The U.S. State Department has now declassified (from the level of “confidential”) and publicly released the text of three documents pertaining to the “dirty deal” between the United States and El Salvador for the transfer and indefinite detention of alleged members of Venezuelan gang Tren de Aragua and the Salvadoran gang MS-13.
The following analysis of these documents is informed by my time as a State Department lawyer, beginning in the treaty office and involving many years working on diplomatic assurances—including with respect to detainee treatment.
I focus on two aspects of the diplomatic notes: what they tell us about a weak legal cover for potential U.S. complicity in the abuse of detainees renditioned to El Salvador, and about the continuing U.S. control over these detainees.
These documents have been the subject of requests by ranking members of Congress and litigants following the rendition of hundreds of Venezuelans and a small number of Salvadorans to the Salvadoran prison known as CECOT in March—the rendition of Venezuelans being effectuated under the purported wartime authority of the Alien Enemies Act.
The documents provide few additional details on the prisoner transfer arrangement between the United States and El Salvador—telling in its own right. Rather than memorializing the full terms of the deal, the principal function of these documents appears to be establishing a written record that the United States sought and received (and then sought to remind El Salvador of) assurances that detainees transferred to El Salvador would be treated humanely and not tortured, consistent with El Salvador’s obligations under the Convention Against Torture.
Seeking such assurances that foreign partners will not violate international law is a longstanding practice by the U.S. government—a practice of dubious value. Here it seems that State Department lawyers sought to create a paper trail in an attempt to rebut claims that the United States or U.S. officials renditioned people to El Salvador intent that they be abused—actions that could violate the United States’ own treaty obligations and potentially expose U.S. officials to criminal prosecution abroad. These documents should be understood as a legal fig leaf.
Form of the Arrangement
The form of the written detainee deal with El Salvador is (as previously gleaned from public reporting) a set of diplomatic notes. The underlying arrangement is described in a pair of notes dated March 13 and March 14—an outgoing U.S. note and the incoming Salvadoran note respectively. A subsequent U.S. diplomatic note dated March 31 was also released.
Consistent with my prior assessment, the notes constitute a legally non-binding arrangement rather than a legally binding agreement having the status of a treaty under international law. The documents eschew language typically reserved for binding instruments such as “agree” in favor of formulations commonly used for non-binding arrangements such as “understands” and “requests.” This conclusion on the legal status of the diplomatic notes is reinforced by the fact that the State Department released them explicitly pursuant to 1 USC 112b(b)(1), a provision of the amended Case-Zablocki Act for “qualifying non-binding instruments.”
Terms of the Dirty Deal
The March 13-14 exchange of notes was conducted between the U.S. senior bureau official for the Western Hemisphere (himself a former senior State Department lawyer) and El Salvador’s Foreign Minister.
March 13 U.S. Note
The U.S. note requests that El Salvador accept “César Antonio
Lopez Larios, Mara Salvatrucha (MS-13) gang leader requested by President Bukele, César Eliseo Sorto Amaya, MS-13 gang leader convicted of murder in El Salvador, and up to 500 Venezuelan Tren de Aragua (TdA) members.”
The U.S. note then sets out a legal disclaimer.
The United States understands that El Salvador will take these actions in accordance with its authorities under Salvadoran domestic law, and in a manner that is consistent with El Salvador’s international legal obligations regarding human rights and treatment of prisoners, including the Convention Against Torture.
The disclaimer appears intended to accomplish two objectives. First, to indicate El Salvador (rather than the United States) exercises control over the renditioned detainees. Second, the disclaimer seeks to disavow any intention on the part of the United States or U.S. officials that El Salvador will treat these detainees in violation of international law, including by torturing them or subjecting them to cruel, inhumane, or degrading treatment forbidden by the Convention Against Torture.
Notably, despite the disclaimer with respect to detainee treatment, the U.S. note does not request any mechanism for ongoing monitoring of the treatment by El Salvador. (Such monitoring mechanisms were a standard element that colleagues and I sought to include in any detainee transfer arrangement during my own time at the State Department.)
Yet, the next sentence of the U.S. note undercuts the first part of this disclaimer. “Further, with regard to the TdA members, the United States understands El Salvador intends to accommodate them for a duration of one year unless or until a determination concerning their long-term disposition is made” (emphasis added).
Although not explicit, this sentence strongly implies that the United States retains some meaningful authority to decide on the disposition of detains sent to El Salvador. The inclusion of this understanding only makes sense if it is the United States—not El Salvador making the determination on long-term disposition. Without such an understanding, El Salvador as the notional custodian of the detainees could make a contrary determination at any time. This interpretation of the text is also supported by detailed and elaborate remarks by El Salvador’s vice president in a video recorded interview with Senator Chris Van Hollen, and by El Salvador’s statements to the United Nations.
This understanding bears on the issue of whether the United States retains constructive custody over detainees renditioned to El Salvador for a major class action case pending before Chief Judge James Boasberg and for other cases in which federal judges have ordered the government to facilitate the return of individuals wrongfully sent to El Salvador (such as J.O.P. v DHS and Melgar-Salmeron v. Bondi).
The implication that the United States retains some control over detainees sent to El Salvador contradicts public assertions by Trump administration officials. The US Attorney General asserted with respect to the return of Kilmar Abrego Garica that it was “up to El Salvador if they want to return him. That’s not up to us.” In court, the Department of Homeland Security was notably much more nuance. The department claimed “DHS does not have authority to forcibly extract an alien from the domestic custody of a foreign sovereign nation.” The latter statement may also be understood as narrow and consistent with the diplomatic notes. Indeed, those notes (and international law in general) do not provide the United States authority to “forcibly extract” individuals, but the notes do suggest some degree of continuing U.S. control over the individuals sent to and held in CECOT prison.
The U.S. note then refers vaguely to the consideration the United States intends to provide in return for accepting these detainees—unspecified “in-kind and financial support to the Government of El Salvador.” The lack of detail on these critical elements of the arrangements—the U.S. quid for the Salvadoran quo—strengthens the impression that these diplomatic notes memorialize only part of the deal between the United States and El Salvador. The note states that this consideration is also provided to advance the shared “anti-crime and anti-drug objectives of our two countries.”
The understanding that the diplomatic notes do not include the complete US-Salvadoran arrangement is further buttressed by the U.S. note stating that it “serves as 24-hour notice of the arrival of the Lopez Larios, Amaya, and up to 500 Venezuelan TdA members.” The alleged TdA members were those Venezuelan men that the United States would subsequently fly to El Salvador on March 15 under the supposed authority of the Alien Enemies Act. It is extremely unlikely that the United States would only provide El Salvador with 24-hours’ notice of the transfer of hundreds of detainees. Instead, this notice followed what were reportedly months of discussions and negotiations between the two countries likely produced additional, unwritten (if not also written) understandings.
March 14 Salvadoran Note
El Salvador’s diplomatic note in response dated March 14 and signed by the foreign minister, largely mirrors the U.S. note and likely was primarily drafted by the United States (a common practice).
The Salvadoran note refers to the individuals to be transferred as members of “foreign terrorist organizations” (a reference to the United States prior such designation of MS-13 and TdA in February)—an element missing from the U.S. note. The note proceeds to reaffirm El Salvador’s “commitment to assist the United States in combating terrorism … while upholding human rights.”
Consistent with the U.S. note, the Salvadoran document “confirms [El Salvador] will house these individuals for one (1) year, pending further decisions on their long-term disposition.” As with the U.S. note, the Salvadoran document does not explicitly state who decide upon the long-term disposition, but the definite implication is that particular decision rests with the United States.
The Salvadoran note also contains explicit diplomatic assurances on the treatment of the detainees which includes a more precise reference to the relevant treaty than its U.S. counterpart. “Furthermore, we assure you that the reception of these individuals will be conducted in accordance with Salvadoran law and international obligations, including adherence to the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, of which we have been a signatory since May 19, 1994.”
The inclusion of this humane treatment assurance from El Salvador’s foreign minister combined with the dearth of details on the transfer arrangement itself, further reinforces the impression that this exchange of notes was conducted at the behest of State Department lawyers providing (some) legal cover for the United States and U.S. officials.
It is also remarkable that by its terms, this exchange of notes does not cover the transfer of Kilmar Abrego Garcia, a Salvadoran man living in Maryland, who was erroneously removed from the United States to El Salvador on March 15. The mismatch between the written terms and the application of the deal may reflect that the arrangement also encompassed unwritten understandings, or the reportedly chaotic implementation of the deal, or both.
March 31 U.S. Note
The documents recently disclosed by the State Department pertaining to detainee transfers to El Salvador also include a subsequent outgoing U.S. diplomatic note—one without a corresponding Salvadoran response.
The U.S. note concerns a later transfer of 16 individuals to El Salvador on March 30—seven Venezuelans alleged to belong to TdA and nine Salvadoran alleged to be members of MS-13. Significantly, the U.S. diplomatic note postdates the transfer rather than preceding it and contains this reminder to El Salvador regarding El Salvador’s detainee treatment assurances. “The United States highlights the importance of the Government of El Salvador’s previous assurance that El Salvador’s reception and treatment of TdA and MS-13 individuals will be in accordance with Salvadoran law and international obligations, including adherence to the Convention Against Torture.”
That this reminder should be delivered after the March 30 transfer suggests that State Department lawyers may not have been aware of or otherwise in a position to reconfirm humane treatment assurances prior to the March 30 rendition flight. That the State Department felt the need to deliver this reminder at all likely reflects ongoing concern by lawyers about whether El Salvador was in fact treating detainees consistent with international law.
The March 30 U.S. note also frames U.S.-Salvadoran cooperation in terms of El Salvador’s support for “combatting the crisis of illegal immigration and its acceptance of Foreign Terrorist Organization members.” This characterization of U.S.-Salvadoran cooperation is different from that in the earlier U.S. note, which lists the shared objectives as “anti-crime and anti-drug.” This shift in framing may flow from the reportedly haphazard first wave of rendition flights on March 15 which Salvadoran President Bukele said he understood to be conveying convicted criminals, despite the fact that few of the Venezuelan men being transferred had been convicted of any crimes.
Not Reassuring
Taken together, these diplomatic notes appear to represent an attempt by State Department lawyers to establish a legal fig leaf after the fact for U.S. government policies and actions they were unable or unwilling to stop or substantially influence at the front end. The humane treatment assurances and reminder contained within these documents appear intended to counter claims that the United States is violating the prohibition on transfer to torture as well as allegations that individual U.S. officials aided and abetted torture (actions that could expose them to legal jeopardy overseas).
The U.S. government routinely makes use of diplomatic assurances of compliance with international law in providing support to or operations with foreign partners. Such assurances are a standard practice in the context of detainee transfers (including law-of-war detainees such as those held at Guantanamo Bay) and sometimes used in connection with arms transfers, such as those to Saudi Arabia and Israel in recent years. As in this case, written assurances are commonly memorialized through exchange of non-binding, diplomatic notes.
Notionally, the strength of assurance (according to the legal lore of the U.S. executive branch) rests upon them being both credible and reliable. “Credible” assurances are generally ones that are believable. To be “reliable” assurances must be provided by an official who can speak authoritatively on behalf of the foreign partner.
In practice however, what matters is whether assurances are sought and provided in good faith and whether the U.S. government is willing and able to use leverage to ensure compliance. Such leverage can include monitoring mechanisms and the credible threat of consequences for non-compliance—consequences such as the suspension of U.S. financial or other support. All too often however, the U.S. government treats obtaining assurances as a box checking exercise rather than a serious attempt to prevent complicity in violations of international law.
Here, there is particular reason to be skeptical of the assurances provided by El Salvador.
It is hard to imagine a reason for sending Venezuelans to be indefinitely detained at CECOT that does not involve outsourcing their mistreatment or creating the perception of such mistreatment. Salvadoran prisons and CECOT in particular, are notorious for their conditions. The U.S. Department of State’s own human rights report from 2023 recounts allegations of “systemic abuse in the prison system, including beatings by guards and the use of electric shocks.”
Senior U.S. officials have been very clear that the brutality of CECOT is a feature not a bug for the U.S. rendition project—undercutting attempts to pretend the U.S. government did not know and intend that transferred detainees would be abused. The day after the initial transfer, President Trump and Secretary Rubio each reposted on social media a video of the detainees being man-handled and forcibly shaved upon their arrival at CECOT. Trump subsequently threatened to send those who vandalized Teslas to prison in El Salvador, which he sarcastically noted “have become so recently famous for such lovely conditions.” Secretary Kristi Noem filmed a video standing in front of an overcrowded cage of CECOT prisoners, saying the notorious prison would be serve as a deterrent — “one of the tools in our toolkit that we will use if you commit crimes against the American people.”
Kilmar Abrego Garcia—the man wrongly renditioned from Maryland to CECOT and subsequently returned to the United States—alleges in court filings that “he was subjected to severe mistreatment upon arrival at CECOT, including but not limited to severe beatings, severe sleep deprivation, inadequate nutrition, and psychological torture.”
In addition, Human Rights Watch has characterized the U.S. transfer of men to CECOT as amounting to enforced disappearance—a crime under international law.
Although the United States certainly has leverage with the Bukele government to ensure humane treatment of detainees renditioned to El Salvador (despite some U.S. officials’ claims to the contrary), doing so would undermine the apparent purpose of sending them to the country in the first place.
The legal fig leaf of these assurances may even be counterproductive, to the extent the subsequent reminder of assurances reflects an awareness that the United States and U.S. officials are treading on legally treacherous ground. Should U.S. officials ever be haled into court abroad on charges relating to the treatment of detainees sent to CECOT, this legal fig leaf could well be treated as consciousness of guilt.
Yet More Ex Post Lawyering
The U.S.-Salvadoran diplomatic notes appear to be of a piece with ex post lawyering by executive branch attorneys within the Trump administration. Unable or unwilling to stop or substantially shape legally fraught or even patently unlawful conduct on the front end, lawyers are left trying to apply legal lip stick, attempting to mitigate harm, or defending scofflaw policies.
In this case, lawyers couldn’t or wouldn’t stop the spurious invocation of the Alien Enemies Act and its application against migrants. Nor could or would they prevent those migrants being disappeared indefinitely to a notorious prison abroad as part of a sadistic stunt. Instead, they were left to ask for implausible assurances that detainees would be treated lawfully and humanely—assurances contrary to the very apparent purpose of dispatching people to CECOT.
I have previously argued that executive branch lawyers need to be more proactive so that they can effectively advise on the front end and help the U.S. President fulfill his constitutional duty to “take Care that the Laws be faithfully executed.” The dirty deal with El Salvador is yet another reminder of this necessity.
