One Aspect of Trump’s El Salvador Gulag Is Particularly Illegal

Sign up for the Slatest to get the most insightful analysis, criticism, and advice out there, delivered to your inbox daily.

On Monday, Chief Justice John Roberts put on administrative hold a judicial order demanding the U.S. seek the return of a wrongfully deported Maryland resident, as the full Supreme Court considers the question. That immigrant, Kilmar Armando Abrego Garcia, is a father of a U.S. citizen and was in this country legally before he was sent to the notorious Terrorism Confinement Center, or CECOT, prison in El Salvador.

President Donald Trump originally invoked the late-18^th-century Alien Enemies Act to remove hundreds of people to CECOT—a hellhole that local despot Nayib Bukele had proactively offered up weeks ago—on the suspicion that they might be part of the gang Tren de Aragua. The evidence presented for practically all known cases is almost null. Asylum-seekers, refugees, and even Abrego Garcia, who had been issued a protection known as withholding of removal specifically prohibiting his being sent to El Salvador, have been swept up in the dragnet.

At every step, the federal government’s conduct has been legally questionable. The government’s flimsy criteria for removal has reportedly come down to social media posts and tattoos. There have been sharp questions over the legality of the AEA invocation in the first place. D.C. District Judge James Boasberg has been exploring contempt against government officials after they ignored his order to turn planes of deportees around and refused to answer basic questions about their conduct. With the Supreme Court issuing an opinion overturning Boasberg’s temporary restraining order on Monday, these AEA renditions seem likely to continue. Lost in the shuffle is one more basic but key open question: Under what authority is the government having these people imprisoned at CECOT in the first place?

I don’t mean that rhetorically, in the way of how we could allow our government to do this, but literally what is the statutory basis for the U.S. to ask this foreign government to warehouse migrants for us? To date, the Trump administration has not in any public forum released the specifics of whatever contract or agreement it actually has with El Salvador; it’s reportedly for $6 million a year—which implies that this is intended as a long-haul detention—but beyond that, we don’t know much. More importantly, the administration has not pointed to anything under the law that would actually underlie this agreement.

Here, we have to draw a line between the removals and the detention. Trump’s AEA invocation is putatively a legal justification for the actual deportations, if an extraordinarily thin one. It’s not the first time that the government has tried to offload migrants elsewhere, with the first Trump administration enacting policies like Remain in Mexico and the so-called safe third country agreements with Guatemala, El Salvador, and Honduras to send asylum-seekers away. Each was a significant stretch of the law, but at least there was a cursory effort to point to some sort of legal basis.

However, nothing in the Alien Enemies Act or, as far as I can tell, anywhere in the U.S. code allows the government to contract with a foreign government to imprison people removed from U.S. soil. The closest parallel I can think of is the infamous post-9/11 extraordinary rendition program, which already rested on incredibly shaky ground and did not involve people removed from the United States itself. These are not extraditions, because these folks are not being sought by El Salvador on any charges there, and certainly have not gone through any extradition process. There appears to be no trial on the horizon for any of them. While Bukele’s forces have these folks in custody, both governments admit that this is at the explicit behest of and under some sort of agreement with the U.S. federal government. What exactly in the law establishes that authority? The plaintiffs certainly don’t think one exists. Lee Gelernt, who is heading up the ACLU’s litigation against the use of AEA, said in an email to Slate that “there’s no authority under the immigration laws to send non-Salvadorans to a notorious prison in El Salvador, nor can the Alien Enemies Act be used against anyone during peacetime.’”

As Slate’s Mark Joseph Stern pointed out recently, DOJ attorneys in the case of Abrego Garcia have been arguing in court that the only avenue for the detainees to seek redress is filing habeas corpus petitions, essentially a constitutional challenge against unlawful detention, a position the Supreme Court endorsed in its Monday ruling. This admits that the detainees are in U.S. custody at least through the transfer, yet the DOJ claims that the courts have no jurisdiction to hear these habeas claims once detainees are already at CECOT because they are not any longer in U.S. custody; but whose custody are they in, then? If a private prison company is under contract to detain people on behalf of ICE, are those people somehow not in U.S. custody?

This is not a trivial question. As Boasberg has noted as he explores the potential of issuing some manner of contempt ruling against government officials, the administration clearly moved to rush the flights out of the country before the courts could intervene. This broader effort at pushing the realities of immigration enforcement outside our own borders is explicitly an effort to cut out domestic overseers like federal courts. Whatever authority the U.S. is using to either hold people in custody in El Salvador or authorize that government to hold them on our behalf is a clear hook for entities like Congress and the courts to force some accountability from the Trump administration.

Prisons writ large are not nice places, but even by those standards, CECOT is hell on earth. To date, we don’t know of anyone who has left alive. Detainees are held by the dozens to a brightly lit cell, let out only for 30 minutes a day, cut off from contact with family members and lawyers. There’s good evidence that torture is widespread even in El Salvador’s standard prisons, let alone Bukele’s flagship, which he has personally made into a symbol of his heavy-handed crackdown. That alone should mean that shipping people there runs afoul of domestic laws and potentially the Eighth Amendment, if indeed the U.S. can be legally considered the jailer.

We might get some development of this question soon as District Judge Paula Xinis, who is hearing Abrego Garcia’s case, on Friday rejected the government’s dodges and ordered it to bring him back to the United States by end of Monday. That’s when Roberts intervened to put things on hold until Tuesday. Now, the administration will have to do one of two things: either comply with the judge’s order or explain why it can’t, in more detail than simply “we don’t have custody.” (I suppose the third option is to tell the judge to kick rocks, as DOJ attorneys increasingly seem at liberty to do, but I’d imagine that the judge is going to compel some answer.)

If it is able to bring him back stateside, that is a de facto admission that it does indeed on some fundamental level retain custody of the people it’s sent to this gulag. If it cannot, then it should have to explain by what mechanism it has agreed to have El Salvador jail these people for us while relinquishing control. Either way, it’s a question that needs an answer.