Bush Lawyers’ Legal Arguments for Guantánamo Bay Paved the Way for CECOT

After months of outrage and denouncements from judges, lawmakers, and the general public, 252 Venezuelans sent from the U.S. to a prison in El Salvador have finally been released. For six months, those imprisoned at El Salvador’s notorious Centro de Confinamiento del Terrorismo (CECOT) were denied core human rights, including the right to due process. Former prisoners said they were subject to cruel and inhumane treatment, including state-sanctioned torture. Though Trump has taken the denial of due process to a further extent than recent administrations, he is justifying his deportation strategy using legal frameworks established by the George W. Bush administration during the so-called “war on terror.”

In May, NPR interviewed Berkeley law professor John Yoo about President Donald Trump’s decision to send deportees to CECOT. The decision to specifically interview Yoo was, of course, significant. As Deputy Assistant Attorney General for the Office of Legal Counsel during the George W. Bush presidential administration, Yoo authored a series of legal opinions now infamously known as the Torture Memos. These memos facilitated the Bush administration’s program of torture and indefinite detention during the war on terror by arguing for its legality. According to Yoo, Bush possessed incredibly expansive emergency powers to deal with people who threatened national security. Such people were not protected by the Geneva Conventions, and if they were sent to the U.S. naval base in Guantánamo Bay, they had no access to habeas corpus rights and could be imprisoned indefinitely without trial.

As Ailsa Chang, the host of Yoo’s recent NPR interview, pointed out, these arguments are eerily similar to Trump’s policy against people his administration is sending to CECOT. In fact, one of Trump’s first moves towards accelerating deportations was to expand the migrant detention center in Guantánamo, taking advantage of the site’s legal isolation that Yoo constructed for the purposes of waging an all-out “war on terror.” As Chang notes, Trump also used the Alien Enemies Act to justify expanded presidential power to remove supposedly “dangerous” people from the country and imprison them indefinitely with no legal recourse. Members of the Trump administration also say they’re looking into suspending habeas corpus altogether, with Secretary of Homeland Security Kristi Noem going so far as to incorrectly define habeas corpus as “a constitutional right that the president has to be able to remove people from this country.”

Despite the obvious similarities between the two presidents’ actions, Yoo claimed in his interview that these connections are “superficial,” and that what Trump is doing cannot be compared to Bush’s war on terror. Yoo said that he himself was arguing for expanded presidential powers as strictly wartime measures, while Trump is falsely claiming the pretense of a “war” against violent gang members. Yoo also claimed that, in his memos, he never denied anyone who set foot in the U.S. their habeas corpus rights, only those who were captured abroad. Trump, on the other hand, has deported people on U.S. soil with no due process.

Overall, despite how closely Trump is following the war on terror blueprint for superseding legal processes, Yoo seemed troubled by Trump’s actions. “I think the circumstances and the context of what we’re talking about after 9/11 and this are very different,” he said.

Yoo is not the only U.S. official who has distanced himself from Trump’s ever-expanding presidential power despite contributing to such an interpretation. Take Alberto Gonzales, who served as Bush’s Attorney General and supported Yoo’s legal interpretations. The Republican has openly criticized Trump as “the most serious threat to the rule of law in a generation,” and opted to support Kamala Harris in the 2024 election. In an interview with PBS discussing the danger of Trump’s push against the rule of law, interviewer Amna Nawaz, like Chang with Yoo, pointed out the parallel between Trump and Bush’s “abuse of executive power” that Gonzales enabled. In response, Gonzales argued that the differentiating factor was Trump’s habit of “surrounding himself with loyalists” who give him the answer he wants to hear, as though the Torture Memos did not serve the same purpose.

Trump’s legal framework built on Bush’s to push presidential power and further suppress habeas corpus rights.

Indeed, even in trying to mark this difference, Gonzales could not deny the similarities were still present, saying, “I was very loyal to President Bush.” He could only distinguish between the Trump and Bush legal teams using a character assessment: “Nonetheless, hopefully, you have lawyers in place that make a good faith attempt to interpret the law and are honest with the president saying, ‘You don’t have the authority to do this.’”

Jack Goldsmith, who served as Assistant Attorney General for Bush, similarly distinguishes between Trump and Bush’s legal approaches with claims of good faith interpretation on Bush’s side. While he did admit in a May op-ed in the New York Times that Trump’s “claims of untouchable national security authority echo arguments made after the Sept. 11 attacks by George W. Bush’s administration,” the difference Goldsmith identified in another piece is that the Office of Legal Counsel, which he, Yoo, and Gonzales worked with, “has been basically set aside and the White House is interpreting law.”

Notably, however, Goldsmith also distinguishes the Trump administration by claiming “the basic rule appears to be if the president wants to do something, it’s lawful.” Again, while the extent may be greater than the Bush administration’s, the idea that Bush’s legal team did not craft the arguments to serve him best politically is seriously flawed and misleading at best. This was acknowledged by some of Bush’s lawyers themselves. During the formation of the war on terror legal framework, one legal advisor warned Yoo of the “desire to identify legal authority establishing the right of the United States to treat the members of the Taliban Militia in the way it thinks best” rather than the way the law permits. Indeed, during the Bush administration, Yoo expressed that “no treaty” and no law by Congress could limit the president’s power. Contrary to Yoo’s recent claim that he never denied anyone who set foot in the U.S. their habeas corpus rights, this included indefinite detention and torture of even U.S. citizens arrested on U.S. territory, such as Jose Padilla.

Of course, characterizing these similarities between the Bush and Trump regimes as “superficial” is a convenient narrative for these lawyers to adopt. Whether these lawyers are being intentionally misleading or truly believe their own words, the reality is that the war on terror’s legal framework, the very one they built, serves as the foundation of Trump’s deportation strategy. While the differences are noteworthy, they should not distract from this fact, but serve to demonstrate how Trump’s legal framework built on Bush’s to push presidential power and further suppress habeas corpus rights.

The very fact that Trump is exploiting Guantánamo’s legally unique nature, the one Yoo and Gonzales contributed to creating, demonstrates this reality. So does the Trump administration’s declaration of several gangs and cartels as terrorist organizations. The war on terror model of indefinite detention with no due process rests on the narrative of keeping the country safe from terrorists. As Yoo argued in the Torture Memos, once a person was determined to be affiliated with a certain organization, that person was not protected under international human rights law nor were they eligible for a U.S. trial. Of course, once an organization is recognized as a terrorist group, the accusation of affiliation that spurns an arrest does not necessarily need to be true. This was certainly the case in Guantánamo, where many people were swept in simply for being in the wrong place at the wrong time. It remains true in the Trump era, where simply having a tattoo landed people in CECOT. Now that those allegations of torture are coming in from former CECOT prisoners, the parallels only become more impossible to deny.

By classifying these similarities as “superficial” and distancing themselves from Trump by claiming that the Bush administration’s legal framework was made in good faith, Bush’s former legal team once again avoids accountability for the harm they have caused. The fact that they may disagree with Trump’s application of the war on terror model does not negate the fact that these men are significantly responsible for constructing it. The combination of expansive presidential emergency power, securitization of certain classes of people, and the denial of their human rights is a powerful force in the hands of a leader who wants to imprison people without interference. It is exactly the power that Bush’s lawyers helped put in his hands, and now, Trump has seized it as well.