Bryan Finucane of Just Security writes that released notes between the U.S. and El Salvador, two dated immediately before the March 15, 2025 transport Abrego Garcia and some 300 Venezuelans, smacks of  “legal lipstick,” “legal fig leaf,” a deal crafted to effect U.S. control over the disposition of the deportees while on paper denying it.

“The underlying arrangement is described in a pair of notes dated March 13 and March 14—an outgoing U.S. note and the incoming Salvadoran note respectively. A subsequent U.S. diplomatic note dated March 31 was also released. Consistent with my prior assessment, the notes constitute a legally non-binding arrangement rather than a legally binding agreement having the status of a treaty under international law. The documents eschew language typically reserved for binding instruments such as “agree” in favor of formulations commonly used for non-binding arrangements such as “understands” and “requests.” This conclusion on the legal status of the diplomatic notes is reinforced by the fact that the State Department released them explicitly pursuant to 1 USC 112b(b)(1), a provision of the amended Case-Zablocki Act for “qualifying non-binding instruments.”

“The lack of detail on these critical elements of the arrangements—the U.S. quid for the Salvadoran quo—strengthens the impression that these diplomatic notes memorialize only part of the deal between the United States and El Salvador.”

“Taken together, these diplomatic notes appear to represent an attempt by State Department lawyers to establish a legal fig leaf after the fact for U.S. government policies and actions they were unable or unwilling to stop or substantially influence at the front end. The humane treatment assurances and reminder contained within these documents appear intended to counter claims that the United States is violating the prohibition on transfer to torture as well as allegations that individual U.S. officials aided and abetted torture (actions that could expose them to legal jeopardy overseas).”