Immigration advocates sued the Trump administration on Wednesday in order to learn more about and communicate with detainees sent from the US to the tightly controlled American naval base in Guantánamo Bay, Cuba. Their lawsuit may shed light on both Trump’s secretive plans to vastly expand immigration detention at Guantánamo and the rights of immigrants sent there.
Long seen as a legal black hole, Guantánamo has historically evaded traditional government oversight, and immigrants previously detained there have faced mistreatment.
This lack of transparency takes on new urgency after Donald Trump issued an executive order last month to ramp up immigration detention capacity at the base with the intention of holding “high-priority criminal aliens unlawfully present in the United States.” He plans to eventually detain up to 30,000 immigrants there, up from the current capacity of about 120.
The Trump administration has not cited any legal authority justifying the new detentions, which reportedly have impacted at least some nonviolent “low risk” detainees — despite claims that the dozens of immigrants sent to Guantánamo so far are, as Defense Secretary Pete Hegseth put it, “the worst of the worst.” According to the Department of Homeland Security, they include members of the Venezuelan gang Tren de Aragua, which the federal government designated last year as a “transnational criminal organization.”
However, immigration attorneys representing three Venezuelan men charged with connections to the gang have argued in court that the accusations against them are false, suggesting that the same could be true of others sent to Guantánamo. On that basis, a federal court ruling last week temporarily prevented the Trump administration from transferring the three men from a detention facility in New Mexico to Guantánamo. A broader stoppage of military flights to Guantánamo could follow as the litigation progresses.
All this leaves advocates scrambling to understand what remedies might be available to demand humane conditions, and possible release, for immigrants held under Trump’s plan.
“We are deeply troubled by the Trump administration’s opacity and lack of procedural safeguards, which effectively nullify our ability to challenge unlawful detention, ensure due process, and advocate for the rights of immigrants,” Javier Hidalgo, legal director at the immigration advocacy group RAICES, said in a statement after Wednesday’s lawsuit was filed.
The advocates who sued Wednesday have asked for information about the immigration status of those already detained at Guantánamo, who else might be sent there, and which agency has custody of them. (At least one US citizen was previously detained at Guantánamo by mistake, raising concerns that people with the right to remain in the US could be wrongfully detained there going forward.) They have also demanded that the Trump administration explain the legal authorities it is invoking to detain people at Guantánamo.
Answers to those questions would help inform what kind of legal obligations the Trump administration has toward these detainees.
“The government cannot attempt to subvert the statutory and constitutional rights afforded to these noncitizens in the United States by transferring them to an offshore prison and holding them incommunicado without access to counsel or any means of contact with the outside world,” the advocates wrote in a letter to the government earlier this week.
What rights do detainees at Guantánamo actually have?
Immigrants in detention in the US have rights guaranteed by the Constitution and federal law. Those include rights to challenge their deportation orders, to hire a lawyer at their own expense, and to humane detention conditions, which must include adequate access to medical care, sanitation, and food. The Constitution also guarantees people detained by the US government the right (known as a “writ of habeas corpus”) to demand an explanation of the legal basis for their detention.
Just because Guantánamo is located offshore doesn’t mean US law has no force there. However, the rights of immigrants arrested in the US and sent to Guantánamo may depend on a complicated interplay between federal immigration law and the laws that set up the military base as a place where captives of war could be held.
US Supreme Court cases in 2004 and 2007 established that federal courts could hear legal habeas challenges to the detention of people at Guantánamo who were captured outside the US and marked as “enemy combatants” after 9/11. The justices cited the fact that the US has exclusive control over the part of Guantánamo where the American naval base and its detention facilities are located.
“As a result, people detained at the Guantánamo military base can challenge the government’s claims in U.S. courts,” said César Cuauhtémoc García Hernández, a professor at the Ohio State University Moritz College of Law and author of several books on US immigration enforcement, including Welcome the Wretched.
However, the people Trump is trying to send to Guantánamo are not those captured on the battlefield outside the US, but people previously held in the US.
“That puts it in a different legal paradigm,” said Karen J. Greenberg, director of the Center on National Security at Fordham University School of Law. “That sets up a whole new system that they’re going to have to create and it remains to be seen how any of these laws that would protect migrants would apply.” There’s no precedent for this legal situation.
For instance, it’s not clear if these immigrants recently sent to Guantánamo have the right to apply for asylum there. During the Haitian refugee crisis of the 1990s, the Supreme Court ruled that people who have never stepped foot on American soil can’t request asylum from Guantánamo. However, García Hernández noted that the Court “said nothing about people who were already in the United States because neither the Clinton administration nor the Bush administration moved people from the United States to the military base there.”
The Trump administration also has not said whether immigrants being sent to Guantánamo are in the custody of the Department of Homeland Security or the Department of Defense. That’s important because different legal safeguards may apply depending on which agency has custody. An immigrant held by DHS may demand access to immigration hearings. “Enemy combatants” held by the Defense Department, however, may have fewer procedural protections.
Some immigrants are, however, reportedly being detained by military guards in the same cells where suspected terrorists were held post-9/11.
The Trump administration has done little to clear up the confusion around what laws or protections might apply to detainees sent to Guantánamo. DHS did not respond to a request for comment on what legal authorities apply and which agency has custody over Guantánamo detainees.
If the post-9/11 era is any precedent, officials might not publicly offer any such clarification. The legal justifications for detaining terror suspects at Guantánamo in the 2000s were made in confidential memos from the Department of Justice’s Office of Legal Counsel, many of which only came to light years later.
Greenberg said that the Trump administration is being “intentionally vague.” But it might also just be incompetence.
“I’m not convinced that the federal government has thought through any of what they’re going to be required to do to fulfill these minimal due process rights that the migrants still have,” said Chris Mirasola, a professor at the University of Houston Law Center focusing on national security law.
The challenges in ensuring the rights of Guantánamo detainees are protected
The lack of transparency around Guantánamo makes it hard for immigrant advocates to step in and ensure that the rights of detainees are being protected — or even know what they are.
David Luban, a professor at Georgetown University Law Center, said that even on mainland US facilities, access to counsel is a problem in immigration detention. Immigrants facing deportation don’t have a right to publicly-funded legal counsel, but if they can identify and pay for a lawyer, “they have a right to be represented by that lawyer,” he said. However, as the ACLU has noted, most immigration detention facilities are located far from cities where lawyers are accessible. ICE also makes it difficult for immigrants to communicate with their lawyers, often refusing to allow them to schedule calls.
All of these problems are magnified at Guantánamo.
“Guantánamo is even harder to access for a combination of security reasons and logistical reasons,” Luban said. “There are very few flights into and out of Gitmo, and visitors have to share the planes with military personnel and families. If lawyers have no way of contacting potential clients, the clients can’t retain them.”
At this point, immigrant advocates are operating in the dark. The government has not supplied information on who and how many have been sent to Guantánamo.
“How are we supposed to know that they have not sent someone who is a US citizen if the people who are detained there cannot speak to lawyers? How are we supposed to know whether anyone has a legal right to remain in the United States under existing immigration law, if they can’t consult with legal counsel?” García Hernández said. “My concern is that the government holds all the cards.”
The post What rights do immigrants have at Guantánamo’s legal black hole? appeared first on Vox.
