‘Deporting’ U.S. Citizens: Authoritarian, Unconstitutional, and Illegal
Why Sending "The Homegrowns" to Foreign Prisons is a Red Line in the Democratic Backslide
“Homegrowns are next, the homegrowns. You gotta build about five more places,” President Donald Trump quipped to El Salvador’s President Nayib Bukele during a recent Oval Office meeting.
In that chilling moment, caught on a livestream from Bukele’s office, Trump urged the Salvadoran leader to expand his notorious new prison – the Centro de Confinamiento del Terrorismo (CECOT) – to house American inmates. Bukele, an authoritarian-leaning populist who calls himself the “world’s coolest dictator,” simply nodded and said “alright” as others in the room laughed. But outside that room, legal experts and historians weren’t laughing at all.
Trump’s suggestion that U.S. citizens convicted of crimes could be shipped off to a foreign mega-prison has been met with alarm, deemed “flatly unconstitutional” and evocative of some of the darkest chapters in American and world history. It’s a proposal that raises a fundamental question: Can the U.S. government “deport” its own citizens into the custody of an overseas strongman? And if it tried, what would that mean for the Constitution and the very meaning of American citizenship?
The CECOT Prison and Trump’s Controversial Proposal
Trump’s remarks came as he praised Bukele’s crackdown on gangs and expressed admiration for CECOT, the massive prison Bukele built to hold tens of thousands of alleged gang members. CECOT – the Terrorism Confinement Center in Tecoluca, El Salvador – is one of the largest prisons in the world, with a capacity of 40,000 inmates. It has no visitation, recreation, or education for prisoners; it is designed to be brutal.
Bukele has made this “mega-prison” the crown jewel of his anti-gang campaign, boasting that those sent to CECOT “will never leave.” Human rights groups say they have yet to see anyone released from the facility.
Human rights organizations have decried the facility’s conditions as “harsh and life-threatening,” with reports of inmates suffering medical neglect, abuse, and even deadly violence at the hands of guards. President Bukele has openly stated that those locked up in CECOT are there permanently – they will “never leave” the prison’s cement walls.
It was against this backdrop that Trump floated an unprecedented idea: outsourcing the imprisonment of U.S. citizens to El Salvador. Specifically, he has suggested sending “heinous, violent” American criminals – what he calls “homegrown” criminals – to CECOT to serve their sentences. Bukele, for his part, has eagerly offered to take them, an offer the U.S. State Department called an “extraordinary gesture never before extended by any country.” Trump’s own Secretary of State, Marco Rubio, hailed it as “an act of extraordinary friendship,” while tacitly conceding “obviously legalities [are] involved.” Even Trump himself admitted “I don’t know what the law says on that” and that his team was “studying the laws right now” to see if it’s possible.
To be clear, there is no precedent for the U.S. government forcibly transferring its citizens to a foreign prison system.
“No, a U.S. citizen cannot legally be deported or denied entry to the United States,” explains Jean Reisz, a professor of law and co-director of USC’s immigration clinic.
Even Americans who joined ISIS or other terrorist groups overseas must by law be allowed to return to U.S. soil for trial; “the government can detain them... charge them... and incarcerate them if convicted, but they can’t be denied entrance back into the U.S.” In modern times, U.S. citizenship guarantees an individual the right to remain in their country and under its legal protections. Trump’s trial balloon, therefore, didn’t just push the envelope – it shredded it. Legal scholars quickly branded the idea “flagrantly illegal and spectacularly unconstitutional”, a plan that would amount to exile by another name.
Unconstitutional at Every Turn: Amendments Under Attack
Why are experts so certain that banishing U.S. citizens to foreign prisons would be unconstitutional? Because it clashes with some of the most fundamental rights enshrined in the U.S. Constitution. Trump’s offhand remark collides with multiple amendments in the Bill of Rights and beyond:
Fifth Amendment – Due Process: The Fifth Amendment guarantees that no person shall be “deprived of life, liberty, or property, without due process of law.” Shipping an American off to a foreign jail with no recourse in U.S. courts would blatantly violate due process. As Justice Sonia Sotomayor warned in a recent Supreme Court dissent, the government’s stance implies even U.S. citizens “could be taken off the streets, forced onto planes, and confined to foreign prisons with no opportunity for redress” if normal judicial review is short-circuited. In other words, disappearing someone to an offshore lockup is the antithesis of the due process that the Fifth Amendment is meant to uphold.
Sixth Amendment – Fair Trial: The Sixth Amendment protects the right to a speedy, public trial by an impartial jury in the state where the crime was committed, along with the rights to counsel and to confront witnesses. Removing a person to a foreign jurisdiction undermines these trial rights – how can one effectively appeal or consult their attorney from inside a Salvadoran prison? Even if a U.S. citizen were convicted in an American court, outsourcing their punishment abroad would hinder their access to U.S. courts for appeals or humane treatment claims. It effectively places them beyond the reach of the American justice system that the Sixth Amendment is meant to guarantee.
Eighth Amendment – Cruel and Unusual Punishment: The Eighth Amendment forbids “cruel and unusual punishments.” In the eyes of many, condemning an American to serve time in CECOT’s hellish conditions – where reports of beatings, lethal neglect, and indefinite detention are rife – would qualify as cruel and highly unusual.
“There are serious arguments that it is illegal…and unconstitutional under the Eighth Amendment as a cruel and unusual punishment” to send U.S. convicts to Salvadoran prisons, notes law professor Gabriel J. Chin.
Indeed, the U.S. State Department’s own 2023 human rights report on El Salvador described “harsh and life-threatening prison conditions,” including “arbitrary or unlawful killings” of inmates by guards or through neglect. The Supreme Court has also indicated that stripping someone of their citizenship is a punishment “more primitive than torture” and violates the Eighth Amendment (in the landmark 1958 Trop v. Dulles case). Effectively exiling a citizen to a foreign gulag – a fate arguably akin to denationalization – would seem to flout the same principle.
Fourteenth Amendment – Citizenship and Equal Protection: Section 1 of the Fourteenth Amendment affirms that “All persons born or naturalized in the United States... are citizens” and that no state may “deny to any person within its jurisdiction the equal protection of the laws.” While the Fourteenth Amendment primarily restricts states (and the Fifth restricts the federal government), together they cement the idea that citizenship is an inviolable status with certain inherent protections.
As legal analyst Matt Ford notes, “U.S. citizenship is constitutionally sacrosanct, and U.S. citizens cannot be involuntarily deprived of it. A privilege of U.S. citizenship is the right to live within the borders of the United States”
To remove a citizen from U.S. soil against their will – especially by force and with intent to keep them abroad permanently – is essentially to nullify their citizenship rights. Short of a voluntary renunciation or a conviction for treason (and even then, exile is not a legal punishment), the government has no authority to simply expel a citizen. “Only former U.S. citizens who have lost their citizenship can be deported,” as the Washington Post succinctly put it. And one cannot lose citizenship as a punishment for a crime; the Supreme Court has made that clear.
Taken together, these constitutional safeguards form an insurmountable wall against the notion of banishing Americans to foreign prisons. Even Trump’s own White House seems aware of how dubious the idea is – Press Secretary Karoline Leavitt acknowledged the plan was only an “idea” being explored “if it’s legal.” Thus far, they haven’t found any lawful “pathway.” The reason is simple: every path is blocked by the Constitution.
Echoes of History: Why This Idea Is So Dangerous
It is hard to overstate how rare and alarming Trump’s proposal is. In fact, one has to reach back to some of the darkest episodes in U.S. history to find anything remotely comparable. Observers from across the political spectrum have been quick to invoke historical parallels as cautionary tales:
The Japanese American Internment (World War II): During WWII, over 110,000 Americans of Japanese descent – the majority U.S. citizens – were rounded up and incarcerated in domestic camps by executive order. In 1944, the Supreme Court shamefully upheld that policy in Korematsu v. United States, a decision now regarded as a grave mistake. In 2018, the Court formally repudiated Korematsu, declaring it “gravely wrong the day it was decided” and “has no place in law under the Constitution.” The mass internment of loyal citizens was a constitutional crisis that took decades to correct. While those camps were on U.S. soil, the specter of a government confining citizens en masse – outside the normal legal process – looms over Trump’s current scheme.
“Korematsu is a reminder that... fear should not prevail over our fundamental freedoms,” wrote Karen Korematsu (Fred Korematsu’s daughter) in a recent op-ed.
To some, the idea of offshoring American prisoners to an authoritarian-run facility is even more extreme than the WWII internments, because it would place U.S. citizens completely outside their country’s protection.
Guantánamo Bay and the War on Terror: After 9/11, the U.S. established the military prison at Guantánamo Bay, Cuba, to hold terrorism suspects offshore and outside the regular court system. The experiment demonstrated the perils of a “legal black hole.” For years, detainees (all foreign nationals) were held without charge or trial, until the Supreme Court intervened. In Boumediene v. Bush (2008), the Court affirmed that constitutional habeas corpus rights extended even to Guantánamo, admonishing that the political branches cannot “switch the Constitution on or off at will” by choosing to hold prisoners outside U.S. sovereign territory. Notably, no U.S. citizens were ever consigned to Guantánamo; even American “enemy combatants” captured abroad were eventually transferred to U.S. soil for due process, precisely because officials knew citizens have incontestable rights. (For example, Yaser Hamdi, a U.S. citizen captured fighting for the Taliban, was moved to a Navy brig in South Carolina and given access to counsel, leading to a Supreme Court case and his eventual release.) That is telling: even at the height of panic over terrorism, the government did not dare put an American in Guantánamo’s legal limbo. Yet Trump’s current suggestion would send Americans to a foreign Guantánamo-like situation – and likely worse – run by another country. Civil liberties advocates are aghast.
“Sending immigrants from the U.S. to Guantánamo and holding them incommunicado without access to counsel or the outside world opens a new shameful chapter... It is unlawful for our government to use Guantánamo as a legal black hole,” warned Lee Gelernt of the ACLU earlier this year.
If using Guantánamo this way is unlawful for non-citizens, doing something similar (or worse) to U.S. citizens at CECOT would shatter bedrock legal norms.
Extraordinary Rendition & Cold-War Exile: Trump’s plan has also been likened to “extraordinary rendition,” the discredited practice during the War on Terror of secretly abducting suspects and handing them to foreign regimes known for torture. In those cases, the U.S. effectively outsourced brutality to skirt the limits of American law – a strategy widely condemned by human rights observers. What’s being proposed now is a kind of domestic rendition: formally sending Americans into another country’s prison system, where U.S. law and oversight cannot reach. This mirrors tactics of authoritarian regimes. During the Cold War, the Soviet Union infamously exiled dissidents to Gulags in remote regions; some dictatorships have stripped opponents of citizenship and banished them outright. In fact, as far back as the Revolutionary War era, Americans considered “transportation” (forcibly sending accused persons abroad for trial or punishment) as a hallmark of tyranny.
The Declaration of Independence indicts King George III for “transporting us beyond Seas to be tried for pretended offences.”
To many, Trump’s trial balloon sounds like a modern echo of that very abuse. “The equivalent of sending political opponents to the Gulag in the Soviet Union era,” is how Professor Gabriel Chin characterizes the proposal. James Madison himself, in 1799, condemned the idea of government power to banish people, calling it an arbitrary cruelty that the Constitution should forbid. In short, the banishment of citizens is so beyond the pale that it has rarely been attempted in American history – and when it was, it became a byword for injustice.
Authoritarian Implications: Eroding the Protections of Citizenship
Beyond the clear legal violations, observers warn that embracing a policy of offshore detention for U.S. citizens would mark a profound shift toward authoritarianism in America. The protections of U.S. citizenship – due process, habeas corpus, the right to live in one’s own country – are a bulwark of our democracy. If a president can label certain citizens “criminals” and effectively disappear them into a foreign prison, those citizenship protections erode for everyone. Today it might be alleged gang members; tomorrow, the precedent could be misused against political dissidents or protesters.
“Such a proposal is the equivalent of the government exiling its citizens and then claiming it was a mistake,” Adam Serwer wrote in The Atlantic, noting the danger of normalizing this power.
Indeed, the Trump administration’s own legal arguments in court have raised eyebrows for implying that if judicial oversight is removed, nothing would prevent officials from “mistakenly” deporting citizens and leaving them no recourse.
Critics point out that Trump’s rhetoric is already blurring the line between immigrant and citizen in the public mind – calling U.S.-born offenders “homegrowns” as if they are a foreign element. This plays into a narrative where citizenship can be treated as conditional, a privilege that can be revoked if one is deemed undesirable. But as the Supreme Court unanimously affirmed in 1967 (Afroyim v. Rusk), the Fourteenth Amendment does not permit the government to strip an American of citizenship involuntarily. “Citizenship is more than just something that the government can give and revoke – it’s an entitlement; it’s a right,” Prof. Reisz emphasizes. And with that right comes the guarantee of belonging to a constitutional community. If we allow an American – no matter how reviled for their crimes – to be sent away to face authoritarian justice abroad, we undermine the guarantee that all American citizens stand equal before U.S. law.
There’s also a geopolitical and moral dimension. To implement this plan, the United States would effectively be outsourcing punishment to a foreign leader’s authoritarian system. It sends a message that America is willing to sidestep its own legal limits by using another country as a penal colony. This is the kind of maneuver one expects from dictatorships colluding – not from the United States, which touts the rule of law. “We’re studying if we can do that,” Trump said of the idea, even as he praised Bukele’s iron-fisted approach. But just because a foreign strongman is “eager to help” imprison people (as Bukele said he was) doesn’t mean America should embrace such help. Democratic legitimacy crumbles when a government looks to outsourcing repression to evade domestic legal checks. The ACLU and other rights groups have strongly opposed the related practice of sending U.S.-held immigrants to countries like El Salvador or Guantánamo, precisely because it evades accountability. Allowing the same for U.S. citizens would shred the notion that citizenship is a safeguard against tyranny.
A Call to Defend Constitutional Values
Trump’s trial balloon about “deporting” U.S. citizens is more than an outrageous sound bite – it’s a direct challenge to American constitutional democracy. It has triggered what one commentator calls a “constitutional emergency,” demanding an emphatic response from the public, Congress, and the courts. Already, some lawmakers are pushing back.
“It would be unconscionable to exile Americans in foreign prisons – we cannot allow this,” said Senator Alex Padilla, as he and colleagues introduced a resolution condemning the idea as illegal.
Legal watchdogs are mobilizing, too: expect immediate court injunctions the moment any such transfer of a U.S. citizen is attempted, much as judges intervened when an American was unlawfully held in Iraq by the military in 2017. The judiciary has historically been a bulwark in moments like these – from rebuking executive overreach at Guantánamo to posthumously overturning convictions of interned Japanese Americans. It may fall to the courts again to slam the door on any “spectacularly unconstitutional” scheme to offshore American prisoners.
Ultimately, however, this is not a fight that can be left only to lawyers. It demands public awareness and outrage. Americans of all political stripes should ask: If the government can send “them” to a gulag abroad today, what stops it from doing the same to “us” tomorrow? The protections enshrined in the Constitution are not just legal technicalities – they are the guarantees that our government cannot simply make people vanish. Allowing any exception to that principle, no matter how narrow it seems (today it’s “violent criminals”), would set a perilous precedent. As Justice Robert Jackson once warned during the Korematsu case, every violation of a principle “lies about like a loaded weapon, ready for the hand of any authority that can bring forward a plausible claim of an urgent need.”
There is no urgent need here that could justify erasing fundamental freedoms – only an urgent need to reaffirm them. The United States has one of the most robust (if imperfect) justice systems on the planet; we do not lack prisons or legal processes to deal with violent criminals. What is lacking in this proposal is any respect for the Constitution that every president swears to uphold. In times of stress or fear, America must not abandon the rule of law that defines it. Vigilance is required – from ordinary citizens vocally opposing such ideas, from journalists shining light on them, and from lawmakers and judges drawing clear lines. The lesson of history is that when democracies slide toward authoritarian measures, it often starts with the treatment of society’s “undesirables.” We must remember that the Constitution protects all Americans, especially when it is most tempting to ignore those protections.
In the end, this controversy has served one useful purpose: it has reminded us that concepts like due process, habeas corpus, and the right of citizenship are not abstract ideals – they are tangible shields for our liberty. As concerned Americans, we should insist that those shields remain intact. The idea of dumping U.S. citizens into a foreign dictator’s prison should be a code red for our democracy. The response must be clear and unwavering: Not on our watch. It’s time for Americans to recommit to core values and demand that even in pursuit of security or expedience, our leaders do not violate the Constitution. In this constitutional emergency, the duty falls on all of us – public, Congress, and courts alike – to stand united against the erosion of our rights and say, “No further.”