Can america Ship Undocumented Immigrants to Guantánamo Bay?

John B. Bellinger III is adjunct senior fellow for worldwide and nationwide safety legislation on the Council on Overseas Relations.

What’s President Trump attempting to do with Guantánamo?

Final week, President Donald Trump signed a memorandum to the secretaries of protection and the homeland safety directing them “to take all acceptable actions to increase the Migrant Operations Heart at Naval Station Guantánamo Bay to full capability to offer extra detention area for high-priority legal aliens unlawfully current in america.” 

Trump desires to make use of a part of the bottom that has housed migrants interdicted within the Caribbean to now maintain sure undocumented immigrants arrested in america. To be clear, the Migrant Operations Heart is a unique a part of the bottom than the one which has been used to detain terrorism suspects since 2002 and that resulted in widespread worldwide criticism of america for putting detainees in a authorized “black gap.”

Presumably, Trump would use the brand new facility to carry unauthorized immigrants pending their deportation to their nations of nationality. Nonetheless, Trump stated in a White Home press convention the day he issued the directive that the expanded facility can be used to “detain the worst legal unlawful aliens threatening the American folks. A few of them are so dangerous we don’t even belief the nations to carry them as a result of we don’t need them coming again, so we’ll ship them out to Guantánamo.” Though this implies that Trump might not be keen to return some detainees to their house nations, Secretary Homeland Safety Kristi Noem has stated that the administration doesn’t plan to carry detainees “indefinitely” at Guantánamo.

How many individuals does the administration anticipate to detain within the new facility?

The memorandum doesn’t specify how many individuals the power ought to maintain, however Trump stated he instructed the Departments of Protection and Homeland Safety to start getting ready “the thirty thousand-person migrant facility at Guantánamo Bay.” Nonetheless, Trump could merely have been referring to the truth that the migrant facility had processed roughly that variety of migrants throughout two totally different intervals beneath earlier presidential administrations.

How has america used the Guantánamo Bay naval facility for detention functions?

The US has leased forty-five sq. miles on the southeastern tip of Cuba to be used as a naval base since 1903. As a result of the lease settlement requires the consent of each america and Cuba to terminate it, the power has endured for 122 years, regardless that the Cuban authorities has objected since 1959. 

From 1991 to 1993, and once more from 1994 to 1996, america used part of the bottom to accommodate massive numbers of Haitians and Cubans who fled their nations on boats and rafts to say asylum in america. The refugees and migrants had been interdicted by the Coast Guard at sea and brought to Guantánamo for processing. The Migrant Operations Heart reportedly processed greater than thirty thousand Haitians and greater than thirty thousand Cubans throughout every of the 2 waves, though it doesn’t seem that greater than twelve thousand had been held at any single interval. The refugees and migrants resided in tent cities surrounded by razor wire; the services had been criticized by human rights teams for squalid circumstances.

Why does Trump need to switch unauthorized immigrants to Guantánamo? Why not merely detain them in america pending their deportation?

It’s not completely clear why Trump desires to make use of Guantánamo for this objective. He could also be doing it extra for shock worth and deterrence than for causes of sensible necessity. It might be extraordinarily pricey and sure take a yr or extra to increase the Migrant Operations Heart to carry as much as thirty thousand folks.

The U.S. authorities would then must fly the detainees to Cuba and feed and look after them for the size of their detention. It might probably be sooner and cheaper to accommodate undocumented immigrants at federal services in america. Trump and his advisers could also be calculating that the specter of transfers to Guantánamo will persuade undocumented immigrants arrested in america (or contemplating getting into america) to return to their nations and persuade their house nations to take them again. 

How a lot would such an enlargement price?

The Migrant Operations Heart enlargement is more likely to price tons of of thousands and thousands of {dollars} and would require particular congressional appropriation. Given the excessive price and previous controversies surrounding detention at Guantánamo, in addition to the slender Republican majorities in Congress, it’s potential that Congress could refuse to foot the invoice for an enlargement of the power.

Will the switch and detention of unauthorized immigrants to Guantánamo end in authorized challenges?

Undoubtedly. Unauthorized immigrants transferred (or threatened with potential switch) from america to Guantánamo will file an enormous array of authorized challenges, offering quite a lot of enterprise for the courts. Haitian and Cuban refugees beforehand held on Guantánamo—in addition to lots of the terrorism suspects—filed quite a few fits difficult the detention and circumstances, a number of of which had been finally heard by the Supreme Court docket.

For instance, in Boumediene v. Bush, the Supreme Court docket held that terrorism detainees held at Guantánamo loved a constitutional proper to habeas corpus—regardless that the naval base just isn’t a part of america—as a result of the U.S. authorities successfully controls Guantánamo Bay. The Supreme Court docket held in one other case, Zadvydas v. Davis (which didn’t contain Guantánamo), that the Structure doesn’t allow “indefinite detention” of undocumented immigrants who’re ordered deported from america, even when their house nations refuse to just accept them. Any try by the Trump administration to detain undocumented immigrants at Guantánamo for prolonged intervals will virtually definitely end in lawsuits beneath these precedents.

Furthermore, it is very important emphasize that each one the prior circumstances filed by individuals detained at Guantánamo concerned folks detained outdoors america who had been then taken to Guantánamo. People arrested in america and transferred out will be capable of file extra claims. Certainly, it’s potential that federal courts could prohibit the switch of individuals from america to Guantánamo, on condition that it isn’t a part of america.

Unauthorized immigrants detained in america even have a proper to counsel and to be visited by a consular official from their nation of nationality. Such immigrants could declare that their switch to Guantánamo will intrude with their capacity to train these rights.

What about worldwide response?

Guantánamo Bay grew to become a lightning rod for worldwide criticism after the George W. Bush administration started to make use of the power to detain 779 suspected terrorists captured in Afghanistan and elsewhere following the assaults on america on September 11, 2001. The Trump administration will possible face related criticism in addition to potential worldwide authorized challenges if it strikes ahead to open a big detention facility, particularly if circumstances are poor, detentions are prolonged, and detainees lack entry to counsel or consular officers.

What would be the impression of an enlargement of Guantánamo on the terrorism suspects there?

If Trump does the truth is switch hundreds of unauthorized immigrants to Guantánamo, their circumstances and authorized challenges could significantly overshadow the scenario of the fifteen remaining terror suspects held on a unique a part of the bottom. The phobia suspects, a few of whom have been charged with struggle crimes and are dealing with trials in navy commissions, are held by the U.S. Navy beneath the customary legal guidelines of struggle, whereas any unauthorized immigrants transferred to Guantánamo can be held by the Division of Homeland Safety pursuant to U.S. immigration statutes. 

President Barack Obama had ordered the closure of the terrorism detention facility at Guantánamo however was not in a position to take action. Equally, President Joe Biden acknowledged in the beginning of his presidency that he hoped and anticipated to shut the terrorism detention facility, however he additionally didn’t succeed. Nonetheless, Biden did cut back the variety of detained terror suspects from forty to fifteen, together with by way of a switch of 11 Yemeni detainees to Oman in early January 2025. 

For greater than a decade, Congress has included a provision within the Nationwide Protection Authorization Act prohibiting using appropriated funds to switch any Guantánamo detainees to america, which each Obama and Biden objected to. Certainly, it’s considerably shocking that Biden, as a lame duck, didn’t merely switch the remaining detainees to a navy jail in america, primarily based on a rationale that Congress’ prohibition is an unconstitutional infringement on his authority as commander in chief. Biden could have calculated that if he had performed so, President Trump may merely have transferred the detainees again to Guantánamo. 

This work represents the views and opinions solely of the creator. The Council on Overseas Relations is an unbiased, nonpartisan membership group, suppose tank, and writer, and takes no institutional positions on issues of coverage.