AILSA CHANG, HOST:
The Trump administration has sent migrants whom they call terrorists to an overseas prison. Many of these migrants have no criminal records, and they're being sent there for indefinite detention. There's no end date. And to some observers, all of this echoes another ongoing chapter in U.S. history - when the U.S. detained foreign citizens that the government called unlawful enemy combatants in a prison at the U.S. naval base in Guantanamo Bay, Cuba, in the aftermath of 9/11. Some were subjected to interrogation techniques that human rights groups call torture.
JOHN YOO: I think there are superficial parallels, but there are important differences.
CHANG: This week, I spoke with former Justice Department lawyer John Yoo, one of the legal architects of George W. Bush's Guantanamo policy. He authored what are widely referred to as the Torture Memos. I wanted to know whether he saw President Trump's El Salvador prison plan as an extension of the legal theory behind the Guantanamo detention program.
YOO: President Trump is claiming wartime authority, invoking something called the Alien Enemies Act of 1798. The Bush administration also claimed wartime authority to be able to hold enemy prisoners at Guantanamo Bay. I think after 9/11, not just President Bush, but Congress and the Supreme Court all agreed the 9/11 attacks had started a state of war. Here, President Trump - I mean, he is claiming that we're at war with Venezuela, and he is claiming that this gang, Tren de Aragua, is sort of like a military arm of Venezuela. But he has no agreement from any of the other branches. In fact, a federal district court judge just rejected...
CHANG: In Texas.
YOO: ...That idea.
CHANG: Saying that the Trump administration's use of the Alien Enemies Act to remove a group of migrants in Texas actually is not proper.
YOO: Yes, because there's no state of war. And then the second difference is, no matter whether there was a state of war or not, the Bush administration view - in which I participated developing - was that anyone who was captured in the United States had a right to due process, whether they were an American citizen or an alien, whether they were an al-Qaida member or some kind of sympathizer. And we took the view, if they were caught in Afghanistan or in Iraq, they were not entitled to due process in U.S. courts 'cause that had been the traditional practice in war.
The Trump administration seems to be taking the opposite view. They think that you could deport people under the Alien Enemies Act who are in the United States without any due process at all. And that is, I think, a challenge to the settled rules that we and the courts came up with in the years after the...
CHANG: I...
YOO: ...September 11 attacks.
CHANG: I was just going to ask you because, yes, the Supreme Court did eventually rule against the Bush administration on some of its policies towards Guantanamo detainees. How confident are you that the Trump administration will eventually heed the courts here?
YOO: Part of me worries. I hear President Trump on TV. He says, we will not defy judicial orders. I will never defy a judicial order. At the same time, you have Trump administration officials, you have fellow travelers of President Trump and the MAGA movement say they might defy a judicial order or attack the judges, call for their impeachment. So a great difference here between the Bush administration. We didn't even think of ourselves as opposed to the courts. We thought of ourselves as working with the courts to figure out what the rules should be because we wanted there to be stability.
CHANG: I do want to acknowledge throughout all this that you are known to many people as the so-called author of the Torture Memos, one of which did say that only pain equivalent to an injury that could result in, quote, "death, organ failure or serious impairment of body functions" could be considered torture. And let me just ask you - because there are credible reports of torture in Salvadoran prisons if you look at a 2023 State Department report, including at least one report that meets the definition in your memos. So just to underline the point, are there legal issues with sending migrants to prisons in El Salvador when the U.S. government has acknowledged these conditions?
YOO: I have to say, I think the circumstances and the context of what we're talking about after 9/11 and this are very different, but in a way that cuts against the Trump administration. You know, we are talking about a time period when there was very little definition in American law about what torture was. Plus, we were talking about, unfortunately, the ticking-time-bomb idea, that we had terrorists in our custody who knew about pending attacks on the United States and would not tell us what they were, which is a very different world than where do you send immigrants, where do you send aliens or even how do you hold American citizens in prison? And there, I think the definitions are much clearer. And the way you just described it is, I think, quite accurate. The United States isn't supposed to, under American law, deport people to places where they might be tortured.
CHANG: John Yoo is a former Justice Department lawyer and a professor of law at the University of California, Berkeley. He is also a visiting professor at the University of Texas Austin School of Civic Leadership. Thank you very much for this conversation.
YOO: Oh, my pleasure. Transcript provided by NPR, Copyright NPR.
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