The New Transparency Rules and the El Salvador Detention Agreement
Published by The Lawfare Institute
in Cooperation With
Editor’s note: This piece was cross-posted at Just Security.
Congress in December 2022 enacted a sweeping new transparency statute for international agreements made by the executive branch. (We previously discussed the statute here and here.) This law imposes on the executive branch a duty to disclose to Congress and to publish certain binding and nonbinding executive agreements within specified time periods. This post explains the potential relevance of this law to the dispute over the mistaken deportation of Kilmar Abrego Garcia.
The Trump administration has stated in litigation that Abrego Garcia, an El Salvadoran national, was accidentally included in a group of over 200 migrants transferred to El Salvador, where they are being held in a large prison known as the Terrorism Confinement Center. Abrego Garcia should not have been removed because an immigration judge years earlier had granted him a withholding of removal to El Salvador due to a danger of persecution, and the government never appealed that decision.
Lawyers for Abrego Garcia have been seeking to have him returned to the United States, and the Supreme Court has said that the government is obligated to take steps to “facilitate” his release from El Salvador’s custody. To date, however, the executive branch has taken no apparent steps to comply with the directive, contending that Abrego Garcia is now subject to El Salvador’s sovereignty and is out of U.S. control.
The 2022 statute could play a role in the dispute because it might be a mechanism to force disclosure of any U.S.-El Salvador agreements connected to the detention facility and its operation in El Salvador. In exchange for housing the immigrants for a year, the administration has reportedly paid El Salvador $6 million. There is almost certainly some sort of written agreement between the two countries memorializing this arrangement, but the details of the agreement have not been disclosed by the administration. It is possible that these details will be disclosed in the Abrego Garcia litigation (the judge has allowed Abrego Garcia’s lawyers to engage in discovery), but that is far from certain.
The contents of any such agreement could be very relevant to the Abrego Garcia litigation. For example, El Salvador’s ministry of foreign affairs has said that it has agreed to house the individuals for one year, “pending the United States’ decision on their long term disposition.” El Salvador’s president has similarly stated on social media that the detainees are being housed at the confinement center “for a period of one year (renewable).”
These statements suggest that the administration still has control over the fate of the detainees, which contradicts the administration’s contention to the contrary. The text of the agreement could make clearer the scope of ongoing control that the United States may have over the fate of those it has sent to El Salvador for detention.
Under the 2022 transparency rules, the executive branch has transparency duties for both binding and nonbinding agreements. With respect to binding agreements, it must disclose them to Congress on a monthly basis and publish them within 120 days after they enter into force. As far as we know, the executive branch has not yet disclosed the agreement to Congress.
It is possible that the executive branch views the agreement as not legally binding. But even if so, it still has a duty under the statute to disclose and publish nonbinding agreements if they “could reasonably be expected to have a significant impact on the foreign policy of the United States.” The State Department’s regulations specify that among the factors to be considered in determining whether an agreement is covered include “whether, and to what extent, the instrument . . . affects the rights or responsibilities of . . . individuals in the United States; . . . and is of Congressional or public interest.” An agreement to house a large number of migrants removed from the United States to a notorious supermax prison in another country plausibly meets this standard.
But even if the administration maintains that the El Salvador detention agreement does not qualify under the statutory standard, there is yet another statutory route for its disclosure. The new transparency rules require the executive branch to disclose a nonbinding agreement if it is “the subject of a written communication from the Chair or Ranking Member of either of the [congressional foreign affairs] committees to the Secretary.” In other words, the Democratic minority leaders in the foreign affairs committees (Rep. Meeks in the House and Sen. Shaheen in the Senate) have a statutory right to obtain a copy of the agreement. Using this statutory provision, Sen. Shaheen has in fact now requested a copy of the agreement. Importantly, unlike the publication requirements, the requirements concerning disclosure of agreements to Congress apply even to classified material.
If the executive branch fails to comply with these statutory requirements (which seems quite possible), members of Congress should not allow the matter to drop. Congress’s new transparency rules are designed precisely for the current situation, in which the executive branch has made a significant, controversial, and potentially illegal agreement, and there is a pressing need for congressional, public, and judicial scrutiny of its contents. At a minimum, highlighting the administration’s failure to comply with the new statute would heighten the suspicion of illegality around this matter, which could be relevant to its resolution as it returns up the chain of appellate review to the Supreme Court.
