To Hold 30,000 Migrants in Prison at Guantánamo, How Does Trump Propose to Redefine Them So They’re Beyond the Reach of the Law?

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This article is a much-expanded version of “Monthly Close Guantánamo Vigils Resume Amidst Trump’s Chilling Promise to Expand a Neighboring Facility to Hold 30,000 Migrants“, an article published on February 3 on the “Close Guantánamo” website, which I established in January 2012, on the 10th anniversary of the opening of Guantánamo, with the US attorney Tom Wilner. Please join us — just an email address is required to be counted amongst those opposed to the ongoing existence of Guantánamo, and to receive updates of our activities by email.

On January 20, as Donald Trump took office for the second time, it seemed that the “war on terror” prison at Guantánamo Bay, which had recently marked the 23rd anniversary of its opening, might become as marginalized and generally forgotten as it was in his first term in office, when he largely sealed it shut for four years.

Last Wednesday, however, and seemingly out of the blue, Trump suddenly announced that he had just issued a new executive order, “Expanding Migrant Operations Center at Naval Station Guantánamo Bay to Full Capacity”, to expand an existing migrant detention facility at the naval base, where the “war on terror” prison is located, “to provide additional detention space for high-priority criminal aliens unlawfully present in the United States”, as part of his intention to “halt the border invasion, dismantle criminal cartels, and restore national sovereignty.”

Announcing his executive order, Trump claimed that the expanded migrant detention facility was intended to house 30,000 migrants, stating, “We have 30,000 beds in Guantánamo to detain the worst criminal illegal aliens threatening the American people.” It was, however, unclear on what basis these migrants would be held, just as Trump also failed to acknowledge that Congressional approval would be required for its construction.

Check out here my half-hour interview about Trump’s plans, with Chris Cook, for his weekly Gorilla Radio show, which, for 25 years, has been “providing a forum for people and issues not covered in the corporate media.”

With hindsight, I should perhaps have considered that Trump had not forgotten Guantánamo, which, on the campaign trail in 2016, he had pledged to “load up with some bad dudes.” In the end, that pledge was never fulfilled, as, presumably, even his own advisers recognized that sending anyone new to Guantánamo would be both horrendously expensive and a legal quagmire.

It seems reasonable to assume, however, that, in his simplistic, vindictive and addled mind, Trump never forgot that he had identified a helpful location, beyond the meddling of lawyers, judges and courts, where “bad dudes” could be held.

At some point, he also discovered that, in the 1990s, migrants picked up at sea, and mostly from Haiti and Cuba, had been held in a separate detention facility at Guantánamo, the Migrant Operations Center, to prevent them from landing on the US mainland and seeking asylum. At the height of its use, in May 1995, up to 25,000 migrants were held there.

This, presumably, inspired Trump to initiate a plan in 2017 to house around 11,000 migrants at Guantánamo, although it was abandoned shortly after the first steps in its construction had begun.

As a result of all of the above, when Trump returned to the White House, and began the truly monstrous “war on migrants” that has been unfolding over the last two weeks, it seems reasonable to assume that he put both stories together — the prison outside the law for “bad dudes”, and the migrant detention facility — and concluded that they were perfectly suited for his current obsession with imprisoning vast numbers of undocumented migrants.

Given the additional role that vindictiveness plays in his motivations, it may also have been the case that he was taking revenge on those who, he felt, thwarted his ambitions to load up Guantánamo with “bad dudes” in his first term in office. As for the number of migrants he hopes to hold — 30,000 — that may have emerged through nothing more than his typical tendency to exaggerate whatever figures are presented to him, to make himself appear bigger, stronger and tougher than any of his predecessors.

The history of the Guantánamo Migrant Operations Center

While 25,000 migrants were held at Guantánamo at one point, in May 1995, mostly from Cuba, doing so largely overwhelmed the naval base’s operating capacity. Maj. Gen. Michael Lehnert, the retired Marine general who was the first commander of the “war on terror” prison when it opened in January 2002, “managed security for the migrant arrivals at Guantánamo in the 1990s,” and told the New York Times on February 3 that the base was “so overwhelmed” that, “As the numbers rose, the Navy closed the school and evacuated the families of service members to the mainland for seven months.”

Conditions were also appalling, as a report by the National Immigrant Justice Center explained, noting, “Asylum seekers were housed in tents covered in garbage bags, which barely protected them from the rain, and enclosed by barbed wire fencing. They were forced to eat spoiled and sometimes maggot-filled food in extreme heat.”

By 1996, the numbers of those held had diminished significantly, and, although it has continued in use ever since, it has rarely held more than a few dozen migrants at any one time. As Vince Warren, the executive director of the New York-based Center for Constitutional Rights, told NPR, exposing Trump’s lie about there being “30,000 beds”, reports from migrants who have been held there confirm that “there haven’t been 30,000 beds” at the facility “in decades.” He added, “The facility is decrepit. It’s been falling apart. It’s in disrepair.”

Even with only small numbers held, however, conditions have continued to be deplorable, and have included, via the migrant center’s private contractors, stark echoes of the dehumanization of prisoners at Guantánamo, with reports that the work there requires the guards to escort migrants “using proper security measures with black-out goggles and in vehicles with black-out windows for overall facility security and to ensure inability to identify protected migrants.”

In addition, in September 2024, in a report entitled, “Offshoring Human Rights: Detention of Refugees at Guantánamo Bay”, IRAP (the International Refugee Assistance Project) described how, as stated in the report’s executive summary, those held are “detained indefinitely in prison-like conditions without access to the outside world and trapped in a punitive system operated by the Department of Homeland Security (DHS) and of State (DOS), the International Organization for Migration (IOM), and other private contractors, with little to no transparency or accountability.”

As the executive summary further explained, “Former IRAP clients, other detained refugees, and former staff at the GMOC [Guantánamo Migrant Operations Center] describe the dilapidated building with mold and sewage issues, where families with young children are housed alongside single adults. They are denied confidential phone calls, even with their attorneys, and punished if they dare share accounts of mistreatment. Refugees are regularly confined to their rooms for weeks at a time. And although the GMOC detains traumatized children, there are no educational services or pediatric psychiatric care provided to them.”

The summary added, “These refugees are forced to endure this treatment until a third country agrees to accept them for resettlement, even if they have family in the United States. And the process can take years unless they ‘choose’ to return to the persecution they fled.”

Blindsiding the military

It seems evident that no one in the government saw Trump’s announcement coming. On January 31, Politico reported that the Pentagon had been “shocked by Trump’s order to house migrants in Guantánamo Bay”, with officials “caught flatfooted” by the announcement. One defense official, who was “granted anonymity to discuss a rapidly evolving issue”, had “no details about what the precise orders would be, when the detainees would arrive or what their housing might look like.”

Making reference to the migrant facility of the 1990s, Politico added, “That mission had a clearly defined timeline. This one has no end in sight.”

A former senior administration official, who was “granted anonymity to talk about the logistical challenges on the base”, told Politico that, although the Defense and Homeland Security departments “could stand up a ‘reasonable tent city’ at Guantánamo within 10 days to two weeks”, “providing sanitation, food, drinkable water and medical care for tens of thousands of migrants could take months.”

As Politico described it, “Those supplies would need to arrive by air or sea, and the Trump administration would have to swell the American presence on the base to include a migrant camp with law enforcement officers, military police, doctors, nurses, and even teachers and janitors.”

As the former official described it, “The total cost for this would quickly skyrocket into tens of millions, if not hundreds of millions, of dollars. Guantánamo can look like the easy button to press, but it brings with it a whole bundle of problems.”

On February 3, the New York Times reported that about 300 military personnel had “landed at Guantánamo Bay to provide security and begin setting up at a new tent city for migrants”, adding that they had “already put up 50 Army green tents inside a chain-link-fence enclosure, adjacent to the existing Migrant Operations Center”, which is a 120-bed barracks-style building.

The Times also noted the logistical challenges, however, pointing out that the entire operation “will require a surge of staff and goods to the isolated base, which is behind a Cuban minefield and is entirely dependent on air and sea supply missions from the United States”, adding, “Everything from pallets of bottled water and frozen food for the commissary to school supplies and government vehicles come twice a month on a barge. Fresh fruits and vegetables for the 4,200 residents come on a weekly refrigerator flight. Fulfilling Mr. Trump’s order could grow the population there tenfold because of the staff it would take to operate the encampment.”

Cynical efforts to compare the “war on migrants” with the “war on terror”

As part of a push by the Trump administration to deliberately draw analogies between the proposed migrant detention facility and the “war on terror” prison, Homeland Security Secretary Kristi Noem told CNN that the expanded facility could be used to detain people who she described as “the worst of the worst”, echoing Donald Rumsfeld’s notorious — and false — description of the men held in George W. Bush’s “war on terror” prison when it opened in 2002.

On February 2, Trump’s border tzar, Tom Homan, reprised Noem’s language, telling Fox News, “The worst of the worst need to go to Guantánamo Bay. We’ve had a migrant processing center there for decades … We’re going to expand it a lot.”

As just part of Trump’s racist and alarmingly hysterical “war” on migrants, the Guantánamo proposal, and the executive order, are part of a blizzard of executive orders and proclamations that Trump signed as soon as he took office, in which he suggested that the US faced an “invasion” on its southern border, declared a “national emergency” and ordered the military “to take all appropriate action to assist the Department of Homeland Security in obtaining full operational control of the southern border”, as well as also suggesting that a similar and unprecedented threat came via the 13.3 million undocumented migrants in the US, who he promised to deport via a mass deportation program.

Trump’s plans are chillingly racist, ignoring studies that “have repeatedly shown that undocumented people commit crimes at a significantly lower rate than US-born citizens”, and, if enacted, their economic damage would also be unprecedented. Mass deportation would cost hundreds of billions of dollars to implement, whilst also delivering inestimable damage to the US economy, because of the huge role played in it by migrants.

However, the first steps towards enforcing them are already underway, primarily through the expansion of “expedited removal”, a policy first introduced in 1996 to remove the rights to legal support, or any kind of immigration hearing, for certain undocumented migrants, allowing them to be seized and deported within 24 hours.

Mainly used on undocumented migrants who were seized within two weeks of their arrival and within 100 miles of the border, the “expedited removal” policy has now been expanded to encompass the whole of the US mainland.

Under the terms of the Laken Riley Act passed last week (cynically named after a US student murdered by an undocumented migrant, as if to suggest that all 13.3 million undocumented migrants are also potential murderers), the Department of Homeland Security is required “to detain certain non-U.S. nationals (aliens under federal law) who have been arrested for burglary, theft, larceny, or shoplifting,” with the Act’s summary adding that DHS “must detain an individual who (1) is unlawfully present in the United States or did not possess the necessary documents when applying for admission; and (2) has been charged with, arrested for, convicted of, or admits to having committed acts that constitute the essential elements of burglary, theft, larceny, or shoplifting.” The only constraint on the use of the Act is meant to be that it only applies to those who cannot demonstrate that they have been in the country for more than two years, although in many cases, of course, undocumented migrants may find that difficult to prove.

Resisting Trump’s “war on migrants”

The sweeping nature of the new law is genuinely alarming, not just because it so fundamentally cruel and discriminatory, but especially because no conviction is even required, just a “charge” that could, for example, be easily fabricated.

What is unclear at present is the extent to which the Trump administration can use “expedited removal” to bypass the fundamental right of those detained to seek asylum on the basis that they have a credible fear of persecution or ill-treatment (or worse) if they are sent back to their home countries.

Known as non-refoulement, this is a fundamental principle of international law, enshrined in the 1951 Refugee Convention, which forbids the deportation of anyone seeking entry to another country, whether they are described as refugees, asylum seekers or migrants, if, as a result, their “life or freedom would be threatened” on account of “race, religion, nationality, membership of a particular social group or political opinion.”

If Trump gets away with a massive expansion of “expedited removal”, it is uncertain whether the envisaged expansion of the Guantánamo migrant facility will be required, as ICE (the US Immigration and Customs Enforcement agency) already has 40,000 detention places on the US mainland, to deal with those who are able to challenge the basis of their summary removal.

Trump may have issued his executive order primarily as part on an arsenal of hostility to force his target countries in Central and South America and the Caribbean not to dissent as he loads up military planes to send back their nationals on the flimsiest of bases. Last week, for example, he made reference to using the facility to house those from “countries that won’t take back their criminals”, but as Tom Jawetz, a senior lawyer in the Homeland Security Department during the Biden administration, told Politico, Trump could “run into hurdles if he intends to use the facility to detain people who have been ordered to leave the US but who cannot be returned to their home country”, because, as he explained, “The Supreme Court has long recognized — and it’s been the standing position of the US government — that Guantanamo is within the sovereign territory of Cuba. If Trump were to send Venezuelan nationals who the US has ordered removed to Venezuela, for example, immigration law would require him to get the permission of the Cuban government.”

In addition, for Trump’s full plan to take effect, beyond the preliminary construction work being undertaken right now, he needs to secure funding from Congress. This may not prove difficult, as he has a majority in both houses of Congress, who may not balk at signing a blank check for what will easily end up costing hundreds of millions, or even billions of dollars.

Even so, those detained, rather than those who can be summarily deported by “expedited removal”, will have legal rights to challenge the basis of their deportation, and it is unclear what Trump hopes to gain by massively increasing the cost of that process by holding migrants at Guantánamo, where everything ends up costing many hundreds of times what it costs on the mainland.

Tom Jawetz told Politico that “[t]aking migrants who are already in the US waiting for immigration court hearings would be unprecedented”, and stated, “I just don’t know how that’s legal”, while other lawyers were concerned by the overwhelming logistics.

Debra Schneider, an immigration attorney who went to Guantánamo to visit with a client nearly 15 years ago, said, “I can’t imagine how detained immigrants would have access to counsel, funds to pay for attorneys to travel there, lodging, ease of access to computers to communicate. The suggested idea of 30,000 would be logistically impossible to have the means for an equal number of attorneys for representation.”

Lucas Guttentag, meanwhile, a former Biden Justice Department official and Homeland Security official under Obama, was worried about the implications of offshoring, stating, “It’s intended to isolate from legal representation, from oversight, from transparency, from any capacity to provide representation or to even see the conditions to which people are being subjected.”

On this point, my biggest fear is that what Trump is actually hoping to do is to expand the facility to cater for a category of as yet undefined unreturnable migrants who, at Guantánamo, can much more easily be held indefinitely, as has been the case with the men held in the neighbouring “war on terror” prison for the last 23 years.

For that, he would again have to secure Congressional approval, but I can’t help but wonder whether, in these current times of quite profound moral collapse, any lawmakers, or the US media, or other representatives of the US establishment would actually take exception to the creation of a new law that would explicitly endorse holding undocumented migrants at Guantánamo indefinitely on the basis that they pose a direct threat to the US and its security as “invaders” or “terrorists.”

Alarmingly, a hint that this might be on the cards came via discussions about the “war on terror” prison, reported by the New York Times. Currently, only two blocks at the prison are still in active use, one holding the remnants of the prison’s ”general population”, while the other holds the “high-value detainees”, who make up the majority of the 15 men still held. The two blocks, however, have 275 cells in total, leading to speculation that all the remaining prisoners might be consolidated into one block, leaving the other to be used to hold migrants, reinforcing the fake analogies between them and alleged “terrorists.”

The first migrant flights begin

A new “terror” law for migrants seems unlikely, but in the unjust, cynical, violently racist madness of these times, anything is possible.

In the meantime, despite the lack of clarity regarding the legitimacy of sending migrants to Guantánamo, yesterday the White House press secretary, Karoline Leavitt, announced that “at least two deportation flights were ‘under way’”, although she “gave no further details.” CNN, however, later reported that one of the flights “was carrying around 10 migrants with criminal records, according to a Homeland Security official.”

In typically overblown language, Leavitt told Fox News that Trump “is not messing around, and he’s no longer going to allow America to be a dumping ground for illegal criminals from nations all over this world”, although CNN noted that “attorneys at the Department of Homeland Security and Pentagon were still trying to determine whether it was legal to take the unprecedented step of flying migrants from the US southern border to the facility.”

As we wait to see what happens next, and whether Eleanor Acer, the senior director for refugee protection at Human Rights First, was right when, last week, she described the entire endeavor as, essentially, “political theater”, it is hugely important that everyone who opposes the continued existence of the “war on terror” prison at Guantánamo, also opposes every aspect of Trump’s sickening “war on migrants” too.

POSTSCRIPT: As this is such a fast-moving and ever-changing story, it’s relevant that, today, the Department of Homeland Security released what it described as “images of the first flight of criminal aliens … preparing to takeoff for Guantánamo Bay.” The DHS added, provocatively, “The worst of the worst criminals will be held at the military facility.” One of those photos is posted below.

Most relevant is that the migrants — described as “10 high-threat illegal aliens” in a separate DoD press release — were all allegedly “part of Tren de Aragua”, in the DHS’s words, which, as the BBC described it, is “a gang that originated in Venezuela’s prisons.”

As the BBC also noted, “Trump ordered that the Tren de Aragua be designated as a foreign terrorist organization last month, as part of a directive targeting gangs and cartels” — namely, ‘Designating Cartels and Other Organizations as Foreign Terrorist Organizations and Specially Designated Global Terrorists’, issued on January 20 — and in light of my fears about Trump wishing to hold his own “terrorists” indefinitely at Guantánamo (in addition to those in the “war on terror” prison), this seems particularly relevant.

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Andy Worthington is a freelance investigative journalist, activist, author, photographer (of an ongoing photo-journalism project, ‘The State of London’), film-maker and singer-songwriter (the lead singer and main songwriter for the London-based band The Four Fathers, whose music is available via Bandcamp). He is the co-founder of the Close Guantánamo campaign (see the ongoing photo campaign here) and the successful We Stand With Shaker campaign of 2014-15, and the author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison and of two other books: Stonehenge: Celebration and Subversion and The Battle of the Beanfield. He is also the co-director (with Polly Nash) of the documentary film, “Outside the Law: Stories from Guantánamo” (available on DVD here, or you can watch it online here, via the production company Spectacle, for £2.50).

In 2017, Andy became very involved in housing issues. He is the narrator of the documentary film, ‘Concrete Soldiers UK’, about the destruction of council estates, and the inspiring resistance of residents, he wrote a song ‘Grenfell’, in the aftermath of the entirely preventable fire in June 2017 that killed over 70 people, and, in 2018, he was part of the occupation of the Old Tidemill Wildlife Garden in Deptford, to try to prevent its destruction — and that of 16 structurally sound council flats next door — by Lewisham Council and Peabody.

Since 2019, Andy has become increasingly involved in environmental activism, recognizing that climate change poses an unprecedented threat to life on earth, and that the window for change — requiring a severe reduction in the emission of all greenhouse gases, and the dismantling of our suicidal global capitalist system — is rapidly shrinking, as tipping points are reached that are occurring much quicker than even pessimistic climate scientists expected. You can read his articles about the climate crisis here.

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