Returning to the past
Sending migrants to Guantánamo isn't new, but Trump is promising to push legal limits
When U.S. authorities first sent migrants to Guantánamo, Cuba in 1991, they called it Operation Safe Harbor. Haitians by the thousands were intercepted at sea, held on Coast Guard cutters, then off-loaded at the naval base on Cuba’s southeastern corner. Row after row of tents, holding at least twenty cots each, stretched across dusty open space. U.S. officials sent the Haitians to Cuba so that they wouldn’t reach the United States.
The Trump administration seems intent on repeating history. Last week, President Trump ordered the Defense Department to work with the Department of Homeland Security to expand the existing immigration holding facility there “to full capacity.” Under the Biden administration, the holding site, called the Migrant Operation Center, held approximately 20 people per day, all of whom were captured at sea. Trump claims the Migrant Operation Center can house up to 30,000 people there.
Throughout the 1980s and 1990s, the United States adopted a policy of blocking as many Haitians as possible from landing in the United States. In September 1981, President Reagan announced that migrants arriving by sea in the southeastern United States were “detrimental to the interests of the United States.” To stop this harm, Reagan ordered the military to interdict boats before they landed. Reagan’s directive didn’t single out Haitians, but everyone knew that the order was “aimed at the Haitians,” as a spokesman for Florida’s Senator, Paula Hawkins, said.
Once on Coast Guard and Navy ships, Haitians were permitted to request entry into the United States as refugees. But they had to do it from on board the vessel, without access to counsel, and quickly—sometimes in a matter of minutes. Eventually, on-ship processing became unsustainable, leading the administration of President George H.W. Bush to send migrants to Guantánamo.
Despite Haitians being sent to Guantánamo instead of the United States, Haitians continued making the difficult trek across the Caribbean Sea. That proved too much for the Bush administration. In May 1992, President Bush issued an executive order, that Clinton later continued, declaring that migrants apprehended at sea weren’t owed protections under U.S. immigration law or international treaties protecting refugees. The Supreme Court agreed. Neither applies outside of the United States, the justices concluded.
With the Supreme Court having ruled that key sources of law were off limits to the migrants held at Guantánamo, Clinton officials expanded the Migrant Operations Center in August 1994 to include Cubans. The migrant population quickly skyrocketed. In September 1994, U.S. officials were holding approximately 45,000 people there, according to a government report. Over 5,000 government employees, most from the Defense Department, were assigned to the Migrant Operations Center.
Trump’s memo builds on this history. Once fully operational, U.S. officials will send “high-priority criminal aliens” who are “unlawfully present in the United States” to Guantánamo, the memo states. Both parts of this promise raise important questions.
First, it’s unclear who might be a high-priority criminal alien. Politicians frequently use the phrase “criminal alien,” as I wrote in my most recent book Welcome the Wretched, but it doesn’t have any legal definition. The Trump administration has signaled its support for a very broad interpretation. Last week, White House press secretary Karoline Leavitt said that the Trump administration views all migrants who have violated some law to be criminal aliens. No conviction is necessary. Taken at her word, Leavitt’s statement suggests that the Trump administration is willing to describe as “criminal aliens” migrants who haven’t committed any crime – for example, staying in the United States after a visa expires, which is a civil violation of immigration law.
Second, moving people who are in the United States to a military base outside of the United States would push far beyond the Bush and Clinton policy that the Supreme Court approved. Decades of Supreme Court decisions are clear that people who are physically present inside the United States are entitled to various legal protections, including the constitutional guarantee of due process. Forcibly detaching a person from U.S. territory while still in the custody of U.S. officials is unlikely to detach them from any legal protections that had already kicked in while they were in the United States. This is especially true because the Guantánamo military base is “within the constant jurisdiction of the United States,” according to the Supreme Court.
ICE can certainly detain any migrant waging a legal battle to remain in the United States. Almost everyone, though, is entitled to an administrative hearing in which they might point to some legal basis for continuing to live in the United States. Immigration prisons located in the United States currently offer videoconferencing tools that allow detained individuals to appear remotely for hearings at immigration courts. Advocates have criticized this model for years with limited success. The expanded Guantánamo facility could potentially rely on this example.
Additionally, people who have exhausted their legal options and have been ordered removed can be detained while immigration officials make deportation travel plans. When U.S. authorities can’t actually deport a person—usually because the United States lacks a working repatriation agreement with the person’s country of citizenship—migrants are eventually allowed to demand their release. Though a migrant can be detained for many months, indefinite detention is not permitted because immigration detention is not technically punishment for a crime.
If the U.S. government carries out Trump’s order as it’s written, it might find itself operating a ferry service to and from Cuba for citizens of Cuba, Haiti, Venezuela, and other countries that don’t typically receive deported migrants. Over the weekend, DHS released a draft notice indicating that it plans to strip approximately 350,000 citizens of Veneuzuela of legal permission to live and work in the United States. The policy change, set to be officially announced tomorrow, is scheduled to go into effect on April 5. Unless blocked by litigation, this will immediately increase the number of people living in the United States in violation of immigration law, all of whom recently registered with the federal government.
Whatever specific plans emerge for the Trump administration’s use of Guantánamo to detain migrants, it will be a logistical nightmare with an enormous price tag. Perhaps that is acceptable to Trump officials at the Defense Department and DHS, as well as Republicans in Congress who will be asked to find the money to pay for this. The Trump team has, after all, made clear that pursuing their immigration agenda is their top priority.