The contract with El Salvador to imprison alleged gang members violated constitutional rules that apply when the government seeks to impose punishment.
In March, President Trump invoked a rarely used wartime power under the Alien Enemies Act (AEA) to declare that a Venezuelan gang called Tren de Aragua (TdA) has accomplished an “invasion or predatory incursion” into the United States. Purportedly pursuant to the authority granted by the AEA, the federal government has begun removing—that is, deporting—Venezuelan nationals whom it designates as members of TdA. These attempts at removal under the AEA spawned extensive litigation, with potential deportees challenging the president’s power to invoke the AEA outside of wartime and his authority to remove people under the authority of the AEA without providing them some sort of due process. The Supreme Court stepped in several times, most recently to admonish the government that it must provide potential deportees with more than 24 hours’ notice before removing them, so that they may have a reasonable chance to challenge their removal under the AEA.
This article focuses on an important aspect of the government’s treatment of these alleged members of TdA—one that received less focus in the legal briefing related to the AEA removals: what happened to the deportees after they were deported. The Venezuelan nationals were not merely removed; they were sent to foreign detention in a notorious prison called Centro de Confinamiento del Terrorismo (CECOT) in El Salvador. Their imprisonment was not incidental or merely with the U.S. government’s knowledge; it was reportedly pursuant to an agreement between the United States and Salvadoran governments under which detention would last for at least a year, and potentially indefinitely. Indeed, reporting suggests that the United States intends to expand this policy of extraterritorial jailing to other countries and other alleged “gang members.”
In other words, the government effectively sentenced these men to prison after removal—a criminal punishment. Yet criminal punishment is not permissible under the U.S. Constitution unless the government has first convicted the defendant of a crime (with all the due process protections that attend a criminal conviction, including a jury trial), the punishment is authorized by a statute enacted by Congress, and the statute uses words that provide fair warning of what conduct is subject to punishment. None of that happened here.
Recently, the saga took another turn when the CECOT detainees were sent to Venezuela as part of a “prisoner swap” arranged between the Trump administration and the governments of El Salvador and Venezuela. It remains unclear precisely how this swap will impact the ongoing litigation brought by the AEA deportees. Regardless, given the Trump administration’s evident interest in sending alleged gang members to foreign prisons, it remains vital to consider whether and under what conditions the U.S. government is entitled to send people to be detained in other countries.
The AEA Does Not Authorize Post-Removal Detention
By its own terms, the section of AEA on which President Trump’s executive order expressly relies gives the president only limited authority. It provides that certain individuals are “liable to be apprehended, restrained, secured, and removed as alien enemies” under certain circumstances—specifically, where the president has made a public proclamation that there is a “declared war between the United States and any foreign nation or government,” or “a foreign nation or government” has attempted, threatened, or actually carried out a “predatory incursion … against the territory of the United States.” Under such circumstances, the president is authorized
to direct the conduct to be observed on the part of the United States, toward the aliens who become so liable; the manner and degree of the restraint to which they shall be subject and in what cases, and upon what security their residence shall be permitted, and to provide for the removal of those who, not being permitted to reside within the United States, refuse or neglect to depart therefrom; and to establish any other regulations which are found necessary in the premises and for the public safety.
This language means that the president has broad authority, if the AEA is properly invoked, to direct how and under what conditions the removal of “alien enemies” should occur, and whether aliens should be restrained or permitted (potentially with “security,” that is, bail) to remain free pending removal or despite the invocation of the AEA. The statute is directed toward a single potential end: the removal of alien enemies. Nothing in the statute purports to permit the president to punish “alien enemies” or to imprison them after they have been removed from the United States.
A separate section of the AEA permits the government to effectuate removals of any “alien enemy resident and at large” by instituting proceedings against alleged alien enemies in the federal courts. This section states that alleged alien enemies may be “restrained,” “imprison[ed], or otherwise secure[d] … until the [removal order] shall be performed” (emphasis added).
Thus, both operative sections of the AEA expressly limit the restraint that may be imposed upon an alleged alien enemy to that which will secure the alien until a removal order is effectuated. The AEA does not purport to authorize the government to impose post-removal prison sentences, let alone potentially indefinite prison sentences, on the basis of nothing more than a presidential proclamation and an immigration agent’s decision to “designate” a person as a member of TdA.
Yet the president has never cited any other statute purportedly authorizing post-removal detention. And it is worth noting, given the administration’s aggressive use of executive orders, that President Trump did not even issue an order claiming to authorize the post-removal imprisonment of alleged TdA members. The administration simply did it—albeit by apparently paying a foreign government to do the actual imprisoning. There is simply no legal authority that allows this.
Imprisoning People in CECOT Constitutes Punishment
The nature of the imprisonment in CECOT was punishment; since it occurred after removal, it was not in service of pending immigration proceedings. And under the U.S. Constitution, the government may punish people only if it first convicts them of a crime. As discussed in more detail later, a number of legal consequences follow—including that alleged TdA members are entitled to criminal due process rights before they may be imprisoned.
That imprisoning people in a foreign gulag constitutes punishment may seem obvious at first blush, but it requires some discussion in light of the Supreme Court’s long and somewhat complicated jurisprudence sorting criminal from civil penalties. The Court has found, for example, that some types of involuntary detention that look quite a bit like imprisonment—such as for dangerously insane people, or prior to trial in a criminal or immigration case—are civil or nonpunitive in nature.
The Trump Administration’s Intent
The Supreme Court’s jurisprudence around the question of whether a penalty imposed by law is civil or criminal establishes, as a preliminary matter, that “retribution” and “general deterrence” are properly functions of criminal law, not civil sanctions. Thus, when the government uses a sanction to pursue retribution or deterrence, it is imposing punishment.
Deciding whether a sanction pursues retribution or deterrence requires assessing the government’s intent. This assessment is usually “a matter of statutory construction”—courts conducting this inquiry generally ask first whether the legislature intended to establish a civil penalty. This mechanism for determining intent is difficult to apply in this case, however, because the president seemed to imprison the alleged TdA members in El Salvador without invoking any statutory authority to do so. That means there is no congressional intent to which a court must (or could) defer in interpreting the nature of the detention.
Still, assume that a court might apply this jurisprudence by analogy, examining detention pursuant to executive action with reference to the executive’s intent, just as it would normally examine detention pursuant to legislative action (a statute) with reference to the legislature’s intent. There is strong evidence that the government’s effort to condemn deportees to a maximum-security prison in El Salvador had a retributive and deterrent—that is, punitive—intent that was therefore criminal in nature.
In March, Department of Homeland Security Secretary Kristi Noem visited CECOT and filmed a video standing in front of a crowded cell. In the video, Secretary Noem thanked El Salvador for accepting alleged TdA members and for “incarcerat[ing] them and to have consequences for the violence that they have perpetuated.” She then went on to say: “I also want everybody to know, if you come to our country illegally, this is one of the consequences you might face” (emphasis added). On social media, Noem captioned the video as follows: “President Trump and I have a clear message to criminal illegal aliens: LEAVE NOW. If you do not leave, we will hunt you down, arrest you, and you could end up in this El Salvadorian prison” (emphasis added). Similarly, Secretary of State Marco Rubio posted on X after a meeting with the Salvadoran president:
Very productive meeting with Salvadoran President @nayibbukele. His commitment to accept and incarcerate criminals from any country, including from violent gangs like MS-13 and Tren de Aragua, will make America safer. In an extraordinary gesture never before extended by any country, President Bukele offered to house in his jails dangerous American criminals, including US citizens and legal residents. [Emphasis added.]
And President Trump’s “border czar,” White House Executive Associate Director of Enforcement and Removal Operations Tom Homan, said in reference to the alleged TdA members already at CECOT, “I see the video that President Bukele put out. It was a beautiful thing. These people are going to be held accountable” (emphasis added). These messages make explicit the retributive and deterrent goals of the government’s actions—the government seeks to impose “consequences” or “accountab[ility]” for alleged “violence” and for “coming to our country illegally,” and to deter people from seeking to come to the United States. Two cabinet secretaries expressly referred to the putative AEA detainees as “criminals” and to their detention in CECOT as “incarcerat[ion].” This is the language of criminal punishment.
The Sanction Is Inherently Punitive in Nature, Regardless of the Administration’s Intent
In any event, the question of intent does not end the matter. In cases such as United States v. Ward, Smith v. Doe, and Kansas v. Hendricks, the Supreme Court established that a sanction constitutes criminal punishment—regardless of the government’s intent—if the sanction is “so punitive either in purpose or effect as to negate [any] intention” to impose a civil sanction. Two Supreme Court cases demonstrate that post-removal imprisonment for at least a year, and potentially indefinitely, is so punitive as to obviously constitute punishment.
In 1896, in a case called Wong Wing v. United States, the Supreme Court considered a statute that sought to accomplish a result quite similar to the one the Trump administration has pursued. The law at issue in Wong Wing provided that Chinese persons found by an administrator to be unlawfully present in the United States “shall be imprisoned at hard labor for a period not exceeding one year, and thereafter removed[.]” The Supreme Court found that the statute’s imposition of a year in prison “inflict[ed] an infamous punishment” and therefore required Fifth and Sixth Amendment procedural protections.
Likewise, in the more recent case Zadvydas v. Davis, the Supreme Court considered the case of migrants against whom the government had obtained an order of removal in immigration court and was detaining pending removal. The migrants challenged their detentions as unlawful, arguing that because removal appeared impractical or impossible—because, for example, their home countries refused to take them—the detention was effectively indefinite. The Supreme Court held that “permitting indefinite detention of an alien would raise a serious constitutional problem” in light of the Fifth Amendment, which permits the government to detain indefinitely in only two circumstances: pursuant to a criminal proceeding “with adequate procedural protections” or in certain narrow nonpunitive circumstances where there is “a special justification, such as a harm-threatening mental illness.”
Taken together, Wong Wing and Zadvydas clearly demonstrate that detentions that occur after a removal order have constitutional limits. The government’s decision to condemn AEA deportees to at least a year in prison in a foreign country, following removal, and potentially indefinitely, plainly constitutes criminal punishment under the Constitution—and that means it is unlawful in the absence of vital constitutional protections to which criminal defendants are entitled.
The Rights That Must Be Afforded to the AEA Deportees
Despite recent comments from Trump administration officials about the impossibility or impropriety of giving “due process” to “illegal aliens,” the Supreme Court has made abundantly clear that all persons present in the United States—including undocumented immigrants—are entitled to basic constitutional protections enshrined in the Bill of Rights. As the Court reaffirmed in the Zadvydas case, “the Due Process Clause applies to all ‘persons’ within the United States, including aliens, whether their presence here is lawful, unlawful, temporary, or permanent.” And well over a century ago, in Wong Wing, the Court held that in the criminal context “all persons within the territory of the United States,” even persons subject to removal, “are entitled to the protection guaranteed by” the Fifth and Sixth Amendments.
The government has raised some cursory legal arguments intended to circumvent these constitutional protections. In the course of litigation in Washington, D.C., it argued that the United States is not punishing those it sends to CECOT because “the government does not have custody over the [removees] in El Salvador [and] the government cannot be detaining or punishing aliens it has already removed from its custody.” But this argument misses the mark. The AEA deportees in CECOT are suffering imprisonment arranged—contracted for—by the U.S. government; indeed, the government conceded as much in a brief in the Supreme Court, where it described that in March it had “prepared to immediately remove [alleged TdA members] by plane to El Salvador, which had agreed to detain these foreign terrorists after extensive negotiations” (emphasis added). There is little difference here from the circumstance in which a state contracts with a private corporation to imprison individuals convicted of crimes. While courts have generally held that such arrangements are constitutionally permissible, no one would suggest that private corporations could imprison individuals who have not been convicted of a crime. The government cannot avoid giving people a trial just because it will be outsourcing their punishment. Yet that is exactly what the government did by contracting with the Salvadoran government to imprison alleged TdA members.
Having established that the nature of the removees’ post-removal detention is punitive (and thus criminal) in nature, and that the United States is the authority imposing it, important consequences follow—including that the removees are entitled to the procedural protections guaranteed to criminal defendants by the Bill of Rights.
As the Supreme Court summarized in Foucha v. Louisiana, the government “may of course imprison convicted criminals for the purposes of deterrence and retribution,” but, when the government has not convicted a person of a crime, “he may not be punished.” The Fifth and Sixth Amendments provide that, in order to obtain a criminal conviction, the federal government must afford the accused certain fundamental procedural rights, including the right to be charged in an indictment that provides notice of the allegations against the accused, the right to counsel, the right to confront adverse witnesses, the right to a jury trial, the right to proof beyond a reasonable doubt, and the protection against double jeopardy. The government afforded none of these rights to the putative AEA deportees. That means that punishing these people with imprisonment in CECOT (or anywhere!) violated the Constitution.
And there is yet another constitutional right at play. Punishing alleged TdA members with imprisonment in El Salvador violated their due process right to “fair warning” that their conduct was subject to criminal sanction. As the Supreme Court summarized in the 1997 case United States v. Lanier, the Constitution prohibits the government from imposing a criminal penalty unless it has provided “fair warning … in language that the common world will understand, of what the law intends to do if a certain line is passed.” The usual focus of the “fair warning” cases is on the words of a challenged criminal statute: The courts ask whether the statutory language gives sufficient notice of what conduct is subject to criminal punishment, such that a person has warning of what conduct is illegal under the law.
This case presents an unusual (and frightening) circumstance: The executive branch imposed criminal punishment in the absence of any authorizing statute whatsoever. In other words, Congress promulgated no words at all to criminalize the conduct that the executive branch sought to punish. As Lanier and the fair warning jurisprudence make clear, the government cannot impose criminal punishments without first setting out in clear language what conduct is subject to that punishment. Imprisoning deportees in El Salvador, in the absence of any authorizing statute, violated these due process “fair notice” principles.
Post-Removal Detention and the Separation of Powers
The administration’s use of the AEA to impose criminal punishment did more than violate the deportees’ Fifth and Sixth Amendment rights—it also violated separation of powers principles. More than 200 years ago, the Supreme Court explained in United States v. Hudson that before the government may impose a criminal punishment, “[t]he legislative authority of the Union must first make [the] act a crime, affix a punishment to it, and declare the Court that shall have jurisdiction of the offence.” That holding, on its own, ought to mean that the executive branch cannot unilaterally condemn alleged TdA members to post-removal imprisonment; congressional authorization would be required.
Indeed, the conservative wing of the Supreme Court has recently shown significant interest in reinvigorating the so-called nondelegation doctrine in a manner that would even more robustly manifest these separation of powers principles. Article I, Section 1 of the U.S. Constitution provides that “[a]ll legislative Powers herein granted shall be vested in a Congress of the United States.” The Supreme Court has stated that because the Constitution assigns that power to Congress, Congress “may not transfer to another branch ‘powers which are strictly and exclusively legislative.’”
In recent decades, the Court has been permissive in allowing Congress to delegate decisions to the executive branch; it has asked only whether Congress provided the executive branch with an “intelligible principle to guide the delegee’s use of discretion.” Recently, however, at least five members of the Court have expressed interest in reconsidering that standard. Justice Neil Gorsuch argued in a dissent in Gundy v. United States that the Constitution preserves freedoms by confining to Congress the task of “enact[ing] laws restricting the people’s liberty,” and decisions by Congress purporting to delegate that authority to the executive must be carefully scrutinized; at least four other justices have signaled their support for Gorsuch’s view, either by joining his dissent in Gundy or by approving of his reasoning in opinions in separate cases. And the Court has long held that the authority to define crimes is a distinctively legislative power. It thus seems plausible that the conservative wing might, if convinced that post-removal detention constitutes punishment, find the administration’s actions patently unconstitutional and in violation of the nondelegation doctrine.
Other Justifications for Detention Are Inapplicable and Would Also Require Due Process Protections
As discussed earlier, the Supreme Court’s cases permit the government in some circumstances to detain people even without the full panoply of criminal protections. It is worth briefly considering some of the Court’s noncriminal detention doctrines. Imprisonment in CECOT does not seem to satisfy any of these alternative legal justifications, which bolsters the conclusion that the imprisonment was, after all, criminal punishment. Moreover, even when the Supreme Court has permitted detention without the full panoply of criminal protections, it has still required some important due process protections. As the Court said in Addington v. Texas, “commitment for any purpose constitutes a significant deprivation of liberty that requires due process protection.” Crucially, these requirements were ignored by the Trump administration.
The Supreme Court’s rulings on noncriminal detentions fall into various categories; two seem potentially relevant here. The first is the rubric of civil commitment. The Supreme Court has promulgated a complicated jurisprudence concerning the constitutionality of laws that permit government authorities to impose a civil commitment on a person proved to be dangerous and mentally ill. But it has emphasized that the civil commitment cases relate only to “certain special and narrow non-punitive circumstances where a special justification, such as harm-threatening mental illness, outweighs the individual’s constitutionally protected interest in avoiding physical restraint.” There are no facts currently in the record that would support the notion that the AEA deportees should fit into such narrow circumstances.
Moveover, even if a court were to find that the government’s effort to imprison these Venezuelan nationals was akin to civil commitment, Supreme Court precedent would require that the AEA deportees be given certain due process rights. Civil commitments require, among other things, notice, the right to be heard, a neutral decision-maker, and proof of certain factors by clear and convincing evidence. The government does not propose to afford—and has so far failed to afford—to alleged TdA members any of these protections, and so its conduct violates the Constitution even if the proposed detentions in CECOT constitute “civil commitments.”
The second alternative detention authority would rely on past practice around the military detention of enemy combatants. The Supreme Court has issued a series of cases permitting such detentions during times of war—even when those combatants are citizens. But it is not at all clear that the enemy-combatant cases are applicable. The present AEA deportees, unlike the petitioners in the Supreme Court’s military detention cases, did not support enemy forces engaged in an armed military conflict on a foreign battlefield against the United States. More importantly, past military detentions have had a statutory basis: In the early cases of Ex ParteQuirin and Johnson v. Eisentrager, the government relied on a statute called the Articles of War; in post-9/11 detention cases, it relied on statutes such as the Authorization for Use of Military Force.
Here, the only possible authority for the claim that alleged TdA members constitute enemy combatants would be President Trump’s assertion, in his executive order invoking the AEA, that TdA members are “conducting irregular warfare and undertaking hostile actions against the United States.” But the notion that such a proclamation could permit the government to invoke the military detention cases and, under that jurisprudence, to imprison people—in the absence of congressional authority, notice, or due process—would arrogate to the executive branch the unprecedented power simply to ignore the Constitution. As the Supreme Court held in Apprendi v. New Jersey, the rights to avoid imprisonment (and other punishment) in the absence of a trial by jury and proof beyond a reasonable doubt are “constitutional protections of surpassing importance” that “guard against a spirit of oppression and tyranny on the part of rulers” and serve as “the great bulwark of [our] civil and political liberties.” If the Constitution permitted a president by fiat to “declare war” on whole categories of U.S. residents—for example, by declaring pursuant to a “war on drugs” that drug dealers or drug users are undertaking actions “hostile” to our nation’s interests—and by that declaration empower the government to confine those residents without trial as “enemy combatants,” the anti-tyrannical effect of the Fifth and Sixth Amendments would be demolished. The president does not have, and should not be granted, the power to expand the “enemy combatant” exception into a rule and thereby to suspend the Bill of Rights for any person he decides to target.
Finally, even military detentions of enemy combatants who are present in the United States require significant due process, including the right to notice of the factual basis for the classification as an enemy combatant and a “fair opportunity to rebut the Government’s factual assertions before a neutral decisionmaker.” Thus, even if a court were to apply the enemy-combatant rubric of analysis, that rubric would require substantial due process protections before alleged TdA members could be imprisoned following removal.
***
The AEA litigation was building toward an inevitable conclusion in the Supreme Court when the recent “prisoner swap” derailed things; as discussed, it is not yet clear how the litigation will be impacted by the fact that the CECOT detainees have purportedly been released. Regardless, however, it is important to keep in mind that nothing prevents the administration from seeking to impose foreign detentions in other contexts as well. Indeed, the Trump administration has explicitly stated its goal to “identify other countries willing to accept and jail as many gang members as we can send them.” It might do this in the context of more typical, non-AEA immigration enforcement. It might even try to do it to citizens. It is up to the courts to directly address, and clearly condemn, the practice of condemning U.S. residents without due process to do time in a foreign prison.
– Raphael Goldman is a criminal defense attorney in the San Francisco Bay Area. He has a diverse practice in both the federal and California state courts and has defended clients against some of the Bay Area’s highest-profile prosecutions. Published courtesy of Lawfare.
