On March 15th, the Trump administration sent three planes carrying 238 Venezuelan migrants (as well as 23 Salvadorans) to El Salvador to be indefinitely detained in the notorious prison known as CECOT. Of the Venezuelans, 137 were renditioned to El Salvador under the supposed deportation authority of the 1798 Alien Enemies Act, which President Trump had invoked hours earlier, and for the first time since World War II. The threat identified in the proclamation triggering the Act was supposedly “an invasion of and predatory incursion into the United States” by the Venezuelan criminal group, Tren de Aragua.
The transfer of these migrants to CECOT for indefinite detention was conducted at least partly pursuant to an as yet unreleased written deal between the United States and El Salvador. This deal is the subject of formal requests from ranking members of both the House and Senate foreign affairs committees as well as the plaintiffs in legal challenges over transfers to El Salvador.
What follows is some of what we know about this deal and relevant legal issues upon which the terms of the deal could shed light—including substantive issues such as whether the United States retains constructive custody. Ultimately, however, sworn testimony by administration officials may well be needed to understand the precise terms, and what has actually occurred, with these renditions and any more that might follow.
The Written Instrument
The form of the written rendition and detention deal is an exchange of diplomatic notes reportedly conducted on or around March 13th and 14th. While it might be assumed that other forms of written instruments (say, for example, styled as a written agreement signed by both States) might be more common, such a format is not unusual in U.S. practice to memorialize either legally binding obligations or non-binding international commitments.
In this case, the instrument appears to be a non-binding arrangement as opposed to a binding agreement. In a declaration submitted to federal court, a longtime State Department official (and former senior lawyer within the Department) refers in passing to an “arrangement” between the United States and El Salvador (a term often reserved in U.S. practice for non-binding instruments). That inference is bolstered by reporting that the arrangement between the two countries is a “cooperation agreement but in a friendly non-binding fashion,” according to the words of a U.S. official. This attention to the binding/non-binding distinction suggests at least some input from the State Department’s lawyers.
Some of the terms of the arrangement, reported by the Associated Press, CNN, the New York Times, and the Washington Post include:
- El Salvador would receive up to 300 members of Tren de Aragua (or at least those the U.S. government alleged to belong to Tren de Aragua)
- The United States would pay El Salvador to imprison the rendered individuals, around $20,000 per detainee (proposed terms; not necessarily finalized)
- El Salvador would imprison the individuals for a year “or until a determination concerning their long-term disposition is made” (as specified in a formal notice from Secretary Rubio dated March 13th according to the Washington Post, which could correspond to the outgoing U.S. diplomatic note)
- “The Republic of El Salvador confirms it will house these individuals for one (1) year, pending the United States’ decision on their long term disposition” (described by the Associated Press as a memo from El Salvador’s Ministry of Foreign Affairs, which could correspond to the incoming Salvadoran diplomatic note that completed the exchange of notes)
There are also reports of other details raised during the course of negotiations—such as a 50% discount for a second year of imprisonment of alleged Tren de Aragua detainees if the United States returns nine members of the gang MS-13 to El Salvador—though it is unclear whether these elements were included in the written instrument.
What the Written Arrangement May Reveal
The transfer of migrants from the United States to El Salvador and their subsequent imprisonment in CECOT has raised a host of domestic and international law problems. They include the invocation of the Alien Enemies Act (which a Trump-appointed judge in the Southern District of Texas recently found was indeed improperly invoked with respect to purported actions of Tren de Aragua), the absence of due process for those rendered, the constitutional prohibition on punishment without charge or trial, possible violation of U.S. non-refoulment obligations given the risk of abuse—including torture—at their destination, arbitrary detention, the reach of habeas corpus abroad and constructive custody, and enforced disappearance.
The release of the arrangement between the United States and El Salvador (legally required at least to Congress under the amended Case-Zablocki Act due to requests from the ranking foreign affairs committee members) could shed light on some of these issues. For example, the codified terms of the arrangement could potentially bolster the argument that the United States retains constructive custody over the people rendered to CECOT.
Why Sworn Testimony Is Likely Still Needed
But the text of these diplomatic notes may not fully capture the extent of the arrangements and understandings between the United States and El Salvador. There may have been other understandings reached among officials prior to and/or postdating these diplomatic notes, including some that may not be memorialized in written form at all or that were not exchanged between the two States.
A broader release of relevant documents is likely necessary to shed accurate light on the arrangement, as recently proposed by Representative Joaquin Castro (D-TX). Still, even that may not be sufficient if some of the relevant details of the deal with El Salvador may never have been reduced to writing.
To ultimately nail down the complete terms of this arrangement, the depositions or sworn testimony of senior Trump administration officials in court or before Congress will likely be required.
What’s more, the actual implementation of the deal with El Salvador may not have followed its terms—written or otherwise, prior to or following the March 14th exchange of notes—and may have changed over time. This makes sworn testimony of not just those involved in negotiation of the arrangement, but also those involved in its implementation, an urgent matter. The fate of at least 238 men (and possibly many more to come) are at stake, as is the rule of law more broadly. If ever a situation called for oversight by the Executive’s co-equal branches, this is it.
