Wait, Can He Actually Do That? Part 14: Incarcerating U.S. Citizens in Foreign Prisons
The Trump regime has chosen defiance over compliance with the federal court order to facilitate the return of Kilmar Armando Abrego Garcia from the inhumane El Salvadoran prison to which he was mistakenly sent. Yesterday, during an Oval Office meeting between Presidents Donald Trump and Nayib Bukele, both stated that Abrego Garcia would not be coming back. There was no indication whatsoever that Trump had asked Bukele for Abrego Garcia's return and that Bukele had then said no. If that had happened, the DOJ could perhaps plausibly argue in court that it had done what it could to rectify its mistake but had failed.
However, Trump appeared perfectly content with--and for all we know may have actively sought--Bukele's decision to keep Abrego Garcia. Meanwhile, Trump regime immigration hardliner Stephen Miller declared, without any evidence, that the regime had not made a mistake by sending Abrego Garcia to El Salvador in violation of a 2019 administrative judge's ruling forbidding exactly that.
What happens next is not yet clear. I expect Abrego Garcia's lawyers to press for contempt or other sanctions against Trump regime officials. I also expect the DOJ to appeal any order with teeth issued by Judge Xinis. I have some worry that the regime will simply continue its pattern of non-compliance rather than appeal. At this point, it's in Abrego Garcia's interest to get his case back to the Supreme Court, even though that is a less friendly forum for him than the district court. That's because Trump is more likely to comply with an order endorsed by the Supreme Court and, even if he does not, the political pressure will increase if and when he undeniably defies the Supreme Court.
But in the meantime, Trump has taken what readers might have thought was a reductio ad absurdum of his position offered by Justice Sotomayor and is trying to turn it into government policy. Caught on a hot mic before the press were officially invited in yesterday, Trump said this to Bukele: "Home-growns are next. The home-growns. You gotta build about five more places. It's not big enough." That should not have come as a surprise. Trump has previously suggested that U.S. citizens convicted of crimes could be sent to prison in foreign countries. And he confirmed that he was considering outsourcing the incarceration of U.S. citizens convicted of crimes when asked about it directly.
Wait, can he actually do that?
No--at least not legally. A federal statute provides that the Bureau of Prisons "shall . . . provide suitable quarters and provide for the safekeeping, care, and subsistence of all persons charged with or convicted of offenses against the United States or held as witnesses or otherwise" (emphasis added). Thus, anyone enmeshed in the federal criminal justice system--certainly including the very very bad people Trump says he would like to send to prison in El Salvador--must be housed (and cared for) by the Bureau of Prisons. Moreover, that same statute provides that the Bureau of Prisons must "have charge of the management and regulation of all Federal penal and correctional institutions."
To be sure, the statute nowhere says that the federal Bureau of Prisons must operate all of its facilities in the United States, but crucially, it must operate, manage, and regulate all prisons or other facilities that house U.S. prisoners. It might, in theory, be possible for the Bureau of Prisons to operate a prison on foreign soil, but if so, it would have to be a U.S. prison operating under U.S. standards. Shipping U.S. prisoners to a prison operated by a foreign sovereign--as Trump proposes to do--would be plainly unlawful.*
Suppose that Congress were to amend the statute and allow the federal government to entrust the imprisonment of U.S. citizens convicted of (or even just charged with) federal crimes to a foreign sovereign's prison. What then? Federal constitutional safeguards would still apply.
We know that because of the Supreme Court's 1997 ruling in Richardson v. McKnight. The Justices divided 5-4 over whether guards in a privately operated prison are entitled to qualified immunity when sued for civil rights violations. The liberal majority said no; the conservative dissenters said yes. But everyone took for granted that of course the guards in a private prison exercise state power and therefore are subject to the Constitution. And indeed, lower courts have uniformly recognized as much.
Hold on. What about the 2001 SCOTUS decision in Correctional Services Corp. v. Malesko? There, the 5-4 conservative majority held that there is no Bivens damages remedy against guards in a private prison run on behalf of the federal government. Does that undercut the conclusion that persons incarcerated in such prisons have constitutional rights? Not at all. The decision was part of a general pattern in recent decades by which the Court has cut back on the availability of a Bivens remedy, but it hardly said that guards in private prisons run on behalf of the federal government aren't bound by the Constitution. They plainly are.
If any non-lawyer readers are confused: A federal statute enacted during Reconstruction provides for damages for civil rights violations by state and local government officials; no such statute provides for damages for such violations by federal officers; in the 1971 Bivens case the Supreme Court recognized such federal officer liability nonetheless; but as the Court's personnel became more conservative, it whittled away at Bivens, so it's now generally not possible to sue federal officers for civil rights violations. However, that doesn't mean that people exercising power on behalf of the federal government are permitted to violate constitutional (or other) rights. They are not. And they can still be enjoined by a court from engaging in future civil rights violations. Failure to comply with such an injunction could then result in contempt proceedings.
The upshot of the private prison cases--that their personnel exercise uniquely government power and are therefore bound by the Constitution--should apply equally to a prison in some foreign country to which U.S. citizens might be sent. What that means, at a minimum, is that any foreign prison housing U.S. citizens pursuant to their criminal convictions would be bound to respect due process and the Eighth Amendment right against cruel and unusual punishment. Conditions in CECOT, the supermax El Salvador prison where Trump has been sending non-citizens, clearly violate these constitutional requirements.
Bottom line: Trump's proposal to send "home-growns," i.e., U.S. citizens convicted of crimes, to new prisons in El Salvador based on CECOT is plainly unlawful and unconstitutional. That doesn't necessarily mean he won't try to do it anyway and then refuse to bring people back after being ordered by the courts to do so. Such are the times in which we live.
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* Update: After I posted a BlueSky link to the foregoing, a reader questioned my analysis by pointing to the fact that the federal government contracts with state and local prisons and jails to house some people, seemingly undercutting the argument based in the statute I linked above. That's true, but there's other specific statutory authorization for that: "For the purpose of providing suitable quarters for the safekeeping, care, and subsistence of all persons held under authority of any enactment of Congress, the Attorney General may contract, for a period not exceeding three years, with the proper authorities of any State, Territory, or political subdivision thereof, for the imprisonment, subsistence, care, and proper employment of such persons." The fact that Congress understood it needed to write that provision--and that it didn't include any parallel authorization for contracting with a foreign government--supports rather than undercuts my statutory argument.