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10 hours ago
3
from the seems-important dept
For months, the DOJ has insisted to US courts that it has no jurisdiction over the people it rendered to Salvadoran detention facilities. But when the UN came asking, El Salvador told a very different story: these detainees are “exclusively” under US jurisdiction and legal responsibility.
The contradiction is so blatant it’s almost insulting to the intelligence of the courts that have been hearing these cases. But then again, this is the same administration that thinks you can just lie your way out of human trafficking charges, so maybe insulting judicial intelligence is the whole point.
In the case of Kilmar Abrego Garcia, whom the US accidentally shipped to El Salvador despite a court order saying he could not be sent there, when a judge ordered the US to get him back, the DOJ insisted that it was out of their hands.
It is my understanding based on official reporting from our Embassy in San Salvador that Abrego Garcia is currently being held in the Terrorism Confinement Center in El Salvador. He is alive and secure in that facility. He is detained pursuant to the sovereign, domestic authority of El Salvador.
Earlier, they had also insisted to a court that the US had absolutely no jurisdiction over the people they had renditioned to a Salvadoran concentration camp:
Plaintiffs admit—as they must—that the United States does not have custody over Abrego Garcia. They acknowledge that there may be “difficult questions of redressability” in this case, reflecting their recognition that Defendants do not have “the power to produce” Abrego Garcia from CECOT in El Salvador.
The Supreme Court even took this at face value in reviewing the case back in April.
This also led to the hilariously stupid exchange between President Donald Trump and Salvadoran dictator Nayib Bukele when they met, where they each pretended it was a ridiculous question to even contemplate bringing Abrego back to the US. This was all, quite obviously, a lie. The US was paying the Salvadoran government millions of dollars to house these men and the contract between the two countries even notes that the US gets to decide the prisoner’s “disposition.” You know, like you do when you have absolutely no control over something.
And, of course, when it was politically expedient, the US had no problem at all bringing Abrego back to the US, to face bogus, trumped-up criminal charges.
But now, in a different case about these rendition flights, the lawyers have turned up a fascinating document which they’ve shared with the court. It was a response from the Salvadoran government to an inquiry about these trafficked detainees from the United Nations. And, when confronted by the UN, El Salvador immediately threw the US under the bus, saying that the detainees are fully under the jurisdiction of the United States.
The Salvadoran State emphatically states that its authorities have not arrested, detained, or transferred the persons referred to in the communications of the Working Group. The actions of the State of El Salvador have been limited to the implementation of a bilateral cooperation mechanism with another State, through which it has facilitated the use of the Salvadoran prison infrastructure for the custody of persons detained within the scope of the justice system and law enforcement of that other State. In this context, the jurisdiction and legal responsibility for these persons lie exclusively with the competent foreign authorities, by virtue of international agreements signed and in accordance with the principles of sovereignty and international cooperation in criminal matters. In this regard, the actions attributable to the Salvadoran State are limited to its sovereignty and territorial jurisdiction, and therefore it cannot be held responsible for the failure to observe the principle of non-refoulement with respect to the persons mentioned.
Read that again: “the jurisdiction and legal responsibility for these persons lie exclusively with the competent foreign authorities”—meaning the United States. This is the same El Salvador that Trump and Bukele pretended had no ability to coordinate with the US on these detainees’ fate.
Even more damning: the lawyers note that the DOJ was aware of this document and failed to provide it to the lawyers for the people being trafficked, despite being required to during discovery:
This information came to Petitioners’ attention within the last week, when counsel for Petitioners obtained the Spanish-language report from one of the families. Although the United States was aware of this document (as evinced by the fact that it was copied on the reports for all four cases), it was neither provided to Petitioners (even though it is clearly encompassed in Petitioners’ Requests for Production) nor provided to the Court. Ex. 2 (Petitioners’ Requests for Production, May 19, 2025) (RFP No. 1, requesting “ALL DOCUMENTS memorializing, documenting, or describing the arrangements between the UNITED STATES and EL SALVADOR concerning the detention of alleged Tren de Aragua Members in El Salvador”).
This isn’t just a discovery violation—it’s active concealment of evidence that directly contradicts the DOJ’s core legal argument. The DOJ had in its possession a document showing that El Salvador considers the US to have “exclusive” jurisdiction over these detainees, while simultaneously telling US courts that the US has no jurisdiction at all.
This all matters quite a bit because the law here says that whoever has “constructive custody” of the individuals can be forced to produce the body. And here El Salvador has admitted to the UN (and the US) that it believes the US has “exclusive… jurisdiction and legal responsibility” for these men.
Yes, obviously a lot of this has been transparent lies and game-playing by both the US and El Salvador. The press conference with Trump and Bukele proved that: They were going to play “not it” and pretend that there was nothing that could be done to facilitate anything even as they sat next to each other talking freely—and even as both governments knew that El Salvador had already told the UN that the US has exclusive jurisdiction. So you may argue this is not that big a deal, because it only confirms what everyone already suspected: that of course the US has control over these people, even as its leaders pretend otherwise.
But it could matter quite a bit to the courts. Not only does it reveal that the US courts absolutely do have jurisdiction over the cases of the people renditioned to this Salvadoran hellhole, but also that the DOJ actively concealed evidence while lying about this very issue in court. Even as the courts continue to display a ridiculous level of deference to the DOJ, we’ve already seen some signs that various courts’ patience is wearing thin.
This kind of outright deception—lying to courts about who has custody of these men while hiding evidence that contradicts your core legal argument—seems like yet another pivotal moment in making more and more of the judiciary realize that the Trump regime is not engaging in good faith in court and has no compunction about flat out lying to avoid taking responsibility for any of its myriad fuckups. Turns out that authoritarian regimes engaged in an immoral and despicable campaign of human trafficking might not be the most trustworthy in court. Who knew?
For now, though, the lawyers are alerting the court and suggesting they may need more discovery to get to the bottom of this. But the bigger question is whether the courts will finally start treating this administration’s word with the skepticism it deserves.
Such additional discovery may be particularly important because this new evidence contradicts the underlying custody conclusion in the Kozak Declaration of May 9, 2025, which is dated after El Salvador’s responses to the UN and after Petitioners sought habeas review (the date habeas attaches). Decl. of Michael G. Kozak, ECF No. 125 ¶ 9 (“It was and remains my understanding that the detention and ultimate disposition of those detained in CECOT and other Salvadoran detention facilities are matters within the legal authority of El Salvador in accordance with its domestic and international legal obligations.”)
Sometime during these years under the Trump regime, the courts are going to need to internalize that Trump’s DOJ will tell straight up lies to get what it wants from the court. The sooner they learn that, the better.
Filed Under: cecot, constructive custody, detention, doj, el salvador, habeas corpus, human trafficking, jurisdiction, un
