Pete Eikenberry
As reported by The New York Times in a front page article on Sunday, November 9, 2025:
In March and April, the Trump administration made the extraordinary decision to send 252 Venezuelan men to a notorious prison in El Salvador known as the Terrorism Confinement Center, saying they had infiltrated the United States in a form of “irregular warfare.” . . . It was part of a larger strategy by the Trump administration to ship migrants to third countries – and deter others from coming. [The Times] interviewed 40 of the men who were imprisoned. They described being beaten, sexually assaulted by guards and driven to the brink of suicide. A team of independent forensic analysts examined their testimony. The experts called it “consistent and credible,” saying most of the acts described met the United Nations’ definition of torture. . . .
Several doctors from the team known as the Independent Forensic Group said the men’s testimonies, along with photographs of what they described as their injuries from abuse, were consistent and credible, providing “compelling evidence” to support accusations of torture. The group’s assessments in other cases have been in courts around the world. . . .
The forensic experts said that they were struck by how similar the men’s allegations were. The former prisoners, each interviewed separately, described the same timeline and methods of abuse, with many of the same details.
When such “identical methods of abuse” are described by multiple people, the experts wrote in their assessment, it “often indicates the existence of an institutional policy and practice of torture.”
The Trump administration defined the 252 immigrants as “criminal invaders.” (One of the 252 was reportedly deported by “mistake,” and his release was secured by the intervention of a U.S. Senator; thus, the group is referred to herein as “the 251.”) President Trump, speaking at the United Nations General Assembly in September, praised Salvadoran officials for “the successful and professional job they’ve done in receiving and jailing so many criminals that entered our country.”
After the administration’s payment to El Salvador of $6,000,000, and the imprisonment of “the 251” in CECOT, U.S. Homeland Security Secretary, Kristi Noem stated that,
We’re confident that the people that are imprisoned [in El Salvador] should be there, and they should stay there for the rest of their lives.” She also stated that CECOT is “one of the toolkits [the administration] will use against illegal immigrants.”
The 251 were kidnapped and imprisoned by the administration without due process of law for four months and without access to the outside world, including contact with their families or lawyers, all the while being subjected to torture. In July, the 251 were swapped like helpless cattle to Venezuela for eleven people released by it by the United States.
Experiences of the 251 at CECOT
In the 40 Times interviews following [the] release (of the 251) [the interviewees] suffered frequent intense, physical and psychological abuse. Beyond the beatings, tear gas and trips to the isolation room, the men said they were mocked or ignored by medical personnel, forced to spend 24 hours a day under harsh lights and made to drink from wells of fetid water. They detailed the physical and mental torture they endured at the prison. Nine of the detainees shared their experiences where they described how they were tortured. One man described physical abuse where “guards stomped on his hands, poured filthy water into his ears and threatened to beat him if he didn’t kneel alongside other inmates and lick their backs.” The men suffered the psychological abuse of “losing track of the days because they were never allowed outdoors.” In a lawsuit filed by one, he states that he was beaten in his chest and stomach by guards, who used fists and batons to inflict pain. On one occasion, he was taken to an area of the prison without cameras, where guards routinely brought detainees to assault them without leaving a video record. There, he was viciously beaten.
The Criminal Liability of a President
In Trump v. United States, 603 U.S. ___ (2024), the Court held as follows:
– No criminal prosecution of a sitting President.
Our decision in Clinton permitted claims alleging unofficial acts to process against the sitting President. See 520 U.S., at 616. In the criminal context, however, the Justice Department “has long recognized” that “the separation of powers preludes the criminal prosecution of a sitting President.” Id. at 615, n. 2.
– The Court found the instant case as the only one in 200 years – more experience necessary to determine presidential immunity.
“[O]ne case” in more than “two centuries does not afford enough experience” to definitely and comprehensively determine the President’s scope of immunity from criminal prosecution. Id. at 615.
– No precedent on how to determine whether conduct an “official act.”
Determining whether a former President is entitled to immunity from a particular prosecution requires applying the principles we have laid out to his conduct at issue. The first step is to distinguish his official from unofficial actions. In this case, however, no court has thus far considered how to draw that distinction, in general or with respect to the conduct alleged in particular. Id. at 616.
– The Court offered guidance with “analysis” to be “perform[ed] in the first instance” in “the lower courts.”
We offer guidance to those issues below. Certain allegations . . . are readily categorized in light of the nature of the President’s official relationship to the office held by that individual. Other allegations . . . present more difficult questions. Although we identify several considerations pertinent to classifying those allegations and determining whether they are subject to immunity, that analysis ultimately is best left to the lower courts to perform in the first instance. . . . Id. at 617.
– Thus, lower courts must first determine the president’s “constitutional and statutory authority to take official action.”
When the President acts pursuant to “constitutional and statutory authority,” he takes official action to perform the functions of his office. . . . Determining whether an action is covered by immunity thus begins with assessing the President’s authority to take action. Id. (emphasis supplied.)
– The lower courts have to determine whether his conduct was “manifestly beyond his authority.”
[T]he immunity we have recognized extends to the “outer perimeter” of the President’s official responsibilities, covering actions as long as they are “not manifestly or palpably beyond [his] authority.” Id. at 618. (emphasis supplied.)
In Summary
Indisputably, there was no authority for the president to kidnap and indefinitely detain the 251. No court will hold that violations of due process and the Eighth Amendment protections against cruel and unusual punishment are “official acts.” The source of a potential criminal prosecution is beyond the purview of this article. Any such prosecution would, of course, be instituted in a lower court and would include other officials under the supervision of the president. Such a court would initially determine issues described herein such as (1) whether the president acted “pursuant to constitutional and statutory authority,” and (2) whether his actions were “official” actions performed in the “function of his office.” Id. at 617. It would have been “manifestly beyond his authority,” id. at 618, to kidnap and imprison the 251. Such unconstitutional misconduct would not be “an exercise of his core constitutional authority.”
In a recent interview, Susie Wiles, the president’s chief of staff, stated that during the president’s first term he consulted with his lawyers before taking an action to determine his authority for the action. If he was advised that the act was beyond his authority, he did not act. She stated that in his second term he takes actions without consulting with counsel to determine his authority to take the action.
The president may not “stand in the middle of Fifth Avenue and shoot someone” without prosecution. The example of the 251 is the place where a lower court would first have to draw the line between “official” and “unofficial acts” pursuant to the Court’s standard of whether the president had “authority.” Otherwise, such a court would be determining that Trump v. United States permits a president to exercise the arbitrary power of an unchecked tyrant. We fought a revolution to oppose such tyranny. The Constitution that our founding generation ratified must be interpreted to protect the inalienable rights of a free people.
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Author’s note: The author thanks Brooklyn Law student Lauren Dougherty for her scholarship, Roger Williams University Law Professor Peter Margulies for his insights, Boston College Philosophy Professor Gregory Fried for his learned observations, Amer J. Anwar for his collaboration, and 60-year friend Tom McGanney for his edits.