24-04-2025
No, Trump can't legally send Americans to prison in El Salvador
John D. Bessler is a law professor at the University of Baltimore School of Law, an adjunct professor at the Georgetown University Law Center and a visiting scholar at the University of Minnesota Law School's Human Rights Center.
President Donald Trump has suggested sending U.S. citizens convicted of crimes to prison in El Salvador, outside the reach of the U.S. legal system. 'The homegrowns are next,' Trump said during a meeting with El Salvador's president, Nayib Bukele, adding he'd 'have to build five more places' to hold the prospective inmates.
The Eighth Amendment's ban on cruel and unusual punishment prohibits this course of action. White House lawyers should read the U.S. Supreme Court's landmark decision in Trop v. Dulles. The court barred the government from rendering U.S. citizens stateless, which is similar to what Trump is threatening to do if Americans are imprisoned abroad.
During World War II, Albert Trop, an American citizen, was serving as a U.S. Army private in Morocco. He escaped a stockade and was taken into custody the next day and court-martialed. Convicted of desertion, he was sentenced to three years of hard labor, forfeiture of pay and a dishonorable discharge. When Trop applied in 1952 for a passport, his application was denied on the ground that, under the Nationality Act of 1940, he had lost his U.S. citizenship by virtue of his conviction.
In Trop, the Supreme Court held that denationalization as a punishment is a violation of the cruel and unusual punishments clause of the Eighth Amendment. 'It is a form of punishment more primitive than torture, for it destroys for the individual the political existence that was centuries in the development,' the court concluded. 'In short, the expatriate has lost the right to have rights.'
The Trop case makes clear that any effort to incarcerate U.S. citizens abroad would be an Eighth Amendment violation. Were that to happen, people would — as a practical matter — be deprived of their fundamental constitutional rights. They would be at the mercy of a foreign legal system or, worse yet, a dictator's arbitrary whims. Bukele called himself 'the world's coolest dictator,' and El Salvador operates the notorious Terrorism Confinement Center, known as CECOT. Any American held abroad — as Chief Justice Earl Warren pointed out in Trop — would be 'at the sufferance of the country in which he happens to find himself.'
'Banishment,' Warren concluded, is 'a fate universally decried by civilized people.'
As just one example, the Eighth Amendment protects against horrendous conditions of confinement. But how would someone in a foreign prison meaningfully assert an Eighth Amendment violation from a cell controlled by another sovereign country?
The case of Kilmar Abrego García, an immigrant and longtime Maryland resident who the Trump administration admitted in court was sent in error to El Salvador, illustrates the threat. The Supreme Court ordered the administration to facilitate García's return, but it has resisted taking action. Judge J. Harvie Wilkinson III — a Reagan appointee — warned in his Fourth Circuit order on April 17 that 'the government is asserting a right to stash away residents of this country in foreign prisons without the semblance of due process that is the foundation of our constitutional order.'
The government's claim that nothing can be done for García now that he's out of U.S. custody, Wilkinson observed, 'should be shocking not only to judges, but to the intuitive sense of liberty that Americans far removed from courthouses still hold dear.'
'If today the Executive claims the right to deport without due process and in disregard of court orders,' Wilkinson wrote, 'what assurance will there be tomorrow that it will not deport American citizens and then disclaim responsibility to bring them home?'
Trump has said he'll only send Americans convicted of crimes abroad if it is legal. The Supreme Court has made clear it is not. We should hope Wilkinson is right, 'that it is not naïve to believe our good brethren in the Executive Branch perceive the rule of law as vital to the American ethos.'
