Can Trump Really Send American Citizens to Foreign Prisons?

In recent weeks, former President Donald Trump, now back in the White House, has raised eyebrows with statements suggesting he would send American citizens convicted of crimes to prisons in El Salvador. This proposal represents a dramatic departure from established legal norms and constitutional principles that have governed our justice system for centuries. As progressives committed to both justice reform and constitutional rights, we need to examine this proposal carefully, understanding its origins, legality, and feasibility.

The Origins of an Unusual Idea

Trump’s proposal appears to have been inspired by El Salvador’s President Nayib Bukele, whose controversial but effective crackdown on gang violence has transformed El Salvador from one of the world’s most dangerous countries to one with dramatically lower homicide rates. In particular, Trump has expressed admiration for Bukele’s massive Centro de Confinamiento del Terrorismo (CECOT) prison, which houses thousands of suspected gang members in what human rights organizations have described as concerning conditions.¹

During a recent rally in Pennsylvania, Trump stated: “We’re going to take some of these homegrowns, these are homegrown terrorists, and we’re going to be asking other countries if we can put them in their prisons. El Salvador just built one of the biggest prisons… We’ll pay them a small fortune, much less than we’re paying now, we’ll pay them a fortune, but we have to get these people out.”²

This isn’t the first time Trump has suggested unusual approaches to incarceration. During his previous administration, he expressed admiration for strongman tactics used by leaders in the Philippines, China, and elsewhere. But this proposal represents a significant escalation: suggesting that American citizens could be removed from U.S. soil and U.S. legal protections to serve sentences in foreign facilities.

The Constitutional Roadblocks

From a constitutional perspective, Trump’s proposal faces nearly insurmountable legal barriers. Several fundamental constitutional principles and rights would be directly challenged:

Due Process (Fifth and Fourteenth Amendments): American citizens are entitled to due process under U.S. law. Sending citizens to foreign prisons would likely violate these protections, as they would be subject to the legal systems and prison conditions of another country.

Cruel and Unusual Punishment (Eighth Amendment): If conditions in foreign prisons fall below U.S. constitutional standards—as many human rights organizations suggest El Salvador’s CECOT does—this could constitute cruel and unusual punishment prohibited by the Eighth Amendment.

Right to Counsel (Sixth Amendment): Americans in foreign prisons would face extreme difficulties in accessing legal representation and exercising their right to challenge their detention through habeas corpus petitions.

Legal experts across the political spectrum have expressed concern about the constitutionality of such a proposal. Yale Law School professor Judith Resnik notes, “The Constitution protects all persons within U.S. jurisdiction. The government cannot simply export its citizens to circumvent constitutional protections.”³

Conservative legal scholar Jonathan Turley has also raised alarms: “While courts have allowed for transfers of foreign nationals to their home countries, the forcible transfer of U.S. citizens to foreign prisons would raise profound constitutional questions that courts would likely view with extreme skepticism.”⁴

International Law and Diplomatic Considerations

Beyond constitutional concerns, the proposal raises significant questions under international law. The United States is party to numerous treaties that govern the treatment of prisoners, including the International Covenant on Civil and Political Rights (ICCPR).

Current international prisoner transfer arrangements, such as those under the Council of Europe’s Convention on the Transfer of Sentenced Persons, typically allow prisoners to serve sentences in their home countries—the opposite of what Trump is proposing. These transfers usually require:

1. The consent of the prisoner
2. The consent of both countries involved
3. Assurances about prison conditions and legal protections

Trump’s proposal would likely require new treaties with countries like El Salvador, which would need Senate ratification with a two-thirds majority—an unlikely prospect given the controversy surrounding such arrangements.

The Bukele Model: Success Story or Cautionary Tale?

To understand Trump’s fascination with El Salvador’s approach, we should examine what President Bukele has actually accomplished—and at what cost.

Bukele’s “territorial control plan” has undeniably reduced violent crime in El Salvador. Homicide rates have plummeted from being among the world’s highest to levels comparable to many U.S. cities. This dramatic improvement has made Bukele enormously popular domestically, with approval ratings consistently above 80%.⁵

However, human rights organizations have documented significant concerns with Bukele’s methods:

• Mass arrests of over 70,000 people, many with limited evidence
• Suspension of constitutional rights through an extended state of emergency
• Documented cases of torture and deaths in custody
• Detention of thousands of people with no gang connections

The CECOT prison itself, while modern in construction, holds prisoners in crowded conditions with limited access to legal counsel, family visits, or rehabilitation programs. Prisoners are held in large group cells with minimal privacy and restricted outdoor access.⁶

Could It Actually Happen?

For Trump’s proposal to become reality, several significant hurdles would need to be overcome:

1. Congressional Authorization: New legislation would likely be required to authorize such transfers, which would face fierce opposition in Congress, even if Republicans control both chambers.
2. Treaty Negotiations: New bilateral agreements with receiving countries would need to be negotiated and ratified by a two-thirds Senate majority.
3. Judicial Review: The proposal would inevitably face immediate legal challenges, likely resulting in nationwide injunctions while cases proceeded to the Supreme Court.
4. Supreme Court Review: Given existing precedent on constitutional rights of citizens, even a conservative-leaning Supreme Court would likely find significant constitutional problems with such transfers.

Even conservative Justice Samuel Alito, known for his law-and-order perspective, has written that “the Constitution’s protections do not stop at our nation’s borders when U.S. citizens are involved.”⁷

The Question of Jurisdiction and Control

One of the most troubling aspects of Trump’s proposal concerns jurisdiction over American citizens once they’re transferred abroad. Under normal prisoner transfer treaties, the sending country retains some oversight and can request the return of prisoners if conditions deteriorate. However, Trump’s comments suggest a more permanent arrangement.

If U.S. citizens were sent to El Salvador’s prisons, critical questions would arise about their legal rights:

• Would they retain access to U.S. consular services?
• Could U.S. courts intervene if their rights were violated?
• Would they have recourse through international human rights bodies?
• Who would monitor their treatment and conditions?

The case of Daniel Abrego Garcia is instructive here. As a U.S. citizen arrested in El Salvador, he has remained in Salvadoran custody despite U.S. diplomatic efforts to secure his release or transfer. The U.S. cannot legally compel El Salvador to return him, as sovereignty principles give El Salvador jurisdiction over crimes committed within its borders.⁸

Now imagine thousands of U.S. citizens in similar situations, but for crimes committed within the United States. The jurisdictional issues would be even more complex and concerning.

A Better Path Forward

As progressives concerned with both justice and constitutional rights, we must acknowledge the legitimate concerns about crime and public safety that make proposals like Trump’s resonate with some Americans. However, we should advocate for evidence-based approaches that actually work without sacrificing fundamental rights.

Several alternatives could address crime concerns while respecting constitutional principles:

1. Justice Reinvestment: Redirecting resources from incarceration to prevention, treatment, and rehabilitation programs that have proven more effective at reducing recidivism.
2. Mental Health and Substance Abuse Treatment: Addressing root causes of criminal behavior through expanded access to mental health and addiction services.
3. Focused Deterrence: Targeting the small percentage of individuals responsible for most violent crime through intensive supervision and support services.
4. Prison Reform: Improving conditions and programming in U.S. facilities to better prepare incarcerated people for successful reentry.

These approaches have demonstrated success in reducing both crime and incarceration rates in states across the political spectrum, from Massachusetts to Texas.⁹

Constitutional Values Must Prevail

While El Salvador’s approach has yielded improvements in public safety, it has come at a tremendous cost to civil liberties and human rights—values that are foundational to American democracy. The constitutional barriers to Trump’s proposal exist for good reason: to protect fundamental rights that distinguish democratic governance from authoritarian control.

Even if one supports tough approaches to crime, the precedent of removing U.S. citizens from U.S. soil and constitutional protections should alarm Americans across the political spectrum. Once established, such a power could be directed at political opponents, protesters, or others deemed undesirable by those in power.

As progressives, we must insist on approaches to public safety that honor both our constitutional commitments and our humanitarian values. We can create safer communities without sacrificing the principles that define us as a democratic republic committed to equal justice under law.