Why El Salvador’s U.N. Disclosure is Damning for Trump

El Salvador recently told United Nations investigators that the Trump administration retains control over the hundreds of Venezuelan men who were removed from the U.S. and flown to a Salvadoran megaprison earlier this year, a surprise court filing revealed this week.

For months, senior officials have claimed in federal courts that the U.S. has no control over the men because they are in El Salvador’s custody. Justice Department officials, too, have told several federal judges that the government can’t comply with their orders for the same reason.

The damning court filing came through a lawsuit brought by the ACLU and Democracy Forward*, which are representing the men held in a Salvadoran maximum security prison called CECOT.

In the court filing, the ACLU and Democracy Forward alleged that Trump officials knew of the document for months but failed to pass it on to either plaintiffs or federal judges. 

Who had control over the men has been the central question in the lawsuit for weeks now.

Last month, Judge James Boasberg wrote in an order that “while it is a close question,” the record at the time did not support plaintiffs’ assertion that the men are in U.S. custody and that he could not put aside the Trump officials’ formal assertions that the Salvadorans were in charge.

“Even crediting the public statements characterizing the arrangement as outsourcing the U.S. prison system and acknowledging the President’s unofficial assertion of his power to request a release, such comments cannot overcome a sworn declaration from a knowledgeable government official attesting that the CECOT Class’s ongoing detention is a question of Salvadoran law,” Boasberg wrote.

Plaintiffs alleged that El Salvador’s disclosure to the U.N. contradicts what Trump officials claimed in sworn declarations to Boasberg. 

According to the document, El Salvador’s response to U.N. investigators was received by the U.S. April 3. 

Over a month later, senior U.S. State Department diplomat Michael Kozak told Boasberg that the men were under El Salvador’s authority.

“It was and remains my understanding that the detention and ultimate disposition of those detained in CECOT and other Salvadoran detention facilities are matters within the legal authority of El Salvador in accordance with its domestic and international legal obligation,” Kozak said in a declaration under penalty of perjury.

Even before the El Salvador document came to light, Boasberg had already found there was probable cause to hold Trump administration officials in criminal contempt of court for showing “a willful disregard” toward his orders.

The judge’s contempt proceedings have been temporarily halted by an appeals court. However, should they begin again, the El Salvador document will likely be a significant piece of evidence against Trump officials. 

The document also appears to undercut what Kozak and other Trump officials have told judges overseeing separate lawsuits, including Maryland man Kilmar Abrego Garcia’s suit challenging his wrongful removal from the U.S.

Several days after El Salvador replied to the U.N., Kozak told Judge Paula Xinis in a court declaration that the U.S. could not return Abrego Garcia because his release was up to El Salvador.

“He is detained pursuant to the sovereign, domestic authority of El Salvador,” Kozak said of Abrego Garcia, again under penalty of perjury.

Though Abrego Garcia has since been returned to Tennessee to face human smuggling charges, his lawsuit is ongoing. Xinis has threatened Trump officials with contempt over their failure to return Abrego Garcia to Maryland.

In a separate wrongful removal lawsuit, federal Judge Stephanie Gallagher, a Trump appointee, ordered the government to return a 20-year-old man identified as “Cristian” in court documents who, like Abrego Garcia, was wrongly removed from the U.S. and transferred to El Salvador.

In response to the order, Mellissa Harper, a senior acting official for ICE, repeatedly told Gallagher that the U.S. would have to enter negotiations with El Salvador to facilitate Cristian’s return.

Gallagher this week took notice of El Salvador’s response to the U.N, and ordered the Trump administration to explain why negotiations were required to return Cristian if El Salvador doesn’t have authority over him.

“Assuming the Government of El Salvador provided truthful information to the UN, no ‘diplomatic discussions’ should be required here because El Salvador has no sovereign interest in Cristian’s continued confinement in that country,” Gallagher wrote.

*Democracy Docket Founder Marc Elias is the chair of Democracy Forward’s board.