Suggestion to house US citizens in offshore prisons has no legal basis, experts say

By Devan Cole, CNN

(CNN) — As Trump administration lawyers assess whether it is legally viable to send American citizens who have committed violent crimes to El Salvador’s notorious mega-prison, legal experts made clear that President Donald Trump lacks any legal authority to ship domestic convicts out of the US.

Two White House officials familiar with the discussions told CNN that both the Justice Department and the White House counsel’s office are reviewing what, if any, legal justification there is to support Trump’s stated desire to send “homegrown” criminals out of the country.

One of the officials said the president views this as a winning issue – and one that he was elected on. The official recalled Trump referring to it as an “eighty-twenty” issue, meaning he believes 80% of Americans are in favor of his proposed idea to send US citizens convicted of crimes abroad.

“Legally, it is a non-starter,” said David Cole, who served for years as the American Civil Liberties Union’s national legal director. “There’s just zero authority for it. He may think it’s 80-20 as a political issue, but it’s 100-0 as legal matter. He has no authority.”

Cole added: “The rights of citizenship include the rights to remain in this country – period. And you cannot be expelled from this country, even temporarily, for any offense.”

Trump raised alarm bells among civil rights groups and others on Monday when he raised the idea during an Oval Office meeting with Salvadoran President Nayib Bukele, who has entered into an agreement with the US to house deported migrants in his country’s CECOT mega-prison, which is known for its harsh conditions.

As part of the deal, the US will pay El Salvador $6 million.

The experts CNN spoke with largely described the issue as twofold: Federal officials have no legal authority to remove US citizens from American soil except in very narrow circumstances, and housing American detainees in the CECOT prison itself would be a clear violation of the Constitution’s ban on cruel and unusual punishment and other federal laws.

“The whole purpose of the El Salvadoran prison is to house prisoners in an inhuman way,” Cole said. “That prison in the United States would be closed down in a second by any federal court.”

Ilya Somin, a law professor at George Mason University and a scholar at the Cato Institute, a libertarian think tank, said the effort “would be pretty obviously illegal for a bunch of reasons.”

He cited a federal law Trump signed during his first term that mandates, among other things, federal prisoners be incarcerated no more than 500 miles from their homes.

“If you look at the map, El Salvador is not within 500 miles of the US,” Somin said.

He also raised a key issue at the center of a case brought by a Maryland man the Trump administration mistakenly deported to El Salvador last month: Once individuals are out of the US, federal courts have limited power in getting the government to bring them back stateside.

“Even though it’s illegal, they could potentially get away with it by saying, ‘Well, we just whisked these people out of the country. We put them in El Salvador, and then after that, nobody can do anything about it,” Somin said.

That possibility was not lost on the Supreme Court last week when it backed a lower-court judge’s order that the administration “facilitate” the return of Kilmar Abrego Garcia, who was among the scores of migrants the administration sent to El Salvador last month.

Even though the court’s three liberal members did not dissent from the court’s order upholding the judge’s directive, Justice Sonia Sotomayor wrote separately to say that the administration’s argument that the lower court overstepped its authority “implies that it could deport and incarcerate any person, including U.S. citizens, without legal consequence, so long as it does so before a court can intervene.”

Jessica Levinson, a constitutional law professor at Loyola Law School, said that if the administration tried to send citizens to foreign prisons, she would expect a swift lawsuit challenging it, likely before any person was actually removed from the US.

“I think we’re going to see lawsuits that say some version of: The threat of potentially deporting a convicted criminal who’s a US citizen is enough to bring a case,” she said.

“And then it will really be a question as to whether or not a federal judge thinks that this is right for review and kind of how many steps we’re going to require of the Trump administration before we say somebody has (the legal right) to sue,” Levinson said.

CNN’s Alayna Treene and Hannah Rabinowitz contributed to this report.

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