A legal architect of Guantanamo questions Trump's El Salvador plan

Summary

Consider This from NPR: A Legal Architect of Guantanamo Questions Trump's El Salvador Plan

Episode: A legal architect of Guantanamo questions Trump's El Salvador plan
Release Date: May 2, 2025
Host: Ailsa Chang

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1. Introduction and Historical Context

The episode opens with Ailsa Chang commemorating the 54th anniversary of NPR's All Things Considered, highlighting its enduring role in delivering comprehensive news coverage.

“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...” ([00:00])

Chang sets the stage for a critical discussion on the United States' detention practices, drawing parallels between historical and contemporary policies.

2. Guantanamo Bay: Origins and Legal Framework

Former Defense Secretary Donald Rumsfeld is introduced, providing insight into the establishment of the Guantanamo Bay detention facility.

Rumsfeld explains the rationale behind selecting Guantanamo Bay:

“I would characterize Guantanamo Bay, Cuba, as the least worst place we could have selected. Its disadvantages, however, seem to be modest relative to the alternatives.” ([01:12])

He further clarifies the legal status of detainees:

“They would be handled not as prisoners of war because they're not, but as unlawful combatants. As I understand it, technically unlawful combatants do not have any rights under the Geneva Convention.” ([01:56])

This classification positioned Guantanamo as a "legal black hole," a term echoed by human rights advocate Noah Bullock.

“Essentially, they're in like a judicial black hole, disappeared into one of the most brutal prisons in the hemisphere.” ([02:37])

3. Trump's El Salvador Plan: Deportation and Detention

The focus shifts to the Trump administration's controversial policy of deporting at least 261 foreign nationals, primarily from Venezuela, to El Salvador's maximum security terrorism confinement center. Funding for this initiative comes directly from the U.S. government.

Chang highlights the administration’s stance on legal proceedings:

“The Trump administration also now says US Courts cannot compel the government to return these migrants even for the due process that they are guaranteed by the US Constitution.” ([02:45])

Noah Bullock critiques this approach, emphasizing the erosion of legal safeguards:

“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.” ([03:28])

4. Legal Analysis by John Yoo

John Yoo, a key legal figure from the Bush administration known for the "torture memos," provides a comparative analysis of the Bush and Trump administrations' detention policies.

Yoo differentiates the two administrations by the context and legal justifications employed:

“President Trump is claiming wartime authority, invoking something called the Alien enemies Act of 1798... But there are important differences. The primary one, I think, is are we really at war?” ([05:56])

He underscores the legitimacy claimed by the Bush administration post-9/11, supported by Congress and the Supreme Court, in contrast to Trump's unilateral stance.

Yoo further elaborates on due process considerations:

“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.” ([07:01])

When questioned about the likelihood of the Trump administration respecting judicial rulings, Yoo expresses concern:

“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.” ([08:12])

Addressing allegations of torture in El Salvador's prisons, Yoo differentiates the scenarios:

“The United States isn't supposed to, under American law, deport people to places where they might be tortured.” ([09:34])

However, he notes the complexities and differences between post-9/11 terrorism-related detentions and the current migration-focused deportations.

5. Criticism and Concerns

The episode raises significant concerns about the normalization of indefinite detention and the potential for human rights abuses under the guise of foreign policy. Noah Bullock criticizes the Trump administration's policies as undermining established legal norms and enabling state-sanctioned cruelty.

Chang accentuates the legal and ethical dilemmas posed by deporting migrants to prisons like those in El Salvador, where torture has been reported:

“...the United States isn't supposed to, under American law, deport people to places where they might be tortured.” ([09:34])

6. Conclusion and Implications

The conversation concludes with reflections on the fragile state of judicial authority and the potential ramifications of bypassing due process in immigration policies. John Yoo emphasizes the stark departure from the Bush administration's collaborative approach with the judiciary, warning of unpredictable challenges to the rule of law.

Chang wraps up by acknowledging the expertise of her guest and the complexities of balancing national security with constitutional rights.

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Credits:
Reporting: Ada Peralta
Produced by: Connor Donovan
Edited by: Patrick Jarun Watanan
Executive Producer: Sami Yeniken

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This episode of Consider This delves deep into the legal intricacies of U.S. detention policies, drawing historical parallels and highlighting the evolving challenges in safeguarding constitutional rights amidst changing administrations.

Transcript

[Ailsa Chang]

Hey, it's Ailsa 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.NPR.org to give and thank you so much. Now to the show. The US 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.

[Donald Rumsfeld]

I would characterize Guantanamo Bay, Cuba, as the least worst place we could have selected. Its disadvantages, however, seem to be modest relative to the alternatives.

[Ailsa Chang]

That is former Defense Secretary Donald Rumsfeld, just three months after the 911 attacks, announcing the plan to house captured Taliban and Al Qaeda fighters in a military prison at the US Naval base in Guantanamo. Ultimately, the US 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.

[Donald Rumsfeld]

They would 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.

[Ailsa Chang]

According to Rumsfeld, the prisoners had no US 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 Bullock used to describe what happened to the migrants that the Trump administration has deported to El Salvador. He runs a group there called Christo Sal.

[Noah Bullock]

Essentially, they're in like a judicial black hole, disappeared into one of the most brutal prisons in the hemisphere.

[Ailsa Chang]

The Trump administration has deported at least 261 foreign nationals, mostly from Venezuela, to El Salvador's maximum security terrorism confinement center prison. The US Is paying El Salvador for this service. And the Trump administration also now says that US Courts cannot compel the government to return these migrants even for the due process that they are guaranteed by the US Constitution. The US 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.

[Noah Bullock]

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.

[Ailsa Chang]

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 policies says President Trump's El Salvador prison plan crosses legal lines established after 9 11. From NPR, I'm Ilsa Chang.

[John Yoo]

When Malcolm Gladwell presented NPR's Throughline podcast with a Peabody Award, he praised it for its historical and moral clarity. On Throughline, we take you back in time to the origins of what's in the news, like presidential power, aging and evangelicalism. Time travel with us every week on the Throughline podcast from npr.

[Ada Peralta]

There was Barbenheimer Summer, then Bratz Summer. What will this season bring? Maybe it's the season of actual good superhero movies like the Fantastic Four and Superman. For a guide to the movies and TV we're most excited about this summer, listen to the Pop Culture Happy Hour podcast from npr.

[Donald Rumsfeld]

Imagine, if you will, a show from NPR that's not like npr, a show that focuses not on the important but the stupid, which features stories about people smuggling animals in their pants, incompetent criminals, and ridiculous science studies. And call it Wait, Wait, Don't Tell Me, because the good names were taken. Listen to NPR's Wait, Wait, Don't Tell Me. Yes, that is what it is called. Wherever you get your podcasts.

[Ailsa Chang]

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.

[John Yoo]

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 911 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, Trenda 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.

[Ailsa Chang]

Just rejected 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.

[John Yoo]

Yes, because there's 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 U.S. 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 11 attacks.

[Ailsa Chang]

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?

[John Yoo]

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.

[Ailsa Chang]

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 U.S. government has acknowledged these conditions.

[John Yoo]

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. 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.

[Ailsa Chang]

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.

[John Yoo]

Oh, my pleasure.

[Ailsa Chang]

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 Jarun Watanan. Our executive producer is Sami Yeniken. It's Consider this from npr. I'm Ilsa Chang.

[Ada Peralta]

Do you think you have adhd? You're not alone. After the pandemic hit, there was a huge jump in ADHD diagnoses among adults. And at the same time, the Internet is more and more obsessed with saying everything is a sign of it. You might have ADHD to identify the red flags when a diagnosis goes viral. Listen to the It's Been a Minute podcast today.

[Ailsa Chang]

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