Several of our colleagues have already provided excellent analyses of the fast-evolving legal and factual questions presented by President Donald Trump’s pretextual and abusive invocation of the Alien Enemies Act to transfer to El Salvador 238 Venezuelan men who it alleges are members of the Tren de Aragua gang. (See posts by Steve Vladeck, Ryan Goodman, and Marty Lederman.) We are writing to flag a separate issue that this case has created, one that applies to anyone removed from the United States under any authority: the administration is sending people to a country where there is a quite significant risk they will be abused. Whatever the authority the administration might claim over their removal, the United States is nevertheless bound by the principle of non-refoulement, which prohibits the removal or transfer of human beings under such conditions. In sending the men at issue in this case to detention in El Salvador, a country and prison system with a known history of torture and other serious human rights violations, in addition to the facts that are already emerging about their treatment, the Trump administration has plainly violated the prohibition on refoulement.
Non-refoulement is a core principle of international human rights, refugee, humanitarian, and customary international law, and is codified in U.S. statutes. It prohibits States from transferring or removing any person from their jurisdiction or effective control when there are substantial grounds for believing that the person would be at risk of certain serious human rights violations. The prohibition is enshrined in both customary international law and several treaties to which the United States is a party, as well as several U.S. domestic statutes. Specifically, the Foreign Affairs Reform and Restructuring Act of 1998 (FARRA), codified at 8 USC § 1231, states, “It shall be the policy of the United States not to expel, extradite, or otherwise effect the involuntary return of any person to a country in which there are substantial grounds for believing the person would be in danger of being subjected to torture, regardless of whether the person is physically present in the United States.”
While some treaty provisions prohibiting non-refoulement under circumstances involving a broader set of risks have potential carveouts the State might apply, such as for individuals found guilty of a crime, the prohibition on transfer to torture is absolute: Article 3 of the Convention against Torture (CAT) states that “[n]o State Party shall expel, return (‘refouler’) or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture.” The principle of non-refoulement to torture is applicable in all circumstances, everywhere, and to everyone—immigration status notwithstanding.
Publicly available facts leave little doubt that the 238 men are at substantial risk of (and in some cases arguably have already endured) serious human rights violations in El Salvador, including torture. They are being held – potentially indefinitely, according to Salvadoran President Nayib Bukele – at El Centro de Confinamiento del Terrorismo (CECOT), a sprawling prison complex reportedly rife with abuse. Local and international human rights organizations, along with the press, have documented a host of rights violations there. They include: hundreds of deaths; instances of torture; environmental manipulation that risks prolonged sleep deprivation; lack of medical attention; and various forms of cruel or degrading treatment. A former member of the United Nations Subcommittee for the Prevention of Torture has described CECOT as a “concrete and steel pit” into which the Salvadoran government “dispose[s] of people without formally applying the death penalty.”
The extreme conditions in El Salvador’s prisons are well known to the U.S. government. The U.S. State Department’s 2023 country report for El Salvador catalogues a host of them, including “gross overcrowding; inadequate sanitary conditions; insufficient food and water shortages; a lack of medical services in prison facilities; and physical attacks.” The report is replete with reference to extrajudicial killings, torture, and abuse in the prison system.
What little information the administration and Salvadoran President Nayib Bukele have thus far released about the men’s treatment is consistent with these findings, and suggests that they are being held at the prison directly at the behest of the United States. The day after they were deported, Trump posted to his Truth Social account a slickly produced, shocking propaganda video showing the men being dragged off the plane by security forces in full riot gear, hunched over in combination cuffs, then forcibly groomed upon arrival at CECOT. (Dr. Alice Edwards, the U.N. Special Rapporteur on Torture, has warned that using combination cuffs as they appear to be used here risks facilitating torture or other ill-treatment). The video embedded a statement in which Trump thanked Bukele and referred to the men as “monsters.” Rapid Response 47 – an X account managed by the White House – posted the same video and statement several hours later. Secretary of State Marco Rubio also took to social media to thank Bukele, calling him “the strongest security leader in our region [and] a great friend,” and noting that El Salvador “has agreed to hold [the men] in their very good jails at a fair price that will also save our taxpayer dollars.” Bukele, too, posted the video on X, along with his own statement suggesting the men would be subjected to forced labor and held at CECOT potentially indefinitely.
Rubio’s statement is furthermore evidence that the government of El Salvador is holding these men at the United States’ direct behest. In other words, the United States has not only sent these men to El Salvador knowing they will face abuse; it continues to be responsible for their detention there. This admission raises a host of additional questions under both international and domestic U.S. law. And it may well give rise to further avenues for judicial intervention over their conditions of confinement, if U.S. courts find that in directing and paying the government of El Salvador to continue to hold these men, the United States continues to exercise constructive custody over them.
The U.S. government’s actions, in the context of the above-described publicly available information, including information on the State Department’s own web pages, are incriminating. They suggest that Trump administration officials – including the president and the Secretary of State themselves – are not merely aware of the array of gross human rights violations and related abuses these men will face in El Salvador; they welcome it. The cruelty is the point. The United States certainly has its own sordid history, but it has also spearheaded and enshrined numerous legal protections to prevent precisely these kinds of abuses. And it has called on other nations to do the same.
Sending these men to face abuse is appalling and shameful. It is also against the law.
Editor’s note: This piece is part of the Collection: Just Security’s Coverage of the Trump Administration’s Executive Actions