Historical precedent, legal questions swirl around Trump plan to detain migrants at Guantanamo

The Trump administration’s expansion of migrant detention facilities, notably its use of the U.S. naval station at Guantanamo Bay, Cuba, has reignited debate among human rights advocates and legal experts. President Donald Trump campaigned on a promise to curb legal migration and deport those in the U.S. without legal status. Late last month, he instructed his administration to prepare the facility for the detention of up to 30,000 “high-priority” unauthorized immigrants with criminal records. The first group arrived on Tuesday. Described as the “the worst of the worst” by administration officials, the detainees were identified by the Department of Homeland Security as part of the transnational criminal organization “Tren de Aragua,” which the U.S. designated a foreign terrorist organization on January 20. VOA sent numerous requests to U.S. Immigration and Customs Enforcement regarding what crimes the migrants committed. ICE directed VOA to contact the Department of Homeland Security, which has not responded to emails. Miriam Pensack, a historian who studies Latin America and the Caribbean and is a postgraduate scholar at Princeton University, said the U.S. government has been using Guantanamo Bay to hold migrants on and off for 30 years. “There is an ICE office in Guantanamo. … But obviously what we’re seeing now is a huge expansion of that capacity,” she said. Trump’s decision to use the naval base as a migrant detention center follows his signing of the Laken Riley Act, which mandates detention for those accused of theft or violent crimes while in the country unlawfully. Supporters say that using Guantanamo will alleviate pressure on overcrowded detention facilities and serve as a stronger deterrent against illegal crossings to the United States. Earlier this week, U.S. Defense Secretary Pete Hegseth described Guantanamo as the “perfect place” to detain migrants as he visited the border with Mexico. The Pentagon will provide any necessary assets “to support the expulsion and detention of those in our country illegally,” he told Agence France-Presse. Guantanamo and migrant detention The U.S. first used Guantanamo Bay to detain migrants, mostly Haitian and Cuban asylum-seekers under President George H.W. Bush in the early 1990s. Following a military coup in Haiti in 1991, thousands fled by boat to the U.S. but were intercepted at sea and taken to Guantanamo. In 1994, Guantanamo became the site of the world’s first and only prison camp for people with HIV, where more than 300 Haitian refugees, including children, were confined behind razor wire. “These were refugees fleeing slaughter in their country, whose credible fear of persecution the U.S. officials who screened them acknowledged, who were held for no reason other than their HIV status. When these people protest detention, the response was brutal,” said Pardiss Kebriaei, senior staff attorney at the U.S.-based Center for Constitutional Rights, to reporters during a press call last Thursday. Legal challenges eventually forced the U.S. government to release the detainees, setting a precedent that indefinite offshore detention without due process is legally dubious. In 2002, the George W. Bush administration built a detention camp in Guantanamo Bay to hold terror suspects following the U.S. invasion of Afghanistan shortly after the 9/11 attacks of 2001. But Guantanamo’s use for migrant detention continued with at least two presidents, Bill Clinton and Joe Biden, using the base. The Biden administration sought to close Guantanamo, but Congress never passed the legislation, leaving the base operational for future use. “The idea of closing Guantanamo as a prison is one thing; closing Guantanamo as a 45-square-mile base held in Cuba is another,” Pensack said. Legal and human rights concerns Advocates warn that offshore detention facilities allow the U.S. to sidestep domestic constitutional protections and limit oversight. Eunice Cho, attorney at the ACLU National Prison Project, told reporters during the press call last Thursday that “detaining immigrants on military bases in the United States and Guantanamo would subject people to dangerous conditions … and attempt to avoid scrutiny by lawyers, the press, and congressional oversight.” Historically, legal challenges have helped curb indefinite detentions at Guantanamo. The Supreme Court ruling in Rasul v. Bush (2004) established that Guantanamo detainees have the right to challenge their detention in U.S. courts. However, the Trump administration could attempt to argue that civil immigration detainees fall outside this precedent. While prior administrations may have seen Guantanamo as a law-free zone, “That is not the case today,” said Kebriaei of the Center for Constitutional Rights, adding that migrants at Guantanamo now “have due process rights under the Constitution.” “[Meanwhile], people would be detained. … and [litigation] would go on and people would suffer during that time,” she said. In the meantime, the Trump’ administration border czar Tom Homan told reporters outside the White House on Thursday that “President Trump made a commitment that the worst of the worst will go to Gitmo.” Broader immigration, policy implications The Guantanamo facility has historically been used in moments of crisis, from Cuban and Haitian exoduses to post-9/11 military detention. The Trump administration’s decision to include Guantanamo in its mass detention strategy signals a shift toward increasingly punitive measures, according to some analysts. Stacy Suh, program director at Detention Watch Network, emphasized the link between detention expansion and deportations. “Detention plays a crucial role in deportation. … More detention means more people would be deported,” she said. The Department of Homeland Security has yet to clarify whether the latest White House policy includes detention of migrants without criminal records or whether they would have access to asylum proceedings or be expelled outright. Homan said the U.S. has had a migrant processing at “Gitmo for decades. So, we’re increasing our footprint there.” Legal response The administration’s decision has sparked backlash from advocacy groups, legal experts, and members of Congress, many of whom are calling for oversight hearings and possibly legal action. Cho of the ACLU urged vigilance, saying there is a need for “a robust response from both the press, from government oversight agencies, Congress, advocacy organizations, and the community.” With Guantanamo’s history of controversial and legally ambiguous detentions, experts predict judicial and political battles over its use for immigration enforcement.