Pete Eikenberry
As reported in The New York Times on August 30, 2025, there is a controversy as to whether the Trump administration may “end the H.W. Bush administration’s Congressional enactment of Temporary Status for, inter alia, 600,000 Venezuelan immigrants. . . .” In March 2025, the Trump administration defined 252 of such immigrants as “criminal invaders.” Under the guise of this designation, it deported them into confinement in El Salvador’s notorious Terrorism Confinement Center, “CECOT.” (One of the 252 was reportedly deported by “mistake,” and his release was initially secured after the intervention of a U.S. Senator. The status of that man, Kilmar Abrego Garcia, in the United States remains in question though he is well represented.)
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.”
Thereafter, the remaining 251 were imprisoned without due process of law for four months 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 to the United States.)
It is vital to bear in mind that Secretary Noem is not simply a spokesperson for the administration but a high official responsible for defining and enforcing national policy. Her statements cannot be dismissed as rhetorical hyperbole: they record the clear and enacted intentions of a lawless state. The language of the 14th Amendment is clear: while it does distinguish between citizens and persons more broadly, it explicitly says that our government may not “deprive any person of life, liberty, or property, without due process of law.” To effectively sentence “any person” to life imprisonment without even a trial is surely a self-evident and gross violation of due process.
More than that, this violation of due process is also tantamount to a confession of intent to violate the Eighth Amendment prohibition against “cruel and unusual punishments” by subjecting persons to imprisonment at a facility whose systematic use of torture is well documented. In 2023, two years before these events, a U.S. State Department Report described reports of torture and other cruel, inhuman, or degrading treatment or punishment in the CECOT prison system,
“[as] including beatings by guards and the use of electric shocks” noting that human rights organizations have alleged that the “treatment of prisoners constituted torture.” (Bureau of Democracy, Human Rights, and Labor, U.S. Dep’t of State, El Salvador 2023 Human Rights Report 1, https://perma.cc/MG4W-P4EE.)
THE NATURE OF TORTURE AND ITS STANDING UNDER INTERNATIONAL LAW
An initial legal question is whether the unlawful deportation of the 251 to CECOT and their subsequent mistreatment qualified as “torture.” As stated in Fried & Fried, Because It Is Wrong: Torture, Privacy, and Presidential Power in the Age of Terror (2010):
Torture grossly offends the bedrock premise that every human being is a locus of inestimable value: a being with plans, emotions, rational and aesthetic or spiritual capacities, and the capacity to form relations to other persons. Altogether, we call all these aspects of a person her soul.
Id. at 55.
In The United Nations Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment (the Convention), to which the United States is a party, torture is defined as:
Any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering rising only from, inherent in or incidental to lawful sanctions.
The Convention “specifies that both physical and mental suffering can constitute torture, and that for such suffering to constitute torture, it must be purposefully inflicted. Further, acts of torture covered under the Convention must be committed by someone acting under the color of law.” This definition of torture includes not only acts committed by public officials, but also those acts to which they acquiesced. “[A]quiescence to torture requires only that government officials remain willfully blind to torturous conduct and breach their legal responsibility to prevent it,” Silva-Rengifo v. Atty. Gen. of United States, 473 F.3d 58, 70 (3rd Cir. 2007).
Additionally, the Convention forbids refoulement – the return, extradition, or expulsion of a person to another country where there are substantial grounds for believing that he would be in danger of being subjected to torture.
CAN THERE BE CIVIL LIABILITY FOR TORTURE OF THE 251 BY ADMINISTRATION OFFICIALS?
History
The President as Commander-in-Chief
[T]he Bush Justice Department . . . claimed virtually unlimited powers of the president as commander in chief in times of crisis. Vice President Dick Cheney and his counsel, David Addington, procured from the Office of Legal Counsel an opinion by which the president would never run the risk of violating the law because in his role as commander in chief, . . . his dictates are the law. (Fried & Fried at 121-122.)
A Contrary Opinion
We are reminded of Supreme Court Justice Robert Jackson’s observation in 1952: “The Constitution did not contemplate that the title Commander-in-Chief of the Army and Navy will constitute him also Commander-in-Chief of the country.” Id.
How May Administration Officials Be Held Liable for Torture?
The likely avenue for holding administration officials accountable in civil lawsuits for their role in the torture of the 251 is the Alien Tort Statute (the ATS), 28 U.S.C. § 1350. The ATS provides federal district courts with jurisdiction to hear cases that contain the following four elements: (1) a civil action (2) by an alien (3) for a tort (4) committed in violation of the law of nations or a treaty of the United States.
In the landmark ATS case, Filartiga v. Pena-Irala, 630 F.2d 876 (2d Cir. 1980), the court held that “in the twentieth century the international community has come to recognize the common danger posed by the flagrant disregard of basic human rights and particularly the right to be free of torture.” The Supreme Court reaffirmed this position in Sosa v. Alvarez Machain, 542 U.S. 692 (2004), where the Court held that federal courts may recognize some tort claims for violations of international law and adopted a two-step framework for approaching the issue.
First, courts must determine whether the claims are based on violation of an international law norm that is “specific, universal, and obligatory.” Id. at 732 (internal citations omitted.)
Second, if step one is satisfied, courts should determine whether allowing the case to proceed is an appropriate exercise of judicial discretion. Id. at 728-729.
Pursuant to this framework, there appears to be cause of action for the 251 to pursue litigation against U.S. government officials responsible for their deportation and detention without due process including cruel, inhumane and torturous misconduct. “District courts in the Second Circuit have recognized tort liability for torture . . . committed by both state and non-state actors,” In re S. Apartheid Litig., 617 F. Supp. 2d 228, 248-49 (S.D.N.Y. 2009). In Chowdhury v. WorldTel Bangladesh Holding, Ltd., 588 F. Supp. 2d. 375 (E.D.N.Y. 2008), the court held that, “the use of gratuitous, punitive, or coercive electric shock against a pretrial detainee constitutes torture.” Id. at 381. The court relied on the Convention for the definition of torture, noting that the United States has ratified it. Id. at 382. In Wiwa v. Royal Dutch Petroleum Co., 626 F. Supp. 2d 377 (S.D.N.Y. 2009), the court found that “customary international law norm against cruel, inhuman, or degrading treatment” was sufficiently defined to satisfy the Sosa standards set both above. Id. at 382, n. 4.
“[A] single detention of less than a day, followed by the transfer of custody to lawful authorities and a prompt arraignment, violates no norm of customary international law so well defined as to support the creation of a federal remedy.” Kiobel v. Royal Dutch Petroleum Co., 456 F. Supp. 2d 457, 467 (S.D.N.Y. 2006) (quoting Sosa, 542 U.S. at 738), aff’d in part, rev’d in part, 621 F.3d 111 (2d Cir. 2010), aff’d, 569 U.S. 108 (2013). The court described its decision as a “narrow” holding; this seemingly supports the position that a lengthy arbitrary detention, such as for four months, does violate international law. There is substantial connection to the United States, another requirement of the ATS. The detention without due process of the 251 in the United States was directed by U.S. officials before the 251 were deported to El Salvador. The ATS serves as a legal avenue to hold U.S. officials responsible for sustained torturous misconduct after capture, transfer and detention without due process.
THE EXPERIENCES OF THE 251 AT CECOT
Following their release, the 251 detailed the physical and mental torture they endured at the prison. In an interview, 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.” A lawsuit filed by one of the 251 seeks damages under the Federal Tort Claims Act. 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.
CONCLUSION
Kristi Noem’s words confirming the administration’s intentional and lawless sentencing of the 251 without due process to lifetime detention and torture are haunting. Each of the 251 had a valid claim to be treated as a human person with rights under the U.S. Constitution, no matter how flawed, or, perhaps, even dangerous some of them might be. Rather, they were part of a group the administration willfully submitted to detention and torture in an attempt to persuade other Venezuelans to leave the United States and even more disturbingly, to assert, thus, the administration’s intent to ignore constitutional provisions in the exercise of raw, coercive power.
The prohibition against torture and the affirmation of due process are not just for the sake of potential victims but also to ensure that our government upholds our founding commitment to the dignity of the human person and to a nation of laws. We are a country whose basic principles make the actions of this administration not only illegal, but also a despicable repudiation of what this nation, at its best, must stand for. We have a history of slavery and discrimination, but citizens rose up to end these horrendous practices. We may, all of us, each in our own way, contribute to resisting this administration’s lawless cruelty. To hold this administration legally responsible for its constitutional violations against the 251 is one such way to take responsibility for ensuring that our nation’s ideals, rather than its worst impulses, be realized.
Justice Kennedy, at a November 2005 symposium at the Bar Association of the City of New York, stated that “we never recognize injustice in our own time.” Do not we lawyers all have a “role morality” to speak up now for the benefit of society? At the 2025 symposium, Chief Justice Roberts proclaimed that “our concept of an independent judiciary as our most important contribution to the rule of law jurisprudence and which has been almost universally adopted especially by emerging democracies since the beginning of the Second World War.” The administration chose rather to make life or death decisions without the troublesome impediment of rule of law jurisprudence.
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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 astute observations, and Amer J. Anwar for his collaboration.