants, employees, attorneys, successors, assigns, and persons acting in concert or participation with them” (emphasis added). Andrew Weissmann and I discussed this issue at length in a video conversation on substack Thursday morning (will be available here). Read the opening text in paragraph 2 and then paragraph 2(b) in Judge Brian Murphy’s order:
Second, in the Chart below, I match the government’s brief with the ICE official’s affidavit, which were both submitted to Judge Murphy last night. The Chart shows how the DOD was “acting in concert or participation with” DHS/ICE. The Chart also shows the shell game being played and the obfuscation in the government’s brief as to which department had custody at the time. That said, I do not think the government’s combined filings actually hide the ball that much. Rather, they reveal just how obnoxious the government’s conduct is here to the rule of law and Judge Murphy’s order, that is, given ICE’s custody over the individuals on and after the Mar. 18 order before turning them over to DOD for transfer to El Salvador.
| Government Statement of Four Detainees in D.V.D. v. Dept of Homeland Security |
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| Detainee 1 Government brief: |
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| Detainee 1 ICE Affidavit: |
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| Detainee 2 Government brief:" |
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| Detainee 2 ICE Affidavit: |
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| Detainee 3 Government brief: |
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| Detainee 3 ICE Affidavit: |
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| Detainee 4 Government brief: |
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| Detainee 4 ICE Affidavit: |
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Third, a March 7, 2025 Memorandum of Understanding between DHS and DOD states expressly that such detainees are still under ICE custody and control while held at Guantanamo. The Memorandum is titled “DOD Support at Naval Station Guantanamo Bay (NSGB) to U.S. Immigration and Customs Enforcement (ICE) for DHS/ICE Detention of Illegal Aliens Subject to Final Orders of Removal.” That arrangement strongly suggests that the detainees may have been in ICE custody up until the moment they were put on military planes. That will be an issue for Judge Murphy, investigative reporters, and others to explore. The Memorandum’s most relevant provision is Article 4:
