Victory for US Law as Trump Abruptly Empties Guantánamo of All the Migrants He Just Sent There

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NOTE: Please see the important postscript at the end of this article, about Trump’s revival of flights just after it was published. The struggle continues.

On Thursday (February 20), the Trump administration’s short-lived attempt to turn the naval base at Guantánamo Bay, Cuba into a migrant detention facility holding up to 30,000 migrants — a plan announced via an executive order on January 29, and which, as it developed, involved, with astonishing illegality, co-opting a block in the long-established “war on terror” military prison to hold the majority of these men — seemed to stunningly collapse as all but one of the 178 migrants flown there since February 4, all Venuzuelans, were deported back to Venezuela via Honduras. The one man not repatriated was brought back to the US mainland.

It will be difficult for the Trump administration to spin this as anything other than an abject humiliation, and a powerful reminder that a president doesn’t rule by executive order, or with unfettered executive authority; he — or she, if that day ever comes — has to work with Congress, which passes laws and appropriates funding, and has to operate within the constraints of US law, as interpreted through the judiciary.

Trump’s Guantánamo plan openly showed contempt for all of the above. It was never clear that any authority existed to hold migrants seized on the US mainland at the naval base, where a Migrant Operations Center, in operation since the early 1990s, had only ever been used for Haitian and Cuban migrants intercepted at sea, to prevent them from landing on the US mainland and claiming the rights to legal assistance that entailed.

Most crucially, there was not even the tiniest shadow of a doubt that using Camp 6 of the “war on terror” military prison to hold the majority of these men was anything other than a stupefyingly illegal move on the part of the Trump administration.

Established in January 2002 to hold men and boys seized in the “war on terror” without any fundamental rights whatsoever as human beings, the prison cannot legally be used to hold anyone other than those who allegedly “planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001”, or those who “harbored” them, as stipulated in the Authorization for Use of Military Force (AUMF), passed by Congress a week after the 9/11 attacks, which authorized the president “to use all necessary and appropriate force” to pursue these individuals.

The right to detain these individuals was confirmed in a Supreme Court ruling, Hamdi v. Rumsfeld, on June 29, 2004, in which the Court found that members of al Qaeda and the Taliban “are individuals Congress sought to target in passing the AUMF”, and that their detention “is so fundamental and accepted an incident to war as to be an exercise of the ‘necessary and appropriate force’ Congress has authorized the President to use.”

Over the last two decades, successive US administrations have been mired in relentless controversies regarding the imprisonment of foreign nationals at the “war on terror” prison, but, until now, no efforts had been made to try to suggest that anyone other than individuals involved with al-Qaeda, the Taliban or associated forces, seized, specifically, in connection with the 9/11 attacks and other acts of international terrorism, could legitimately be held there.

Guantánamo as part of Trump’s “war on migrants”

However, as part of a cynical and hysterical “war on migrants” launched by Trump when he took office, via a slew of executive orders and “proclamations” laden with inflammatory and profoundly racist rhetoric, Guantánamo had evidently been seen as a suitable location to ramp up this phone “war” by comparing it explicitly with the “war on terror”, whose last ignominious bastion is the notorious military prison, where 15 men are still held.

When Trump announced his executive order for Guantánamo, he said that it would house “the worst criminal illegal aliens threatening the American people”, while both his Homeland Security Secretary Kristi Noem, and his Border Tzar, Tom Homan, described the migrants who would be sent there as “the worst of the worst”, very deliberately 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.

The rhetoric began to unravel almost immediately. When the Department of Homeland Security braggingly posted photos of the first flight of ten men from Texas to Guantánamo on February 5, reiterating that “The worst of the worst criminals will be held at the military facility”, the DoD, in a separate press release, went even further, claiming that the men were “10 high-threat illegal aliens”, who were all allegedly “part of Tren de Aragua.”

Tren de Aragua is a transnational criminal organization, originally established in Venezuela, which was included in a hysterical executive order issued on Trump’s first day in office, January 20, “Designating Cartels and Other Organizations as Foreign Terrorist Organizations and Specially Designated Global Terrorists.” In that executive order, it was claimed, regarding Tren de Aragua and another named group, Mara Salvatrucha (MS-13), first established in Los Angeles in the 1980s, “Their campaigns of violence and terror in the United States and internationally are extraordinarily violent, vicious, and … threaten the stability of the international order in the Western Hemisphere.”

While it is certainly clear that cartels and other transnational criminal organizations pose a threat — although not to the extent that they “threaten the stability of the international order in the Western Hemisphere” — it was by no means clear that any of the men sent to Guantánamo had any involvement whatsoever in transnational organized crime. The stories that emerged, via family members who recognized their loved ones in the photos, strongly suggested instead that these were nothing more than individuals — a car mechanic and a barber, for example — who had made arduous journeys to the US in search of work.

This long-cherished dream of America’s promise has increasingly been undermined over the last three decades, and Trump and the white supremacists who now make up so much of the US Republican establishment seem determined to eradicate it entirely.

As more and more stories emerged, via mainstream media investigations and the tenacious work of independent journalists covering migrant issues, the administration’s rhetoric began to unravel entirely, accomplishing in a matter of days what had taken years to achieve in relation to the prisoners seized in the “war on terror” — how, as I described it in March 2009, in the introduction to my definitive Guantánamo prisoner list, “the overwhelming majority of those held — at least 93 percent of the 779 men and boys imprisoned in total — were either completely innocent people, seized as a result of dubious intelligence or sold for bounty payments, or Taliban foot soldiers, recruited to fight an inter-Muslim civil war that began long before the terrorist attacks of September 11, 2001, and that had nothing to do with al-Qaeda, Osama bin Laden or international terrorism.”

Defeated by a legal challenge

Gratifyingly, for those of us who still believe that the US’s system of checks and balances can prevail against a Republican Party dominated by organizations and individuals who seem determined to confer dictatorial powers on the president, the “Guantánamo 2.0” debacle seems to have been derailed by nothing more than a legal challenge, via a lawsuit submitted on February 12 by the ACLU, the Center for Constitutional Rights, and IRAP (the International Refugee Assistance Project), on behalf of family members of three men identified as having been transferred to Guantánamo, and various organizations working on immigrants’ rights, in which the organization sought “injunctive, habeas and declaratory relief”, requesting an order for the government “to comply with the US Constitution and federal law prohibiting further incommunicado detention” of the men transferred to Guantánamo, “and ensuring attorney-client communication.”

When the government was required to defend its operations in response to the lawsuit, all its bullish “worst of the worst” rhetoric evaporated. As NPR explained, far from being “the worst of the worst”, the Trump administration’s submission to the court conceded that around a third of the men had no criminal record whatsoever, while the New York Times reported that Juan E. Agudelo, an official with ICE (Immigration and Customs Enforcement) said in a court filing on Thursday — when the government, astonishingly, admitted that it was holding 127 migrants in Camp 6, with the other 51 held in the Migrant Operations Center — that “the immigration agency intended to use Guantánamo ‘as a temporary staging facility for aliens being repatriated’ and said they would be held there for ‘the time necessary to effect the removal orders.’”

At the court hearing, Justice Department lawyers argued that “migrants could request to speak to lawyers by phone, that it violated the operational authority of DHS Secretary Kristi Noem to be required to give notice and that the administration could hold immigrants in Guantánamo Bay longer than six months”, as NBC News reported, noting, however, that “Previous court orders have stated that migrants cannot be held in ICE detention longer than six months and that detention standards should not be punitive.”

The day before the court hearing, Tricia McLaughlin, a spokeswoman for the Homeland Security Department, had also toned down the DHS’s rhetoric, claiming only that ICE was using Guantánamo “to house detainees subject to final orders of removal” — or, as she also described them, “final order aliens”; dehumanizing, yes, but not as vile as her boss’s words, just a week before, when, on X, Kristi Noem posted photos of herself at Guantánamo, and wrote, “I was just in Cuba and saw firsthand criminal aliens being unloaded off a flight at GITMO. My message to criminal alien murderers, rapists, child predators and gangsters: do not come to this country or we will hunt you down, find you, and lock you up.”

So is this brief emergence of “Guantánamo 2.0” over? The New York Times noted only that “It was unclear whether the administration intended to send additional migrants to the base”, although NBC News reported that, although a senior DHS official told them that it “plans to send more immigrants to Guantánamo, and that the base is being seen as a ‘staging area’ to get migrants to other countries”, “two sources familiar with the matter said that DHS has asked the Department of Defense to look for alternative locations, and that DOD is considering other places like Fort Bliss in Texas.”

Was this just “performative cruelty”, or part of something even deeper and darker?

Was this all nothing but a show of performative cruelty, as lawyers suggested, designed to appeal solely to Trump’s base? Perhaps that is the case, and, if so, perhaps voters will turn a blind eye to both the ridiculous expense involved, and the optics of a president who constantly makes grand gestures and statements before just as swiftly abandoning them.

Behind him, however, is a malevolent network of individuals and organizations who, while having to surf the waves of Trump’s mercurial leadership, want nothing less than a complete remaking of the US as a white supremacist Christian nation, committed to the mass deportation of migrants, the removal of their opponents from all government positions, and the expansion of largely unfettered presidential power.

Since he took office just a month ago, Trump has shown nothing but contempt for the checks and balances of the US Constitution, his government — if we can dignify it with such a description — functioning more as a collective far-right temper tantrum than as a responsible entity aware of and respectful of its role in a tripartite state established in the Constitution.

While Trump has been spewing out executive orders and “proclamations” as though he was some sort of medieval monarch — and with a majority of these executive orders mirroring recommendations in the subversive far-right “Project 2025” initiative, published by the Heritage Foundation in 2023, much of it has also taking place via the Department of Government Efficiency (DOGE), also established via an executive order issued on January 20.

Perhaps the most sweepingly illegal of all of the initiatives with which Trump and those backing him are seeking to take a hammer to the state, this has involved Elon Musk, the world’s richest man, being appointed as the head of a made-up department, without any Congressional approval or oversight, which is sowing terror throughout the federal government, unconstitutionally dissolving agencies and seizing congressionally authorized funds, and seeking to lay off vast numbers of federal employees.

On this, and many other fronts — not least the illegal sacking of elected officials against whom Trump bore a grudge — Trump faces significant legal challenges, as well as, it is to be hoped, resistance from Congressional Republicans aware that they are not the servants of the president, required to turn a blind eye to his power-grabbing tendencies, and to rubber-stamp and fund whatever nonsense he comes up with.

Ending “Guantánamo 2.0”

What appears to be the collapse of “Guantánamo 2.0” may look like a small victory, but it does seem, nonetheless, to be a victory.

With Camp 6 emptied of its illegally-installed temporary inhabitants, perhaps we can get back to focusing on the 15 men still held in the “war on terror” prison, including the three “low-value detainees”, long approved for release, who were removed from what was revealed to be Camp 6’s crumbling infrastructure — “in disrepair, with broken showers and doors and other faulty equipment that make parts of it unusable”, as an official told the New York Times — and shunted into Camp 5, where the remaining 12 “high-value detainees” are held.

That move evidently took place just before the first migrants arrived, even though it directly contradicted the rules in place, since the first “high-value detainees” arrived at Guantánamo from CIA “black sites” in September 2006, that required the two groups of prisoners to be kept strictly segregated from one another.

Even better would be for third countries to be found for these three men — a stateless Rohingya Muslim, a Somali and a Libyan, who either cannot be repatriated because of a Congressional ban on doing so, or because, in the case of the Rohingya man, he is essentially a “ghost” with no discernibly clear nationality — and for three other men, never charged, to also be freed, but for now it’s perhaps enough that Trump’s headline-grabbing sideshow has rolled on, which, for a few weeks, managed to make the existing Guantánamo prisoners even more invisible than usual.

POSTSCRIPT (February 24): Dispiriting news via the New York Times, which reports that 15 new migrants arrived at Guantánamo from Texas yesterday evening. The nationalities of the men were not disclosed, but according to the Times, “a government official said they were in the category of ‘high-threat illegal aliens,’ and therefore were being held in Camp 6, a prison that until last month housed detainees in the war on terrorism.”

I genuinely didn’t expect migrant flights to resume so quickly after all of the 178 men transferred so far were removed on Thursday — all but one repatriated to Venezuela — and I especially didn’t think that Trump would continue using Camp 6 of the “war on terror” prison, when, as has been repeatedly established via rights groups, and via my own research and reporting, this is blatantly illegal, because the prison, by law, can only be used to hold individuals allegedly connected to Al-Qaeda, the Taliban or associated forces, in relation to the 9/11 attacks and other acts of related international terrorism.

I’m hoping we’ll hear soon about a legal challenge addressing the Trump administration’s particularly blatant contempt for the rules regarding who can — and can’t — be held in the “war on terror” prison. Over the years, all previous efforts to send new categories of “unpeople” to Guantánamo have been rebuffed, because, to do so, Congress would need to pass new legislation to authorize their imprisonment. It happened, noticeably, with various efforts over the years to suggest that ISIS members should be held there, none of which ever materialized.

For Trump and his administration — via the DHS, and the DoD in particular — to so disdainfully disregard the lack of Congressional authorization for holding migrants in the military prison, and to double down on doing so via yesterday’s flight, needs to be explicitly challenged as swiftly as possible.

UPDATE (February 25): See my latest article, Trump’s Cruel, Grubby and Lawless Guantánamo Fantasy, on the Close Guantánamo website. Also see this update from the New York Times regarding defense secretary Pete Hegseth’s visit to Guantánamo, where “he posted a photo of himself having lunch with members of the joint ICE-military task force that is staffing the operation”, and stated, “These warriors are directly supporting the apprehension and deportation of dangerous illegal aliens.”

In the article, Carol Rosenberg clarified that 17 migrants, “aged 23 to 62”, were flown to Guantánamo on Sunday — “seven men from Honduras, four from Colombia, three from El Salvador, two from Guatemala and one from Ecuador”, according to a document seen by the Times. Rosenberg noted that the Trump administration said that all the men “are designated for deportation”, and that eight of them “were taken into custody by Immigration and Customs Enforcement after President Trump took office.”

UPDATE (February 26): In a post on X, Carol Rosenberg stated, “The military flew nine more migrants into the US base at Guantánamo Bay yesterday during Defense Secretary Hegseth’s visit with his former Fox colleague Laura Ingraham.”

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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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