Crossing the Rubicon: U.S. Government Cash for Human Rights Violations

Although U.S. presidents have often made controversial—and sometimes arguably unlawful—decisions about which countries and security forces to give security assistance to, they typically have not offered it for the stated purpose of carrying out gross violations of human rights. But with a payment to El Salvador’s president, Nayib Bukele, President Trump appears to have hired a foreign country’s government to arbitrarily detain hundreds of men. In other words, he appears to have hired another government to implement their prolonged detention without charges and trial—an act defined in U.S. law as a “gross violation of internationally recognized human rights.” 

Every year, the U.S. sends billions of dollars in arms and other types of security assistance to its allies and partners around the world. But that assistance comes with statutory restrictions passed by Congress, and some of those laws prohibit U.S. assistance from going to foreign forces in response to their misconduct, like when they have committed gross violations of human rights. Although the executive branch has had an inconsistent track record of applying these laws—with weak oversight and follow-up from Congress when violations are alleged and reluctance from federal courts to intervene—the statutes generally still serve as a safeguard against U.S. government assistance enabling such violations abroad. 

But, setting aside the many other important legal issues at play here, President Trump’s payment to another country invites the question of how such a scheme could be legally possible. And the answer appears to be found in the various loopholes that exist in relevant U.S. statutes, which have provided a pathway for the use of U.S. security assistance for the explicit purpose of imprisoning hundreds of people in prolonged detention without charges or trial. Congress should act to fix them. 

The Deportations and the Deal

On March 15, the Trump administration invoked the Alien Enemies Act, a 1798 wartime authority, and deported more than 230 men located in the United States to El Salvador, alleging many are members of the Tren de Aragua gang. There, in return for millions of dollars in U.S. government assistance, President Bukele agreed to imprison them in the notorious maximum-security Terrorism Confinement Center (CECOT) without charge or trial, with the potential for renewal of the deal in one year.

Democratic lawmakers responded quickly, though their actions were largely symbolic. Sen. Chris Van Hollen (D-Md.) traveled to El Salvador to meet with Bukele and check on Kilmar Abrego Garcia, a Maryland resident swept up in the deportations. Sen. Tim Kaine (D-Va.) filed a resolution under Section 502B(c) of the Foreign Assistance Act that, had it passed in the Senate alone, would have forced the State Department to submit a human rights report on El Salvador (the measure failed 45-50 in the Republican-controlled body). Other lawmakers have sent letters to the administration seeking answers to questions about the deportations and the deal. Some of those deported also challenged the administration in court, arguing they were unlawfully denied due process. 

Most of those who have criticized Trump for these deportations have stressed two critical concerns: (a) The men’s constitutional protections were wrongfully denied when they did not receive due process in the United States (with particular emphasis on the wrongful application of the Alien Enemies Act for those deported under that law) and (b) the U.S. should not be transferring people to places where they could face ill treatment or torture—Bukele’s detention methods, framed as a way of cracking down on violent crime, have become notorious for lack of due process and the harsh treatment of prisoners.

But there is another important point to raise that is related but distinct: The U.S. government is knowingly, explicitly, and very publicly paying another country to arguably commit gross violations of human rights, and that is a watershed moment for the United States. How is it that U.S. law allows taxpayer money to be expended in this way? 

Domestic Law Restrictions on U.S. Security Assistance 

The U.S. government provides billions of dollars in U.S. security assistance around the world each fiscal year. Over the past several decades, Congress has passed laws that aim to ensure such assistance is not used for purposes Congress deems unfit. These laws are different from traditional sanctions and intend to advance certain objectives and values—human rights, law of war compliance, civilian rule of government, anti-corruption, and the like. These laws serve an important purpose as institutional guardrails to restrain executive branch policymakers who might prioritize their own short-term goals. 

Reporting indicates that the funding President Trump has relied on to pay El Salvador is a specific type of security assistance: from the Department of State’s International Narcotics Control and Law Enforcement (INCLE) account. These funds are appropriated by Congress for the purpose of countering drugs and combating transnational crime. What is most striking about this payment from Trump is that it is unprecedented for the U.S. to publicly and proudly enter into such a deal with U.S. security assistance. (The Bush administration’s CIA rendition, detention, and interrogation program that resulted in the torture of detainees included CIA payments to foreign countries for their facilities, but the program was classified and kept secret for many years.) 

Financially assisting a foreign military with a bad track record is one level of flouting international norms (and may run afoul of U.S. law); making direct payment for that country to actually commit violations is beyond the pale. But is the latter legal under domestic law? While it might be intuitive to argue with a hard no, it seems the current legal framework governing U.S. security assistance has too many loopholes for that to be the correct answer. 

Right now, there are three prominent laws that explicitly prohibit U.S. security assistance when the recipient country has already committed or is in the process of committing “gross violations of human rights,” as defined in Section 502B(d)(1) of the Foreign Assistance Act. Those violations include “torture or cruel, inhuman, or degrading treatment or punishment, prolonged detention without charges and trial, causing the disappearance of person by the abduction and clandestine detention of those persons, and other flagrant denial of the right to life, liberty, or the security of person.”

Two of these three laws are narrower in scope than the third and are referred to as the Leahy laws, named after retired Sen. Patrick Leahy (D-Vt.). The Leahy laws prohibit security assistance from the Departments of State and Defense to a unit of a foreign security force when the secretaries of those departments have credible information the unit committed a gross violation of human rights. But the loophole here is that the Department of State has a way around the Leahy law for the INCLE account due to a provision in the law that allows INCLE funds to be executed “notwithstanding any other provision of law”—including the Leahy laws. If Trump in fact used State Department INCLE funds to pay El Salvador, it is likely executive branch lawyers would have used the notwithstanding authority to avoid Leahy law prohibitions given the credible allegations against the forces at CECOT. Further, because the Leahy laws are retrospective, they would not prohibit the provision of security assistance to a unit of a foreign security force to commit a gross violation of human rights if the recipient unit is considered “clean,” free of any credible information it had committed past violations.

The third law is Section 502B of the Foreign Assistance Act, which imposes a blanket prohibition on security assistance to any country only if the secretary of state determines its government engages in a consistent pattern of gross violations of human rights. Experts, senators, and House members have argued that El Salvador should be subject to the 502B prohibition. In addition to many nongovernmental human rights reports, they point to the 2023 State Department Human Rights Report, in which the U.S. government described credible information of gross violations of human rights. These violations include incidents that happened at CECOT, the prison facility reported to be housing the deported men. The secretary of state has not, and likely will not, make a 502B determination that prohibits assistance to El Salvador, which is the only way to trigger the prohibition in the law. And if he did, the State Department could use the INCLE notwithstanding authority to get around 502B’s prohibition. 

There is one other relevant statute, related not to security assistance payments directly but, rather, to the transfer of persons. Section 1231 of Title 8 U.S.C. reflects the prohibition in international law and the United Nations Convention Against Torture referred to as “non-refoulement.” This law requires that it be the policy of the U.S. to not “expel, extradite, or otherwise effect the involuntary return of any person to a country in which there are substantial grounds for believing the person would be in danger of being subjected to torture, regardless of whether the person is physically present in the United States.” Some lawyers in the executive branch argue that the phrasing from Congress “shall be the policy” is discretionary and thus leaves it optional for the executive to apply. But for purposes of this issue, even if the prohibition in this provision were mandatory, it would speak to the transfer of an individual in the specific instances when the U.S. government has substantial grounds to believe they would be in danger of being subjected to torture.

There may well be non-refoulement issues in many of the cases that relate to forced removal of an individual to places like El Salvador, but those are separate from the funding issue under discussion here. Regardless of the issues surrounding any individual’s removal, there does not appear to be any law that clearly prohibits a direct payment from the U.S. government for the commission of a gross violation of human rights. Perhaps Congress has never made such a prohibition explicit in the law because it seems obvious that a president should not do that. But clearly we have moved past the point where that would be a valid assumption. 

Congress Should Pass a Law 

Secretary of State Marco Rubio said that the agreement between the U.S. and El Salvador to send individuals for prolonged detention without charges and trial is “the most unprecedented and extraordinary migratory agreement anywhere in the world” and that the administration intends to continue to identify more countries willing to “accept and jail” as many alleged gang members as the U.S. can send. This seems to leave no dispute that the U.S. government entered into and could enter into more deals with foreign governments to perform what would likely be arbitrary detention—a gross violation of human rights—of hundreds or potentially thousands of people. 

Something should be done to make clear in the law that such payments are prohibited. Even if someone challenged the use of INCLE funds in federal court for this purpose, the courts typically refrain from second guessing presidents on this kind of issue. Which means Congress must act. The legislation could be simple, making clear that executive branch departments and agencies are prohibited from using any foreign assistance appropriated by Congress to pay a foreign government to commit gross violations of internationally recognized human rights as defined in Section 502B(d)(1) of the Foreign Assistance Act. 

Such legislation may not pass for some time. While previous iterations of Congress used to take up the mantle of human rights, enacting laws to encourage prevention and accountability, the body at present seems largely indifferent to these issues. But when a majority in Congress is again eager to advance the cause of human rights, it should pass a law. The question of how such a law would be enforced is a separate issue, but codifying the prohibition would at least plant a clear flag on the will of Congress that U.S. taxpayer money not be spent to offshore abusive conduct.