A legal architect of Guantanamo questions Trump's El Salvador plan
09:59 Share

Hey, it's Elsa Chang. Before we get to the show, there's an anniversary on Saturday that we wanted to shout out. Fifty-four years ago, on May 3rd, 1971, a brand new outlet called National Public Radio went on the air with the very first episode of All Things Considered. Listeners heard from a barber talking business in Iowa, poet Allen Ginsberg, and Vietnam War protesters in Washington, D.C.,

More than a half century later, we're still considering all the things. And your support makes it all possible. It's the last day of public media giving days. When you donate, you ensure that we can keep reporting the facts and bringing you stories that inform and inspire. So visit donate.npr.org to give. And thank you so much. Now to the show. ♪

The U.S. has sent people it has detained, people it says are terrorists, to a prison overseas. And there is no end date. The men are effectively detained indefinitely. This is true in 2025. And it was also true two decades ago. I would characterize Montanamo Bay, Cuba, as the least worst place we could have selected.

Its disadvantages, however, seem to be modest relative to the alternatives. That is former Defense Secretary Donald Rumsfeld, just three months after the 9-11 attacks, announcing the plan to house captured Taliban and al-Qaeda fighters in a military prison at the U.S. Naval Base in Guantanamo.

Ultimately, the U.S. would bring hundreds of people from many countries to Guantanamo. Fifteen remain at the prison today, six of whom have never been charged with a crime. When the prison opened, Rumsfeld made a new legal argument for this indefinite foreign detention. They would be handled not as prisoners of wars, because they're not, but as unlawful combatants.

As I understand it, technically, unlawful combatants do not have any rights under the Geneva Convention. According to Rumsfeld, the prisoners had no U.S. constitutional rights to challenge their detention. But they also had no Geneva Convention rights as prisoners of war. It's why critics called Guantanamo a legal black hole.

And that's almost the same phrase human rights advocate Noah Bullock used to describe what happened to the migrants that the Trump administration has deported to El Salvador. He runs a group there called Cristo Sal. Essentially, they're in like a judicial black hole, disappeared into one of the most brutal prisons in the hemisphere.

The Trump administration has deported at least 261 foreign nationals, mostly from Venezuela, to El Salvador's maximum security terrorism confinement center prison.

The U.S. is paying El Salvador for this service. And the Trump administration also now says that U.S. courts cannot compel the government to return these migrants, even for the due process that they are guaranteed by the U.S. Constitution. The U.S. argues that the cases of these migrants are now a matter of foreign policy.

policy under the authority of the executive branch. So the detainees remain in the custody of a government that Noah Bullock says has normalized cruelty. The state of exception in El Salvador has become so normalized that I think that nobody questions the premise that the state can do whatever it wants to whoever it wants and there's no institution that could intervene to protect your rights.

Consider this. The George W. Bush administration came under heavy criticism for its treatment of detainees at Guantanamo. One of the legal architects of the Bush administration's policies says this. President Trump's El Salvador prison plan crosses legal lines established after 9-11. From NPR, I'm Elsa Chang.

This message comes from ICF, where AI-powered tools and technology drive efficiency, outcomes, and mission success across government and industry. ICF's data-driven solutions speed delivery, fast-track results, and help you move forward with confidence. Experience the power of advanced technology and expert insight. Let's build an AI-ready future. Start at ICF.com. That's ICF.com.

Hey, it's Aisha Harris from Pop Culture Happy Hour. If you love NPR podcasts, you'll want the new NPR Plus podcast bundle. Enjoy an all-you-can-eat selection of NPR Plus podcasts with sponsor-free listening and bonus episodes. Plus, you'll be supporting public radio. Check it out at plus.npr.org.

Tariffs, recessions, how Colombian drug cartels gave us blueberries all year long. That's the kind of thing the Planet Money podcast explains. I'm Sarah Gonzalez, and on Planet Money, we help you understand the economy and how things all around you came to be the way they are. Para que sepas. So you know. Listen to the Planet Money podcast from NPR. Planet Money

It's Consider This from NPR. John Yoo is now a law professor. As a Justice Department lawyer in the George W. Bush administration, he wrote the legal justification for the government's treatment of Guantanamo detainees, now widely referred to as the torture memos. Recently, Yoo has argued that there are

key legal differences between what the Bush administration did and what the Trump administration is now attempting, deporting people to an El Salvador prison without due process hearings. I think there are superficial parallels. For example, President Trump is claiming wartime authority, invoking something called the Alien Enemies Act of 1798.

The Bush administration also claimed wartime authority to be able to hold enemy prisoners at Guantanamo Bay. But there are important differences. The primary one, I think, is are we really at war? I think after 9-11, not just President Bush, but Congress and the Supreme Court all agreed the 9-11 attacks had started a state of war.

Here, President Trump, he is claiming that we're at war with Venezuela, and he is claiming that this gang, Trendel Aragua, is sort of like a military arm of Venezuela.

But he has no agreement from any of the other branches. In fact, a federal district court judge just rejected that idea. Saying that the Trump administration's use of the Alien Enemies Act to remove a group of migrants in Texas actually is not proper. Yes, because there's no state of war. And then the second difference is no matter whether there was a state of war or not, the Bush administration view,

in which I participated developing, was that anyone who was captured in the United States had a right to due process, whether they were an American citizen or an alien, whether they were an al-Qaeda member or some kind of sympathizer. And we took the view if they were caught in Afghanistan or in Iraq,

They were not entitled to due process in U.S. courts because that had been the traditional practice in war. The Trump administration seems to be taking the opposite view. They think that you could deport people under the Alien Enemies Act who are in the United States without any due process at all. And that is, I think, a challenge to the settled rules that

We and the courts came up with in the years after the September 11 attacks. I was just going to ask you because, yes, the Supreme Court did eventually rule against the Bush administration on some of its policies towards Guantanamo detainees. How confident are you that the Trump administration will eventually heed the courts here? Part of me worries. I hear President Trump on TV. He says, we will not defy judicial orders. I will never defy judicial order.

At the same time, you have Trump administration officials, you have fellow travelers of President Trump and the MAGA movement say they might defy judicial order or attack the judges, call for their impeachment. So

I do want to acknowledge throughout all this that you are known to many people as the so-called author of the torture memos. And I think that's a great difference here between the Bush administration and the courts.

One of which did say that only pain equivalent to an injury that could result in, quote, death, organ failure or serious impairment of body functions could be considered torture. And let me just ask you, because there are credible reports of torture in Salvadoran prisons. If you look at a 2023 State Department report, including at least one report that meets the definition in your memos.

So just to underline the point, are there legal issues with sending migrants to prisons in El Salvador when the U.S. government has acknowledged these conditions? I have to say, I think the circumstances and the context of what we're talking about after 9-11 and this are very different, but in a way that cuts against the Trump administration. We are talking about a time period when there was very little definition in American law.

about what torture was. Plus, we were talking about, unfortunately, the ticking time bomb idea that we had terrorists in our custody who knew about pending attacks on the United States and would not tell us what they were, which is a very different world than where do you send terrorists

Where do you send aliens? Or even how do you hold American citizens in prison? And there, I think the definitions are much clearer. And the way you just described it is, I think, quite accurate. The United States isn't supposed to, under American law, deport people to places where they might be tortured.

John Yoo is a former Justice Department lawyer and a professor of law at the University of California, Berkeley. He is also a visiting professor at the University of Texas Austin School of Civic Leadership. Thank you very much for this conversation. Oh, my pleasure. You heard reporting in the top of this episode from NPR's Ada Peralta. This episode was produced by Connor Donovan. It was edited by Patrick Jaron Watanon. Our executive producer is Sammy Yenigan. ♪

It's Consider This from NPR. I'm Elsa Chang. This message comes from Grammarly. From emails to reports and project proposals, it's hard to meet the demands of today's competing priorities without some help.

Grammarly is the essential AI communication assistant that boosts your productivity at work so you can get more of what you need done faster. Just a few clicks can tailor your tone and writing so you come across exactly as you intend. Get time back to focus on your high-impact work. Download Grammarly for free at grammarly.com slash podcast. That's grammarly.com slash podcast.

Does the idea of listening to political news freak you out? Well, don't sweat it. The NPR Politics Podcast makes politics a breeze. Every episode will break down the day's headlines into totally normal language and make sure that you walk away understanding what the day's news might mean for you. Take a deep breath and give politics another chance with the NPR Politics Podcast, available wherever you get your podcasts.

Want to hear this podcast without sponsor breaks? Amazon Prime members can listen to Consider This sponsor-free through Amazon Music. Or you can also support NPR's vital journalism and get Consider This Plus at plus.npr.org. That's plus.npr.org.