What to Make of Nayib Bukele’s Proposal to Outsource U.S. Incarceration

By: Alexandra Henriquez

Edited by: Anna Dellit and Alicia Gu

Following Trump’s re-election to the Oval Office, the United States (U.S.) Senate quickly confirmed former U.S. Senator of Florida, Marco Rubio, as the new Secretary of State. Within the first week of February, Rubio met with Salvadoran President Nayib Bukele in the country’s capital, San Salvador, to discuss regional security cooperation, economic partnerships, and efforts to curb migration through strengthened diplomatic relations. According to the Department of State’s Press Release on February 3, 2025, “Multiple agreements were struck to fight the waves of illegal mass migration.” [1] Bukele agreed to take back all Salvadoran MS-13 gang members who are in the United States unlawfully and to incarcerate criminal undocumented immigrants from any country. Additionally, he “offered to house in his jails dangerous American criminals, including U.S. citizens and legal residents.” President Trump told reporters, “I’m just saying if we had a legal right to do it, I would do it in a heartbeat.” [2] The offer raises essential questions about the legality and implications of outsourcing incarceration, as well as the rights of American citizens.

Sending U.S. citizens or legal residents to Salvadoran prisons mirrors the trend of prison privatization, the outsourcing of incarceration to external entities to ease overcrowded facilities and reduce government costs. These external entities prioritize cost-cutting over rehabilitation. [3] Bukele’s proposal could be seen as an international extension of this trend, where the United States effectively contracts out incarceration to a foreign government. Just like private prisons have been criticized for poor conditions, a deal with El Salvador could result in even less oversight and accountability for how prisoners are treated. The key difference between Bukele’s offer and the current privatization of U.S. prisons is that Bukele’s offer involves transferring incarcerated individuals to a foreign jurisdiction where U.S. legal standards and oversight would no longer apply. While private prisons within the U.S. operate under federal and state regulations, albeit with significant concerns regarding transparency and conditions, outsourcing incarceration to El Salvador could remove even these minimal safeguards. This raises serious questions about due process, prisoners’ rights, and the U.S. government’s responsibility to its citizens.

The Supreme Court has consistently ruled that a U.S. citizen cannot be legally deported. In Fung Ho v. White (1922), the court reaffirmed congressional power “to order at any time the deportation of aliens whose presence in the country it deems hurtful, and may do so by appropriate executive proceedings” when evaluating the Chinese Exclusion Act of 1892. [4] The court notes, however, that “jurisdiction in the executive to order deportation exists only if the person arrested is an alien. The claim of citizenship is thus a denial of an essential jurisdictional fact.” This ruling established that non-citizens who claim to be lawfully present in the U.S. have the right to a judicial hearing before deportation. The question then turns to whether or not there is an exception for sending U.S. citizens abroad for detention.

Guantánamo Bay is an infamous loophole where detainees are held outside of the U.S. The Congressional Research Service (CRS) report from November 2021 goes through Supreme Court precedent on due process for Guantanamo Bay detainees. While Guantanamo Bay is not technically U.S. territory, Rasul v. Bush (2004) held that the U.S. has jurisdiction over the area. Hence, detainees at Guantánamo Bay have the right to challenge their detention in U.S. courts, and Boumediene v. Bush (2008) found that the right to habeas corpus also applies. [5] Yet the ruling was limited to habeas corpus and did not decide whether detainees have broader due process rights under the Fifth Amendment (such as a right to a fair trial). The D.C. Circuit Court in Al Hela v. Biden (2023) aimed to address whether non-citizen detainees at Guantanamo Bay have due process rights under the U.S. Constitution. Still, the court avoided the question by applying judicial restraint, refusing “to decide whether a right applies when it finds that the right has not been violated.” [6]

Guantánamo has been heavily criticized for inhumane interrogation techniques. Similarly, Human Rights Watch has reported on the inhumane force used by El Salvadoran prisons. [7] In 2023, the U.S. Department of State released its Country Reports on Human Rights Practices for El Salvador wrote that although “reports of gang violence decreased significantly, allowing citizens to exercise their right to life, liberty, and security of person,” it has come at the cost of arbitrary and politically motivated arrests and deprivation of life, due process failures, and inhumane or torturous prison conditions. [8] As the Trump administration considers its stance on Bukele’s offer, it must first address critical questions of citizenship and deportation before then addressing issues of due process and fundamental human rights.

Notes:

1. U.S. Department of State. “Secretary Rubio’s Meeting with Salvadoran President Nayib Bukele.” February 3, 2025. https://www.state.gov/secretary-rubios-meeting-with-salvadoran-president-nayib-bukele/ 

2.  Chappell, Bill. “Would It Be Legal for Trump to Send U.S. Citizens to El Salvador’s Jails?” NPR. February 5, 2025. https://www.npr.org/2025/02/05/nx-s1-5287670/trump-el-salvador-americans-prison. 

3. Badmus, Gabriella A. “Privatization and Flawed Punishment: An Economic Analysis and Critique of Private Prisons in the United States and United Kingdom.” Northwestern Journal of International Law and Business. Vol. 44, 129-148. 2024. https://scholarlycommons.law.northwestern.edu/njilb/vol44/iss1/3 

4. Ng Fung Ho v. White. 259 U.S. 276. Supreme Court of the United States. 1922. 

5. Congressional Research Service. “Due Process Rights for Guantanamo Detainees.” Legal Sidebar LSB10654. November 2, 2021. https://crsreports.congress.gov/product/pdf/LSB/LSB10654. 

6. Proctor, Haley. “D.C. Circuit Review – Reviewed: Encore!” Yale Journal on Regulation. April 17, 2023. https://www.yalejreg.com/nc/d-c-circuit-review-reviewed-encore/. 

7. Human Rights Watch. “El Salvador: Inhumane Prison Lockdown Treatment,” Human Rights Watch. April 29, 2020. https://www.hrw.org/news/2020/04/29/el-salvador-inhumane-prison-lockdown-treatment.

8. U.S. Department of State. El Salvador 2023 Human Rights Report. 1. https://www.state.gov/reports/2023-country-reports-on-human-rights-practices/el-salvador/.  

Bibliography:

1. Badmus, Gabriella A. “Privatization and Flawed Punishment: An Economic Analysis and Critique of Private Prisons in the United States and United Kingdom.” Northwestern Journal of International Law and Business, Vol. 44, 129-148. 2024. 

2. Chappell, Bill. “Would It Be Legal for Trump to Send U.S. Citizens to El Salvador’s Jails?” NPR. February 5, 2025. https://www.npr.org/2025/02/05/nx-s1-5287670/trump-el-salvador-americans-prison. 

3. Badmus, Gabriella A. “Privatization and Flawed Punishment: An Economic Analysis and Critique of Private Prisons in the United States and United Kingdom.” Northwestern Journal of International Law and Business. Vol. 44, 129-148 (2024). https://scholarlycommons.law.northwestern.edu/njilb/vol44/iss1/3 

4. Congressional Research Service. “Due Process Rights for Guantanamo Detainees.” Legal Sidebar LSB10654. November 2, 2021. https://crsreports.congress.gov/product/pdf/LSB/LSB10654. 

5. Ng Fung Ho v. White. 259 U.S. 276. Supreme Court of the United States. 1922.​

6. Human Rights Watch, “El Salvador: Inhumane Prison Lockdown Treatment,” Human Rights Watch. April 29, 2020. https://www.hrw.org/news/2020/04/29/el-salvador-inhumane-prison-lockdown-treatment.

7. Proctor, Haley. “D.C. Circuit Review – Reviewed: Encore!” Yale Journal on Regulation. April 17, 2023. https://www.yalejreg.com/nc/d-c-circuit-review-reviewed-encore/. 

8. U.S. Department of State, El Salvador 2023 Human Rights Report. https://www.state.gov/reports/2023-country-reports-on-human-rights-practices/el-salvador/. 

9. U.S. Department of State. “Secretary Rubio’s Meeting with Salvadoran President Nayib Bukele.” February 3, 2025. https://www.state.gov/secretary-rubios-meeting-with-salvadoran-president-nayib-bukele/