Trump is Illegally Holding Migrants Seized in the US in the “War on Terror” Prison at Guantánamo Bay

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In shocking news reported by the New York Times, it has emerged that ten Venezuelan migrants “with suspected gang affiliations” — not confirmed, just “suspected” — who were flown to Guantánamo on Wednesday (February 5) have been moved into one of two prison blocks that, until their arrival, had been used to house prisoners seized in the “war on terror”, as part of the larger Military Detention Center — the notorious Guantánamo prison — that opened in January 2002.

The Pentagon claimed that the ten men, described as “high-threat illegal aliens”, were “too dangerous for the migrant site” at the opposite end of the naval base from the “war on terror” prison, which had previously been described as the destination for the migrants, where an existing 120-bed Migrant Operations Center has existed since the early 1990s.

The Pentagon stated that the ten men “are currently being housed in vacant detention facilities”, and claimed that “US Immigration and Customs Enforcement is taking this measure to ensure the safe and secure detention of these individuals until they can be transported to their country of origin or other appropriate destination.”

Disturbingly, however, as the Times reported, the Venezuelans are actually being held in Camp 6 of the “war on terror” prison, which opened in November 2006 as a medium-security facility with 200 cells, and communal recreation areas.

To empty Camp 6, and to make it “vacant”, the Pentagon was required to move the last three prisoners held there to the other block still functioning, Camp 5, a maximum-security block with 75 cells, but without any communal areas, which opened in 2004, and which was largely used to hold prisoners regarded as “non-compliant” until April 2021.

At that point, the remaining “high-value detainees” — currently numbering 12 men, amongst them those accused of involvement in the 9/11 attacks — were moved to Camp 5, after Camp 7, the secretive facility where they were previously held, was deemed to be no longer habitable.

The Trump administration has still not made clear what authority it has for taking the Venezuelans to Guantánamo, and has certainly not explained what authority it thinks it has to move them into the “war on terror” prison.

As an important briefing by the Center for Victims of Torture explained yesterday, “Migrants cannot be lawfully held in military custody at Guantánamo.”

CVT added that the 2001 Authorization for Use of Military Force (AUMF), which justifies the military imprisonment of foreigners at Guantánamo regarded as having some involvement with Al-Qaeda, the Taliban or associated forces, “does not authorize military detention of migrants, criminals or anyone broadly designated as a ‘terrorist’ or member of a Foreign Terrorist Organization.”

As CVT proceeded to explain, “The AUMF only authorizes the use of ‘necessary and appropriate force’ against specific groups connected to the September 11th attacks”; as I noted above, “the Taliban, al-Qaeda or associated forces.”

In addition, as CVT described the imprisonment of the migrants, “There are reportedly 10 ‘high-threat’ alleged Tren de Aragua members held in Camp 6, one of the military detention facilities used to house detainees under the AUMF. The government does not have any legal authority to detain migrants in Camp 6.”

In addition, as I have been reflecting today, the Trump administration has also not explained what justification it has for moving the last three prisoners held in Camp 6 — all “low-level detainees”, long approved for release by high-level US government review processes — into a cellblock alongside the “high-value detainees”, who, since they first arrived at Guantánamo, mostly in September 2006, have, until now, been rigorously separated from the rest of the prison population.

While this is troubling, however, the biggest shock about Trump’s recent actions is the contempt with which he regards the legality and funding of almost everything that he has been implementing since he took office. Both laws and budget allocations are the responsibility of Congress, but Trump seems very decidedly to be seeking to sidestep Congress, behaving as though his blizzard of executive orders and various “proclamations” are imperial edicts, rather than components in a tripartite system involving not just the executive, but also Congress and the judiciary.

Yesterday, 14 rights organizations, including the ACLU, the Center for Constitutional Rights and Human Rights First opened proceedings against his overreach via a letter requesting urgent access to and information regarding immigrants transferred to Guantánamo from immigration detention facilities on the US mainland, noting that the government “has transferred nearly two dozen noncitizens to Guantánamo, without providing any information about their circumstances or the government’s legal authority for these unprecedented actions.”

They added, “The Constitution, and federal and international law prohibit the government from using Guantánamo as a legal black hole. We therefore request that the government provide our organizations access to the noncitizens detained at Guantánamo so that those individuals will have access to legal counsel, and so advocates and the public can understand the conditions under which the government is detaining them. We also request basic information that the public has a right to know regarding the noncitizens being sent to Guantánamo and the government’s plans for them.”

After noting that two flights to date had arrived at Guantánamo containing “nearly two dozen noncitizens”, the rights groups added, “The government has provided virtually no information about these individuals, including how long they will be held at Guantánamo, under what authority and conditions, or whether they have any means of communicating with their family and attorneys.”

As they also noted, “At the time of this letter, it appears that they are being detained in the same prison housing law of war detainees, underscoring the troubling nature of the government’s policies and plans for these and other migrants it intends to detain on Guantánamo.”

As lawyers continue their efforts to challenge Trump on his lawless decision to put migrants seized on US soil into a military prison reserved solely for foreigners allegedly involved with organizations responsible for or supportive of the 9/11 attacks, he will learn that his notion of his “absolute monarchy” is unfounded, although it will take time for cases to make their way through the courts.

In the meantime, Trump and those around him will continue to try assiduously to erase the notion that they can or should be held accountable for anything they do to advance an agenda that seems, above all, to support an extreme interpretation of the unitary executive theory, drawn from Article II of the Constitution, and first made popular in the Reagan era, which, essentially, holds that the president cannot be constrained by any other branch of the government.

This was a problem under George W. Bush, when Dick Cheney and Donald Rumsfeld sought to use it to shield him from any criticism or accountability for his actions after the 9/11 attacks, and it is back with a vengeance under Donald Trump, who, in 2019, notoriously declared, “I have Article II, where I have the right to do whatever I want as president.”

At Guantánamo — and in numerous other contexts where Trump’s overreach is currently extending — we must hope that, as in 2019, the US establishment as a whole proves resilient enough to disarm a would-be dictator.

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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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