Senate Democrats are demanding the Trump administration provide information on its transfers to torture in El Salvador, including actions it has taken in response to court orders. On May 1, U.S. Senators Tim Kaine (D-VA), Chris Van Hollen (D-MD), Chuck Schumer (D-NY), and Alex Padilla (D-CA), introduced legislation outlining the questions they want answers to. (Just Security’s extensive coverage on these transfers, including our piece from March explaining why they violate the prohibition on nonrefoulement, is available here). Representative Joaquin Castro (D-TX) is leading companion legislation in the House.
The Senate bill – which takes the form of what is sometimes referred to as a “502B resolution” – would, in essence, force the State Department to provide Congress with a report detailing El Salvador’s human rights record, the United States’ efforts to promote human rights in that country, and any steps the Trump administration has taken to remedy the suite of rights violations associated with the transfers. Failure to provide the report, entirely or in reasonable fashion, would end (at least temporarily), or potentially restrict, U.S. security assistance to El Salvador.
It is encouraging to see members of Congress opposing President Donald Trump’s flagrant abuse of power, especially in the human rights context. We hope other members will follow suit, using all of the tools at their disposal. Given the news this week that the administration may imminently transfer people from the United States to Libya, which has a similar history of human rights abuses and “harsh and life-threatening prison conditions,” it seems the El Salvador transfers may be a blueprint for more to come. Unfortunately, this specific effort falls short in several important respects, including one that could risk reinforcing – if much more subtly – the dangerous false dichotomy the Trump administration is advancing to justify its broader immigration agenda.
What Is a 502B Resolution?
Section 502B of the Foreign Assistance Act of 1961 (codified at 22 U.S.C. 2304) requires that U.S. foreign policy seek “to promote the increased observance of internationally recognized human rights by all countries.” To that end, save for in extraordinary circumstances, it prohibits the United States from providing security assistance – including military, economic, and antiterrorism funding – to “any country the government of which engages in a consistent pattern of gross violations of internationally recognized human rights.” Section 502B defines those rights to include
torture or cruel, inhuman, or degrading treatment or punishment, prolonged detention without charges and trial, causing the disappearance of persons by the abduction and clandestine detention of those persons, and other flagrant denial of the right to life, liberty, or the security of person.
To assist in determining whether a foreign government is a gross human rights violator, the law established the mandate for the State Department’s annual country reports on human rights practices.
Section 502B also provides Congress with two related enforcement mechanisms: first, any member can request a report on human rights conditions in a target country through introduction of a simple resolution, which would move to the Senate floor on a fast-track process and require only a majority vote to pass. Second, the Senate Committee on Foreign Relations or the House Committee on Foreign Affairs can request the same by letter. The report must include: “all the available information” about a target country’s human rights practices; steps the United States has taken to promote human rights in that country, and “disassociate” itself and “any security assistance provided for such country from“ any rights disrespecting practices; the secretary of state’s opinion on whether extraordinary circumstances require security assistance to continue notwithstanding a country’s poor human rights record; and “such other information as such committee or such House may request.”
If a 502B resolution passes, or once the letter is received, the State Department has 30 days to submit the report. If it doesn’t, security assistance automatically cuts off until Congress receives the report, or separately authorizes such assistance while the report is outstanding. If the State Department does submit the report, Congress still has the option of terminating or restricting security assistance through an additional resolution that would proceed on the same fast track process noted above.
(For a more detailed description of 502B’s history and process, see this excellent piece by John Chappell at the Center for Civilians in Conflict).
The El Salvador 502B resolution: What does it get right?
The bill introduced last week makes some welcome moves aimed at forcing transparency and recognition by the U.S. government of El Salvador’s human rights record. It requests that Secretary of State Marco Rubio submit an updated report within 30 days on El Salvador’s human rights violations, including torture and inhumane treatment of detainees. It requests information on actions the U.S. government has taken to advance human rights in El Salvador and disassociate U.S. assistance from any violations. And it requests assessments by the secretary of state of the likelihood U.S. security assistance could be used in support of certain abuses and of the conditions at CECOT, the notorious prison where the people who were transferred out of the United States are being held, specifically. The State Department’s last country report for EL Salvador, published last year, detailed
[s]ignificant human rights issues,” including most relevant for this context, “credible reports of: unlawful or arbitrary killings; enforced disappearance; torture or cruel, inhuman, or degrading treatment or punishment by security forces; harsh and life-threatening prison conditions; arbitrary arrest or detention.
How is the El Salvador 502B resolution flawed?
An Information Gap
Unfortunately, the current bill is not designed to elicit much of the specific information regarding the immediate crisis that compelled it. The sponsors of the bill state that the legislation will
require the Trump Administration to produce a report detailing any steps the Administration is taking to ensure compliance with court orders applicable to U.S. citizens or residents wrongfully transferred by the U.S. to El Salvador; confirming whether U.S. security assistance has been used to support the illegal detention of U.S. residents; and assessing El Salvador’s human rights record.
But there are two critical problems with the El Salvador 502B resolution as introduced: The first is that it fails to request information that is instrumental to answering many of the above concerns. Second, and more concerningly, it potentially creates a false dichotomy with respect to who merits protection under U.S. and international law, in particular the prohibition on transfers to torture.
Let’s address the information gap first. Given the goal of remediating the administration’s recent illegal deportations to El Salvador, any legislation should demand information to establish, first and foremost, what if anything the administration is doing to seek release or return of these men. Second, the bill should seek to establish that the Trump administration failed to conduct an assessment of whether these men could be safely transferred to El Salvador, (including several who had court orders specifically barring their removal there), and that instead, the administration knowingly transferred them to torture and other gross human rights violations there, including potentially indefinite detention without charge. Finally, such a bill should elicit information that shows the government of El Salvador is holding these men on behalf of the U.S. Government.
Useful information to establishing the above would include: 1) specific steps the administration is taking, including conversations with members of the government of El Salvador, to facilitate release or return of the people wrongfully deported there; 2) any agreements—written or verbal—between the United States and El Salvador related to the transfers; 3) any analysis the State Department conducted regarding the conditions they would face, including conditions of confinement; 4) any conclusions it reached, including whether there were substantial grounds for believing that the men transferred would be in danger of being subjected to torture (in which case such transfers would be prohibited under domestic and international law); and 5) any diplomatic assurances the United States sought, and/or received, that the men would not be subjected to torture or ill treatment in El Salvador. (Such assurances would not suffice to remediate a knowing transfer to abuse, but they would be part of the picture regarding whether the administration took any steps to address known State Department-reported concerns with the conditions in the prison system there).
The resolution’s broader requests for information would reasonably be read to include at least some of this information, specifically the requests for assessment of CECOT and a description of the steps the United States has taken to promote respect for human rights in El Salvador and discourage violations. To the extent the U.S. government has received any diplomatic assurances regarding the care of these men, it would make sense to include such assurances in any response. Of course, given this administration’s general disregard for the power of the other branches, it would behoove members of Congress to be specific in their requests.
And any bill should request information on any agreement(s) between the United States and El Salvador for El Salvador holding individuals on behalf of the United States. The resolution merely nods toward the existence of such an agreement, referencing it in its request for “a description of actions the United States Government is taking to provide due process in compliance with United States law for relevant persons detained or imprisoned in El Salvador through an agreement with the United States Government.” But it doesn’t actually request the agreement(s).
Section 502B clearly allows Congress to ask specifically for all of this information, and the better approach would have been to do so.
Language That Gets It Dangerously Wrong
This first problem with the bill is a significant missed opportunity, but only that. Problem two is far more consequential: in several places the resolution could be perceived to draw false distinctions about the applicability of fundamental human rights based on immigration status. In other words, that not all people have the right to be free from torture, enforced disappearance, rendition, unlawful detention, and other abuses. U.S. law specifically prohibits the knowing transfer of any person to such conditions. But some of the language in the bill could be perceived as calling that categorical protection into question.
Specifically, there is one reference in subsection (b)(3)(D) to “United States citizens or legal residents” (emphasis ours). This distinction is made in the bill’s requests for information on U.S. actions to address “efforts to facilitate the detention, torture or forced disappearances” of such individuals. It is possible this reference is a mistake, particularly given that elsewhere in the same paragraph, and throughout the document, the requests are made with respect to information on “United States citizens or residents,” without the qualifier. Given the explicit impetus for this bill in addressing the recent transfers of men with a range of immigration statuses to El Salvador, we hope that the drafters intended the term “resident” (which is not defined in the Immigration and Nationality Act) to cover any and all of the broad range of individuals who might be present in the United States. There is a real risk, however, that it could be read narrowly. Better language would refer to all individuals detained or transferred from the United States. And the possibly unintentional inclusion of the term “legal” in the above language should be removed altogether.
Another section also invites confusion. Subsection (b)(3)(E) requests information on “a description of actions the United States Government is taking to provide due process in compliance with United States law for relevant persons detained or imprisoned in El Salvador through an agreement with the United States Government.” (emphasis ours). It is unclear what work “relevant” is doing in this sentence, and there is a risk given the prior “legal” language that each of these terms is read to apply only to U.S. citizens and to persons who have already obtained legal authorization to reside in the United States.
Language from the senators’ quotes in their joint press release – which includes terms like “people living in the United States” and “individuals removed from the United States to be detained at the mega-prison” and “those wrongfully deported to El Salvador” – suggests that they intend the bill to apply broadly. A narrower reading would, or at least could, exclude many or possibly most of the people wrongfully deported to El Salvador, including Kilmar Abrego Garcia himself. Given the senators’ stated goals, that would be an absurd result of their effort.
What’s the Fix?
Resolving these problems is fairly simple. As a matter of substance, the authors should revise the resolution to add requests for the categories of information described above, specifically:
- steps the administration is taking to facilitate release or return of the people wrongfully transferred there (not only those with current court orders requiring as much);
- any agreements–written or verbal—between the United States and El Salvador related to the transfers;
- any analysis the State Department conducted regarding the conditions they would face including conditions of confinement
- any analysis the State Department conducted, and any conclusions it reached, regarding whether there were substantial grounds for believing that the men transferred would be in danger of being subjected to torture; and
- any diplomatic assurances the United States sought, and/or received, that the men would not be subjected to torture or ill treatment in El Salvador.
Second, in sections where the resolution refers to persons the United States has transferred to El Salvador, they should replace “U.S. citizens or residents” (including the one reference to “legal residents”) with: “anyone within the United States jurisdiction or effective control who has been transferred to detention in El Salvador since January 20, 2025.” This fix would also capture anyone the administration seeks to transfer from Guantanamo, which even the broadest reading of the resolution as currently written would not.
Finally, in light of reports that the Trump administration is on the precipice of transferring a group of people to Libya, the resolution should be revised to add the same information requests with respect to Libya. (Whether to include the request regarding release or return of those wrongfully transferred there would depend on facts on the ground when a revised resolution is introduced). To the extent that any questions arise about whether a single 502B resolution can include multiple countries, past practice makes clear that it can. Each of the first two times that Congress used section 502B’s enforcement mechanism, both in 1976, the requests included multiple countries (Argentina, Haiti, and Peru the first time; Iran and Indonesia the second time). Both requests were by letter, as opposed to resolution – from the Chairman of the then-called Committee on International Relations – but there is nothing in the statute that would distinguish between either enforcement procedure.
Process-wise, the simplest solution is for the resolution’s sponsors to withdraw it, amend it, and reintroduce it.
Again, we want to emphasize the importance of members of Congress leveraging the power that Section 502B affords them to check one aspect of the Trump administration’s assault on human rights. It is much-welcome, both in the context of the unlawful transfers to El Salvador and as a reminder to others in Congress that there are a variety tools at their disposal to check executive branch overreach. And it is important to demonstrate that there remain people in the American government who are invested in how the United States treats people in its care, including the most vulnerable. The prohibition on transfer to torture is a fundamental human right. It is universal. And it is enshrined in U.S. law in both treaty and statute. It is absolutely critical when promoting such fundamental rights that members not undermine them in the process.
