The Trump administration’s decision to detain migrants at Guantánamo Bay is poised to spark a new chapter of legal challenges about the rights of those kept on the military base in Cuba, which has been a source of controversy for decades.
The process for housing immigrants at Guantánamo Bay appears to have already begun, with the Trump administration sending migrants with violent criminal records to the facility, including members of the Venezuelan gang known as Tren de Aragua. President Donald Trump has signaled plans to expand the site to house 30,000 beds for immigration detention, part of a border effort to give greater visibility to deportation with a military flourish.
Homeland Security Secretary Kristi Noem posted on social media Monday about a visit she paid to the facility over the weekend.
“I was just in Cuba and saw firsthand criminal aliens being unloaded off a flight at GITMO,” Noem said. “My message to criminal alien murderers, rapists, child predators and gangsters: do not come to this country or we will hunt you down, find you, and lock you up.”
Eunice Cho, a senior staff attorney at the American Civil Liberties Union’s National Prison Project, is among immigrant rights advocates who say there are serious legal concerns about removing people from the United States for detention, and lawmakers have raised questions about the logistics, potential costs and necessity of the move.
“Detaining immigrants on military bases in the United States and Guantánamo would subject people to dangerous conditions, would enable the government to deprive people of the most basic constitutional protections and attempt to avoid scrutiny by lawyers, the press and congressional oversight,” Cho said in a conference call with reporters last week.
“These plans are ill-conceived. They’d be a tremendous waste of tax dollars, and fundamentally, these proposals are designed in a way to deprive people of their basic civil rights in an empty act of political theater,” Cho said.
Trump in a presidential memorandum said housing migrants at Guantánamo Bay was necessary “to halt the border invasion, dismantle criminal cartels, and restore national sovereignty.” Cho said details of any litigation are premature because Trump’s memorandum to house migrants at Guantánamo was “very weak in terms of actual implementation details.”
Legal uncertainty about the plan appears to exist within the U.S. government itself. Last week, CNN reported that attorneys at the Department of Homeland Security and the Pentagon were still trying to determine “as tents went up in Guantánamo Bay, Cuba, to hold migrants” whether it was legal to fly them from the U.S. southern border to the facility.
A federal judge in New Mexico on Sunday temporarily blocked the U.S. government from transferring three Venezuelan men from a detention facility in that state to Guantánamo Bay, writing that he is in the middle of deciding a long-pending legal issue in their case and the moves would bring “uncertainty surrounding jurisdiction.”
“At this time, the Court cannot say that without this injunction it would not be jurisdictionally deprived to preside over the original writ of habeas corpus should petitioners be transferred,” Judge Kenneth J. Gonzales of the U.S. District Court for the District of New Mexico wrote. “Thus, an injunction is necessary to achieve the ends of justice entrusted to this Court.”
Noem, seeking to allay concerns about housing migrants at a detention facility known for holding suspected terrorists, said in an interview last week on NBC’s “Meet the Press” that the immigrants would be given legal protections.
“Due process will be followed, and having facilities at Guantánamo Bay will be an asset to us,” Noem said, adding that she appreciates “the partnership of the DOD in getting that up to the level that it needs to get to in order to facilitate this repatriation of people back to their country.”
Pardis Cabri, senior staff attorney at the Center for Constitutional Rights, said in the conference call with reporters last week that “litigation will be brought, for sure” if the plan moves forward, although she said it might lead to a protracted battle that could take years to resolve.
Assurances of humane treatment are “empty and cannot be guaranteed given that access to the base is limited,” Cabri said.
“At best, there will be challenges of space, hygiene, medical care. And in Cuba, extreme heat and hurricanes, at worst there will be what we have seen before at Guantánamo and in prisons all over this country,” Cabri said. “When people believe they are wrongfully held and poorly treated, they protest, and the response is always crushing.”
The migrant detention center at Guantánamo Bay, which appears to have been largely dormant for some time, is separate from the facility used to detain terrorist suspects.
The first U.S. military aircraft delivering detained migrants to Guantánamo Bay departed from Biggs Army Airfield at Fort Bliss, Texas, on Feb. 4. One U.S. official said that flight would carry nearly a dozen detainees, according to a report in Reuters.
Cost concerns
Some lawmakers have questioned the cost of detaining migrants outside the United States. Much about the plan to move the migrants to Guantánamo Bay remains unknown, including any exact understanding of the nature of the cost of transporting and housing them at a facility that has been unused for some time. The Department of Homeland Security didn’t respond to an email inquiry on the estimated resources needed for the transfer.
Rep. Veronica Escobar of Texas, a Democrat and member of the House Homeland Security Appropriations Subcommittee, said in a statement Tuesday that the situation on the ground at the U.S.-Mexico border “does not merit the use of military resources” to send migrants to Guantánamo Bay.
“El Paso has the capacity, apprehensions are down, and the use of Guantanamo Bay is predicted to cost hundreds of millions of dollars,” Escobar said. “These measures are nothing more than unnecessary and cruel political theater and a gross misuse of federal funds and military personnel.”
Sen. Andy Kim of New Jersey, a Democrat and member of the Senate Homeland Security and Governmental Affairs Committee, said during an interview Thursday that the cost would be “outrageously expensive.”
With other issues to be addressed, such as the need to increase the number of immigration judges to adjudicate asylum cases more quickly, the process for detainees being there could be “protracted and, again, be unbelievably costly.”
Although Kim said he couldn’t articulate a precise number for the cost, he said he had previously worked on issues related to Guantánamo Bay as a member of the House Armed Services Committee.
“From the DOD side, the facility itself is crumbling, and … the infrastructure is terrible,” Kim said. “There’s a lot of problems there and, again, just overwhelmingly expensive in terms of the upkeep — and that would just go up exponentially.”
Sen. Josh Hawley of Missouri, a Republican and member of the Senate Homeland Security Committee, conceded that appropriations may be necessary but predicted that the increased financial burden would be negligible.
“I understand the detention capability — I think we have … 15,000 currently — the Trump administration wants to double that,” Hawley said. “So can they do that, other than the present MILCON budget, will there be enough? I don’t know. I don’t know how much it would cost to expand the footprint. It may not be very much, because, you know, we control the base.”
Despite the assertions of advocates that immigration detainees would lack oversight protections and due process, Hawley said they “would have full access to American courts, full due process rights” because of the 2008 decision by the Supreme Court asserting protection for terrorist detainees.
Sen. Christopher S. Murphy of Connecticut, the top Democrat on the Senate Homeland Security Appropriations Subcommittee, struck a nuanced position on Wednesday, saying expanded capacity makes sense but there are serious questions about whether Guantánamo Bay is the right place.
“I think that we should have increased detention capacity, I think that we should be holding people while their asylum cases are being processed, and I think that we should be deporting people who have serious criminal histories,” Murphy said. “But … I want to use taxpayer dollars smart. I don’t know how smart it is to house people in Guantánamo. I also want to make sure that the conditions are humane. So those are my concerns. If we’re going to increase decision capacity, let’s do it in a cost-effective and humane way.”
Guantánamo Bay rose to international prominence after the terrorist attacks on Sept. 11, 2001, when critics pointed out that terrorist suspects were being held indefinitely without formal charges. Reports also indicated those detainees faced harsh conditions, including long periods of solitary confinement.
But Guantánamo Bay has had controversy even before it served as a detention center in the war in terrorism after the Sept. 11, 2001, attacks. During the 1990s at the height of the HIV/AIDS epidemic, the immigration detention facility, under the direction of then-Attorney General William Barr, was designated as a place to house an estimated 300 migrants from Haiti who were found to be HIV-positive and their children. The detention continued through the early part of the Clinton administration.
In 1993, then-U.S. District Judge Sterling Johnson Jr. ordered the camp closed immediately, calling it “the only known refugee camp in the world composed entirely of HIV-positive refugees.”
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