{"id":9318,"date":"2025-03-12T13:22:08","date_gmt":"2025-03-12T17:22:08","guid":{"rendered":"https:\/\/latinamericasecurityreport.com\/?p=9318"},"modified":"2025-03-12T13:22:08","modified_gmt":"2025-03-12T17:22:08","slug":"the-illegality-and-human-rights-violations-in-el-salvadors-bizarre-offer-to-house-us-prisoners","status":"publish","type":"post","link":"https:\/\/latinamericasecurityreport.com\/?p=9318","title":{"rendered":"The Illegality and Human Rights Violations in El Salvador\u2019s Bizarre Offer to House US Prisoners"},"content":{"rendered":"
Detainees at the Cecot mega-prison in Tecoluca, El Salvador, on February 24, 2023. Office of the President of El Salvador\/Getty Images<\/figcaption><\/figure>\n

When U.S. Secretary of State Marco Rubio visited El Salvador in early February to meet with Salvadoran President Nayib Bukele, Rubio announced<\/a> that Bukele had offered to house \u201cdangerous American criminals, including U.S. citizens and legal residents, in his jails.\u201d Rubio then confirmed this offer on X<\/a>.<\/p>\n

For those who think that this was just social media posturing, the U.S. Department of State issued a \u201creadout\u201d of Rubio\u2019s meeting with Bukele confirming<\/a> Bukele\u2019s \u201cextraordinary gesture.\u201d Bukele also wrote<\/a> on X, \u201cWe are willing to take in only convicted criminals (including convicted U.S. citizens) into our mega-prison (CECOT) in exchange for a fee.\u201d Billionaire and head of the DOGE (Department of Governmental Efficiency) Service Elon Musk retweeted that and noted<\/a> that he thought this was a \u201cgreat idea.\u201d<\/p>\n

A few days later, U.S. Senator Jon Ossoff (D-GA) penned a letter<\/a> to Rubio and U.S. Attorney General Pam Bondi urging the Trump administration to \u201cimmediately and unequivocally reject\u201d Bukele\u2019s proposition to incarcerate U.S. citizens in El Salvador. Ossoff wrote<\/a> in his letter that, \u201c[e]ven entertaining this offer suggests a potential abandonment of core legal and ethical principles that protect the human and civil rights of Americans and others subject to U.S. jurisdiction.\u201d<\/p>\n

Is it Legal to Send U.S. Citizens Convicted of Crimes to Prisons in El Salvador?<\/strong><\/p>\n

Even President Donald Trump told<\/a> reporters, in speaking of the offer, \u201cIf we had the legal right to do it, I would do it in a heartbeat.\u201d And Rubio himself \u2013 an attorney \u2013 also acknowledged<\/a> \u201cThere\u2019s obviously legalities involved. We have a Constitution.\u201d<\/p>\n

It is illegal to expatriate U.S. citizens for a crime<\/a>. In fact, U.S. citizens can only be stripped of citizenship if they knowingly perform acts resulting in a voluntary relinquishment of citizenship<\/a> such as<\/a> a \u201cformal renunciation of nationality in the United States during a time of war\u201d or \u201cleaving or remaining outside the United States during a time of war or national emergency to avoid military service.\u201d However, even if imprisonment in El Salvador does not strip incarcerated citizens of their status, it is still illegal under Trump\u2019s own<\/a> touted First Step Act<\/a>.<\/p>\n

There is no modern precedent for sending U.S. citizens who are convicted of crimes to other countries for punishment, or \u201cbanishment\u201d as it has been formerly called and practiced. As far back as ancient Rome, people practiced<\/a> self-banishment to escape severe punishment and exiled themselves from Rome. In the 18th and 19th centuries, the United Kingdom \u201cbanished\u201d people convicted of crimes to its colonies in North America and Australia, as both a method of colonization and in some cases a commercial transaction since some could fill labor shortages as indentured servants. In fact, banishment emerged in the United Kingdom as an alternative to capital punishment. More than 50,000 people<\/a> were transported to the American colonies by 1775; while more than 162,000 people<\/a> considered \u201cconvicts\u201d were sent to Australia between 1788 and 1868. Note that all people sentenced to penal transportation in Great Britain were sent to places that, while far away, were jurisdictions of the British Crown. The practice of penal transportation to the United States abruptly stopped around the time of the Revolutionary War.<\/p>\n

The other legal impediment stems from a little-known provision in the First Step Act<\/a>, which impacts where incarcerated people are housed. Signed by Trump in 2018 during his first term, the law included changes in federal sentencing in addition to reforms intended to improve the conditions of those in federal prisons. The law mandates<\/a> that the federal government place people in \u201ca facility as close as practicable to the prisoner\u2019s primary residence, and to the extent practicable, in a facility within 500 driving miles of that residence.\u201d The policy behind this law is to facilitate family visitation; ensure incarcerated people are not deprived of the ability to see family, clergy, and other members of the community; and better support their reintegration into their communities upon release.  The First Step Act even mandated that, but for the few exceptions and the incarcerated person\u2019s preference for staying in their current prison, the Federal Bureau of Prisons must transfer already-incarcerated people to facilities closer to their primary residence when the law became effective \u2013 even if they were currently in a prison within 500 driving miles of their primary residence. No matter how you do the math, prisons in El Salvador are not within 500 driving miles (nor even 500 flying miles) of any part of the United States.<\/p>\n

What about the Eighth Amendment?<\/strong><\/p>\n

Deporting American citizens to serve their sentence in an El Salvador prison would violate the 8th Amendment of the U.S. Constitution, which ensures that \u201cExcessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted<\/a>.\u201d The \u201ccruel and unusual punishments\u201d clause protects those convicted of crimes from excessively long sentences in prison in addition to ensuring that prison conditions meet certain health and safety standards.<\/p>\n

But despite this provision, it has been up to the U.S. Supreme Court to provide the contours of what is acceptable punishment that doesn\u2019t violate the 8th Amendment. There have been several significant cases that have helped shape the constitutional guardrails against \u201ccruel and unusual punishment.\u201d In the 1958 case of Trop v. Dulles<\/em><\/a>, Chief Justice Earl Warren wrote<\/a> that the \u201cbasic concept underlying the Eighth Amendment is nothing less than the dignity of man. While the State has the power to punish, the Amendment stands to assure that this power be exercised within the limits of civilized standards.\u201d Almost 20 years later in Estelle v. Gamble<\/em><\/a>, the U.S. Supreme Court established what is known as the \u201cdeliberate indifference\u201d standard. In that case, Justice Thurgood Marshall wrote that \u201cdeliberate indifference to serious medical needs of prisoners constitutes the \u2018unnecessary and wanton infliction of pain\u2019\u201d which is prohibited by the Eighth Amendment. Other Supreme Court cases have focused on providing guardrails against \u201cunnecessary and wanton infliction of pain<\/a>,\u201d and excessive use of force<\/a>.<\/p>\n

More recently, the U.S. Supreme Court ruled in the 2011 case Brown v. Plata<\/em><\/a> that the conditions of confinement in California\u2019s prisons were so inhumane that they violated the Eighth Amendment. In that case, evidence indicated that California\u2019s prisons had operated at around 200 percent<\/a> of design capacity for at least a decade. Some prisons were even operating at almost 300 percent<\/a> capacity. There were not enough treatment beds because of the overcrowding, so suicidal individuals in prison were held for long time periods in \u201ctelephone-booth sized cages without toilets<\/a>.\u201d<\/p>\n

So what are the conditions<\/a> like inside the prison in El Salvador where people are likely to be sent? The Center for the Confinement of Terrorism (CECOT), a 40,000-capacity megaprison<\/a> 45 miles from the capital San Salvador that opened in 2023, is a place where prisoners receive no visitors, do not participate in any rehabilitative or educational programming, and do not spend any time outside. The prison was constructed as part of Bukele\u2019s campaign to eliminate crime and gangs. The result: more than 84,000 arrests<\/a> in the country since March of 2022, almost entirely without due process. Bukele suspended<\/a> basic rights such as access to attorneys and the right to a speedy trial through his \u201cState of Exception,\u201d making it simpler to arrest, prosecute, and imprison suspected gang members.<\/p>\n

As of January 2024, El Salvador had the highest incarceration rate<\/a> on the planet, with more than 1,000 people in prison per 100,000 residents. Notably, Senator Ossoff, in his letter to Rubio and Bondi, pointed out that the U.S. State Department warns<\/a> U.S. citizens who travel to the country about Bukele\u2019s declaration of a \u201cState of Exception\u201d and notes that those released from some of the country\u2019s prisons \u201creported a lack of food and potable water and being limited to two tortillas, one spoonful of beans, and one glass of water per day<\/a>.\u201d Human rights advocates have found more than 6,000 violations in the country\u2019s justice system, including \u201carbitrary detentions, torture, due process violations, enforced disappearances, and 366 deaths within state custody<\/a>.\u201d<\/p>\n

If the Trump administration sends U.S. citizens convicted of a crime to El Salvador, it is almost certain that this maneuver violates the 8th Amendment, making the transportation unconstitutional.<\/p>\n

What Happens From Here?<\/strong><\/p>\n

In the best-case scenario, this offer goes down in history as a public performance of world leaders who are known<\/a> for their populist and authoritarian tendencies, in addition to their belief that reducing or eliminating civil liberties will reduce crime. It is unclear whether the Trump administration is still researching the \u201clegality\u201d of this proposal or thinking through this scenario with any seriousness. But if genuine steps are taken to remove U.S. citizens convicted of crimes to prisons in El Salvador, this removal would violate not only U.S. law but the U.S. Constitution.<\/p>\n

– Lauren-Brooke Eisen<\/a>, Published courtesy of Just Security<\/a>. <\/em><\/p>\n","protected":false},"excerpt":{"rendered":"

When U.S. Secretary of State Marco Rubio visited El Salvador in early February to meet with Salvadoran President Nayib Bukele, Rubio announced that Bukele had offered to house \u201cdangerous American criminals, including U.S. citizens and legal residents, in his jails.\u201d Rubio then confirmed this offer on X. For those who think that this was just social media posturing,…<\/p>\n","protected":false},"author":124,"featured_media":9319,"comment_status":"open","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"ngg_post_thumbnail":0,"fifu_image_url":"https:\/\/media.cnn.com\/api\/v1\/images\/stellar\/prod\/230307160825-02-prison-nayib-bukele.jpg?c=original","fifu_image_alt":"","footnotes":""},"categories":[182],"tags":[],"class_list":["post-9318","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-security-public-safety"],"_links":{"self":[{"href":"https:\/\/latinamericasecurityreport.com\/index.php?rest_route=\/wp\/v2\/posts\/9318","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/latinamericasecurityreport.com\/index.php?rest_route=\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/latinamericasecurityreport.com\/index.php?rest_route=\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/latinamericasecurityreport.com\/index.php?rest_route=\/wp\/v2\/users\/124"}],"replies":[{"embeddable":true,"href":"https:\/\/latinamericasecurityreport.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=9318"}],"version-history":[{"count":1,"href":"https:\/\/latinamericasecurityreport.com\/index.php?rest_route=\/wp\/v2\/posts\/9318\/revisions"}],"predecessor-version":[{"id":9320,"href":"https:\/\/latinamericasecurityreport.com\/index.php?rest_route=\/wp\/v2\/posts\/9318\/revisions\/9320"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/latinamericasecurityreport.com\/index.php?rest_route=\/wp\/v2\/media\/9319"}],"wp:attachment":[{"href":"https:\/\/latinamericasecurityreport.com\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=9318"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/latinamericasecurityreport.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=9318"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/latinamericasecurityreport.com\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=9318"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}