The U.S. arrest and removal to El Salvador’s prison gulag of Kilmar Abrego García, a Salvadoran citizen legally residing in the United States, has created a firestorm related to the lack of due process in the U.S. But what about due process in El Salvador? Could Abrego Garcia — and anyone the Trump administration has targeted to follow that path — use the Salvadoran courts to demand, at least, a hearing before being locked away indefinitely?
Sadly, probably not. In an ostensible effort to fight admittedly rampant gang violence, President Nayib Bukele, who took office in 2019, has turned El Salvador into even more of a lawless, opaque State with a compromised judicial system. How it got there should be a cautionary tale for the United States. Instead, President Donald Trump’s deportations of U.S. immigrants to a notorious prison there and his administration’s deals with Bukele risk drawing the United States into a similarly grim reality in which people are whisked into prison with no proof of crime and no ability to access counsel or even to let their families know where they are.
Detention in El Salvador
Every morning, dozens of women gather around the doors of El Salvador’s many prisons, seeking news of their children or relatives. They rarely receive word, since under the “state of exception” that gave Bukele extraordinary powers in March 2022 with the stated intent of reducing gang violence, the government usually will not confirm where in the many prisons a family member is being held, or even if they are being held at all. Prisoners, in turn, have no right to contact their families and no effective right to provide evidence that they are not who the government says they are or that they could not possibly be in a gang.
The state of exception (roughly, martial law), passed by the Bukele-controlled national Legislative Assembly, asserts that it was “derived from the serious disturbances to public order by criminal groups that threaten the life, peace, and security of the Salvadoran population.” In particular, the decree was a response to the failure of negotiations between the government and the gangs, which gave rise to a sharp increase in gang killings. Under the Constitution, certain rights can be suspended in cases of grave disturbances of public order. Such suspensions are supposed to only last 30 days but are renewable; this one has been extended every month by the legislature. The state of exception suspends the right to receive information about an arrest, to avoid self-incrimination, to have prompt access to an attorney, and to the privacy of communications. So when human rights groups in El Salvador tried to get information on the jailed deportees who were flown in from the United States, they were refused, just as has been the case with Salvadoran families seeking information on their detained loved ones.
The state of exception is only the tip of the iceberg. A combination of legal “reforms,” the passivity of the hand-picked Constitutional Chamber, and de facto impunity for the police and armed forces because the prosecutors’ office won’t bring cases against them have created a wraparound regime that now has more than 85,000 people detained, potentially indefinitely. Added to existing prisoners, there are now more than 100,000 people in prison, the highest percentage relative to population in the world.
Under the state of exception, most arrests have been the result of anonymous phone calls to a hotline, without any other evidence. Suspects can be detained if they already have a police file, but according to eyewitnesses interviewed by a local human rights group, the police make these up on the spot when they arrest someone, and then backdate them. There is enormous pressure on security forces to arrest more supposed gang members. The reason for detention is often given as “permanent in flagrante,” which is an oxymoron (being in flagrante delicto or “caught in the act” only applies by law to detentions less than 24 hours after committing a crime and so is by definition impermanent), and it is also completely vague, but it avoids the need for arrest warrants. Specific criminal charges are rare: most of the people detained are initially charged solely with ”illegal association.” And the law was changed in 2022 from allowing up to three years of pretrial detention (already of course unusually long) to permit indefinite pretrial detention for gang-related charges, with no requirement for trial within a specific amount of time. Bail cannot be granted for these charges. Juveniles can be treated as adults.
These new laws, with the state of exception, make it exceedingly hard to get someone out of jail, even without evidence against them. A study from local rights group Cristosal showed that only 10 percent of those arrested have been released, and of those only 1 percent have been definitively let go, with the rest subject to rearrest at any time. The right to habeas corpus has been interpreted out of existence by the current Constitutional Chamber, which has characterized the multiple petitions filed as dealing with a matter of “mere legality” and said that courts have no ability to second-guess decisions of the arresting authorities.
All this, predictably, has created huge pressures on El Salvador’s legal system writ large, including severe prison overcrowding and the almost complete inability of understaffed public defenders to represent — or even access — their clients. The worst prison is not even the oft-photographed Terrorism Confinement Center (CECOT), where the first group of 200-plus U.S. detainees were brought, but an archipelago of older prisons where allegations of torture and mistreatment abound. Human rights groups report that almost 400 people have died in custody.
In addition to the state of exception, a new law passed by the Legislative Assembly in July 2023 created a system of specialized courts, and anonymous or “faceless” judges now can hold hearings via videoconference with their faces obscured, even though such anonymous judges have been found to violate the American Convention on Human Rights in a case against Peru despite the cited security-related rationale. The law also allows trials in absentia, as well as “megatrials” of everyone supposedly involved with a single criminal structure — potentially hundreds of people. To be sure, this could be an efficient way to hold trials in cases in which individual hearings would take centuries, as has been done in Argentine human rights trials, but those were smaller groups of defendants and only with strict safeguards to ensure convictions are based on individualized consideration and not based solely on membership in a group. In El Salvador, to the contrary, there appear to be few such guarantees, and the limits on individual counsel and lack of ways to protect against conflicts of interest among defendants portend a spate of summary convictions. To date, the prosecutor has announced the opening of cases, but none have moved forward.
First, They Came for the Judges
Bukele initially entered the presidential race without his own political party and spent his first term in office building his “New Ideas” party into a majority. He took over existing right-wing parties and ran in opposition to the historic right- and left-wing parties that had governed the country since the country’s more than decade-long civil war ended in 1992. He won in 2019 but only gained a legislative majority in 2021. Since then, the Legislative Assembly has been a rubber stamp, with little debate or public input into executive branch proposals.
Bukele’s first move was to bring the courts under his effective control. On the day the new Assembly first convened in May 2021 with his party in the majority, it fired the attorney general and all the members of the country’s Constitutional Chamber of the Supreme Court. This was clearly illegal, but there was nowhere to challenge it, so now he had a Constitutional Chamber that would not rule against him. Bukele followed this with an ostensibly neutral civil service “reform” that forced the removal of any judge in the country over 60 years old or with more than 30 years of service. Among those removed were judges hearing human rights-related cases and those who had shown independence. Those judges who were left can be taken off a case or moved around the country at the will of the Supreme Court, leaving them vulnerable to summary removal if they angered the authorities. In one of its first decisions as, essentially, Bukele’s pet court, the reconstituted Constitutional Chamber in September 2021 found him eligible for reelection, despite clear constitutional language to the contrary.
Bukele also moved quickly to bring other sources of potential opposition under his control. The Institute for Access to Public Information, under its new leadership, refused to provide data on sensitive subjects like homicides and government spending. A new public contracting law made government contracting, including the contracts and costs of new prisons, a state secret. The State Auditors’ office, Human Rights Ombudsman, and Electoral Tribunal were stacked with Bukele loyalists, in an effort to create a unitary executive from previously independent agencies. The public University of El Salvador was starved of funds.
The Legislative Assembly also changed the laws to make constitutional amendments easier. It ensured the electoral dominance of Bukele’s party by gerrymandering, including by reducing the number of municipalities from 262 to 44 (ostensibly on efficiency grounds), making it harder for opposition parties to get a foothold. Meanwhile, an extensive media operation and the real (if exaggerated) decline in gang-related crime means that Bukele remains extremely popular with his base. The state of exception itself also remains popular, although when pollsters ask about specific detention and trial practices, that support evaporates.
Sound familiar? It Should.
This state of affairs in El Salvador has led to scathing reports from the Inter-American Commission on Human Rights, Amnesty International, the Washington Office on Latin America, Freedom House and even (as of 2023) the U.S. State Department. So far, Bukele’s control of media and institutions, and at least some real decreases in gang-related crimes, have meant that these critiques have been met by angry defiance from Bukele and his supporters. Ultimately, it may be that what finally shatter’s Bukele’s aura of impunity will be increasing economic difficulties rather than these massive rights violations. The danger is that, in the face of an economic downturn and the resulting social unrest, Bukele will expand his dragnet and its consequences.
Here too, El Salvador may become a harbinger of what is in store for the United States.