El Salvador’s Controversial Offer: Housing U.S. Criminals in Its Mega-Prison

El Salvador’s ‘maverick’^[i] president, Nayib Bukele, has proposed a unique agreement with the United States, offering to house American criminals and deportees^[ii] in its notorious mega-prison, Centro de Confinamiento del Terrorismo (Terrorism Confinement Center, abbreviated CECOT). This unprecedented deal, put forward by Bukele, aims to accommodate U.S. deportees regardless of their nationality, including violent American offenders and gang members. However, this agreement raises significant legal, ethical, and humanitarian concerns, with critics arguing that the condition of El Salvador’s prisons and U.S. law make this project a non-starter.

The Deal

At the core of this agreement is El Salvador’s willingness to accept deportees from the United States, regardless of their nationality. This provision extends beyond typical deportation arrangements, as it includes the accommodation of violent American offenders, including U.S. citizens and legal residents currently in U.S. custody. Furthermore, the agreement specifically targets gang members, with El Salvador agreeing to accept for deportation any illegal immigrant in the United States who is a criminal of any nationality, explicitly mentioning members of notorious gangs^[iii] such as MS-13 and Tren de Aragua.

This proposal comes at a time when El Salvador already maintains the world’s highest incarceration rate, with over 110,000 people imprisoned as of early 2024^[iv], following a high-profile and ethically dubious crackdown on gangs. These incarceration rates and the question of human rights abuses have brought condemnation from the international community, and many will be concerned at the prospect of more prisoners being imported to already crowded prisons. For President Bukele, though, this not only helps his well-managed strongman image but also has significant financial incentives. El Salvador will charge the United States a fee for housing these prisoners, which Bukele has described as “relatively low for the U.S. but significant for us, making our entire prison system sustainable”. This financial arrangement introduces a new dynamic to international criminal justice cooperation, potentially setting a precedent for similar agreements in the future.

Bukele is also likely considering other benefits to this offering to accommodate U.S. deportees and criminals. Beyond the economic benefits, this deal could elevate El Salvador’s profile on the global stage, potentially granting Bukele increased international recognition – although this may not all be positive. Furthermore, the agreement aligns with Bukele’s tough-on-crime stance, which has garnered substantial domestic support^[v] among Salvadorans.

The Trump administration’s positive reception^[vi] of this offer reflects its own policy priorities. The deal supports the administration’s efforts to accelerate deportations and deter illegal immigration while simultaneously offering a potential solution to the U.S.’s own overcrowded prison system. Additionally, this agreement could strengthen ties with El Salvador, as the Central American nation positions itself as a valuable partner to the Trump administration, it is likely to lead to increased diplomatic influence and potentially more favourable treatment in other areas of bilateral relations. Conversely, this agreement may be seen by other nations in the region as a continuation of U.S. interference and interventionism^[vii], unsettling their relationships with El Salvador and potentially disrupting the dynamics in Central America.

While distinct from the El Salvador agreement, recent developments regarding the use of Guantanamo Bay for migrant^[viii] detention provide an interesting parallel. The Trump administration has expressed intentions to expand Guantanamo’s capacity to hold up to 30,000 migrants. The U.S. has begun transporting migrants to Guantanamo, with the first flight intending to take members of the Venezuelan gang Tren de Aragua. However, these actions have faced legal challenges, with a federal judge blocking^[ix] the transfer of three Venezuelan immigrants to Guantanamo. Instead, these persons were deported to Venezuela, highlighting the complex legal landscape surrounding such measures, and how such policies could heighten tensions between nations.

Political and Legal Implications

The proposed agreement presents a complex web of political and legal implications. This arrangement challenges established norms in international criminal justice and immigration policy, raising questions about its feasibility and potential consequences. The legality of deporting U.S. citizens to serve sentences in foreign prisons is uncertain and likely to face rigorous legal scrutiny. The agreement also raises significant humanitarian questions with human rights organizations expressing grave concerns about El Salvador’s prison conditions and the potential for rights violations under this arrangement. Moreover, the implementation of this deal could have far-reaching effects on international relations and migration policies in the region.

The proposed arrangement represents a significant shift in U.S. immigration and criminal justice policies. It could set a precedent for outsourcing incarceration by transferring U.S. prisoners to foreign countries. The agreement also expands options for deporting individuals, including those from countries reluctant to accept deportees. Moreover, it could pave the way for similar arrangements with other Central American nations, fundamentally altering the landscape of regional cooperation on criminal justice and immigration matters.

However, the proposed deal faces substantial legal challenges^[x]. Perhaps the most glaring issue is the constitutional impossibility of deporting U.S. citizens^[xi], making this aspect of the agreement a moot point at present. The transfer of prisoners to a foreign country also raises serious due process concerns, questioning prisoners’ legal rights and access to fair treatment. Furthermore, the proposal may violate the Eighth Amendment’s prohibition on cruel and unusual punishment, given the reported conditions in Salvadoran prisons.

From an international law perspective, the agreement could contravene various statutes regarding migrant rights and prisoner treatment. The United Nations Standard Minimum Rules for the Treatment of Prisoners (the Nelson Mandela Rules^[xii]) and the International Covenant on Civil and Political Rights^[xiii] set standards that this agreement may violate, particularly concerning the treatment of prisoners and the right to due process.

The CECOT Mega-Prison and Public Concern

President Bukele’s proposal to house those deported in El Salvador’s Centro de Confinamiento del Terrorismo (CECOT), a mega-prison facility opened in 2023^[xiv] with a capacity of 40,000 inmates, exacerbates the legal and political ramifications of this deal. Using CECOT for this purpose raises questions about prison conditions and potential human rights implications. CECOT has become a focal point of international scrutiny since its inauguration in. The facility, a cornerstone of President Nayib Bukele’s aggressive anti-gang strategy^[xv], has ignited a heated debate about the balance between security measures and human rights in the criminal justice system.

CECOT’s sheer scale is unprecedented in Latin America. The prison complex comprises eight expansive pavilions, each containing cells that house between 65 to 70 prisoners. The facility’s architecture and operational protocols prioritise security and isolation over rehabilitation, reflecting a punitive approach to incarceration. Cells are windowless, furnished only with bare metal bunks devoid of mattresses. Sanitary facilities are woefully inadequate, with each cell equipped with just two sinks and two toilets for dozens of inmates, offering no privacy. The extreme confinement regime exacerbates the harsh conditions, where prisoners are restricted to their cells for 23.5 hours daily, with a mere 30-minute allowance for exercise in a windowless corridor. Surveillance is omnipresent, with CCTV cameras and armed guards monitoring from elevated positions, creating an atmosphere of constant observation and control.

When compared to international standards, CECOT’s conditions fall significantly short of accepted norms for the humane treatment of prisoners. The United Nations Standard Minimum Rules for the Treatment of Prisoners are routinely contravened^[xvi] within CECOT’s walls. The lack of basic amenities such as mattresses, adequate sanitation, and recreational facilities stands in stark contrast to these international guidelines. Moreover, the extreme isolation and absence of rehabilitation programs directly contradict global standards that emphasise the importance of preparing inmates for reintegration into society.

Human rights organisations and legal experts have been unequivocal in their condemnation of CECOT and the broader implications of El Salvador’s incarceration policies. Amnesty International has characterised the situation in El Salvador as a “human rights crisis,”^[xvii] pointing to widespread arbitrary detentions, forced disappearances, and allegations of torture. Human Rights Watch has documented extensive human rights violations^[xviii] during El Salvador’s state of emergency, with particular concern for conditions in facilities like CECOT. The gravity of the situation is further underscored by the assessment of Miguel Sarre, a former member of the UN Subcommittee for the Prevention of Torture, who described CECOT as a “concrete and steel pit“^[xix] designed to “dispose of people without formally applying the death penalty”. Such stark criticisms from respected international observers highlight the severity of the human rights concerns surrounding CECOT.

The establishment and operation of CECOT have had a profound impact on El Salvador’s international reputation. While some international figures, notably U.S. President Donald Trump, have praised Bukele’s hardline approach to crime, the broader international community views CECOT as emblematic of human rights abuses. The facility has drawn intense scrutiny from international bodies such as the United Nations and the Inter-American Commission on Human Rights, placing El Salvador under a global spotlight^[xx]. This attention has sparked wider debates about the appropriate balance between security measures and human rights protections in Latin America and beyond.

Broader Implications

This agreement between El Salvador and the United States to house deportees and American criminals in Salvadoran prisons represents a significant departure from traditional approaches to international criminal justice and migration management. While having some parallels with the previous Trump administration’s controversial “safe third country” agreements, known as Asylum Cooperative Agreements (ACAs)^[xxi], with Guatemala, Honduras, as well as El Salvador, this new agreement goes much further. The 2019 ACAs allowed the U.S. to send asylum seekers to these countries if they had travelled through them on their way to the U.S., obliging them to seek asylum there first. At the time Guatemala was the only country to implement the agreement^[xxii], with a limited number of migrants – reportedly around 700 – being sent there.

Even in these more targeted agreements critics argued that these countries were not equipped to handle large numbers of asylum seekers and were not safe. The Biden administration suspended and withdrew^[xxiii] from these agreements in February 2021, effectively ending the policy. With Trump returning to the White House, his new and more far-reaching arrangement with Bukele has the potential to reshape future agreements on asylum and deportation, as well as diplomatic relations, particularly within the Americas, and its implications extend far beyond the borders of the two countries involved.

This agreement sets a controversial precedent for migration policies that could significantly influence future international arrangements. Expanding the concept of “safe third country“^[xxiv] agreements may encourage other nations to offer similar arrangements, potentially leading to a shift in global migration policies. Developed countries might increasingly seek to outsource their immigration challenges to less developed nations – The United Kingdom’s attempts to deport migrants to Rwanda^[xxv] for example – fundamentally altering the landscape of international migration governance. Future agreements could potentially include provisions for housing deportees or criminals from other countries, representing a significant evolution in how nations manage cross-border population movements.

The potential ripple effects of this agreement on U.S.-Central American relations are substantial and multifaceted. The deal may alter regional power dynamics as El Salvador could gain increased influence due to its closer ties with the United States. This could pressure other Central American countries to offer similar concessions to maintain favourable relations with the U.S., potentially leading to a reconfiguration of alliances and partnerships within the region. The economic implications of the deal are equally significant. The financial compensation El Salvador receives for housing prisoners could influence its economic policies and development strategies. This might also prompt other Central American countries to seek similar economic opportunities through unconventional agreements with the U.S., potentially leading to a new form of economic dependency in the region centred around migration and criminal justice outsourcing.

The agreement is likely to reshape security dynamics across Central America. It could lead to increased U.S. involvement in El Salvador’s security apparatus, potentially extending to other countries in the region. While this might result in a more integrated approach to combating transnational crime and gang activity across Central America, it could also raise concerns about sovereignty and U.S. influence in the region’s internal affairs. The U.S. track record of intervention in the region^[xxvi] has seldom benefited local inhabitants and has typically been motivated by strategic interests rather than humanitarian concerns. For example, supporting the military regime in El Salvador or the Contra rebels in Nicaragua during the 1980s, the overthrow of President Jacob Arbenz in Guatemala, the backing of convicted leaders like Juan Orland Hernandez in Honduras, or the invasion of Panama in 1989, have sought to benefit the U.S., but have all brought instability, economic hardship and increased migration, violence and corruption to the local population.

Conversely, the human rights issues raised by this agreement could increase tensions between U.S., El Salvador, and human rights advocates, potentially straining diplomatic relations in the region. International human rights organisations may increase their scrutiny of U.S. and Central American countries’ justice systems and prison conditions. The deal is very likely to bring about increased monitoring of El Salvador’s prison system, particularly the CECOT mega-prison – potentially a good thing for those housed there. The additional scrutiny that this deal brings to prisons in the region though, may create tensions with countries such as Guatemala^[xxvii] where efforts are made to keep their own overcrowded prisons out of the spotlight. The agreement may also lead to greater scrutiny of U.S. immigration policies and deportation procedures. This heightened attention from legal experts, civil rights groups, and international organizations is likely to frustrate the Trump administration and may well lead to the U.S. pulling out of further global humanitarian and migration agreements^[xxviii] in an attempt to avoid such attention.

The El Salvador-U.S. agreement represents a significant shift in approaches to migration and criminal justice on an international scale. Its broader implications could reshape diplomatic relations, particularly in the Americas, and potentially usher in a new era of transnational agreements that challenge traditional notions of national sovereignty and international cooperation. The deal also faces substantial legal and ethical challenges that also reach well beyond the region. As this unprecedented deal unfolds, its success or failure will likely influence future policy decisions and diplomatic negotiations far beyond the immediate context of El Salvador and the United States. The international community will be closely watching the implementation and consequences of this agreement, as it may set the stage for a new paradigm in global governance of migration and criminal justice.

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