President Donald Trump issued a memorandum on Jan. 29 that directed “the Secretary of Defense and the Secretary of Homeland Security … to expand the Migrant Operations Center at Naval Station Guantanamo Bay to full capacity to provide additional detention space for high-priority criminal aliens unlawfully present in the United States.” In signing the order, he claimed, “we have 30,000 beds in Guantanamo to detain the worst criminal aliens threatening the American people.” According to reporting in the New York Times, the Defense Department said the first group of 10 individuals had been brought to the base on Tuesday, and were being held in Department of Homeland Security (DHS) custody in the medium-security detention facility Camp 6.
Bringing immigration detainees from the United States to Guantanamo is unprecedented, and for good reason. Doing so raises a host of legal and practical problems and is certain to result in another dark chapter for America’s notorious naval base in Cuba.
“Guantanamo” is best known for the Department of Defense (DOD) detention facilities on the U.S. naval base on the island, which are used to hold “law of armed conflict” detainees captured in the conflict with al Qaeda. Camp 6 is itself one of these facilities. The facility invoked in Trump’s memorandum is Guantanamo’s Migrant Operations Center – the MOC, as it is colloquially termed. The MOC is a different facility altogether, on the other side of the naval base. The president’s rhetoric invoking post-9/11 language, his directive to both DOD and DHS, not to mention holding migrants pending removal in cells that formerly held al Qaeda suspects, conflates the two facilities. But they are entirely distinct entities, created and operated under very different legal frameworks for radically different purposes. The MOC has intermittently housed migrants interdicted at sea, starting with the Haitian refugee crisis in 1991 in what was then intended as a humanitarian relief operation but which was sharply criticized as a means of skirting U.S. obligations under the U.N. Refugee Convention. It has since been used, with more permanent but small-scale facilities, primarily to house Cuban migrants interdicted fleeing the island. According to the Department of Defense, these individuals are “housed” in the MOC but are not “detained” by the Department of Defense.
Sending anyone from the United States to Guantanamo raises a host of legal, moral, and policy questions. We outline some below:
1. What legal authority is the president claiming to hold migrants from the United States at Guantanamo and continue to detain them there?
- The president’s intended use of the MOC at Guantanamo to detain individuals transferred from the United States is legally unprecedented, and it is unclear what source of authority the memorandum is relying upon.
- The INA provides DHS with limited authority to detain individuals who are facing immigration proceedings or otherwise subject to removal pending removal from the United States. Is the administration arguing that the base at Guantanamo should be considered the United States for these purposes? Such an argument could affect a raft of other operations and legal questions that have arisen in the DOD law of war detention context where the U.S. government has long fought the application of U.S. law at Guantanamo (and long argued that it is not the United States).
- DOD’s very specific legal authority over military detainees at Guantanamo derives from statute, the 2001 Authorization for Use of Military Force, as informed by the law of armed conflict. It applies only to individuals detained within the armed conflict between the United States and al Qaeda and “associated forces” (and, once, the Taliban). This authority does not apply to the individuals Trump purports to transfer to the MOC by this memorandum.
2. What funds were used for the transfers already undertaken or for any future transfers, or to expand the MOC?
- Does DHS have appropriated funds that can be used to transfer immigration detainees outside of the United States while remaining in U.S. custody?
3. Will all the transferred individuals actually be “detained” or will they be treated similarly to individuals interdicted at sea who are housed at the MOC?
- Individuals interdicted at sea have been housed at the MOC but according to the U.S. government are not in fact “detained” (unless subject to disciplinary measures for infractions).
4. How will the administration ensure these individuals’ due process rights are upheld?
- As Steve Vladeck has explained, “Federal law creates a battery of procedural and substantive rights for non-citizens facing removal proceedings—including, to take just one example, a right to counsel. Even those non-citizens with the relatively fewest substantive statutory rights in removal proceedings (depending upon their criminal history and their immigration status at the time of arrest) are still unquestionably protected by the Due Process Clause of the Fifth Amendment.”
- Under the Due Process Clause, moreover, individuals who have final orders of removal but for whom removal is not reasonably foreseeable are entitled to release under the Supreme Court’s 2001 decision in Zadvydas v. Davis. That ruling would apply equally to individuals at Guantanamo, as moving a person to Guantanamo cannot extinguish their constitutional rights.
5. How will the administration also ensure the right of migrants to judicial review?
- The Supreme Court’s 2004 decision in Rasul v. Bush recognized that the federal habeas statute extends even to non-citizen law of war detainees captured outside of the United States and brought to Guantanamo without ever having passed through U.S. territory. While Congress sought to eliminate that statutory right for military detainees held as “enemy combatants,” the Supreme Court subsequently held that the detainees were entitled to the protections of the Constitution’s Suspension Clause. In any event, Congress did not modify the statute’s application to non-enemy combatant detainees, including migrants, who continue to hold both statutory and constitutional habeas protections.
- Moreover, as Vladeck has also explained,“the government can’t moot the jurisdiction of the federal courts by moving someone who was within their jurisdiction at the time their case began to somewhere where they aren’t. Thus, before getting into any messy questions about what kind of judicial review the Constitution would require, non-citizens held in immigration detention at Guantánamo would have the same statutory right to judicial review of their removal (and their detention pending removal) as non-citizens held in the United States.”
- Judicial review is critical not only to legal challenges to removal but also to address concerns about conditions of confinement.
6. How will the public have access to information about those transferred to Guantanamo and the conditions at the MOC?
- In the past, the U.S. government has attempted to use law of war detention at Guantanamo in part to shroud those activities in secret, including the identity of those held there and the conditions under which they were held. The MOC has not been used for these purposes, but given the president’s past rhetoric it is not unreasonable to assume the administration hopes to treat it as a “legal black hole” for immigration detainees.
- What steps will be taken to ensure that the names of those transferred to the MOC are known, including by counsel and their families, and that the conditions of their confinement are not shrouded in secrecy?
7. How will the government ensure individuals at Guantanamo have access to counsel?
- As discussed above, these individuals held at Guantanamo will retain the same right to counsel as they had within the United States.
- The main difference for the government is that it is categorically more difficult and costly for the United States to ensure that right.
- For counsel themselves, visiting clients at Guantanamo remains extremely costly and time-consuming, and these issues are compounded by the transparency concerns outlined above. As one example, it typically requires several days for a single client meeting. What steps will the Trump administration take to ensure detainees have meaningful access to their counsel?
- Will other modes of attorney-client communication, particularly phone calls, be meaningfully available, and will the confidentiality of those communications be ensured?
8. What steps will be taken to ensure humane conditions of confinement that meet federal standards?
- Even putting aside the abuse of military detainees after 9/11, the treatment of migrants at Guantanamo has been deeply problematic since Haitian migrants were first brought there in the early 1990s. A recent report by the International Refugee Assistance Project has criticized conditions at the current MOC as “inhumane” (noting, for example, the existence of “mold, sewage, and [a] lack of potable water” at the MOC).
- The rapidity with which the Trump administration could bring large numbers of individuals to Guantanamo poses significant concerns, as it could take months to provide sanitation, food, drinkable water and medical care for tens of thousands of migrants.
9. How much will this all cost?
- The cost of housing a detainee at Guantanamo is categorically and exponentially more expensive than housing such an individual within the United States. The New York Times reported in 2021, for example, that it cost an estimated $13 million annually for each of the military detainees at Guantanamo. This is not just because they are held by the Department of Defense; it is in large part due to the isolated nature of the U.S. base on an island, and in a country with which the United States has no diplomatic relations. Everything from food to medical supplies to equipment needed for basic repairs must be supplied from the U.S. mainland, at substantial additional cost as compared to housing the same number of individuals in the United States.
- Even if the cost of housing individuals in the MOC is not as expensive, the costs of housing them there will be much higher than in the United States. According to one former senior administration official, the costs could “quickly skyrocket into tens of millions, if not hundreds of millions, of dollars.”
10. What is the long-term strategy for these individuals?
- While these are not military detainees, the U.S. government’s history of military detention at Guantanamo suggests some critical lessons for any future detention efforts: it is categorically easier to establish facilities and move individuals to the naval base than it is to determine an endgame for releasing them.
- There are a number of open questions that the lack of information makes it difficult to answer. Reporters seeking more information from the administration might consider asking questions including:
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- How long does the administration intend to hold these individuals at the MOC?
- Where do they intend to move them to later? If there is an intent to move them somewhere else later, why not do so now?
- What will the administration do with individuals who cannot easily be transferred to their home country for either legal or practical reasons?
(Editor’s note: This article is part of the Collection: Just Security’s Coverage of the Trump Administration’s Executive Actions.)