Consider This from NPR - A legal architect of Guantanamo questions Trump's El Salvador plan

Episode Date: May 2, 2025

The U.S. has sent people it has detained — people it calls terrorists — to a prison overseas — indefinitely.This is true in 2025, after the Trump administration deported at least 261 foreign nationals to a maximum security prison in El Salvador.And it was also true two decades ago, following the attacks of Sept. 11, after the U.S. government began to house captured Taliban and al-Qaida fighters in the military prison at the U.S. Naval base in Guantanamo Bay, Cuba.During the George W. Bush administration, John Yoo wrote the legal justification for the treatment of Guantanamo detainees, now widely referred to as "the torture memos."Yoo argues that there are key legal differences between what the Bush administration did – and what the Trump administration is attempting in El Salvador.For sponsor-free episodes of Consider This, sign up for Consider This+ via Apple Podcasts or at plus.npr.org.Email us at [e-mail] more about sponsor message choices: podcastchoices.com/adchoicesNPR Privacy Policy

Hey, it's Elsa Chang. Before we get to the show, there's an anniversary on Saturday that we wanted to shout out. 54 years ago, on May 3, 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.mpr.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. It will 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 Bollock 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 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. On the Indicator from Planet Money podcast, we're here to help you make sense of the economic news from Trump's tariffs. It's called in game theory a trigger strategy or sometimes called grim trigger, which sort of has a cowboy-esque ring to it.

To what exactly a sovereign wealth fund is. For insight every weekday, listen to NPR's The Indicator from 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, Trander al-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. In Texas.

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 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 US 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 11th 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 great difference here between the Bush administration. We didn't even think of

ourselves as opposed to the courts. We thought of ourselves as working with the courts to figure out what the rules should be because we wanted there to be stability. I do want to acknowledge throughout all this that you are known to many people as the so-called author of the torture memos, 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 US 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 and we are talking about, but in a way that cuts against the Trump administration. And 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 immigrants, 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.

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 Jarenwatanonan. Our executive producer is Sammy Yenneken. It's Consider This from NPR. I'm Elsa Chang. It's Consider This from NPR. I'm Elsa Chang.