Lawsuit Challenges Trump’s “Cruel, Unnecessary and Illegal” Transfers of Migrants to Guantánamo

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In a lawsuit submitted to the District Court in Washington, D.C. on Saturday (March 1), the ACLU, the Center for Constitutional Rights and the International Refugee Assistance Project (IRAP) asked the Court to urgently intervene to “put a stop” to what they accurately describe as the Trump administration’s “cruel, unnecessary, and illegal transfers” of migrants to the naval base at Guantánamo Bay, Cuba. As the groups explained in a press release, transferring migrants to Guantánamo from the US mainland is a policy “without any legal authority, in violation of federal law and the US Constitution.”

The central premise of the lawsuit is that, although foreign nationals have been held at Guantánamo before — in a Migrant Operations Center established in the 1990s to hold migrants intercepted at sea, and, most notoriously, in the “war on terror” prison established in January 2002, where 15 men are still held in various states of fundamental lawlessness — the foreign nationals being sent to Guantánamo by Donald Trump have legal and constitutional rights that cannot be wished away through the traditional subterfuge of pretending that US law doesn’t apply at Guantánamo because, technically, it is only leased from the Cuban government, which has ultimate sovereignty.

In relation to the Migrant Operations Center and the “war on terror” prison, this subterfuge has, shamefully, been largely successful, but, as the rights groups argue compellingly in their lawsuit, because the current migrants have been previously held on the US mainland, even though their asylum claims were ultimately unsuccessful, and they have all been subjected to “final removal” orders, they are still protected by the US Constitution, and by US law; specifically, the Immigration and Nationality Act, and the Administrative Procedure Act.

As the lawyers argue, the INA “does not allow for transfers to or detention at Guantánamo”, because of Cuba’s ultimate sovereignty. This means that the transfer of immigration detainees from the US to Guantánamo is “an unlawful removal in violation of the INA”, and and is also “contrary to law under the APA”, as a violation of the law that is both “arbitrary and capricious.” The lawyers also argue that “transfers and detention additionally violate due process under the Fifth Amendment because the transfers are undertaken for punitive, illegitimate reasons and the conditions in which the detainees are housed are unconstitutional.”

The lawsuit was submitted on behalf of ten named individuals — seven Venezuelans, an Afghan, a Pakistani and a Bangladeshi — who are currently being held in immigration detention facilities in Texas, Virginia and Arizona run by Immigration and Customs Enforcement (ICE). Some of the Venezuelans have been wrongly regarded as gang members, simply because they have tattoos, even though their tattoos are not gang-related, while the Afghan and Pakistani had both sought asylum “due to threats from the Taliban”, and the Bangladeshi sought asylum “after receiving threats in Bangladesh based on his membership in the Liberal Democratic Party.” In addition, two of the Venezuelans had been arrested and tortured in Venezuela for their political views (and ICE regards one, inexplicably, as “a danger to society”), and two have also previously been explicitly told by ICE officials that they should “consent to deportation to Mexico”, because, otherwise, “they would be transferred to Guantánamo.”

With good reason, therefore, all of these men fear that, at any moment, they could be put on a plane and sent to Guantánamo, as has happened to over 200 other individuals since Donald Trump issued an executive order on January 29 directing the Secretary of Defense and Secretary of Homeland Security “to take all appropriate actions to expand the Migrant Operations Center at Naval Station Guantánamo Bay to full capacity and to provide additional detention space for high-priority criminal aliens unlawfully present in the United States.”

The “performative cruelty” of imprisoning migrants at Guantánamo

While the legality of using the Migrant Operations Center for Trump’s sweeping “war on migrants” was always in doubt, no one expected that Trump would go far beyond the expansion of the MOC mentioned in the executive order, and would, additionally, co-opt part of the “war on terror” prison as well. This was unexpected because the law establishing the use of the prison — the Authorization for Use of Military Force, passed the week after the 9/11 attacks — stipulates that it can only be used to hold individuals allegedly associated with Al-Qaeda, the Taliban or associated forces, in connection with the 9/11 attacks and other acts of international terrorism.

Nevertheless, as soon as migrant flights to Guantánamo began, it was revealed that Camp 6 of the “war on terror” prison had indeed been co-opted for use in Trump’s “war on migrants”, in contravention of the AUMF, with its three remaining “war on terror” prisoners — three “low-value detainees”, all held for over 20 years without charge or trial, and all long approved for release by high-level US government review processes — shunted into a neighbouring cellblock, Camp 5, where the 12 other men are still held — all “high-value detainees”, and including the men charged in connection with the 9/11 attacks.

This in itself was legally dubious, as, until this point, the military had always scrupulously prevented any contact whatsoever between the general population of Guantánamo and the “high-value detainees”, brought from CIA “black sites”, mostly in September 2006, to prevent any leaking of information about the torture to which they had been subjected.

For propaganda purposes, however, the use of Camp 6 played a critical role in the Trump administration’s brutal and cynical fantasy, in which the “war on migrants” was deliberately compared to the “war on terror.” Senior officials, including Homeland Security Secretary Kristi Noem, referred to the men being brought to Guantánamo as “the worst of the worst”, echoing Donald Rumsfeld’s description of the first men brought to the “war on terror” prison in January 2002, and Noem, always prone to hysterical exaggeration, also called the migrants “murderers, rapists, pedophiles, child traffickers, and drug traffickers.”

No proof was provided, because there is none. Unlike in the “war on terror”, when anonymized, dehumanized individuals were brought to Guantánamo and hidden away (and it took time and effort for attorneys to establish who they were), the migrants flown to Guantánamo have histories that can be much more easily established — not least because photos of some of them were recklessly published by the DHS on February 4 — which refute the government’s wild claims. As has been repeatedly established through journalists’ investigations since the first migrants were brought to Guantánamo, many of the men had no criminal record at all, and in most other cases had done nothing more illegal than trying to get to the US to find work.

Political discourse in the US is now so generally debased that none of the above will matter to Trump’s base, many of whom are happy to regard anyone who crosses illegally into the US as a “terrorist”, but, for anyone capable of any kind of objective analysis, Guantánamo is very evidently being used as nothing more than the cynical centrepiece of a “war on migrants” that, in every respect, is monstrously wrong, involving the most lurid and provocative racist language, threats to deport 13.3 million undocumented migrants, and an attempt to frame the security situation on the US’s southern border as an “invasion” of “illegal aliens” that constitutes a “national emergency.”

Beyond the violent rhetoric and the abject contempt for the law, however, the most dispiriting aspect of this whole confected theater of performative cruelty involves the treatment of the migrants sent to Guantánamo.

Abusive and dehumanizing treatment

As I reported in an article on February 27, Shocking Reports of the Systemic Brutalization and Dehumanization of Migrants Held at Guantánamo, based on a commendable investigation by Washington Post reporters, the “war on terror” analogies don’t stop with the inflammatory language used.

Having tracked down three of the 178 Venezuelans held at Guantánamo between February 4 and February 20, when all but one of them were suddenly repatriated to Venezuela via Honduras, their descriptions of the conditions in which they were held compared to some of the most violent and dehumanizing episodes in the long and brutal history of the “war on terror” prison. 127 of these men were held in Camp 6, while the other 51 were held in the Migrant Operations Center.

The lawsuit submitted on Saturday also addresses these concerns, with one key paragraph explaining how migrants are treated in Camp 6: “People who previously had relatively free movement around large-bay shared housing units while detained in the United States have been housed at the Camp 6 military prison facility and held in what is essentially solitary confinement. They spend at least 23 hours a day in windowless two-by-four meter cells, unable to see the sun and forbidden from talking to one another. They are shackled when escorted outside their cell, with just five minutes’ reprieve for one shower every couple of days. Detainees are permitted only very limited recreation time — up to one hour every day or few days — which occur in a small cage within a larger cage in an enclosed yard. People are subject to invasive strip searches upon leaving or entering their cells. Those who spoke out about their conditions or treatment are tied to a chair for hours. Detainees report how guards withheld water as punishment and one officer slammed a radio against a detainee’s hand, fracturing it. One individual was reportedly beaten up so badly that he tried to harm himself twice in two weeks.”

The lawsuit also notes that conditions are scarcely any better for those held in the Migrant Operations Center, stating, “Detainees at the MOC are also confined in small, barracks-style units, with several detainees in each room. They are permitted to leave their units for at most one 15-20-minute period per day in the evenings and are generally shackled when outside the room. They are also invasively strip searched and subject to excessive force. Detainees endure insults and taunting by guards, who threaten to shoot them, all the while without any information of how much longer they would be subjected to these conditions.”

In addition, the lawsuit notes that those detained at Guantánamo “are denied basic necessities” — they “do not receive enough food”, and “are also denied medical treatment and subject to extreme temperatures.”

They are also “entirely cut off from communicating with their families”, unlike in ICE facilities on the mainland, and were also unable to access attorneys until a previous lawsuit was submitted, which accused the government of “holding them incommunicado, without access to attorneys, family, or the outside world”, although the hearing that followed the submission of that lawsuit has only led to the implementation of what the rights groups call “a barebones attorney access system”, which “is wholly deficient and falls short of standards governing US-based detention centers.”

At the time of writing, an unknown number of migrants are still being held at Guantánamo. After the 178 Venezuelans were removed, 17 new migrants arrived — from Honduras, Colombia, El Salvador, Guatemala and Ecuador — and, as the lawsuit explained, “the government has since sent several planeloads of more detainees to Guantánamo, of several different nationalities.”

It is to be hoped that a hearing takes place soon, and that the judge assessing the lawsuit will recognize how important it is to repudiate the Trump administration’s blatantly false contention that migrants flown from the US mainland to Guantánamo have, essentially, no rights. As the lawyers state unequivocally in their lawsuit, “The government has identified no legitimate reason for transferring and holding detainees at Guantánamo, rather than at detention facilities inside the United States. Instead, Defendants are using the threat of detention on Guantánamo to frighten immigrants, deter future migration, induce self-deportation, and coerce people in detention to give up claims and accept deportation elsewhere. These are impermissible justifications for civil immigration detention.”

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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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