Resource Author: Michael Paarlberg

Michael Paarlberg is an associate professor of political science at Virginia Commonwealth University and associate fellow at the Institute for Policy Studies. Follow him on X: @MPaarlberg

The United States and El Salvador are both ruled by leaders who have explicitly declared they are not beholden to the law. Their justifications vary, though the throughline is the same: there is some crisis facing the nation, thus it is imperative to grant the president extraordinary powers to address it. This is not a novel idea.

“Sovereign is he who decides on the state of exception” These are the words of Nazi legal philosopher Carl Schmitt, the “crown jurist of the Third Reich.” His point was that to fully grasp political power, one must look not to the rule but to the exception: not what the law says but who has the power to defy it; to be above the law; to determine when it applies and when it does not, and to whom.

There have been few governments willing to invoke Schmitt’s concept since the Second World War, for understandable reasons. But the state of exception – ausnahmezustand in German, régimen de excepción in Spanish – has made a comeback in El Salvador, under the personalist authoritarian state of President Nayib Bukele. As Schmitt recommended, it was a declared emergency, of public safety, that justified this break with the rule of law. The powers that a state of exception grants rulers, and the vagueness of the crisis they need to invoke it, makes the Bukele model an attractive one to other presidents bogged down by such inconveniences as due process and separation of powers. Thus Trump and his surrogates have floated ideas such as suspending habeas corpus, or running for another term in defiance of the Constitution – both of which Bukele has done. Today, we are seeing not just an export of this model, but a transnationalization of El Salvador’s State of Exception itself to the US.

As in El Salvador, it is a pretext to expand executive power; for President Trump, this is done through deportations. Under a deal with Bukele, the Trump administration has deported over 200 people to El Salvador: mostly Venezuelans, as well as some Salvadorans. Though said to be dangerous gangsters, this rationale has fallen apart under scrutiny. Bloomberg News found that 90% of those had no criminal record at all, and those who did were mostly for immigration related crimes. The Washington Post found “many entered the United States legally and were actively complying with US immigration rules.” Much attention has been paid to the case of Kilmar Abrego Garcia, who had been given protection by an immigration judge but was deported in defiance of a court order. But many of the 200 deportees had open asylum claims and were awaiting their day in court. Under US immigration law, only a judge can order someone deportable, and so their deportations were equally illegal. 

The point of these deportations was not to set a legal precedent. It was the opposite: to flout the law, to create the exception. Trump’s deportations, as with Bukele’s State of Exception, are a show of force: meant to create an aura of absolute power, to cow the opposition, to effectively make the judiciary an unequal branch of government, and ultimately to make it easier for them to rule.

For its part, the Bukele government has made no attempt to offer a legal rationale for receiving and then jailing deportees. Even for the few who did commit crimes, they committed them in the US. They broke no law in El Salvador, were never tried or sentenced there, yet are held without charge: effectively disappeared. The place where they are detained is CECOT, the famous mega-prison built for hardened gangsters, which serves both governments to imply that those deportees are gangsters as well. Even the prison itself is a smoke and mirrors show by Bukele, who began his career as a publicist. His press office has released photos of inmates with full body tattoos, including on their faces, stacked on top of one another. Look closely and you will see that these are mostly middle aged men in their 40s and 50s, not the teenagers Bukele is actually arresting (median age for gang membership is about 15). It is the face tattoos that give it away: by the time I conducted research in gang territories in El Salvador 10 years ago, the gangs had actively stopped their members from getting tattoos at all in an effort to blend in to society. Thus the scary inmates displayed in the CECOT photos are not people Bukele arrested. They are gangsters arrested in the 90s and 2000s, whom Bukele transferred to his new prison to justify the State of Exception. But these pictures play well to a foreign audience – Bukele often tweets in English – who are unaware of these evolving gang practices, and especially to the Salvadoran diaspora, a key sources of Bukele’s support, many of whom fled the gangs decades ago, for whom the face tattoos are a familiar image.

El Salvador’s State of Exception

It is helpful to understand what El Salvador’s State of Exception is and what it is not. Often described inaccurately as an anti-crime measure or gang crackdown, it is much more than that. There have been many anti-gang crackdowns in El Salvador over many administrations, usually called some variation of mano dura or iron fist policing (which, when it did not produce desired results, was rebranded super mano dura). Bukele had his own anti-gang policing program before the State of Exception, which he called the Plan Control Territorial. In totality, the State of Exception is not a policing measure aimed at gangs; it is a political measure, a general suspension of civil liberties aimed at the entire population. Past mano dura regimes did not involve purging judges, spying on journalists and business owners, nor jailing political opposition figures, NGO leaders, and public servants. This is not a crime policy, but a use of the crime issue to concentrate power in the executive and transform the country into a one party state.

President Bukele has touted his State of Exception as a success story, pointing to his high approval ratings and low homicide rates, both of which are basically true while also subject to manipulation. Polls show over 80% of respondents say they support him, although the same polls show the proportion of respondents who say they are scared to voice opinions contrary to the government is also over 80%. And there is ample evidence of the government cooking crime statistics: leaked police emails from the Guacamaya leaks indicate the government is hiding about half of the murders in the country, and the discovery of clandestine mass graves and interviews with gang leaders suggest something more sinister: that under a pact between Bukele and the gangs early in his presidency, his administration encouraged gangs to hide their victims’ bodies better. One gang leader claims a Bukele official – sanctioned by the US Treasury for corruption – told him, “No body, no crime.”

Crime had, in fact, been going down since 2015, when El Salvador was notoriously the murder capital of the world (and when I lived there, across the street from then businessman-turned-mayor Bukele’s Yamaha dealership), four years before Bukele became president. Nevertheless, crime rates have fallen more sharply under Bukele, given that in the past three years, the Bukele government has arrested 85,000 people. This has given El Salvador an incarceration rate of 2% of the population, the highest in the world – higher even than the US. Most are charged with the catch-all crime of agrupación ilícita: membership in an illegal group, i.e. a gang, which are designated as terrorist organizations. It is highly doubtful that all, or even most of these, actually are. One former police inspector estimated only 30% of those arrested are gang members. Almost none are convicted and sentenced; the vast majority are held in indefinite pretrial detention, for months or even years. The minority who are tried are given mass trials, with dozens of defendants at once and no right to see evidence against them. Often this evidence can be simply being accused by neighbors wishing to settle scores, dressing a certain way, or having tattoos. Police officers have been given arrest quotas to make, according to the police union.

All of this points to profiling by social class: under the State of Exception, anyone can be arrested, but most of those who are are young men from poor neighborhoods. Like Trump’s deportees, the fact that most are innocent isn’t a liability, it’s a feature: a demonstration to the public that justice is arbitrary, and no one is safe.

In the prisons where these mostly young men (as well as politicians and activists) end up, conditions are tantamount to torture. The government tightly controls access to these prisons, famously denying access to a US Senator while granting staged tours to Youtubers and social media influencers. But the government has let out 7,000 detainees on house arrest, an implicit admission of wrongful arrests. Most are scared to talk, as the government reserves the right to jail them again, but some have spoken to the press and human rights organizations, and what we know comes from their testimony. Groups such as Cristosal and Socorro Jurídico Humanitario have registered nearly 400 inmate deaths, including women and minors, as a result of beatings and asphyxiation by prison guards. This number is certainly a gross undercount, given the non-representative sample of ex-detainees, and is likely in the thousands; there have been efforts to find satellite imagery of mass graves at prisons. Other practices include electroshock and the denial of food and medicine, which Bukele has tweeted is a deliberate tactic to enforce discipline. 

Indeed, the government does not guarantee enough food for prisoners, and so inmates rely on family members to send care packages, as well as bribes to prison officials to secure slightly better conditions. Due to a lack of communication, however, they have no way of knowing if the food is reaching their relatives, or if they are even alive. And without transparency, temptation for theft is great. Many families are taking extra jobs, or being financially ruined in order to pay for food and medicine, at a cost equal to what they used to pay the gangs in extortions. Thus for those who know someone wrongfully arrested – nearly one-third of the country – the government has effectively taken the place of the gangs.

A gang state protects its own

Hidden from public view, but increasingly apparent, is the carrot side to Bukele’s carrot and stick approach. Reporting by news outlets like El Faro, and testimony by former officials and gang leaders point to a long history of negotiations and deals between the gangs and the Bukele government, a practice that traces back to governments prior to Bukele’s. President Bukele came into office in 2019 already with a longstanding relationship with one gang, Barrio 18, which he paid to allow him to refurbish a downtown shopping district when he was mayor of San Salvador. Upon entering office, he had a deal with the other principal gang, MS-13, to make cash payments in exchange for suppressing murders. According to the US Department of Justice, the deal extended to the gangs giving exclusive access to their neighborhoods to Bukele’s Nuevas Ideas party, doing voter turnout for them, and intimidating rival parties. Gang leaders were also given better prison conditions – which fueled resentment by lower level gang members, part of a divide and conquer strategy by the government.

When Bukele suspended payments in 2022, MS-13 reacted by killing 87 people in one weekend in an attempt to force the government back to the negotiating table. Instead, the police crackdown that ensued signaled the deal was off. But some parts remain. Despite its apparent partnership with the US, the Bukele government denied extradition requests for gang leaders wanted by the DEA and FBI for transnational drug trafficking. Some were even freed from prison. In one notorious case, the abovementioned Bukele official gave an MS-13 leader a gun and personally drove him to the Guatemalan border to escape extradition. All were documented in DOJ indictments of those gang leaders who were later captured by Mexican authorities and turned over to the US.

Some of those gang leaders did end up in US custody, after they were allowed to flee El Salvador. In negotiating the deportation deal with the US, Bukele’s brother – who holds no official position – sent the State Department a list of names of nine of them whom they want back. These include individuals charged and indicted with terrorism-related crimes, some facing the death penalty. In the case of one, a member of MS-13’s ruling council with the street name Greñas de Stoners, the DOJ dropped all charges and deported him back to El Salvador. Bukele fears what they will say if they are allowed to stand trial, as they all have knowledge of his pact with MS-13, and two of them directly negotiated with his government. The fact that the Trump administration is dropping charges for gang leaders who committed crimes against the US, and instead handing them to El Salvador to be disappeared into the prison system, amounts to collusion between two governments to cover up a gang pact by disappearing witnesses.

Thus the Bukele model is really one of arbitrarily jailing teenagers – by all accounts largely innocent – while protecting actual gang leaders, by a government with ties to organized crime – from cabinet ministers who represented gangs, to officials sanctioned by the US for gang involvement, to corrupt police chiefs, and even to diplomats such as a consul general in New York and admitted “former” member of MS-13 – none of whom have been sent to CECOT. These connections are not only to gangs but also money laundering rings such as the Texis Cartel as well as Venezuela’s state oil company PDVSA – a strange bedfellow for a president popular with the CPAC crowd. But Bukele was not always on the right. His political career began with the avowedly left-wing FMLN, and one can find his old tweets in which he eulogized Fidel Castro and Hugo Chávez and posted pictures of Che Guevara. But Bukele was never an ideologue. What he admired in those figures was not their Marxism but their authoritarianism.

Bukele’s political evolution is thus helpful for seeing the logical outcome of his model. When I give lectures on the Bukele model, I ask the audience, what is the safest country in Latin America? Some guess Uruguay, or Panama, or Costa Rica. The answer is Cuba. Another one party state, Cuba does not have a problem with gangs. It does not have a problem with drug trafficking, because it executes drug traffickers. Police states are usually pretty safe. But one might ask if this is the model Bukele’s fans in the US and elsewhere really want in their countries. Or if safer streets are enough to sustain a country with bigger problems than gangs.

Today, as El Salvador’s prisons swell, the government is deeply in debt, reliant on foreign loans to cover its operating budget. Meanwhile, Bukele is in the process of raiding its workers’ pension funds. Unemployment and inflation are high, and foreign investment is dropping, as investors are realizing a government that can arrest anyone on a whim is not the most reliable business partner. Bukele’s unwavering loyalty to Trump, including his mass deportation agenda, is another liability: El Salvador’s economy is deeply dependent on remittances from Salvadorans living in the US, which make up nearly 25% of its GDP. Should millions be sent back, as Trump has promised, the loss of remittances would likely be a fatal blow – and fuel a new wave of migration north. And in El Salvador, Cuba and now the US, faltering economies are a reminder that it is easy for a strongman to lock people up; it’s harder to keep them fed.